The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
19-110
STATE OF LOUISIANA
VERSUS
CHARLES MIDDLETON,
A/K/A CHARLES KIRKLAND MIDDLETON
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ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 159454
HONORABLE PATRICK L.MICHOT, DISTRICT JUDGE
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VAN H. KYZAR
JUDGE
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Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.
WRIT DENIED
Brenda Sibille Piccione
James Kirk Piccione
Piccione & Piccione
P.O, Box 3029
Lafayette, LA 70502-3029
337-233-9030
COUNSEL FOR APPELLANT/DEFENDANT:
Charles Middleton
Keith Stutes
District Attorney
Alan Haney
Assitant District Attorney
15 Judicial District
800 South Buchanan Street
Lafayette, LA 70501
337-232-5170
COUNSEL FOR APPELLEE:
State of Louisiana
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 actual recipient, and that Defendant both billed and received
payment from the City Marshall’s Office for drafting the motion and referred to the
drafted pleading in the billing as the “Redmond motion.”
Defendant explained that his motion for subpoenas included the testimony of
ADA Haney and DA Stutes, as well as all related or relevant documents in the
possession of the district attorney’s office at the time of Brian Pope’s grand jury
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hearing, including all documents connected with Defendant and Jason Redmond,
emails between the two, invoices for legal services between Defendant and Brian
Pope or the City Marshall’s Office, and correspondence between Defendant and
Brian Pope or the Marshall’s Office regarding Redmond or the Redmond motion.
Defendant contends perjury cannot be proven unless Defendant actually made a
false statement to the grand jury and additionally asserts that a false statement is not
perjury unless it relates to the material issue or question in controversy.
The defense urges it has shown it has a compelling need for the prosecutors’
testimonies and it has exhausted all other sources of the information it seeks from
the prosecutors’ testimonies. Defendant asserts that he intends to ask the prosecutors
about refreshing a witness’s memory and whether any such methods were used to
refresh Defendant’s memory. Defendant asserts that his statement, without having
his memory refreshed, could have been made as a result of confusion, mistake, or
faulty memory, such that perjury may not exist in the instant case. The defense adds
that it intends to ask the prosecutors to testify as to the materiality of Defendant’s
grand jury statement to the prosecution of Brian Pope. Defense counsel claims that
the information cannot be obtained elsewhere as DA Stutes and ADA Haney are the
only witnesses with information pertaining to the investigation of Mr. Pope.
Because Defendant cannot subpoena the grand jurors, the defense asserts the two
prosecutors are the only ones who can explain how Defendant’s familiarity with Mr.
Redmond affected the grand jury’s decision to indict Mr. Pope.
Pursuant to La.Code Evid. art. 507, prosecutors can only be subpoenaed to
testify under specific circumstances:
A. General rule. Neither a subpoena nor a court order shall be
issued to a lawyer or his representative to appear or testify in any
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criminal investigation or proceeding where the purpose of the subpoena
or order is to ask the lawyer or his representative to reveal information
about a client or former client obtained in the course of representing the
client unless the court after a contradictory hearing has determined that
the information sought is not protected from disclosure by any
applicable privilege or work product rule; and all of the following:
(1) The information sought is essential to the
successful completion of an ongoing investigation,
prosecution, or defense.
(2) The purpose of seeking the information is not to
harass the attorney or his client.
(3) With respect to a subpoena, the subpoena lists
the information sought with particularity, is reasonably
limited as to subject matter and period of time, and gives
timely notice.
(4) There is no practicable alternative means of
obtaining the information.
B. Waiver. Failure to object timely to non-compliance with the
terms of this Article constitutes a waiver of the procedural protections
of this Article, but does not constitute a waiver of any privilege.
C. Binding effect of determination; notice to client. The
determination that a lawyer-client privilege is not applicable to the
testimony shall not bind the client or former client unless the client or
former client was given notice of the time, place, and substance of the
hearing and had an opportunity fully to participate in that hearing.
D. Exceptions. This Article shall not apply in habitual offender
proceedings when a lawyer is called as a witness for purposes of
identification of his client or former client, or in post-conviction
proceedings when a lawyer is called as a witness on the issue of
ineffective assistance of the lawyer.
