State Of Louisiana VS Namicha Lacey

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 1414 STATE OF LOUISIANA VERSUS NAMICHA LACEY RH P Judgment Rendered JUN 2 9 2 On Appeal from the 19th Judicial District Court In and For the Parish of East Baton Rouge Trial Court No 12 07 0502 Honorable Michael R Erwin Judge Presiding Hillar C Moore III Counsel for Appellee District State of Louisiana Attorney Dylan C Alge David G deBlieux Philip J House Assistant District Attorneys Baton Rouge LA Louisiana Counsel for Defendant Appellant Namicha Lacey Namicha Appellant Defendant Frederick Kroenke Appellate Project Baton Rouge LA Angola Lacey LA BEFORE Pro Se PARRO GUIDRY AND HUGHES JJ HUGHES J The defendant Namicha Lacey was charged by bill of information with simple robbery a violation of LSA R 14 He pled not guilty S 65 The defendant was tried by a jury and on May 13 2008 he was convicted as charged Thereafter on August 13 2008 Susan Hebert counsel for the defendant filed a motion to withdraw In the motion counsel disclosed that she had learned at the close of the case that she had previously represented the alleged victim in an unrelated criminal matter Based upon this conflict counsel requested that she be allowed to withdraw from further representation of the defendant and that conflictfree counsel be appointed The trial court granted the motion and appointed attorney Bo Rougeou to represent the defendant Mr Rougeou filed a motion for a new trial based upon the conflict of interest that existed during the defendant trial A s hearing was held on the motion At the conclusion of the hearing the trial court granted the motion The State filed a supervisory writ application with this court seeking review of the trial court ruling on the motion for a new s trial This court granted the State writ application with the following s language WRIT GRANTED To be entitled to relief without demonstrating prejudice the defendant must show that a conflict of interest actually affected the adequacy of counsel s representation Cuyler v Sullivan 446 U 335 100 S S Ct 1708 64 L333 1980 State v Castaneda 94 1118 pp 2d Ed 11 12 La App 1st Cir 6 658 So 297 305 Herein 95 23 2d defendant did not demonstrate that an actual conflict of interest adversely affected his lawyer performance during the trial s The testimony of defendant trial counsel revealed that her s failure to cross examine the victim about her prior criminal conviction was because of her late discovery of the information and forgetfulness not because of divided loyalties She also testified she never actually remembered the prior representation until after defendant trial s ended and she checked court records Accordingly the ruling of the district court granting the motion for new trial is reversed and this matter is remanded for further proceedings 2 State v Lacey 2009 0548 La App 1 Cir 7unpublished 09 31 On remand a hearing was held on a multiple offender bill wherein the State sought to have the defendant adjudicated a fourthfelony offender and sentenced pursuant to LSA R 15 At the conclusion of the S 529 1 hearing the trial court found the defendant to be a fourth felony habitual offender and sentenced him to imprisonment at hard labor for sixtyfour years The defendant moved for reconsideration of the sentence but the trial court denied the motion The defendant now appeals urging in a single counseled assignment of error that he should have been granted a new trial The defendant also filed a pro se brief wherein he argues that he was deprived of effective assistance of counsel at trial FACTS On the evening of December 14 2007 Latonya Bindon was working as a cashier at the Popeyes restaurant on Florida Boulevard in Baton Rouge Louisiana when she observed the defendant a regular patron at the restaurant arrive The defendant initially went to use the restroom facility He later walked up to the counter and asked to purchase an order of mashed potatoes Bindon rang up the food item and opened the register to complete the transaction The defendant rushed behind the counter pushed Bindon aside removed the money from the cash register and fled Aldreka Brown another Popeyes employee was mopping the lobby when the incident occurred She observed the entire incident According to Brown the defendant first attempted to leave through the door on the right side of the restaurant but it was locked so he exited through the opposite door Bindon and Brown both recognized the defendant as a regular patron ofthe restaurant and successfully picked him out of a photographic lineup as 3 the individual who robbed Bindon On December 16 2007 the defendant was arrested after he returned to the Popeyes restaurant to use the restroom During the trial Bindon and Brown both identified the defendant in open court as the individual who committed the robbery COUNSELED ASSIGNMENT OF ERROR In his sole counseled assignment of error the defendant argues that a new trial should have been granted based upon the conflict of interest that existed during his trial He further argues that the conflict of interest adversely affected his counsel performance and prejudiced his case s In response the State contends that because the