Opposition Brief — Evans v. DeRidder Municipal Fire & Police Civil Service Board

Li

_

No. 02-650

NQV 2

IN THE

Supreme Court of the United States

JOHNNY M. EVANS, SR..,

Petitioner,

Vv:

CITY OF DeRIDDER, LOUISIANA and

DeRIDDER MUNICIPAL FIRE &

POLICE CIVIL SERVICE BOARD,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME Court OF LOUISIANA

BRIEF IN OPPOSITION

Davip R. LesTaGE

Counsel of Record

HALL, LestaGe & LANDRENEAU

Attorneys for Respondents

City of DeRidder, Louisiana and

DeRidder Municipal Fire &

Police Civil Service Board

P.O. Box 880

DeRidder, Louisiana 70634

(337) 463-8692

177413 ce}

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

i

PARTIES TO THE PROCEEDING AND

STATEMENT PURSUANT TO RULE 29.4(c)

In addition to the parties listed by Petitioner, the State

of Louisiana should be considered a party hereto pursuant to

28 U.S.C. § 2403(b) and the Louisiana Attorney General

should have been served with the Petition in keeping with

Rule 14.1(e)(v) since Petitioner attacks the constitutionality

of a Louisiana statute and neither the State of Louisiana nor

any agency, officer, or employee thereof is a party.

il

TABLE OF CONTENTS

Page

Parties to the Proceeding and Statement Pursuant to

Rube TOM) . «6s is obs ib ace i

Teble of COMO 6. ii ete eee ll

Table of Cited AWUNOrities «wos cs ese cee cwcewts lil

Siatement Of The Cees... 6x asec eee 1

Reasons for Denying the Petition ............... “

I. Failure To Comply With Rules Of Court And

To Timely Present Questions To Board And sé

ee ee rr iP 4 :

II. Polygraph Results Were Properly Admitted

Into Evidence In The Hearing Of The Civil

Serves DONG o's os v4. beeen eee 5

Ill. The Plea Of Unconstitutionality Was Not

Ap ge ere eee 9

IV. Petitioner’s Due Process Claims Are Unfounded

Pere rere rr rr Pa mes 11

V. Incriminating Statements To Law Enforce-

ment Officers By Eric Pickens Constitute

Competent Evidence And Hearsay Exceptions

+ Sen a ek Ein cw COR ca oc a 15

lil

TABLE OF CITED AUTHORITIES

Page

CASES:

Adams vy. Robertson, 520 U.S. 83, 117 S.Ct. 1028,

See GM URED ED oo ices es iseevecess 5, 10

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,

S.Ct. 511, 151 L.Ed.2d 489 (2001) ........... 5, 10

Babineaux v. Judiciary Commission, 341 So.2d 396

8 ee Pet es Pee ere re 12

Boudreaux v. State, 2001-1329 (La. 2/26/02) 815

EE OS ee aa oar ee 10

Cafeteria & Restaurant Workers Union v. McElroy,

367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230

eee aa tah ae wily ghee Sarde ves & aXe 14

Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct.

BSEw, 880 LBZ SOL C1IF9S) 2. ice cceses 5

Chaisson v. Cajun Bag Supply Co., 97-1255

Ge ee 15, 16

Daubert v. Merrell Dow Pharms, Inc., 209 U.S. 79,

113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ....... 5

Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210,

ppg oe es 17

iv

Cited Authorities

Page

Fields v. State, 98-0611 (La. 7/8/98), 714 So.2d 1244

ek mena dk ata VERE LEON Eee eae 11

Greene v. McElroy, 360 U.S. 474, 79 S.Ct., 3 L.Ed.2d

SPE EE oi ak wee ee ee 8

Hamilton v. Louisiana Health & Human Resources

Admin., 341 So.2d 1190 (La. App. Ist Cir. 1976),

writ refused, 344 So.2d 4 (La.1977) .......... 14

Istre v. Meche, 2000-1316 (La. 10/17/00), 770 So.2d

PED Chaba es eae ee eR eee 10

Kumho v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,

ce me Bs oh re eer 5

Lilley y. Virginia, 527 U.S. 116, 119 S.Ct. 1887,

SGM Eee BOT CLOOOD 0 iver ine cisutons venus 16

Lott v. Department of Public Safety, 98-1920

CLM. SURFS R, TOO SOE i oc chs ideacusins 12, 14

Loudermill v. Dow Chemical Co., 863 F.2d 566

Cte. CE VN obec wa Wine + Oa era beens 7

North v. Russell, 427 U.S. 328, 96 S. Ct. 2709,

Oe Ae Se Cee 6.605 ee es 13

Park v. Huff, 506 F.2d 849 (Sth Cir. 1975), cert.

denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d

TE eae ch oe ee es ees 17

Vv

Cited Authorities

Rowe v. State Farm Mut. Auto. Ins. Co., 95-669

(La. App. 3 Cir. 3/6/96), 670 So.2d 718 ..----:

State v. Catanese, 368 So.2d 975 (La. 1979) ...---

State v. Henderson, 362 So.2d 1358 (La. 1978) ...

