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State v. King

Court of Appeals of Louisiana, Fourth Circuit

October 27, 2017

STATE OF LOUISIANA
v.
YOLANDA J. KING

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 519-592, SECTION "K" Honorable Michael E. Kirby, Judge

          Jeff Landry ATTORNEY GENERAL, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE Sonceree Smith Clark ASSISTANT ATTORNEY GENERAL Winston E. White ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE, STATE OF LOUISIANA.

          Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown.

          Paula A. Brown Judge.

         Defendant, Yolanda J. King ("Ms. King"), appeals her conviction on one count of executing a false affidavit, a violation of La. R.S. 18:1461.3, and one count of filing a false public record, a violation of La. R.S. 14:133, for falsely claiming an erroneous domicile in documents for her candidacy for juvenile court judge in Orleans Parish. Ms. King contends that the evidence was insufficient to convict her of the crimes charged, and that she received ineffective assistance of counsel. For the reasons that follow, we remand for an evidentiary hearing on Ms. King's claim of ineffective assistance of counsel, reserving her right to re-urge her appeal and raise all assignments of error. We instruct the district court to grant Ms. King a new trial in the event the district court determines that her ineffective assistance of counsel claim has merit.

         STATEMENT OF THE CASE

         Ms. King qualified to run for juvenile court judge in Orleans Parish on February 13, 2013, and was elected on May 4, 2013. On March 20, 2014, Ms. King was indicted by a grand jury. The indictment charged that she violated La. R.S. 18:1461.3[1] by executing a false affidavit with the Orleans Parish Clerk's Office, wherein she attested that she was a domiciliary of the Parish of Orleans when, in fact, she was a domiciliary of the Parish of St. Tammany.[2] The indictment also charged that she violated La. R.S. 14:133(A)(3) [3] by knowingly filing a false public record. Ms. King entered a plea of not guilty. After a one-day, six-person jury trial, she was found guilty on both counts.

         On count one, violation of La R.S. 18:1461.3, Ms. King was sentenced to one year without hard labor, suspended, and two years of inactive probation. The trial court also assessed a $1, 000.00 fine, court costs, and imposed the following special conditions: (1) she must be employed; (2) she must perform one hundred community service hours; and (3) she must refrain from criminal conduct. As to count two, violation of La. R.S. 14:133, Ms. King was likewise sentenced to one year without hard labor, suspended, and two years of inactive probation, to run concurrently with the sentence imposed in count one. The trial court also assessed court costs, required one hundred hours of community service, and imposed the same special conditions provided in count one.

         The trial court granted Ms. King's pro se motion for an out-of-time appeal and this appeal followed.

         FACTS

         The following testimony was adduced at trial:

         Mary Claire Trimble, a Deputy Clerk for the Clerk's Office of Criminal District Court in Orleans Parish and a notary, identified Ms. King's Notice of Candidacy form, which the State introduced into evidence. Ms. Trimble testified that she notarized the document and that the candidacy form indicated Ms. King's domicile was 5336 Stillwater Drive, New Orleans, Louisiana, 70128. Ms. Trimble confirmed on cross-examination that she had no personal knowledge of the information contained in the candidacy form and that she did not verify whether Ms. King was actually domiciled at the Stillwater Drive residence.

         Troy Dugas, the Chief Deputy Assessor for St. Tammany Parish, testified that the mortgage and conveyance records of St. Tammany Parish showed that Ms. King purchased a home at 1638 Chancer Lane, Slidell, Louisiana, 70461, in 2006. On September 8, 2006, she filed for a homestead exemption for that residence. Mr. Dugas explained that an individual must own and occupy the residence as a principal place of domicile in order to qualify for a homestead exemption in St. Tammany Parish. He stated the owner's signature on the qualifying documents meant the owner did not claim a homestead exemption on any other property in the State of Louisiana.

