Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Thompson

Supreme Court of Louisiana

September 18, 2017

STATE OF LOUISIANA
v.
LESLIE C. THOMPSON

         On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Jackson

          WEIMER, JUSTICE.

         We granted certiorari in this case primarily to consider defendant's contentions that: (1) the evidence was insufficient to support his convictions on three counts of malfeasance in office, (2) the district court erred by permitting the state to introduce unduly prejudicial "other bad acts" evidence under La. C.E. art. 404(B) and the court of appeal compounded that error by applying a faulty "harmless error" analysis in assessing the effect of the erroneous admissions, and (3) the district court erred in denying his motion for a mandatory mistrial under La. C.Cr.P. art. 770 due to the prosecutor's references to race.

         After reviewing the evidence in this case from the perspective of a rational trier of fact who interprets that evidence as favorably to the prosecution as any rational trier of fact could, we conclude that the evidence was sufficient to find defendant guilty beyond a reasonable doubt as to Count I of the malfeasance in office charge; however, as to Counts II and III, we find that no rational trier of fact could have found defendant guilty beyond a reasonable doubt. Pretermitting all other assignments of error, we additionally find that the district court erred in denying defendant's motion for a mandatory mistrial after the prosecutor directly referenced race in a comment before the jury that was neither material nor relevant and that could create prejudice against defendant in the minds of the jury members. Accordingly, we vacate defendant's convictions and sentences, and remand this case to the district court for further proceedings consistent with this opinion.

         FACTS AND PROCEDURAL HISTORY

         Defendant Leslie C. Thompson assumed the office of mayor of the town of Jonesboro on January 1, 2007. On March 5, 2013, during his second term of office, the state filed a bill of information charging defendant, as a principal, with three counts of malfeasance in office in violation of La. R.S. 14:134 ("Malfeasance in office"), La. R.S. 14:24 ("Principals"), and La. R.S. 33:404 ("Duties of mayor"). Specifically, the bill of information alleged that Mayor Thompson:

being a public officer or public employee, did intentionally fail to perform a duty required of him, as such officer or employee, and intentionally performed such duty in an unlawful manner, and knowingly permitted other public officers and public employees, under his authority, to intentionally refuse or fail to perform such duty lawfully required of him, or perform such duty in an unlawful manner by failing to direct the administration and operation of the Town of Jonesboro, including all municipal departments, offices, and agencies, in conformity with provisions of state law, in that
Count I: on or about June 30, 2007 through June 30, 2012, in violation of La. R.S. 24:513, La. R.S. 24:518, La. R.S. 44:36, and La. R.S. 44:412, he:
1. neglected, failed or refused to furnish the legislative auditor with such papers, accounts, books, documents, films, tapes, and other forms of recordation, including but not limited to computer and recording devices, whether confidential or otherwise, that the legislative auditor has the right to inspect and examine, and
2. denied the legislative auditor access to the office, or to papers, accounts, books, documents, films, tapes, and other forms of recordation, including but not limited to computer and recording devices, whether confidential or otherwise, that he has the right to inspect or examine, and
3. refused, failed, or neglected to transmit to the legislative auditor reports, statements of accounts or other documents upon request as provided by law, and
4. obstructed or impeded, in any manner, the legislative auditor in making the examination authorized by law, and
5. failed to exercise diligence and care in preserving the public records of the Town of Jonesboro for the period or periods of time specified by law for such public records or not preserving and maintaining those records for a period of at least three years from the date on which the public record was made, and
6. failed to establish and maintain an active continuing program for the economical and efficient management of the records of the Town of Jonesboro, and
Count II: between January 2011 and June 2012, in violation of La. R.S. 14:67, La. R.S. 11:1751, and La. R.S. 11:1732(13) he misappropriated or took, with the intent to deprive permanently, a thing of value of a value of one thousand five hundred dollars or more, to-wit: public funds belonging to the Town of Jonesboro in the amount of $13, 720.75, which belong to another, without the consent of the other to the misappropriation or taking, and by means of fraudulent conduct, practices, or representations, specifically by providing payments of public funds to the Municipal Employees Retirement system for employees who were not actively employed on a permanent regularly scheduled basis of at least thirty-five hours per week, and
Count III: between January 2011 and June 2012, in violation of, La. R.S. 14:68 he took or used, without the intent to deprive permanently, a movable, to-wit: public funds belonging to the Town of Jonesboro in the amount of $38, 072.06, which belong to another, without the consent of the other to the taking or use, and by means of fraudulent conduct, practices, or representations, specifically by providing payments of public funds for Blue Cross Blue Shield of Louisiana insurance premiums for non-employees of the Town of Jonesboro.

