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State v. Queen

Court of Appeals of Louisiana, Third Circuit

January 5, 2018



          John F. DeRosier 14th Judicial District Court District Attorney Carla S. Sigler Elizabeth B. Hollins Assistant District Attorney COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

          Peggy J. Sullivan COUNSEL FOR DEFENDANT/APPELLANT: Timothy H. Queen

          Timothy Hugh Queen Louisiana State Penitentiary Main Prison Angola, LA PRO SE

          Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret, Judges.


         On January 15, 2009, Defendant, Timothy H. Queen (hereinafter, "Defendant") was charged by grand jury indictment with one count of armed robbery, a violation of La.R.S. 14:64, one count of armed robbery with a firearm, a violation of La.R.S. 14:64.3, one count of possession of a weapon by a convicted felon, a violation of La.R.S. 14:95.1, and one count of possession of a firearm in a firearm free zone, a violation of La.R.S. 14:95.2. On January 16, 2009, Defendant pled not guilty to the charges. On August 20, 2009, Defendant filed several motions, including a Motion to Substitute Counsel. According to the minutes, the trial court granted Defendant's request to represent himself, in part, and appointed co-counsel. On September 22, 2009, the State severed the charges of possession of a weapon by a convicted felon and possession of a firearm in a firearm-free zone.

         At the September 22, 2009 hearing, Defendant withdrew his plea of not guilty and tendered a plea of not guilty and not guilty by reason of insanity. On November 4, 2009, the trial court appointed a sanity commission to determine Defendant's competency to proceed and stayed all proceedings. On April 14, 2010, the trial court found Defendant competent to proceed and relieved the Public Defender's Office from being co-counsel.

         On May 21, 2010, upon the State's motion, the trial court amended the indictment to include the names of the victims to counts one and two, to add predicate convictions on count three, and to correct a spelling error in count four. Defendant tendered a plea of not guilty and not guilty by reason of insanity to the amended bill.

         On October 17, 2016, the day before trial, the trial court heard a motion in which Defendant requested that he be represented by counsel in entirety. The trial court granted the motion after Defendant stated under oath that he wanted counsel to represent him. On October 18, 2016, the State reiterated its decision to sever certain charges from the bill and proceed to trial on armed robbery and armed robbery with a firearm. Upon the State's motion, the trial court ordered counts one and two of the bill amended as to the names of the victims. Defendant was re-arraigned on the amended bill and maintained his previous plea of not guilty and not guilty by reason of insanity.

         After a trial held October 18, 2016, and October 19, 2016, a unanimous jury found Defendant guilty as charged of armed robbery and armed robbery with a firearm. Subsequently, on December 14, 2016, the trial court denied Defendant's motion for new trial. After Defendant waived the twenty-four hour delay for sentencing, the trial court sentenced Defendant on the armed robbery conviction to seventy-five years in the Department of Corrections to be served without benefit of probation, parole, or suspension of sentence and on the armed robbery with a firearm conviction to five years to be served without benefit of probation, parole, or suspension of sentence. The trial court ordered the armed robbery with a firearm sentence to run consecutively to the sentence imposed for armed robbery. The State also gave notice of its intent to file a habitual offender bill.

         On January 3, 2017, Defendant filed a Motion and Order for Appeal, which was granted that same date. Defendant's is now before this court, in brief alleging three assignments of error.


         On November 19, 2008, Defendant went into Thrifty Way Pharmacy in Lake Charles, Louisiana, armed with a firearm, and demanded the pharmacist give him certain pills. Defendant was apprehended shortly after the robbery and identified by the victims.


          In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find that there is one potential error patent regarding Defendant's waiver of his right to counsel and an error patent regarding the advisement of the time period for filing post-conviction relief.

         The one possible error patent concerns Defendant's waiver of his right to counsel. The record contains multiple minute entries and hearings regarding Defendant's request to represent himself. At most proceedings, Defendant was assisted by co-counsel. Ultimately, Defendant was represented by counsel in full at trial and at sentencing. Because several hearings occurred with Defendant either representing himself or having the assistance of co-counsel, we will address Defendant's waiver of right to counsel.

         In conducting an error patent review of the waiver of the right to counsel, this court has examined the adequacy of the waiver. State v. Montgomery, 10-1151 (La.App. 3 Cir. 4/6/11) (unpublished opinion), writ denied, 11-1742 (La. 5/4/12), 88 So.3d 449, cert denied, __U.S.__, 134 S.Ct. 95 (2013). Thus, we will look beyond the court minutes to determine whether a waiver was required and, if necessary, whether the waiver was valid.

