Opinion
NUMBER 2015 KA 0385
11-06-2015
STATE OF LOUISIANA v. GARY SCULLY
M. Bofill Duhe, D.A. Walter J. Senette, Jr., Asst. D.A. Franklin, LA Attorneys for Appellee State of Louisiana Cynthia K. Meyer Louisiana Appellant Project New Orleans, LA Attorney for Appellant Defendant - Gary Scully Gary Scully Jackson, LA Pro Se Defendant
NOT DESIGNATED FOR PUBLICATION
Appealed from the 16th Judicial District Court In and for the Parish of St. Mary, Louisiana
Trial Court Number 2013-190378
Honorable James R. McClelland, Judge M. Bofill Duhe, D.A.
Walter J. Senette, Jr., Asst. D.A.
Franklin, LA
Attorneys for Appellee
State of Louisiana
Cynthia K. Meyer
Louisiana Appellant Project
New Orleans, LA
Attorney for Appellant
Defendant - Gary Scully
Gary Scully
Jackson, LA
Pro Se Defendant BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
Defendant, Gary Scully, was charged by bill of information with fourth-offense driving while intoxicated (DWI), a violation of La. R.S. 14:98(E) (prior to 2014 amendments) (count one), and with operating a vehicle without a license, a violation of La. R.S. 32:52 (count two). He pled not guilty. Prior to trial, the defendant expressed his desire to waive the right to counsel and represent himself. The trial court allowed this request and appointed the defendant's prior attorney as standby counsel. The state severed (and later nol-prossed) count two and proceeded to trial on count one only. Following a jury trial, the defendant was found guilty as charged. The trial court subsequently sentenced the defendant to eighteen years at hard labor and ordered him to pay a $5,000.00 fine. The defendant now appeals and has filed counseled and pro se briefs alleging four discernible assignments of error. For the following reasons, we affirm the defendant's conviction, but vacate his sentence and remand for resentencing.
FACTS
Around 2:30 p.m. on March 17, 2013, Yvette Dennis called the police to report that an apparently drunk man, smelling strongly of alcohol, knocked on the door of her trailer in Berwick's Hotard Trailer Park looking for someone who did not live there. Berwick Police Officer, Shawn Liner, responded to the call. As Officer Liner arrived at the trailer park, Ms. Dennis flagged him down and pointed out the car being driven by the man who had knocked on her door. Officer Liner observed the suspect vehicle run partially off of the road in the trailer park. He activated his emergency lights and effected a traffic stop of the suspect vehicle, which was being driven by the defendant.
Upon making contact with the defendant, Officer Liner asked for identification, which the defendant could not produce. Officer Liner noted that the defendant stumbled upon getting out of his vehicle and swayed as he stood. Defendant also smelled of alcohol. Based upon his observations, Officer Liner elected to detain the defendant, read him his Miranda rights, and transported him to the nearby police station for field sobriety testing. Officer Liner explained that he decided to bring the defendant to the police station because the ground inside the trailer park was made of gravel and, therefore, unsuitable for field sobriety tests. Officer Reed Gros arrived at the trailer park as a back-up officer and followed Officer Liner and the defendant back to the police station.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At the police station, Officer Liner and Officer Gros helped the defendant out of the patrol vehicle. Officer Gros performed the field sobriety testing of the defendant, and the defendant performed poorly on all three tests-the horizontal-gaze and vertical-gaze nystagmus test, the walk-and-turn test, and the one-legged stand test. Officer Gros observed that the defendant appeared to be extremely intoxicated and that he smelled strongly of alcohol.
Following the field sobriety testing, Officer Liner attempted to administer a breath test using an Intoxilyzer 5000 machine. While waiting for the machine to calibrate, the defendant stated he had taken six anxiety pills over the preceding twenty-four hours. He also admitted to having consumed four beers that day, with the last beer being consumed at 12:30 p.m. Once the Intoxilyzer 5000 machine finished calibrating, the defendant submitted to the breath test, but failed to follow Officer Liner's instruction to blow a single, continuous breath. He instead blew several short breaths, leading to an insufficient sample. Following this test, Officer Liner arrested the defendant for DWI and driving without a license.
