Judgment rendered September 22, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,028-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JAMES DANIEL JOHNSON Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 333,389
Honorable Charles G. Tutt, Judge
STEPHEN A. GLASSELL Counsel for Appellant
JEFFREY M. LANDRY Counsel for Appellee Attorney General
MADELEINE SLAUGHTER-YOUNG CHRISTOPHER N. WALTERS GRANT L. WILLIS Assistant Attorneys General
Before PITMAN, GARRETT, and THOMPSON, JJ.
THOMPSON, J., concurs with written reasons. PITMAN, J.
A jury found Defendant James Daniel Johnson guilty as charged of
molestation of a juvenile, and the trial court sentenced him to five years at
hard labor. Defendant appeals his conviction and sentence. For the
following reasons, we affirm Defendant’s conviction and sentence.
FACTS
On September 14, 2015, the state filed a bill of information charging
Defendant with one count of molestation of a juvenile with control or
supervision, in violation of La. R.S. 14:81.2(A) and (C). It alleged that on or
about April 17, 2003, Defendant, whose date of birth is November 15, 1959,
committed lewd and lascivious acts upon or in the presence of S.M., whose
date of birth is March 19, 1990. Following the recusal of the Caddo Parish
District Attorney’s Office, the state, through the attorney general’s office,
filed an amended bill of information, alleging that the molestation occurred
on or about April 16, 2003.
On September 18, 2015, the state filed a motion to disqualify Paul
Carmouche as defense counsel. It argued that when the alleged molestation
occurred in April 2003, Carmouche was the Caddo Parish District Attorney;
and, at that time, the district attorney’s office rejected S.M.’s claims for
insufficient evidence. The state noted that in 2015, the district attorney’s
office charged Defendant with the same offense that, under Carmouche, it
rejected in 2003.
Defendant filed a response and requested that the trial court deny the
motion. He stated that there was no conflict because Carmouche never
represented S.M. or her family and because S.M. was never a client of the
district attorney’s office. He explained that the district attorney represents the interests of the State of Louisiana, not the victim in the criminal action.
He argued that there was no evidence that Carmouche had contact with S.M.
or had access to any evidence brought forth in 2003.
A hearing was held on September 28, 2015, and the trial court
disqualified Carmouche from representing Defendant.
A jury trial began on December 3, 2019. Christine Philipbar, S.M.’s
mother, testified that she and Defendant married when S.M. was six years
old. In April 2003, she, S.M. and Defendant lived together; and, due to her
work schedule as a nurse, Defendant watched S.M. for a few hours during
the day. On April 16, 2003, Defendant picked up 13-year-old S.M. from
school while Philipbar was at work. When she returned home, S.M. was
outside waiting for her and was crying. S.M. told her that Defendant
inappropriately touched her “privates” while she was sitting on the couch.
S.M. told her that Defendant thought she was asleep and then lifted her shirt
and put his hands and mouth on her breasts and vagina. After taking S.M. to
a family member’s house, Philipbar confronted Defendant. She then
brought S.M. home, and they talked to Defendant. Philipbar testified that
Defendant did not “come right out and say” that he inappropriately touched
S.M., but he did say that S.M. “did the right thing by telling [her] because it
would have gotten worse.” Philipbar, who at the time was in training to
become a sexual assault nurse examiner, stated that she did not examine
S.M., take her to the emergency room or contact law enforcement. She
allowed S.M. to shower because she felt dirty. The next day she took S.M.
to see Shelly Booker, a counselor with whom S.M. had been meeting, and
Booker contacted Child Protective Services. A few weeks after the alleged
molestation, S.M. was interviewed at the Gingerbread House and was 2 examined at the Cara Center. Philipbar subsequently divorced Defendant.
She stated that the district attorney’s office did not charge Defendant in 2003
and that this case was reopened in 2014 when he moved back to the area
from California. On cross-examination, Philipbar testified that S.M. began
attending counseling in June 2001 at the age of 11. On an intake form from
S.M.’s first appointment, Philipbar wrote that S.M. had a history of
“frequent lying, from constant white lies to big lies”; had “anger issues, total
loss of control in school”; and was “moody and dramatic, overreacts to
minor situations.”