         Following the institution of prosecution, numerous pre-trial motions were filed, [1] including among them, a notice filed by the state seeking to introduce other crimes, wrongs, or acts pursuant to La. C.E. art. 404(B). A contradictory hearing on the Article 404(B) notice was held, at which the state presented the testimony of several witnesses in an attempt to establish the admissibility of 11 "other bad acts" allegedly committed by defendant. At the conclusion of that hearing, the district court determined that the probative value of the "bad acts" evidence outweighed its prejudicial effect and, therefore, allowed each act alleged in the Article 404(B) notice to be introduced into evidence.

         The case then proceeded to trial, with jury selection beginning on August 26, 2013, followed by testimony commencing on August 29, 2013. During the examination of one of the state's initial witnesses, the prosecutor made a reference to race in the presence of the jury, stating that "there's been an allegation made ... [that] the Mayor has been harried by various conservatives and or white people." Defendant objected and moved for a mistrial on grounds the prosecutor was injecting race into the proceedings. The district court overruled the objection and denied the motion for mistrial, reasoning that the defense had alluded to race during voir dire and the opening statement and, thus, the state was entitled to rebut the racial implications.

         Defendant subsequently filed a written motion for mistrial alleging that racial issues had clearly become a factor in the trial. Defendant pointed out that both parties had questioned potential jurors regarding racial fairness during voir dire and several members of the venire had expressed concern that any verdict (guilty or not guilty) would divide the community further. Defendant also argued that the prosecutor's reference to "white people" in the presence of the jury was a mandatory, and not a permissive, ground for a mistrial under La. C.Cr.P. art. 770. The district court denied defendant's motion after hearing argument from the parties. Defendant then sought writs on the ruling, which the court of appeal denied, finding no palpable error in the ruling and that defendant had an adequate remedy on appeal. State v. Thompson, 48, 848 (La.App. 2 Cir. 9/11/13) (unpub'd).

         Testimony continued and finally concluded on September 10, 2013. At the close of deliberations, the jury unanimously found defendant guilty as charged of all three counts of malfeasance in office. Following the denial of his motion for new trial, the district court sentenced defendant as follows. As to Counts I and II, defendant was sentenced to serve consecutive terms of three years at hard labor, with $1, 000 fines imposed as to each count. As to Count III, the court sentenced defendant to five years at hard labor, with all five years suspended, said sentence to run concurrently with his sentences for Counts I and II, plus a $1, 000 fine and court costs. The court additionally ordered that defendant be placed under supervised probation for a period of five years following his release from incarceration. Finally, the court ordered that defendant pay restitution of the town of Jonesboro in the amount of $51, 792.81, which represents the aggregate of the amounts identified in Counts II and III.

         Defendant appealed his convictions and sentences. In a thorough (and lengthy) opinion, the court of appeal affirmed defendant's convictions, but vacated his sentences and remanded for re-sentencing. State v. Thompson, 49, 483, p. 92 (La.App. 2 Cir. 3/18/15), 163 So.3d 139, 192.