State v. Keys, 99-0418 (La. App. 4 Cir. 11/8/00), 772

Ria. RAMEE yg ka bance h eet PRA Pe

State v. Marston, 2000-0589 (La. 3/ 16/01) 780 So.2d

SD Sc ccce kv pee eee

State v. Robinson, 2000-2284 (La. 1/12/01),

Ba GEG. 55> 02980 ere mee

State v. Weaver, 2001-0467 (La. 1/1 5/02), 805 So.2d

ee sp Kead enter ere

U.S. v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261,

140 L.Ed.2d 413 (1998) .----srrrr

United States v. Pasado, 57 F.3d 428 (5th Cir. 1995)

re hed soak a

Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94),

bk Me ARE ca es caccensar errr er

Wall v. Close, 201 La. 986, 10 So.2d 779 (1942) ..

16

17

11

10

12

vi

Cited Authorities

Page

White v. Illinois, 502 U.S. 346, 358, 112 S.Ct. 736,

743, 116 L.BG26 GOB CUSSED ov cceccccceveves 16, 17

Williams v. State, Dept. of Health & Hospitals,

95-0713 (La. 1/26/96), 671 So.2d 899 ......... 10

Williamson v. U.S., 512 U.S. 594, 114 S.Ct., 2431,

CZP Lee GIO CD Cine Sud ech aeeaeeees 15

CONSTITUTIONS:

(a) Constitution of the United States:

PE eT ee re ere 16

pS OE Oe Ee ry ree 16

(b) Constitution of the State of Louisiana:

eee ee 2 eee cre 14

STATUTES:

United States Code:

Be Wis BORE bée nce cee eee eee 4

Pe Ses EE ok es ax eae eke ae i, 4

U.S. Sup. Ct. Rule 14.1(e)(v), 28 U.S.C. ...... 1,4

Vii

Cited Authorities

Page

U.S. Sup. Ct. Rule 14.1(g)(i), 28 U.S.C. ....... 4

U.S. Sup. Ct. Rule 29.4(c), 28 U.S.C. ......... i

Federal Rules of Evidence:

Ptaees TORE, FE ULB: ove cccciccseienes 8

PU TOT BO rs 66 5 eb ee ei ven cees 6

Louisiana Revised Statutes:

is Sees CPT vvon eens ccebenscsasanvs 1]

SOS A re rere 4,9, 11,12

Louisiana Code of Evidence:

PE Sc aceeccsas Veute Cie cease aears 8

TE nook wav aA aAK SSK Eww aKa es 7

EE No'dc ou ia cusace cus neue tnans 4,15

MISCELLANEOUS:

(a) 2 McCormick on Evidence, § 252 ........ 16

(b) Military Rule of Evidence 707 ........... 9

|

STATEMENT OF THE CASE

In the early morning hours of Thursday, August 14, 1997

decedent, Earnest Prater, Jr., was arrested by DeRidder City

Police and taken to DeRidder City Hall to be interviewed.

Petitioner, Johnny M. Evans, Sr. (“Evans, Sr.”), conducted

that interview and at Prater’s request called Beauregard Parish

Deputy Sheriff Betty Pichon, who was a member of the

Beauregard/DeRidder Narcotics Task Force. Evans, Sr. then

put Prater on the phone with Dep. Pichon, whereupon Prater

stated that he knew someone who had about a pound of

marijuana and some cocaine and asked if Dep. Pichon could

come help him because he was being arrested. Evans, Sr.

took the phone and spoke some more with Dep. Pichon, who

along with the other members of the aforesaid Task Force,

Deputy Sheriff Saul Wilson and DeRidder Police Sergeant

John Gott, then went to City Hall to speak with Prater in

person. That meeting led to the arrest of an acquaintance of

Prater’s, Eric Pickens. Prater was not booked, but rather, was

released by the DeRidder Police. Prater cooperated with the

Task Force to some extent thereafter, including gaining the

interest of a friend, Johnny M. Evans, Jr. (“Evans, Jr.”),

Petitioner’s son, in a reverse drug sting, until Prater’s murder

on August 25, 1997.