Detective Dennis Pratt of the Shreveport Police Department testified
that in April 2003, he supervised this investigation. He stated that the
detective assigned to the case set up S.M.’s interview with the Gingerbread
House and physical examination with the Cara Center. The report from the
Cara Center stated that S.M.’s hymen was intact, there was no evidence of
physical abuse and S.M. did not spontaneously disclose abuse during the
examination. Det. Pratt later interviewed a second possible victim, Wendy
Hartley, who alleged that when she was a minor, Defendant gave her an
extra-long hug, tried to kiss her on the lips and rubbed her stomach just
below her breasts.
Wendy Westerman testified that in 2003 she was employed as a
forensic interviewer at the Gingerbread House and interviewed S.M. on
May 13, 2003. A video of the interview was played for the jury, in which
S.M. stated that on the afternoon of April 16, 2003, she was home with
Defendant while her mother was at work. She was asleep in the living room
and woke up to Defendant with his mouth on her vagina. She explained that
he pulled her shorts and underwear to the side. She stated that he also 3 sucked on her breasts and put her hand on his penis on the outside of his
clothing. During these actions, she kept her eyes closed to pretend she was
sleeping. He then left the room to wash his hands, and when he came back
in the room, he put his fingers in her vagina. When her mother got home, she
took her to her grandmother’s house. Her mother then brought her home
and they talked to Defendant about what happened, and Defendant said he
was sorry. She stated that this was not the first time Defendant touched her
and that in the past he kissed her on the mouth, rubbed her stomach and
touched her around her breasts and under her underwear.
Detective Mike Jones of the Shreveport Police Department testified
that in 2014, he was assigned to this investigation. He interviewed S.M.;
Defendant’s first wife, Candie Moore; and Wendy Hartley. He attempted to
interview Moore’s sister, Suzan Maxwell, but she was not willing to speak
to him. In his interview of S.M., she told him that Defendant went to her
bedroom and touched her breasts and her vagina and that she felt weird
when he hugged her. She also told him that on a trip to Colorado, she shared
a bed with Defendant and her mother, with her mother sleeping in the
middle, and Defendant licked her breasts during the night. In his interview
of Hartley, she told him that when she was 11 or 12 years old, she partnered
with Defendant at a ski club and later babysat his sons. She stated that
Defendant gave her two-armed hugs, tried kissing her on the cheek and then
the mouth, put his hand on her knee and then moved his hand up her leg
toward her inner thigh and put his hand on her vagina outside her clothing.
In his interview of Moore, she told him that she never saw any inappropriate
behavior between Defendant and Hartley or Defendant and Maxwell.
Det. Jones prepared an arrest warrant for molestation of a juvenile, and 4 Defendant was arrested in California. He noted that the arrest warrant was
not based on any behavior related to Hartley.
S.M. testified that in April 2003 she was 13 years old and lived with
her mother and Defendant. She noted incidents regarding Defendant that
progressed up to April 2003 when she told her mother. On a trip to
Colorado, she shared a hotel room and bed with her mother and Defendant.
Her mother slept between her and Defendant; but, during the night, she
woke up to Defendant sucking on her breast while her mother slept. She
also recalled the April 16, 2003 incident and noted that what she told the
Gingerbread House interviewer was accurate. She added that this was the
first time Defendant used his mouth on her vagina. She testified that her
mother’s testimony regarding the events of April 16, 2003, was accurate.
Regarding the physical examination at the Cara Center, S.M. stated that no
one asked her what happened with Defendant and that she did not offer any
information because she was scared. Regarding seeing a counselor, S.M.
stated that she did not recall telling lies, but that she was acting out due to
the abuse she was experiencing. She recalled being upset in 2003 when the
district attorney’s office did not charge Defendant. She testified that in
2014, she saw Defendant on Facebook in a picture with his granddaughter,
who appeared to be around the age of five. She contacted the child’s mother
out of concern for the child’s safety with Defendant. She testified that she
was unaware of Defendant’s actions with Hartley and Maxwell and that she
learned of their histories from the prosecutor.
Wendy Hartley testified that she first met Defendant at a water ski
club when she was around the age of ten, and they partnered to perform
acrobatic skills. She also babysat for Defendant’s two sons. She stated that 5 when Defendant drove her home from babysitting, he made her
uncomfortable when he hugged her and kissed her on the cheek or lips. She
stated that on occasion he put his hands on her breasts or between her legs
and that he also put his hands on her vagina on the outside of her clothing.
