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State v. Young

Court of Appeals of Louisiana, Fourth Circuit

October 11, 2017

STATE OF LOUISIANA
v.
AVERY A. YOUNG

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 489-688, SECTION "I" Honorable Karen K. Herman, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY PARISH OF ORLEANS COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

          Michael S. Fawer SMITH & FAWER COUNSEL FOR DEFENDANT/APPELLANT.

          (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods).

          Rosemary Ledet Judge.

         This is the second appeal by the defendant, Avery Young, in this criminal case, involving a charge of second degree kidnapping. On Mr. Young's first appeal, this court conditionally affirmed his guilty plea to that charge, vacated his sentence, and remanded for an evidentiary hearing on the motion to withdraw his guilty plea. State v. Young, 11-0046 (La.App. 4 Cir. 8/17/11), 71 So.3d 565 ("Young I "). On remand, the district court, following an evidentiary hearing, denied the motion to withdraw Mr. Young's guilty plea and resentenced him. From that ruling, Mr. Young filed this second appeal. For the reasons that follow, we affirm in part and remand for resentencing to correct an error patent.

         STATEMENT OF THE CASE

         On August 25, 2009, the State charged Mr. Young with second degree kidnapping, a violation of La. R.S. 14:44.1 (count one). On September 1, 2009, Mr. Young was arraigned and entered a plea of not guilty to that charge. Before trial, both sides filed various motions, including a motion to introduce evidence of an earlier offense filed by the State. Granting in part and denying in part the State's motion, the district court, on October 28, 2009, ruled as follows:

[T]he State may adduce evidence of the earlier offense involving [L.B.], but with certain limitations: no mention is to be made of the gun used by Mr. Young in that matter, nor is anything which may have occurred between [L.B.] and Mr. Young prior to December 11, 2007 . . . be elicited. Indeed, [L.B.] is to be instructed by the State to only testify to the facts of Mr. Young's restraining her at his apartment against her will and his efforts to pacify her during that restraint by administering intoxicants.

         On July 12, 2010, a motions hearing was held. On that same date, the State amended the bill of information to add a charge of forcible rape, a violation of La. R.S. 14:42.1 (count two), and to change the wording and date of the occurrence. Mr. Young entered a plea of not guilty to the amended bill of information.

         The jury trial in this case lasted three days. On the first day (July 12, 2010), voir dire was conducted and a jury was selected. On the second day (July 13, 2010), both sides gave opening statements and the State called three witnesses- the victim, R.C.;[1] the sexual assault nurse examiner ("SANE"), Jeanne Dumestre; and a detective with the New Orleans Police Department ("NOPD") sex crimes unit, Detective Corey Lymous. On the third day (July 14, 2010), Mr. Young pleaded guilty to second-degree kidnapping; and the State dismissed, pursuant to a negotiated plea agreement with the State, the forcible rape charge.

         Before sentencing, Mr. Young enrolled new counsel. On August 20, 2010, Mr. Young filed a motion for a sanity hearing, which the district court granted. On August 26, 2010, following a sanity hearing, the district court found Mr. Young competent to proceed. On that same date, Mr. Young filed a motion to withdraw his guilty plea and requested an evidentiary hearing on that motion. He also filed a motion to continue sentencing. The district court denied those motions and sentenced Mr. Young, in accord with the plea agreement, [2] to serve fifteen years at hard labor with credit for time served and concurrent with his parole revocation sentence in Section "C" of Orleans Parish Criminal District Court (Case Number 475-798) (the "Section 'C Case"), [3] but without benefit of parole, probation, or suspension of sentence for the first two years. On August 30, 2010, the district court denied Mr. Young's motion to reconsider sentence.

         In his prior appeal, Mr. Young argued, among other things, that the district court erred by denying the motion to withdraw his guilty plea without an evidentiary hearing. Finding merit to this argument, this court affirmed Mr. Young's conviction, vacated his sentence, and remanded for an evidentiary hearing on the motion to withdraw his guilty plea. Young I, supra.

         On remand, Mr. Young, represented by new counsel, filed a motion to quash the indictment. On October 25, 2013, following a hearing, the district court denied the motion to quash. At that time, the evidentiary hearing on the motion to withdraw Mr. Young's guilty plea was set for December 2013.

         On August 25, 2015, Mr. Young filed a motion to recuse the district court judge (Honorable Karen Herman) on the basis that the judge could be a witness at the hearing on the motion to withdraw his guilty plea. The motion was transferred to another division for hearing. On November 4, 2015, following a recusal hearing, the motion was granted. This court denied the State's writ application. State v. Young, 15-1305 (La.App. 4 Cir. 1/20/16) (unpub.). The Louisiana Supreme Court, however, granted the State's writ application, stating that "[t]he recusal of Judge Herman is reversed. The hearing on the motion to withdraw the guilty plea shall proceed with Judge Herman presiding." State v. Young, 16-0300 (La. 4/8/16), 191 So.3d 579.

         On January 13, 2017, the district court, following a two-day evidentiary hearing, denied the motion and re-imposed the original sentence of fifteen years at hard labor. This appeal followed.

