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State v. Karey

Supreme Court of Louisiana

June 29, 2017



          HUGHES, J.

         This case involves an alleged "agreement not to prosecute," under which the defense claimed that in exchange for the defense providing the names of witnesses who would testify before the grand jury, the sharing of defense attorney work product, and the waiving of the spousal privilege as to the grand jury testimony of the defendant's wife, the prosecution agreed to abide by the grand jury indictment, whether manslaughter or second degree murder. When the grand jury returned a manslaughter indictment, the State nevertheless presented the case to the grand jury again, approximately seven-and-one-half months after the first indictment, and procured an indictment for second degree murder. The defendant filed a motion to quash, alleging the prosecution failed to abide by the agreement. The district court granted the motion, quashing the second degree murder indictment. On appeal, the appellate court reversed. For the reasons that follow, we reverse the appellate court and reinstate the district court ruling.


         On September 27, 2013 Ronald Harris, Sr., pastor of Tabernacle of Praise Church in Lake Charles, Louisiana, was shot and killed during a church service by the defendant, Woodrow Karey, Jr. Mr. Karey thereafter surrendered to police, stating, "He raped my wife."

         Several conferences were held between defense counsel and the prosecution, which resulted in defense counsel providing the prosecution with a list of four witnesses, along with a written summary of the substance of the testimony that would be provided by these witnesses, and it was agreed these witnesses would testify before the grand jury. The defendant also agreed to waive the spousal privilege as to his wife's testimony before the grand jury. Further, the parties agreed that the matter would be "fairly" presented to the grand jury, and the grand jury would decide the appropriate charge (manslaughter or second degree murder). The defense alleged the parties also agreed that they would abide by the decision of the grand jury, and the defendant understood this meant the matter would not subsequently be brought back to a grand jury. The defendant's wife and the witnesses named by the defense testified before the grand jury, which indorsed the manslaughter indictment "a true bill" and the second degree murder indictment "not a true bill." Prosecution was instituted against the defendant for manslaughter, a violation of La. R.S. 14:31, with the filing of the indictment on November 14, 2013.

         Sometime after the first grand jury indictment, a different lead prosecutor was placed in charge of the case. Thereafter, the State returned to the grand jury to present "more evidence" on the instant offense, and on June 26, 2014 the grand jury indicted the defendant with second degree murder, a violation of La. R.S. 14:30.1. The State then dismissed the manslaughter prosecution and went forward with the second degree murder prosecution.

         On August 8, 2014 the defendant filed a motion to quash the second degree murder indictment, contending: (1) the State breached the agreement to present the case to the first grand jury and to abide by the grand jury decision, in exchange for defense counsel's assistance and cooperation; and (2) although La. C.Cr.P. art. 386[1] authorizes a subsequent indictment or information for the same offense following a grand jury's failure to indict, Article 386 does not authorize subsequent indictment or information for the same offense when the grand jury does indict the defendant for a lesser charge on the same offense.[2]

         Following a January 6, 2015 hearing on the defendant's motion to quash, the district court found that the result desired by both the defense and prosecution from the initial grand jury proceeding was a manslaughter indictment, that there was an "implicit understanding" between the defense and the prosecution "that both sides would live with the result of the initial grand jury - either Manslaughter or Second Degree Murder," and for these reasons the defense revealed information "not otherwise available to the [S]tate." The district court concluded that the State was bound to "what was at the time its desired result" and granted the motion to quash the second degree murder indictment.

         On appeal by the State, the appellate court reversed the grant of the motion to quash and remanded the matter to the district court for further proceedings. State v. Karey, 15-0522 (La. App. 3 Cir. 11/12/15), 180 So.3d 500. This court granted the defendant's subsequent writ application. State v. Karey, 16-0377 (La. 10/28/16), 213 So.3d 389.


         Motion to Quash

         The concept of fundamental fairness is inherent in the Due Process Clause of the U.S. Fourteenth Amendment and in La. Const. Art. I, § 2, which do not dictate a particular procedure, only a fundamentally fair result. See In re C.B., 97-2783, pp. 10-11 (La. 3/4/98), 708 So.2d 391, 397. The plea bargaining[3] process presupposes fairness in agreements between an accused and a prosecutor. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id., 404 U.S. at 262, 92 S.Ct. at 499.