issue was previously addressed by this court in a writ application the principle of law of the case precludes review of this issue on appeal The law of the case doctrine embodies the rule that an appellate court ordinarily will not reconsider its own rulings of law in the same case Sharkey v Sterling Drug Inc 600 So 701 705 La App 1 Cir writs 2d denied 605 So 1099 1100 La 1992 See also Lejano v K Bandak 2d S 970388 La 12 705 So 158 170 cert denied sub nom Lejano 97 2d v K Bandak Assuranceforeningen Gard 525 U 815 119 S 52 S S Ct 142 L 40 2d Ed 1998 Day v Campbell Grosjean Roofing Sheet Metal Corporation 260 La 325 330 256 So 105 107 1971 The 2d policy applies against those who were parties to the case when the former appellate decision was rendered and who thus had their day in court State v Junior 542 So 23 27 La App 5 Cir writ denied 546 So 1212 2d 2d La 1989 We note that in this matter however the former decision was rendered when we exercised our supervisory not appellate jurisdiction Nevertheless judicial efficiency demands that this court accord great deference to its prior decisions unless it is apparent that the determination 4 was patently erroneous and produced an unjust result See State v Humphrey 412 So 507 523 La 1982 on rehearing State v 2d Wilkerson 961965 La App 1 Cir 11 704 So 1 5 writ denied 97 07 2d 97 3038 98 3 La 4 717 2d So 646 For these reasons we are not precluded from reviewing defendant assigned error s As a general rule Louisiana courts have held that an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant he is representing State v Cisco 2001 2732 p 17 La 03 3 12 861 So 118 129 cert denied 541 U 1005 124 S 2023 2d S Ct 158 L 522 2004 An actual conflict ofinterest is defined as follows 2d Ed If a defense attorney owes duties to a party whose interests are adverse to those of the defendant then an actual conflict exists The interest of the other client and the s defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to the other client Cisco 2001 2732 at p 18 861 So at 130 citing Zuck v Alabama 588 2d 2d F 436 439 5th Cir 1979 cert denied 444 U 833 100 S 63 62 S Ct 2d Ed L42 1979 The issue of conflicting loyalties usually arises in the context of joint representation but it can also arise when an attorney runs into a conflict because he or she is required to cross examine a witness who is testifying against the defendant and who was or is a client of the attorney State v Tart 93 0772 p 12 La 2672 So 116 125 cert denied 519 U 96 9 2d S 934 117 S 310 136 L227 1996 Ct 2d Ed The time at which a conflict of interest issue is raised is determinative of the standard to be applied in evaluating the claim In Holloway v Arkansas 435 U 475 98 S 1173 55 L 426 1978 prior to S Ct 2d Ed trial the defense counsel moved for the appointment of separate counsel for 5 each of the three defendants on the basis of conflict of interest and the motion was denied Holloway 435 U at 477 98 S at 1175 Prior to S Ct the empanelling of the jury the motion was renewed but was again denied Holloway 435 U at 478 98 S at 1175 At trial the court refused to S Ct permit defense counsel to cross examine any of the defendants on behalf of the other defendants Holloway 435 U at 479 98 S at 1176 S Ct The United States Supreme Court in Holloway reversed the defendants convictions holding whenever a trial court improperly requires joint representation over timely objection reversal is automatic Holloway 435 S U at 488 98 S at 1181 Holloway creates an automatic reversal rule Ct only when defense counsel is forced to represent codefendants over his timely objection unless the trial court has determined that there is no conflict Mickens v Taylor 535 U 162 168 122 S 1237 1241 42 S Ct 152 L291 2002 2d Ed In Cuyler v Sullivan 446 U 335 337 38 100 S 1708 1712 S Ct 13 64 L 333 1980 no objection was made against multiple 2d Ed representation of three defendants until postconviction The defendants were tried separately represented by the same two attorneys Sullivan was tried first and convicted without his defense attorneys presenting any evidence The other defendants were acquitted in their trials Cuyler 446 S U at 338 100 S at 1713 Ct In a postconviction hearing one of the defense attorneys testified he remembered he had been concerned about exposing defense witnesses for the other trials Cuyler 446 U at 338 39 S 100 S at 1713 Ct The United States Third Circuit Court of Appeals reversed Sullivan s conviction holding a defendant was entitled to reversal of his conviction whenever he makes some showing of a possible conflict of interest or 6 prejudice however remote United States ex rel Sullivan v Cuyler 593 2d F 512 51921 3d Cir 1979 The United States Supreme Court subsequently vacated the decision of the Third Circuit holding the possibility of conflict is insufficient to impugn a criminal conviction In order to demonstrate a violation of his Sixth Amendment rights a defendant must establish that an actual conflict of interest adversely affected his s lawyer performance Cuyler 446 U at 350 100 S at 1719 S Ct Thus the time at which the conflict of interest issue is raised determines whether the rule of Holloway or the rule of Cuyler applies