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State v. Gravois

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017



          COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA Honorable Ricky L. Babin Donald D. Candell Charles S. Long Robin C. O'Bannon.


          COUNSEL FOR DEFENDANT/APPELLEE, BLAISE GRAVOIS Matthew S. Chester Kerry J. Miller Daniel J. Dysart.

          AMICUS CURIAE, LOUISIANA ASSOCATION OF CRIMINAL DEFENSE LAWYERS Letty S. Di Giulio Edward K. Alexander, Jr. Kyla Blanchard-Romanach.

          Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Stephen J. Windhorst


         Appellant, the State of Louisiana, appeals the trial court's grant of appellee-defendant's two motions to quash his five count indictment. For the reasons that follow, we affirm the trial court's finding of prosecutorial misconduct and its determination that the indictment lacked the required notice to defendant, but reverse the portion of the trial court's judgment that dismissed any portion of defendant's bill of indictment. We remand the proceedings for any further action the trial court deems necessary with respect to prosecutorial misconduct, and to allow the State to comply with the trial court's prior order to file a bill of particulars.


         On September 28, 2016, a St. James Parish grand jury returned a Bill of Indictment charging appellee-defendant, Blaise Gravois, (hereinafter referred to as "defendant") with five counts of malfeasance in office, violations of La. R.S. 14:134. Defendant pled not guilty to all counts at his arraignment on November 14, 2016. On January 30, 2017, defendant filed a motion for a bill of particulars.[1]On February 10, 2017, the State filed an answer to defendant's bill of particulars, in which it alleged that "defendant does not file an actual Motion for Bill of Particulars, but instead, gives examples of what he perceives as the lack of factual particularities in the indictment." The State then offered what it styled as a response to "bullet points" listed in defendant's memorandum. The trial court granted defendant's second motion for a bill of particulars on March 30, 2017. The trial court gave the State 15 days from the date of the Order, until April 14, 2017, to file the bill of particulars.

         Defendant filed a "Motion to Dismiss/Quash the Indictment On the Basis of Prosecutorial Misconduct, or Alternatively, Motion to Dismiss/Quash Count 1of the Indictment on the Basis of Prosecutorial Misconduct, and Request for Evidentiary Hearing, " and a "Motion to Dismiss/Quash the Indictment on the Basis of Lack of Notice, " both of which were set to be heard on April 10, 2017. On April 3, 2017, the State filed a motion to continue defendant's motions, which was denied.[2] At the April 10, 2017 hearing on defendant's motions to quash, the trial court indicated that it was not going to hold the motions to quash open pending the State's completion of the bill of particulars. On April 25, 2017, the trial court issued a ruling with reasons which granted both of defendant's motions to quash and dismissed defendant's Bill of Indictment in its entirety. The State timely sought the instant appeal.


         This matter comes before us in a pre-trial posture and, therefore, the record before us is limited. The following facts were extracted from our review of the record, as well as evidence adduced at the hearing on defendant's exceptions.

         In its Bill of Indictment, the State alleges that defendant, in his capacity as the St. James Parish Director of Operations and Public Works, committed malfeasance in office when he utilized the resources of St. James Parish for the benefit of a private business, and other individuals, on five separate occasions. With respect to Count 1, the State alleged that defendant

gave/donated/loaned approximately 4500 feet of gas line and a 10, 000-unit gas meter and supplies to Millennium Galvanizing and also authorized St. James Parish employees to install the gas line and meter on the private property of Millennium Galvanizing on Winnie Road at a cost to St. James Parish of approximately thirty-three thousand two hundred seventy-nine and 84/100 ($33, 279.84) dollars or more without a contract with Millennium Galvanizing for the payment of the gas line, meter and labor costs, for the cost of the gas, or the use of or transportation or distribution of gas through parish lines. Millennium Galvanizing, a private corporation was given/loaned all the materials, labor and usage at the sole cost and expense of the Parish of St. James, in violation of La. R S 42:1461 whereby a public employee shall not misappropriate, misapply, convert, misuse, or otherwise wrongfully take any funds, property, or other thing of value belonging to or under the custody or control of St. James Parish.