         Mr. Dugas testified that in St. Tammany Parish, once an individual files for a homestead exemption, it is not necessary to re-file each year-the exemption is a perpetual homestead. Mr. Dugas said Ms. King claimed a homestead exemption for the Slidell residence every year from 2007 through 2013. He testified that in April 2013, Ms. King requested that the assessor retroactively remove the homestead exemption only for the years 2011, 2012, and 2013. The homestead exemption application and real estate property transfer forms were admitted into evidence and published to the jury.

         John Carroll, a private investigator, testified that he was asked to by a client to investigate Ms. King. Mr. Carroll's investigation revealed that Ms. King had two driver's licenses-one issued in Georgia and another issued in Louisiana. The background check showed that Ms. King changed her driver's license address from 5535 Bundy Road, New Orleans, Louisiana, to the Stillwater Drive address on April 22, 2013. Mr. Carroll went to the Bundy Road address and discovered that it was an empty lot.

         Mr. Carroll testified that he interviewed neighbors on Chancer Lane in Slidell, Louisiana. After running the license plate numbers, he learned that a vehicle parked in the driveway of 1638 Chancer Lane was registered to Yvette King and that another vehicle, a champagne-colored Nissan Murano, was registered to Ms. King. Each vehicle was registered to a Georgia address.

         Mr. Carroll also conducted surveillance of Ms. King at the Chancer Lane residence from May 14 through May 28, 2013. He documented Ms. King's departure and arrival times. He noted that on Mondays through Fridays, Ms. King entered the Nissan Murano and departed from Chancer Lane between 6:30 a.m. and 7:30 a.m. each morning.[4] Mr. Carroll took photographs of the Nissan Murano while it was parked in the private parking lot for judges and city officials behind New Orleans City Hall, and he verified that the license plate number of the Nissan Murano matched the vehicle he observed Ms. King enter. Mr. Carroll said he interviewed some additional neighbors on Chancer Lane-all of whom wished to remain anonymous-who identified Ms. King as the person who lived at the Chancer Lane residence. Based on his investigation, Mr. Carroll was convinced that Ms. King lived at the Chancer Lane residence with her sister.

         On cross-examination, Mr. Carroll stated that he met with Gerald Bayer and other agents from the Attorney General's Office on May 28, 2013. At that meeting, he turned over the findings from his investigation of Ms. King. Mr. Carroll acknowledged that Ms. King's Orleans Parish home address before Hurricane Katrina was the empty Bundy Road lot. He also admitted that he never investigated Ms. King's domicile before she qualified for juvenile court judge, but rather, after she was elected. With regards to the Chancer Lane neighbors, Mr. Carroll testified that he did not obtain any video, audio, or sworn statements from any of them.

         Mr. Bayer-a criminal investigator for the Louisiana Department of Justice, Office of the Attorney General-testified that in May of 2013, he assisted the Secretary of State's Office in an investigation of Ms. King. Mr. Bayer said his contact with the Orleans Parish Assessor's Office determined that Jimmie Bobb and Grace King were the owners of the residence at 5336 Stillwater Drive in New Orleans and that the residence had been purchased on September 25, 1987.

         Mr. Bayer said that he interviewed a neighbor, Michael Barwell, who resided at 5346 Stillwater Drive. According to Mr. Bayer, Mr. Barwell told him that Jimmie Bobb had lived at the residence for twenty-five years and that Grace King had lived with Mr. Bobb at that residence until Hurricane Katrina. Mr. Barwell also told Mr. Bayer that after Hurricane Katrina, Ms. Grace King visited periodically. Mr. Bayer testified that Mr. Barwell confirmed that only Mr. Bobb and Grace King lived at the Stillwater Drive residence, not Ms. King. Mr. Bayer further testified that although he was unable to speak with other neighbors, he did attempt to speak with Mr. Bobb. According to Mr. Bayer, Mr. Bobb not only failed to appear for a scheduled appointment with him, Mr. Bobb also refused to speak with him, even though he had been subpoenaed.

