This Decision is not final until expiration of the fourteen day rehearing period.
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 26952-12. HONORABLE CLAYTON DAVIS, DISTRICT JUDGE.
John F. DeRosier, District Attorney, Carla S. Sigler, Karen C. McLellan, Assistant District Attorney, Fourteenth Judicial District, Lake Charles, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Edward J. Marquet, Louisiana Appellate Project, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLANT: Kenneth Wayne Montgomery.
Kenneth Wayne Montgomery, Pro se, Kinder, LA.
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges. COOKS, J., dissents and assigns written reasons.
[14-390 La.App. 3 Cir. 1]
A jury convicted the defendant, Kenneth Wayne Montgomery, of two counts of distribution of cocaine, violations of La.R.S. 40:967. After sentencing, the State of Louisiana (state) charged him in a separate proceeding as a habitual offender, a violation of La.R.S. 15:529.1. The trial court adjudicated the defendant as a second-felony offender after considering the evidence presented at the hearing on the habitual-offender issue. The trial court sentenced him to serve two concurrent thirty-year sentences at hard labor. The underlying convictions are the subject of this appeal,  and for the following reasons, we affirm the convictions in all respects.
DISCUSSION OF THE RECORD
The state charged the defendant by grand jury indictment on September 12, 2012; the jury trial on the charges began on January 10, 2013; and the jury returned its verdict the next day. The defendant represented himself at trial, but with the assistance of a court-appointed attorney. The evidence presented at trial consisted primarily of a video showing an individual purchasing cocaine from the defendant on both January 3, 2012, and January 4, 2012. Both purchases occurred in the defendant's home.
The defendant's appellate counsel raises one assignment of error addressing the underlying conviction, and the defendant raises three additional ones in a pro se brief. The appellate counsel's assignment of error states:
The trial judge failed to either recuse himself or refer the recusal motion to another judge based on years of legal complaints and/or [14-390 La.App. 3 Cir. 2] lawsuits filed by the defendant against the trial judge in violation of Code of Criminal Procedure Article 812.
The defendant's pro se assignments of error addressing the underlying conviction are:
1) The trial judge denied [him] his right to a full and fair suppression hearing.
2) The defendant was denied due process of law due to the district attorney's failure to timely provide discovery.
3) The Calcasieu Parish method of selecting jurors is unconstitutionally prejudicial, as it systemically excludes African-Americans from jury duty.
Appellate Counsel Assignment of Error
On October 11, 2012, or less than one month after his indictment on the charges, the defendant filed a pro se motion seeking to have the trial court judge recused based on " bad blood" between the two men. Specifically, the motion states that the trial judge's bias against the defendant is shown by both his actions in the proceedings now before this court and in the history between the two individuals.
With regard to the current proceedings, the defendant asserts that all we need to do is look at the trial judge's rulings on his pretrial motions to recognize the prejudice exhibited toward him by the trial judge; and with regard to the history between him and the trial judge, we need only look at the numerous complaints he has filed with the Louisiana Judiciary Commission, beginning in 2009, and the existence of a pending lawsuit filed by the defendant
against the trial judge based on his " bias, racial bias, corruptions[sic] and conspiracy to violate [the defendant's] Constitutional rights." In further support of his recusal motion, the defendant attached a copy of yet another letter he had recently mailed to the [14-390 La.App. 3 Cir. 3] Louisiana Judiciary Commission, wherein he expressed more complaints directed toward the trial judge.
The basis for the defendant's request for relief can be construed as referencing the grounds for recusal set forth in La.Code Crim.P. art. 671(A)(1) and/or (A)(6). In La.Code Crim.P. art. 671(A)(1), a judge in a criminal case " shall be recused" if he or she " [i]s biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial[.]" In La.Code Crim.P. art. 671(A)(6), a judge in a criminal case " shall be recused" if he or she " [w]ould be unable, for any other reason, to conduct a fair and impartial trial."