INSUFFICIENT EVIDENCE
In his third counseled assignment of error, addressed here first, the defendant alleges that the evidence presented at trial was insufficient to support his conviction for fourth-offense DWI. Because the defendant did not submit to blood tests and due to the inconclusive results of the Intoxilyzer 5000 test, the defendant argues that his conviction rests solely upon the observations of Officers Liner and Gros, who he claims were not credible witnesses.
A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, this court must consider whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2788-2789, 61 L.Ed.2d 560 (1979); see also La. C.Cr.P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-1309 (La. 1988). The Jackson standard of review, incorporated in La. C.Cr.P. art. 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the factfinder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144 (citing State v. McLean, 525 So.2d 1251, 1255 (La. App. 1st Cir. 1988), writ denied, 532 So.2d 130 (La. 1988)).
In pertinent part, the crime of DWI is the operating of any motor vehicle when the operator is under the influence of alcoholic beverages; or when the operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in La. R.S. 40:964; or when the operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription. See La. R.S. 14:98(A)(1)(a), (c), and (d)(1). In order to convict an accused of DWI, the state need only prove the defendant was operating a vehicle and he was under the influence of alcohol or drugs. See State v. Parry, 2007-1972 (La. App. 1st Cir. 3/26/08), 985 So.2d 771, 775; La. R.S. 14:98(A)(1). To convict an accused of fourth-offense DWI, the state must also show the defendant had three other valid convictions. La. R.S. 14:98(E) and (F) (prior to the 2014 amendments). In the instant case, the defendant argues only that the evidence was insufficient to prove his intoxication, but does not challenge the validity of his prior convictions. Therefore, we address only the evidence of the defendant's intoxication.
Defendant did not testify at trial. To prove the defendant's intoxication, the state relied upon the testimony of three witnesses-Yvette Dennis, Officer Liner, and Officer Gros. All three testified that the defendant appeared to be intoxicated and that he smelled of alcohol during their respective encounters with him. Ms. Dennis testified that the defendant almost fell over while he was on her porch and that he almost fell into her cat's bowl and almost fell into a bush as he walked off her patio. She also described witnessing the defendant drive his car on the wrong side of the street.
Officer Liner testified that he watched as the defendant's vehicle drove briefly off the road. Officer Liner further observed that the defendant stumbled as he exited his vehicle and that the defendant swayed as he stood in front of the police car during the stop. During the required calibration period for the Intoxilyzer 5000 machine, the defendant reported to Officer Liner that he had taken six anxiety pills over the last twenty-four hours, and he admitted to drinking four beers that day. In an inventory search of the defendant's wallet, Officer Liner recovered a receipt for a bottle of "Seagram's 7" that was purchased with the defendant's credit card at 1:33 p.m. on the date of the incident. Defendant's date of birth was listed at the top of the receipt.
Officer Gros testified that he conducted the field sobriety tests of the defendant and that the defendant performed poorly on each one. Officer Gros observed noticeable nystagmus in the vertical-gaze nystagmus test. Defendant failed to follow instructions for the walk-and-turn test by failing to walk heel-to-toe. Finally, Officer Gros stated that the defendant was unable to stand on one leg to perform the one-legged stand test.
Defendant argues the state failed to introduce sufficient evidence of his intoxication because there was no blood test or conclusive breath test to support the conclusion of intoxication. However, we note that Officer Liner testified that the defendant's failure to follow the instructions with respect to the breath test-blowing several short breaths instead of a single, continuous breath-contributed to the insufficient sample. Officer Liner explained that the before-and-after diagnostic tests of the machine were accurate, indicating that the insufficient sample was attributable to the defendant.