         Addressing the sufficiency of the evidence first, the court of appeal concluded that the state's evidence was sufficient to prove all three counts of malfeasance in office beyond a reasonable doubt. With respect to Count I, which charged that defendant committed malfeasance by failing and/or refusing to maintain proper records and to supply them to the Louisiana Legislative Auditor, the court of appeal found the evidence sufficient because it demonstrated the town's financial records were so incomplete and disorganized that auditors issued disclaimers for five consecutive years. The court found sufficient evidence of defendant's intent to breach his statutory duties as mayor in the fact that defendant had knowledge of the poor state of the town's financial records and did not take sufficient action to remedy the continuing problems, coupled with the Article 404(B) evidence demonstrating that defendant failed to provide proper documentation of his own activities as mayor.

         With respect to Count II, which charged that defendant committed malfeasance by taking public funds of the town in the amount of $13, 720.75 to pay for retirement benefits for employees who were not eligible to participate in the Municipal Employee's Retirement System, the court of appeal found the evidence sufficient because it demonstrated that six employees included in the retirement system were not consistently working 35 hours per week as required for eligibility under town policy and state law and because defendant continued using the town's funds to pay retirement contributions for ineligible employees even after being notified of their ineligibility. Finally, with respect to Count III, which charged that defendant committed malfeasance by using public funds of the town totaling $38, 072.06 to pay for health insurance premiums for former employees, the court of appeal found the evidence sufficient because it showed that defendant continued to sign checks for health insurance premiums after being notified that former town employees were still included in the premiums, yet he took no action to assist employees in ending the payments, thereby violating "his statutory duty to properly manage the employees' and the Town's resources." Thompson, 49, 483 at 59, 163 So.3d at 176.

         The court of appeal then considered the "other bad acts" evidence, finding the district court erred in admitting the La. C.E. art. 404(B) evidence because the court did not address the admissibility of each item individually or find defendant's commission of the acts was proved by clear and convincing evidence. Addressing each act individually, the court of appeal further found that out of the 11 "other bad acts" admitted, five should have been ruled inadmissible either because they were too dissimilar to the charged conduct to be probative, or the other acts were not proved by clear and convincing evidence. Nonetheless, the court found the error harmless because the state presented ample evidence to support the convictions and defendant failed to show prejudice. Thompson, 49, 483 at 75-76, 163 So.3d at 184.

         The court of appeal also found that the district court "could have" granted defendant's motion for mistrial under La. C.Cr.P. art. 770 because the prosecutor improperly injected race into the proceedings. However, the court of appeal concluded the error was harmless because the comment did not appear to have contributed to the verdict. Thompson, 49, 483 at 80-81, 163 So.3d at 187.

         Finally, the court of appeal found defendant's sentences, while individually within statutory guidelines, were excessive when aggregated, and that the district court failed to articulate sufficient reasons to run the sentences for Counts I and II consecutively, as they were based on the same acts and transactions. Thompson, 49, 483 at 65-66, 163 So.3d at 179-80. The appellate court also found insufficient evidence to support the restitution ordered for Count II, because the state failed to show that the loss could not be recovered.[2] Thompson, 49, 483 at 67, 163 So.3d at 180.

         Defendant applied to this court for writs, assigning error to the court of appeal's rulings on the sufficiency of the evidence, the denial of requested jury instructions, the admissibility of Article 404(B) "other crimes" evidence, the denial of motions to quash on grounds of prescription and double jeopardy, the denial of defendant's motion for mistrial, and the denial of motions to bar the prosecutor from carrying a weapon and to prevent the state's case agent from serving as bailiff. We granted writs primarily to address three issues: the sufficiency of the evidence, the admission of the "other bad acts" evidence pursuant to La. C.E. art. 404(B), and the denial of defendant's motion for mistrial. State v. Thompson, 15-0886 (La. 2/24/17), 216 So.3d 55.