         In State v. Dupre, 500 So.2d 873, 876-78 (La.App. 1 Cir. 1986), writ denied, 505 So.2d 55 (La.1987) (footnote omitted), the first circuit discussed a waiver of right to counsel when standby counsel was also appointed:

The Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded the right to assistance of counsel before he can be validly convicted and punished by imprisonment. The Sixth Amendment further grants to an accused the right of self-representation. State v. Carpenter, 390 So.2d 1296 (La.1980). In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to constitutional level the right of a state criminal defendant to represent himself. Because an accused managing his own defense "relinquishes . . . many of the traditional benefits associated with the right to counsel", he "must 'knowingly and intelligently' forego those relinquished benefits" in order to represent himself. Faretta, 95 S.Ct. at 2541.
Although a defendant does not have a constitutional right to be both represented and representative, the district court has the discretion to appoint an attorney to assist a pro se defendant. See State v. Bodley, 394 So.2d 584 (La.1981); State v. Boettcher, 338 So.2d 1356 (La.1976). When the trial court allows this kind of arrangement the defendant acts as his only legal representative. The legal counsel that is appointed does not represent the defendant; he only advises him. Because the court appointed attorney is only acting as an advisor, the accused is abandoning his right to be represented by counsel. At the same time he is exercising his right to self- representation. Therefore, when an attorney is appointed as an advisor the accused must knowingly abandon his right to be represented by counsel.
In this case, although co-counsel was appointed as an advisor to Dupre, counsel spent a significant portion of the trial representing Dupre. Taylor argued motions, made objections, examined witnesses and assisted in closing arguments. The fact that Taylor partially represented Dupre at trial raises the initial issue of whether Dupre was thereby afforded all the benefits of legal representation and whether this representation abrogated the need for an adequate waiver of counsel.
We hold that it did not. Even though he has an attorney partially representing him, when the accused assumes functions that are at the core of the lawyer's traditional role, as Dupre did, he will often undermine his own defense. Because he has a constitutional right to have his lawyer perform core functions, he must knowingly and intelligently waive that right. See United States v. Kimmel, 672 F.2d 720 (9th Cir.1982); Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976); State v. Bell, 381 So.2d 393 (La.1980). This reasoning is "a logical extension of the well-established rule that a waiver is required despite the presence of a court-appointed advisor." Kimmel, 672 F.2d 720, 721, [citing United States v. Dujanovic, 486 F.2d 182 (9th Cir.1973) ].

. . . .

In general, if a defendant desires to represent himself, he should be required to waive counsel and proceed on his own. If the trial court wishes to appoint an advisor, a waiver of counsel is still required and problems will be avoided if the advisor is restricted to advising and not allowed to partially conduct the defense.

         In State v. Poche, 05-1042, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1231-32, this court explained, in pertinent part:

In State v. Hayes, 95-1170, pp. 4-5 (La.App. 3 Cir. 3/6/96), 670 So.2d 683, 685-86, this court stated:
Before being allowed to represent himself, a criminal defendant must knowingly and intelligently waive his constitutional right to counsel. State v. Mitchell, 580 So.2d 1006 (La.App. 3 Cir.1991), writ denied, 613 So.2d 969 (La.1993).
A criminal defendant is guaranteed the right to counsel by both the state and federal constitutions. U.S. Const. amend. VI; La. Const. art. I, § 13. Absent a knowing and voluntary waiver of the right to counsel, no person may be imprisoned unless represented by counsel at trial. State v. Smith, 479 So.2d 1062 (La.App. 3 Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel, the trial court must determine whether the defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). The determination of whether there has been an intelligent waiver of the right to counsel depends upon the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. State v. Harper, 381 So.2d 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether a defendant has validly waived his right to counsel. State v. Carpenter, 390 So.2d 1296 (La.1980). However, the record must establish that the accused knew what he was doing and that his choice was made "with eyes open." Id. at 1298, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The Third Circuit Court of Appeal has repeatedly required the trial court meet the following requirements in determining whether a defendant has validly waived his right to counsel: first, determine a defendant's literacy, competency, understanding and volition, i.e. [, ] was defendant's waiver of counsel made voluntarily and intelligently; and second, warn the defendant of the dangers and disadvantages of self-representation, so that the record establishes that the defendant knew what he was doing. Mitchell, 580 So.2d 1006; Smith, 479 So.2d 1062; State v. Adams, 526 So.2d 867 (La.App. 3 Cir.1988); State v. Sepulvado, 549 So.2d 928 (La.App. 3 Cir.1989); and State v. Bourgeois, 541 So.2d 926 (La.App. 3 Cir.1989), writ denied, 572 So.2d 85 (La.1991).
The correctness of granting a defendant the right to represent himself is judged by the record made in recognizing his right to do so, not by what happens in the course of his self-representation. State v. Dupre, 500 So.2d 873 (La.App. 1 Cir.1986), writ denied, 505 So.2d 55 (La.1987).