Intoxication with its attendant behavioral manifestations is an observable condition about which a witness may testify. State v. Allen, 440 So.2d 1330, 1334 (La. 1983); State v. Neal, 321 So.2d 497, 500 (La. 1975). What behavioral manifestations are sufficient to support a charge of driving while intoxicated must be determined on a case-by-case basis. Parry, 985 So.2d at 775. Some behavioral manifestations, independent of any scientific test, are sufficient to support a charge of driving while intoxicated. State v. Pitre, 532 So.2d 424, 428 (La. App. 1st Cir. 1988), writ denied, 538 So.2d 590 (La. 1989). In the instant case, the state elicited testimony from three witnesses to support the conclusion that the defendant was intoxicated at the time he operated a vehicle. Viewed in the light most favorable to the prosecution, these witnesses' observations were sufficient to prove the defendant's intoxication.
Defendant contends that we should find the evidence insufficient because of what he alleges to be inconsistencies between Officer Liner's testimony and the dashcam video presented at trial. Defendant alleges the video fails to show him stumble or sway during the initial stop, in contrast to Officer Liner's testimony. We first note that the video is the best evidence of its contents, that the jury had an opportunity to view the video, and that any effort to exactly describe the contents of the video would fall short. Nonetheless, the video does appear to corroborate Officer Liner's testimony to the extent it shows the defendant briefly driving off of the street, and to the extent the defendant appears to sway during his conversation with Officer Liner.
Defendant also argues that we should find the evidence inconsistent because Officers Liner and Gros were not credible witnesses. As evidence of their lack of credibility, the defendant cites the officers' conflicting testimonies regarding Officer Liner's presence during the field sobriety tests. Officer Liner testified that he was not present because he had to use the restroom. Officer Gros testified that he recalled Officer Liner being present to assist at one point during the field sobriety tests.
As the trier of fact, the jury is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, where there is conflicting testimony about factual matters, the resolution of which depends on a determination of credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Richardson, 459 So.2d 31, 38 (La. App. 1st Cir. 1984). The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a factfinder's determination of guilt. State v. Taylor, 97-2261 (La. App. 1st Cir. 9/25/98), 721 So.2d 929, 932. We are constitutionally precluded from acting as a "thirteenth juror" in assessing what weight to give evidence in criminal cases. See State v. Mitchell, 1999-3342 (La. 10/17/00), 772 So.2d 78, 83 (citing State v. Azema, 633 So.2d 723, 727 (La. App. 1st Cir. 1993, writ denied, 637 So.2d 460 (La. 1994)). Further, a reviewing court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
The jury weighed the testimony and evidence presented at trial and concluded the defendant was intoxicated. The conflict between the testimony of Officers Liner and Gros regarding the former's presence during the field sobriety tests was apparently not a significant enough factor for the jury to discount the overall evidence of the defendant's intoxication. In reviewing the evidence, we cannot say that the unanimous jury's determination was irrational under the facts and circumstances presented to them. See Ordodi, 946 So.2d at 662.
Considering the evidence presented at trial in the light most favorable to the prosecution, we conclude that a rational juror could have found that the state established beyond a reasonable doubt that the defendant was intoxicated.
This assignment of error is without merit.
SELF-REPRESENTATION
In his first counseled assignment of error, the defendant argues that the trial court erred in granting his request to represent himself at trial. He contends that the trial court failed to inform him of the dangers and pitfalls of self-representation and that the court did not adequately consider his age, education, and mental condition.
An accused has a constitutional right to the assistance of counsel at every stage of criminal proceedings. La. Const. art. I, § 13; State v. Flowers, 598 So.2d 1144, 1146 (La. App. 1st Cir. 1992). The federal constitution grants an accused the right of self-representation. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). An accused has the right to choose between the right to counsel and the right to self-representation. State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 894, cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003). A defendant who exercises the right of self-representation must knowingly and intelligently waive the right to counsel. State v. Penson, 630 So.2d 274, 277 (La. App. 1st Cir. 1993); see also State v. Dupre, 500 So.2d 873, 877 and 879-880 n.4 (La. App. 1st Cir. 1986), writ denied, 505 So.2d 55 (La. 1987). When a defendant requests the right to represent himself, the defendant's technical legal knowledge is not relevant in determining if he is knowingly exercising the right to defend himself. A trial judge confronted with an accused's unequivocal request to represent himself need determine only if the accused is competent to waive counsel and is "voluntarily exercising his informed free will." State v. Santos, 99-1897 (La. 9/15/00), 770 So.2d 319, 321 (per curiam) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).
