State Of Louisiana VS Christopher John Gage
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0237 C STATE OF LOUISIANA VERSUS CHRISTOPHER JOHN GAGE Judgment Rendered October 29 2010 On Appeal from the 32nd Judicial District Court In and For the Parish of Terrebonne Trial Court Number 303 250 Honorable John R Walker Judge Presiding Joseph L Waitz Jr District Attorney Ellen Daigle Doskey Assistant District Attorney Counsel for Appellee State of Louisiana Houma Louisiana Katherine M Franks Counsel for Defendant Appellant Louisiana Appellate Project Abita Springs Louisiana Christopher John Gage BEFORE PARRO GUIDRY AND HUGHES M n HUGHES J The defendant Christopher John Gage was convicted of one count of second degree murder count II a violation of LSAR 14 two S 30 A 1 counts of manslaughter counts I and III violations of LSAR 14 and one S 31 count of attempted manslaughter count IV a violation of LSAR 14 and S 27 LSAR 14 On count II he was sentenced to life imprisonment at hard labor S 31 without benefit of probation parole or suspension of sentence On count I he was sentenced to forty years at hard labor to run consecutively to the sentence imposed on count It On count III he was sentenced to forty years at hard labor to run consecutively to the sentences imposed on counts I and IL On count IV he was sentenced to twenty years at hard labor to run consecutively to the sentences imposed on counts I II and III On appeal this court conditionally affirmed the convictions and sentences and remanded to the trial court for the purpose of determining whether a nunc pro tune competency hearing was possible and if so for the holding of such an evidentiary hearing See State v Mathews 20002115 p 17 La App 1 Cir 01 28 9 809 So 1002 1016 writs denied 2001 2873 La 9 824 So 2d 02 13 2d 1191 and 2001 2907 La 10 827 So 412 Upon remand the trial court 02 14 2d found it was possible to hold a nunc pro tune competency hearing and after holding such a hearing found the defendant was competent and able to assist counsel at the time of trial The defendant now appeals designating the following assignments of error Nunc pro tune is a phrase applied to acts allowed to be done after the time when they should have been done with a retroactive effect in other words a thing is done now which has the same legal force and effect as if it had been done at an earlier time See Black Law Dictionary 964 5th ed 1979 s Z The defendant challenged this ruling and the trial court finding that testimony and documents from the s defense concerning the defendant competency were not privileged in a writ application which this s court denied in an unpublished decision Se State ex rel Gage v State of Louisiana 2003 2181 La App 1 Cir 2 unpublished writ denied 2004 0606 La 11 887 So 448 04 9 04 8 2d 2 I The trial judge erred in his determination that a nunc pro tunc proceeding was possible when the record contained insufficient evidence that a meaningful assessment of the defendant mental s competency could be made retroactively The judge failed to hold the tate S to its burden of proof to demonstrate that non privileged information was available to make such an assessment 2 The trial judge erred in compelling the disclosure of privileged case files and in compelling testimony by defense counsel representatives of the defense team including a defense expert and appellate counsel 3 The evidence established by a preponderance of the evidence that the defendant was mentally incompetent to assist counsel at the time of trial The trial judge determination of s capacity based upon a withdrawal of an insanity plea which does not address the competency issue as well as upon testimony that violated the attorney client privilege was error For the following reasons we unconditionally affirm the convictions and sentences on counts I II lII and IV FACTS The facts concerning the offenses were set forth in our original decision in this matter See State v Mathews 20002115 at pp 3 4 809 So at 100708 2d NUNC PRO TUNC COMPETENCY HEARING In his first assignment of error the defendant argues that the trial court erred in finding a nunc pro tunc competency hearing was possible because the record together with such additional evidence as may be relevant and available did not permit an accurate assessment of the defendant condition at the time of the s original proceeding Nunc pro tunc hearings on the issue of competency are allowed if a meaningful inquiry into the defendant competency can still be had s The trial court is in the best position to determine whether it can make a retrospective determination of the defendant competency during his trial and sentencing The s determination of whether a trial court can hold a meaningful retrospective competency hearing is necessarily decided on a case bycase basis 3 The State bears the burden to show the court that the tools of rational decision are available State v Snyder 98 1078 pp 3031 La 4 750 So 832 855 99 14 2d A meaningful determination is possible when the state of the record together with such additional evidence as may be relevant and available permits an accurate assessment of the defendant condition at the time of the original State s proceeding Additionally when determining whether a meaningful hearing may be held we look to the existence of contemporaneous medical evidence the recollections of non experts who had the opportunity to interact with the defendant during the relevant period statements by the defendant in the trial transcript and the existence of medical records The passage of time is not an insurmountable obstacle if sufficient contemporaneous information is available State v Snyder 98 1078 at p 31 750 So at 855 2d The detailed written reasons for judgment filed in this matter demonstrate that the trial court did not abuse its discretion in finding that a meaningful retrospective competency hearing was possible The reasons further reveal that contemporaneous medical evidence and medical records were available or In these reasons the trial judge indicated that although the defendant was originally charged in Division A of the trial court where various pleadings were filed and hearings held his case was transferred to Division B The State then amended the indictment on December 27 1999 to charge the