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State v. Cretian

Court of Appeals of Louisiana, Fourth Circuit

January 24, 2018

STATE OF LOUISIANA
v.
MARCUS O CRETIAN

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-773, SECTION "L" Honorable Franz Zibilich, Judge

          Leon A. Cannizzaro, Jr., District Attorney Donna R. Andrieu Mithun B. Kamath DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA/APPELLEE

          Elbert Lee Guillory COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore [1]

          PAULA A. BROWN JUDGE.

         This is a criminal appeal. Defendant, Marcus O. Cretian seeks review of his conviction of resisting a police officer with force, and his habitual offender sentence of seven years at hard labor. For the reasons set forth below, Defendant's conviction and sentence are conditionally affirmed, and the matter is remanded to the district court for an evidentiary hearing for a determination of whether reasonable grounds exist to doubt Defendant's mental capacity and to warrant the appointment of a sanity commission.

         PROCEDURAL HISTORY

         On April 14, 2016, Defendant was charged by bill of information with one count of resisting a police officer with force, a violation of La. R.S. 14:108.2, and one count of possession of drug paraphernalia, a violation of La. R.S. 40:1023.

         The State offered Defendant a plea bargain agreement on June 22, 2016-a sentence of two years and the State would not seek enhancement of the sentence under the habitual offender statute. Defendant rejected the offer. Prior to trial, on July 11, 2016, the State filed a motion in limine seeking to prohibit Defendant from referring, during the trial, to his possible sentencing exposure for the crime and under the habitual offender statute. The district court granted the motion.

         On July 27, 2016, a six-person jury found Defendant guilty of resisting a police officer with force, but acquitted him of the charge of possession of drug paraphernalia.

         Subsequently, on July 28, 2016, the State filed a habitual offender bill charging Defendant as a third felony offender.[2] A sentencing hearing was held on August 23, 2016, and the district court sentenced Defendant to eighteen months at hard labor. At the same proceeding, Defendant entered a plea of guilty as a third felony offender in exchange for a sentence of seven years at hard labor, which was below the penalty provided for under the habitual offender statute. During the proceeding, Defendant's attorney raised the question of Defendant's mental capacity, but did not assert Defendant did not understand that he was to entering a guilty plea or motion the court for the appointment of a sanity commission. The district court accepted Defendant's plea as an habitual offender, vacated Defendant's previous sentence, and sentenced him to seven years at hard labor, with credit for time served to run concurrent with any other sentence.[3]

         Defendant filed a written motion entitled "Application for Appointment of Sanity Commission to Examine Defendant and to Report on Mental Condition at the Time of the Alleged Offense, and for a Hearing as to his Present Capacity to Proceed" ("motion seeking appointment of sanity commission") that was date-stamped October 4, 2016, by the clerk of court's office.

         On January 19, 2017, Defendant orally sought an appeal, and on February 22, 2017, a written motion for appeal was filed and granted the same day.

         More than four months after the filing of the motion seeking appointment of sanity commission and more than one month after the filing of the motion for appeal, on March 30, 2017, a hearing on Defendant's motion seeking appointment of sanity commission was held. The district court denied Defendant's motion.

         This appeal followed.