         Mr. Bayer testified that he also spoke to Mr. Carroll, the private investigator who had investigated Ms. King. Mr. Bayer said that Mr. Carroll voluntarily told him that Mr. Carroll's investigation revealed Ms. King lived at 1638 Chancer Drive in Slidell. At the end of his investigation, Mr. Bayer concluded Ms. King did not reside at the Stillwater Drive residence.

         On cross-examination, Mr. Bayer confirmed that, after Ms. King's election, his office received a package from the Secretary of State, which had been submitted by Cynthia Samuel, another candidate in the election. He represented that the package included a complete investigation with witness statements and letters regarding Ms. King's domicile. Mr. Bayer spoke to the Registrar of Voters in Orleans Parish after he received the package from the Secretary of State, but he admitted he never spoke to Ms. King. Mr. Bayer also acknowledged that he was unable to secure a sworn statement from Mr. Barwell, the Stillwater neighbor, stating that Mr. Barwell "really didn't want to get involved."

         Sandra L. Wilson, Registrar of Voters for Orleans Parish, testified that Ms. King was a registered voter in Orleans Parish from 2006 through the date of trial. Specifically, she stated Ms. King was a registered Orleans Parish voter in February 2013. According to Ms. Wilson, the only change in Ms. King's voting record was a change of address from Bundy Road to Stillwater Drive or vice versa.

         Ms. Wilson testified that in April 2013, she received a letter stating that Ms. King was not eligible to vote in Orleans Parish based on her St. Tammany Parish homestead exemption. She notified Ms. King of the challenge and allowed her twenty-one days to respond. Ms. Wilson testified that Ms. King was removed from the Orleans Parish voter registration rolls on June 13, 2013, but was reinstated on June 17, 2013. The reinstatement was based on information she received that Ms. King had removed her St. Tammany Parish homestead exemption.

         Mr. Bobb testified that he and Ms. Grace King owned the home at 5336 Stillwater Drive, New Orleans, Louisiana, 70128. He has resided in the residence for over twenty years, and Ms. Grace King no longer lived at the residence. When asked who lived at the Stillwater Drive residence on February 13, 2013, Mr. Bobb responded that Ms. King lived there "for a minute, for a while." Mr. Bobb could not recall exactly how long Ms. King lived at the Stillwater Drive residence; however, he stated she might have lived there "[p]ossibly, possibly a year, maybe more." Mr. Bobb also could not recall when Ms. King moved in or out of his Stillwater Drive residence.

         Mr. Bobb acknowledged that he went to the Attorney General's Office with his attorney to discuss whether Ms. King lived at his Stillwater Drive residence. Although he was aware that he was not under investigation, he did not want to tell the investigators who was living in his home. According to Mr. Bobb, he was exercising his Fourth Amendment right to privacy and he felt that there was no need to reveal that information to anyone. Mr. Bobb testified that he did not have a grudge against Ms. King or her sisters and reaffirmed it was not a secret as to whether Ms. King lived at his Stillwater Drive residence. Mr. Bobb also denied any knowledge of Ms. King's ownership of a residence in St. Tammany Parish.[5]

         Malcolm Bezet, a special agent for the Federal Bureau of Investigation ("FBI"), testified for the defense. He stated that Ms. King contacted him in May 2013 and indicated that "people were trying to get her out of the election." [6] Mr. Bezet said his investigation included surveillance and wiring Ms. King with audio or video equipment to verify the alleged threats. Mr. Bezet testified that Ms. King identified the other candidates in the juvenile court race as the individuals who made the threats. Mr. Bezet did obtain some investigative documents, but his investigation ended after the election. Mr. Bezet added that neither he, nor anyone from the FBI investigated Ms. King regarding her residency challenge. Furthermore, no one from the Attorney General's Office contacted him regarding the pending charges.

         ERRORS PATENT

         Appellate courts review all criminal appeal records for the existence of a patent error. See La. C.Cr.P. art. 920(2).[7] Here, we have ...


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