Approximately three weeks before his trial, the defendant informed his counsel that he wanted to represent himself at trial. Defense counsel advised the court of the defendant's request for self-representation. The court then questioned the defendant, who indicated that he did want to represent himself. The court further questioned the defendant regarding his ability to understand the waiver of the right to counsel. During the exchange, the court inquired whether the defendant understood that the attorneys prosecuting him had college degrees, law degrees, a license to practice law, and many years of experience. Defendant confirmed that he did understand. The court then asked the defendant whether he had a college or law degree, and the defendant responded that he did not. The court then asked the defendant whether he understood that he would be at a distinct disadvantage in representing himself because of the prosecutors' experience in and knowledge of the law. The defendant answered affirmatively. Next, the court asked the defendant if he understood that he would be held to the same standards as would an attorney appearing before the court; the defendant stated that he understood. Finally, the court informed the defendant that if he chose to represent himself, he could not thereafter complain about the quality of his defense. Defendant also stated that he understood this instruction. After this colloquy, the trial court asked the defendant if he wished to have standby counsel appointed, and he answered that he did. Accordingly, the trial court found that the defendant had made an informed decision to represent himself and appointed the defendant's former attorney as standby counsel.
After our review of the record, we find no error in the trial court's decision to allow the defendant to represent himself. Defendant's request to represent himself was shown to be a clear and unequivocal choice, and his waiver of counsel was made intelligently and knowingly. Outside of having standby counsel, the defendant indicated that he did not wish to have counsel represent him at trial. His responses to the court's inquiries and his conduct during trial clearly demonstrate that the defendant understood what he was doing and that he knowingly, intelligently, and unequivocally waived his right to counsel. Defendant never sought to withdraw his waiver of counsel during the trial, and the record reflects that standby counsel assisted the defendant during the trial. Although the defendant now cites several instances throughout trial where he had difficulties cross-examining witnesses due to his lack of familiarity with proper trial procedure, the correctness of granting a defendant the right to represent himself is judged by the record made in recognizing his right to do so, not by what happens in the course of his self-representation. See Dupre, 500 So.2d at 879.
This assignment of error is without merit.
MOTION FOR MISTRIAL
In his second assignment of error, the defendant argues that the trial court erred in denying his motion for a mistrial. He contends that a mistrial was warranted because other crimes evidence was introduced and published to the jury over the objection of standby counsel.
Louisiana Code of Evidence article 404(B) provides that evidence of other crimes, acts, or wrongs is generally not admissible. Louisiana Code of Criminal Procedure article 770(2) provides that a mistrial shall be granted upon motion of the defendant when a remark or comment is made within the hearing of the jury by the judge, district attorney, or a court official during trial or in argument, and that remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.
In the instant case, the state offered, filed, and introduced certified copies of the defendant's prior DWI convictions to prove that the defendant's current offense qualified as his fourth. Prior to allowing these documents to be entered, the trial court asked the defendant whether he had been afforded an opportunity to review them. He answered affirmatively. Accordingly, the trial court ordered that these items be entered into evidence and published to the jury, pursuant to the state's request.
After the exhibits were published to the jury, the defendant's standby counsel made a request to approach the bench. There, she pointed out that one of the certified copies of the prior DWI convictions indicated a revocation of probation on a DWI offense because of an offense of possession of cocaine. At that time, standby counsel moved for a mistrial. The trial court denied the motion on the grounds that the objection to the introduction of this evidence was late, and the court noted that had the defendant been represented by an attorney, the error likely would have been caught before the exhibits were published to the jury. The trial court then offered to, and did, give a limited instruction to the jury not to consider any other offenses for the purpose of determining whether the defendant was guilty of DWI on the date of the incident at issue at trial. Standby counsel did not object to the instruction given by the trial court and answered in the affirmative when asked by the trial court whether the instruction was satisfactory.