She estimated that she was 15 or 16 when these actions occurred. She noted
that she did not tell her parents about Defendant’s actions. She stated that
she was first contacted by an investigator regarding Defendant in 2003 or
2004 when she was 35, and she gave an interview. She was again contacted
in 2014 and gave an interview to Det. Jones in which she provided more
details about Defendant’s actions than she did in her first interview. She
stated that in her early 30s when she was going through a divorce, she stayed
with Defendant and Philipbar because she was afraid of her husband.
Suzan Maxwell testified she was 13 or 14 years old when her sister
married Defendant in 1974 or 1975. She stated that she was alone with
Defendant on occasion and that he did things that made her uncomfortable,
including wrestling with her on the floor, kissing her on the lips, pressing
himself against her and touching her breasts. She noted that this behavior
went on for several years, and she did not tell anyone about it. She testified
that when Det. Jones came to her business to speak to her, she did not speak
to him and that she did not want to testify at trial because of how it affected
her family.
Candie Moore testified that she began dating Defendant when she was
18, they married when she was 19, they had two sons and they divorced after
18 years of marriage. She stated that her sister never complained about
anything Defendant did to her or in her presence and that Hartley never told
her that she was uncomfortable with Defendant. She testified that she 6 thought Defendant’s relationship with Hartley was unusual as he was an
adult giving her, a 12- or 13-year-old, so much attention, but she never saw
any inappropriate behavior.
The state rested its case, and the defense called its witness. Defendant
testified that he has never had any sexual contact with S.M. or anyone
underage. He stated that he and Maxwell roughhoused when she was 12 or
13 and he was 16 or 17, but there was nothing sexual about it. He stated that
if he kissed her, it was a peck, not an open-mouthed kiss, and it would not
have been a regular occurrence. He testified that he met Hartley when she
was 10 years old and he was 22 and they were partnered in water skiing
doubles. He stated that he did not touch Hartley’s breasts or vagina when
she was a child, but stated he did hug her and gave her an occasional peck on
the cheek. Regarding the allegations made by S.M., he recalled being
confronted by Philipbar and denying the actions. He denied touching S.M.’s
breasts, touching her vagina, licking her vagina and placing her hand on his
penis. Regarding the trip to Colorado, he stated that he did sleep in a bed
with Philipbar and S.M., but he denied touching S.M.’s breasts while she
slept.
On December 4, 2019, the jury found Defendant guilty as charged of
molestation of a juvenile. On January 3, 2020, Defendant filed a motion for
new trial and a motion for post-verdict judgment of acquittal. The trial court
denied both motions.
A sentencing hearing was held on January 9, 2020. The trial court
sentenced Defendant to five years at hard labor. On February 6, 2020,
Defendant file a motion for reconsideration of sentence, which the trial court
denied. 7 Defendant appeals his conviction and sentence.
DISCUSSION
Disqualification of Defense Counsel
In his first assignment of error, Defendant argues that the trial court
erred in granting the state’s motion to disqualify Carmouche as defense
counsel. He contends that a defendant has the constitutional right to retain
the counsel of his choice and that the state did not present sufficient
evidence to support the disqualification of his choice of counsel. He
contends that even though Carmouche was the district attorney in 2003,
there was no evidence that he had personal or substantial involvement in this
case that would impute a conflict of interest and warrant his disqualification.
The state argues that the trial court correctly disqualified Carmouche
as defense counsel. It contends that Carmouche had complete authority,
control and supervision of the district attorney’s office in 2003 when it
decided not to prosecute Defendant. It states that Defendant would have had
an unfair advantage if, at trial, Carmouche stated that the district attorney’s
office under his leadership declined to prosecute due to insufficient
evidence.
The customary remedy for an alleged conflict of interest is
disqualification of the attorney with the conflict. Walker v. State, Dep’t of
Transp. & Dev., 01-2078 (La. 5/14/02), 817 So. 2d 57. In determining
whether a conflict exists, courts often look to the Louisiana Rules of
Professional Conduct. Id. The ethical rules that regulate attorneys’ law
practices have the force and effect of substantive law. Id. The burden of
proving disqualification of an attorney rests on the party making the
challenge. Id. 8 Rule 1.11(a)(2) of the Louisiana Rules of Professional Conduct states:
[A] lawyer who has formerly served as a public officer or employee of the government . . . shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
Rule 1.11(e) explains that the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.
La. C. Cr. P. art. 61 sets forth the powers and duties of the district
attorney and states:
Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.
