State Of Louisiana VS Herbert Bass
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 KA 2424 STATE OF LOUISIANA VERSUS HERBERT A BASS rendered March 26 2008 Judgment d Y 1 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 08 00 0599 J4W Honorable Richard D Anderson Judge HON DOUG MOREAU ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA TRACEY BARBERA JEANNE ROUGEAU ASSISTANT DISTRICT ATTORNEYS BATON ROUGE LA PRENTICE L WHITE ATTORNEY FOR BATON ROUGE DEFENDANT APPELLANT LA HERBERT A BASS HERBERT A BASS PRO SE MEMPHIS TN DEFENDANT APPELLANT BEFORE CARTER C J PETTIGREW AND WELCH JJ PETTIGREW J Herbert A Bass The defendant maintaining false public records Following a violation of La a bench trial the defendant sentenced to charged by bill of information with filing was convicted was imprisonment at hard labor for sentence and placed the defendant defendant appeals urging now two R S 14 133 as pled not guilty He The defendant charged The trial court two years assignments of error as It manifestly was establish that erroneous the defendant information misleading gain an unjust advantage 2 The district on a indeed court intentionally provided pUblic document with the violated the a to false and intent to defendant Sixth s to have the assistance of counsel Amendment The follows for the district court to return guilty verdict against the defendant because the State failed 1 was suspended the supervised probation for three years on or when it right represent himself at trial without first ascertaining whether he possessed the necessary intelligence or skill to understand the proceedings against him forced him to Finding no merit in the assigned errors affirm the defendant s conviction and we sentence FACTS At sometime prior to June 2000 the defendant Herbert Andrew Bass resident of the State of Tennessee somehow learned that the residence located 16702 Appomattox Louisiana was Avenue owned defendant appeared by at the Baton Rouge Louisiana Application Officer 1 an to the Appomattox individual named in residence Hubert A Bass j Baton apply for a Louisiana driver and s On June 5 2000 the license presented He it to a From the record the exact source of this information is unclear On one occasion the Department of Justice Department of Treasury No correspondence from Motor Vehicle evidence 2 governmental agency as the defendant stated he On other occasions he indicated he any in completed the application the defendant listed the Appomattox Avenue residence received information from the at Rouge Department of Public Safety Office of Motor Vehicles For License Or Identification Card On the Avenue a was ever was notified by introduced into his residential address The defendant issued was a Louisiana driver s license with this residential address At trial Janet Bass testified that Hubert A Bass husband were at all times the sole to this case she and her pertinent of the Appomattox Avenue residence owners They purchased the residence from Olin Maage in March 1996 To corroborate this testimony the March 25 1996 Act of Cash Sale for the Appomattox Avenue residence was In the document introduced into evidence seller and Hubert Olin James Ashley Bass and Janet Crowell Bass further testified that prior to purchasing the Appomattox Maage is listed the family leased the residence from Mr Maage for several years the defendant address in never Mrs Bass lived at the residence and was not Mrs purchasers Avenue residence Mrs as the Bass she and her Bass testified that authorized to the residential use explained that she did not know the defendant prior to the incident question Sergeant Gordon Castlebury the Public Safety Office of Motor Vehicles also testified the testimony State introduced a of the copy certify under penalty correct The of law that It 1 at the trial In connection with his application for provides driver s a The document contains completed and submitted by the defendant truth to be signed by the applicant Department of custodian of records for the a license certification of By my signature affixed below all statements on this application defendant signed and dated the application directly are true I and beneath the aforementioned certification ASSIGNMENT OF ERROR ONE SUFFICIENCY OF THE EVIDENCE In his first assignment of error the defendant contends the evidence by the State at the trial of this matter was insufficient to presented support the conviction Specifically he asserts the State failed to show that he knew that the information provided the State document The on defendant claims he was acted false or based that he acted to on 3 information gain from an unjust advantage the United States government indicating that he was the registered of the owner Appomattox Avenue residence The standard for viewing the evidence appellate review of the sufficiency of evidence is whether after in the most favorable to the light prosecution any rational trier of fact could have found the essential elements of the crime Jackson v See also La Virginia 443 307 319 s U Code Crim P art 821 B Mussall v a reasonable doubt 2789 61 L Ed 2d 560 99 S Ct 2781 State beyond 523 So 2d 1305 1979 1308 09 La 1988 The Jackson standard of review is an for doubt When