text:
    STATE of Louisiana v. David Gilbert ARDOIN.
    No. 2009-K-0578.
    Supreme Court of Louisiana.
    May 11, 2010.

      James D. Caldwell, Atty. Gen., Joseph L. Waitz, Jr., Dist. Atty., Ellen Daigle Doskey, Asst. Dist. Atty., for Applicant.
    The Hillman Law Firm, APLC, Bertha Moseley Hillman, for Respondent.
   PER CURIAM.

|, The state charged defendant, David Gilbert Ardoin, by grand jury indictment with aggravated rape, in violation of La. R.S. 14:42(A)(4), and with aggravated incest, in violation of La. R.S. 14:78.1. The charges stemmed from allegations that he sexually abused M.C., a seven-year-old girl who had been living with defendant and his wife Trina from the time she was approximately six months old, although she spent weekends with Edward Flynn, whom she called her father, and her stepmother, Merdine Flynn, Edward’s wife. Edward Flynn is the brother of defendant’s wife, Trina, and is defendant’s brother-in-law. Defendant waived a jury and after trial before the Hon. David Ar-ceneaux in 2007, he was found not guilty of aggravated rape but guilty of aggravated incest. The trial court sentenced him to 10 years imprisonment at hard labor. On appeal, defendant asserted in his single assignment of error that the evidence at trial was insufficient to support the verdict for aggravated incest. The First Circuit agreed, |2vacated the conviction for aggravated incest, entered a judgment of guilty of molestation of a juvenile in violation of La. R.S. 14:81.2, and remanded for resen-tencing. State v. Ardoin, 08-1504 (La.App. 1st Cir.2/13/09), 6 So.3d 237. We granted the state’s application to review that decision and now reverse and remand the case to the court of appeal for further consideration.

In his reasons for verdict, Judge Arcen-eaux found, based on the testimony of M.C., that defendant on at least one occasion over the summer of 2006 pulled down M.C.’s panties, placed his face between her legs, and licked her vaginal area when they were living together in a trailer in Gibson, Louisiana. However, the judge was not persuaded that defendant “actually placed his mouth or his tongue on her vagina,” and so acquitted defendant of aggravated rape in violation of La. R.S. 14:42(A)(4)(oral sexual intercourse when the victim is under the age of 13 years). On the other hand, Judge Arceneaux found that evidence defendant had licked M.C. in her vaginal area would have supported verdicts for molestation of a juvenile and indecent behavior with a juvenile and therefore supported a finding that he had committed some of the proscribed sexual acts enumerated in R.S. 14:78.1(B) as essential elements of the offense of aggravated incest.

Judge Areeneaux made three other critical determinations in support of his verdict that defendant had committed the crime of aggravated incest. First, he specifically found that the evidence at trial supported a determination that M.C. is the biological daughter of Edward Floyd, the brother of Trina Ardoin, which made M.C. the niece of Trina. Second, because Trina is the sister of Edward Floyd, and the aunt of M.C., Judge Areeneaux found “that ... Mr. Ardoin, the husband of Trina, [is] the uncle of M.C. by marriage.” Third, the evidence also established that defendant was fully aware of the nature of his relationship with M.C. over the | .¡course of the seven years that M.C. lived with him and Trina. Judge Areeneaux thus concluded that the state’s evidence satisfied the definition of aggravated incest in La. R.S. 14:78.1(A), ie., that the offender engaged in the proscribed sexual acts enumerated in subsection “B” of the statute (including molestation of a juvenile and indecent behavior with a juvenile), when the victim is under the age of 18 years and known to the offender to be related to him “as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.” “The statute does include relations that are biological, step, or adopted,” the court noted, “and, of course, the only way you can be related as a relative who is a ‘step’ is by marriage. That’s how you become a step-relative.”

On appeal, defendant argued that the state’s evidence did not support a finding that Edward Flynn is the biological father of M.C. and that the evidence thus failed to prove the requisite biological, step, or adoptive relationship between offender and victim for purposes of La. R.S. 14:78.1(A). However, the court of appeal reversed his conviction for aggravated incest on another basis which the court considered subsumed in defendant’s challenge to the sufficiency of the evidence. Ardoin, 08-1504, p. 4, n. 1, 6 So.3d at 240. The First Circuit panel found that, even assuming M.C. is the biological daughter of Edward Flynn, the brother of Trina Ardoin and defendant’s brother-in-law, defendant is, as Judge Ar-eeneaux described him, not the biological uncle of M.C., but an uncle by marriage. While M.C. “would, therefore, be the defendant’s niece by marriage,” the court of appeal concluded that “the defendant cannot properly be regarded as M.C.’s step-uncle.” Ardoin, 08-1504, p. 4, 6 So.3d at 240. The court of appeal |4panel added that “even if Edward were not the biological father of M.C. the defendant would still not be the biological, step, or adoptive relative of M.C.” Id.

The court of appeal erred in its analysis. Louisiana divides the crime of incest into two categories. Incest, as a matter of La. R.S. 14:78, is a crime involving consanguinity, ie., the offender and victim are related by blood, although it “is immaterial whether the parties of the act are related to one another by the whole or half blood.” On the other hand, because aggravated incest encompasses not only biological and adoptive relationships but also step relationships, the crime is one of both consanguinity and affinity. See Black’s Law Dictionary 1413 (6th ed.1990)(the word “step-” “[w]hen used as [a] prefix in conjunction with a degree of kinship, is repugnant to [a] blood relationship, and is indicative of a relationship by affinity.”); Black’s Law Dictionary 67 (9th ed.2009)(affinity is “[t]he relationship that one spouse has to the blood relatives of the other spouse; relationship by marriage.”). A person is therefore a relative by affinity: “(1) to any blood or adoptive relative of his or her spouse, and (2) to any spouse of his or her blood and adopted relatives.” Id. at 1402. As explained in 2 Charles E. Torda, Wharton’s Criminal Law, § 242, p. 573 (15th ed.1994):

The doctrine of affinity grew out of the canonical maxim that the husband and wife are one. It is the relationship which arises, in consequence of marriage, between one spouse and the blood relatives of the other. Thus, the husband stands in the same degree of affinity to his wife’s blood relatives as she stands to them by consanguinity, and vice versa.

Thus, the word “niece” describes “[t]he daughter of a person’s brother or sister; sometimes understood to include the daughter of a person’s brother-in-law or sister-in-law.” Black’s Law Dictionary 1143 (9th ed.2009); see also Webster’s Third New International Dictionary 1526 (2002)(defining “niece” as a daughter of one’s brother, sister, brother-in-law or sister-in-law.). Previous versions of Black’s defined the term “uncle” simply as the “brother of one’s father or mother.” See, e.g., Black’s Law Dictionary 1694 (4th ed.1951). More recent versions of Black’s do not define the term but Webster’s Third New International Dictionary 2485 (2002) defines “uncle” as the brother of one’s father or mother or “the husband of one’s aunt.” Thus, assuming that M.C. is the biological daughter of Edward Flynn, then Trina Ardoin, Edward’s sister, is M.C.’s aunt by consanguinity, and defendant, as the husband of Trina and the brother-in-law of Edward, is M.C.’s uncle by affinity.

The First Circuit panel is correct that defendant is not M.C.’s step-uncle by virtue of a consanguine. relationship with Merdine Flynn, Edward Flynn’s wife and M.C.’s stepmother, i.e., he is not the brother of Merdine Flynn and therefore not the step-uncle of her stepdaughter by virtue of Merdine’s marriage to Edward. Cf. Webster’s New Third International Dictionary 2237 (2002) (when used to denote relation by affinity, “step-” means “related by virtue of remarriage (as of a parent) and not by blood.”). However, as the court of appeal acknowledged, it clearly appears that defendant is M.C.’s uncle by virtue of his marriage to M.C.’s aunt, the sister of his brother-in-law and M.C.’s blood relative. While the provisions of the Criminal Code “cannot be extended by analogy so as to create crimes not provided for,” they “shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3. We agree with Judge Arceneaux that by including step-relationships within the ambit of Louisiana’s aggravated incest statute, the legislature plainly meant to encompass relationships of affinity within a family arising from the marriages or remarriages of blood relatives including blood parents and siblings. Cf. Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805, 807-08 (2003) (“[S]exual activity in step-relationships is equally disruptive of the family as would be sexual activity between blood relations.”).

Accordingly, we vacate the decision below. Defendant urges this Court to conduct an independent review of the record to resolve (in his favor) the question of whether the state proved that M.C. is, in fact, the biological daughter of Edward Flynn, who did not testify at trial. However, the court of appeal did not address this aspect of his argument and the issue is therefore not properly before us at this time. Therefore, we remand this case to the court of appeal for reconsideration of defendant’s sufficiency claim consistent with the views expressed herein.

COURT OF APPEAL DECISION REVERSED; CASE REMANDED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.


source: Caselaw Access Project

author:
GUIDRY, Justice.
     JOHNSON, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Bruce BROWN, et al.
    No. 2009-KK-2456.
    Supreme Court of Louisiana.
    May 11, 2010.