         Counts 2 through 5, alleged in summary, that defendant committed malfeasance in separate acts, to wit: 2) authorizing the parish's cost of mobilization and pile- driving on private property when the work "served no legitimate public purpose;" 3) authorizing the use of public employees and public equipment to remove a shed from private property upon request of the land owner when the work "served no legitimate public purpose"; 4) authorizing the use of public employees and public equipment to demolish a private mobile home upon request of the land owner when the work "served no legitimate public purpose" and; 5) authorizing the use of public employees and public equipment to remove a playhouse and debris on a private lot when the work "served no legitimate public purpose."

         In his motion to dismiss/quash due to prosecutorial misconduct, defendant focused primarily on Count 1 of the Bill of Indictment, and asserted that the State had violated his right to due process by deliberately interfering:

"in a business arrangement between the Parish of St. James (the "Parish") and Millennium Galvanizing ("Millennium"), which interference prohibited Millennium from honoring an agreement -- made prior to the instant Indictment -- to pay the Parish for the cost of labor and materials in connection the installation of a gas line (and related equipment) for Millennium. This payment would undeniably be considered Brady evidence and the State's interference has destroyed the opportunity for this payment, which would have directly contradicted the State's theory in this case, as well as the allegations contained in the Indictment."

         Defendant also argued that at the time St. James Parish sought to enforce the "arrangement" with Millennium Galvanizing for the cost of the gas line, St. James Parish was informed that "despite the prior agreement and its desire to honor that agreement, it was instructed not to pay these funds back to the Parish." [Emphasis as in the original.] Defendant contended that "[t]his directive appears to have originated from Bruce Mohon, Esq., an Assistant District Attorney, who is the genesis of the investigation and prosecution of this case." Defendant concluded that the State's interference in prohibiting the payment from Millennium to St. James Parish qualified as the destruction of "materially exculpatory" evidence, as the payment itself "would expressly contradict the Indictment's allegations that Mr. Gravois 'gave' or 'donated' Parish resources to Millennium."

         In his Motion to Dismiss/Quash the Indictment on the Basis of Lack of Notice, defendant argued that he could not have known that the conduct alleged in the Bill of Indictment was illegal, given that it was not alleged he received a personal, financial benefit from the alleged misconduct. Defendant also asserted that the alleged acts of malfeasance were conducted as part of the "duties of his job - activities which have never before been declared unlawful."

         At the hearing on defendant's motions to quash, Brad Meyers, an attorney with the Kean Miller law firm in Baton Rouge testified that, in 2014, his firm represented Crest Industries, and its subsidiary Millennium Galvanizing, while Millennium was building its St. James Parish plant. Meyers referenced a letter from May of 2014, in which St. James Parish agreed to install a gas line. Meyers' interpretation of the letter was that Millennium agreed to compensate St. James Parish for the installation of a gas line. To his knowledge, defendant never promised Millennium that the gas line would be installed for free.[3] On or about September 1, 2016, [4] after Millennium received a bill from St. James Parish for installation of the gas line, Meyers contacted Charles Long, an assistant district attorney ("ADA") to ask what he should do about the bill. Long told Meyers that he knew nothing of the invoice. Following that communication, Meyers got a call at the end of September from Alvin St. Pierre, Chairman of the St. James Parish Council. St. Pierre told Meyers that St. James Parish was not sure if the amount on the invoice was accurate and for Millennium not to pay the invoice at that time. Then, near the end of December of 2016, after defendant had been indicted, Meyers again communicated with St. Pierre in response to an inquiry from the Finance Director for St. James Parish to Millennium as to why the outstanding invoice had not been paid. St. Pierre then directed Meyers to talk about the matter with the parish's attorney, ADA Bruce Mohon.[5] Meyers testified that Millennium would have paid the invoice for installation of the gas line, but for the calls with St. Pierre and Mohon.

         On cross examination, Meyers testified that Millennium never had a contract in place to purchase gas from St. James Parish. In April of 2016, Millennium received, arguably in error, a $22, 000 bill from St. James Parish for gas that it had never purchased.