reasonable 4 7 95 821 B hypothesis of innocence State 15 438 the overall evidence excludes every Hendon 94 0516 v s R p 4 La filing and or App 1 Cir 654 SO 2d 447 449 As false La analyzing circumstantial evidence must be satisfied that provides the fact finder art the overall evidence both direct and circumstantial objective standard for testing reasonable P incorporated in La Code Crim previously noted the defendant publiC records Louisiana charged offense provides in convicted of was Revised Statutes 14 133 the statute maintaining defining the pertinent part Filing false public records is the filing or depositing for record in any public office or with any public official or the maintaining as required by law regulation or rule with knowledge of its falsity of any of the A following 3 Any document containing representation of a material fact The statute does not filed or officer a 337 writ denied v Salat 95 0072 96 1116 10 4 96 La At the trial of this matter there the Office of Motor Vehicles Appomattox Avenue as statement or false require that the record filed be public but that it in any deposited with knowledge of its falsity See State false a p 5 La App public office 1 Cir or must be with any public 672 So 2d 333 4 4 96 679 So 2d 1378 was testimonial and documentary evidence from public body reflecting that the defendant listed his residential address 4 on an application for a driver s 16702 license There was also testimonial evidence from the homeowner of the residence was not reside at this address on the date the reflecting that the defendant did application Appomattox Avenue made and that he had not lived there at any time since she and her family began occupying the residence in 1994 Also the State introduced Appearance Bond document signed by the defendant in connection with his July 24 2000 defendant On that document arrest on Memphis Tennessee address is listed The defendant residential address s a an as the signed the Appearance Bond document directly above his address Considering false information the foregoing regarding Office of Motor Vehicles Avenue residence which he violated the statute s Insofar as a the knowingly false or crime gain showing unjust advantage an The language heard residence and This facts of address Upon submitting the publiC office we the defendant obviously rejected the a false statement and a provided the note that the statute does not of the statute does not Knowingly providing at the trial in this case charged statute Appomattox resided there his to the oversight material fact is sufficient to constitute presented as statement to the case provided application presented never listing that address aware reasonable mistake to for the falsification a the the defendant argues that the State failed to prove he false information of on the date he indicated and he had The trial court in this claim of require such his residential address false representation for purposes of the a application containing defendant find it clear that the defendant knowingly Because the defendant did not reside at the obviously was constitutes on we speak or to the motivation false violation of the statute representation The evidence sufficiently proves all of the essential elements of the assignment of error lacks merit ASSIGNMENT OF ERROR TWO RIGHT TO JURY TRIAL The defendant trial appears to s second assignment of error allege that both the defendant 5 s although entitled right to a right to jury jury trial and his right to counsel at trial were trial without counsel lht Ri violated In his brief the defendant claims he and before the trial forced to go to judge to counsel In Louisiana an individual accused of the assistance of counsel La assistance of counsel is also guaranteed by See was crime in every instance has Code Crim P 9 13 right to In addition to this fundamental criminal defendant also a to have A criminal defendant s art 511 right a the United States and Louisiana Constitutions s U Const amend VI La Const art I the assistance of counsel a enjoys a right to right under the Sixth and Fourteenth Amendments of the United States Constitution to proceed without counsel and to represent himself when he elects La 1 Cir App accused can core State to defend himself right functions that lawyers La 10 16 96 exercise the circumstances are more so long State Because the defendant reflect a of the court reflect that on wished to represent himself himself v case was matters before As the defendant waived his right before an knowing and intelligent competent to perform State 804 writ denied right v 94 counsel and to the record reflects that the waiver of 1975 Faretta v California 422 U S The determination of whether to counsel or depends upon the facts including the background Carpenter 390 So 2d 1296 1298 La experience and 1980 allowed to represent himself at trial the record must knowing intelligent and voluntary to certain as intelligent waiver of the right conduct of the accused a 637 SO 2d 801 intelligently made surrounding the However 1987 appreciates the possible consequences of 835 95 S Ct 2525 2541 45 L Ed 2d 562 not there has been an and and knowingly La The accused may waive his right to self representation counsel has