On August 28, 1997, Dep. Pichon took Eric Pickens to

the DeRidder Police Department and advised Sgt. Gott that

Pickens possibly had information concerning a motive in the

murder of Prater. Pickens was not a suspect in any crime at

that time. However, Pickens then told Sgt. Gott, DeRidder

Police Lieutenant Ricky Johnson and Sergeant Kenny Pine

that some time the week before while Pickens was at Evans,

Sr.’s residence that Evans, Sr. told him Prater was working

for the police and that Prater “busted” Pickens and another

San ae ESR EE SCORE EI CORTE NA et — Sew

2

person. Then, on August 31, 1997 Pickens gave a statement

to Vernon Parish Sheriff’s Deputies which stated that Evans,

Sr. had told Pickens and Evans, Jr., that Prater had turned

Pickens and another person in to the authorities.

After learning of the allegations against Evans, Sr.,

DeRidder Chief of Police Arvin Malone began the official

steps toward an investigation into whether or not Evans, Sr.

actually had divulged confidential information to the effect

that the decedent, Earnest Prater, Jr., was working undercover

to assist law enforcement and that that information led to

the arrest of Pickens on August 14, 1997. The investigation

ultimately led to the polygraph of Evans, Sr., whereupon the

polygraphist rendered a report advising Chief Malone that

Evans, Sr. had not told the entire truth as to all of the questions

pertinent to the issue of whether he revealed the fact that

Prater was the confidential informant whose information led

to Pickens’ arrest. Upon receipt of the polygraphist’s opinion,

Chief Malone recommended on October 29, 1997 that Evans,

Sr. be dismissed from his employment, effective October 31,

1997, to which Mayor Gerald Johnson agreed and approved

the dismissal, effective October 31, 1997.

Evans, Sr. appealed his dismissal to the DeRidder

Municipal Fire and Police Civil Service Board (“Board”),

which held a hearing regarding that termination on December

18, 1997. The aforementioned facts developed in the

investigation were presented to the Board, whereupon the

Board found that the alleged violation by Evans, Sr. did occur,

that the appointing authority acted in good faith and for cause

in the discharge of Evans, Sr. and upheld the dismissal, all

by unanimous vote. Both Pickens and Evans, Jr. invoked their

right not to testify when questioned before the Board. After

the Board hearing and the appeal to the District Court, Eric

3

=.

Pickens pled guilty to manslaughter and Evans, Jr. was

convicted of second degree murder concerning the death of

Prater.

On October 9, 2000, the Honorable Stuart S. Kay, Jr.,

Judge, Thirty-sixth Judicial District Court of the State of

Louisiana, in and for the Parish of Beauregard, affirmed the

Board’s decision for the reasons set forth in his REASONS

FOR JUDGMENT AFFIRMING BOARD RULING rendered

on August 26, 2000. (App. Vol. Ip. A-18) Mr. Evans appealed

to the Louisiana Court of Appeal, Third Circuit which

rendered Judgment on June 27, 2001 reversing the District

Court. (App. Vol I p. A-61) On July 9, 2001, Respondents

applied for a rehearing to the Court of Appeal, Third Circuit

regarding its said Judgment and moved for the aforesaid

remand. The Court of Appeal, Third Circuit denied

Respondents’ relief by Judgment on Rehearing rendered

August 8, 2001. (App. Vol. Ip. A-50) An application for writ

of review was taken from the action of the Court of Appeal,

Third Circuit, which was granted by the Supreme Court of

Louisiana on December 14, 2001. (App. Vol. II p. A-125)

On April 3, 2002 the Supreme Court of Louisiana reversed

the Court of Appeal, Third Circuit and reinstated the District

Court’s decision upholding the termination of Evans, Sr.

(App. Vol. II p. A-167) On April 17, 2002, Evans, Sr. filed

his Application for Re-hearing to the Supreme Court of

Louisiana. Re-hearing was denied on May 24, 2002.

|

4

REASONS FOR DENYING THE PETITION

I.

FAILURE TO COMPLY WITH RULES OF COURT

AND TO TIMELY PRESENT QUESTIONS TO BOARD

AND COURTS BELOW

Petitioner asserts jurisdiction pursuant to 28 U.S.C. § 1257.