         LAW AND ANALYSIS

         Sufficiency of the evidence

         Because the lack of sufficient evidence to sustain defendant's convictions would entitle defendant to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 44-45 (1981), we begin our analysis with defendant's contention that the evidence was insufficient to support his convictions for all three counts of malfeasance in office. See State v. Crawford, 14-2153, p. 19 (La. 11/16/16), 218 So.3d 13, 25 (citing State v. Mickelson, 12-2539, p. 5 (La. 9/3/14), 149 So.3d 178, 182).

         In both his counseled brief and a pro se supplement, defendant argues the evidence was insufficient to support his convictions for Counts I, II, and III of the bill of information charging malfeasance in office because the state failed to provide evidence of his intentional violation of a statute or law which expressly delineates an affirmative duty on him in his official capacity.

         In addressing a claim regarding the sufficiency of the evidence, the task of the reviewing court is to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). As we have recently reiterated, "[t]he Jackson standard does not permit this court to substitute its own appreciation of the facts for that of the factfinder." Crawford, 14-2153 at 20, 218 So.3d at 26. Neither does it allow the court to assess the credibility of witnesses or reweigh the evidence. Id. Rather, in a sufficiency review, "the actual fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law." Id. (quoting State v. Mussall, 523 So.2d 1305, 1310 (La. 1988)).

         Of particular relevance to the present case is the fact that the deference demanded by Jackson is not affected when circumstantial evidence forms the basis of the conviction.[3] As we explained in Crawford:

In circumstantial evidence cases, this court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Rather, this court, evaluating the evidence in the light most favorable to the prosecution, determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia[.]

         Crawford, 14-2153 at 20, 218 So.3d at 26 (quoting State v. Davis, 92-1623, p.11 (La. 5/23/94), 637 So.2d 1012, 1020). Under Jackson, the test for evidentiary sufficiency, both direct and circumstantial, is an objective one based on the point of view of a hypothetical rational trier of fact. See State v. Mack, 13-1311, p. 9 (La. 5/7/14), 144 So.3d 983, 989.

         In order to survive defendant's sufficiency challenge in the present case, the record must establish that the state proved beyond a reasonable doubt, as to each of the charged counts, all of the essential elements of the offense of malfeasance in office. Malfeasance in office is defined in La. R.S. 14:134:

A. Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
B. Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duty of such public officer or employee. The delegation of such lawful duty shall not relieve the public officer or employee of his lawful duty.

         Under this statute, the state must prove the existence of a law or statute imposing an affirmative duty on the defendant as a public officer and that the defendant intentionally refused or failed to perform that duty or intentionally performed that duty in an unlawful manner. State v. Davis, 93-0599 (La. 4/11/94), 634 So.2d 1168, 1170. The duty must be one expressly imposed by law on the public officer because the officer is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will expose him to criminal charges. State v. Perez, 464 So.2d 737, 741 (La. 1985). Intent is likewise an essential element of the offense. As we recently explained:

Louisiana R.S. 14:134 does not criminalize all ethical violations and/or general derelictions of duty. The object of the malfeasance statute is to punish a breach of duty committed with the required culpable state of mind. To this end, the statute expressly limits its application to instances in which a public officer or employee intentionally refuses or fails to perform or intentionally performs in an unlawful manner, any affirmative duty imposed by law upon him in his role as a public servant. The inclusion in the statute of a criminally culpable state of mind makes it clear that it applies only where the statutorily required mens rea is proven beyond a reasonable doubt. Thus, mere inadvertence or negligence, or even criminal negligence, will not support a violation of the malfeasance statute because the statute specifies the act or failure to act must be intentional.

State v. Petitto, 10-0581, p. 13 (La. 3/15/11), 59 So.3d 1245, 1254 (emphasis in original).