         STATEMENT OF THE FACTS

         The facts regarding the offense to which Mr. Young pled guilty are set forth in detail in Young I. Briefly stated, Mr. Young pled guilty to the second degree kidnapping of his girlfriend, R.C., whom he held captive in his house after they argued.[4] Because the issue on this appeal relates solely to the motion to withdraw Mr. Young's guilty plea, we focus on the facts developed at the evidentiary hearing on remand on the motion to withdraw.

         As noted, the evidentiary hearing was held over a two-day period. On the first day, Mr. Young called the following six witnesses: (i) Mark Nermyr, a criminal defense attorney from Arizona and Mr. Young's friend; (ii) Christian Recile, an NOPD officer and Mr. Young's friend; (iii) Veronica Young, Mr. Young's mother; (iv) Jeffrey Smith, Mr. Young's co-counsel at trial; (v) Dr. Richard Richoux, who was qualified as an expert in the field of general psychiatry; and (vi) Mr. Young. On the second day, the State called one witness-Dr. Sarah Deland, who was qualified as an expert in the field of general psychiatry.

         To provide a background for analyzing the issue presented on appeal, we summarize the evidence presented at the evidentiary hearing. For ease of discussion, we divide the summary into the following three parts: timeline of the case; experts' testimony; and lay witnesses' testimony.

         Timeline of the case

         Shortly after Mr. Young's arrest, his parents retained Mr. Smith to represent their son. Mr. Smith argued all of the pre-trial motions. As the district court pointed out at the hearing, Mr. Smith alone represented Mr. Young from August 2009, when the bill of information was filed, until about five months before his trial, when a motion to associate Robert Glass as co-counsel was filed.

         In late January 2010, Mr. Young's father retained Mr. Glass to represent his son. On February 1, 2010, Mr. Smith filed a motion to enroll Mr. Glass as associated counsel, which the district court granted.[5] According to Mr. Young, Mr. Glass then became lead counsel, and Mr. Smith remained on the case as "second chair." When Mr. Glass was hired to represent Mr. Young, he was suffering from Parkinson's disease;[6] Mr. Glass did not disclose this fact to his client, to Mr. Young; Mr. Young's parents; or to co-counsel, Mr. Smith.

         When the jury trial commenced, Mr. Young was represented by a team of two experienced attorneys-Mr. Glass[7] and Mr. Smith.[8] Before the trial, his attorneys divided the trial tasks between themselves. As planned, on the first day of the trial, Mr. Smith handled the voir dire. As planned, on the morning of the second day of trial, Mr. Glass made the opening statement and cross-examined the victim, R.C., one of the State's key witnesses, whose testimony was extensive and lasted until the lunch break. After the victim's testimony, the trial was recessed for lunch.

         Mr. Young testified that during the lunch break, he and Mr. Glass were left alone in the courtroom. At that point, Mr. Young confronted Mr. Glass with the question of whether Mr. Glass had Parkinson's disease.[9] Mr. Glass responded affirmatively that he had Parkinson's disease. According to Mr. Young, Mr. Glass added that his doctor had told him that he was not "too far along, yet" and that he did have to take medication. Mr. Young further testified that Mr. Glass then asked him whether his performance had been "that bad." Continuing, Mr. Young testified that, shortly thereafter, Mr. Glass leaned back in his chair and went to sleep in the courtroom during the lunch break.

         When trial resumed that afternoon, Mr. Smith, as planned, handled the cross-examination of NOPD Detective Lymous.[10] The State's final witness for the day was the SANE nurse.[11] As apparently planned, Mr. Glass handled the testimony of the SANE nurse. During the direct examination of the State's SANE nurse, Mr. Glass voiced several hearsay objections, several of which the district court sustained. Mr. Glass then cross-examined the SANE nurse.[12]

         After trial was over for the day, Mr. Young spoke with his parents, who had been sequestered (and thus not in the courtroom). Mr. Young informed his parents of his views regarding Mr. Glass' performance that day and that Mr. Glass had acknowledged that he had Parkinson's disease; his parents were unaware of this fact.[13] Mr. Young also told his parents he would arrange to call them that evening.

         Later that evening, Mr. Smith spoke with Mr. Glass and met with Mr. Young's parents; Mr. Smith did not recall speaking with Mr. Young on the telephone that evening. Mr. Young, in contrast, testified that Mr. Smith was present that night when he telephoned his parents and that he spoke with Mr. Smith that night. Mr. Young testified that his mother told him in the phone conversation-and Mr. Smith later confirmed it on the phone-that Mr. Smith had spoken to Mr. Glass, that Mr. Glass had acknowledged that he could not continue, and that Mr. Glass was backing out and transferring the case to Mr. Smith. On that evening, Mr. Young testified, no decision had been reached as to how matters would proceed the next day.