By operation of his powers and duties as district attorney, Carmouche
participated personally and substantially in every criminal prosecution in his
district, including the 2003 allegations against Defendant. Therefore, the
trial court did not err in disqualifying him as defense counsel.
We note that Defendant did not seek review of the trial court’s
disqualification of Carmouche at the time of the ruling in September 2015.
Further, after Carmouche’s disqualification, Defendant hired a number of
attorneys of his choice, including Peter Flowers, Marty Stroud, Katherine E.
Gilmer and Sarah R. Giglio during district court proceedings and Stephen A.
Glassell on appeal.
Accordingly, this assignment of error lacks merit.
9 Sufficiency of the Evidence
In his second assignment of error, Defendant argues that the state
presented insufficient evidence at trial to sustain a guilty verdict. He notes
that the district attorney’s office reviewed the evidence in 2003 and 2004
and determined there was insufficient evidence to charge Defendant. He
argues that Philipbar’s actions immediately after S.M. reported the alleged
molestation, i.e., allowing S.M. to shower, resulted in destruction of
evidence that may have been favorable to him. He contends that as a nurse
who was in training to be a sexual assault nurse examiner, she should have
followed her training to preserve DNA evidence. He argues that this is a
possible Brady violation.
The state argues that it presented sufficient evidence at trial to support
Defendant’s conviction for molestation of a juvenile. It states that the jury
found the state’s witnesses to be more credible than Defendant. It contends
that the testimony of the state’s witnesses shows Defendant’s disposition and
pattern of behavior toward juvenile females.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the case in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,
603 So. 2d 731 (La. 1992). See also La. C. Cr. P. art. 821. This standard
does not provide an appellate court with a vehicle for substituting its
appreciation of the evidence for that of the fact finder. State v. Pigford,
05-0477 (La. 2/22/06), 922 So. 2d 517. The trier of fact makes credibility
determinations and may accept or reject the testimony of any witness. State 10 v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S.
840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). The appellate court does not
assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.
10/16/95), 661 So. 2d 442. A reviewing court affords great deference to a
trial court’s decision to accept or reject the testimony of a witness in whole
or in part. State v. Gilliam, 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d
508.
In the absence of internal contradiction or irreconcilable conflict with
the physical evidence, one witness’s testimony, if believed by the trier of
fact, is sufficient to support a factual conclusion. State v. Elkins, 48,972 (La.
App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153
So. 3d 438. This is equally applicable to the testimony of victims of sexual
assault. Id. Such testimony alone is sufficient even when the state does not
introduce medical, scientific or physical evidence to prove the commission
of the offense. Id.
At the time of the commission of the alleged act of molestation, La.
R.S. 14:81.2(A) stated:
Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.
Viewing the evidence in the light most favorable to the prosecution,
the state presented sufficient evidence at trial for a reasonable jury to convict
Defendant of molestation of a juvenile when Defendant had a position of
11 control or supervision over the juvenile. Defendant, whose date of birth is
November 15, 1959, was over the age of 17 on April 16, 2003; S.M., whose
date of birth is March 19, 1990, was under the age of 17; and there was an
age difference of greater than two years between them. As S.M.’s stepfather
who was at home with her while her mother was at work, Defendant was in
a position of control or supervision over S.M.
At trial, the jury heard S.M.’s testimony and viewed the video of her
interview at the Gingerbread House. S.M. stated that Defendant put his
mouth on her vagina, sucked on her breasts, put her hand on his penis and
put his fingers in her vagina. A rational trier of fact could find that these
actions by Defendant were lewd and lascivious acts performed with the
intention of arousing or gratifying his sexual desires. The sole testimony of
S.M. was sufficient to convict Defendant. The jury clearly chose to accept
S.M.’s testimony as more credible than Defendant’s. It was within the
discretion of the trier of fact to make such a credibility determination, and
this court will not disturb this determination on appeal.
Further, Defendant’s allegation of a Brady violation is misplaced. As
explained by the United States Supreme Court in Strickler v. Greene, 527
U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999):
[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called “Brady material”—although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
12 See also State v. Brown, 15-2001 (La. 2/19/16), 184 So. 3d 1265. In the case
sub judice, Defendant has not alleged that the state failed to disclose
exculpatory evidence. Instead, he argues that a witness failed to preserve
evidence, which is not a Brady violation.
Excessive Sentence
In his third assignment of error, Defendant argues that the trial court
imposed an excessive sentence in failing to adequately consider mitigating
factors, including his age, work history, lack of a criminal history and the
length of time between the incident and conviction.