E. The procedural provisions and protections afforded by
Paragraph A of this Article shall extend to lawyers serving as
prosecutors in state, parish, or municipal courts, whether those
functions are exercised in the name of the state of Louisiana or any
parish or municipality, and whether the lawyer is the attorney general
or assistant attorney general, a district attorney or assistant district
attorney, or a parish or municipal prosecutor, and shall extend to
lawyers employed by either house of the Louisiana Legislature.
In State v. Tuesno, 408 So.2d 1269, 1272-73 (La. 1982) (citations omitted),
the Louisiana Supreme Court reviewed a district court’s refusal to subpoena a
prosecuting attorney to testify at a criminal trial:
A trial judge’s discretion in determining issues of relevancy and
competency and in maintaining an orderly presentation of evidence
certainly must yield to the constitutional right of the defendant to call
witnesses and produce evidence in defense to a criminal charge. In our
adversary system, however, the legal counsel for either party is not
generally considered as an ordinary witness because of the very special
professional position of counsel in the system.
Defendant argues that his “purpose” in calling the assistant
prosecutor was to verify that defendant does have a look-alike brother
who was being prosecuted for three counts of armed robbery in another
section of the court and that the location of these robberies occurred in
the same area and on the same weekend. While the defendant did not
state this exact purpose to the trial court, the trial court correctly noted
that defendant had other means to prove the occurrence of the robberies
by the brother and to prove the identity of the brother. The ruling
proved eminently correct, when at the trial, the defendant stated that he
was not accusing his brother of committing the armed robbery for
which defendant was being tried.
In essence, the defendant is contending, not that the robbery of
Phillips was committed by his brother, but that Phillips’ identification
of defendant is patently fabricated and mistaken because the statements
by Phillips to the police about the robber and about what Phillips
“learned” from persons in the neighborhood more closely fitted
defendant’s brother than the defendant himself. This overlooks the
important in-court identification of defendant when he was side by side
with his brother and the street identification before and when defendant
was arrested. This identification was not made by the police from
Phillips’ first description, but from Phillips’ identifying defendant at
the liquor store location where he was when the police arrested him.
Phillips was extensively cross-examined as to his identification of
defendant and it was within the jury’s province to believe Phillips’
identification.
Under the circumstances of this case, we find no error in the trial
court’s determination that the testimony defendant sought to elicit from
the assistant prosecutor was irrelevant. It was also hearsay. The fact
that defendant had a look-alike brother who was being prosecuted for
other armed robberies in another section of the same court, could have
been, and was, established by witnesses other than the assistant
prosecutor.
In another case wherein the trial court allowed subpoenas of prosecutors for a
hearing on whether the district attorney should be recused, the first circuit in State
v. Gates, 08-6, pp. 9-11 (La.App. 1 Cir. 5/15/09), 17 So.3d 41, 47-48, writ denied,
09-1342 (La. 10/9/09), 18 So.3d 1283, affirmed the decision of the trial court and
held as follows:
[T]he narrow issue presented in this writ is whether article 507 or article
508 of the Louisiana Code of Evidence, if either, is applicable to the
subpoena requests and, if so, whether the requirements of the
appropriate article have been met.
The wording of articles 507 and 508 is similar, and the articles
generally provide that a subpoena shall not be issued to a lawyer to
appear or testify in any criminal, civil, or juvenile proceeding where the
purpose is to ask the lawyer to reveal information about a client or
former client obtained in the course of representing the client.
However, the subpoena may be issued if, after a contradictory hearing,
the trial court determines that the information sought is not protected
by any applicable privilege or work product rule and the purpose of
seeking the information is not to harass the attorney or his client, the
subpoena lists the information sought with particularity, is reasonably
limited as to subject matter and period of time, gives timely notice, and
there is no practicable alternative means of obtaining the information.
The court must also determine whether, in a criminal proceeding, the
information sought is essential to the successful completion of an
ongoing investigation, prosecution, or defense, or in a civil or juvenile
proceeding, or in an administrative investigation or hearing, the
information sought is essential to the successful completion of an
ongoing investigation, is essential to the case of the party seeking the
information, and is not merely peripheral, cumulative, or speculative.
