123 So. 3d 831
La. Ct. App.2013Background
- Marzett was charged by information with possession of cocaine (La. R.S. 40:967 C) and found guilty by a six-person jury on 13 March 2012.
- Prior to trial, the trial court denied a motion to suppress; defense sought supervisory review but was denied.
- At trial, NOPD officers testified to a hand-to-hand narcotics transaction, concealed evidence in a vehicle door pocket, and methamphetamine/cocaine-related paraphernalia were observed; the prosecution’s criminalist testing indicated cocaine.
- Marzett filed a pro se motion for a new trial on 13 September 2012 asserting denial of his right to testify and ineffective assistance of counsel, among other grounds; he later asserted end-of-justice grounds under La.C.Cr.P. art. 851(5).
- During the 851(5) hearing, Marzett attempted to waive attorney-client privilege to allow counsel to testify about trial strategy but did not waive; he also failed to proffer specific facts or affidavits from trial witnesses.
- The trial court denied the motion for a new trial; the appellate court affirmed the conviction and sentence, and supervisory review was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion denying a new trial under La.C.Cr.P. art. 851(5). | Marzett argues ends of justice warrant a new trial due to trial weaknesses and counsel strategy. | State contends the trial court did not abuse its discretion; trial strategy decisions are protected. | No palpable abuse; ends of justice not shown to warrant a new trial. |
| Whether Marzett was denied his right to testify and whether counsel deprived him of testifying or failed to subpoena witnesses. | Marzett contends he was prevented from testifying and that witnesses were not subpoenaed, violating his rights. | State maintains no denial of right to testify; any decisions were trial strategy; no proof of ineffective assistance. | Defendant failed to show the right to testify was violated or that counsel’s actions prejudiced him under Strickland. |
Key Cases Cited
- State v. Guillory, 45 So.3d 612 (La. 2010) (review of 851(5) ends-of-justice decisions is abuse-of-discretion)
- State v. Randolph, 275 So.2d 174 (La.1973) (abuse-of-discretion standard for new-trial decisions)
- State v. West, 134 So.243 (La. 1931) (motion for new trial to serve ends of justice reviewed for abuse)
- State v. Truax, 62 So.2d 643 (La.1952) (limits on appellate interference with 851(5) rulings)
- State v. D’Ingianni, 47 So.2d 731 (La.1950) (historical basis for new-trial discretion)
- State v. Hampton, 818 So.2d 720 (La.2002) (right to testify and presumptions about waiver under Passos-Paternina)
- Passos-Paternina v. United States, 201 F.3d 428 (1st Cir. 1999) (controls presumptions about defendant's right to testify)
- Johnson v. Cain, 713 F.3d 227 (5th Cir. 2013) (confirming limitations on right-to-testify analysis)