State of Louisiana v. Leslie C. Thompson ( 2017 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #044
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 18th day of September, 2017, are as follows:
BY WEIMER, J.:
2015-K-0886 STATE OF LOUISIANA v. LESLIE C. THOMPSON (Parish of Jackson)
For the foregoing reasons, we reverse the judgment of court of
appeal, vacate defendant's convictions and sentences, and remand
this matter to the district court for a new trial as to Count 1
of the malfeasance charge.
REVERSED, VACATED, AND REMANDED
JOHNSON, C.J., concurs in part, dissents in part and assigns
reasons.
GUIDRY, J., concurs in the result.
CLARK, J., concurs in part; dissents in part and dissents in part
and assigns reasons.
CRICHTON, J., concurs in part, dissents in part and
assigns reasons.
GENOVESE, J., concurs in the result.
09/18/17
SUPREME COURT OF LOUISIANA
No. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Jackson
WEIMER, Justice
We granted certiorari in this case primarily to consider defendant’s contentions
that: (1) the evidence was insufficient to support his convictions on three counts of
malfeasance in office, (2) the district court erred by permitting the state to introduce
unduly prejudicial “other bad acts” evidence under La. C.E. art. 404(B) and the court
of appeal compounded that error by applying a faulty “harmless error” analysis in
assessing the effect of the erroneous admissions, and (3) the district court erred in
denying his motion for a mandatory mistrial under La. C.Cr.P. art. 770 due to the
prosecutor’s references to race.
After reviewing the evidence in this case from the perspective of a rational trier
of fact who interprets that evidence as favorably to the prosecution as any rational
trier of fact could, we conclude that the evidence was sufficient to find defendant
guilty beyond a reasonable doubt as to Count I of the malfeasance in office charge;
however, as to Counts II and III, we find that no rational trier of fact could have
found defendant guilty beyond a reasonable doubt. Pretermitting all other
assignments of error, we additionally find that the district court erred in denying
defendant’s motion for a mandatory mistrial after the prosecutor directly referenced
race in a comment before the jury that was neither material nor relevant and that could
create prejudice against defendant in the minds of the jury members. Accordingly,
we vacate defendant’s convictions and sentences, and remand this case to the district
court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Defendant Leslie C. Thompson assumed the office of mayor of the town of
Jonesboro on January 1, 2007. On March 5, 2013, during his second term of office,
the state filed a bill of information charging defendant, as a principal, with three
counts of malfeasance in office in violation of La. R.S. 14:134 (“Malfeasance in
office”), La. R.S. 14:24 (“Principals”), and La. R.S. 33:404 (“Duties of mayor”).
Specifically, the bill of information alleged that Mayor Thompson:
being a public officer or public employee, did intentionally fail to
perform a duty required of him, as such officer or employee, and
intentionally performed such duty in an unlawful manner, and
knowingly permitted other public officers and public employees, under
his authority, to intentionally refuse or fail to perform such duty lawfully
required of him, or perform such duty in an unlawful manner by failing
to direct the administration and operation of the Town of Jonesboro,
including all municipal departments, offices, and agencies, in
conformity with provisions of state law, in that
Count I: on or about June 30, 2007 through June 30, 2012, in violation
of La. R.S. 24:513, La. R.S. 24:518, La. R.S. 44:36, and La. R.S. 44:412,
he:
1. neglected, failed or refused to furnish the legislative auditor with
such papers, accounts, books, documents, films, tapes, and other
forms of recordation, including but not limited to computer and
recording devices, whether confidential or otherwise, that the
legislative auditor has the right to inspect and examine, and
2
2. denied the legislative auditor access to the office, or to papers,
accounts, books, documents, films, tapes, and other forms of
recordation, including but not limited to computer and recording
devices, whether confidential or otherwise, that he has the right
to inspect or examine, and
3. refused, failed, or neglected to transmit to the legislative auditor
reports, statements of accounts or other documents upon request
as provided by law, and
4. obstructed or impeded, in any manner, the legislative auditor in
making the examination authorized by law, and
5. failed to exercise diligence and care in preserving the public
records of the Town of Jonesboro for the period or periods of time
specified by law for such public records or not preserving and
maintaining those records for a period of at least three years from
the date on which the public record was made, and
6. failed to establish and maintain an active continuing program for
the economical and efficient management of the records of the
Town of Jonesboro, and
Count II: between January 2011 and June 2012, in violation of La. R.S.
14:67, La. R.S. 11:1751, and La. R.S. 11:1732(13) he misappropriated
or took, with the intent to deprive permanently, a thing of value of a
value of one thousand five hundred dollars or more, to-wit: public funds
belonging to the Town of Jonesboro in the amount of $13,720.75, which
belong to another, without the consent of the other to the
misappropriation or taking, and by means of fraudulent conduct,
practices, or representations, specifically by providing payments of
public funds to the Municipal Employees Retirement system for
employees who were not actively employed on a permanent regularly
scheduled basis of at least thirty-five hours per week, and
Count III: between January 2011 and June 2012, in violation of, La.