         As a general matter, in determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to analogous rules of contract law, although a defendant's constitutional right to fairness may be broader than his or her rights under the law of contract. State in Interest of E.C., 13-2483, p. 4 (La. 6/13/14), 141 So.3d 785, 787 (per curiam); State v. Cardon, 06-2305, p. 1 (La. 1/12/07), 946 So.2d 171, 171-72 (per curiam); State v. Givens, 99-3518, p. 14 (La. 1/17/01), 776 So.2d 443, 455; State v. Louis, 94-0761 (La. 11/30/94), 645 So.2d 1144, 1148-49; State v. Lewis, 539 So.2d 1199, 1204-05 (La. 1989); State v. Nall, 379 So.2d 731, 734 (La. 1980). See also United States v. Ringling, 988 F.2d 504, 506 (4th Cir. 1993) ("Plea bargains rest on contractual principles, and each party should receive the benefit of its bargain. Yet, the analysis of the plea agreement must be conducted at a more stringent level than in a commercial contract because the rights involved are generally fundamental and constitutionally based.").

         When a district attorney or assistant district attorney makes a good faith bargain with a person accused of a crime and the defendant, in reliance on that bargain, relinquishes a fundamental right, the State cannot repudiate the bargain. State v. Tanner, 425 So.2d 760, 763 (La. 1983); State v. Hingle, 242 La. 844, 859, 139 So.2d 205, 210 (1962) (on rehearing). "[C]ourts should give effect to such agreement[s], for it would not be consonant with the pledge of the [S]tate's public faith, reposed in these officers by the legislative branch of our government, to permit them to repudiate bargains made with persons accused of crimes who are acting in good faith, and, in reliance thereon, comply with their commitments by relinquishing valuable and fundamental rights." State v. Hingle, 242 La. at 865, 139 So.2d at 212. Nevertheless, "[a]bsent any showing of detrimental reliance prejudicial to the substantial rights of the accused, or evidence of devious practice by the government such as bad-faith negotiation designed to psychologically probe the defense or gain some other improper advantage, the government remains free to withdraw from a plea agreement up to the time the plea is entered." State v. Caminita, 411 So.2d 13, 16 (La. 1982), cert denied, 459 U.S. 976, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982) (emphasis added).

         In the instant case, the district court's January 6, 2015 ruling stated as follows, in pertinent part:

The Court accepts the testimony that the District Attorney had some "family problems," meaning that the decedent's family was pushing for an indictment of Second Degree Murder rather than Manslaughter even though the circumstances of this case, at least on the surface and based on what was known at the time, indicated that Manslaughter was the more appropriate charge. The Court accepts the representation that the desired result from both the defense and prosecutors of the initial grand jury proceeding was a Manslaughter indictment. While such an initial indictment is not necessarily binding on the District Attorney's office to prevent a future indictment on a more serious charge, the question becomes whether or not the Defendant voluntarily provided information or gave up rights that he would otherwise have withheld to achieve what was at the time a joint goal.
The initial indictment arguably was a benefit to the District Attorney's office to help with the "family problems" and to further resolution of a high profile case in which the accused was perhaps seen in a higher regard by the community than the victim. Furthermore, by providing a list of witnesses and the key points of each witness'[s] testimony, the defense arguably "showed its hand" to the District Attorney's office, and arguably gave the District Attorney's office an advantage they otherwise would not have had when the matter was later brought back to a grand jury.
* * *
In this case, the defendant revealed information "not otherwise available to the [S]tate" based on the implicit understanding that both sides would live with the result of the initial grand jury - either Manslaughter or Second Degree Murder. Whether or not such information actually benefitted the [S]tate later in obtaining the later indictment is not the point. The point is that more information was made available by the defendant than he was obligated to provide. This perceived benefit binds the [S]tate to what was at the time its desired result.

         The district court found as a matter of fact that the defense and the prosecution had a common goal to obtain a manslaughter indictment from the initial grand jury and that there was an "understanding" or agreement between the parties that they would "live with" or be bound by the conclusion of that grand jury. The district court further found that the disclosure of the defense attorney's work product to the prosecution not only aided the prosecution in achieving the common goal of a manslaughter indictment, but gave the prosecution an advantage by revealing defense strategy.

         Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court on a motion to quash only if that finding represents an abuse of the trial court's discretion. State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206. In applying the abuse-of-discretion standard of review, the analysis may be further broken down into the component parts of the trial court decision. State v. Thompson, 11-0915, p. 13 (La. 5/8/12), 93 So.3d 553, 563. When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id., 11-0915 at pp. 13-14, 93 So.3d at 563; State v. Wells, 08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580; State v. Hunt, 09-1589, p. 6 (La. 12/1/09), 25 So.3d 746, 751. See also La. Const. Art. V, § 5(C) ("In criminal matters, [the supreme court's] appellate jurisdiction extends only to questions of law."); La. Const. Art. V, § 10(B) ("In criminal cases [a court of appeal's] appellate jurisdiction extends only to questions of law."). Legal findings or conclusions of the trial court are reviewed de novo. Id., 11-0915 at p. 14, 93 So.3d at 563; State v. Hamdan, 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816; State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504. Thus, a trial court's ruling on a motion to quash can be found to be an abuse of discretion if the trial court's factual findings are not supported by evidence in the record or if the court's legal findings or conclusion are erroneous.

         In this case, the evidence submitted during the January 6, 2015 hearing on the defendant's motion to quash provides a reasonable basis for the district court's factual findings, as revealed through the testimony of the four witnesses: then-District Attorney John DeRosier, Assistant District Attorney Hugo Holland, former Assistant District Attorney Brett Sandifer, and Defense Attorney Todd Clemons.

         Then-District Attorney John DeRosier testified that because of the nature of this case, the prosecution was required to take it to a grand jury. Mr. DeRosier stated that, in a conversation with defense counsel Todd Clemons, Mr. Clemons (who is a former prosecutor) expressed concern that a prosecutor can "sway a Grand Jury one way or the other," and Mr. Clemons requested that he be allowed to present defense witnesses to the grand jury. Mr. DeRosier said that he told Mr. Clemons he could "present [his] witnesses and the Grand Jury's going to do what it's going to do." When asked by Mr. Clemons, on direct examination,[4] whether he (Mr. DeRosier) had told him (Mr. Clemons) "that your [Mr. DeRosier's] goal was to lay it all out in front of the Grand Jury and let the Grand Jury make the call," Mr. DeRosier responded, "I don't remember those words, but that sounds like something I would say." When asked by Mr. Clemons whether "you [Mr. DeRosier] reached an agreement ultimately with me [Mr. Clemons] that the case would be fairly presented to the Grand Jury and the Grand Jury would determine the appropriate charge," Mr. DeRosier replied, "Yes . . . I don't know if that's an agreement. I made that statement." Mr. DeRosier indicated that he did not personally present the case to the first grand jury, rather, Hugo Holland and Brett Sandifer were the prosecutors on the case at that time. Mr. DeRosier also testified that most agreements entered into with defendants are "verbal agreements," and although written agreements are sometimes used, "[i]t's fairly rare." Mr. DeRosier further testified that neither he, nor anyone in his presence, ever promised the defense that, if a manslaughter indictment were returned, the prosecution would not return to the grand jury to present further evidence.

         Assistant District Attorney Hugo Holland testified that there was no "agreement" between the parties. He stated, "What I offered to you [Mr. Clemons] was that if there was information you wanted the Grand Jury to have, if you told me who the witnesses were, I'd be happy to put them in front of the Grand Jury." Mr. Holland further testified that he told Mr. Clemons, "I think that the Grand Jury could go either way, and it was probably a good idea for the Defense to provide me a list of witnesses that perhaps could push them towards a . . . manslaughter charge." Mr. Holland clarified, "I don't have to, as a prosecutor, allow you [Mr. Clemons] or any other defense lawyer to present any evidence. I gave you the courtesy of doing that, and you gave me a list of names of people that you wanted to testify in front of the Grand Jury . . . . I agreed to let you give me the list and that I would present the witnesses."

         With respect to testimony given by the defendant's wife, Janet Karey, before the grand jury, Mr. Holland testified, "I sent her a subpoena, and so it wasn't up to you [Mr. Clemons] to determine whether she testified or not . . . . That was not part of any agreement. I just told you she got a subpoena and she was testifying." When asked about a spousal privilege, Mr. Holland stated, "If she wanted to claim it [the spousal privilege] when she came in, that would be up to her. It's my legal opinion, that probably doesn't apply at Grand Jury, but had she chose to do so, then things might be different." Mr. Holland stated that Ms. Karey did not claim a spousal privilege when called to testify before the grand jury.

