Opinion
No. 2008 KA 0820.
February 13, 2009.
APPEALED FROM THE 20TH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST FELICIANA, LOUISIANA CASE NO. 07-CR-415 THE HONORABLE GEORGE H. WARE, JR., JUDGE PRESIDING.
Samuel C, D'Aquilla, District Attorney, St. Francisville, Louisiana, Ronnie O. McMillin, Assistant District Attorney, Clinton, Louisiana, Counsel for Appellee State of Louisiana.
Frank Sloan, Mandeville, Louisiana, Counsel for Defendant/Appellant Darrin Robinson.
Darrin Robinson, Jackson, Louisiana, Defendant/Appellant In Proper Person.
BEFORE: KUHN, GUIDRY, AND GAIDRY, JJ.
The defendant, Darrin Robinson, an inmate at Dixon Correctional Institute (DCI), was charged by bill of information with one count of possession of contraband upon the grounds of a state correctional institution, a violation of La.R.S. 14:402(B), and initially pleaded not guilty. He moved for discovery and also filed a Brady motion. He also moved to represent himself, and that motion was granted. Following a hearing, the trial court denied defendant's request for his entire prison file and denied his request to subpoena certain individuals for trial. He subsequently pleaded nolo contendere pursuant to a plea bargain, but reserved his right to appeal any errors made concerning pretrial motions. See State v. Crosby, 338 So.2d 584 (La. 1976). He was sentenced to one year at hard labor, to run consecutively with any other sentence being served.
Defendant now appeals, contending that the trial court erred and abused its discretion in permitting him to represent himself, while unlawfully limiting his ability to prepare for trial and defend himself at trial. He also contends that the trial court erred in denying his motion to quash and in accepting his plea without establishing that there was a factual basis for the plea. For the following reasons, we affirm defendant's conviction and sentence.
FACTS
Due to defendant's plea, there was no trial, and thus no trial testimony concerning the facts of the offense. The bill of information charged that on or about March 28, 2007, defendant possessed contraband, specifically a metal shank, upon the premises of a state prison or correctional institution.
LIMITATION OF DEFENSE
In his first assignment of error and third supplemental assignment of error, defendant argues the trial court abused its discretion and denied him the ability to control his defense by limiting his discovery of Brady material in his prison file and by refusing to allow him to subpoena all of his witnesses.
Brady Material
The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of the defendant's guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). See also Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
On August 7, 2007, at the hearing on his motion for discovery and inspection, defendant requested a copy of his penal institution record. He claimed the record would show that during the twelve to thirteen years he had been in the state penitentiary at Angola prior to being transferred to DCI, he had approximately ten disciplinary reports, but once he was transferred to DCI, he had numerous disciplinary reports. The trial court instructed the state to provide defendant the requested record unless it contained security sensitive materials, in which case the state should provide the record to the court for in camera inspection.
On November 7, 2007, the trial court noted that the Department of Public Safety and Corrections had produced defendant's entire prison file for in camera inspection, but as the trial court had not completed its review of the file, the matter would be rescheduled.
On November 20, 2007, the trial court ruled that after examining defendant's entire prison file, it found no evidence of any Brady material in the file and nothing in the file that would be helpful to defendant. The court also noted that the file did contain numerous disciplinary violations, including refusal to work, failure to dress, and fighting with correctional officers and inmates. The trial court transferred the file to the state for return to the Department of Public Safety and Corrections. Defendant objected, stating, "I do represent myself. I should be able to control my defense." The trial court advised defendant that he was controlling his defense. Defendant replied that the court was unaware of his defense. The trial court disagreed, noting that defendant had stated in open court that the reason he wanted to examine the file was because his defense was based on his claim that the charges were fabricated; defendant believed there would be evidence in the file to support that claim; and the court accordingly had ordered the file produced and examined it, but found nothing to support his defense. Defendant argued that the numerous disciplinary reports directed against him were fabricated. The trial court replied that disciplinary reports had no bearing on the case, and, in any event, were not admissible at trial.
Initially, we note that defendant failed to proffer his prison file by requesting that the trial court place it in the record under seal for review by this court. Only matters contained in the record can be reviewed on appeal. State v. Vampran, 491 So.2d 1356, 1364 (La.App. 1st Cir.), writ denied, 496 So.2d 347 (La. 1986).
Moreover, even assuming that the disciplinary reports were Brady material, there is no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The record indicates that defendant was well aware of these reports, as well as the identity of the correctional officers he claimed were conspiring against him. (Defendant had filed a civil action against eighteen DCI officers.) He was free to call those correctional officers at trial and to question them concerning his alleged disciplinary infractions.