With regard to the procedure for handling recusal motions, La.Code Crim.P. art. 674 provides, in pertinent part that " [i]f a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion for hearing to another judge or to a judge ad hoc as provided in Article 675." Furthermore, in considering an appeal on a recusal issue, we begin our analysis with the understanding that " [i]t is well-settled jurisprudence in Louisiana that a trial judge is presumed to be impartial." State v. Mayeux, 06-944, p. 22 (La.App. 3 Cir. 1/10/07), 949 So.2d 520, 534. Additionally, as noted by the supreme court in State v. Beavers, 394 So.2d 1218, 1229 (La.1981) (citations omitted), it is equally well settled that:
[A] motion for recusal must set forth allegations of fact which state a statutory cause for recusation before the trial judge is required to refer the motion to another judge. Where, as here, the motion is based on mere conclusory allegations, the trial court does not err in refusing to refer the motion to another judge for hearing.
The trial judge in this matter denied the defendant's motion to recuse, and in doing so, stated: " Petitioner's motion fails to allege a valid ground for recusation, [14-390 La.App. 3 Cir. 4] as required under Louisiana Code of Criminal Procedure Article 671, supported by conclusive facts." On appeal, the defendant repeats the history between himself and the trial judge and suggests that given that history, the trial judge could have avoided an appearance of impropriety by referring the motion to another judge for disposition pursuant to La.Code Crim.P. art. 674.
In response, the state asserts that the defendant failed to show that the trial judge's rulings on his pretrial motions were anything other than ordinary evidentiary rulings that cannot be construed as reflecting a bias towards him regardless of the " history" between the two men. In support of their argument, the state cites this court to State v. Rollins, 32,686 (La.App. 2 Cir. 12/22/99), 749 So.2d 890, writ denied, 00-549 (La. 9/15/00), 768 So.2d 1278, which is factually similar to this case in that the defendant's complaints addressed pretrial rulings of the trial judge. In that case, the second circuit pointed out that trial judges are presumed to be impartial, that a defendant must provide specific facts in support of his recusal motion, and that " [m]ere conclusory allegations will not support a motion to recuse a judge." Id. at 898. The second circuit went on to note that the defendant in that case pointed to no specific facts to support his allegations that the trial judge's complained of rulings were " anything other than ordinary evidentiary rulings" and, " [t]herefore, the trial court did not err in
failing to refer the matter to another judge for a hearing." Id.
In the matter before us, not only does the defendant not provide us with any facts to show the trial judge's lack of impartiality in ruling on the pretrial motions, but the trial record reflects that the trial judge exhibited a remarkable degree of [14-390 La.App. 3 Cir. 5] restraint toward the defendant during the entire trial process. The same applies to the defendant's assertions of the historical " bad blood" between him and the trial judge. While full of complaints toward the trial judge and the system, the pleadings are completely lacking in anything other than unsupported conclusions based on defendant's interpretation of the underlying facts. Considering the record before us, we find no merit in this assignment of error.
Pro Se Assignment of Error Number One
The defendant's first pro se assignment of error arises from his filing of a pro se motion to suppress on the date the trial began. Specifically, the defendant argued in this motion that all of the evidence obtained in the investigation should be suppressed because it was obtained through the use of a recording taken in his home without a search warrant. The trial court rejected the motion without an evidentiary hearing, and the trial on the merits began immediately thereafter.
The defendant does not suggest that he is innocent of the offenses. Instead, he raises this assignment of error based on the fact that the video, which provided the evidence against him, was recorded in his home by an individual acting on behalf of law enforcement personnel; the individual had been sent into his home for the purpose of making a controlled purchase of cocaine; the intrusion into his home was made without a warrant; and the video was made without his permission or knowledge.
In support of his position that the video evidence should have been suppressed, the defendant cites Katz v. U.S, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and [14-390 La.App. 3 Cir. 6] the Louisiana Electronic Surveillance Act (La.R.S. 15:1301, et seq.). We find neither applicable to the matter now before us.
In Katz, FBI agents placed an electronic recording devise on the outside of a public telephone booth, which they suspected was being used by the defendant in illegally transferring wagering information interstate in violation of a federal statute. The FBI recorded only the defendant's side of the conversation, and based on the content of that recording, charged the defendant with the offense. The defendant's conviction ultimately was considered by the Supreme Court, which rejected the Government's argument that he had no expectation of privacy when he chose to conduct his illegal activity in a public telephone booth. The Supreme Court noted that U.S. Const. amend. IV " protects people, not places[,]" and that " what [the defendant] sought to exclude when he entered the booth was not the intruding eye--it was the uninvited ear." Id. at 351-52. In summary, the Supreme Court stated:
The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus ...