Opinion
NUMBER 2016 KA 1674
06-13-2017
STATE OF LOUISIANA v. THERONE A. MAGEE
Warren L. Montgomery, D.A. Matthew Caplan, A.D.A. Covington, LA Attorneys for Appellant State of Louisiana David F. Gremillion Rachel M. Yazbeck New Orleans, LA Attorneys for Appellee Defendant - Therone Anthony Magee
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 572372 Honorable Allison H. Penzato, Judge Warren L. Montgomery, D.A.
Matthew Caplan, A.D.A.
Covington, LA Attorneys for Appellant
State of Louisiana David F. Gremillion
Rachel M. Yazbeck
New Orleans, LA Attorneys for Appellee
Defendant - Therone Anthony Magee BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
Defendant, Therone A. Magee, was charged by bill of information with resisting an officer with force or violence, a violation of La. R.S. 14:108.2. He pled not guilty. Defendant filed a motion to recuse the 22nd JDC District Attorney's Office ("district attorney's office"), alleging that the entire office had a personal interest in any criminal cases against him as a result of an ongoing federal civil lawsuit defendant has filed against the district attorney's office. Following a hearing, the trial court granted defendant's motion to recuse. The state now appeals the ruling of the trial court granting the motion to recuse. See La. C.Cr. P. art 912(B)(6). For the following reasons, we vacate the ruling of the trial court and remand for further proceedings.
MOTION TO RECUSE
In its sole assignment of error, the state contends that the trial court erred in granting defendant's motion to recuse the district attorney's office. Particularly, the state contends that the motion to recuse was granted solely upon an allegation, rather than any proof, of personal interest.
Generally, the district attorney has charge of every criminal prosecution by the state in his district. La. Const. art. V, § 26. See also La. C.Cr.P. art. 61. The district attorney determines whom, when, and how he shall prosecute. La. C.Cr.P. art. 61. Nonetheless, it has long been the rule in Louisiana that the district attorney, as a quasi-judicial officer, must be fair and impartial, and animated by a sense of public duty rather than stimulated by a hope of private gain. See State v. Tate, 185 La. 1006, 1019, 171 So. 108, 112 (1936). Thus, in pertinent part, La. C.Cr.P. art. 680(1) provides that a district attorney shall be recused when he has a personal interest in the cause which is in conflict with fair and impartial administration of justice.
In a motion to recuse the district attorney pursuant to La. C.Cr.P. art. 680, the defendant bears the burden of showing by a preponderance of the evidence that the district attorney has a personal interest in the cause which is in conflict with the fair and impartial administration of justice. State v. King, 2006-2383 (La. 4/27/07), 956 So.2d 562, 565. Louisiana Code of Criminal Procedure article 680(1) embodies a policy requiring a district attorney's recusal when the situation presented raises questions as to whether the district attorney's ability to fairly and impartially perform his duties has been impaired, even unconsciously and despite his earnest assertions to the contrary. This provision does not envision a subjective determination as to whether the district attorney would, in fact, be unfair. Rather, it employs an objective decision as to whether a reasonable person would believe the facts at issue regarding the district attorney's personal interest in the cause would impair his ability to act fairly and impartially in conducting the defendant's prosecution. See King at 567.
In the instant case, defendant alleges in his motion to recuse that the district attorney's personal interest in this cause stems from an ongoing federal civil lawsuit he filed against the district attorney's office. The record indicates that the original complaint in the federal civil lawsuit was filed by defendant on July 3, 2014 in the federal district court for the Eastern District of Louisiana. The suit alleges false arrest and malicious prosecution claims, and the named defendants in the original complaint were Walter P. Reed (the former district attorney), Ronald Gracianette (an assistant district attorney), Jason Cuccia (an assistant district attorney), Rodney "Jack" Strain (the former sheriff of St. Tammany Parish), the St. Tammany Parish Sheriff's Office, several unnamed St. Tammany Parish Sheriff's deputies, several unnamed judicial officers, and the defendants' insurance companies. The suit alleges wrongdoing by the named parties during a period of time leading up to and including defendant's trial and acquittal for apparent drug distribution charges. Defendant was found not guilty of these charges on or around July 8, 2013.
Defendant has amended and/or supplemented his complaint at least three times, adding as named defendants Deputies Christopher Comeaux and Brandon Stephens (St. Tammany Parish Sheriff's Officers) and making further allegations of misconduct. In his third and fourth amended complaints, defendant states that on February 14, 2016, Deputy Comeaux effected a traffic stop of his vehicle and began to question him and his girlfriend without cause. Defendant alleges that because of the series of events that occurred following the traffic stop, Deputy Comeaux "charged" him with first-offense possession of marijuana, battery of a police officer, operating a motor vehicle with a suspended license, and resisting an officer with force or violence. This final offense, resisting an officer with force or violence, is the charge for which the state currently seeks to prosecute defendant. The bill of information in the instant case was filed on March 29, 2016.