      James D. Caldwell, Atty. Gen., Leon A. Cannizzaro, Jr., Dist. Atty., Andrew Pickett, Asst. Dist Atty., for Applicant.
    Orleans Public Defenders, Carrie Elizabeth Ellis, for Respondent.
   GUIDRY, Justice.

| tIn this criminal prosecution for possession with intent to distribute marijuana, evidence was seized from within one unit of a dual residence during a warrantless search, conducted by police acting on information from a citizen informant asserting she had authority over the premises and stating the persons in the residence were trespassers. The issue is whether the evidence should be suppressed. Following a hearing, the district court denied the defendant’s motion to suppress. The defendant sought review in the court of appeal, which reversed the district court ruling.

For the reasons set forth below, we set aside the ruling of the court of appeal granting the defense motion to suppress, reinstate the district court ruling denying the motion to suppress, and remand the case for further proceedings.

FACTS

At the suppression hearing, Officer Robert Barrere of the New Orleans Police Department testified that on April 9, 2009, he responded to a call from a concerned citizen indicating that there were individuals inside of a neighboring residence armed with weapons and distributing illegal drugs. Officer Barrere arrived at the location 12and met the complainant Patrina Brown. She lived in one side of the double residence located at 719/721 Philip Street. He testified that Ms. Brown reiterated that there were individuals inside of the other unit, which shared a common wall, who were armed with firearms while selling narcotics from the residence, and who were trespassers. Officer Barrere testified that he asked Ms. Brown who owned the residence, and she told him her grandmother owned both units and had given Ms. Brown control over the entire building.

Officer Barrere stated that he then approached the door at 719 Philip Street and knocked. Although he could hear a television playing loudly, no one answered the door. He looked over at Ms. Brown and she told Officer Barrere that he had her permission to open the door. The door was unlocked and Officer Barrere opened it. The door opened into the living room. On the left side of the room was a sofa and table. The defendant, Bruce Brown, was seated on the sofa with his brother Charles. On the table, directly in front of the defendant, was a bag containing 14 other bags of apparent marijuana, an opened box of Good Sense sandwich bags, and a digital scale, all in plain view. Because Officer Barrere had been told that the defendant was armed, he drew his weapon. He ordered the defendant and his brother out of the residence, and with the assistance of his partner, Lucretia Gat-ner, the defendant was handcuffed and placed under arrest. Once the defendant was secured, Officer Barrere testified he went back to recover the contraband and, scanning the area, he noticed the butt of a firearm protruding from the sofa cushions. He retrieved the firearm, a .40 caliber handgun, removed the magazine and emptied the chamber for safety.

PROCEDURAL HISTORY

The defendant and his brother were charged in a single bill of information with one count of possession with intent to distribute marijuana in violation of Louisiana |P>Revised Statute 40:966(A)(2). Following arraignment and assignment of the case, counsel for the defendant filed a motion to suppress.

At the hearing, the defendant argued the seizure was illegal because the officer went into the residence without a warrant, in the absence of exigent circumstances or the observation of criminal activity, and without proper consent. He relied upon Ms. Brown’s statements to the effect that she lived in the adjoining unit but did not own the building. She did not exhibit any evidence of authority or control over 719 Philip Street. According to the defendant, reliance by the officer on Ms. Brown’s assertion that she had been given control of both sides of the premises by her grandmother, without any proof, was not reasonable. The defendant also argues it was not reasonable for the officer, without making further inquiry, to accept Ms. Brown’s assertion that the people in the other side of the double did not belong there.

The State countered that Ms. Brown informed the officers that her grandmother owned the property and that she had been given control over the entire premises. She also informed Officer Barrere that there were armed subjects inside the adjoining unit who were selling drugs and they were not supposed to be there. Consequently, according to the State, before opening the door to 719 Philip Street, Officer Barrere, based upon information he had received from an apparently reliable citizen informant, reasonably believed that Ms. Brown had control over the premises and that the persons inside were trespassers in the commission of a crime.

After taking the matter under advisement, the trial court denied the motion to suppress. In a Per Curiam, the trial judge concluded the officer was provided with | information from Ms. Brown about a crime in progress that he reasonably could have relied on. Further, Officer Barrere knocked on the door to verify Ms. Brown’s information and only opened the door upon hearing a television set playing, with no response from the persons inside, and after receiving permission to open it from Ms. Barrere, who claimed to have control over the premises.

The court of appeal majority reversed, finding that it was unreasonable for Officer Barrere to believe and act on Ms. Brown’s unsubstantiated assertions. The dissent noted that Officer Barrere was told the individuals occupying 719 Philip Street were armed and in possession of drugs and that they “were not supposed to be there.” As trespassers, the dissent reasoned they would have no Fourth Amendment rights or expectation of privacy. Accordingly, the dissent concluded, Officer Barrere’s entry into the premises to pursue individuals in the commission of a crime with no Fourth Amendment privacy rights was reasonable.

This Court granted the State’s application for certiorari to review the correctness of the court of appeal action reversing the trial court denial of the defense motion to suppress. State v. Brown, 09-2456 (La.12/18/09), 23 So.3d 950.

LAW

Longstanding Fourth Amendment jurisprudence precludes a landlord from consenting to the search of his tenant’s residence unless he also lives in the premises or the tenant has vacated the residence. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). When a defendant challenges a warrantless search conducted on the basis of third-party consent, the validity of the consent is tested against the rule of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in which the Court explained that “the consent of one who possesses common authority over the premises or effects is valid as against the absent, | Bnonconsenting person with whom that authority is shared.” Commenting on Matlock, the Supreme Court stated in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006):

It is ... easy to imagine different facts on which, if known, no common authority could sensibly be suspected. A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant. ... A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room. In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises.

Randolph, 547 U.S. at 111, 126 S.Ct. at 1521.

However, in Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), the Court held that individuals who exploit a private premises solely for the commercial purpose of packaging drugs for sale have no reasonable expectation of privacy even if they have the consent of the tenant to use the premises.

Louisiana accords greater protection of privacy rights than does the Fourth Amendment. Louisiana Constitution Article I, Section 5 expressly provides that anyone “adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.” Under this expanded standing provision, “a defendant adversely affected by the search of a home of another has standing ... to assert a homeowner’s loss of privacy rights.” State v. Stephens, 40,343, p. 7 (La.App.2d Cir.12/14/05), 917 So.2d 667, 673-74 (collecting cases). Thus, “[tjhere is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person’s constitutional rights.” State v. Owen, 453 So.2d 1202, 1205 (La.1984). However, | r,Article I, Section 5 presupposes that a person who violates the privacy rights of another by trespassing in the home may not assert those privacy rights as a basis for suppressing evidence recovered by the police in an effort to remove him from the residence (thereby restoring the owner’s privacy interest) without a warrant or the owner’s explicit consent. See State v. Walker, 06-1045, p. 8 (La. 4/11/07), 953 So.2d 786, 791 (“Officer Schnapp’s intrusion on the owner’s privacy interest by entering her residence on the heels of an intruder and removing him without her express consent scarcely added to the initial disruption caused by the defendant’s unauthorized entry into the home after he ignored the officer’s attempt to stop him outside the premises. Under these circumstances, permitting the defendant to assert a third party’s privacy interests he had violated by his own actions would serve no legitimate purpose.”) (citation omitted).

The validity of a third-party’s consent is tested according to an objective evaluation of whether “the facts available to the officer at the moment [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990) (internal quotation marks and citation omitted). There is a presumption of inherent credibility attaching to citizen informants. State v. Kyles, 513 So.2d 265, 271 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988); State v. Morris, 444 So.2d 1200, 1203 (La.1984).

While anyone who gives information to police may be called an “informant,” a distinction may be drawn between an anonymous tipster and a citizen who witnesses or is the victim of criminal conduct and reports to police as a matter of civic duty. 1 Warren R. LaFave, Search and Seizure, A Treatise of the Fourth Amendment, § 3.3 p. 499-500 (1978). When the informant is an anonymous person, it is critical |7that there be some specific showing that he is a credible person and that his information is reliable. In contrast, citizen informant reports based on firsthand knowledge carry a high indicia of credibility. State v. Morris, 444 So.2d 1200,1203 (La.1984); State v. Lehnen, 403 So.2d 683, 685 (La.1981); U.S. v. Darensbourg, 520 F.2d 985 (5th Cir.1975). The citizen informer is a presumptively inherently credible source. State v. Mosley, 412 So.2d 527, 530 (La.1982).

DISCUSSION

For purposes of applying the Rodriguez test for apparent third-party authority to consent, we need not dwell on whether a reasonable police officer in Barrere’s position could have believed that Patrina Brown, who stated she lived in 721 Philip Street, had common authority over 719 Philip Street sufficient to consent to his entry even if he believed that her grandmother had ostensibly given her that authority. Chapman instructs that Ms. Brown’s grandmother herself could not have given consent to enter the premises without the tenant’s permission. But this presupposes that the defendant and his brother were lawful tenants at 719 Philip Street, or under Louisiana law, invited guests.