The only state statute to which reference is made as being

unconstitutional is La. R.S. 33:2561, which concerns the

procedure for an appeal by an employee in the classified civil

service to the Civil Service Board. He also claims violation of

due process both as it concerns that Section 2561 and as it relates

to articles of the Louisiana Code of Evidence, especially Article

804 B(3).

Mr. Evans’ claim of unconstitutionality of the said

Section 2561 appears to invoke the application of 28 U.S.C.

§ 2403(b). It does not appear that Petitioner has complied

with the Court’s Rule 14.1(e)(v) by reciting in his Petition

that 28 U.S.C. § 2403(b) may apply, nor has Petitioner served

his Petition on the Louisiana Attorney General.

. It is unclear, if, much less where or when, Petitioner

raised any alleged federal questions before the DeRidder

Municipal Fire and Police Civil Service Board, the Thirty-

sixth Judicial District Court of the State of Louisiana, the

Louisiana Court of Appeal, Third Circuit or the State of

Louisiana Supreme Court as is required by Rule 14.1(g)(i)

of this Honorable Court. Since Petitioner’s alleged federal

claims discussed in the arguments on at least his second

through fifth questions apparently were not presented to the

Board or Courts until his Application for Rehearing to the

5

Louisiana Supreme Court. Therefore, those questions were

not timely presented in light of Adarand Constructors, Inc.

v. Mineta, 534 U.S. 103, 122 S.Ct. 511, 151 L.Ed.2d 489

(2001); Campbell v. Louisiana, 523 U.S. 392,118 S.Ct. 1419,

140 L.Ed.2d 551 (1998); and Adams v. Robertson, 520 U.S.

83, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997), and this

Honorable Court should not grant review. Nevertheless,

assuming arguendo that the Court entertains the application,

Respondents will address the alleged federal questions.

—_—~

Il.

POLYGRAPH RESULTS WERE PROPERLY ADMITTED

INTO EVIDENCE IN THE HEARING OF THE

CIVIL SERVICE BOARD

Contrary to Petitioner’s allegations, the Louisiana

Supreme Court’s decision supports the case-by-case

determination of admissibility of expert testimony provided

by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 79, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993), as well as by Kumho v.

Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238

(1999). The decision of Louisiana’s Court of Appeal, Third

Circuit essentially established a per se exclusionary stance

concerning polygraph tests which certainly was contrary to

those decisions of this Court, as well as that dealing with

polygraphs in United States v. Pasado, 57 F.3d 428 (Sth Cir.

1995). Pasado discarded the Fifth Circuit’s prior position of

inadmissibility of polygraph evidence.

The Louisiana Supreme Court reviewed the expertise of

the polygraphist which was developed in the Civil Service

Board hearing and found no irregularities in the methodology,

testing, procedures or accuracy acknowledged by the Board.

6

The District Court’s approval of the Board’s treatment of

that expert testimony in light of Louisiana’s Code of Evidence

Articles 702-703, which were taken from their federal

counterparts, Articles 702-705, F.R.E., was also approved

by Louisiana’s Supreme Court below.

The Louisiana Supreme Court pointed out that deference

is given to such a Board’s conclusions. (App. Vol. II, A-173)

The Court noted the Board’s duty to decide independently

from the facts presented whether the Mayor had good and

lawful cause to terminate Mr. Evans. It also reiterated the

principle that a reviewing court must affirm the Board’s

decision unless it was clearly wrong or manifestly erroneous.

(App. Vol. I, A-173) Such boards can admit evidence which

would not be admissible under the Louisiana Code of

Evidence. (App. Vol. II, A-174) Rule 10.4 of the Rules of

Civil Service Commission, which was followed by the Board

below, was cited by the Court as providing that “ ‘[t]he rules

of evidence as applied in civil trials before the courts of this

state need not be strictly complied with but the board shall

limit evidence to matters having a reasonable relevance to

the issues before the board.’ ” (App. Vol. II, A-174-175) The

Court also found that such evidence must be competent.

(App. Vol. II, A-175) .

As demonstrated in the City’s Exhibit 3 in the Board

Hearing, Mr. Evans was notified by DeRidder City Police

Chief Malone of the complaint lodged against him and that

an investigation was being initiated. That exhibit also shows

that he was represented by counsel at least forty-four (44) of

the fifty-nine (59) days between notification and termination.

It also reveals that his counsel wrote the Chief no fewer

than nine (9) times concerning Mr. Evans’ rights and the

investigation, including the Chief’s offer to allow Mr. Evans

7

to select the polygraph examiner to conduct the polygraph.