We acknowledge that defendant’s request to issue witness
subpoenas was made pursuant to article 507, which is only applicable
to criminal proceedings. The trial court, however, issued the subpoenas
to the assistant district attorneys pursuant to article 508, applicable to
civil proceedings. After a review of articles 507 and 508 and the
particular matter presented herein, we conclude that article 507 applies
in this particular case. Accordingly, defendant’s request for subpoenas
must be analyzed under the requirements of article 507.
Herein, defendant seeks to subpoena the assistant district
attorneys to testify about what they did and said during their
conversations with the sheriff's attorney and defense counsel. There is
no indication, and relator does not argue, that the subpoenas are
requested for the purpose to ask the assistant district attorneys to reveal
information from conversations with the district attorney, or other
assistant district attorneys, which is protected from disclosure by any
applicable privilege or work product rule.
Second, in the context of the facts presented, the purpose does
not appear to be to harass the district attorney or assistant district
attorneys. While relator has argued that defendant created the alleged
basis for his motion to recuse by filing the federal civil rights lawsuit,
relator does not argue that the subpoenas were requested to cause
harassment.
Third, the request for the subpoenas (and the other documents
and arguments presented by defendant) specifically lists the
information sought with particularity, is reasonably limited as to subject
matter and period of time, and gives timely notice. A review of the
request further shows that defendant has narrowly limited the request
to information about conversations between the assistant district
attorneys, the attorney for the sheriff, and defense counsel.
Fourth, other than the testimony by other attorneys, there is no
other practicable means for defendant to obtain the information he
seeks. Defendant may want the testimony of the assistant district
attorneys to corroborate the testimony of other witnesses. Moreover,
defendant may wish to present the testimony of the assistants to avoid
any evidentiary objections and issues presented if other witnesses who
were not actually present during the conversations testify.
Fifth, the information sought is essential to defendant’s
presentation of evidence and the completion of the motion to recuse
proceedings. Since the testimony directly relates to the basis of the
motion to recuse, the information sought is not merely peripheral. Nor
is there is any indication that the information is speculative. We note
that defendant is obviously arguing prosecutorial misconduct to the
charges of resisting an officer and the information sought appears
related to the defense of those charges.
In Ward, 62 So.3d at 55-56, the supreme court again discussed the
appropriateness of a criminal defendant subpoenaing the prosecutor as a witness at
trial:
Although the defendant in a criminal trial has the right to prove
his defense, including the calling of a prosecutor who is otherwise a
competent witness, the prosecutor’s testimony must be relevant and
material to the theory of the defense, and it must not be privileged,
repetitious, or cumulative. See State v. Tuesno, 408 So.2d 1269, 1273
(La. 1982). In a motion to disqualify the prosecutor, the defendant
bears the burden of showing by a preponderance of the evidence that
the prosecutor’s testimony is essential to the completion of his defense
10
and that the information sought cannot be obtained through other
available witnesses. See State v. Bourque, 622 So.2d 198, 216-17 (La.
1993); State v. Tuesno, 408 So.2d at 1272-73; see also La.Code Evid.
art. 507(A); Rule 3.7, Rules of Professional Conduct.
In the instant case, the trial judge specifically found that the
information sought by the defendant from the assistant attorney general,
who had interviewed the victim on one occasion without an investigator
present, could be obtained from other sources. The trial judge had the
benefit of the testimony given at the hearing on the motion to disqualify,
as well as the various statements made by the victim on multiple
occasions. On the showing made by the defendant, we cannot say the
trial judge abused her discretion in finding the defendant failed to carry
his burden of proof.
In State v. A.D.L., 11-1142, p. 9 (La.App. 3 Cir. 5/2/12), 92 So.3d 989, 996,
this court examined the La.Code Evid. art. 507 factors of determining when an
attorney can be called in reference to a criminal case, by looking at an instance when
a defendant’s trial attorney was called to testify at a hearing to determine whether
that defendant validly waived his right to trial by jury:
[T]he trial court did not err when it allowed trial counsel to be
subpoenaed and questioned concerning whether Defendant knowingly
and intelligently waived his right to a trial by jury. All of the
prerequisites of article [507] were satisfied. The information sought
was essential to the completion of the current appeal. The State’s
purpose for issuing the subpoenas was not to harass either the client or
the attorney but to resolve a question ordered to be resolved by this
court. The subpoenas listed the specific information sought and gave
timely notice. Finally, there was no alternative means of obtaining the
information. The only indication in the record that a jury trial was
waived was the fact that a judge trial occurred without objection and
the question was not raised on appeal--it was this court that noticed and
raised the error patent.