         Mr. Holland further denied that he, or anyone in his presence, told the defense that the prosecution would refrain from ever presenting the grand jury with any additional evidence if a manslaughter indictment were to be returned. Mr. Holland further testified that he "received no concessions" from the defense and, to his knowledge, the defense did nothing that would ultimately be detrimental to the defendant's case. When asked if the defense detrimentally relied on anything that had occurred in the case, Mr. Holland responded, "I can't imagine how it would possibly be." Mr. Holland denied reaching any type of agreement with the defense, and he stated, "I don't have to reach an agreement with the Defense for anything related to Grand Jury actions." With respect to statements that the case would be "fairly presented" to the grand jury, Mr. Holland stated, "[T]hat's what every Grand Jury does, the case is fairly presented and they reach a decision." However, Mr. Holland further stated, "The agreement was, if there was one, that we were going to fairly present the evidence, which was done."

         Former Assistant District Attorney Brett Sandifer testified that, although he previously worked for the Calcasieu Parish District Attorney's office, at the time of the hearing he was working as an Assistant Attorney General. Mr. Sandifer recalled that, after the defendant was arrested, but before he was charged, there was a telephone conference between the prosecution (Mr. DeRosier, himself, and possibly Mr. Holland) and the defense (Mr. Clemons and Mr. Johnson), during which Mr. DeRosier stated that the case was going to be presented to the grand jury for determination of the charge because "that's what we have to do on a case such as that . . . . [A]nytime you go to Grand Jury, that's what . . . happens." Mr. Sandifer also indicated that Mr. DeRosier told Mr. Clemons that he would subpoena witnesses for the defense, if the defense provided a list of the witnesses.

         When asked whether he recalled Mr. Clemons stating that the defense would discuss it and let the prosecution know "whether we would be participating in the Grand Jury," Mr. Sandifer stated that he remembered something like that. Mr. Sandifer acknowledged that a few days later he and Mr. Holland met with Mr. Clemons and Mr. Johnson in a conference room at the District Attorney's office to discuss the witnesses that the defense wanted to testify before the grand jury, the relationship of those witnesses to the defendant, and the nature of their testimony. Mr. Sandifer indicated that it was agreed that the witnesses would present testimony before the grand jury, and the grand jury would determine the appropriate charge.

         In conjunction with Mr. Sandifer's testimony, Exhibit "D," in globo, was introduced, which included an email from Mr. Clemons to Mr. Sandifer regarding the defense witnesses, including a list of witness names and a summary of the proposed substance of each witness's testimony. Mr. Sandifer explained that, since some of the defense-requested witnesses were not mentioned in the incident report, either he or Mr. Holland had asked the defense for a summary of what these witnesses would likely say before the grand jury, and the emailed list contained a summary of what Mr. Clemons felt was relevant about each of the witnesses' testimony before the grand jury. Mr. Sandifer denied that the prosecution had agreed not to go back to the grand jury after the first indictment, maintaining they only agreed to present the witnesses requested by the defense to the grand jury. Mr. Sandifer emphasized that, in every case before the grand jury, it is the prosecutor's job to fairly present the evidence to the grand jury, and the grand jury then decides the appropriate charge.

         Mr. Sandifer also testified that two bills were submitted to the grand jury, one for manslaughter and one for second degree murder; the grand jury returned a "true bill" as to manslaughter and a "no true bill" as to second degree murder. Mr. Sandifer further testified that the investigation was ongoing at the time the matter was before the first grand jury, noting that there was a "phone issue we still had to resolve" and there were witnesses that law enforcement had not interviewed. Mr. Sandifer indicated that even though there was no statute of limitations on the prosecution of murder, since the defendant was arrested in September 2013 for murder, there was a limited time period during which charges could be timely filed against the defendant, otherwise the defendant would have to be released from custody.[5]

         Defense Attorney Todd Clemons, on examination by co-counsel, Adam Johnson, testified that he contacted Mr. DeRosier in October of 2013 to arrange a meeting to discuss the case, and a phone conference was set up for October 30, 2013. Mr. Clemons testified that, during the phone conference, Mr. DeRosier told him that the prosecution would "present the case to the Grand Jury and . . . let the Grand Jury determine the appropriate charge." Mr. Clemons also testified that Mr. DeRosier told him that he could "present whatever witnesses you deem appropriate." Mr. Clemons stated that, in connection with their agreement, the defense was giving up "certain rights," including attorney work product.[6] Mr. Clemons further testified that he "felt like [the District Attorney] wanted the cover of the Grand Jury to be able to give the [victim's] family the perception that this was the Grand Jury's decision and [the District Attorney] had no involvement with that," and for that reason the prosecution did not file a bill of information for manslaughter and instead ...

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