That same attorney represented Mr. Evans before the Board

where he vigorously cross-examined the polygraphist

concerning his training, experience, expertise, machine,

methodology and results. The Board, which had an

independent legal counsel who actively participated, admitted

the polygraph results and found Mr. Evans’ termination to

be in good faith and for cause.

The District Court rejected Petitioner’s citations and

argument regarding the use of polygraph here. That Court

pointed out that in each of the cases -cited by Mr. Evans —

the Courts exercised discretion by excluding polygraph

examinations due to irregularities peculiar to each such case.

The District Court pointed out that no such irregularities

appeared in this case, but rather, “the conditions appeared to

be optimum as required by Catanese.” (App. Vol. I, A-25)

That Court went on to favorably compare the proceedings

before, and decision by, the Board to the principle set forth

in Rowe v. State Farm Mut. Auto. Ins. Co., 95-669 (La. App.

3 Cir. 3/6/96), 670 So.2d 718, 728:

‘As a general rule, the factual basis of an

expert’s opinion goes to the credibility of the

testimony, not its admissibility, and it is up to the

opposing party to examine the factual basis of the

opinion in cross-examination. Loudermill v. Dow

Chemical Co., 863 F.2d 566 (8th Cir. 1988).’

(App. Vol. I, A-26). Clearly, the District Court relied upon

Louisiana Code of Evidence Articles 701 through 704

regarding expert testimony in affirming the acceptance of

polygraph evidence by the Board and its reliance upon same

in upholding Mr. Evans’ termination. Contrary to Petitioner’s

8

assertion, Louisiana Code of Evidence 104(a) and its

counterpart, Federal Rule of Evidence Article 104(a), do not

dictate otherwise.

The Louisiana Supreme Court rejected Petitioner’s

position that the polygraph results were inadmissible, noting

that “ ‘Louisiana courts have long recognized that a civil

service employee may be ordered to take a polygraph and

that the employee can be suspended or discharged for failing

to take a polygraph.’ ” (App. Vol. II, A-175-176) Further the

Court acknowledged several reasons to treat evidentiary

matters before boards differently than before criminal courts.

~ (App. Vol. II, A-178) Similarly, it reiterated that a police

officer is burdened with a special position of being

“* “a symbol of public trust and law enforcement who must

remain above all suspicion which might tend to lessen this

image and that of the entire police department’ ”, thereby

demanding “ ‘an immediate corroboration of his statement

denying any wrongdoing. .. .” ” (Citation omitted) (App. Vol.

II, A-179) In addition, the Court noted that legislation had

been enacted in Louisiana regulating polygraph examiners

following a previous ruling by it in a criminal case rejecting

admission of polygraph results, thereby evidencing current

approval of polygraph examinations 1n- Louisiana. Further,

the Court found that the Board was justified in admitting the

polygraph evidence since it met the test for “competency” in

that it had “ ‘some degree of reliability and trustworthiness

and is of the type that reasonable persons would rely upon.’ ”

(App. Vol. II, A-180)

Petitioner cited Greene v. McElroy, 360 U.S. 474, 79

S.Ct. 1400, 3 L.Ed.2d 1377 (1959) for the first time in his

Application for Rehearing to the Louisiana Supreme Court.

He cites it here, also. This Court in Greene found it prejudicial

9

not to make reports available to the Petitioner. No such

deprivation existed here, rather, Petitioner was furnished with

the materials of which he complains, including polygraph

results and statements of Eric Pickens to law enforcement.

Counsel for Mr. Evans had the right to subpoena witnesses,

including law enforcement officers to whom Pickens spoke,

and to subpoena documents, and he did both. He had the

right to thoroughly cross-examine witnesses, including the

polygraphist, and he engaged in such extensive cross-

examination.

Petitioner’s reliance upon U.S. v. Scheffer, 523 U.S. 303,

118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) is also misplaced.

Scheffer dealt with an appeal by an airman who was convicted

by a general court-marshal and complained that his defense

was thwarted by Military Rule of Evidence 707 which

declares polygraph evidence inadmissible in court-marshals.

As this Honorable Court noted, that Rule was the result of a

declaration by the President. Obviously, no such rule exists

in Louisiana. The Louisiana Supreme Court’s decision below

to leave the determination of admissibility of polygraph

evidence to the Board, subject to judicial review as was done

here, is the sounder rule.

III.