In State v. Tucker, 49,950, pp. 23-27 (La.App. 2 Cir. 7/8/15), 170 So.3d 394,
412-14, the second circuit addressed whether the defendants could disqualify the
district attorney and subpoena him for trial.
By assignments No. 9 through 12[,] the defendant alleges that the
trial court erred by denying his motions to subpoena the two prosecutors
from his capital murder trial, testimony of a defense expert, and
testimony of the defendant’s prior counsel. Alicia Tucker joining in
1]
this pretrial motion also raises the same assignment in her assignment
of error number 4. Alicia and Lamondre claim that the prosecutors
were needed as fact witnesses in order to confirm that their intention
during voir dire was not to tell venire members how they should vote if
selected to serve on the jury, “just as Mr. Tucker was not trying to tell
Ms. Griffin how she should vote.” He also intended to ask the
prosecutors the relevant aspects of capital voir dire.
The trial court denied the subpoena motion essentially on
grounds that the testimony of the prosecutors regarding voir dire was
not relevant to the guilt or innocence of the defendant in jury tampering.
The defendants claim[] that Lamondre’s defense against the charge of
jury tampering was that he was merely trying to instruct Ms. Griffin
about voir dire and not trying to tell her how she should vote. The
prosecutor’s testimony would show, he _ reasons, that his
communications with Griffin were intended to achieve the same
purpose as the intention of the prosecutors during their voir dire
examinations of potential jurors, and thus, the jury could conclude
that[,] if the prosecutors were not jury tampering, he was not guilty of
jury tampering.
An opportunity to be heard, an essential component of procedural
fairness, would be an empty one if the state were permitted to exclude
competent reliable evidence. State v. Myers, 583 So.2d 67 (La.App. 2
Cir. 1991). Evidence is relevant if it tends to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. La.
C.E. art. 401. Even relevant evidence may be excluded if it would be
too time consuming or would unnecessarily confuse or excite the
emotions of the jury. State v. Myers, supra. Evidence which is not
relevant is not admissible. La. C.E. art. 402. The trial judge’s
determination regarding the relevancy of offered testimony is entitled
to great weight and should not be overturned absent a clear abuse of
discretion. State v. Myers, supra; State v. Burrell, 561 So.2d 692 (La.
1990). Error may not be predicated upon a ruling which excludes
evidence unless a substantial right of the party is affected, and the
substance of the evidence was made known to the court by counsel. La.
C.E. art. 103(A)(2).
Although the defendant in a criminal trial has the right to prove
his defense, including calling a prosecutor who is otherwise a
competent witness, the prosecutor’s testimony must be relevant and
material to the theory of the defense, and it must not be privileged,
repetitious, or cumulative. State v. Ward, 2011-0438 (La.4/25/1 1), 62
So0.3d 55; State v. Tuesno, 408 So.2d 1269, 1273 (La.1982). The
defendant bears the burden of showing by a preponderance of the
evidence that the prosecutor’s testimony is essential to the completion
of his defense and that the information sought cannot be obtained
12
through other available witnesses. State v. Ward, supra; State v.
Bourque, 622 So.2d 198, 216-17 (La. 1993); State v. Tuesno, supra.
In State v. Ward, supra, the trial court “found that the information
sought by the defendant from the assistant attorney general, who had
interviewed the victim on one occasion without an investigator present,
could be obtained from other sources.” The Louisiana Supreme Court
held that the trial judge did not abuse her discretion in finding that the
defendant failed to carry his burden of proof.
Trial courts are vested with great discretion in determining the
competence of an expert witness, and rulings on the qualification of a
witness as an expert will not be disturbed unless there was a clear abuse
of that discretion. State v. Friday, 2010-2309 (La.App. 1 Cir. 6/17/11),
73 So.3d 913; State v. Berry, 95-1610 (La.App. 1 Cir. 11/8/96), 684
So.2d 439, 456, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603.