When a defendant raises an objection before or during trial because of a possible conflict of interest Holloway requires the trial court to appoint separate counsel or take adequate steps to determine if the claimed risk is too remote Failure to take either action warrants automatic reversal even in the absence of specific prejudice However should the objection be made after trial Cuyler is controlling and the defendant must show an actual conflict of interest adversely affected the s adequacy of counsel performance See State v Marshall 414 So 684 687 88 La 1982 cert denied 459 U 2d S 1048 103 S 468 74 L617 1982 Ct 2d Ed In the instant case the issue of conflict of interest was first raised after trial when the defendant trial counsel moved to withdraw from the case s Therefore to receive a new trial the defendant must have met the test articulated in Cuyler that is that an actual conflict of interest adversely affected his lawyer performance Cuyler 446 U at 348 100 S at s S Ct 1718 See also State v Reeves 20062419 p 78 La 5 11 So 09 3d 1031 1082 cert denied 130 S 637 175 L 490 Ct 2d Ed S U 2009 7 At the hearing on the defendant snew trial motion in this case Susan Hebert testified that she did not recall having previously represented Bindon during the defendant trial She explained that it was likely that the prior s representation was not discovered during her pretrial screening because the bill of information initially listed the victim of the robbery as Popeye s sic and it was not until the morning of the trial that the bill was amended to reflect that the defendant was actually charged with robbing Latonya Bindon Ms Hebert further testified that after the trial was completed she asked her secretary to check the Clerk of Court website to determine if a s public defender had represented the victim on her prior offense It was then that Ms Hebert learned that she had personally represented the victim several years earlier in a different section of criminal court Apparently the victim pled guilty to forgery and received probation Ms Hebert did not recall any ofthe details regarding the representation On the issue of her failure to cross examine the victim regarding her prior conviction Ms Hebert explained that her pretrial conversations with the prosecutor had led her to believe that the State witnesses did not have s any prior criminal convictions and it was not until the morning of the trial that she learned otherwise After the voir dire began Ms Hebert was provided a copy of Bindon rap sheet which reflected a prior conviction for s forgery Ms Hebert also explained that on the morning of the trial she was forced to reevaluate the defense strategy after the defendant informed her of his decision not to testify Ms Hebert opined that these events late disclosure of the rap sheet and lastminute change in the defense strategy likely resulted in her forgetting to question the victim about her prior conviction on cross examination Ms Hebert specifically denied that her 8 prior representation of the victim which she stated she did not remember at the defendant trial had anything to do with her failure to question the s victim about her prior forgery conviction At the conclusion of the evidentiary portion of the new trial hearing counsel presented arguments to the court In his argument counsel for the defendant conceded that the situation in this case did not rise to the level of an actual conflict Counsel argued however that Ms Hebert prior s representation of the victim created a potentially conflicting situation that warranted the granting of a new trial In response the State argued that because Ms Hebert did not recall having represented the victim she was not presented with a situation wherein she had divided loyalties Her loyalty was to the defendant and thus there was no actual conflict In granting the motion for new trial the court reasoned The attorney filed the motion to withdraw After consultation with others she made the determination that there was a potential conflict in this case The court is of the opinion that if there was a conflict in this case when she made the decision it was a conflict or should have been a conflict in the case when the matter was tried And based upon that the court grants the motion for new trial Appellate courts may review the grant or denial of a motion for new trial only for errors of law See LSAC art 858 Our review of the P Cr record before us reveals that an error of law was committed in this case The trial court reasons for granting the defendant a new trial show that the s ruling was based solely upon the court finding that a conflict existed The s court failed to consider as required by Cuyler whether the conflict adversely affected Ms Hebert performance Instead the court applied the s Holloway automatic reversal rule As previously noted Cuyler not Holloway is the controlling authority in this case 9 Clearly defense counsel was correct in his assertion at the new trial hearing that a potentially conflicting situation existed in this case based upon Ms Hebert prior representation of the victim a key State witness in s the unrelated criminal matter which could have been used to attack