defendant along with two codefendants under Docket Number 303 The trial resulting 250 in the defendant conviction was held January 11 21 2000 s The trial judge further noted in his reasons that after transfer of the case to Division B defense counsel requested funds for conducting psychiatric examination of the defendant and on April 12 1999 the court ordered the expenditure of 4 to have the defendant examined by Dr Sarah Deland a 500 forensic psychiatrist Dr Marc Zimmerman a forensic psychologist and Patricia El Percy a forensic social worker However according to the trial judge reasons s on June 2 1999 defense counsel Mark Nolting filed a motion to withdraw the s defendant insanity plea stating the defense has attained sufficient examination of your mover at this time by qualified medical expert to believe that the burden s of proof of an insanity defense cannot be maintained at trial and hence the motion to withdraw same is rnopen Emphasis original The defendant argues that insanity at the time of the offense and competency to proceed to trial are two different things We agree We note however that an expert determining the defendant sanity at the time of the offense would be in a s position to note the defendant competency to proceed to trial The trial court s s reasons for judgment also indicate that recollections of non experts who had the opportunity to interact with the defendant during the relevant period and the s court own recollection of the defendant behavior at trial were available s This assignment of error is without merit ATTORNEY CLIENT PRIVILEGE In his second assignment of error the defendant argues the trial court erred in denying the defense objection and allowing the State to obtain information from defense counsel and persons hired by the defense concerning the defendant s competency at the time of trial which violated the attorney client privilege Louisiana Code of Evidence Article 506 provides in pertinent part 8 A client has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication whether oral written or otherwise made for the purpose of facilitating the rendition of professional legal services to the client as well as the perceptions observations and the like of the mental emotional or physical condition of the client in connection with such a communication when the communication is The record indicates that only Dr Deland examined the defendant s Defendant competency to proceed to trial is addressed hereinafter in connection with his third assignment of error 5 1 Between the client or a representative of the client and the client s lawyer or a representative of the lawyer However Comment i to Article 506 states that the privilege does not include any information that the lawyer may have gotten by reason of his being such legal adviser In determining the applicability of a privilege a court should determine whether the testimony that is claimed to be privileged is in the class whose exclusion will advance the policy sought to be furthered by the privilege State v Taylor 940696 p 6 La 9 642 So 160 165 94 6 2d The purpose of the attomeyclient privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the attorney being fully informed by the client The privilege rests on the need for the advocate and counselor to know all that relates to the client reasons for seeking representation if the professional mission is to be s carried out See Upjohn Company v United States 449 U 383 389 101 S S Ct 677 682 66 L 584 1981 2d Ed Following remand the State moved for permission to issue a subpoena to the defense attorney of record at the time of trial and to issue a subpoena duces tecum for him to produce his file for in camera inspection in order to extract information regarding the competency of the defendant at the time of trial The defense stated the defendant did not waive any applicable privileges and asserted the attorney client privilege as to all information including any personal observations office file notes and communications with experts with respect to the competency of the defendant The court ruled that if a competency hearing with the State experts had been held the report of Dr Deland would have been admissible evidence and Ce would have been discoverable by the State The court reasoned that if the report would have been discoverable it should not be privileged now The court held all defense information that would reflect the mental status competency or the sanity of the defendant at the time the motions were filed until trial was not privileged and ordered the information produced for in camera inspection Additionally the court ordered that Dr Deland prepare a written report concerning her observations findings and opinions concerning the competency and mental status of the defendant The defense objected to the trial court rulings s Louisiana Code of Evidence Article 506 was not violated in this case B The privilege recognized in Article 506 protects against disclosure of B confidential communication and the perceptions observations and the like s of the mental emotional or physical condition of the client in connection with such communications A communication is confidential if it is not intended to be disclosed to persons other than a those to whom disclosure is made in furtherance of obtaining or rendering professional legal services for the client b those reasonably necessary for the transmission of the communication and c when special circumstances warrant those who are present at the behest of the client and are reasonably necessary to facilitate the communication LSAC E art 5 A 506 The trial court in this case ordered production of information concerning the competency and mental status of the defendant prior to trial This information was not a confidential communication under LSAC art 506 because unlike E B information implicating the defendant in a crime it was not disclosed in furtherance of obtaining legal services The information ordered produced in this case included information concerning whether the defendant was fully aware of the nature of the proceedings such as whether he understood the nature of the charge and could appreciate its seriousness whether he understood what defenses were 7 available whether he could distinguish a guilty plea