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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 89 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 1st day of December, 2004, are as follows:

BY VICTORY, J.: 2004-KA-0846 STATE OF LOUISIANA v. SHANTELL DENSON (Parish of Orleans) (One Count of Armed Robbery and One Count of Attempted Armed Robbery) For the foregoing reasons, the judgment of the trial court, declaring article 648(B)(2) of the Louisiana Code of Criminal Procedure unconstitutional, is affirmed. AFFIRMED. JOHNSON, J., concurs. TRAYLOR, J., concurs.

12/01/04

SUPREME COURT OF LOUISIANA
No. 04-KA-0846 STATE OF LOUISIANA VERSUS SHANTELL DENSON ON APPEAL FROM THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, HONORABLE CALVIN JOHNSON, JUDGE

VICTORY, J. This case is on appeal to this Court pursuant to La. Const. art. V, sec. 5(D) from a finding of the trial court that Louisiana Code of Criminal Procedure art. 648(B)(2) is unconstitutional. After reviewing that record and the applicable law, we affirm the trial court's judgment and hold that La. C.Cr.P. art. 648(B)(2) violates the Due Process Clauses of the United States and Louisiana Constitutions. FACTS AND PROCEDURAL HISTORY On November 20, 1998, the defendant, Shantell Denson, and two other teenage girls, allegedly stole a purse from one victim while armed with metal crutches and a metal baton, and attempted to rob another victim in the same general vicinity while armed with the crutches and the baton. Defendant was charged with one count of armed robbery and one count of attempted armed robbery. At her arraignment on January 27, 1999, defendant entered a plea of not guilty and the trial court appointed the Tulane University Criminal Law Clinic as counsel. Defense counsel moved for a sanity commission, as it became clear that defendant might lack the mental capacity to proceed as a matter of La.C.Cr. P. art. 641.1 The trial court appointed a two-

La. C.Cr.P. art. 641 provides: "Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense." 1

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member sanity commission to examine the defendant pursuant to La. C.Cr. P. art. 6432 and 644,3 and the commission issued a report recommending that the court find the

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La. C.Cr.P. art. 643 provides:

The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed. Prior to the ordering of any such mental examination, the court shall appoint counsel to represent the defendant if he has not already retained counsel.
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La. C.Cr.P. art. 644 provides:

A. Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two and not more than three members who are licensed to practice medicine in Louisiana, who have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment, and who are qualified by training or experience in forensic evaluations. The court may appoint, in lieu of one physician, a clinical psychologist who is licensed to practice psychology in Louisiana, who has been engaged in the practice of clinical or counseling psychology for not less than three consecutive years immediately preceding the appointment, and who is qualified by training or experience in forensic evaluations. Every sanity commission shall have at least one psychiatrist as a member of the commission, unless one is not reasonably available, in which case, the commission shall have at least one clinical psychologist as a member of the commission. No more than one member of the sanity commission shall be the coroner or any of his deputies. B. The members of the sanity commission appointed to make the examination shall have free access to the defendant at all reasonable times. The court shall subpoena witnesses to attend the examination at the request of the defendant, the commission, or any member thereof. C. For the purpose of the mental examination, the court may order a defendant previously released on bail to appear for mental examinations and hearings in the same manner as other criminal proceedings. D. (1) The court, in any judicial district which enters into a cooperative endeavor agreement with the local mental health unit, in lieu of appointing a sanity commission as provided in Paragraph A, may appoint the local mental health unit to examine and report on the mental condition of the defendant. If the local mental health unit is ordered to conduct the examination, it shall form a clinical team, consisting of at least two but not more than three members, to conduct the examination. The clinical team shall be composed of one or more licensed physicians with at least three years experience in the study of psychiatry in an approved United States General Psychiatry Residency Program; if only one such licensed physician is a member of the clinical team, the remaining members of the clinical team may be composed of clinical psychologists, or licensed clinical social workers, who are qualified by training or experience in forensic evaluations.

(2)(a) With respect to all other provisions of the Code of Criminal Procedure in which the term "sanity commission" is designated, it shall also mean and include, for the exclusive purpose of this Article, a clinical team designated by the local health unit to conduct the examination of the defendant in accordance with this Paragraph. (b) "Local mental health unit" as used in this Paragraph shall mean a legislatively created Human Services Authority.

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defendant incompetent to stand trial on the basis of the defendant's mild to moderate mental retardation, unspecified psychosis, and mild paranoia. On May 10, 1999, the trial court entered the commission's report into the record and found the defendant incompetent to stand trial. In July of 1999, the trial court ordered that defendant be "detained by the Office for Citizens with Developmental Disabilities in a group home in Violet, Louisiana," until the court "determines the date of her release or until she attains the maximum age for residency in said home." Defendant failed to appear for a status hearing on April 10, 2001, resulting in her arrest on June 26, 2001.4 On July 3, 2001, pursuant to La. C.Cr.P. arts. 647 and 648, the trial court appointed two forensic psychiatrists to re-evaluate defendant and determine whether she could be restored to competence. The court found defendant unrestorably incompetent to stand trial and on November 13, 2001, placed defendant on supervised probation for a term of "five years, which may be extended each year after the completion of the fifth year period by a contradictory hearing." The probation order subjected defendant to the supervision of the Louisiana Department of Public Safety and Corrections, Office of Probation and Parole (the "DOC"), and to monitoring by the Department of Health and Hospitals, Community Forensic Services Division. Among the 11 restrictions and conditions of defendant's probation was the requirement that she live in the Violet Community Group Home under the supervision of a criminal probation officer. On March 27, 2003, the court revoked defendant's probation5 based upon, among other things, her arrest on a misdemeanor charge and ordered that she be

She was incarcerated at the Concheta Women and Juvenile Facility until November 13, 2001 because there was no bed available at any group home. Beginning in October of 2002, various incidents caused defendant to be charged with violating the terms of her probation and being placed in jail. She was also briefly placed in jail on an unrelated outstanding misdemeanor citation in another parish. 3
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evaluated at the Feliciana Forensic Facility in Jackson, Louisiana.6 Defendant then filed a petition for habeas corpus, alleging that allowing a trial court to impose probation upon her, an unrestorably incompetent defendant, violated her right to due process, and thus the statute authorizing such probation was unconstitutional. On September 30, 2003, the court clarified that "the probation status in this matter is under article 648(B)(2)" and that defendant "was placed on a probationary status, [but] she should have been placed on a probationary status under Article 648 Code of Criminal Procedure Article 648(B)(2)." The trial judge declined to rule on the petition for habeas corpus until such time as the forensic psychiatrists re-evaluated whether defendant was "dangerous." On January 29, 2004, forensic psychiatrists conducted a psychological assessment of defendant and testified that she was not a danger to herself or others. Relying on this testimony, the trial court found that she was not dangerous to herself or others. After a hearing on February 18, 2004, the trial court granted defendant's writ of habeas corpus and found La. C.Cr.P. art. 648(B)(2) unconstitutional, and ordered defendant's immediate release from all state supervision. The instant state appeal followed. See La. Const. Art. 5,

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