the s victim credibility Nevertheless Ms Hebert testimony at the hearing s established that the prior representation which she did not recall did not affect her representation of the defendant Ms Hebert specifically stated that she failed to cross examine the victim about her prior conviction not because of the prior representation but because she forgot about it during the trial Ms Hebert also testified she had not remembered the prior representation until after the defendant trial ended and she checked court s records Because Ms Hebert was completely unaware of any loyalty owed to the victim as her former client during cross examination the situation was clearly not one of divided loyalties There is no showing in the record that Ms Hebert was ever faced with a situation in which she was forced to choose between the interests of the defendant and the victim her former client Considering the foregoing we adhere to our original conclusion on supervisory review that the defendant did not demonstrate that an actual conflict of interest adversely affected his counsel performance during the s trial and the trial court erred in granting the defendant a new trial This assignment of error lacks merit PRO SE ASSIGNMENT OF ERROR The defendant has also submitted a pro se brief wherein he asserts he received ineffective assistance of counsel at trial Specifically he argues his trial counsel was ineffective in failing to impeach andor challenge the s victim credibility by questioning her regarding her prior criminal history 10 It is well settled that a claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal the issue may be addressed in the interest of judicial economy State v Williams 632 So 351 361 La App 1 Cir 1993 writ denied 94 2d 1009 La 9643 So 139 94 2 2d A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I Louisiana Constitution 13 of the In assessing a claim of ineffectiveness a two pronged test is employed The defendant must show that 1 his attorney s performance was deficient and 2 the deficiency prejudiced him Strickland v Washington 466 U 668 687 104 S 2052 2064 80 S Ct 2d Ed L 674 1984 The error is prejudicial if it was so serious as to deprive the defendant of a fair trial or a trial whose result is reliable Strickland 466 U at 687 104 S at 2064 In order to show prejudice S Ct the defendant must demonstrate that but for counsel unprofessional s conduct the result of the proceeding would have been different Strickland 466 U at 694 104 S at 2068 S Ct See also State v Felder 2000 2887 La App 1 Cir 9 809 So 360 369 70 writ denied 2001 3027 01 28 2d La 10 827 So 1173 Further it is unnecessary to address the 02 25 2d issues of both counsel performance and prejudice to the defendant if the s defendant makes an inadequate showing on one of the components State v Serigny 610 So 857 860 La App 1 Cir 1992 writ denied 614 So 2d 2d 1263 La 1993 11 The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him The confrontation clause of the Louisiana State Constitution similarly affords the defendant the right to confront and cross examine the witnesses against him LSA Const art I 16 Louisiana Code of Evidence Article 609 provides in pertinent part 1 A General criminal rule In a criminal case every witness by testifying subjects himself to examination relative to his criminal convictions subject to limitations set forth below B Convictions Generally only offenses for which the witness has been convicted are admissible upon the issue of his credibility and no inquiry is permitted into matters for which there has only been an arrest the issuance of an arrest warrant an indictment a prosecution or an acquittal The general rule provided by the foregoing is that the credibility of a witness may be impeached by evidence showing the witness has been convicted of a crime On the other hand evidence of an arrest an arrest warrant an indictment prosecution or an acquittal may not be used to impeach the general credibility of a witness See State v Casey 99 0023 La 1 775 So 1022 1031 cert denied 531 U 840 121 S 00 26 2d S Ct 104 148 L 62 2000 2d Ed The evidence presented at the trial of this case established that shortly after the commission of the offense Bindon identified the defendant from a photographic lineup as the perpetrator She also identified the defendant in open court because he at trial was a Bindon testified that she recognized the defendant regular patron of the Popeyes restaurant s Bindon identification of the defendant was corroborated by Brown who also identified him from a pretrial photographic lineup and in open court at the trial Considering the foregoing we do not find that defense counsel s failure to challenge Bindon credibility based upon a prior conviction s 12 prejudiced the defendant in any way Absent a showing of prejudice the s defendant Strickland ineffective v assistance Washington of counsel 466 U S at 687 claim 104 fall See at 2064 This must Ct S assignment of error lacks merit For the stated reasons the defendant conviction habitual offender s adjudication and sentence are affirmed CONVICTION HABITUAL AND SENTENCE AFFIRMED 13 OFFENDER ADJUDICATION

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