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State v. Middleton

Court of Appeals of Louisiana, Third Circuit

June 19, 2019

STATE OF LOUISIANA
v.
CHARLES MIDDLETON, A/K/A CHARLES KIRKLAND MIDDLETON

          ON APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 159454 HONORABLE PATRICK L.MICHOT, DISTRICT JUDGE

          Brenda Sibille Piccione James Kirk Piccione Piccione & Piccione P.O. COUNSEL FOR APPELLANT/DEFENDANT: Charles Middleton

          Keith Stutes District Attorney Alan Haney Assitant District Attorney COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE.

         The Defendant, Charles Middleton, has filed the instant application for supervisory writs from the trial court's December 14, 2018 ruling denying the defense's request to subpoena Lafayette Parish District Attorney Keith Stutes (DA Stutes) and Assistant District Attorney Alan Haney (ADA Haney) to testify at a hearing on a motion to disqualify the prosecutors from involvement in his perjury case as alleged witnesses.

         PROCEDURAL HISTORY

         On November 30, 2016, a Lafayette Parish grand jury charged Defendant, Charles Middleton, with one count of perjury, in violation of La.R.S. 14:123. Defendant is accused of testifying falsely at the August 17, 2016 grand jury investigation of Lafayette City Marshall Brian Pope. On September 25, 2018, the defense filed a motion to disqualify DA Stutes and ADA Haney, wherein he argued that the prosecutors should be recused from his case because they were witnesses to the alleged crime as they were present at the grand jury investigation wherein the alleged perjury occurred on August 17, 2016.

         On October 5, 2018, the defense submitted a letter to the clerk of court requesting subpoenas for both DA Stutes and ADA Haney to testify at the hearing on the defense's motion to recuse. On October 26, 2018, the State filed a "Motion to Quash Defendant's Subpoena and Subpoena Duces Tecum for District Attorney Keith Stutes and Assistant District Attorney Alan Haney" with the trial court. The prosecution alleged the motion for subpoenas did not comport with La.Code Evid. art. 507. On November 2, 2018, the defense filed a formal motion for subpoenas together with a memorandum in support of the motion.

         At the hearing on the motion for subpoenas held on December 14, 2018, the trial court denied Defendant's request in open court. Following the ruling, the defense timely gave notice of its intent to seek, supervisory review and subsequently timely sought an extended return date. The trial court set the first return date for January 12, 2019, and then extended the return date for February 11, 2019. On February 12, 2019 (postmarked February 11, 2019), Defendant, through counsel, timely filed a writ application with this court seeking supervisory review of the trial court's December 14, 2018 ruling denying the defense's request to subpoena both DA Stutes and ADA Haney.

         DISCUSSION OF THE RECORD

         At the December 14, 2018 hearing on the motion for subpoenas, the defense submitted the entire record into evidence as support for the motion, including the bill of indictment, the motion to suppress, and the motions to disqualify. The defense urged that the subpoenas for DA Stutes and ADA Haney, along with the documents requested therewith, were needed as they were essential to the defense, and pursuant to La.Code Evid. art. 507, the trial court was required to order the subpoenas and the production of the evidence unless it was protected by a privilege. Defense counsel affirmed that the request was not for the purpose of harassment, that the request was listed with particularity, that the request was reasonably limited in subject matter, that there were no practical alternative means to obtaining the information, and that prosecutors were subject to the article. See La.Code Evid. art. 507.

         Defense counsel urged that, under State v. Ward, 11-438 (La. 4/25/11), 62 So.3d 55, criminal defendants may call prosecutors to testify at trial if the testimony is relevant, material to the theory of the defense, and not repetitious or cumulative of other evidence. Further, as it was Defendant's burden to show that the evidence was essential to the defense, the defense pointed out that both prosecutors were present and witnesses to the charged perjury, which make the prosecutors eye witnesses. Defendant argued that since intent is at issue, the prosecutors' testimony about Defendant's demeanor, such as whether Defendant was cooperative or evasive, and the circumstances surrounding Defendant's testimony would be relevant at his trial for perjury.