been 806 680 SO 2d 669 77 Dupre 500 So 2d 873 876 he must make Lay 93 1063 pp 3 4 La App 1 Cir 5 20 94 2525 v 505 So 2d 55 to counsel that shows he right the mishandling writ denied 1986 choose the waiver of his to do so March 19 waiver of his right to counsel The minutes 2002 the defendant advised the court that he In response the trial court questioned the defendant ruling that the defendant would be allowed correctly asserts the to trial counsel is not transcript of the proceeding part of the instant record 6 to So as represent wherein he while it is clear from the minutes that the defendant waived his court s however not in connection questioning that the pro se right to counsel the adequacy of the We with the waiver cannot be reviewed motion to designate the record reflects that the defendant did request that the transcript of the March 19 2002 proceeding be included record moved Furthermore after the pro to note in the designation the defendant s appellate counsel se have the record supplemented with certain transcripts he deemed important The counseled counsel waiver A party moving for appeal necessary for review in 491 So 2d 1356 1364 26 918 3 p imputable La error to writ denied to the the proceeding involving the request the portion of the proceedings See La Code Crim P App 1 Cir La of the record is Trucking Co must light of the assignments of in the record may be reviewed inadequacy to mention supplementation also failed defendant failed to perfect this argument for Only that which is urged art 914 1 State 496 SO 2d 347 appellant App 2 Cir 5 10 95 be Hurt The 1986 La Western American v 655 So 2d 558 560 Since the by designating the review appellate Vampran v transcript of the proceedings necessary for review this portion of the assignment of error is without merit JUry trial waiver Both the United States Constitution and the Louisiana Constitution guarantee a Const art I waive this knowingly a waiver criminal defendant the 99 16 However and intelligently made right State v of the constitutionally to a It is See La undisputed R S La jury trial a jury trial is valid a is amend VI pursuant La to statute prOVided the waiver of the right Code Crim P art 780 A guaranteed right Const criminal defendants may 2 It is well is settled that only if the defendant acted voluntarily and never Furthermore the waiver there presumed waiver which must be rebutted that the defendant was entitled to waive his 14 133 U S Kahey 436 So 2d 475 486 La 1983 presumption against such 2 some constitutionally guaranteed right of the knowingly 17 right to expressly La Code Crim P art 780 A 7 right to a jury operates in fact State v trial on the Cappel charged a 525 offense SO 2d 335 waiver of the accept a La 337 right App 1 Cir to a waiver of the writ denied 531 SO 2d 468 jury trial is generally entered right at any time at 1988 La Although arraignment the trial court may to the commencement of trial prior a La Code Crim P art 780 B In the instant case January 11 on 2008 supplemented with the transcript of the April the State had 10 the 2006 status appeal record conference The transcript reflects that during this proceeding the defendant unequivocally advised the court that he wished to waive his right to a jury trial The trial judge defendant that if he waived his jury trial right the to withdraw the waiver if he this fact trial The defendant obligated to allow him The defendant indicated he understood specifically and repeatedly indicated that he wanted Near the conclusion of the date the his mind changed court was not advised the even proceeding as the court a attempted to assign bench a trial following colloquy occurred Can I ask you THE DEFENDANT one bench trial with the what you wanted You re setting it for a judge THE COURT That question s right THE DEFENDANT Yes sir THE COURT That s right DEFENDANT your honor Thank you THE Clearly the record reflects that the defendant waived his court on this date reveals that prior Additionally to to a transcript of the proceedings held the commencement of the defendant in the defendant s presence specifically announced been waived a right The defendant did not object or s jury trial in open on June 20 2006 the trial court bench trial that the express any right to a jury trial had disagreement with this statement Considering trial a prior to trial defendant of his practice is not the foregoing Although right it is clear that the defendant waived his right it remains the to trial by jury statutorily required preferred method for the trial in open court before See La 8 Code Crim P obtaining art 780 to a jury court to advise a waiver State v such a Pierre 2002 2665 the 1 La 3 28 03 knowing and intelligent require a 3 28 02 This p nature of a Boykin like colloquy 814 SO 2d 72 assignment of For the error foregoing 842 SO 2d 321 3 per curiam v Boykin v determination of Brooks 2001 1138 p 8 2002 1215 La 11 22 02 La App 1 Cir 829 So 2d 1037 lacks merit reasons the defendant s conviction and sentence CONVICTION AND SENTENCE AFFIRMED 3 A jury trial waiver by the trial court does not See State 78 writ denied 322 Alabama 395 U S 238 89 S Ct 1709 23 LEd 2d 274 9 1969 are affirmed
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