                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                            NEWS RELEASE #059


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 6th day of December, 2017, are as follows:




PER CURIAM:


2017-KK-0705      STATE OF LOUISIANA   v.   REGGIE    PATRICK   THIBODEAUX   (Parish   of
                  Terrebonne)

                  We find the procedure crafted by the court of appeal in Alexander
                  best safeguards a defendant’s rights to due process, access to
                  the courts, and to the assistance of counsel, while also
                  affording the trial court the opportunity to prevent confusion or
                  disruption of the trial process that is risked by the filing of
                  pro-se motions by a represented defendant. That is not to say,
                  however, that a hearing like that envisioned in Alexander will be
                  necessary every time a represented defendant files a pro-se
                  motion and defendant must in each instance necessarily be asked
                  to choose between continued representation of counsel or having
                  his pro-se motion considered. In many instances, counsel may
                  simply wish to adopt the pro-se filing or the trial court can
                  review the motion and assess its potential for confusion,
                  disruption, or reversible error. Regardless, however, the trial
                  court’s use of a stamp to reflexively deny all pro-se filings by
                  a   represented  defendant   is  inadequate   to   safeguard  the
                  defendant’s rights while ensuring the efficient and orderly
                  administration of criminal justice.    Therefore, we reverse the
                  court of appeal’s ruling and remand to the trial court for
                  further proceedings consistent with the views expressed herein.
                  The trial court is directed to determine whether defense counsel
                  wishes to adopt defendant’s pro-se motion to suppress and, if
                  counsel does not, evaluate its disruptive potential in light of
                  Melon before determining whether to conduct a hearing consistent
                  with Alexander.
                  REVERSED AND REMANDED.

                  Retired Judge Burrell Carter assigned as Justice ad hoc, sitting
                  for Weimer, J., recused.

                  WEIMER, J., recused.
                  HUGHES, J., concurs with reasons.
12/06/17


                          SUPREME COURT OF LOUISIANA

                                      No. 2017-KK-0705

                                  STATE OF LOUISIANA

                                            VERSUS

                          REGGIE PATRICK THIBODEAUX

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
               FIRST CIRCUIT, PARISH OF TERREBONNE


PER CURIAM∗

      Defendant, who was charged with several felony and misdemeanor drug

offenses as well as with arresting arrest, and who was represented by a public

defender, filed a pro-se motion to suppress the evidence. The trial court denied the

motion, stamping it, “Motion denied: Defendant herein is represented by counsel.”

Thereafter, defendant filed additional pro-se motions (i.e., a motion for production

of discovery documents and motion for hardship release or for bail reduction), each

of which received the same stamped denial by the trial court. Defendant pro-se

then applied to the court of appeal seeking review, inter alia, of the denial of his

motion to suppress. The court of appeal granted the application in part and directed

the trial court to conduct a hearing to afford defense counsel an opportunity to

adopt the motion. Citing State v. Melon, 95-2209 (La. 9/22/95), 660 So.2d 466, the

court of appeal found that “[l]ower courts are required to accept and consider pro

se filings from represented defendants in a preverdict context whenever doing so

will not lead to confusion at trial.” State v. Thibodeaux, 17-0232 (La. App. 1 Cir.

3/31/17) (unpub’d).



      ∗   Retired Judge Burrell Carter assigned as Justice ad hoc, sitting for Weimer, J., recused.
      In State v. Bodley, 394 So.2d 584, 593 (La. 1981), this Court found that a

defendant has no constitutional right to be both represented and representative:

      While an indigent defendant has a right to counsel as well as the
      opposite right to represent himself, he has no constitutional right to be
      both represented and representative. Faretta v. California, 422 U.S.
      806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); United States v. Daniels,
      572 F.2d 535 (5th Cir. 1978); United States v. Conder, 423 F.2d 904
      (6th Cir. 1970), U.S. cert. den. 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d
      267; United States v. O’Looney, 544 F.2d 385 (9th Cir. 1976), U.S.
      cert. den. 429 U.S. 1023, 97 S.Ct. 642, 50 L.Ed.2d 625. With regard
      to trial tactics, the federal courts have clearly stated that once a person
      is represented by counsel, he is bound by his attorney’s decisions at
      trial unless the attorney’s actions effectively deny the defendant his
      Sixth Amendment right to assistance of counsel. United States v.
      Daniels, supra; see also Estelle v. Williams, 425 U.S. 501, 96 S.Ct.
      1691, 48 L.Ed.2d 126 (1976). While this rule is an interpretation of a
      federal statute, it sets up the constitutional boundaries of a trial court’s
      discretion. Using the rule, federal courts have stated that a defendant
      has no right to enter his own personal objections to testimony after he
      has accepted the pre-trial assistance of counsel, Conder, supra; no
      fundamental right to require that a particular witness be called at trial,
      Daniels, supra; nor a right to object to his attorney’s decision to
      request a special verdict in a criminal case, O’Looney, supra.

Thereafter, although the court in Bodley largely focused on the importance of

avoiding confusion at trial, several circuit courts began to refuse to consider the

appellate pro-se filings of represented defendants on direct review. Therefore, this

court clarified in State v. Melon, 95-2209 (La. 9/22/95), 660 So.2d 466 (per

curiam), that “State v. Bodley, 394 So.2d 584 (La.1982), provides a rule designed

to preserve order and consistency at trial and does not purport to apply in a post-

verdict context.” The Melon court, however, exceeded the scope of the certified

question presented and also held that “the lower courts must also accept and

consider filings from represented defendants in a preverdict context whenever

doing so will not lead to confusion at trial.” This terse reference in Melon to

“confusion at trial” was not, however, intended to draw a bright line at trial or

require trial courts to consider all pro-se pretrial filings by represented defendants.