The amended and/or supplemented complaints were filed on January 16, 2015 (first amended complaint); July 8, 2016 (second amended/first supplemental complaint); and August 16, 2016 (titled as "FOURTH AMENDED AND SUPPLEMENTAL COMPLAINT").
At the time of the hearing on the motion to recuse, the record contained the motion itself, as well as five exhibits from the federal court proceeding attached to the motion: defendant's original complaint, the three amended and/or supplemental complaints, and the answer and affirmative defenses filed by Emily Couvillon (another assistant district attorney) on behalf of Ronald Gracianette and Jason Cuccia. Present at the hearing were defendant, his counsel, and the assistant district attorney in charge of the prosecution - Jay Adair. Defense counsel first informed the trial court that assistant district attorneys Cuccia, Gracianette, and Couvillon were all still employed by the district attorney's office. The trial court then confirmed with defense counsel that the district attorney's office was not a named defendant. Thereafter, the following exchange occurred:
[Trial court]: There [are] no allegations in this suit as amended of retaliation in prosecution by anyone in the [d]istrict [a]ttorney's [o]ffice. There are some allegations of retaliation against Chris Comeaux.
[Defense counsel]: That's correct.
[Trial court]: But there are no allegations of retaliation in this lawsuit as amended in the Fourth - the Second Amended and the Fourth Amended Petitions against anyone either present or formerly with this [district attorney's] office. The only allegation in this suit concerning the [district attorney's] office is the fact that the defendant requested video footage from the District Attorney and has received none.
So Mr. Adair, is there any video footage by way of discovery to produce in this case?
[The State]: Not to my knowledge, Your Honor, the State is not in possession of any. . . .
[Trial court]: So there ha[ve] been no allegations that this is a retaliatory prosecution by anyone in the [district attorney's] office. There have been allegations of retaliation on behalf of sheriff's employees, but there have been no allegations of retaliation on behalf of any [d]istrict [a]ttorney or assistant district attorney in connection with this prosecution before the Court.
[Defense counsel]: And that is correct the way the supplemental complaint has been amended by Mr. Bordes [(defendant's attorney in the federal civil suit)]. However, I still believe, Judge, that they are so intertwined, not that the [district attorney's] office has specifically retaliated against [defendant], however, in looking at this case, and they have accepted charges now -
[Trial court]: That hasn't been pled.
[Defense counsel]: That's correct.
[Trial court]: That has not been pled, that there has been no allegation in the lawsuit that is pending in [f]ederal court by [defendant] that the acceptance of charges by the [d]istrict [a]ttorney's [o]ffice is in any way related to his prior action or in retaliation for his prior action. There ha[ve] been no allegations whatsoever of that fact.
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[Trial court]: So are you saying on the record today that it's your contention that this action, that is, the docket that is pending before the Court today, 572372 and 3, has been accepted in retaliation of the prior suit? Is that your contention today?
[Defense counsel]: Potentially.
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[Trial court]: And so you believe that this was accepted for prosecution for retaliatory purposes by individuals in their office, is that what I'm hearing?
[Defense counsel]: It appears that way, yes.
[Trial court]: Is that what you are contending?
[Defense counsel]: Yes, Judge, it appears that way.
[Trial court]: As I indicated, that has not been pled in the [f]ederal lawsuit.
[Defense counsel]: I understand.
[Trial court]: However, based upon the contention that you have clearly placed upon the record today, then I do believe that disqualification would be appropriate in this case, and it is based, Ms. Yazbeck, upon the contention that you placed on the record, because other than that contention, I do not believe that there would be a ground for disqualification.
[Defense counsel]: I understand, Judge.
[Trial court]: So your motion is granted based upon the contentions and allegations that you as counsel for [defendant] have placed on the record today.
In King, the defendant had been charged with malfeasance in office for an incident that occurred while serving as the Chief of Police of the town of Jena. The district attorney apparently had initial uncertainty about whether to proceed with a prosecution of the defendant, but later informed defense counsel that the defendant found himself "in the cross hairs" as a result of two rumors that the defendant had either started or spread about the district attorney and one of his family members. See King, 956 So.2d at 567. At a hearing on the motion to recuse, the district attorney admitted to telling defense counsel that his client was "in the cross hairs" as a result of the rumors. The district attorney further admitted that the rumors factored into his decision to proceed with the prosecution against the defendant. King, 956 So.2d at 568.
While the trial court denied the defendant's motion to recuse, the Third Circuit found that the trial court erred. The Louisiana Supreme Court agreed with the Third Circuit and determined that the defendant had presented sufficient proof that the district attorney had a personal interest in the cause that was in conflict with the fair and impartial administration of justice. King, 956 So.2d at 569. The court noted that while the district attorney articulated other factors that influenced his decision to prosecute the defendant, the fact that the district attorney's personal negative feelings against the defendant were a factor in making prosecutorial decisions was inconsistent with the policy underlying La. C.Cr.P. art. 680(1). Id. The court wrote that the case was a "close issue," but it elected to err on the side of recusal to promote the fair and impartial administration of justice. However, the court added that while it is desirable to err on the side of recusal in close cases, recusal is not required in response to a "spurious or vague" charge of unfairness and partiality. King, 956 So.2d at 570-71.