         Defense counsel further contended that another issue at trial is whether the alleged perjury was material to Brian Pope's culpability, the criminal defendant about whose case Defendant was called to testify in the grand jury investigation. The defense claimed the prosecutors would be best qualified to testify as to the materiality of the alleged perjury. The defense then introduced into evidence the testimony of Defendant at the grand jury hearing in the Brian Pope case.

         The prosecution pointed out that the Defendant had waived a jury trial, so his demeanor while testifying before the grand jury would be something best determined by the trial judge. Moreover, the prosecution urged that it is the State's burden of proof at Defendant's trial that the alleged perjury was material to the Brian Pope case. Further, the prosecution intended to call other witnesses who were involved in the Brian Pope case and, thus, able to testify as to the materiality of any false statements. The prosecution pointed out that there is an actual voice recording of the grand jury proceedings such that any evasiveness can be perceived from the recording of Defendant's testimony itself, that the court reporter was an eye witness to the proceeding, that there was a transcript of the grand jury proceeding, and, further, that any questions the defense would ask DA Stutes and ADA Haney about Defendant's demeanor would be speculative.

         At the conclusion of the argument, the trial court denied the request for subpoenas for ADA Haney and DA Stutes. The State noted that it had an open file policy and agreed to provide any documents related to the Brian Pope case. The parties then recorded Defendant's waiver of his right to trial by jury.

         OPINION

         Defendant asserts that "[t]he trial court erred in denying the defendant's request to subpoena the prosecuting attorneys to appear at a motion to disqualify." Defendant contends that "as witnesses in the perjury case, their testimony is necessary to support [Defendant's] motion to disqualify them from also acting as prosecutors on [Defendant's perjury] charge. Their testimony is essential to the theory of the defense for Charles Middleton." Thus, the question posed to this court is actually twofold. One: are the subpoenas necessary for the hearing on the motion to disqualify DA Stutes and ADA Haney? Two: is the testimony of DA Stutes and ADA Haney necessary for Defendant to present a defense in his trial for perjury? The answer to the second question necessarily disposes of the first. An appellate court uses the abuse of discretion standard in reviewing a trial court's decision to deny a motion to subpoena a prosecuting attorney. State v. Tucker, 49, 950 (La.App. 2 Cir. 7/8/15), 170 So.3d 394.

         The defense contends the testimonies of DA Stutes and ADA Haney, as witnesses to the accused offense, are necessary for a just hearing on Defendant's motion to recuse the prosecutors as they are eye witnesses to his alleged perjury offense. Defendant contends that both DA Stutes and ADA Haney were present throughout the grand jury proceedings, participated in investigating Brian Pope and Defendant, and engaged in questioning Defendant at the grand jury hearing. Defendant claims that as both prosecutors were involved in the gathering of evidence and the planning of the questions to ask Defendant, only they can testify to the events leading up to Defendant's alleged crime; thus, forming the basis for the request to disqualify them as prosecutors in the instant case.

         Defendant frames the basis of the underlying perjury charge against him is as follows: Defendant denied knowing a "Mr. Redmond" during the grand jury investigation of Brian Pope; however, the investigation showed Defendant had exchanged emails and had one phone call with Jason Redmond on two separate days occurring ten months before the grand jury testimony, but Defendant had never met Mr. Redmond in person, and the two-day communication was the extent of their relationship. Though there is some evidence Defendant, in his capacity as legal counsel for the City Marshall's Office, prepared a motion to obtain sealed records on Mr. Redmond's behalf at the request of Brian Pope, the defense claims that this was prepared as a "ghost motion" in the name of "Troyce Thorla," that Defendant simply dropped off the pleading with a receptionist, that Defendant never made contact with the ...


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