         Alvin St. Pierre, Jr., testified that he became Chairman of the St. James Parish Council on January 11, 2016. St. Pierre was not aware of any inducements that Millennium was offered by the Parish Administration in return for locating in St. James Parish. In 2016, following the indictment of the parish president and defendant, St. Pierre received a phone call from Brad Meyers asking if Millennium should pay an outstanding bill. St. Pierre then called "legal counsel, " ADA Bruce Mohon, who recommended that payment should be held to see if the amount in the bill was accurate.[6] After he spoke to Mohon, St. Pierre contacted the other parish council members and "got approval" for Millennium not to pay the bill at that time.[7] The parish council had discussed conducting an investigation to determine what amounts may be owed to the parish as a result of the installation of the gas line at Millennium.

         Glenn LeBlanc testified that he had been employed by Crest Industries, the parent company of Millennium Galvanizing, for approximately five years. He stated that Millennium never had a contract with St. James Parish for it to supply natural gas. He identified a May 5, 2014 letter from St. James Parish President Timmy Roussel discussing St. James Parish putting in natural gas and water lines, and that Millennium could then purchase water and natural gas from the parish.[8]LeBlanc acknowledged that Millennium received a $22, 000 gas bill, which was an error because Millennium did not purchase gas from St. James Parish. He met with Timmy Roussel and defendant at the Millennium plant in July of 2016, prior to defendant's indictment, after the two had requested an appointment with him to discuss reimbursement of money to the parish for construction of the gas line. According to LeBlanc, neither defendant nor Roussel brought an invoice to the meeting.

         On cross examination, LeBlanc stated that he never believed that the Millennium plant was getting a free gas line, and he also thought that $26, 000 was a fair price for the gas line. Millennium was ready to pay the invoice in the fourth quarter of 2016, but his understanding was that the company's attorneys were told not to pay the bill.


         Dismissal based on prosecutorial misconduct

         Defendant's first motion to quash was based on alleged prosecutorial misconduct by the district attorney's office. Defendant asserted that ADA Mohon, in his capacity as the parish attorney, interfered with Millennium's intended act of paying St. James Parish for the gas line that was installed, which he concludes would have eliminated the basis for Count 1 of the bill of indictment. Defendant also argued that by preventing Millennium from paying for the gas line, it had effectively prevented Brady[9] evidence from materializing. On appeal, the State contends that the trial court erred in allowing defendant to present evidence at the hearing on the motion to quash.

         In State v. Walker, 567 So.2d 581, (La. 1990), the Louisiana Supreme Court, citing the U.S. Supreme Court's opinion in United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), held that "[t]he ultimate issue in a motion to dismiss an indictment on the basis of prosecutorial misconduct is whether the proved misconduct warrants such a drastic remedy." Our survey of Louisiana and federal jurisprudence supports the conclusion that, because of the requirement that the alleged prosecutorial misconduct be "proved, " this type of motion to quash is distinguishable from others insofar as it specifically requires the presentation of evidence outside of the face of pleadings themselves.[10] Further, a motion to dismiss an indictment on the basis of prosecutorial misconduct also specifically requires the defendant to show or demonstrate prejudice resulting from the misconduct.[11]

         In the instant case, where defendant's motion to quash was based upon alleged acts of prosecutorial misconduct, we find no error in the trial court's consideration of evidence offered by defendant to prove his allegation.

         The application of Brady v. Maryland

         In its second and third assignments of error, the State contends that the trial court erred in applying Brady v. Maryland as a basis to quash Count 1 in the bill of indictment. In Brady, the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). Favorable evidence includes both exculpatory evidence and evidence that impeaches the testimony of a witness whose credibility or reliability may determine guilt or innocence. In re Jordan, 04-2397 (La. 6/29/05), 913 So.2d 775, 782, citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Calloway, 97-796 (La.App. 5 Cir. 8/25/98), 718 So.2d 559, 562, writs denied, 98-2435 and 98-2438 (La. 1/8/99), 734 So.2d 1229, citing United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

         Evidence is material only if there is a reasonable probability that the results of the proceeding would have been different if the evidence had been disclosed to the defense. A "reasonable probability" is that which is sufficient to undermine confidence in the outcome of the trial. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). In determining materiality, a reviewing court must ascertain "not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

         The United States Supreme Court has explained that "[t]there are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); State v. Louviere, 00-2085 (La. 9/4/02), 833 So.2d 885, 896, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003).