         With this jurisprudence in mind, we will determine the adequacy of Defendant's waiver of his right to counsel in the present case. On August 20, 2009, the trial court addressed Defendant's "Motion to Substitute Counsel, " which Defendant agreed was actually a request to represent himself. Defendant argued that he was being forced to represent himself because he could not get adequate representation through the Public Defender's Office. Defendant asserted that no attorney in the Public Defender's Office could adequately represent his interests. The trial court then questioned Defendant as to his competency to represent himself. The following colloquy took place between the trial court and Defendant:

Q. Give me your full name. What is your full name.[sic]
A. Timothy Hugh Queen.
Q. And your date of birth, Mr. Queen?
A. October 31st, 1966.
Q. October, 1966?
A. Yes, sir.
Q. So, you're 30 - - 43 years old?
A. 43 this year.
Q. You're 42 now, will be 43 this year?
A. Yes, sir.
Q. Okay. What kind of education background do you have, Mr. Queen?
A. I completed my GED in high school. I've got approximately a year in college toward an associate applied science in paralegal study.
Q. Okay. And you've been in a criminal court setting before this time?
A. Yes, sir.
Q. How many times?
A. Several times in Texas.
Q. Have you gone through trials before?
A. Yes, sir.
Q. Have you ever represented yourself?
A. Yes, sir.
Q. In what case?
A. A couple in Texas.
Q. What were they?
A. One was a felony possession case, and the other one was - - it was felony theft.
Q. Okay. What was the result of those verdicts?
A. The theft was dismissed, and the possession was dropped to a Class A misdemeanor, time served.
Q. Did you go to trial on those cases?
A. I went to trial on the theft case; and before we went in there to pick a jury, they dismissed it.
Q. And you were representing yourself, you didn't have - -
A. Yes, sir.
Q. Did you have court-appointed counsel who was assisting you?
A. No.
Q. Did you conduct any discovery in those proceedings?
A. Yes, sir.
Q. What kind of discovery did you conduct?
A. I just filed basic [sic] motion for discovery and - - you know, typical in a criminal case; and they provided what evidence they had.
Q. What did you do with that evidence or that information that you got?
A. Basically - - well, I was originally able to get the theft case reduced from a felony to a misdemeanor; and then when we went to trial on the misdemeanor is when they finally dismissed it because of evidence that I had obtained, you know, concerning the value of the items they claimed were stolen. And there was also an issue pertaining to the manner that I came across the property and related to the theft charge.
Q. You've been incarcerated before?
A. Yes, sir.
Q. Have you had an opportunity to review the laws of the State of Louisiana?
A. Yes, sir.
Q. Are you familiar with the laws as it concerns armed robbery?
A. Yes, sir.
Q. In what respect? How are you familiar with that?
A. As I understand, sir, the charge of armed robbery carries from 10 to 99 years.
Q. What are the requirements for the proof of the elements of the crime?
A. The elements would be that I had intention to deprive an owner of property through threats or with a weapon.
Q. That's pretty close. Have you ever appeared in a court proceeding like you are doing today representing yourself?
A. Yes, sir. Yes, sir, I have.
Q. In what case?
A. I don't have the cause [sic] number off the top of my head, but there's the theft case. The possession - -
Q. I thought you told me they dropped it before - -
A. Yes, sir.
Q. -- you began?
Did you have an opportunity the [sic] ask anybody any questions?
A. Not in that case, no, sir; but I did represent myself - - there's one case I did forget about. It was a civil matter, and it is a recorded decision where I represented myself in Texas and it was concerning the relinquishment of my parental rights in an adoption. And I did - -I did question witnesses in that case. The matter, though, once the case was - - proceeded to trial, I was actually represented by counsel from - - what they call state counsel for the offenders over in Texas that's supplied by the prison system; and I participated as co-counsel there and questioned witnesses. And the case eventually went to the Ninth Circuit in Beaumont and I was granted full relief. The adoption was overturned and my parental rights restored.
Q. Have you gotten from Mr. Alexander information about your arrest and how the incident was reported and those kinds of things?
A. He filed discovery motions, yes, sir; and we obtained discovery.
And I don't think it's full discovery. I don't think the state has disclosed everything that they had; but, yes, we do - - we've obtained evidence.
Q. You've looked at it?
A. Yes, sir.
Q. Is everything that you're charged with come out of one event?
A. Yes, sir.
I will note for the record that you have in the past written a couple of letters to the court concerning maybe a writ of habeas that you asked for.
Yes, sir. That wasn't really intended for this court; but this is where it ended up.
-- and you also wrote another letter to me - -
For the indictment and information.
-- asking for copies of indictments or maybe the bill of information.
Yes, sir; and also, I believe, I wrote you earlier this year pertaining to not having seen any counsel for my first three or four months here.
You wrote to me March the 2nd of '09. It was filed in the record on March the 20th.
All right. I'm going to grant your request in part. I'm going to allow you to represent yourself, together with Mr. Alexander. He will serve as your co- counsel, and y'all can decide your trial strategies as you go along. You seem intelligent enough and able to make your point. So, I think you've had sufficient experience and are familiar, in some respects, but not totally familiar with all of the laws of State of the Louisiana [sic]; but you, I think, you can adequately represent yourself; so, I'm going to grant your wish.
Thank you.
And appoint you as co-counsel with court-appointed counsel, the public defenders office.