In the instant case, we first note the relative lack of evidence of any personal interest introduced at the hearing on the motion to recuse, compared to the King case. Here, the trial court considered only the motion itself, the attached exhibits, and the arguments of counsel. In contrast, the King court heard directly from the involved district attorney that personal animus was a factor in the decision to prosecute.
Second, none of the parties involved in the instant prosecution of defendant - most notably assistant district attorney Adair and current District Attorney Warren L. Montgomery - are at all named in defendant's federal lawsuit. Defendant has not alleged any personal interest held by these two individuals and instead relies upon an argument that the entire district attorney's office has been tainted by his lawsuit. However, the district attorney's office itself is not a named defendant in defendant's federal lawsuit. While defendant contends that the involvement of assistant district attorneys Gracianette, Cuccia, and Couvillon in the federal lawsuit has motivated the instant prosecution, he provided no evidence of the same.
In its brief, the state represents that Mr. Montgomery "is involved in the case because the former district attorney, Walter Reed, was sued in his official capacity." However, Mr. Montgomery's name is not mentioned in any of the federal civil complaints, and the "FOURTH AMENDED AND SUPPLEMENTAL COMPLAINT," filed on August 16, 2016, lists Walter P. Reed as a defendant in "both his individual and former official capacity."
Finally, we note that the trial court granted the motion to recuse not based upon any specific evidence, but "based upon the contentions and allegations" made by defense counsel at the hearing. (Emphasis added). As the court stated in King, 956 So.2d at 570 (emphasis added), a defendant is required to prove by a preponderance of the evidence the applicability of La. C.Cr.P. art. 680(1). Thus, the trial court improperly relied upon contentions and allegations, rather than proof, in granting the motion to recuse. Accord State v. Wright, 40,945 (La. App. 2nd Cir. 5/19/06), 931 So.2d 432, 440-41, writ denied, 2006-1727 (La. 3/16/07), 952 So.2d 694 (upholding denial of motion to recuse where the motion contained primarily conclusory allegations, the district attorney denied any personal interest in the case, and the defendant failed to show the same by a preponderance of the evidence).
In reviewing the exhibits before the trial court, we find a lack of evidence to support the granting of defendant's motion to recuse. While it is uncontroverted that defendant has been previously prosecuted and acquitted by the current district attorney's predecessor, the facts and circumstances of that earlier case are not in the record. Further, while defendant's federal civil lawsuit alleges a pattern of wrongdoing by individuals with the district attorney's office, none of those individuals are even alleged to have a connection to defendant's instant prosecution. The current district attorney and the assistant district attorney prosecuting this case are not named in the federal lawsuit, and any connection to the federal lawsuit is a result only of the current district attorney's official capacity. The lawsuit itself makes no mention of a retaliatory prosecution. Notably, the federal complaint has been twice amended and supplemented in the time since the filing of the bill of information in the instant case, and it still lacks such an allegation.
Considering the above, there is simply no evidence to support a conclusion that the district attorney has "indulge[d] his personal animosity such that [his] professional judgment [was] affected." See King, 956 So.2d at 572 (Weimer, J., concurring). The current district attorney and assistant district attorney have not been shown to have any personal animosity toward defendant, much less one that has motivated the instant prosecution. See State v. Marcal, 388 So.2d 656, 663-64 (La. 1980) (on rehearing), appeal dismissed, cert. denied, 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981) (denial of motion to recuse district attorney was proper where there was no evidence in the record to indicate the district attorney himself participated in initiating or decided to proceed with prosecution). While the mere existence of defendant's federal lawsuit gives rise to a level of concern about impartiality within the district attorney's office, we again note that the current district attorney and assistant district attorney are not named in either their personal or official capacities. Additionally, the bill of information was filed a little over one month after the instant alleged offense and just over three months before defendant amended his federal complaint to include details relating to the basis of the prosecution. As a result, there is no indication that defendant's case has been singled out for "any reason unrelated to the duties and responsibilities of a prosecutor." See King, 956 So.2d at 571 (Weimer, J., concurring). While the state did not present any controverting evidence at the hearing on the motion to recuse, the evidence considered by the trial court does not rise to the level of sustaining the defendant's burden of proving a personal interest by a preponderance of the evidence. Because of this lack of evidence, there is no need under the guidance of King to err on the side of recusal. The allegations in this case, without proof, are closer to vague charges of unfairness than they are to the meritorious accusations in King. Thus, the trial court erred in granting the motion to recuse on the basis of defense counsel's "contentions and allegations," rather than proof.
We do recognize that, by the state's own admission, Mr. Montgomery may now be acting as a party to the lawsuit as a result of his official capacity, but his name still appears nowhere in any of the filings.
This assignment of error has merit. Accordingly, the ruling of the trial court granting the motion to recuse is vacated, and the matter is remanded for further proceedings.
TRIAL COURT RULING VACATED; REMANDED.