The state argues that Defendant’s sentence is not excessive. It
contends that the trial court detailed its decision, including the aggravating
and mitigating circumstances it considered.
Appellate review of sentences for excessiveness is a two-pronged
inquiry. First, the appellate court examines the record to determine if the
trial court used the criteria set forth in La. C. Cr. P. art. 894.1. The trial
court is not required to list every aggravating or mitigating circumstance so
long as the record reflects adequate consideration of the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Davis, 52,453
(La. App. 2 Cir. 2/27/19), 265 So. 3d 1194; State v. Boehm, 51,229 (La.
App. 2 Cir. 4/5/17), 217 So. 3d 596. The court shall state for the record the
considerations taken into account and the factual basis therefor in imposing
sentence. La. C. Cr. P. art. 894.1(C). The goal of La. C. Cr. P. art. 894.1 is
an articulation of the factual basis for the sentence, not simply a mechanical
compliance with its provisions. Davis, supra. Where the record clearly
shows an adequate factual basis for the sentence, resentencing is 13 unnecessary even where there has not been full compliance with La. C. Cr.
P. art. 894.1. Id. The defendant’s personal history (age, family ties, marital
status, health, employment record), prior criminal record, seriousness of the
offense and the likelihood of rehabilitation are important elements to
consider. State v. Jones, 398 So. 2d 1049 (La. 1981); Davis, supra; Boehm,
supra. There is no requirement that specific matters be given any particular
weight at sentencing. Davis, supra; Boehm, supra.
Second, a sentence violates La. Const. art. I, § 20, if it is grossly out
of proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); Davis, supra. A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. State v. Weaver,
01-0467 (La. 1/15/02), 805 So. 2d 166; Boehm, supra.
A trial court has wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of that discretion, a sentence
will not be set aside as excessive. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. Davis, supra; Boehm, supra.
At the time of the commission of the alleged act of molestation, La.
R.S. 14:81.2 stated:
B. Whoever commits the crime of molestation of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
14 C. Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.
As to the first prong of the excessive-sentence test, the trial court
complied with La. C. Cr. P. art. 894.1. At the sentencing hearing, it stated
that it reviewed Defendant’s sentencing memorandum, which included
information about his personal history and letters from his family and
friends. The trial court also considered the factors listed in La. C. Cr. P.
art. 894.1(A) to determine if it should impose a sentence of imprisonment
and found that all three circumstances were applicable. It then examined the
aggravating and mitigating circumstances set forth in La. C. Cr. P.
art. 894.1(B) and determined that the following factors applied to
Defendant’s case: 1) that Defendant’s conduct during the commission of the
offense manifested deliberate cruelty to the victim; 2) that Defendant knew
or should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to extreme youth; 3) that
Defendant used his position or status to facilitate the commission of the
offense; 4) and that the offense resulted in a significant permanent injury to
the victim. The trial court determined that none of the mitigating factors
applied in this case.
As to the second prong of the excessive-sentence test, the sentence of
five years at hard labor is not constitutionally excessive. At the sentencing
hearing, the trial court informed Defendant that the sentencing range was
one to ten years, which suggests the trial court relied on La. R.S. 14:81.2(B).
15 As the jury convicted Defendant of molestation of a juvenile when the
defendant had control or supervision, the trial court should have sentenced
Defendant pursuant to La. R.S. 14:81.2(C), which has a sentencing range of
not less than one, nor more than 15 years. Although the trial court did not
state the correct sentencing range on the record, nothing in the record
suggests that the trial court intended to impose a lenient sentence, and the
sentence imposed was within the correct sentencing range. See State v.
Preston, 47,273 (La. App. 2 Cir. 8/8/12), 103 So. 3d 525. Considering
Defendant’s molestation of S.M., the sentence imposed by the trial court
does not shock the sense of justice, nor is it grossly disproportionate to the
severity of the offense. The trial court did not abuse its discretion in
sentencing Defendant.
CONCLUSION
For the forgoing reasons, we affirm the conviction and sentence of
Defendant James Daniel Johnson.
16 THOMPSON, J., concurring.
I concur in affirming the conviction of the defendant on the evidence
presented and the resulting sentence, and I reach the same result as the
majority in denying the relief sought for disqualification of defendant’s
counsel but on different grounds.
