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State v. Johnson
Citations: 182 So. 3d 1039; 2015 La. App. LEXIS 2298; 2015 WL 7280630Docket: No. 50,234-KA
Court: Louisiana Court of Appeal; November 17, 2015; Louisiana; State Appellate Court
LaD-erick Johnson was convicted of armed robbery under La. R.S. 14:64 and sentenced to 15 years at hard labor without the possibility of parole, probation, or suspension of sentence. He appealed the conviction. On August 13, 2013, an armed robbery occurred at a GameStop in Shreveport, Louisiana, where Johnson, wearing a gray Minecraft T-shirt and a red baseball cap, brandished a handgun and demanded cash and merchandise from employee Devin Dobson. After the robbery, Dobson contacted her manager and the police, who collected fingerprints and reviewed surveillance footage. The fingerprints matched Johnson's, and he was later identified by Dobson using his driver's license photograph. Johnson was arrested in Plano, Texas, after police linked him to a stolen vehicle at a motel. Items recovered from his vehicle included stolen headphones, video games, and clothing matching the robbery suspect's description. Johnson was charged with armed robbery, and his attorney moved to suppress Dobson's identification, claiming it violated due process. The trial judge denied this motion. Before trial, the state offered Johnson plea deals of 15 and 20 years, both of which he rejected, despite his attorney's advice. On the trial day, Johnson refused to change from his orange jail jumpsuit to civilian clothing, but the court mandated that he wear civilian attire for the jury trial. The conviction and sentence were ultimately affirmed. Johnson expressed a desire to represent himself in court due to safety concerns regarding his attorney and indicated he had filed a complaint with the Louisiana State Bar Association. After a discussion where the judge affirmed his attorney's competence and warned of the risks of self-representation, Johnson initially agreed to proceed with a jury trial in civilian clothes. However, he later reiterated his wish to remove his appointed counsel, which the court denied. During the trial, witness Dobson identified Johnson as the robber, despite her inability to identify him in a photographic lineup. Johnson confessed to the robbery but claimed it did not constitute armed robbery since he used a toy gun. He admitted on cross-examination that he used a BB gun, which could cause harm. Johnson apologized to Dobson, attributing his actions to a serious drug addiction. The jury convicted him of armed robbery. Johnson's appointed counsel filed a post-verdict judgment of acquittal, which the trial judge denied. Subsequently, Johnson received a 15-year sentence at hard labor. Johnson filed a pro se motion for a new trial, an appeal, and an application for post-conviction relief, all of which were denied. On appeal, both Johnson and his counsel claimed he was denied the right to self-representation. Counsel argued that the trial court inadequately addressed Johnson's request and failed to conduct a proper Faretta colloquy to assess whether Johnson’s waiver of counsel was informed and voluntary. The state contended that Johnson's request was not clear and that he had effectively withdrawn it after consulting with the judge. The legal framework involves the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 13 of the Louisiana Constitution, which guarantee the right to counsel and allow defendants to choose self-representation, although equivocal requests are not sufficient to invoke this right. An indigent defendant does not have the right to choose a specific attorney for representation. While an indigent may retain counsel if able, this right is not absolute and cannot disrupt court procedures or justice. The right to counsel can be waived, but the accused must knowingly and intentionally relinquish it, with the waiver being clear and unequivocal. A valid waiver requires that the defendant is aware of the dangers of self-representation, although they do not need to possess legal skills. Courts should presume against waivers of counsel, and there is no specific formula for determining waivers; instead, the decision relies on the totality of circumstances, including the defendant's background and conduct. More scrutiny is necessary for waivers in felony trials compared to misdemeanor pleas. When waiving counsel, the judge should inform the defendant about the charges, penalties, and assess their understanding based on age, education, and mental condition. A defendant who seeks self-representation only after trial proceedings have begun must demonstrate that their interests outweigh the potential disruption. The discretion to allow withdrawal of counsel rests with the trial court, and rulings will stand unless there is clear evidence of abuse of discretion. Requests to represent oneself