THE PLEA OF UNCONSTITUTIONALITY

WAS NOT TIMELY RAISED

Mr. Evans ascribes unconstitutionality at least to

Louisiana Revised Statutes Title 33, Section 2561. Since Mr.

Evans did not contest the unconstitutionality by specially

pleading such a claim and particularizing the grounds for

that claim until now, he cannot be heard to contest it before

10

this Honorable Court. See Adarand Constructors, Inc. v.

Mineta, supra, and Adams v. Robertson, supra. As stated in

Istre v. Meche, 2000-1316 (La. 10/17/00), 770 So.2d 776,

779, relying upon Williams v. State Dept. of Health &

Hospitals, 95-0713 (La. 1/26/96), 671 So.2d 899 and Vallo

v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d

859:

‘First of all, the plea of unconstitutionality must

first be made in the trial court. Next, the plea of

unconstitutionality.must be specially pleaded.

Finally, the grounds outlining the basis of

unconstitutionality must be particularized.’

Williams, 95-0713 at pp. 4-5, 671 So.2d at 902

(internal citations omitted). These procedural rules

exist to afford interested parties sufficient time to

brief and prepare arguments defending the

constitutionality of the challenged statute. Vallo,

94-1238 at p. 9, 646 So.2d at 865. This

opportunity to fully brief and argue the issue

provides the trial court with thoughtful and

complete arguments relative to the issue of

constitutionality and furnishes reviewing courts

with an adequate record upon which to adjudge

the constitutionality of the statute.

The Louisiana Supreme Court will not consider such claims

when they have not been pleaded before and addressed by

the District Court. See Boudreaux v. State, 2001-1329

(La. 2/26/02) 815 So.2d 7.

11

IV.

PETITIONER’S DUE PROCESS CLAIMS

ARE UNFOUNDED

Assuming arguendo that the Court entertains Mr. Evans’

argument on questions I and II, however, his reliance upon

the Due Process clauses of the Constitution is not well

founded. Under Louisiana law statutes are presumed to

be constitutional and any doubt in that regard is resolved in

favor of constitutionality. See State v. Weaver, 2001-0467

(La. 1/15/02), 805 So.2d 166, 170. An attack upon a statute

such as La. R.S. 33:2561, which concerns termination of a

classified civil servant such as Mr. Evans, requires Mr. Evans

to carry the heavy burden of proving violation of substantive

due process and/or procedural due process. He did not timely

make that argument in the Louisiana courts and his argument

here fails to carry that burden.

Fields v. State, 98-0611 (La. 7/8/98), 714 So.2d 1244,

1250 discusses the two distinct protections afforded by the

due process clauses of the Louisiana and federal constitutions,

namely, substantive due process and procedural due process.

The Court there went on to point out, “a court looks only at

whether a particular legislative measure was a rational way

to correct a problem” and that “the test of substantive due

process is whether the regulation is rational in relation to the

goal sought to be obtained and is adopted in the interest of

the community as a whole.” (Citations omitted) Jd. at 1250.

Certainly Louisiana’s statutory law establishing the grounds

for discipline of a classified city civil servant for commission

of an act prejudicial to the departmental service or contrary

to the public interest under La. R.S. 33:2560 A.3. is a

regulation which is rational in relation to the goal of

i S—a

12

maintaining standards of service through disciplinary action

which was adopted in the interest of Louisiana’s cities and

their citizens. So is La. R.S. 33:2561. The notification of

Mr. Evans of the investigation, the exchange between

Mr. Evans and/or his attorney and Police Chief Malone for

almost two (2) months concerning the investigation and

polygraph, the notice of discharge and right to a hearing to

which Mr. Evans availed himself and the ultimate appeal of

the decision of the Board all evidence that Mr. Evans was

not arbitrarily deprived of his position of trust as a DeRidder

City Police Officer, so substantive due process has not been

denied him. See Babineaux v. Judiciary Commission, 341

So.2d 396 (La. 1976).

Mr. Evans also complains that he was denied due process

by not being afforded a hearing before a qualified attorney-

Judge or a trial de novo subsequent to the administrative

hearing. However, as the Louisiana Supreme Court stated in

Lott v. Department of Public Safety, 98-1920 (La. 5/18/99),

734 So.2d 617 at p. 621:

In Wall v. Close, 201 La. 986, 10 So.2d 779,

784 (1942), this Court previously noted that ‘[n]o

one has a vested right in any given mode of

procedure.’ Our state may determine the process

by which legal rights are asserted and enforced

so long as a party receives due notice and an

opportunity to be heard. Jd.