from a not guilty plea and understand the consequences of each whether he had an awareness of his legal rights and whether he understood the range of possible verdicts and the consequences of conviction It also included facts to determine the defendant s ability to assist in his defense such as whether he was able to recall and relate facts pertaining to his actions and whereabouts at certain times whether he was able to assist counsel in locating and examining relevant witnesses whether he was able to maintain a consistent defense whether he was able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements whether he had the ability to make simple decisions in response to wellexplained alternatives whether if necessary to defense strategy he was capable of testifying in his own defense and to what extent if any his mental condition was apt to deteriorate under the stress of trial See State v Bennett 345 So 1129 1138 2d La 1977 on rehearing Further exclusion of information concerning the competency of the defendant prior to trial under the attorney client privilege would not advance the policy sought to be furthered by that privilege because the information did not relate to the client reasons for seeking representation s This assignment of error is without merit MENTAL CAPACITY TO PROCEED TO TRIAL In his third assignment of error the defendant argues the trial court erred in finding he had the mental capacity to proceed to trial because members of his defense team Robert Pastor Mark Nolting and Victoria Monteiro indicated he lacked orientation as to time and space failed to participate in preparing a defense and was disruptive during trial Robert Pastor testified at the nunc pro tunc competency hearing He was appointed to represent the defendant when the defendant was charged with three counts of first degree murder Pastor related that at that time the defendant was preoccupied with other matters and he was unable to impress upon the defendant the meaning of first degree murder and the consequences of a conviction on that charge Pastor also stated that the defendant was unable to provide him with enough information to look for possible witnesses to subpoena on behalf of the defendant Pastor had no contact with the defendant after the first degree murder charges against him were reduced Mark Nolting also testified at the nunc pro tunc competency hearing Nolting was appointed as the penalty phase attorney for the defendant when he faced first degree murder charges and he continued as the trial attorney when the charges were reduced Nolting testified that the defendant didn appear to be t orientated to time and space as far as you know where he was at a certain time Particularly if you get arrested sometime sic after an event you don t necessarily know where you were Nolting indicated however that the defendant gave him several names of people he knew and saw on a daily basis Nolting also testified I think and I kind of very vaguely remember that there may have been some incidences during the trial where the d got kind of hyperventilated efendant and may have made brash statements on the r I don know Nolting ecord t conceded that competency can change and sometimes a defendant ability to s communicate with his attorney can improve once he is in jail and off drugs or alcohol When asked if during the preparation of the case for trial and specifically during the week of trial he felt there was a need for competency tests to be performed on the defendant Nolting replied If I had I would have had them done Victoria E Monteiro also testified at the nunc pro tunc competency hearing She was a licensed investigator and had assisted the defense in connection with the s defendant case She indicated the defendant was very vague and she didn t think he understood her or Pastor She further related that the defendant was E unable to tell her the facts relating to the case Nevertheless Ms Monteiro disclosed that she was at the counsel table during trial and did not witness any incidents that would have delayed the trial any outbursts or any other inappropriate behavior by the defendant Dr Sarah Deland also testified at the nunc pro tune competency hearing She was hired by Pastor to determine whether or not there were any mental health issues that would be pertinent for the sentencing phase She indicated her normal procedure for an examination was to conduct an interview perform a mental status examination look at any records provided and prepare an assessment of competency Dr Deland did not have any independent recollection of interviewing the defendant She did however have pages of notes concerning the interview Dr Deland testified that she visited the defendant in jail on May 12 1999 and that he was able to provide her with his arrest date at that time The defendant was further able to tell Dr Deland that he was a single twenty yearold black male that he was born on June 2 1978 in Charity Hospital in New Orleans and that he was raised in Thibodaux He also told her that his father had died in January of 1999 at age sixtyfive after suffering two strokes The defendant also provided Dr Deland with the name age and address of his mother and the names and ages of his brothers and sisters Dr Deland asked the defendant how he would describe his childhood and he indicated that he had a fairly happy childhood The defendant also advised Dr Deland of his educational history his criminal history and that he was twelve years old at the time of his first sexual encounter The defendant also reported that his mother had taken him for psych which Dr Deland interpreted as psychological testing because the defendant stated he had to repeat first grade and because he had been psychologically tested at a juvenile detention facility 10 The defendant advised Dr Deland that he was charged with three counts of first degree murder and one count of attempted first degree murder in Thibodaux He indicated to Dr Deland that the newspaper said it was a drug deal that went bad Dr Deland asked the defendant to explain the meaning of first degree murder and he replied that murder meant that you meant to kill somebody and that if it were first degree that you could get death or a life sentence Dr Deland asked the defendant to explain the meaning