I am prompted to write because although the current matter presents
an uncommon set of facts, there still exists a likelihood a similar situation
may occur, which could have significant impact on the victims of crime and
unnecessarily cost taxpayers for multiple trials. Here, the defendant
previously had criminal charges reviewed and screened out by the office of
district attorney. Over a decade later and under a different administration,
the charges were reconsidered, and the defendant was charged based on the
same set of facts from years prior. The defendant sought to hire the former
district attorney to represent him against the charges, and the State objected
and sought to have the former district attorney disqualified.
After a hearing, the trial court granted the disqualification, and a
timely objection was noted on the record, preserving that issue for
supervisory review. Four years later, the case proceeded to trial, and the
defendant was convicted by a unanimous jury. The defendant appealed his
conviction and listed the order by the district court disqualifying the prior
district attorney as his defense attorney among the assignments of error.
The majority concluded that there were sufficient grounds to
disqualify the former district attorney, considering the broad authority over
that office pursuant to La. C. Cr. P. art 61. I disagree. The general rule of
statutory construction provides for specific statutes to control over a broader,
more general statute on the same subject. When considering the issue of 1 recusal of a former government officer, La. Rules of Prof’l Conduct R. 1.11
(“Rule 1.11”), entitled Special Conflicts of Interest for Former and Current
Government Officers and Employees, is controlling. As opposed to the
broad authority conferred to a district attorney that could be exercised
hypothetically, the specific inquiry provided by Rule 1.11 that determines if
recusal is necessary is whether the former government officer actually
“participated personally and substantially as a public officer” in the matter.
At the recusal hearing in this matter, there was absolutely no evidence
presented to support any argument that the former district attorney had
personally participated at any level, and certainly not substantially, in the
screening of the case during his time in office. I suggest that recusal is
specific to the individual and not subject to hypothetical authority. The
threshold for recusal in this matter was not met and reversal of the trial
court’s order would have been proper, had supervisory review been sought
prior to trial.
It is also the opinion of this writer that even though timely preserved,
an objection to disqualification of an attorney should be considered
abandoned if the defendant proceeds to trial without seeking supervisory
review. The trial court granted the disqualification in this matter on
September 28, 2015, and trial did not occur until over four years later, on
December 3, 2019. The issue of disqualification was allowed to remain
dormant by defendant for years before the trial occurred. The defendant
only now asserts the issue in an effort to have his conviction vacated.
Justice is not best served by such a procedural policy.
Objections to rulings of the trial court provide it with notice of an
alleged irregularity and with the opportunity to make a proper ruling to 2 correct any claimed prejudice against the party alleging the error. State v.
Browning, 06-929 (La. App. 5 Cir. 4/11/07), 956 So. 2d 65, 72. The alleged
prejudice to the defendant would be being forced to proceed to trial without
his attorney of choice. If he elects to do just that and not exhaust
supervisory review on the issue, then there is no longer an appropriate
remedy afforded to him. Seeking supervisory review before the trial
provides the opportunity to correct the claimed prejudice actually suffered.
If the disqualification is affirmed after exhausting supervisory review, then
the defendant could at least plan accordingly with new counsel, as that
matter is resolved. Reserving this issue as an assignment of error on appeal
after the trial creates an unnecessary risk for significant potential harm and
expense.
There has been no allegation by the defendant that he proceeded to
trial without competent legal representation, and he has not asserted any
ineffective assistance of counsel claims in connection with this matter.
Defendant seeks a new trial without any certainty that the attorney he
selected beforehand is available or interested. The court lacks the authority
to require that a specific attorney represent the defendant. There could be
instances in similar situations where the attorney has retired, has limited
their practice, can no longer be afforded by the defendant, has become
disabled, or even died. There is no remedy available to the court should the
defendant prevail in his endeavors, as there can be no mandate requiring the
former district attorney in this matter to represent the defendant at a new trial
in the future.
The existing statutory authority and jurisprudence does not appear to
clearly place any requirement that an objection to a recusal ruling be 3 resolved before trial. Likewise, there appears to be no prohibition against
determining the right has been abandoned. In these limited factual
circumstances, I suggest that when a defendant proceeds to trial without
having sought supervisory review of the order granting the disqualification
of their attorney of choice, they should be considered to have abandoned
their ability to raise the issue on appeal.
Reaching the same ultimate conclusion as the majority, I concur in all
other regards for the reasons set forth in the opinion.
AFFIRMED.