As noted above, defendants argue that the testimony of the
district attormmeys who prosecuted the first degree murder trial was
relevant to the capital jury selection process involved in this case and
relevant to their defense that Lamondre was simply trying to inform
Griffin about the process.
We conclude that the trial court correctly denied the motion to
subpoena the two prosecutors in Lamondre’s murder trial for the stated
purpose of presenting his defense. The best evidence of the intent of
Lamondre’s communication with Latisha is the actual communication,
which was available by recording and transcript. The prosecutor’s
testimony regarding their intent during voir dire would have little
relevance, if any, toward showing Lamondre’s intent in contacting
Latisha Griffin. We also agree with the trial court’s conclusion that it
would tend to confuse the jury regarding the elements of the offense.
Even if the information were relevant to Lamondre’s intended defense,
questioning the district attorney’s intent and purpose in questioning
potential jurors during voir dire is clearly privileged and covered under
the attorney work product privilege. The trial court is afforded great
discretion in the admission of evidence and the defendant has made no
showing that the trial court abused its discretion in excluding the
testimony of the prosecutors and defense counsel in this case. This
assignment of error is without merit.
In State in the Interest of M.J., 17-302, pp. 2-3 (La.App. 4 Cir. 5/2/17), 220
So.3d 99, 101, writ denied, 07-730 (La. 5/12/17), 219 So.3d 310, (footnote omitted)
(citation omitted), the fourth circuit held the State could not call defense counsel to
13
testify because there were other practical means by which to obtain the same
information:
Additionally, a subpoena of Ms. Murphy is only permissible if
there is no practicable alternative means of obtaining the information to
which she would testify. La. C.E. art. 507(A)(4). The State argues that
only Ms. Murphy can testify as to what she observed. Nevertheless, the
State’s burden is not to show that no other witness can testify as to what
Ms. Murphy observed, but instead to show that what she witnessed is
necessary to prove the State’s case. Given the number of witnesses and
the audio and video recordings of the alleged incident, Ms. Murphy’s
testimony is not essential to the State’s prosecution. For the same
reason, there are practicable alternative means of obtaining the
information to which she would testify. Therefore, the State has not
met the requirements of subsections (A)(1) and (A)(4).
In the instant case, Defendant asserts the need for the testimonies of DA Stutes
and ADA Haney for various reasons, including that they were present during the
grand jury hearing and, thus, witnessed the alleged crime. However, we note that
there is significant evidence of the events otherwise within the proceedings in the
form of an audio recording thereof, a transcript thereof, and a verifying witness in
the court reporter who transcribed the proceeding, making the evidence to be elicited
from the testimony of DA Stutes and ADA Haney merely repetitious and
cumulative. While Defendant further argues that the testimony of the two
prosecutors is needed concerning Defendant’s demeanor while testifying at the
grand jury investigation, such as whether Defendant was cooperative or evasive, the
best evidence of such lies in the actual recording and transcript, where voice
inflections and responsiveness can be heard and seen directly by the trial judge.
Defendant claims that the testimony of DA Stutes and ADA Haney is needed
to determine the circumstances surrounding his testimony (i.e., the investigation into
the Brian Pope case) and that they would be the individuals best able to testify about
the materiality of Defendant’s statements to the culpability of Brian Pope.
14
Defendant further maintains the information cannot be obtained elsewhere because
ADA Haney and DA Stutes are the only witnesses with information pertaining to
the investigation of Mr. Pope, because Defendant cannot subpoena the grand jurors,
and because they are the only ones who can explain how Defendant’s familiarity
with Mr. Redmond affected the grand jury’s decision to indict Mr. Pope.
We note, however, that there has been no mention of any intent to qualify the
prosecutors as expert witnesses and, further, any such opinion given by the
prosecutors that the alleged false testimony of Defendant as to Mr. Redmond is or
is not material to the Pope trial and investigation is objectionable as “[sJuch
testimony invades the province of the [trier of fact] and usurps its function.” State
v. Young, 09-1177, p. 10 (La. 4/5/10); 35 So.3d 1042, 1048, cert. denied, 562 U.S.
1044 (11/15/10). Further, although maintaining that the information it seeks to
introduce at trial by the testimony of the two witnesses cannot be obtained
elsewhere, Defendant does not explain why the testimony of the investigators and
law enforcement personnel directly involved in the Brian Pope matter would be
unable to provide the information regarding the materiality of Defendant’s
statements.
