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Supreme Court of Louisiana.

STATE of Louisiana v. Terryance RUSSELL.

No. 2004-KP-1622.

    Decided: February 25, 2005

Rehearing granted.   In his application for rehearing, respondent included documents indicating that he had filed timely for post-conviction relief in the district court.   Our order granting the state's application and reinstating respondent's convictions and sentences on the basis of the time limits imposed by La.C.Cr.P. art. 930.8 is therefore recalled.   However, on the merits, we grant the state's application, vacate the rulings below, and reinstate respondent's convictions and sentence.   Even assuming that defense counsel erred in failing to lay a proper foundation for admitting respondent's medical records, exclusion of the evidence at trial does not undermine confidence in the verdicts returned by the jury.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Although documenting respondent's prior suicide attempts and his treatment for anti-social personality disorder, the records do not reflect a diagnosis of a mental disease or disorder that may have rendered respondent incapable of determining right from wrong at the time of the criminal episode, the test of legal insanity in Louisiana, R.S. 14:14, and no other  mental state sufficed to diminish respondent's culpability for his crimes.  State v. Nelson, 459 So.2d 510, 516 (La.1984);  State v. Lecompte, 371 So.2d 239, 243-44 (La.1979).   Respondent therefore fails to show that any error by counsel “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Strickland, 466 U.S. at 686, 104 S.Ct. at 2064.

The record contains proof that respondent timely filed his application for post-conviction relief in the district court and met the requirements of La.C.Cr.P. art. 930.8.   We know now that we erred in granting the State's application on the basis of timeliness.

The District court conducted an evidentiary hearing and concluded that respondent was denied effective assistance of counsel.   At the evidentiary hearing, relator called Dane Ciolino, an attorney who testified as an expert on prevailing professional norms in the area of criminal representation.   St.App. Ex. 10.   Based on his review of the trial record and relator's mental health records, Mr. Ciolino found that counsel made no effort to subpoena doctors in support of relator's insanity defense.   Mr. Ciolino also pointed to counsel's unfamiliarity with the legal rules relating to the admission of relator's mental health records as an example of counsel's incompetence.   In Mr. Ciolino's view, counsel's ignorance of the evidentiary rules combined with her failure to request a continuance to have the records properly introduced into evidence fell below the standard of care expected of reasonably competent counsel.

I would affirm the decisions of the District Judge and Court of Appeal, which set aside respondent's convictions and sentences.   At the very least, this court should docket the case for oral argument before summarily reversing on the merits.


CALOGERO, C.J., would grant and docket.

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