Exhibit City 3 evidences that Mr. Evans was made well aware

of a complaint having been lodged against him in an

investigation concerning his allegedly telling his son, Johnny

M. Evans, Jr., and Eric L. Pickens, a good friend of his son,

that Earnest Prater, Jr. was a confidential informant and that

ee ee

‘

Ss

=

5

Mu

£

}

i

13

his information led to Pickens’ arrest. The documents

constituting that Exhibit City 3 make it clear that the alleged

offense was a serious one which could lead to termination

from Mr. Evans’ employment. That fact was obviously well

understood as can be seen from the letters of Mr. Evans’

attorney who represented him vigorously and well by

continuously maneuvering tactically to defend and benefit

Patrolman Evans. Those defense tactics included hints of civil

action against the City concerning the administration of a

polygraph test. They also included delaying tactics

concerning such a polygraph test. As mentioned hereinabove,

Mr. Evans nevertheless submitted to a polygraph test. When

Chief Malone considered the polygraph test results, as well

as the investigation he instigated, which included two (2Z)

statements of Eric L. Pickens, Mr. Evans’ son’s friend, which

incriminated Mr. Pickens with information to the effect that

Patrolman Evans had disclosed to Mr. Pickens and Johnny

M. Evans, Jr. that Earnest Prater was a confidential informant,

Chief Malone recommended dismissal of Mr. Evans. Mayor

Johnson concurred and dismissed Mr. Evans, whereupon Mr.

Evans availed himself of the administrative hearing process

afforded by the aforesaid statutes, which involved his calling

of witnesses, testifying himself and cross-examining the

City’s witnesses, all of which resulted in the Board’s

affirming the Mayor’s action, whereupon Mr. Evans availed

himself of the judicial review process afforded him by those

laws. It is worthy to note that the Board retained an

independent attorney advisor to assist it in matters such as

determination of admissibility of evidence. The record of

that hearing clearly reflects that the Board in fact relied upon

the advice of that attorney.

Mr. Evans’ reliance upon North v. Russell, 427 U.S. 328,

96 S.Ct. 2709, 49 L.Ed.2d 534 (1976) is misplaced. North

14

dealt with due process in the context of a judicial tribunal, albeit

a police court in which by statute the Judge did not have to be

an attorney. In the matter sub judice, an administrative

proceeding was involved. In Lott, supra, the Louisiana Supreme

Court cited Hamilton v. Louisiana Health & Human Resources

Admin., 341 So.2d 1190, 1193 (La. App. Ist Cir. 1976), writ

refused, 344 So.2d 4 (La. 1977) with approval as follows:

ee

wr -

RAGES Ee OT BR ee ES NI eee

In Hamilton, the appellant argued that an appeal

hearing should be held before the State Civil Service

Commission, or at least one member of that

commission, who could see and hear witnesses and

assess their credibility. Absent such presence on the

part of the commission, the appellant urged that the

appointment of a referee to hold a hearing and take

evidence was a denial of due process. The court,

observing that procedural due process as applied in —

the field of administrative law is more flexible than

its application in a judicial tribunal, held that the

opportunity of the State Civil Service Commission

to hear witnesses was not an ‘indispensable

prerequisite’ to due process in administrative

hearings so long as the party involved is afforded

ample opportunity to confront and cross examine

witnesses and to present his own case in full.

Hamilton, 341 So.2d at 1193-94 (citing Cafeteria &

Restaurant Workers Union v. McElroy, 367 U.S. 886,

81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)). Furthermore,

as Article 10, Section 12 of our state constitution is

the source of the State Civil Service Commission’s

authority to appoint a referee to take testimony, the

court concluded that to require a regular trial in such

circumstances would result in a negation of that

constitutional provision. /d. at 1194.

‘

i

’

15

V.

