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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1108

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0637%3A4. Public record. Not legal advice.