made immediately before trial may be denied. An inappropriate denial of the right to self-representation is classified as a structural error, necessitating automatic reversal, as established in McKaskle v. Wiggins and other cases. On October 20, 2014, the day of Johnson's trial, he expressed a desire to represent himself, citing dissatisfaction with his appointed attorney, David McClatchey. Johnson articulated feelings of being manipulated and unsafe with McClatchey's representation. During a dialogue with Judge Dorroh, the judge reassured Johnson of McClatchey's competence and experience, emphasizing the attorney's role in ensuring a robust defense. Despite Johnson’s insistence on self-representation, the court advised against it, explaining the complexities of legal procedures and evidentiary standards that he would be required to meet if he chose to represent himself. The judge encouraged Johnson to collaborate with McClatchey in selecting the jury and participating in his defense. Johnson requested to change into civilian attire before jury selection, which resulted in 12 jurors being chosen (8 black, 4 white). He expressed a desire for a predominantly black jury due to concerns about racial bias in Caddo Parish and sought the removal of his attorney, Mr. McClatchey, citing a lack of connection and dissatisfaction with his representation. The court refused to remove McClatchey during jury selection and indicated that Johnson had not previously requested self-representation. Johnson articulated his frustration with his attorney's performance, claiming he had not seen important evidence and felt his interests were not being prioritized. The court reiterated the options available to him—plead guilty or go to trial—and denied his request for a new appointed attorney, stating he could hire his own if prepared for trial the next day. On September 24, 2014, Johnson rejected a plea deal of 15 years against his counsel's advice, asserting he was unaware of the offers made. The court maintained that prior offers had been communicated in open court. During the trial's scheduled date on October 20, 2014, Johnson initially refused to change from prison garb to civilian clothes and later indicated he wished to represent himself. The court continued to deny his requests for a different attorney while allowing him to hire private counsel. The court advised against self-representation for Johnson, who seemed to accept this guidance initially, agreeing to participate with his attorney in jury selection and defense. However, Johnson later expressed a desire for a jury that was "half-black," citing concerns about racial bias in Caddo Parish. He reiterated his request to remove his attorney, Mr. McClatchey, stating he felt no connection to him. The clarity of this request regarding self-representation is ambiguous; Johnson had previously asked for new counsel rather than to represent himself. Citing precedents, the court contrasted Johnson's situation with *State v. Santos*, where the defendant clearly maintained his self-representation request, demonstrating competence and intent. In contrast, Johnson's request to represent himself came only on the morning of the trial and followed his prior request for new counsel. His actions, including his refusal to change into civilian clothes, were interpreted as disruptive and potentially aimed at creating grounds for appeal. The court found Johnson's request to represent himself to be ambiguous and noted that he had initially accepted the court's advice against waiving the right to counsel. After jury selection, he still insisted on the removal of his counsel, which further complicated his position. In State v. Ormond, the defendant's repeated complaints about his appointed counsel did not constitute an unequivocal request to represent himself, as he only made this request on the day of trial. The court ruled that the trial court acted within its discretion by denying the last-minute request for pro se representation. Similarly, in Johnson's case, he expressed a desire to represent himself only on the morning of trial, despite having previously requested new counsel. The court found no abuse of discretion in denying Johnson's request. Johnson also challenged the trial court's denial of his motion to suppress the photo identification by store clerk Devin Dobson. He argued that Dobson's identification was unduly suggestive because she could not identify him from a six-person lineup but recognized him only after viewing a single photograph. The state countered that the identification was not suggestive and that even if it were, there was no substantial likelihood of misidentification based on the factors outlined in State v. Anderson. The criteria for assessing identification reliability include the witness's opportunity to view the suspect, their attention level, the accuracy of prior