         The trial court's order of April 27, 2017, made no determination that the State committed a Brady violation. In its reasons for judgment, [12] the trial court stated that it found evidence of Millennium's intent to pay for the gas line to be "materially exculpatory" as it pertained to Count 1in defendant's bill of indictment because "had the parish accepted payment, there would have been no grounds for Count 1 of the Indictment." However, the court stopped short of providing an analysis of all three Brady components, as detailed in Greene, supra, and Louviere, supra.

         The Louisiana Supreme Court has found "'[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.'" State v. Hobley, 99-3343 (La. 12/8/99), 752 So.2d 771, 786, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 61 (2000), quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). See also, State v. Kenner, 05-1052 (La. 12/16/05), 917 So.2d 1081 (per curiam). Without question, any undisclosed information in the State's possession that showed Millennium's understanding, prior to the construction of the gas line and prior to defendant's indictment, that it would be billed by the parish for the expenses it incurred, would be very important as to the charges in Count 1. In this case, however, the record makes clear that defendant was aware of the information which showed Millennium's understanding and arguable intent to pay for the gas line, as well as the actions by various parish officials, and ADA Mohon, that prevented payment for the gas line from being made. Thus, pursuant to Hobley, supra, it does not appear that a Brady violation occurred. Rather, the alleged actions undertaken by the State could be more properly categorized as prosecutorial misconduct. As discussed above, the trial court's review of evidence pertaining to the alleged acts of prosecutorial misconduct presented by defendant at the hearing on his motion was proper.

         The actions of ADA Bruce Mohon

         In connection with its third assignment of error, the State contends that "the trial court erred in concluding that ADA Bruce Mohon's advice to the St. James Parish Council was so egregious and overreaching as to amount to prosecutorial misconduct sufficient to support a Brady violation on Count 1 and mandate the quashing of Counts Two through Five." As previously discussed, the trial court's judgment does not make a specific finding of a Brady violation on the part of the State. Further, as discussed more fully below, a Brady claim was never raised by defendant with respect to Counts 2 through 5.

         Of significance are the facts that are not challenged by the State on appeal, which are also supported by the record. First, Mr. Mohon is an assistant district attorney who, according to the trial judge, serves as the felony prosecutor in her division.[13] Mr. Mohon also serves in an official capacity as legal counsel for St. James Parish. While acting as parish attorney, Mr. Mohon advised parish officials not to accept payment for a gas line for which Millennium had been billed. The statement was dated September 1, 2016, prior to defendant's indictment.[14] In his capacity as a parish attorney, Mohon further advised Millennium's attorney, Brad Meyers, not to pay the bill for the gas line until Meyers heard back from Mohon. At the same time, the State pursued criminal charges against defendant based, in part, on an allegation that defendant built a free gas line for Millennium using parish resources. The unrebutted testimony at the hearing on defendant's motions, through the testimony of Meyers and LeBlanc, was that Millennium would otherwise have paid St. James Parish the balance owed for construction of the gas line. While assistant district attorneys may, and in fact have a duty to, serve as parish attorneys in various parishes under La. R.S. 16:2, each district attorney must still abide by the Professional Rules of Conduct and be cognizant of potential conflicts of interest.

         While not directly on point, other cases have previously addressed issues that arise when an attorney employed as a District Attorney also has a private practice. For example, in In re Toups, 00-0634 (La. 11/28/00), 773 So.2d 709, 716, the Louisiana Supreme Court observed the following:

Dual representations by an attorney who is first and foremost a district attorney present potential and actual conflicts of interest which have troubled courts for many years. In our system of justice, we entrust vast discretion to the prosecutor in deciding which cases to pursue, what crimes to charge, and how to allocate limited resources. Because the prosecutor is given such great power and discretion, he is also charged with a high ethical standard.

