OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH
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.
AND PROCEDURAL HISTORY
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."
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.
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.
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 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.
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.
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.
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 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.
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.").
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).
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
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.
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
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.
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.
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, 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.
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."
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.
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."
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.
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.
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.
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.
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. 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 ...