FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-773,
SECTION "L" Honorable Franz Zibilich, Judge
A. Cannizzaro, Jr., District Attorney Donna R. Andrieu Mithun
B. Kamath DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH
COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Lee Guillory COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Paula A. Brown, Judge Tiffany G. Chase,
Judge Marion F. Edwards, Pro Tempore 
A. BROWN JUDGE.
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.
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.
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.
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.
on July 28, 2016, the State filed a habitual offender bill
charging Defendant as a third felony offender. 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
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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
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
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