Here, Officer B arrere had presumptively reliable information supplied by citizen informant Patrina Brown that the individuals on the other side of the double were not supposed to be there (from which he could assume they were not tenants or invited guests) and that they were selling drugs while in possession of firearms. Ms. Brown called in the complaint and met Officer Barreré at the premises. Ms. Brown never attempted to leave the scene. This added to her reliability. Furthermore, Ms. Brown was not a mere bystander; she told police she had control over the house and the police had no reason to disbelieve her. No evidence was presented at the hearing on the motion to suppress relative to the presence of circumstances which would | srebut the presumption that the citizen informant was truthful. To the contrary, Officer Barreré approached the residence, confirming Ms. Brown’s information by knocking on the door and receiving no answer, despite the fact that he could hear a television set playing. Armed with the apparently credible information that there were persons in the unit in possession of drugs and firearms who did not belong there and thus had no reasonable expectation of privacy in the residence, Officer Barreré acted reasonably in taking the least intrusive means of responding to the information presented by opening the unlocked door to the premises. Upon seeing the drugs in plain view, he then had probable cause and exigent circumstances existed.

CONCLUSION AND DECREE

We find no constitutional grounds for suppressing the evidence observed in plain view and seized. For the reasons stated herein, we set aside the ruling of the court of appeal, reinstate the district court ruling denying the defendant’s motion to suppress, and remand the case to the district court for further proceedings.

COURT OF APPEAL RULING SET ASIDE; DISTRICT COURT RULING REINSTATED; CASE REMANDED TO THE DISTRICT COURT.

JOHNSON, J., dissents and assigns reasons.

JOHNSON, Justice,

dissenting.

I,The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. Similarly, La. Const. Art. 1, Sect. 5 provides in part, “Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.”

In this case, police officers entered the residence at 719 Philip Street, in New Orleans, without a warrant, based on allegations made by Ms. Patrina Brown, who resided at 721 Philip Street, the other half of this double structure. We have long recognized in New Orleans that the two sides of a double house are separate residences, just as apartments in any building are separate residences.

Officer Robert Barreré testified that Pa-trina Brown informed him that persons were not supposed to be on the other side of the double, and that they were armed and doing drugs. She told Officer Barreré “Just open the door. You have my permission to go inside.” There is nothing in the record to support a conclusion that Officer Barreré could reasonably rely on Ms. Brown’s assertions that she had been given authority over the entire premises by her grandmother, and could therefore give the |2officer permission to enter 719 Philip Street without the consent of the occupant or tenant on the other side.

Longstanding Fourth Amendment jurisprudence precludes a landlord from consenting to the search of his tenant’s residence unless he also lives on the premises or the tenant has vacated the residence. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

In Georgia v. Randolph, 547 U.S. 103, at 111, 126 S.Ct. at 1521, 164 L.Ed.2d 208 (2006), the Supreme Court observed that:

... A tenant in the ordinary course does not take rented premises subject to any formal or informal agreement that the landlord may let visitors into the dwelling, and a hotel guest customarily has no reason to expect the manager to allow anyone but his own employees into his room. In these circumstances, neither state-law property rights, nor common contractual arrangements, nor any other source points to a common understanding of authority to admit third parties generally without the consent of a person occupying the premises.

Officer Barrei’e needed something more than Patrina Brown’s assertion that the individuals on the other side of the double should not have been there. As noted by the appellate court majority, the officer did not ask a single question to clarify if, in fact, 719 Philip street was otherwise occupied, or by whom, and he thus had no specific factual basis for concluding that the individuals on the other side of the door had no reasonable expectation of privacy. Questioning Ms. Brown prior to the search, as opposed to after, would have revealed that the individuals on the other side were relatives, also named Brown, who are listed in the arrest register as residents of 719 Philip Street.

Louisiana law accords greater protection of privacy rights than the Fourth Amendment because La. Const, art. I, § 5 expressly provides that anyone “adversely affected by a search or seizure conducted in violation of this Section shall have [ ^¡standing to raise its illegality in the appropriate court.” Under this expanded standing provision, “a defendant adversely affected by the search of a home of another has standing ... to assert a homeowner’s loss of privacy rights.” Defendants did not have to show, as a matter of state law, that they were, or are, the tenants or residents at 719 Philip Street, as long as the evidence at the hearing established that the premises were not vacant but occupied by someone other than Patri-na Brown or her grandmother, and that they were not mere trespassers.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . The record indicates an omnibus motion to suppress was filed by the defendant’s counsel, but both the defendant and his brother appeared at the motion hearing with separate counsel. The notice of intent and the writ application in the court of appeal were filed by the defendant’s counsel. Furthermore, reference is made in the defense writ application, the state’s opposition and the court of appeal decision to the fact that relief was being sought only as to defendant Bruce Brown.

      . Randolph, 547 U.S. at 112, 126 S.Ct. at 1522.

      . State v. Stephens, 40,343, p. 7 (La.App. 2nd Cir.12/14/05), 917 So.2d 667, 673-74.


text:
    In re Helene Melissa SUGAR.
    No. 2010-B-0516.
    Supreme Court of Louisiana.
    June 2, 2010.
   ORDER

Considering the recommendation of the hearing committee in this matter,

IT IS ORDERED that Helene Melissa Sugar, Louisiana Bar Roll number 24718, be and she hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

/s/ Bernette J. Johnson JUSTICE, SUPREME COURT OF LOUISIANA


text:
    In re Attlah Deniece BURRELL.
    No. 2008-B-0327.
    Supreme Court of Louisiana.
    June 2, 2010.
   ORDER

Considering respondent’s “Motion For Dissolution of Interim Suspension” pursuant to Supreme Court Rule XIX, § 19.2(D), and considering the response thereto filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the motion be and hereby is denied. Attlah Deniece Burrell, Louisiana Bar Roll number 24764, shall remain suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.2, pending further orders of this court.

/s/ John L. Weimer JUSTICE, SUPREME COURT OF LOUISIANA

KNOLL, J., recused.


author: PER CURIAM.

text:
    In re Edmund Joseph WOODS, II.
    No. 2010-B-0091.
    Supreme Court of Louisiana.
    June 4, 2010.
   LATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Edmund Joseph Woods, II, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

The underlying facts of this matter are not in dispute, having been stipulated to by the parties.

In March 2004, Paulette Harrison hired respondent to handle a personal injury matter stemming from a fall Ms. Harrison suffered while a patient at Ochsner Hospital’s rehabilitation facility (“Ochsner”). Thereafter, respondent did not conduct an investigation of Ms. Harrison’s claims or review her medical records to identify, locate, and interview witnesses named and/or described by Ms. Harrison.

In January 2005, respondent filed a lawsuit against Ochsner on Ms. Harrison’s behalf. Ochsner filed an exception of prematurity based on the fact that respondent had not first presented the claim to a medical review panel. Although aware of the related hearing, respondent was not present at the hearing and did not follow up to determine what had occurred at the hearing. In June 2005, the suit was dismissed phased on its premature filing. At this point, communication between respondent and Ms. Harrison broke down, despite Ms. Harrison’s numerous attempts to contact respondent. On the few occasions respondent talked to Ms. Harrison, he gave her misleading information about the work he was doing on her case. In actuality, he was not working on the matter and effectively abandoned his client.

Respondent did not notify Ms. Harrison that her suit was dismissed because he did not learn of the dismissal until March 2008, after she filed a disciplinary complaint against him. Furthermore, even though respondent was not familiar with medical malpractice claims, he did not consult another attorney or refer Ms. Harrison to a more experienced attorney.

DISCIPLINARY PROCEEDINGS

In March 2009, the ODC filed one count of formal charges against respondent, alleging his conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(a) (failure to provide competent representation to a client), 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(a) (declining or terminating representation), 1.16(d) (obligations upon termination of the representation), 3.2 (failure to make reasonable efforts to expedite litigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent answered the formal charges, indicating he was inexperienced in the practice of law at the time of the representation and had never handled a medical malpractice claim. He also stated, “For the most part I do not have any issue with the way the charges were presented by [the ODC].”

|sFormal Hearing

This matter proceeded to a formal hearing on the merits. During the hearing, respondent and the ODC filed a joint stipulation, wherein respondent stipulated to the factual allegations of the formal charges as set forth above, the alleged rule violations as set forth above, and the presence of certain aggravating and mitigating factors.

Hearing Committee Report

After considering the record and the evidence presented at the hearing, the hearing committee adopted the factual allegations of the formal charges, as stipulated to by respondent, as its factual findings. The committee also determined that the ODC’s exhibits support the factual findings. The committee then adopted the rule violations as alleged in the formal charges and as stipulated to by respondent.

The committee further determined that respondent’s lack of competence, his knowing and/or intentional neglect of his client’s legal matter, and his abandonment of his client’s lawsuit caused his client actual harm. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the baseline sanction is suspension.

In aggravation, the committee recognized respondent’s prior disciplinary offense from 2002, which was based on his lack of communication and dishonest conduct and which was resolved through the diversion program offered by the Louisiana State Bar Association (“LSBA”). As mitigating factors, the committee found the absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse.

After also considering this court’s prior jurisprudence involving similar misconduct, the committee recommended respondent be suspended from the practice 14of law for six months, with three months deferred, followed by one year of supervised probation with the condition that he successfully complete the LSBA’s Law Office Management Assistance Program and Ethics School.