Right to Compulsory Process
Louisiana Code of Criminal Procedure article 738, in pertinent part, provides:
At a trial or hearing, each defendant . . . shall be allowed to summon . . . at the expense of the parish . . . in a felony case sixteen witnesses. A defendant shall have the right of compulsory process for additional witnesses at his own expense.
Louisiana Code of Criminal Procedure article 739 provides:
If a defendant is indigent and unable to pay for witnesses desired by him in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for additional witnesses. The application must allege that the testimony is relevant and material and not cumulative and that the defendant cannot safely go to trial without it.
The court shall make a private inquiry into the facts, and if satisfied that the defendant is entitled to the privilege, it shall render an order permitting the defendant to subpoena additional witnesses at the expense of the parish. If the application is denied, the court shall state the reasons for the denial in writing, which shall become part of the record.
A trial court is permitted to inquire into the nature of the testimony sought to be elicited from the witnesses the defendant proposes to subpoena. See State v. Phillips, 343 So.2d 1047, 1053 (La. 1977). This inquiry does not result in limitation of the number of witnesses available to the defendant at the expense of the parish under Article 738. Id. Indeed, inquiry is necessary because the court has an obligation to ascertain whether testimony of extra or out-of-state witnesses will be cumulative of other testimony or evidence, or whether it involves local and out-of-state witnesses or other combinations of testimony or tangible evidence. Id.
A defendant's inability to obtain service of requested subpoenas will not be grounds for reversal of a conviction or for a new trial absent a showing of prejudicial error. State v. Jefferson, 04-1960, p. 33 (La.App. 4th Cir. 12/21/05), 922 So.2d 577, 601, writ denied, 06-0940 (La. 10/27/06), 939 So.2d 1276. To show prejudicial error, a defendant must demonstrate that the absent witness's testimony would have been favorable to his defense and the possibility of a different outcome if that witness were to testify. Jefferson, 04-1960 at pp. 33-34, 922 So.2d at 601. The jurisprudence holds that prejudicial error arises when the absent witness is "vital" to the defense. Jefferson, 04-1960 at p. 34, 922 So.2d at 601.
On November 20, 2007, in an unsworn pleading, defendant moved for the issuance of subpoenas for 38 inmates, Louisiana Department of Public Safety and Corrections Deputy Secretary Janitta Antionne, U.S. Congressmen Richard H. Baker and William J. Jefferson, former U.S. Senator John Breaux, F.B.I. Supervisor Leon J. Huss, and Louisiana State Penitentiary Warden Burl Cain. He alleged that the witnesses could provide relevant and essential testimony with regard to the incident forming the basis of the instant charge and to defendant's "numerous and continuous complaints[.]" Defendant also claimed that the witnesses could provide testimony that prior to the filing of the present charge, he had complained that DCI officers had threatened to frame him on false charges and to have him criminally prosecuted and multiple-billed. Defendant further claimed that he was indigent.
At the hearing on the motion, the state argued that defendant's subpoena requests made a mockery of the right to subpoena witnesses and that, at the very least, he should be required to show some sort of prima facie evidence that the witnesses even had some specific knowledge calculated to lead to discoverable and relevant evidence in the case. In response to questioning from the trial court, defendant explained that his defense was that he did not possess contraband and that he was being framed as the result of a conspiracy to convict him for something he did not do. The trial court in turn explained that its concern, for the purpose of the hearing and for trial, was whether or not defendant possessed contraband, specifically, a shank, on the grounds of DCI.
The trial court examined defendant in chambers, outside of the presence of the prosecution, the sheriff's deputies, and DCI employees, to determine what defendant hoped to prove with the witnesses at issue and to decide whether subpoenas should properly issue. Defendant conceded that Deputy Secretary Antionne, U.S. Congressmen Baker and Jefferson, U.S. Senator Breaux, F.B.I. Supervisor Huss, and Warden Cain were not present at the scene of the alleged incident of possession of contraband. He claimed, however, that he had corresponded with Deputy Secretary Antionne and U.S. Congressmen Baker and Jefferson, and had a meeting with F.B.I. Supervisor Huss. Defendant claimed that Warden Cain had "got [defendant] fifty years flat" by writing a letter to Orleans Parish District Attorney Harry Connick. The trial court thereupon denied the request to have Deputy Secretary Antionne, U.S. Congressmen Baker and Jefferson, U.S. Senator Breaux, F.B.I. Supervisor Huss, and Warden Cain subpoenaed.
Defendant claimed that each of the 38 inmates listed were present at the scene of the alleged incident of possession of contraband. He conceded, however, that he had not discussed the case with the witnesses to determine whether they had something to offer at trial in the way of testimony. The trial court stated it would go to DCI and, in defendant's presence, question the 38 inmates to determine whether or not they should be subpoenaed. Thereafter, the defendant agreed that the court would actually interview ten inmates listed on the order to be subpoenaed for trial.
