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State v. Roussel

Court of Appeals of Louisiana, Fifth Circuit

July 15, 2019

STATE OF LOUISIANA
v.
TIMOTHY P. ROUSSEL

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ST. JAMES, STATE OF LOUISIANA NO. 75, 23, DIVISION "A" HONORABLE JASON VERDIGETS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA Ricky L. Babin, Charles S. Long Robin C. O'Bannon

          COUNSEL FOR PLAINTIFF/RESPONDENT, STATE OF LOUISIANA, DEPARTMENT OF JUSTICE Jeffrey M. Landry, Grant L. Willis, Barry D. Milligan

          COUNSEL FOR DEFENDANT/RELATOR, TIMOTHY P. ROUSSEL Ralph Capitelli, Brian J. Capitelli, Justine G. Daniel

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

          HANS J. LILJEBERG JUDGE

         Defendant/relator, Timothy P. Roussel, seeks review of the trial court's March 13, 2019 Judgment, which denied his Motion to Quash the Indictment for Violation of Grand Jury Secrecy. Defendant argues that during the grand jury proceedings which led to his indictment, assistant district attorneys for the Parish of St. James ("ADA") disclosed the testimony of prior grand jury witnesses to subsequent witnesses while appearing before the grand jury. Defendant contends these disclosures violated laws governing grand jury secrecy and provided a basis to quash his indictment pursuant to State v. Gutweiler, 06-2596 (La. 4/8/08), 979 So.2d 469. For the following reasons, we grant defendant's writ application and quash his indictment based on our finding that the State violated grand jury secrecy.

         FACTUAL AND PROCEDURAL BACKGROUND

         On September 28, 2016, a St. James Parish grand jury indicted defendant, Timothy P. Roussel, with six counts of malfeasance in office in violation of La. R.S. 14:134. The indictment states that, in his capacity as the St. James Parish President, defendant committed six counts of malfeasance of office when he improperly "gave/donated/loaned" the resources of St. James Parish for the benefit of a private business and several individuals all in violation of La. Const. Art. 7 § 14 and La. R.S. 42:1461. In Count 1, the indictment states defendant "gave/donated/loaned" a gas line, meter and labor costs to Millennium Galvanizing "without a contract with Millenium Galvanizing for the payment of the gas line, meter and labor costs, for the cost of the gas, or the use of or transportation of gas through parish lines."

         Count 2 alleges that defendant authorized St. James Parish to pay $9, 100.00 to drive 24 piles on private property. In Counts 3, 4 and 5, respectively, the State alleges that defendant authorized Blaise Gravois, St. James Parish Director of Operations and Public Works, to use public employees and equipment on private properties to remove a shed (Count 3), demolish a mobile home (Count 4) and remove a playhouse and debris (Count 5). Finally, in Count 6, the State alleges that defendant authorized the use of public employees and public equipment to enhance and/or improve private property for the sole benefit of the private property owner at a cost to St. James Parish in the amount of $25, 000. The indictment alleges that the work provided by the Parish in each of these instances served no legitimate public purpose.

         In his writ application, defendant indicates that on August 22, 2018, the State, though the Office of the Louisiana Attorney General, filed a sealed Motion for In Camera Inspection of Grand Jury Transcripts.[1] Defendant contends he was not notified that the State filed this motion until several months later. In the motion for in camera inspection, the Attorney General's Office indicated it had recently received the transcripts from the grand jury proceedings conducted by assistant district attorneys in the St. James Parish District Attorney's Office, which included testimony from 36 witnesses presented to the grand jury on several different dates starting in June 2016 and continuing through September 2016. Upon receipt, the Attorney General's Office immediately reviewed the materials for "potential exculpatory information or other grand jury irregularities that would require reporting to the Court and/or opposing counsel in accordance with Louisiana Code of Criminal Procedure Article 434.1(B)."[2]

         The Attorney General's Office further explained that it completed "review sheets" for each of the 36 witnesses. On these review sheets, the Attorney General's Office noted "numerous situations where the questioning ADA refers back to grand jury testimony of other witness [sic]." On the review sheet for each witness, the Attorney General's Office noted the page number of the questioning and testimony at issue and coded the interaction as either "G" or "PG," which is short for "Gutweiler/Potential Gutweiler," respectively.[3] The Assistant Attorney General's Office also noted testimony that it considered "potential Brady"[4] material and coded each of these instances as "'PB' with an explanation as to why it might be exculpatory in brackets."[5]