The ODC filed an objection to the hearing committee’s recommendation and suggested the proper sanction is a suspension from the practice of law for one year, with the requirement that respondent successfully complete the LSBA’s Law Office Management Assistance Program and Ethics School.

Disciplinary Board Recommendation

After review, the disciplinary board determined the stipulated facts and exhibits support the hearing committee’s determination that respondent violated the Rules of Professional Conduct as charged.

The board also determined respondent violated duties owed to his client, the legal system, and the legal profession. Respondent acted negligently when he accepted a legal matter for which he did not have adequate legal knowledge and skill. He acted knowingly when he neglected and abandoned the legal matter without properly terminating the representation, and he acted intentionally when he misrepresented to Ms. Harrison that he was diligently pursuing her legal matter. Respondent’s misconduct caused serious injury to Ms. Harrison by preventing her from having her legal issue properly adjudicated.

In aggravation, the board found prior disciplinary offenses and a dishonest or selfish motive. In mitigation, the board found full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, inexperience in the practice of law (admitted 2001), and remorse.

| ¿Turning to the issue of an appropriate sanction, the board noted respondent has already attended Ethics School through the LSBA’s diversion program; thus, he has already had an opportunity to correct deficiencies within his practice. The board also emphasized respondent’s actions in misleading his client.

Under these circumstances and after considering this court’s prior jurisprudence involving similar misconduct, the board recommended respondent be suspended from the practice of law for eighteen months, with six months deferred, followed by two years of probation, with the condition that he obtain assistance from the LSBA’s Law Office Management Assistance Program in developing sound law office management practices.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, the parties stipulated that respondent agreed to handle a legal matter he was not competent to handle and, thus, failed to provide competent representation to a client. He also neglected the legal matter, failed to communicate [swith the client, and misled the client as to the status of the legal matter. The parties also stipulated that respondent violated the Rules of Professional Conduct as charged. The record supports these stipulations.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We find respondent knowingly and intentionally violated duties owed to his client, the legal system, and the legal profession. He caused actual harm to his client. The baseline sanction for respondent’s misconduct is a suspension from the practice of law.

The record supports the aggravating and mitigating factors found by the disciplinary board. Considering these factors, we find the sanction recommended by the board to be appropriate. While respondent was a fairly new practitioner at the time of the misconduct in this case, that does not excuse his repeated failures to communicate with his client, nor his choice to mislead her about the status of her legal matter.

Under these circumstances, we will adopt the disciplinary board’s recommendation and suspend respondent from the practice of law for eighteen months, with six months deferred, followed by two years of probation, with the |7condition that respondent obtain assistance from the LSBA’s Law Office Management Assistance Program in developing sound law office management practices. Should respondent fail to comply with the conditions of probation, or should he commit any misconduct during the probationary period, the deferred suspension may be made executory, or additional discipline may be imposed, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Edmund Joseph Woods, II, Louisiana Bar Roll number 27334, be and he hereby is suspended from the practice of law for eighteen months. Six months of this suspension shall be deferred, subject to respondent’s successful completion of a two-year period of unsupervised probation, with the condition that he obtain assistance from the Louisiana State Bar Association’s Law Office Management Assistance Program in developing sound law office management practices. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Apparently, respondent did not realize Ms. Harrison’s claim was based on medical malpractice.

      . The board rejected the mitigating factor of absence of a dishonest or selfish motive as found by the hearing committee because it is incongruent with the finding that respondent engaged in conduct involving misrepresentation and dishonesty.


author:
PER CURIAM.
     KNOLL, J.,

text:
    Melba Lee SEE v. ENTERGY CORP., et al.
    No. 2010-C-0065.
    Supreme Court of Louisiana.
    June 4, 2010.
   PER CURIAM.

The assessment of damages by a jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. Accordingly, a reviewing court’s role in examining general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). If an appellate court finds that the trier of fact clearly abused its discretion, it can only disturb the award to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion given to that court. Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977).

Based on the record, we find the trial court and the court of appeal abused their discretion in overturning the jury verdict. Accordingly, we reinstate the jury’s verdict in all respects and affirm the trial court’s award of the imposition of attorney fees and costs.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

KNOLL, J., dissents with reasons.

WEIMER, J., would grant and docket.

KNOLL, J.,

dissents.

|,1 dissent and would affirm the Court of Appeal judgment.

      . Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.


text:
    In re Latoya M. ROBERSON.
    No. 2008-OB-2470.
    Supreme Court of Louisiana.
    June 4, 2010.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Roberson, 08-2470 (La.10/16/08), 992 So.2d 922, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Greg G. Guidry JUSTICE, SUPREME COURT OF LOUISIANA


text:
    STATE of Louisiana v. Albert BERNARD.
    No. 2009-KH-1552.
    Supreme Court of Louisiana.
    June 4, 2010.
   PER CURIAM.

Writ granted in part; otherwise denied. Relator has identified with reasonable specificity that his constitutional claims relating to alleged errors during voir dire might entitle him to post conviction relief. Therefore, he has demonstrated a “particularized need” for a transcript of the voir dire and the district court is thus ordered to produce those documents free of charge, see United States v. MacCollom, 426 U.S. 317, 324, 96 S.Ct. 2086, 2091, 48 L.Ed.2d 666 (1976); State ex rel. Bernard v. Cr. D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175, and then afford relator reasonable time to supplement his post-conviction application with support from the record for his underlying claims. In all other respects, the application is denied.


text:
    In re Jason B. THROWER.
    No. 2010-B-1092.
    Supreme Court of Louisiana.
    June 4, 2010.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent notarized an act of sale without first ascertaining the authenticity of the signatures, which resulted in actual harm. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted, and that Jason B. Thrower, Louisiana Bar Roll number 30761, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.


text:
    In re Robert U. GOODMAN.
    No. 2010-OB-1009.
    Supreme Court of Louisiana.
    June 4, 2010.
   ORDER

In March 2010, respondent was arrested and charged with felony carnal knowledge of a juvenile. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Robert U. Goodman, Louisiana Bar Roll number 6136, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Robert U. Goodman for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Robert U. Goodman shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

/s/ Greg G. Guidry JUSTICE, SUPREME COURT OF LOUISIANA


author: DOWNING, J.

text:
    STATE of Louisiana v. Charles L. HOLCOMBE.
    No. 2009 KA 1309.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Attorney for the State, Baton Rouge, LA, for Appel-lee State of Louisiana.
    Frank Sloan, Mandeville, LA, for Appellant Charles L. Holcombe, Jr.
    Before DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

|2The defendant, Charles L. Holcombe, was charged by bill of information with one count of armed robbery, a violation of La. R.S. 14:64(A), and entered a plea of not guilty. Following a jury trial, he was found guilty as charged. Thereafter, the State filed a habitual offender bill of information against him, alleging that he was a second-felony habitual offender. He was initially sentenced to fifty-five years at hard labor without the benefit of parole, probation, or suspension of sentence. Following a habitual offender hearing, he was adjudicated a second-felony habitual offender, the previously-imposed sentence was vacated, and he was sentenced to seventy-five years at hard labor without benefit of parole, probation, or suspension of sentence. Holcombe now appeals, contending that his conviction must be reversed because the State violated his spousal privilege. For the following reasons, we affirm the conviction, the habitual offender adjudication, and the sentence.

FACTS

Madisonville Mayor Peter Gitz, the victim, owned and operated Badeaux’s Drive-In, a restaurant in Madisonville. After the restaurant closed at 10:00 p.m., he routinely went into his office, a shed behind the restaurant, totaled the receipts, and prepared the bank deposit. On June 21, 2006, at approximately 10:30 p.m., as the victim was exiting the shed with approximately $2300, he was attacked from behind. He did not see his attacker’s face, but he did note that the attacker was a white male, approximately 5'6" or 5'7", with “big” arms and legs, and short hair. The attacker struck Mayor Gitz with a blunt object, possibly a pipe, between twelve and fifteen times. After Mayor Gitz fell to the ground, the attacker took a wallet from his pocket hand fled. Mayor Gitz was seventy-one years old at the time of the attack; he suffered a cracked jaw, numerous lacerations to his head which had to be stapled closed, and the loss of his bottom teeth, which were knocked out during the attack.

Sylvia C. Leyva lived in the house next to Badeaux’s, adjacent to the parking area behind the restaurant. On the afternoon of the offense, while she was working in her yard, she saw a husky male with short hair looking over her fence and into the back of Badeaux’s. The man saw Ms. Leyva looking at him, and quickly walked away. At approximately 10:45 that evening, Ms. Leyva went out onto her porch after hearing moaning coming from behind Badeaux’s. She saw someone coming from the direction of Badeaux’s. As the person passed in front of her house, she turned on her porch light. The person looked at her before continuing on and she noticed that he had his left arm under his shirt, and was holding something. Mrs. Leyva identified the defendant in a photographic lineup and in court as the person she had seen looking into the back of Badeaux’s before the attack, and as the person who passed by her house after the attack.

