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State v. Morgan

Court of Appeals of Louisiana, Fourth Circuit

May 16, 2018

STATE OF LOUISIANA
v.
JOSEPH MORGAN

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 478-446, SECTION "K" Honorable Arthur Hunter, Judge

          Mr. Joseph Morgan Louisiana State Penitentiary General Delivery Angola, LA 70712 Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu J. Taylor Gray Kyle Daly Michael Danon ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH COUNSEL FOR APPELLEE

          Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew Woods

          Roland L. Belsome, Judge

         The Defendant, Joseph Morgan, seeks review of his second degree murder conviction and sentence. For the following reasons, we affirm the conviction; vacate the sentence and remand the case for re-sentencing.

         STATEMENT OF THE CASE

         On May 29, 2008, the Defendant[1] was indicted with the second degree murder of Gervais Nicholas.[2] He pled not guilty at arraignment. After a four-day trial, a twelve-person jury found the Defendant guilty as charged.[3] The trial court denied the Defendant's motion for new trial and granted an appeal. Subsequently, the Defendant was sentenced to life in prison with the possibility of parole.[4] On the same day, a notice of appeal was issued.[5] This appeal followed.[6]

         STATEMENT OF FACT

         The charges against the Defendant stem from a gang-related homicide that occurred on January 12, 2008, at the Chat Room, a teenage nightclub located on Tulane Avenue and South Lopez Street. On the night of the incident, the Chat Room was hosting a sixteenth birthday party, during which multiple fights erupted. As the security guards began removing the participants, several fights continued.

         Outside, the victim, Gervais Nicholas, [7] was being held on the ground, near the median, by multiple individuals. Two males, later identified as the Defendant, Morgan, and Tavion Aples, were observed running across Tulane Avenue. They returned to the scene with guns. At that time, Morgan and Aples shot the victim multiple times, fatally injuring him.[8] Then, they fled the scene in different directions. After an investigation involving state and federal authorities, Morgan was arrested pursuant to an arrest warrant.

         ERRORS PATENT

         The record shows that defense counsel was not present with the Defendant at the sentencing hearing. The trial court specifically noted counsel's absence. Additionally, both the docket master and the minute entries provided that the Defendant "appeared without counsel for sentencing."

         In State v. Hall, 99-2887, p. 16 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 62-63, this Court set forth the law regarding a sentence imposed in the absence of counsel: La. Const. art. I, § 13 recognizes the right to the assistance of counsel at every stage of the proceedings against a person accused of a crime. State v. White, 325 So.2d 584, 585 (La. 1976). Likewise, the constitutional right to the assistance of counsel provided by the Sixth Amendment of the United States Constitution mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings, including an initial or deferred sentencing. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside. State v. Williams, 374 So.2d 1215, 1217 (La.1979).[9]

         Since the record unequivocally provides that defense counsel was absent and there is no indication that the Defendant waived his right to counsel, the sentence imposed is invalid and must be vacated.[10] Accordingly, the Defendant's sentence is vacated and the case is remanded for re-sentencing.[11]

         DISCUSSION

         The Defendant raises three assignments of error concerning: 1) jury selection, 2) the admission of testimonial evidence, and 3) sentencing. Having already addressed the sentencing error in our errors patent, we turn to the two remaining assignments of error.

         In his first assignment of error, the Defendant contends that the trial court erred in excusing for cause prospective juror, Timothy Charles.[12] La. C.Cr.P. art. 797 provides that the ...


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