The record contains a sealed envelope containing a January 11, 2008 letter from the trial court to defendant. The letter documents that the trial court completed the investigation promised defendant.
The trial court did not abuse its discretion in declining to subpoena witnesses who had no testimony to present concerning the offense at issue. Moreover, because defendant has not shown that those witnesses were vital to his defense, their exclusion, even if error, would not be reversible error.
This assignment of error is without merit.
MOTION TO QUASH
In his first supplemental assignment of error, defendant argues that the trial court erred in denying his motion to quash because the state charged him at the urging of DCI officers who were prejudiced against him because of the lawsuit he filed against them.
The motion to quash is essentially a mechanism by which to raise pretrial pleas of defense, i.e., those matters which do not go to the merits of the charge. See La.C.Cr.P. arts. 531— 534 and State v. Beauchamp, 510 So.2d 22, 25 (La.App. 1st Cir.), writ denied, 512 So.2d 1176 (La. 1987). It is treated much like an exception of no cause of action in a civil suit. Id. In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars and determine, as a matter of law and from the face of the pleadings, whether or not a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Id.
Defendant moved to quash, alleging that the instant charge was brought against him at the urging of DCI officers after he filed a lawsuit for retaliation and vindictiveness against them. Following a hearing, the trial court denied the motion to quash, holding that the motion failed to state grounds for relief.
There was no error in the denial of the motion to quash. Defendant attempted to use the motion to assert his factual innocence of the charge, and thereby failed to assert any valid grounds for the motion. See La.C.Cr.P. arts. 532, 534.
This assignment of error also lacks merit.
DUTY TO ESTABLISH FACTUAL BASIS
In his second supplemental assignment of error, defendant argues that his plea should be set aside because the trial court failed to establish a factual basis for the plea and because he in fact maintained his innocence.
A plea of nolo contendere is equivalent to an admission of guilt and is treated as a guilty plea. See La.C.Cr.P. art. 552(4). While a plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings, a defendant may condition his plea, subject to acceptance by the trial court, upon the reservation for appellate review of specified pre-plea errors. State v. Crosby, 338 So.2d at 588. The function of a Crosby plea is to permit a fair and efficient review of a central issue when the pre-plea ruling, if erroneous, would mandate reversal of any resulting conviction. The typical pre-plea ruling subject to a Crosby reservation is a motion to suppress inadmissible evidence illegally or unconstitutionally obtained which would mandate reversal of any conviction, in spite of the guilt or innocence of the accused. State v. Gordon, 04-0633, pp. 9-10 (La.App. 1st Cir. 10/29/04), 896 So.2d 1053, 1061, writ denied, 04-3144 (La. 4/1/05), 897 So.2d 600.
Following the denial of his motion for Brady material contained in his prison file and his motion to subpoena certain witnesses, defendant entered into a plea agreement with the state. The state agreed not to pursue habitual offender proceedings against him and agreed to a sentence of one year at hard labor to run consecutively to any other sentence he was serving. Defendant indicated that he wished to avail himself of the plea offer while reserving his right to appeal the adverse Brady and subpoena rulings. He further indicated that he wished to waive a formal re-reading of the bill of information charging him with possession of contraband and to enter a plea of no contest (or nolo contendere). The trial court advised him of the elements of the offense and the possible penalty. Defendant acknowledged that he understood. The court then advised defendant that "after having been convicted of this felony," if he committed another felony within ten years, he would subject himself to being charged as a habitual offender and increased penalty exposure. Defendant indicated that he understood. The court also advised defendant of the prescriptive period for post-conviction relief "attacking this conviction[.]" Defendant again acknowledged that he understood. Additionally, in response to the court's questions, defendant indicated, with the exception of the plea bargain, that he had not been threatened, coerced, or promised anything to get him to make any statement or confession or to plead no contest. He admitted that he was entering his plea of his own free will, because he wanted to do so, and because he thought it was the best thing for him to do.
The record demonstrates that defendant did not maintain his innocence in this matter. Rather, in exchange for a favorable plea bargain, but reserving his right to appeal the adverse Brady and subpoena rulings, he entered the equivalent of a guilty plea. Defendant thereby waived his right to question the factual basis underlying the conviction. See State v. Kennedy, 42,850, 42,851, p. 6 (La.App. 2d Cir. 1/9/08), 974 So.2d 203, 207.
Moreover, there is no requirement that a guilty plea even be accompanied by the recitation of a factual basis for the crime. Id. The due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Id. Louisiana law, unlike federal law, has no statutory provision requiring that a guilty plea be accompanied by the recitation of a factual basis. Id.
This assignment of error is without merit.