Video surveillance from Riverside Bar and Grill, across the street from Ba-deaux’s, showed an old, grey or silver Volvo passing by Badeaux’s three times at approximately the time of the offense. Madisonville Police Officer David Smith recognized the vehicle as belonging to Rhonda Achee.

The defendant and his wife, Lyndsey Gaspard, had moved in with Achee because they could no longer afford to pay for power or water to their home. Following the attack, the defendant and Achee drove to Covington in Achee’s car. The vehicle was subsequently stopped for a traffic violation where it was discovered that there was blood in the front of the vehicle.

Gaspard had worked at Badeaux’s approximately one month prior to the attack, and the defendant had waited for her in and around the restaurant while she worked. On at least one occasion during that time, Melissa Bone, the restaurant | ¿manager, found the defendant behind the restaurant and told him he was not supposed to be there.

At trial, Gaspard testified that she was married to the defendant between March 22, 2006 and about October of 2008. According to Gaspard, approximately two days before the offense, the defendant and Achee had discussed “getting” or “robbing” Mayor Gitz. Gaspard indicated that on the day of the offense, at about 11:30 a.m., the defendant drove to Badeaux’s, walked around the back, and then came back to the car.

In a June 23, 2006 audiotaped statement, the defendant indicated that Achee had driven him to Badeaux’s on the night in question, dropped him off, and then driven around the block while he hid behind the shed. The defendant confessed to striking Mayor Gitz with “a stick or something” and grabbing his wallet. He indicated that Achee picked him up after the attack and they drove towards Coving-ton. The defendant indicated that there was approximately $1500 cash in the wallet. He claimed he burned the clothes he was wearing during the attack, and threw the stick he had used to hit the victim out of the window as he and Achee drove out of town.

VIOLATION OF SPOUSAL PRIVILEGE

In his sole assignment of error, the defendant argues that the trial court erred in denying the motion for mistrial based on the State’s comment on the defendant’s claim of privilege.

The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by the judge or counsel. No inferences may be drawn there from. La.Code Evid. art. 503(A)(1). With jury cases, the proceedings shall be conducted, to the extent practicable, so as to facilitate the making of the claims of privilege without the knowledge of the jury. La.Code Evid. art. 503(A)(2). Each spouse has a privilege during and after the marriage to refuse to [ ^disclose, and to prevent the other spouse from disclosing, confidential communications with the other spouse while they were husband and wife. La.Code Evid. art. 504(B). A communication is “confidential” if it is made privately and is not intended for further disclosure unless such disclosure is itself privileged. La.Code Evid. art. 504(A). The word “private” is defined as secluded from the sight, presence, or intrusion of others. Websters II New College Dictionary 880 (1995). Thus, communications between spouses in the presence of others are not private, and therefore, not privileged.

A prosecutor’s remark toward a defendant’s assertion of his privilege with respect to private interspousal conversations is governed by La.Code Crim. P. art. 771 (mistrial appropriate only if an admonition to the jury to disregard the remark or comment is insufficient to assure the defendant a fair trial) rather than Article 770(3) (mistrial required unless the defendant requests only an admonition to the jury to disregard the remark or comment). State v. Bennett, 357 So.2d 1136, 1141 (La.1978).

Prior to trial, the defendant invoked his spousal confidential communications privilege.

The State asserted the following during its opening statement:

Lindsey Gaspard was, luckily for her, not part of this armed robbery because earlier in the afternoon on June 21st, her parents got what is called a physician’s emergency commitment. And Lindsey Gaspard was actually in St. Tammany Parish Hospital when this happened.
But she went and told the sheriffs office everything that had happened, everything that had been done. Now, Lindsey, the rules of evidence don’t allow Lindsey to discuss anything that her husband, Charles Holcombe[,] told her when it was just the two of them alone. But any time a third person was present, she can tell you what was said.

Following opening statements, the court recessed the matter for the day. The next day, the defense moved for a mistrial, arguing that the State’s reference to “the | ñrules of evidence” preventing disclosure of communications between the defendant and Gaspard violated La.Code Evid. art. 503, and the defendant could no longer obtain a fair trial. The State claimed it had not violated Article 503 because it had made no mention of the spousal privilege. The court denied the motion for mistrial, but held that the defendant was entitled to an instruction that no inference may be drawn on his invocation of the privilege; the defense refused the instruction.

We disapprove of the challenged comments by the State which, even if they did not technically violate the letter of Article 503, certainly violated its spirit. However, we do not find that the improper comments created such prejudice against the defendant to warrant the granting of a mistrial. The State’s reference to the defendant’s assertion of a privilege was vague and did not place the substance of any privileged communication between the defendant and his wife before the jury. Further, the State had a strong case against the defendant. Non-privileged testimony from Gaspard indicated that, in her presence, the defendant and Achee planned to rob the victim; Mrs. Leyva saw the defendant leaving the scene of the offense, while hiding something under his shirt; and the defendant confessed to the crime. Moreover, the defendant refused the trial court’s offer of an instruction to the jury that no inference was to be drawn from his invocation of the spousal confidential communications privilege. Accordingly, the trial court did not abuse its discretion in denying the motion for mistrial.

DECREE

For the reasons mentioned above, we affirm the conviction, habitual offender adjudication and sentence.

CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.

McCLENDON, J., agrees with the result reached by the majority.

      . Rhonda L. Achee was also charged by the same bill of information with the same offense. (R. 82). Following a jury trial, she was found not guilty. (R. 48).

      . The predicate offense was set forth as the defendant's May 3, 1999 guilty plea, under Twenty-second Judicial District Court Docket # 285943, to second degree battery, a violation of La. R.S. 14:34.1. (R. 125).

      .The defendant is 5'6" tall. (R. 525-26, 639-40).


author: GUIDRY, J. CARTER, C.J.,

text:
    STATE of Louisiana In the Interest of T.C.
    No. 2009 KW 1852.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Rehearing Denied Feb. 23, 2010.
    Writ Denied March 31, 2010.
    Hillar Moore, District Attorney, Melanie Fields, Assistant District Attorney, Baton Rouge, LA, for Relator State of Louisiana.
    A. Hays Town, III, Baton Rouge, LA, for Defendant/Respondent T.C.
    Michael A. Mitchell, Chief/Director Public Defender, Mark D. Plaisance, Assistant Public Defender, Baton Rouge, LA, Ami-cus Curiae.
    H. Clay Walker V, Julie Hayes Kilbom, Louisiana Association of Criminal, Defense Lawyers, Baton Rouge, LA, Amicus Curiae.
    Robert Lancaster, Jack S. Harrison, Lucy S. McGough (pro hac vice), Robert Savage, Student Attorney, Juvenile Defense Clinic, LSU Law Center, Baton Rouge, LA, Amicus Curiae.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|sThe state filed an application with this Court requesting a writ of prohibition to enjoin the juvenile court from exercising jurisdiction. We issued a writ of certiora-ri, stayed the proceedings in both the juvenile court and the district court, and ordered the parties to file briefs and appear for oral argument. The writ application reveals a disagreement between the juvenile court and the district court as to which court has jurisdiction. The issue is whether the juvenile court is divested of jurisdiction when a juvenile is indicted in district court at a time when competency proceedings are pending in the juvenile court.

On April 24, 2009, T.C. and Róndale Simpson allegedly committed the armed robbery of Frederick Wright and the second degree murder of Theodore Lange. Based on dates listed in the indictment, T.C. was 15 and Simpson was 16 on the date of the offenses. This decision is concerned solely with the case against T.C.

T.C. was taken into custody on May 15, 2009. A detention hearing was scheduled in juvenile court but was continued. On July 8, 2009, T.C.’s attorney filed a motion in the juvenile court to have T.C. examined to determine his capacity to understand the proceedings. The motion alleged T.C. suffered from a serious psychological disturbance that caused him to lack the ability to understand the nature of the proceedings and assist counsel. The juvenile court appointed two professionals to serve on the competency commission and scheduled the matter for a hearing to determine the mental capacity of T.C. Before the hearing was held, on August 13, 2009, the grand jury indicted T.C. and Simpson in district court with armed robbery and second degree murder. The state filed a motion in the district court to transfer the child from the custody of juvenile court to the East Baton Rouge Parish Prison. The state maintained that pursuant to article 305(A)(2) of the Louisiana Children’s Code, the child was subject to the exclusive jurisdiction of |4the district court. The motion did not mention the pending competency proceedings in the juvenile court. The district court granted the motion to transfer.

After the indictment was filed and before the juvenile court held a hearing on the competency issue, the state objected to the juvenile court’s exercise of jurisdiction and moved to dismiss the proceedings. The juvenile court denied the state’s motion, confirmed the date scheduled for the competency hearing, and said the hearing would be conducted to determine the child’s capacity to proceed. The juvenile court determined that an indictment issued in district court in violation of article 305(E) of the Children’s Code does not divest the juvenile court of jurisdiction before its determination of mental competency to proceed. The judge acknowledged that cases interpreting Article 305 prior to amendment in 2008 held that an indictment in district court automatically divested the juvenile court of jurisdiction. The judge concluded the addition of subsection (E) provided for the juvenile court to retain jurisdiction “at least pending a determination of a defendant’s mental competency to proceed.”