         The trial court's April 25, 2017 ruling makes no specific finding about the nature and scope of prosecutorial misconduct, but such a finding is inferred from the dismissal of Count 1. However, in its reasons for judgment, the trial court found that the District Attorney's office had breached an ethical canon set forth in the American Bar Association Standards for Criminal Justice. The court concluded in its ruling that:

The District Attorney's office, through Mr. Mohon, breached its duty to stand as a representative of the people and upholding the integrity of the criminal justice system. No indictment would have been obtained had payment been accepted. Mr. Mohon was not only the legal advisor to the parish, but also the felony prosecutor in this division. He had to have known the precarious position his client was placed in by not accepting payment. Mr. St. Pierre relied on his trusted advisor to tell him what to do, and in doing so, Mr. Mohon's actions were detrimental to the fairness of the proceedings against Mr. Gravois. Count one of the Indictment of Blaise Gravois must be quashed on this basis.

         The trial court relied on a pronouncement found in In re Jordan, 04-2397 (La. 06/29/2005), 913 So.2d 775, 781:

In our system of justice, we entrust vast discretion to a prosecutor. In re Toups, 2000-0634 p. 10 (La. 11/28/00), 773 So.2d 709, 715. Because a prosecutor is given such great power and discretion, he is also charged with a high ethical standard. Id. A prosecutor stands as the representative of the people of the State of Louisiana. He is entrusted with upholding the integrity of the criminal justice system by ensuring that justice is served for both the victims of crimes and the accused. "Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Brady, 373 U.S. at 87.

         Under the facts of this case, it would certainly appear that Mr. Mohon was in a unique position to arguably assure the existence of an element of the malfeasance charge needed to prosecute Count 1. Even if his advice to the parish not to accept Millennium's payment was provided based upon other considerations not related to the defendant's prosecution, such advicearguably had the practical effect of ensuring that defendant's prosecution of Count 1 continued. In the alternative, had Mr. Mohon given advice to the parish to accept Millennium's payment, it may have resulted in the creation of evidence exculpatory to defendant for the charge in Count 1 of the indictment.[15] The potential conflict of interest faced by Mr. Mohon is obvious.

         While any disclosure by Mohon to the State about this potential conflict of interest is not a part of the record, the record does reflect that Mr. Mohon did not disclose to defendant that he had advised Millennium not to pay for the gas line that St. James Parish constructed and billed for, nor that he had advised St. James Parish not to accept payment. Moreover, at no time did the St. James Parish District Attorney's Office move to recuse itself following Mohon's contact with Millennium's counsel. Based on the record before us, we find no error in the trial court's conclusion that Mr. Mohon's dual representation of St. James Parish and the State of Louisiana in regard to Millennium constitutes prosecutorial misconduct.[16]

         Dismissal of Count 1

         We next turn to the issue raised in the State's third assignment of error, of whether the trial court erred in dismissing Count 1 based upon Mr. Mohon's misconduct.

         The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor. Consequently, the aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982); State v. Ortiz, 11-2799 (La. 1/29/13), 110 So.3d 1029, 1034, cert. denied, 134 S.Ct. 174, 187 L.Ed.2d 42 (2013). While a prosecutor should prosecute with "earnestness and vigor" and "may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

         In this case, defendant argues that Mr. Mohon's actions amounted to a due process violation. In the case of In re Guerra, 235 S.W.3d 392, (Tex. App.--Corpus Christi 2007)(orig. proceeding), the court set forth a framework for analysis that it used to consider whether prosecutorial misconduct affected a defendant's right to due process:

The absence of an impartial and disinterested prosecutor has been held to violate a criminal defendant's due process right to a fundamentally fair trial. Put another way, the due process rights of a criminal defendant are violated when a prosecuting attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant. [Citations omitted.]
The question whether there is a conflict of interest is dependent upon the circumstances of the individual case. Because there is no bright-line rule for determining whether a conflict rises to the level of a due-process violation, each case must be analyzed on the facts peculiar to it. As the United States Supreme Court has explained:
Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness, " a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any ...

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