of attempt and he said that it means you try you tried to kill them The defendant also told Dr Deland that his attorney was Robert Pastor and that he had been appointed to represent the defendant Dr Deland asked the defendant if he knew how to contact his attorney and the defendant stated that he had Pastor phone number Dr Deland asked the defendant what his attorney s s job was and he replied To defend me to try to get me off Dr Deland notes s also indicated the defendant understood his right to have an attorney and his right to remain silent Her notes also stated that the defendant understood the concept of alibi Dr Deland asked the defendant what the D job was and he responded s A To prosecute me they want to get a conviction Dr Deland asked the defendant what the jury job was and he answered that they see if you are guilty s or not guilty Her notes also recorded that she advised the defendant that in a first degree murder case the jury would also decide whether a defendant would receive the death penalty Dr Deland asked the defendant what the judge job s was and he replied that he the boss Dr Deland asked the defendant about the s function of witnesses and he stated that witnesses tell what happened Dr Deland asked the defendant about audience participation during trial and he told her that the audience can say anything Dr Deland asked the defendant about t the defendant role at trial and he answered that a defendant is not supposed to s say anything that the lawyer talks for you Dr Deland notes indicated the s defendant also understood that if a witness lied or said something the defendant did not agree with he could whisper to his attorney during court Dr Deland asked the defendant to explain the meaning of a not guilty plea and he said that it meant that he didn do it Dr Deland asked the defendant t What happens then He replied that you h a trial Dr Deland asked the ave defendant If you are found not guilty at the trial what happens He replied You could go home She also asked the defendant to explain the meaning of being found guilty and he said that g means you did it She asked And uilty what would happen The defendant replied You would get time Dr Deland asked the defendant if there were any other ways you could plead and he brought up no contest Dr Deland asked if the defendant had ever heard of not guilty by reason of insanity or the insanity plea The defendant responded that it meant that you did it but you didn know what you were doing Dr Deland then asked t what he thought the judge would do with somebody in that case and the defendant said S them to the hospital end Dr Deland notes also indicated the s defendant understood that plea bargaining involved making a deal and meant that a defendant would get less time the district attorney would get a conviction and that to plea bargain a defendant has to plead guilty Dr Deland did not remember having any concerns about what the defendant remembered about the offense or what he could tell his lawyer but indicated she had not gone into those subjects with the defendant She further testified that she did not use any standardized tests on the defendant She also did not specifically discuss with the defendant his right to choose to testify or to remain silent in the courtroom though she noted the defendant said he should let his lawyer talk for him Dr Deland conceded that she had thought about some of the elements considered in a competency hearing but stated that she did not perform a thorough 12 competency examination of the defendant Dr Deland was then asked How comfortable are you right now to say that you remember now that Christopher Gage was competent not now but was competent six years ago She replied I t couldn tell you I couldn tell you t The trial court found that even without considering the evidence adduced at the nunc pro tunc hearing the record pleadings and evidence which were available when defendant went to trial indicated the defendant was competent at the time of trial The court noted that prior to trial the defendant and defense counsel Nolting made multiple appearances in connection with the proceedings and a no time was there a hint or mention of the necessity for the Court to t hold any hearings concerning the defendant mental state or his ability to assist s counsel The court also noted that on December 1 1999 counsel for the defendant filed a written notice of intention to present an alibi defense alleging that the defendant was visiting his friend Zondrea Jupiter at McDonald her s place of employment The court found the notice of alibi was clear evidence of the s defendant ability to assist counsel The court noted there was no motion to continue the trial so that mental examinations could be completed and a no t time prior to trial during trial or during posttrial motions was the issue of s defendant mental competency or ability to assist counsel raised after the June 2 1999 withdrawal of the insanity plea The trial court also noted that it observed the defendant and defense counsel and their interaction with the other defendants and defense counsel during the various proceedings The court stated that during trial it had not observed childish behavior such as giggling laughing disruptive verbal remarks or disruptive conduct by the defendant with the codefendants The defendant disputes the findings of the trial court arguing the trial transcript indicates he made a gun 13 with his finger during trial We addressed this issue in our original decision in this matter noting The one incident referred to by Gage appellate counsel involved s Gage making gestures to a witness including the gesture of pointing a gun The record reflects that the S expressed concern at trial that tate Gage was attempting to intimidate the witness This incident suggests a knowledge of the proceedings and the possible consequences of a conviction Alone it is insufficient to prove or suggest mental incapacity State v Mathews 2000 2115 at pp 17 18 809 So at 101617 2d The trial court did not err in finding that the defendant had the mental capacity to proceed to trial This assignment of error is without merit CONVICTIONS AND SENTENCES ON COUNTS 1 II III AND IV UNCONDITIONALLY AFFIRMED 14
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