Juvenile courts have exclusive original jurisdiction over delinquency proceedings except when a child is subject to the original jurisdiction of the criminal courts pursuant to Article 305 et seq. or when a child has been transferred by the juvenile court for criminal prosecution as an adult pursuant to Article 857 et seq. State v. Hamilton, 96-0107 p. 2 (La.7/2/96), 676 So.2d 1081, 1082. See also La. Const. art. V, § 19. Article 305(A)(1) provides that when a child is 15 years or older at the time of the commission of first degree murder, second degree murder, aggravated rape, or aggravated kidnapping, he is subject to the exclusive jurisdiction of the juvenile court until either an indictment charging one of these offenses is returned or the juvenile court holds a continued custody hearing and finds probable cause that he committed one of the offenses. This automatic and irreversible divestiture of jurisdiction from the juvenile court to the district court is generally called “legislative waiver” because legislative fiat has automatically waived juvenile court jurisdiction in these cases. Hamilton, 96-0107 at p. 3, 676 So.2d at 1082. For these four offenses, the state does not have discretion to file a delinquency petition in juvenile court. See State ex rel. D.J., 2001-2149, p. 11 n. 10 (La.5/14/02), 817 So.2d 26, 33 n. 10.

Subsection B of Article 305 creates a different method for less serious offenses. It provides that when a child is 15 years of age or older at the time of the commission of armed robbery (and other designated offenses), he is subject to the exclusive jurisdiction of the juvenile court until whichever of the following occurs first: (1) an indictment charging the offense is returned; or (2) the juvenile court holds a continued custody hearing and finds probable cause that the child has committed the offense and a bill of information charging the offense is filed. As to the offenses listed in Article 305(B)(1) (includes armed robbery), the district attorney has discretion to file a petition alleging the offense in the juvenile court or, alternatively, to obtain an indictment or file a bill of information in the criminal court. If the child is in detention, the district attorney shall make his election and file the indictment, bill of information, or petition in the appropriate court within 30 days after the child’s arrest, unless the child waives this right. La. Ch.Code art. 305(B)(3).

If an indictment is returned or a bill of information is filed, the child is subject to the exclusive jurisdiction of the appropriate criminal court for all subsequent procedures, including the review of bail applications, and the child shall be transferred to the appropriate adult facility for detention prior to his trial as an adult. La. Ch.Code art. 305(A)(2) & (B)(4).

The provision at issue in this writ is Children’s Code article 305(E) (emphasis added):

|s(l) If a competency or sanity examination is ordered, except for the filing of a delinquency petition, no further steps to prosecute the child in a court exercising criminal jurisdiction shall occur until:
(a) Counsel is appointed for the child and notified in accordance with Article 809; and
(b) The court determines mental capacity to proceed in accordance with Chapter 7 of Title VIII.

Article 305(E)(2) provides that when a child who has been charged with second degree murder or armed robbery when committed with a firearm has reached the age of twenty-one and is incompetent, the court on its own motion or on the motion of the district attorney may conduct a hearing to consider whether to transfer the child for further proceedings to the appropriate court exercising criminal jurisdiction.

Subsection (E) was added by Act 222 of 2008. Subsection (E) of Article 305 is consistent with Article 832, which provides that when the question of the child’s mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding, “except the filing of a delinquency petition,” until counsel is appointed and notified and the child is found to have the mental capacity to proceed. Article 642 of the Code of Criminal Procedure was the source provision for Article 832 of the Children’s Code. As to proceedings governed by the Code of Criminal Procedure, Article 642 provides that when a 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. Institution of prosecution is defined as the finding of an indictment or the filing of a bill of information or affidavit, which is designed to serve as the basis of a trial. La. C.Cr. P. art. 934(7). Under Article 642, when the question of the defendant’s mental capacity to proceed has been raised, all proceedings in the case are stayed until that issue is determined. La. C.Cr. P. art. 642, comment (b). An exception is made in Article 642 as to the institution of prosecution to prevent the time limit for the | institution of prosecution from running out while the proceedings are stayed. La. C.Cr. P. art. 642, comment (b).

There is no jurisprudence interpreting Article 305(E). Commentators have said the amendment requires a determination of the child’s mental capacity before proceeding to prosecute him in criminal court:

In its 2008 Session, the Legislature amended Article 305 to require a determination of a child’s mental capacity to proceed before proceeding to prosecute him or her in criminal court, if the juvenile court finds “reasonable grounds to doubt the mental capacity of the child” pursuant to Article 833. If in accordance with Articles 832-838, (the competency to proceed Chapter of the delinquency title) the child never achieves competency before reaching the age of twenty-one, the court may decide to conduct a transfer hearing to the criminal court. Transfer hearings are authorized only for the seven crimes deemed most serious. Ch. C. Art. 857(A). However, if the child is incompetent for trial as a juvenile, certainly he should similarly be found incompetent to be tried as an adult in criminal court.

Lucy S. McGough & Kerry Triche, Louisiana Children’s Code Handbook 28, authors’ note to La. Ch.Code art. 305 (2008— 2009 ed.).

The position taken by the juvenile court in this case is supported by the language of Article 305(E), which provides an exception only for the filing of a “delinquency petition.” Statutory interpretation begins with the language of the statute. Where a statute is clear and unambiguous, and its application does not lead to absurd results, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. State v. Benoit, 2001-2712, p. 3 (La.5/14/02), 817 So.2d 11, 13. The state equates the filing of a delinquency petition in juvenile court to the institution of prosecution in district court, but the language of Article 305(E) and the definition of “institution of prosecution” do not support the state’s argument.

Concerned a bit with the prescription issue, the state says the reason an exception for institution of prosecution is necessary is to prevent the time limitations from running out while the proceedings against the alleged mentally |8incapable juvenile are stayed. However, under the circumstances of this case, prescription does not appear to be a genuine concern. There is no time limit for the institution of prosecution for any crime for which the punishment may be life, such as second degree murder, and the state has six years in which to institute prosecution for an offense such as armed robbery. See La. C.Cr. P. arts. 571 & 572(A)(1). The state notes T.C. has not filed a motion to quash in the district court. One of the grounds on which a motion to quash may be based is that the court has no jurisdiction of the offense charged. La. C.Cr. P. art. 582(8). Although defense counsel apparently has not filed a motion to quash, he did file a written objection to the district court’s exercise of jurisdiction.

We note that if the state had secured the indictment before counsel raised the issue of the child’s competency, jurisdiction automatically would have been in the district court. Even in the district court, juveniles may seek a special sanity hearing to be conducted in accordance with Articles 888 through 836 of the Children’s Code. La. C.Cr. P. art. 644.1. However, in those cases where the competency of the child is raised in juvenile court before the state secures an indictment, the state has no authority to get an indictment until the child has been found competent. Article 305(E) of the Children’s Code is an exception to Sections (A) and (B) of article 305. Subsection (E) ensures that the juvenile court retains jurisdiction while the mental capacity of the juvenile is under consideration. If the child is found competent in the juvenile court, trial in the criminal court is not prevented. Only those children who are found incompetent would be shielded from criminal prosecution. Article 305(E) temporarily prevents a transfer from the juvenile court to the criminal court until a determination of competency is made.

Accordingly, there being no error in the juvenile court’s exercise of jurisdiction and the denial of the state’s motion, the writ of certiorari is recalled, |9the state’s writ application is denied, and the stays previously issued by this Court are lifted.

WRIT OF CERTIORARI RECALLED; STAYS LIFTED; AND WRIT APPLICATION DENIED.

CARTER C.J., dissents with reason.

PETTIGREW, J., concurs.

CARTER, C.J.,

dissenting.

11 This court granted a writ of certiorari in order to review the res nova issue of whether a juvenile court is divested of jurisdiction if, during the pendency of competency proceedings in juvenile court pursuant to La. Ch.Code art. 305 E, the minor is indicted in district court with second degree murder and armed robbery. The majority concludes that there is no error in the juvenile court’s continued exercise of jurisdiction.

After a thorough review of the law, jurisprudence, record, and briefs of the parties, as well as the amicus briefs, I respectfully dissent. I respectfully submit that the majority opinion is clearly in error in holding that the juvenile court has jurisdiction in the case sub judice.

PROCEDURAL HISTORY

T.C. and Róndale Simpson allegedly committed the armed robbery of Frederick Wright and the second degree murder of Theodore Lange on April 24, 2009. This application for supervisory writs solely concerns the state’s case against T.C. T.C. was born on June 24, 1993, and was 15 on the date of the alleged offenses.

T.C. was taken into custody on May 15, 2009. A detention hearing was scheduled in juvenile court but was continued several times. On July 8, 2009, counsel for T.C. filed in juvenile court a motion for a psychiatric 12examination. The motion alleged T.C. suffered from a serious psychological disturbance that caused him to lack the ability to understand the nature of the proceedings and assist counsel. On July 14, 2009, the juvenile court granted the motion and appointed two professionals to serve on the competency commission.

Prior to the competency hearing, the district attorney, on August 13, 2009, secured a grand jury indictment in district court charging T.C. with armed robbery (La. R.S. 14:64) and second degree murder (La. R.S. 14:30.1).