         Further, because the state charged defendant as a principal, it must show beyond a reasonable doubt that defendant had an affirmative duty in his capacity as a public officer, and that he either intentionally refused to perform that duty or performed the duty in an unlawful manner himself, or was concerned in the commission of the intentional refusal to perform that duty or concerned in the commission of the intentional performance of that duty in an unlawful manner by another. La. R.S. 14:24.[4]

         The bill of information in this case charges that the duties defendant intentionally failed to perform (or intentionally performed in an unlawful manner) are his duties as mayor of Jonesboro. Louisiana R.S. 33:404 establishes the duties of mayors. It provides, in pertinent part:

A. The mayor shall have the following powers, duties, and responsibilities:
(1) To supervise and direct the administration and operation of all municipal departments, offices, and agencies, other than a police department with an elected chief of police, in conformity with ordinances adopted by the board of aldermen and with applicable provisions of state law; however, no such ordinance may limit the authority granted to the mayor by this Paragraph. All administrative staff shall be subordinate to the mayor.
(2) To delegate the performance of administrative duties to such municipal officers or employees as he deems necessary and advisable.
(3) Subject to applicable state law, ordinances, and civil service rules and regulations, to appoint and remove municipal employees, other than the employees of a police department with an elected chief of police. However, appointment or removal of a nonelected chief of police, the municipal clerk, the municipal attorney, or any department head shall be subject to approval by the board of aldermen, except that in the case of a tie vote, the recommendation of the mayor shall prevail. Furthermore, selection or removal of any person engaged by a municipality to conduct an examination, review, compilation, or audit of its books and accounts pursuant to R.S. 24:513 shall be subject to approval by the board of aldermen of that municipality.
(4) To sign all contracts on behalf of the municipality.
(5) To prepare and submit an annual operations budget and a capital improvements budget for the municipality to the board of aldermen in accordance with the provisions of R.S. 39:1301 et seq. and any other supplementary laws or ordinances.
(6) To represent the municipality on all occasions required by state law or municipal ordinance.
(7) To be the keeper of the municipal seal and affix it as required by law.
(8) To sign warrants drawn on the treasury for money, to require that the municipal clerk attest to such warrants, to affix the municipal seal thereto, and to keep an accurate and complete record of all such warrants.
(9) To have any other power or perform any other duty as may be necessary or proper for the administration of municipal affairs not denied by law.

La. R.S. 33:404(A).

         Count I

         In Count I, the state charged that defendant, in contravention of his duties as mayor, committed malfeasance in office by neglecting, failing or refusing to furnish the Legislative Auditor with such records that the Legislative Auditor has the right to inspect and examine; denying the Legislative Auditor access to the office, or to such records, that the Legislative Auditor has the right to inspect or examine; refusing, failing or neglecting to transmit to the Legislative Auditor reports, statements of accounts or other documents upon request; and obstructing or impeding the Legislative Auditor in making the examination authorized by law. In addition, the state alleged that defendant committed malfeasance in office by failing to exercise reasonable diligence and care in preserving the public records of the town of Jonesboro for the period of time required by law and by failing to establish and maintain an active continuing program for the economical and efficient management of the records of the town of Jonesboro.

         The provisions of law from which these allegations arise derive from the sections of the Revised Statutes addressing Public Records and the duties of the Legislative Auditor. Specifically, La. R.S. 24:513 directs that "the legislative auditor shall have authority to compile financial statements and to examine, audit, or review the books and accounts of ... municipalities" (among other enumerated entities) annually, which task may be performed by a licensed certified public accountant engaged for that purpose, approved by the Legislative Auditor, and acting "in accordance with generally accepted governmental auditing standards and the Louisiana Governmental Audit Guide." La. R.S. 24:513(A)(1)(a), (3), (5)(a)(I), and (6), and (J)(1). In connection with the audit, "the legislative auditor[, or his designee, ] shall have access to and be permitted to [inspect and copy] all papers, books, accounts, records, files, instruments, documents, films, tapes, and other forms of recordation of all auditees, including but not limited to computers and recording devices" of the auditee, and the auditee, its officials and its staff are "directed to assist the legislative auditor in his work and to furnish such information, reports, aid, services and assistance as may be requested." La. R.S. 24:513(A)(1)(a) and (5), (E), (H)(1), and (I). The neglect, failure or refusal of any auditee or of any public officer or employee of the auditee to furnish the Legislative Auditor with such records as the auditor has the right to inspect and examine, the denial of access to such records, or the commission of any acts which obstruct or impede the Legislative Auditor in making the examination authorized by law subjects the offending party to fines and penalties. La. R.S. 24:518(A)(1). Significantly for this case, any public officer of an auditee who violates the provisions of La. R.S. 24:513 "shall, in addition to the ... fines and penalties, be deemed guilty of malfeasance and gross misconduct in office, and subject to removal." La. R.S. 24:518(A)(2); see also La. R.S. 24:513(K).