descriptions, certainty at confrontation, and the time elapsed between the crime and identification. Ultimately, an in-court identification may still be valid despite suggestive pretrial procedures if there is no significant risk of misidentification. In this instance, Dobson had previously interacted with Johnson when he presented his driver’s license shortly before the robbery. During the hearing on Johnson's motion to suppress, Sgt. Miller testified that he visited Dobson after the robbery to present a photo lineup, which included Johnson's photo. Dobson did not identify Johnson in this lineup but did recognize him immediately when shown his driver’s license photograph. The trial judge denied the motion to suppress, determining that Dobson recognized the ID as one Johnson had shown her shortly before the robbery. The court concluded that Dobson had ample opportunity to view Johnson during the robbery, as he was in the store for seven to ten minutes in well-lit conditions. She had also examined his driver’s license to confirm his age for the purchase of goods. Dobson accurately described the robber and identified characteristics from multiple photos in the lineup. Even if the single-photo identification was deemed improper, the court found that Dobson had an independent basis for her in-court identification due to her close interactions with Johnson before and during the robbery. The precedent from State v. Newman reinforces the need for an independent source for in-court identifications. The court noted that failure to identify at a pretrial lineup does not preclude in-court identification but may affect the weight of the testimony. Johnson was able to cross-examine Dobson regarding her identifications, addressing any potential suggestiveness. The court upheld the credibility of Sgt. Miller’s and Dobson’s testimonies, concluding that the circumstances surrounding Dobson’s identification of Johnson negated any reasonable chance of misidentification. The trial court's denial of Johnson's motion to suppress Dobson's photo and in-court identifications was deemed harmless error, as substantial evidence—including surveillance footage, stolen items found in Johnson's car, and the clothing worn during the robbery—suggests a reasonable jury would convict him of armed robbery regardless of the identifications. Johnson's claim of an unconstitutionally excessive 15-year sentence at hard labor is addressed, arguing that the statutory minimum of 10 years should suffice to avoid cruel and unusual punishment. He contests the trial court's consideration of two aggravating factors: the use of a BB gun as a dangerous weapon and the alleged risk of harm to multiple individuals, despite evidence indicating only Dobson was present. Additionally, Johnson claims the court overlooked mitigating factors due to the absence of a presentence investigation (PSI). The state argues that the trial court adequately considered the factors outlined in La. C. Cr. P. art. 894.1, asserting that a PSI is not mandated for compliance. Sufficient information regarding Johnson's background and history was available to justify the sentence. Louisiana jurisprudence allows for the use of dangerous weapons as an aggravating factor in armed robbery cases. The reviewing court's standard for assessing sentence excessiveness involves verifying the trial court's consideration of established criteria, with the emphasis on the adequacy of the factual basis for the sentence rather than strict compliance with procedural requirements. Key elements in determining a defendant's sentence include personal history (age, family ties, marital status, health, employment history, prior criminal record), the seriousness of the offense, and the likelihood of rehabilitation. Specific factors do not need to be weighted uniformly during sentencing. A sentence can violate Louisiana Constitution Article 1, Section 20 if it is grossly disproportionate to the offense or constitutes unnecessary suffering. A sentence is deemed grossly disproportionate if it shocks the sense of justice when comparing the crime and punishment with societal harm. Trial judges possess broad discretion to assess aggravating and mitigating circumstances, and appellate courts may not overturn sentences for excessiveness without clear evidence of abuse of discretion. The definition of armed robbery under Louisiana law includes taking property by force or intimidation while armed, with penalties ranging from ten to ninety-nine years without parole, probation, or suspension. In this case, the trial judge found that the defendant, Johnson, demonstrated potential for rehabilitation through substance abuse treatment, and determined that a lesser sentence would undermine the crime's seriousness. Aggravating factors included the cruelty exhibited towards the victim, the risk of bodily harm posed by brandishing a BB gun, and threats of