The state filed a motion in the district court to transfer the child from the custody of the juvenile court to the East Baton Rouge Parish Prison. The state maintained that, pursuant to La. Ch.Code art. 305 A(2), the child was subject to the exclusive jurisdiction of the district court. The district court granted the motion to transfer.

After the indictment was filed and before the juvenile court held the competency hearing, the state objected to the juvenile court’s continued exercise of jurisdiction and moved to dismiss the juvenile proceedings. On October 14, 2009, the juvenile court denied the state’s motion, reasoning that an indictment issued in district court in violation of La. Ch. Code art. 305 E (prior to resolution of the juvenile’s mental capacity to proceed) does not divest the juvenile court of jurisdiction.

The state filed an expedited application with this court requesting a writ of prohibition to enjoin the juvenile court from exercising jurisdiction. |aThis court granted supervisory writs in order to determine the legal correctness of the juvenile court’s action. This court also granted a writ of certiorari, stayed the proceedings in both the juvenile court and the district court, and ordered the parties to file briefs and appear for oral argument.

Prior to oral argument, this court granted leave to the East Baton Rouge Parish Public Defender, the Louisiana Association of Criminal Defense Lawyers, and the Juvenile Defense Clinic of the Louisiana State University Law Center to file amicus briefs.

DISCUSSION

The determination of guilt or innocence, the detention, and the custody of a person alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures provided for by law. La. Const, art. V, § 19. The legislature may, however, provide that “special juvenile procedures shall not apply” to juveniles, such as T.C., who are arrested for having committed specified serious offenses, such as second degree murder or armed robbery. See La. Const, art. V, § 19.

The jurisdictional provisions authorized by Article V, § 19, are contained in Title III of the Louisiana Children’s Code. State v. Hamilton, 96-0107 (La.7/2/96), 676 So.2d 1081, 1082. The court exercising juvenile jurisdiction (the juvenile court) does not have jurisdiction over children subject to district court jurisdiction for prosecution as an adult pursuant to La. Ch.Code art. 305, et seq., or children transferred by the juvenile court to the district court for prosecution as an adult pursuant to La. Ch.Code art. 857, et seq. La. Ch. Code art. 803(1); State ex rel. D.J., 2001-2149 (La.5/14/02), 817 So.2d 26, 88 n. 10.

UPursuant to Article 305, jurisdiction over juvenile criminal offenders fifteen or older at the time of the commission of certain specified offenses initially vests exclusively in the juvenile court. Hamilton, 676 So.2d at 1082. When a divesting event occurs, the juvenile court is divested of its initial jurisdiction, and the district court obtains jurisdiction over the proceedings. See Hamilton, 676 So.2d at 1082. Louisiana Children’s Code article 305 effectively gives district courts jurisdiction over juveniles charged with the most serious offenses. State v. Jacobs, 2004-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 91, writ denied, 2005-2072 (La.4/28/06), 927 So.2d 282, cert. denied, 549 U.S. 956, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).

T.C. was indicted for the offenses of second degree murder and armed robbery. Both of these offenses are recognized as serious offenses subject to district court jurisdiction pursuant to Article 305. For purposes of Article 305, second degree murder and armed robbery are treated differently.

Subsection A of Article 305 provides that the juvenile court is divested of jurisdiction when either (1) an indictment is obtained or (2) when the juvenile court finds probable cause that the accused committed certain offenses, such as second degree murder, that are punishable by death or life imprisonment. See Hamilton, 676 So.2d at 1082. By law, juvenile court jurisdiction is automatically waived in such cases. Hamilton, 676 So.2d at 1082. An offender fifteen years of age or older “must be tried as an adult” for the offenses listed in Section A(l), including second degree murder. Hamilton, 676 So.2d at 1082; State ex rel. Jackson, 99-2977 (La.App. 4 Cir. 3/22/00), 757 So.2d 900, 903. The juvenile is subject to the “exclusive” | ¡jurisdiction of the appropriate court, which for crimes listed in Section A(l) is the district court. See La. Ch.Code art. 305 A(2); Jackson, 757 So.2d at 903. Stated differently, upon the filing of the indictment charging T.C. with second degree murder, T.C. “was automatically excluded from the jurisdiction of the juvenile courts for all subsequent procedures concerning that charge.” See State v. Taylor, 97-2048 (La.App. 1 Cir. 6/29/98), 716 So.2d 178, 181, writ denied, 98-2792 (La.2/26/99), 738 So.2d 1066. The state must proceed in district court on the second degree murder charge; it cannot elect to proceed pursuant to a delinquency petition filed in juvenile court.

For certain other serious crimes, including armed robbery, Subsection B of Article 305 provides a different mechanism for the transfer of jurisdiction to the district court. Thereunder, a juvenile is subject to the exclusive jurisdiction of the juvenile court until either (1) an indictment is returned charging the juvenile with armed robbery, or (2) the juvenile court holds a continued custody hearing and finds probable cause that the child has committed armed robbery and a bill of information is filed charging the juvenile with armed robbery. See Hamilton, 676 So.2d at 1082. For crimes listed in Subsection B, the prosecutor’s charging decision determines in which forum the case will be heard; the district attorney has “complete discretion.” Hamilton, 676 So.2d at 1082-1083. “[OJnce the prosecutor decides to charge the juvenile as an adult, whether by indictment or bill of information, the criminal court must exercise its jurisdiction.” Hamilton, 676 So.2d at 1083. Therefore, once the district attorney secured an ^¿indictment for armed robbery, jurisdiction rested solely with the district court.

By 2008 La. Acts No. 222, § 1 (eff. June 16, 2008), Subsection E was added to Article 305. Subsection E provides:

(1) If a competency or sanity examination is ordered, except for the filing of a delinquency petition, no further steps to prosecute the child in a court exercising criminal jurisdiction shall occur until:
(a) Counsel is appointed for the child and notified in accordance with Article 809; and
(b) The court determines mental capacity to proceed in accordance with Chapter 7 of Title VHI.
(2) When a child has been charged with one or more of the crimes listed in Article 857, has reached twenty-one years of age and is incompetent, the court on its own motion or on the motion of the district attorney may conduct a hearing to consider whether to transfer the child for further proceedings to the appropriate court exercising criminal jurisdiction.

(Footnote provided.)

The majority opinion holds that, pursuant to Article 305 E, upon entry of the juvenile court order for appointment of a sanity commission, exclusive jurisdiction remains with the juvenile court and, except for the filing of a delinquency petition, no further steps to prosecute the child may be taken until the juvenile court determines T.C.’s mental incapacity to proceed in accordance with Chapter 7 of Title VIII. Such would be true if the case remained within the exclusive jurisdiction of the juvenile court; 17however, in this instance, the juvenile court was divested of jurisdiction, and jurisdiction was transferred to the district court.

Defense counsel obtained an order from the juvenile court for appointment of a competency commission prior to the state instituting proceedings in the juvenile court or in the district court. As evidenced by the indictment, the State has elected to charge the defendant as an adult and proceed against him in district court. The decision to charge the armed robbery in district court is within the discretion of the district attorney. See La. Ch.Code art. 305 B. Prosecution of the charge of second degree murder must take place in district court. See La. Ch.Code art. 305 A; Hamilton, 676 So.2d at 1082.

Once the indictment against T.C. was filed, the juvenile court was divested of jurisdiction and was no longer “a court exercising criminal jurisdiction.” As a matter of law, jurisdiction is vested in the district court, and the district court is the proper forum for determining T.C.’s mental capacity to proceed. Even when prosecuted as adults in district court, juveniles can seek a special sanity hearing to be conducted in accordance with articles 833 through 836 of the Louisiana Children’s Code, which provisions are found in Chapter 7 of Title VIII. La.Code Crim. P. art. |s644.1; compare La. Ch.Code art. 305 E(l)(b) (mental capacity to proceed is to be determined in accordance with Chapter 7 of Title VIII).

CONCLUSION

A defendant cannot interfere with the automatic jurisdictional provision found in Article 305 A and the discretionary jurisdictional provision found in Article 305 B simply by obtaining an order from the juvenile court for appointment of a sanity commission prior to the institution of prosecution in district court or the filing of a delinquency petition in juvenile court. I respectfully submit that the majority opinion to the contrary is in error. Upon the filing of the indictment charging T.C. as an adult with the crimes of second degree murder and armed robbery, the juvenile court was divested of jurisdiction, and exclusive jurisdiction was given to the district court.

Accordingly, I would grant the state’s application for supervisory writs to review the correctness of the juvenile court judgment; reverse the October 1, 2009, order of the juvenile court; grant the State’s motion to dismiss the proceedings in juvenile court; and lift all stays issued by this court.

For the above-stated reasons, I respectfully dissent.

      . The state's expedited writ application was filed with this court and identified as arising from the Nineteenth Judicial District Court, Parish of East Baton Rouge; however, the state is not challenging any ruling from the district court judge. Rather, the state is challenging the actions of the Juvenile Court of East Baton Rouge Parish.

      . Louisiana Children’s Code article 857 includes second degree murder and armed robbery when committed with a firearm. La. Ch.Code art. 857 A(2), (6).