         In addition to the foregoing provisions of law, La. R.S. 44:412(A) of the law on public records directs that the head of each state agency[5] and its subdivisions must establish and maintain an active records management system. Specifically, La. R.S. 44:412(A) provides:

The head of each agency of the state and its subdivisions shall establish and maintain an active, continuing program for the economical and efficient management of the records of the agency. Such program shall provide for: effective controls over the creation, maintenance, and use of records in the conduct of current business; cooperation with the division in applying standards, procedures, and techniques designed to improve the management of records, promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and disposal of records of temporary value; and compliance with the provisions of this Chapter and the rules, and regulations of this division.

         In furtherance of this requirement, La. R.S. 44:36 stipulates the manner in which public records of public bodies[6] must be preserved by the custodians[7] thereof. It provides, in pertinent part:

All persons and public bodies having custody or control of any public record, other than conveyance, probate, mortgage, or other permanent records required by existing law to be kept for all time, shall exercise diligence and care in preserving the public record for the period or periods of time specified for such public records in formal records retention schedules developed and approved by the state archivist and director of the division of archives, records management, and history of the Department of State. However, in all instances in which a formal retention schedule has not been executed, such public records shall be preserved and maintained for a period of at least three years from the date on which the public record was made. ... [La. R.S. 44:36(A)]

         Basically, the state's theory under Count I was that the town of Jonesboro did not maintain the public records necessary for an audit in accordance with the provisions of La. R.S. 24:513, and that the town's failure to prepare and maintain such records resulted in the issuance of disclaimers for five consecutive years. Defendant, as mayor of Jonesboro, had a duty to direct and supervise the administration of the town in conformity with applicable provisions of state law, but by willfully failing to provide audits and to ensure the town prepared and maintained adequate records to permit an audit, defendant committed malfeasance in office.

         The state's evidence in furtherance of this theory consisted of testimony from the Louisiana Legislative Auditor, members of his staff who conducted compliance and investigative audits of the town, and the certified public accountants engaged by the town to perform its annual audits during the relevant time periods. Daryl Purpera, the Legislative Auditor, explained that all governmental bodies are required to report their financial conditions annually, and that municipalities with annual revenues in excess of $500, 000, such as the town of Jonesboro, are required to retain an independent certified public accountant to conduct auditing procedures and prepare an audit report. The resultant report can take one of four forms: an unqualified opinion, a qualified opinion, an adverse opinion, or a disclaimer. Of those options, the disclaimer is the least desirable, as it is an indication that the books and records of the governmental body are such that no opinion can be formed as to the financial condition of the body. In effect, the disclaimer is a type of "non-audit, " as it represents a finding by the auditor that there is not sufficient documentation to support a conclusion that the financial statements of the town are accurate. In the case of the town of Jonesboro, disclaimers were issued by the certified public accountants hired to conduct annual audits for an unprecedented five consecutive years: the fiscal years ending June 30, 2008, 2009, 2010, 2011, and 2012.

         Mr. Purpera testified that he first became aware of potential problems with the financial reports of Jonesboro in June 2009. As of that date, his office had not received an audit report for the fiscal year ending June 30, 2008, although the law requires the submission of audit reports six months after the end of the fiscal year (or by December 31 of the calendar year). It was not until July of 2009 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.