At the hearing on the subpoena motion, the prosecution asserted that both the
relevant transcripts and voice recordings are readily available to be introduced into
evidence at trial; that there were other witnesses, such as the court reporter, to
Defendant’s statement during the Brian Pope grand jury proceeding; that there were
other people involved in the prosecution of Brian Pope who could be called to testify
about the materiality of any false statements by Defendant; and that any testimony
by the prosecutors regarding Defendant’s evasiveness or sincerity would be
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speculative. Moreover, the defense does not explain how any testimony by the
prosecutors about the investigation of Brian Pope and their part in the development
of the case, as work product, would not be confidential and subject to attorney-client
privilege under La.Code Evid. art. 506. Additionally, while Defendant asserts that
it needs to call the prosecutors as witnesses to give testimony on the materiality of
Defendant’s grand jury testimony to Brian Pope’s culpability, we note that the
materiality of false testimony is a matter of law for determination by the trial court
judge, not a factual question such as to require witness testimony. State v.
Occhipinti, 358 So.2d 1209 (La.1978). As to Defendant’s intent to commit perjury,
according to Tucker, 170 So.3d at 414, transcripts and recordings of a
communication are the best evidence of a defendant’s intent: “The best evidence of
the intent of Lamondre’s communication with Latisha is the actual communication,
which was available by recording [audio recording of a prison phone call] and
transcript.” In the instant case, as in Tucker, both transcripts and audio recordings
of Defendant’s statements are available to the defense.
We find that the trial court did not abuse its discretion in finding that
Defendant failed to meet his burden of proving that the request for subpoenas met
the requirements of La.Code Evid. art. 507, and thus denying Defendant’s request to
subpoena both DA Stutes and ADA Haney. It is the burden of the State to prove the
Defendant’s guilt and all of the elements of perjury beyond a reasonable doubt at
trial. While Defendant argues that his defense hinges on the prosecutors’ focus of
precise questions in the grand jury proceeding and Defendant’s demeanor while
answering the questions, we find that the best evidence of such is the audio recording
of the grand jury proceeding and the accompanying transcript. Thus, Defendant has
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failed to establish that the evidence necessary for his defense is not available by other
means.
Defendant cites multiple cases in an attempt to establish that the prosecutors
here are necessary to his defense, including State v. Marrero, 525 So.2d 203 (La.
App. 5 Cir. 1988); Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595 (1973);
United States v. Bell, 623 F.2d 1132, (Sth Cir.1980); and State v. Williams, 111 La.
1033 (La.1904). However, all of these cases relate to the nature of, proof of, and
sufficiency of evidence necessary to convict one of perjury, not mitigation or
exoneration evidence in defense thereof, and are inapplicable to whether the
subpoenas of the prosecutors in this case should issue. Defendant essentially is
attempting to dictate how the State should conduct its prosecution of the case.
Certainly, the State could, as Defendant would prefer, recuse itself and allow the
Attorney General to take over the prosecution. The DA and ADA may then wish to
offer the Attorney General the use of their testimony. Defendant, however, does not
have the right to dictate this alternative. Rather, “the district attorney has entire
charge and control of every criminal prosecution instituted or pending in his district,
and determines whom, when, and how he shall prosecute.” La.Code Crim.P. art. 61.
As such, the trial court did not abuse its discretion in denying Defendant’s request
for the subpoenas of the prosecutors in this particular case.
As this is a bench trial, the trial judge will be fully able to weigh the evidence,
listen to and read Defendant’s grand jury testimony, assess credibility, and determine
whether the State has proven its case beyond a reasonable doubt based on all the
evidence admitted. We further note that the trial court has the discretion in the
interest of justice to revisit the issue of either prosecutor’s potential testimony as a
constitutional safeguard to preserve Defendant’s right to present a defense should
the same be shown to be essential during trial. Accordingly, the trial court’s decision
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to quash the subpoenas of District Attorney Keith Stutes and Assistant District
Attorney Alan Haney to testify at the hearing on the motion was within its discretion
on the showing made at this stage of the proceedings. Defendant’s writ application
is thus denied.
WRIT DENIED
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