          Although the trial court did not specifically advise Defendant of the dangers and disadvantages of proceeding to trial without counsel, considering the record as a whole, as this court did in Poche, the trial court was aware that Defendant was "literate, competent, and understood the charges against him and the judicial process." Poche, 924 So.2d at 1233. Furthermore, Defendant was well aware of the judicial process and was assisted by co-counsel at numerous proceedings. Thus, the record as a whole supports a finding that Defendant adequately waived his right to counsel during pre-trial proceedings.

         We note that after the August 20, 2009 waiver, the subject of Defendant's representation was revisited many times, most of which were brought about by Defendant's request to change his co-counsel and Defendant's request to have Peart hearings regarding the adequacy of funding available to the Public Defender's Office.

         When Defendant was found competent to proceed on April 14, 2010, the trial court granted the Public Defender's Office's "Motion to Be Relieved as Counsel of Record" because Defendant had filed suit against the Public Defender's Office. Defendant asked the court to clarify that he was proceeding without the assistance of co-counsel. At the next hearing held May 21, 2010, Defendant did not have the assistance of co-counsel. At that proceeding, the trial court again dealt with the issue of Defendant's access to legal resources, which was reset for July 21, 2010. The trial court also denied Defendant's claim that his protection against double jeopardy was being violated by being charged with both armed robbery and armed robbery with a firearm. Additionally, the trial court denied Defendant's motion to quash based on lack of discovery and denied a motion for preliminary examination.

          At the May 21, 2010 proceeding, Defendant also filed a motion concerning conflict of interest of co-counsel, which the trial court denied since Defendant was representing himself. Defendant argued that he had a right to build a record as to why he was representing himself, but the trial court denied Defendant's request. At that same proceeding, the State amended the bill to change the victims and to add a predicate offense to the charge of possession of a firearm by a convicted felon. Defendant re-entered his same plea of not guilty and not guilty by reason of insanity.

         The cover page of a hearing held July 21, 2010, indicates Defendant again had co-counsel, but nothing in the transcript of the hearing indicates co-counsel participated. On August 25, 2010, the trial court heard Defendant's motion to vacate the order relieving the Public Defender's Office. The State informed the trial court that it believed Defendant needed to be represented and that an attorney not associated with the Public Defender's Office should be appointed to represent Defendant. Noting that Defendant was a named plaintiff in a class action lawsuit against the Public Defender's Office, the trial court refused to vacate its earlier order relieving the Public Defender's Office from representing Defendant. Instead, the trial court appointed Eugene Bouquet, an independent contractor with the Public Defender's Office, to represent Defendant. When Defendant asked the trial court if Mr. Bouquet was representing him in full or as co-counsel, the trial court responded:

I'm going to leave you as co-counsel, if you want to be. If you don't want to be, then stop talking and stop filing papers. If you want to be co-counsel, then you can continue to do stuff. Okay? But it has to be signed by you and Mr. Bouquet, co- counsel - -

          Defendant informed the trial court that it was never his intention to represent himself and that he did so only because of the lack of competent counsel. The trial court proceeded with Defendant's Motion to Recuse the District Attorney, apparently without Mr. Bouquet. After Defendant questioned a witness, the trial court denied the motion to recuse.