INCRIMINATING STATEMENTS TO LAW ENFORCE-

MENT OFFICERS BY ERIC PICKENS CONSTITUTE

COMPETENT EVIDENCE AND

HEARSAY EXCEPTIONS

Petitioner claims that two (2) statements to law

enforcement officers by Eric Pickens, who claimed his right

not to testify before the Board and later pleaded guilty to

manslaughter in the death of Prater, incriminating himself

and that Mr. Evans told him and the other convicted killer

that Prater furnished information to law enforcement which

led to Pickens’ drug arrest, were erroneously admitted by

the Board. Petitioner cites Williamson v. U.S., 512 U.S. 594,

114S.Ct., 2431, 129 L.Ed.2d 476 (1994), a criminal case, in

support of his position. There, this Honorable Court

remanded for determination of whether statements were truly

self-inculpatory. The Louisiana Supreme Court determined

here that Pickens’ statements were self-inculpatory and also

inculpated Mr. Evans, just as the District Court did in

affirming the Board’s admitting those statements. The

Louisiana Supreme Court also found the statements were

properly considered by the Board pursuant to Louisiana Code

of Evidence Art. 804 B(3). It pointed out that the statements

constitute competent evidence pursuant to Chaisson v. Cajun

Bag & Supply Co., 97-1255 (La. 3/4/98), 708 So.2d 375 and

were thus admissible in an administrative hearing. (App. Vol.

II, A-186)

Petitioner also claims his right to cross-examine has been

denied by admission of Pickens’ statements. Again, Pickens

invoked his right not to testify before the Board. However,

Mr. Evans testified and denied that he told Pickens or his

16

son any such incriminating information. Counsel for Mr. Evans

could have called as witnesses the two (2) different law

enforcement agencies’ officers to whom Pickens made the

statements but apparently chose not to. As Lilley v. Virginia,

527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) provides,

the Confrontation Clauses of the Sixth and Fourteenth

Amendments apply to criminal defendants. The Louisiana

Supreme Court in Chaisson, supra, acknowledged the inability

of counsel to cross-examine as to such statements in an

administrative hearing and allowed the use of same. In a similar

matter that Court in State v. Marston, 2000-0589 (La. 3/16/01),

780 So.2d 1058, rejected an analogous objection as to business

records and stated at p. 1064:

We therefore find no particularized basis in the

present case for departing from the general rule

that a defendant’s right to confront his accusers is

satisfied if hearsay evidence ‘has sufficient

guarantees of trustworthiness to come within a firmly

rooted exception to the hearsay rule.’ White v.

_ Illinois, 502 U.S. 346, 358, 112 S.Ct. 736, 743, 116

L.Ed.2d 848 (1992); see 2 McCormick on Evidence,

§ 252 p. 125 (‘[H]earsay falling within a traditional

or “firmly rooted” exception to the rule will be

admissible under the Confrontation Clause. Where

the exception does not require unavailability because

of the theoretical superiority of the out-of-court

statement, the Constitution does not require it.’

(footnote omitted).

17

The Court also relied upon White v. Illinois, supra, in

State v. Robinson, 2000-2284 (La. 1/12/01), 776 So.2d 431 in

discussing admissibility of excited utterances at p. 432:

Assuming that the state meets the foundational

requirements for this firmly rooted hearsay

exception, see State v. Henderson, 362 So.2d 1358,

1361 (La. 1978), the introduction of a victim’s

excited utterance does not violate the Confrontation

Clause even when it constitutes the only direct

evidence that the defendant committed the offense.

Louisiana’s Court of Appeal, Fourth Circuit in State v. Keys,

99-0418 (La. App. 4 Cir. 11/8/00), 772 So.2d 918, 923 permitted

the use of such statements since the opponent of those statements

was permitted to fully cross-examine the witnesses to the out-

of-court statements at issue. The Fourth Circuit cited its opinion

in State v. Henderson, 95-0267 (La. App. 4 Cir. 4/3/96), 672

So.2d 1085, writ denied, 96-1160 (La. 10/11/96), 680 So.2d

648 for that same proposition. Henderson, supra, at 1090, noted

that Park v. Huff, 506 F.2d 849, 860 (Sth Cir. 1975), cert. denied,

423 US. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975) allowed such

statements when the opponent was afforded the opportunity to

cross-examine the witnesses thereto. Henderson, supra, also

found that proposition to be in accord with Dutton v. Evans,

400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

Here the Board obviously determined the statements of

Pickens to be consistent. The Louisiana Supreme Court decided

that the Board was entitled to make the determinations as to

consistency and the weight to be given those statements and

refused to reverse as being manifestly erroneous. That decision

should be upheld.

18

CONCLUSION

For the foregoing reasons, it is respectfully urged that

the Petition for Writ of Certiorari to review the judgment of

the State of Louisiana Supreme Court be denied.

Respectfully submitted,

Davip R. LESTAGE

Counsel of Record

HALL, LESTAGE & LANDRENEAU

Attorneys for Respondents

City of DeRidder, Louisiana

and DeRidder Municipal Fire

& Police Civil Service Board

P.O. Box 880

DeRidder, Louisiana 70634

(337) 463-8692