Instead, it was intended to curtail confusing or contradictory motions with the

                                           2
potential to disrupt the trial process or result later in reversible error.

       While Melon can be misconstrued and applied too broadly, the trial court

here erred in contrast by reflexively rejecting all pro-se filings by represented

defendants without reference to their disruptive potential. We find that State v.

Alexander, 07-1236 (La. App. 3 Cir. 4/9/08), 980 So.2d 877, strikes a delicate

balance. The represented defendant in Alexander filed a pro-se speedy trial motion,

which motion can present serious legal ramifications and complex considerations

few pro-se litigants are equipped to weigh carefully. 1 To balance Melon, its

underlying considerations, Bodley, and its holding, the court of appeal crafted the

following procedure:

       In order to address and alleviate the problem in this case, Defendant’s
       writ must be granted, made peremptory, and the trial court must first
       advise Defendant of his constitutional right to counsel, and then the
       trial court must conduct a contradictory hearing to determine: (1) if
       Defendant is capable of representing himself; and (2) if so, does
       Defendant desire to represent himself and forego representation by
       defense counsel. If the trial court finds that Defendant is not
       competent or does not have the capacity to represent himself, then he
       is not allowed to represent himself. If the trial court determines that

       1
           The court of appeal framed the problem as follows:

       Though we acknowledge the trial court’s rationale that allowing pre-trial
       conflicting motions between defense counsel and Defendant pro se would lead to
       confusion, Defendant has a constitutional right to have a speedy trial. U.S. Const.
       amend. VI; La. Const. art. 1, § 16. At present, Defendant is in limbo.

       This court is well aware of the numerous cases wherein defendants have filed pro
       se motions which have been denied by the trial court due to said defendants
       already being represented by court-appointed or retained counsel. When a writ is
       taken from these cases, the appellate court customarily grants the writ, makes it
       peremptory, and remands the case to the trial court for consideration and ruling in
       accordance with Melon, 660 So.2d 466, as was done in this case. However, that
       does not solve the problem.

       In Melon, our supreme court specifically relied on State v. Bodley, 394 So.2d 584
       (La.1981). In Bodley, our supreme court held: “While an indigent defendant has a
       right to counsel as well as the opposite right to represent himself, he has no
       constitutional right to be both represented and representative.” Id. at 593. In the
       case at bar, Defendant seeks to do just that. Defendant seeks to be both
       represented and representative. He has in place legal representation by defense
       counsel, yet he wants to represent himself, in part, as evidenced by the filing of
       his pro se motions.

Alexander, 07-1236, pp. 3–4, 980 So.2d at 880.
                                                 3
      Defendant knowingly, willingly, and intelligently chooses to represent
      himself, in effect waiving counsel, then he may do so and will not
      have the benefit of counsel. At that point, the trial court must advise
      Defendant of the consequences of foregoing legal representation and
      the dangers and disadvantages as a result thereby. See State v.
      Frisella, 03-1213 (La.App. 5 Cir. 2/23/04), 868 So.2d 871. Thereafter,
      the trial court must relieve counsel of any further representation of
      Defendant’s interest in this matter and then entertain Defendant’s pro
      se motions. This does not in any way restrict Defendant’s access to
      the court to address any conflict or problems with counsel in pre-trial
      and trial matters.

Alexander, 07-1236, pp. 4–5, 980 So.2d at 880.

      We find the procedure crafted by the court of appeal in Alexander best

safeguards a defendant’s rights to due process, access to the courts, and to the

assistance of counsel, while also affording the trial court the opportunity to prevent

confusion or disruption of the trial process that is risked by the filing of pro-se

motions by a represented defendant. That is not to say, however, that a hearing like

that envisioned in Alexander will be necessary every time a represented defendant

files a pro-se motion and defendant must in each instance necessarily be asked to

choose between continued representation of counsel or having his pro-se motion

considered. In many instances, counsel may simply wish to adopt the pro-se filing

or the trial court can review the motion and assess its potential for confusion,

disruption, or reversible error. Regardless, however, the trial court’s use of a stamp

to reflexively deny all pro-se filings by a represented defendant is inadequate to

safeguard the defendant’s rights while ensuring the efficient and orderly

administration of criminal justice.

      Therefore, we reverse the court of appeal’s ruling and remand to the trial

court for further proceedings consistent with the views expressed herein. The trial

court is directed to determine whether defense counsel wishes to adopt defendant’s

pro-se motion to suppress and, if counsel does not, evaluate its disruptive potential

in light of Melon before determining whether to conduct a hearing consistent with

                                          4
Alexander.

REVERSED AND REMANDED




                        5
 12/06/17




                      SUPREME COURT OF LOUISIANA


                                 No. 2017-KK-0705

                              STATE OF LOUISIANA

                                       VERSUS

                       REGGIE PATRICK THIBODEAUX


    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST
               CIRCUIT, PARISH OF TERREBONNE


Hughes, J. concurring.

      I write to emphasize this court's guidance that an Alexander hearing is not
required in response to every pro se filing. I believe that Bodley and Melon rightly
focus on confusion at trial. Forcing a defendant to give up the right to counsel
prematurely will not lead to an efficient administration of justice. Any good defense
lawyer worth his or her salt will file a motion for bond reduction, motion for
preliminary exam, and motion to suppress at the earliest opportunity. 60 days,
mentioned at oral argument, is too long. Motions to quash or for a speedy trial may
require a little more thought.
      When a defendant is forced to file motions because defense counsel has failed
to do so promptly, a little common sense and advocacy can go a long way. Read the
motion. Talk to the client. Give advice. If the client insists on doing it his or her own
way, so be it. The consequences are then on the client. A stamped denial and a public
defender litigating against his own client present embarrassing optics, and are not
worthy of the duty of court and counsel.