R.S. 14:68 he took or used, without the intent to deprive permanently,
a movable, to-wit: public funds belonging to the Town of Jonesboro in
the amount of $38,072.06, which belong to another, without the consent
of the other to the taking or use, and by means of fraudulent conduct,
practices, or representations, specifically by providing payments of
public funds for Blue Cross Blue Shield of Louisiana insurance
premiums for non-employees of the Town of Jonesboro.
3
Following the institution of prosecution, numerous pre-trial motions were
filed,1 including among them, a notice filed by the state seeking to introduce other
crimes, wrongs, or acts pursuant to La. C.E. art. 404(B). A contradictory hearing on
the Article 404(B) notice was held, at which the state presented the testimony of
several witnesses in an attempt to establish the admissibility of 11 “other bad acts”
allegedly committed by defendant. At the conclusion of that hearing, the district
court determined that the probative value of the “bad acts” evidence outweighed its
prejudicial effect and, therefore, allowed each act alleged in the Article 404(B) notice
to be introduced into evidence.
The case then proceeded to trial, with jury selection beginning on August 26,
2013, followed by testimony commencing on August 29, 2013. During the
examination of one of the state’s initial witnesses, the prosecutor made a reference
to race in the presence of the jury, stating that “there’s been an allegation made ...
[that] the Mayor has been harried by various conservatives and or white people.”
Defendant objected and moved for a mistrial on grounds the prosecutor was injecting
race into the proceedings. The district court overruled the objection and denied the
motion for mistrial, reasoning that the defense had alluded to race during voir dire
and the opening statement and, thus, the state was entitled to rebut the racial
implications.
Defendant subsequently filed a written motion for mistrial alleging that racial
issues had clearly become a factor in the trial. Defendant pointed out that both parties
had questioned potential jurors regarding racial fairness during voir dire and several
members of the venire had expressed concern that any verdict (guilty or not guilty)
1
By way of illustration, defendant filed motions to quash, a motion to recuse the trial judge, a
motion for security measures, a motion for a sequestered jury, and several motions regarding jury
instructions.
4
would divide the community further. Defendant also argued that the prosecutor’s
reference to “white people” in the presence of the jury was a mandatory, and not a
permissive, ground for a mistrial under La. C.Cr.P. art. 770. The district court denied
defendant’s motion after hearing argument from the parties. Defendant then sought
writs on the ruling, which the court of appeal denied, finding no palpable error in the
ruling and that defendant had an adequate remedy on appeal. State v. Thompson,
48,848 (La.App. 2 Cir. 9/11/13) (unpub’d).
Testimony continued and finally concluded on September 10, 2013. At the
close of deliberations, the jury unanimously found defendant guilty as charged of all
three counts of malfeasance in office. Following the denial of his motion for new
trial, the district court sentenced defendant as follows. As to Counts I and II,
defendant was sentenced to serve consecutive terms of three years at hard labor, with
$1,000 fines imposed as to each count. As to Count III, the court sentenced defendant
to five years at hard labor, with all five years suspended, said sentence to run
concurrently with his sentences for Counts I and II, plus a $1,000 fine and court costs.
The court additionally ordered that defendant be placed under supervised probation
for a period of five years following his release from incarceration. Finally, the court
ordered that defendant pay restitution of the town of Jonesboro in the amount of
$51,792.81, which represents the aggregate of the amounts identified in Counts II and
III.
Defendant appealed his convictions and sentences. In a thorough (and lengthy)
opinion, the court of appeal affirmed defendant’s convictions, but vacated his
sentences and remanded for re-sentencing. State v. Thompson, 49,483, p. 92
(La.App. 2 Cir. 3/18/15), 163 So.3d 139, 192.
5
Addressing the sufficiency of the evidence first, the court of appeal concluded
that the state’s evidence was sufficient to prove all three counts of malfeasance in
office beyond a reasonable doubt. With respect to Count I, which charged that
defendant committed malfeasance by failing and/or refusing to maintain proper
records and to supply them to the Louisiana Legislative Auditor, the court of appeal
found the evidence sufficient because it demonstrated the town’s financial records
were so incomplete and disorganized that auditors issued disclaimers for five
consecutive years. The court found sufficient evidence of defendant’s intent to
breach his statutory duties as mayor in the fact that defendant had knowledge of the
poor state of the town’s financial records and did not take sufficient action to remedy
the continuing problems, coupled with the Article 404(B) evidence demonstrating
that defendant failed to provide proper documentation of his own activities as mayor.
With respect to Count II, which charged that defendant committed malfeasance
by taking public funds of the town in the amount of $13,720.75 to pay for retirement
benefits for employees who were not eligible to participate in the Municipal
Employee’s Retirement System, the court of appeal found the evidence sufficient
because it demonstrated that six employees included in the retirement system were
not consistently working 35 hours per week as required for eligibility under town
policy and state law and because defendant continued using the town’s funds to pay
retirement contributions for ineligible employees even after being notified of their
ineligibility. Finally, with respect to Count III, which charged that defendant
committed malfeasance by using public funds of the town totaling $38,072.06 to pay
for health insurance premiums for former employees, the court of appeal found the
evidence sufficient because it showed that defendant continued to sign checks for
health insurance premiums after being notified that former town employees were still
6
included in the premiums, yet he took no action to assist employees in ending the
payments, thereby violating “his statutory duty to properly manage the employees’
and the Town’s resources.” Thompson, 49,483 at 59, 163 So.3d at 176.