         On the third day of trial (July 14, 2010), no testimony was taken because there was an electrical power outage in the courthouse building that morning. As the district court judge noted on the record, she allowed the defense attorneys (Mr. Glass and Mr. Smith) and Mr. Young to use her chambers to meet in private to discuss a plea agreement. The three of them discussed the plea agreement at length that morning. Mr. Smith testified that Mr. Glass played a pivotal role in the plea agreement discussion. Mr. Smith further testified that this was not the first time a plea agreement had been discussed in this case. Mr. Young testified that Mr. Smith informed him that the trial judge had informed the defense that she would impose a fifty-year sentence if he was convicted. Mr. Young further testified that given Mr. Glass' health issues, coupled with what had happened in court on the prior day, he felt compelled to accept the plea agreement offered by the State. Mr. Smith acknowledged that he and Mr. Glass encouraged Mr. Young to accept the plea agreement. Mr. Smith, however, explained that they did so because of the strength of the State's evidence against Mr. Young, not because of Mr. Glass' performance.

         During the trial, neither the attorneys nor Mr. Young advised the district court judge that Mr. Glass was suffering any symptoms from Parkinson's disease. Nor was a motion for mistrial or a motion to continue the trial filed on that basis. A few days after he was sentenced, however, Mr. Young retained new counsel, who filed the motion to withdraw Mr. Young's guilty plea based, in part, on Mr. Glass' alleged incompetence.

         Expert witnesses' testimony

         The testimony at the evidentiary hearing focused on Mr. Glass' competency, especially the effect, if any, of Mr. Glass' symptoms from Parkinson's disease on his performance at the trial. Although Mr. Glass was not called as a witness at the evidentiary hearing and his medical records were not offered in evidence, it was stipulated, as noted elsewhere, that Mr. Glass was diagnosed with Parkinson's disease before February 1, 2010. At the evidentiary hearing, each side called an expert to opine on whether Mr. Glass was suffering from any cognitive impairment as a result of the Parkinson's disease. The experts voiced totally divergent opinions on this issue.

         Mr. Young's expert, Dr. Richoux, testified about Parkinson's disease in general. Dr. Richoux testified that, in the earliest stages of Parkinson's disease, 30 to 40 percent of Parkinson's sufferers will suffer cognitive impairment and that, "in advanced stages of Parkinson's [d]isease, probably 80 percent of Parkinson's sufferers will show an identifiable neuro[-]cognitive result." Dr. Richoux explained that the cognitive impairment that accompanies Parkinson's disease is documented in both the Diagnostic and Statistical Manual of Mental Disorders (the "DSM") and the literature in general. Indeed, he noted that the current DSM, DSM V, has a section entitled "Neuro[-]Cognitive Disorders Due to Parkinson's Disease."

         Dr. Richoux further explained that a Parkinson's sufferer will have problems primarily in the following two domains (areas of brain function): (i) complex attention, and (ii) executive functioning skills. He noted, based on his experience in court testifying regularly as an expert, that these areas of brain function are important skills for a defense attorney. Complex attention, he explained, means the ability to attend to what is going on, to retain it for some time, and to formulate thoughts about it. Executive functioning skills, he explained, primarily involve "on-the-spot" decision making. A problem in this area is reflected by a tendency to defer to others in terms of making important decisions. He stated that "Parkinson's suffers will have a tendency to abandon complex tasks." Indeed, he stated the DSM gives this as an example. Dr. Richoux, however, testified that "it's important to understand, not every single person who has a diagnosis of Parkinson's [d]isease, has the same degree of neuro[-]cognitive impairment in accompaniment with it."

         Dr. Richoux acknowledged that he had no awareness of when Mr. Glass was diagnosed with Parkinson's disease and that he was not given access to Mr. Glass' medical records. Dr. Richoux further acknowledged that he had neither examined Mr. Glass nor attended the trial in this case. Dr. Richoux still further acknowledged that he had never observed Mr. Glass in a courtroom setting and thus could not make a comparison based on what the other lay witnesses at the evidentiary hearing described occurred at the trial in this case. Dr. Richoux explained that his expert opinion regarding Mr. Glass was based solely on "background knowledge about generalities concerning Parkinson's disease, and specifically, neuro[-] cognitive impairment associated with it. And then trying to parlay that with what [he] heard in the form of testimony from witnesses [at the evidentiary hearing.]"

         Expressing his opinion, Dr. Richoux testified that "if I operate on the assumption that what I heard is accurate, in that regard, [Mr. Glass] could certainly correlate quite closely with, again, one of the classic examples given in the DSM in the area of impairment of Executive Functioning, when it talks about abandoning complex tasks." He further testified that "[t]o a reasonable degree of medical certainty, based on what I'm hearing, there was some degree of cognitive impairment on the part of Mr. Glass." Finally, he opined that this impacted on Mr. Glass' conducting of the defense. Although Dr. Richoux opined that Mr. Glass had some degree of neuro-cognitive impairment, he could not quantify it.[14]

         The State's expert witness, Dr. DeLand, similarly testified about Parkinson's disease in general, noting that the disease includes motor impairment and cognitive issues. Dr. DeLand testified that in the early stages of Parkinson's disease, it is common for some people not to suffer from cognitive impairment, yet to have motor impairment. She further opined that a ...


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