violence. Mitigating factors included a lack of intent to cause harm, participation in pretrial drug testing, and an admission of guilt along with an apology. Johnson's argument that the trial court improperly considered certain factors as aggravating stems from a misunderstanding of the relevant sentencing guidelines. According to La. C. Cr. P. art. 894.1 B(19), the use of any dangerous weapon, including firearms, during the commission of an offense that involves the risk of physical force is sufficient to warrant aggravating factors in sentencing. Louisiana law defines a "dangerous weapon" broadly, extending beyond inherently dangerous items to include any instrumentality likely to cause death or great bodily harm. The classification of an item as a dangerous weapon is a factual matter that must be supported by evidence, which Johnson did not challenge on appeal, making discussions around the classification of a BB gun irrelevant. The trial court found that Johnson’s offense occurred during business hours with other customers present, indicating a risk of harm to more than one person, justifying the aggravating factor in sentencing. Additionally, the court was not required to order a Presentence Investigation (PSI), as established by La. C. Cr. P. art. 875 A(1). The trial court obtained sufficient information about Johnson's background through his testimony and pretrial discovery. The court articulated the factors considered in sentencing with clarity, and the 15-year sentence was adequately supported by the record, despite appearing to combine the mandatory minimum and an additional penalty. The state had amended the charges against Johnson, indicating that the trial court's sentence was not improperly influenced by any additional firearm penalties. The case aligns with prior rulings that allow courts to factor in elements inherent to the crime when determining sentences. Johnson brandished a BB gun, which may be classified as a dangerous weapon under Louisiana law. The court concluded that Johnson's 15-year hard labor sentence was constitutionally appropriate, rendering this argument meritless. Johnson also claimed ineffective assistance of counsel, citing several issues: his counsel withheld favorable evidence, visited him only twice during 10 months of pre-trial incarceration, threatened him with bodily harm for refusing to dress in civilian clothes, failed to strike a juror with whom Johnson had a conflict of interest, ignored requests to cross-examine key witnesses, and insulted him during closing arguments. Under the Sixth Amendment, defendants have the right to effective counsel, assessed via the two-prong Strickland test, which requires showing that counsel's performance was deficient and that this deficiency prejudiced the defense. Johnson’s claims of ineffective assistance are more appropriately pursued in a post-conviction relief (PCR) application rather than on appeal, as PCR allows for a full evidentiary hearing. An application for PCR cannot be entertained if an appeal is pending, and since Johnson filed his PCR application prematurely while also appealing, he retains the right to file a proper PCR request once the judgment becomes final. His initial application was denied but he will not face prejudice under Louisiana law due to its premature filing. Johnson filed a pro se motion for a new trial on November 25, 2014, citing ineffective assistance of counsel, which the trial court did not address before sentencing him on December 1, 2014. Johnson's appeal argues that the trial court's failure to rule on this motion prior to sentencing necessitates vacating the sentence and remanding the matter. During the sentencing hearing, Johnson’s counsel mentioned a motion for post-verdict judgment of acquittal but did not disclose the pro se motion for a new trial. The court ultimately denied the post-verdict motion, and Johnson did not object to the lack of ruling on the new trial motion. The review found no prejudice to Johnson from the trial court's failure to rule on the new trial motion, noting that both he and his counsel had opportunities to raise the issue at sentencing. Furthermore, Johnson's ineffective assistance claim is not a valid ground for a new trial and is more appropriately addressed through a post-conviction relief (PCR) application, which Johnson had already filed. The trial court later denied the new trial motion on January 13, 2015, as it did not meet the established criteria. Consequently, vacating the sentence and remanding would serve no practical purpose, as the trial court would likely re-impose the same sentence. Thus, the assignment of error was deemed without merit, leading to the affirmation of Johnson's conviction and sentence. Additionally, a firearm enhancement charge was dropped, and there was no evidence of a complaint filed with the Bar Association regarding Johnson’s counsel.