         FACTS

         Louisiana State Trooper Alex Nezgoginsky ("Trooper Nezgoginsky"), a fifteen-year law enforcement veteran, was assigned to the French Quarter Task Force. On February 22, 2016, Trooper Nezgoginsky participated in the arrest of Defendant in the 800 block of Bourbon Street. Trooper Nezgoginsky was on foot patrol on Bourbon Street with his partner, Huey McCartney ("Trooper McCartney"). Trooper Nezgoginsky and Trooper McCartney received a tip regarding illegal activity occurring at 808 Bourbon Street while on the corner of Bourbon and St. Ann. The tip was from the owner of the property. The troopers were about fifteen feet away from Defendant who was sitting on the steps of the property. As they approached, Trooper Nezgoginsky noticed "no trespassing" signs were posted on the entrance outside the apartment where Defendant was sitting. The troopers, dressed in uniform, initiated a conversation with Defendant. Defendant quickly got up, pushed Trooper McCartney, and ran. Trooper Nezgoginsky grabbed Defendant by the shirt; however, Defendant broke free and continued running toward the 900 block of Bourbon. Trooper Nezgoginsky told Defendant to stop, but he continued running. Trooper Nezgoginsky deployed his taser, but the taser hooks had no contact so Defendant did not receive the full effect of the taser charge. Defendant continued to run. As Defendant approached a trash can on the sidewalk, he stopped; and as Trooper Nezgoginsky advanced, Defendant pushed the approximately sixty pound trash can toward the trooper. Trooper Nezgoginsky testified the trash can hit him on the left side of his leg.

         On re-direct, Trooper Nezgoginsky read his report of the trash can incident stating, "Cretian ran down Bourbon Street towards the main street and pushed the metal trash can to hit my left leg." Trooper Nezgoginsky testified he deployed his taser a second time. Again, the taser did not work. Trooper Nezgoginsky continued explaining that after Defendant got into a fighting stance, he grabbed him by the front of his shirt and forced him to the ground. As Trooper Nezgoginsky continued to give Defendant verbal commands to put his hands behind his back, Defendant attempted to stand up and started kicking at Troopers Nezgoginsky and McCartney. Trooper McCartney detonated his taser to stun Defendant and the arrest was accomplished.

         Trooper McCartney, who had been a Louisiana State Trooper since September 2008, testified that as he and Trooper Nezgoginsky approached Defendant, they advised him to drop what he was holding and show his hands. Trooper McCartney asked Defendant whether he lived in the apartment upon whose steps he was sitting. Defendant did not answer, but got up aggressively and pushed Trooper McCartney in his shoulder. Defendant ran down the street, and the troopers chased him. Trooper MCartney recalled that Trooper Nezgoginsky attempted to tase Defendant twice without success. Although Trooper McCartney testified he was behind Defendant and Trooper Nezgoginsky, he stated he saw Defendant push the trash can into the path of his partner. At the end of the chase, Trooper McCartney detonated his taser and it connected. Trooper McCartney explained he stunned Defendant because Defendant, while on the ground, would not allow the troopers to handcuff him.

         Molly Thomas ("Ms. Thomas"), an investigator employed by defense counsel, testified she took photographs of 800 block of Bourbon Street. Ms. Thomas stated there were no signs relating to loitering on the building. Additionally, she noted there were thirteen surveillance cameras in the area of 808 Bourbon Street. On cross-examination by the State, it was determined that Ms. Thomas was unaware if the surveillance cameras were in place or functioning on February 22, 2016, the date of Defendant's arrest.

         ERRORS PATENT

         In accordance with La. C.Cr.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. A review of the record indicates two errors patent.

         The first error patent is the district court erred in failing to consider Defendant's motion seeking appointment of sanity commission on the merits before granting Defendant's appeal. The statutes governing a defendant's mental capacity to proceed are set forth in La. C.Cr.P. art. 641, et seq. Louisiana Code Criminal Procedure Article 642 provides:

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

         Louisiana Courts recognize as an error patent a trial court's failure to comply with La. C.Cr.P. art. 642. State v. Camper, 08-0314 (La.App. 4 Cir. 10/1/08), 996 So.2d 571 and State v. Nicholas, 587 So.2d 16 (La.App. 3 Cir.1991).

         At the August 23, 2016 habitual offender proceeding, Defendant's attorney mentioned to the district court his concern of the Defendant's mental capacity. During the inquiry, the following pertinent exchange occurred:

THE COURT: I take it you can read, write and understand the English language?
THE DEFENDANT, CRETIAN: Yes, sir.
THE COURT: Do you understand what is going on here today?
THE DEFENDANT, CRETIAN: Yes, sir.
THE COURT: Do you understand the various rights that you have ...

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