      . Title VIII of the Louisiana Children’s Code is entitled "Delinquency.” Chapter 7 of Title VIII specifically addresses issues regarding a child's mental incapacity to proceed.

      . The Louisiana constitution provides that, except as otherwise provided for in the constitution, a district attorney, or his designated assistant, has "charge of every criminal prosecution by the state in his district." La. Const, art. V, § 26(B). The district attorney has the entire charge and control of every criminal prosecution instituted or pending in his district and determines "whom, when, and how he shall prosecute.” La.Code Crim. P. art. 61. To interpret Article 305 E as suggested by defense counsel is to place charge of a criminal prosecution with defense counsel rather than with the district attorney. Defense counsel could circumvent, or manipulate, the automatic jurisdictional provision of Article 305 A and the discretionary jurisdictional provision of Article 305 B by obtaining an order appointing a sanity commission pri- or to the district attorney effecting a legal action against a juvenile accused of a serious crime.


author: HUGHES, J.

text:
    STATE of Louisiana v. Cody COLEMAN.
    No. 2009 KA 1388.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Camille A. Morvant, II, District Attorney, Thibodaux, LA, for Appellee State of Louisiana.
    Steven M. Miller, Assistant District Attorney, Thibodaux, LA, Frank Sloan, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant Cody Coleman.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   HUGHES, J.

[¡.The defendant, Cody Coleman, was charged by bill of information with armed robbery, a violation of LSA-R.S. 14:64, and aggravated battery, a violation of LSA-R.S. 14:34. He pled not guilty. The defendant waived his right to a jury trial and elected to be tried by the district court judge. At the conclusion of a bench trial, the defendant was convicted as charged on both offenses. The defendant was sentenced to imprisonment at hard labor for forty years without benefit of parole for the armed robbery conviction. He received a concurrent term of imprisonment at hard labor for five years on the aggravated battery conviction. The court noted that the defendant’s convictions were for crimes of violence and restricted diminution of the sentences for good behavior under LSA-R.S. 15:571.3. The defendant now appeals, urging the following assignments of error:

1. The trial court erred and/or abused its discretion in permitting the defendant to waive his constitutional right to trial by a jury.
2. The sentences imposed illegally prohibit the defendant from receiving any diminution of sentence.

Finding no merit in the assigned errors, we affirm the defendant’s convictions and sentences.

FACTS

On January 26, 2008 the victim, Courtney Moore, was sitting in his car outside a friend’s house when the defendant, Moore’s cousin, walked up. Moore was talking on his cellular phone and did not think much of the fact that the defendant entered his vehicle and sat in the back seat. Shortly thereafter, the defendant grabbed Moore around the neck, placed a revolver to his head, and demanded that Moore “give him everything.” Although Moore advised that he did not have anything, the defendant continued to | odemand money. As the defendant held Moore by his neck, another unidentified male entered the vehicle and checked Moore’s pockets. When Moore insisted that he did not have any money, the defendant grew angry and struck him on the head with the handle of the revolver. The defendant took the two cellular phones that Moore had on his lap and exited the vehicle. As he walked down the street, the defendant, still quite angry, slammed both of Moore’s phones on the ground. Moore exited his vehicle and ran to the vehicle of his friend, Cody Wheaton, who was parked nearby. Moore used Wheaton’s cellular phone to contact his mother. Moore’s mother later reported the matter to the Thibodaux police. Moore received treatment for a cut on his head at a local hospital.

JURY TRIAL WAIVER

In this assignment of error, the defendant contends that the trial court erred in allowing him to waive his right to jury trial. Specifically, the defendant argues that the transcript of the jury trial waiver reflects that he was of limited mental capacity, and thereby unable to knowingly and intelligently waive his right to a jury trial. As evidence of his “limited mental capacity,” the defendant points out that: 1) he was willing to waive his right to a jury trial even though he later stated that he did not understand what a jury is or what a jury does; 2) he was confused about the actual charges for which he was to be tried; and 3) the judge had to advise him to behave himself at his trial.

A defendant may waive his right to a jury trial and elect to be tried by the judge. LSA-C.Cr.P. art. 780(A). Generally, the waiver is to be entered at arraignment. However, the trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. LSA-C.Cr.P. art. 780(B). A [4waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. See State v. Kahey, 436 So.2d 475, 486 (La.1983). A waiver of this right is never presumed. State v. Brooks, 2001-1138, p. 5 (La.App. 1st Cir.3/28/02), 814 So.2d 72, 76, writ denied, 2002-1215 (La.11/22/02), 829 So.2d 1037. However, no special form is required for a defendant to waive his right to a jury trial. State v. Gamble, 504 So.2d 1100, 1102 (La.App. 5th Cir.1987).

The record in this case reflects that on April 20, 2009, the day before his trial, the court noted on the record that defense counsel mentioned the possibility of the defendant waiving his right to a jury trial. The defendant responded affirmatively when the court asked if he had participated in discussions regarding a jury waiver with his attorney. The defendant stated that he wanted to waive his jury-trial right. Before accepting the waiver, the trial judge conducted a colloquy to establish the defendant’s competency to waive his right to a jury trial. The judge explained that the defendant was charged with two felonies and thus, he had the right to elect to have a jury hear his case or to have the case decided by the judge. The defendant indicated that he understood this right. Next, the court asked, “Now do you know what a jury is? Do you understand what a jury is?” To this, the defendant replied, “No.” The judge explained:

If you have a jury trial, you would have twelve people, twelve citizens who would hear the evidence from the witness stand and they would make the decision whether or not you are guilty or you are innocent of the charge of armed robbery and whether or not you are guilty or innocent of the charge of aggravated battery. They would make the decision about your guilt. I would sentence you. Okay.

In response, the defendant stated that he was not charged with aggravated battery. The court explained that the state also alleged that the defendant committed an aggravated battery during the same event. The ^defendant advised, “but I was never charged — I was never booked or arraigned for aggravated battery.” The court requested that the clerk allow the defendant to review the bill of information. Meanwhile, the court again explained:

So you understand what a jury does? It’s twelve people who are selected, twelve citizens, and they listen to the evidence and they decide whether or not you’re guilty or innocent.
If you have a trial with a Judge, I’m the Judge, I’m the person that listens to the evidence, and I decide whether or not you’re guilty or innocent.
Do you understand the difference between the two?

The defendant indicated that he understood the court’s explanation. After reviewing the bill of information and conferring with his attorney, the defendant advised the court that he wished to waive his right to a jury and proceed with a bench trial.

Upon reviewing the entirety of the jury trial waiver proceedings in this case, we find that the defendant knowingly and intelligently waived his right to be tried by a jury and elected to be tried by the trial judge. Once the defendant indicated that he did not fully understand the role of a jury, the court thoroughly explained the difference between a bench trial and a jury trial in basic terminology. In response, the defendant indicated that he understood the court’s explanation. Thereafter, the defendant opted to waive his right to a jury. In addition to the express waiver, the transcript reveals that the defendant was aware and alert and able to make appropriate answers to the questioning by the court. The defendant’s argument that he was never “booked or arraigned” on the aggravated battery charge and his prior criminal history reflect that he had previous experience with the criminal justice system. These factors, coupled with the defendant’s statement that he | ¡^understood the court’s explanation regarding the jury, show that he understood the proceedings. Contrary to the defendant’s assertions, the facts that he initially claimed that he did not fully understand the role of a jury, he was mistaken as to the charges pending against him, and he exhibited disruptive behavior during court proceedings, prompting the court to issue a warning, do not show he was of limited intellectual capabilities. Thus, considering the colloquy between the trial judge and the defendant, as well as the defendant’s demonstrated awareness of the proceedings, we find that he knowingly and intelligently waived his right to a jury trial. This assignment of error lacks merit.

LEGALITY OF SENTENCES

In his second assignment of error, the defendant contends that the trial court erred in restricting diminution of sentence under LSA-R.S. 15:571.3.

It is well settled that the provisions of LSA-R.S. 15:571.3 are directed to the Department of Corrections exclusively, and the sentencing judge has no role in the matter of good time credit. See State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661 (quoting Jackson v. Phelps, 506 So.2d 515, 517 (La.App. 1st Cir.), writ denied, 508 So.2d 829 (La.1987)).

However, there does exist an exception under LSA-C.Cr.P. art. 890.1 whereby the trial court may deny diminution of sentence for good behavior if the crime for which the sentence is imposed is a crime of violence. See LSA-C.Cr.P. art. 890.1(B). When denying the defendant’s right to credit against his sentence for good behavior under this provision, the trial judge “shall designate whether the crime involved is a crime of violence or an attempted crime of violence as defined or enumerated in [LSA] R.S. 14:2(B).” LSA-C.Cr.P. art. 890.1(A). In connection with the denial of 17eligibility for diminution of the sentences for good behavior, the trial court in this case specifically noted that both offenses are crimes of violence. See LSA-R.S. 14:2(B)(5) & (21). Accordingly, the trial court’s imposition of restrictions on the diminution of the defendant’s sentences for good behavior was proper under Article 890.1(B). This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.