         The Attorney General Office's motion for in camera inspection also provided the trial court with the following discussion of the Louisiana Supreme Court rulings regarding grand jury secrecy in Gutweiler, supra, and State v. Gourgues, 16-2255 (La. 10/16/17), 226 So.3d 1116:

As recently as last year, the Louisiana Supreme Court upheld the principle from Gutweiler when they stated La. Code of Criminal Procedure Article 434 'prohibits the divulgence of testimony and other matters occurring during grand jury meetings.' State v. Gourgues, 2016-2255 (La. 10/16/17) 226 So.3d 1116.
III.
In State v. Gutweiler, 06-2596 (La. 04/08/08) 979 So.2d 469, the Court held a defendant is not required to show prejudice or injury in order to have an indictment quashed for the State's violation of grand jury secrecy because it would be impossible for the accused to prove the injury before the trial. It is not the fact whether prejudice actually resulted that is of primary and vital concern, but that an opportunity was made possible to exert prejudice and influence on members of the grand jury that must be guarded against. The disclosure of the transcript of a witness's grand jury testimony to another witness, prior to his testimony, is a violation of grand jury secrecy no different than that of the presence of an unauthorized person in the grand jury room, and can require quashal of the indictment without the necessity of the accused showing prejudice or injury thereby. Gutweiler at id.

         On October 29, 2018, the trial court issued a judgment with written reasons on the State's motion for an in camera inspection of the grand jury materials. In the judgment, the trial court stated it examined the grand jury material "searching for any evidence that would appear to be exculpatory or favorable to the Defendant, Timothy Roussel, as is required under the Brady standard." The trial court further noted "instances in which there were references to prior grand jury testimony." However, the trial court did not discuss the issue raised by the State as to whether these "references" violated grand jury secrecy pursuant to Gutweiler. Rather, the trial court concluded that after its in-camera review, "there was no evidence of material that would qualify for disclosure under the standards laid out in Brady or its progeny at this time."

         On or about November 16, 2018, defendant filed the motion to quash the indictment at issue before this Court. In his motion, defendant noted that the State admitted to disclosing grand jury witness testimony to other grand jury witnesses. Defendant argued that these disclosures violated La. C.Cr.P. art. 434 and Gutweiler, supra, and that the release of prior grand jury testimony to another grand jury witness is sufficient by itself to quash the indictment.

         The State, in its opposition, conceded that "there were instances where prior grand jury witness testimony was shared with subsequent testifying grand jury witnesses during their questioning under oath before the grand jury." However, it argued that in this case, unlike Gutweiler, all the disclosures took place during the meeting of the grand jury, at which both the grand jurors and the witnesses were sworn to secrecy such that they could not disclose what occurred at the meeting. The State distinguished Gutweiler, noting that in that case, the prosecution gave transcripts of one of the witness' grand jury testimony to two subsequent grand jury witnesses prior to their testimony and outside of the grand jury proceedings.

         The State further argued that there can be no violation of grand jury secrecy during a meeting of the grand jury. It hypothesized that if a grand juror asked a question about another grand juror's testimony, then an indictment would be immediately subject to quashal and "turn grand jury proceedings on their head."

         Defendant filed a response, maintaining that the indictment should be quashed. He argued the State did not contend the disclosures they acknowledged were authorized by any exception set forth in La. C.Cr.P. art. 434, nor did it claim that it had a "compelling necessity" for divulging secret grand jury testimony to other witnesses. He argued that since these are the only situations in which disclosure is allowed, the State's argument that the disclosures were permissible because they took place during the meeting of the grand jury has no legal basis. He further argued that no statutory or constitutional exception to grand jury secrecy authorizes a prosecutor to examine one grand jury witness by disclosing the testimony of another grand jury witness.

         After holding a hearing on the motion to quash the indictment on February 19, 2019, the trial court took the matter under advisement. On March 13, 2019, the trial court issued a judgment with reasons denying the motion to quash. In its judgment, the trial court reasoned the present matter was distinguishable from Gutweiler, because in that matter the prosecutor provided transcripts of a prior grand jury witness to an expert who would testify before the grand jury at a later time. The trial court also noted that it previously reviewed the grand jury transcripts, "did not find any impropriety on the part of the prosecution," and concluded that defendant "made no showing that there was a violation of grand jury secrecy." The trial court also mentioned this Court's decision in a related case, State v. Gravois, 18-615 (La.App. 5 Cir. 2/26/2019) (unpublished writ disposition) (JJ. Chaisson, Johnson, Windhorst), where after reviewing the grand jury transcripts, the Court "found no information contained therein that would warrant under ...


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