         At a hearing held May 11, 2011, Defendant was assisted by co-counsel Eugene Bouquet. The trial court denied a motion to recuse the trial judge filed by Defendant. The trial court decided that after the doctors reported on Defendant's insanity at the time of the offense, it would decide whether Defendant should represent himself in the entirety or have co-counsel. At a hearing held August 17, 2011, the trial court heard a bond reduction hearing with the presence of co-counsel. A motion for the appointment of ad hoc counsel was denied because Defendant had been allowed to represent himself. At that same proceeding, the trial court heard a Peart motion filed by Defendant, which was held in abeyance until other witnesses could be called.

         At a hearing held October 31, 2012, James Dixon of the Public Defender's Office summarized Defendant's attorney situation as follows:

MR. DIXON: James Dixon, Your Honor, from the Public Defender's Office. Your Honor, I have been subpoenaed in the matter of State V. Timothy Queen, Case No. 6736-09.
Your Honor, I have requested - - I submitted a handwritten motion to quash the subpoena. The basis for Mr. Queen's motion is essentially this: Initially, he was appointed Eugene Bouquet to represent him from the Public Defender's Office. And as you recall, he filed various motions stating that Mr. Bouquet was overworked, had too many cases. He had about 150 cases.
When we hired Donald Sauviac, we thought, "Well, we can remedy that situation." We transferred the case to Mr. Sauviac, who had fewer than 50 cases. And when Mr. Sauviac left and his cases were transferred to Mike McHale, that case went to Mike McHale. Mr. McHale also has fewer than 50 cases. So Mr. Queen got exactly what he wanted for [sic], an attorney with fewer cases.
He has now filed a motion asking that Mr. Bouquet be reappointed and has subpoenaed me to testify in that hearing. My point is this: At this point, it would seem that Mr. Bouquet - - excuse me - - Mr. Queen is simply abusing the process.

         The trial court denied Defendant's motion to have Mike McHale dismissed from the case and Eugene Bouquet reappointed. When Mr. McHale asked the trial judge to clarify his role in representing Defendant, the trial judge responded:

THE COURT: You would be considered, I guess, lead counsel.
MR. MCHALE: All right.
THE COURT: I'm not sure how else to describe it. I have given Mr. Queen the opportunity to in part represent himself. And Mr. Kimball has explained to him that one of his defenses doesn't make a whole lot of sense, that he believes himself capable enough to represent himself, yet he wants to claim insanity at the time and the commission of the offense as a defense. And that probably is not going to bode well with the jury, but that's his business.
MR. MCHALE: Yes, sir.
THE COURT: Okay? So any motions that he files on his own, you may give him some advice, but he is on his own on those motions. Any motions that you file on your own - -
MR. MCHALE: Yes, sir.
THE COURT: - - you control the motions that you file, and he controls the motions that he files. And he's not having very much luck with his motions.

         The next hearing transcript in the record, September 27, 2013, indicates Mr. King Alexander was back as counsel for Defendant. In the body of the transcript, however, it appears Mr. McHale terminated his contract with the Public Defender's Office; thus, all of his files were being assigned to Mr. Shelton. Mr. Shelton assisted Defendant at another proceeding held January 15, 2014, at which Defendant filed a motion to substitute counsel. According to the trial judge's summary of the motion, Defendant was seeking to substitute another counsel because Mr. Shelton had not helped him and had not prepared. The trial court denied the motion to substitute.

         Mr. Shelton assisted Defendant at a hearing on a motion to recuse the trial judge held June 27, 2014. At a subsequent proceeding held October 6, 2014, Defendant appeared without the assistance of co-counsel on a motion to declare La.Code Crim.P. art. 782(a) and La.Const. Article I, § 17 unconstitutional. The trial court denied the motion. On November 25, 2014, Defendant appeared with Mr. Shelton, again filing a motion to substitute counsel. Defendant alleged that Mr. Shelton had a conflict of interest between some of his clients and Defendant. The trial court denied the motion to substitute counsel. The following colloquy took place as to Defendant's assistance from Mr. Shelton:

Mr. Queen actually desires to represent himself. I'm actually ...

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