On appeal, the defendant contends that the trial court should have granted the mistrial because the documentary evidence introduced referred to impermissible evidence of another crime-possession of cocaine. He also argues that the trial court's subsequent instruction to the jury was inappropriate and incorrect.
Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the accused. A trial court ruling denying mistrial will not be disturbed absent an abuse of discretion. State v. Smith, 418 So.2d 515, 522-523 (La. 1982). We find that the trial court did not err or abuse its discretion in denying the defendant's motion for a mistrial. The trial court was correct in finding that the defendant failed to object in a timely manner to the introduction of the documentary evidence. In the course of representing himself, the defendant informed the trial court that he had viewed this evidence, and he made no objection to its introduction. Once the evidence had been published to the jury, the defendant abandoned any right to complain of its introduction. See La. C.E. art. 103(A)(1). Furthermore, though the defendant now complains that the trial court's instruction to the jury was inappropriate and incorrect, neither the defendant nor his standby counsel made any objection to this instruction at trial. Therefore, the defendant is not entitled to appellate relief on this ground. See La. C.Cr.P. art. 841(A).
This assignment of error is without merit.
PRO SE BRIEF
Defendant's pro se brief is presented to the court more in the style of a letter than a brief. Although this pro se brief occasionally contains numbered lists, these lists do not appear to be formal assignments of error. To the extent that they can be understood to be assignments of error, these numbered lists largely duplicate those issues raised by the defendant's appellate counsel in her brief. The pro se brief contains only a few references to any legal authorities, and its allegations are largely conclusory.
The sole new issue that the defendant appears to raise in his pro se brief is an allegation that the trial court's clerk of court falsified certain court documents and minutes. However, these allegations are vague, contain no reference to legal authority, and fail to highlight any alleged prejudice to the defendant.
Accordingly, the defendant's pro se brief contains allegations that are duplicative of those in his counseled brief or contentions which are unreviewable on appeal.
SENTENCING ERROR
In conducting our review of the record as required by La. C.Cr.P. art. 920(2), we note the existence of a sentencing error. For his conviction of fourth-offense DWI, the defendant was sentenced to eighteen years at hard labor and ordered to pay a $5,000.00 fine, without a stated restriction on the availability of parole. However, the statute required that two years of the defendant's sentence of imprisonment be imposed without the benefit of probation, parole, or suspension of sentence. See La. R.S. 14:98(E)(1)(a) (prior to the 2014 amendments). Therefore, the trial court's failure to expressly restrict the defendant's sentence to exclude parole for two years renders the sentence illegally lenient.
An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. C.Cr.P. art. 882(A). However, State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam), requires a remand for resentencing if amendment of a defendant's sentence involves discretion. In this case, we find that Haynes controls and that resentencing involves discretion. The sentencing range for the defendant's fourth-offense DWI conviction is not less than ten nor more than thirty years. See La. R.S. 14:98(E)(1)(a). Had the trial court recognized the requirement that the defendant's right to parole be restricted for two years, it is possible that the defendant's ultimate sentence might have been shorter.
Therefore, we vacate the defendant's sentence and remand for resentencing. We also pretermit discussion of the defendant's fourth counseled assignment of error, which argued that the defendant was improperly sentenced outside of the presence of counsel.
Without resolving this issue, we note our earlier conclusion that the defendant had made a knowing, intelligent, and unequivocal waiver of counsel at the time of trial. If the defendant desires the representation of counsel at his resentencing, he should make this request clearly known. --------
For the foregoing reasons, the defendant's conviction is affirmed, the sentence is vacated, and the matter is remanded for resentencing.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.