The court of appeal then considered the “other bad acts” evidence, finding the
district court erred in admitting the La. C.E. art. 404(B) evidence because the court
did not address the admissibility of each item individually or find defendant’s
commission of the acts was proved by clear and convincing evidence. Addressing
each act individually, the court of appeal further found that out of the 11 “other bad
acts” admitted, five should have been ruled inadmissible either because they were too
dissimilar to the charged conduct to be probative, or the other acts were not proved
by clear and convincing evidence. Nonetheless, the court found the error harmless
because the state presented ample evidence to support the convictions and defendant
failed to show prejudice. Thompson, 49,483 at 75-76, 163 So.3d at 184.
The court of appeal also found that the district court “could have” granted
defendant’s motion for mistrial under La. C.Cr.P. art. 770 because the prosecutor
improperly injected race into the proceedings. However, the court of appeal
concluded the error was harmless because the comment did not appear to have
contributed to the verdict. Thompson, 49,483 at 80-81, 163 So.3d at 187.
Finally, the court of appeal found defendant’s sentences, while individually
within statutory guidelines, were excessive when aggregated, and that the district
court failed to articulate sufficient reasons to run the sentences for Counts I and II
consecutively, as they were based on the same acts and transactions. Thompson,
49,483 at 65-66, 163 So.3d at 179-80. The appellate court also found insufficient
evidence to support the restitution ordered for Count II, because the state failed to
7
show that the loss could not be recovered.2 Thompson, 49,483 at 67, 163 So.3d at
180.
Defendant applied to this court for writs, assigning error to the court of
appeal’s rulings on the sufficiency of the evidence, the denial of requested jury
instructions, the admissibility of Article 404(B) “other crimes” evidence, the denial
of motions to quash on grounds of prescription and double jeopardy, the denial of
defendant’s motion for mistrial, and the denial of motions to bar the prosecutor from
carrying a weapon and to prevent the state’s case agent from serving as bailiff. We
granted writs primarily to address three issues: the sufficiency of the evidence, the
admission of the “other bad acts” evidence pursuant to La. C.E. art. 404(B), and the
denial of defendant’s motion for mistrial. State v. Thompson, 15-0886 (La.
2/24/17), 216 So.3d 55.
LAW AND ANALYSIS
Sufficiency of the evidence
Because the lack of sufficient evidence to sustain defendant’s convictions
would entitle defendant to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 44-
45 (1981), we begin our analysis with defendant’s contention that the evidence was
insufficient to support his convictions for all three counts of malfeasance in office.
See State v. Crawford, 14-2153, p. 19 (La. 11/16/16), 218 So.3d 13, 25 (citing State
v. Mickelson, 12-2539, p. 5 (La. 9/3/14), 149 So.3d 178, 182).
2
In addition to addressing the foregoing issues, the court of appeal found no error in rulings by the
district court regarding jury instructions, a motion to quash on grounds of prescription, a motion to
quash on grounds of double jeopardy and the rule of lenity, a motion to recuse the trial judge, the
revocation of defendant’s bail, a motion to prevent the prosecutor from bringing weapons into the
courtroom, allowing a witness to serve as the state’s case agent, a motion to change venue, a Batson
challenge, a motion to sequester the jury, and a patent error review. Because the court of appeal’s
resolution of these issues is not relevant to our ultimate disposition of this case, we find it
unnecessary to discuss these issues.
8
In both his counseled brief and a pro se supplement, defendant argues the
evidence was insufficient to support his convictions for Counts I, II, and III of the bill
of information charging malfeasance in office because the state failed to provide
evidence of his intentional violation of a statute or law which expressly delineates an
affirmative duty on him in his official capacity.
In addressing a claim regarding the sufficiency of the evidence, the task of the
reviewing court is to determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979). As we have recently reiterated, “[t]he Jackson standard does not
permit this court to substitute its own appreciation of the facts for that of the
factfinder.” Crawford, 14-2153 at 20, 218 So.3d at 26. Neither does it allow the
court to assess the credibility of witnesses or reweigh the evidence. Id. Rather, in a
sufficiency review, “the actual fact finder’s discretion will be impinged upon only to
the extent necessary to guarantee the fundamental protection of due process of law.”
Id. (quoting State v. Mussall, 523 So.2d 1305, 1310 (La. 1988)).
Of particular relevance to the present case is the fact that the deference
demanded by Jackson is not affected when circumstantial evidence forms the basis
of the conviction.3 As we explained in Crawford:
In circumstantial evidence cases, this court does not determine
whether another possible hypothesis suggested by a defendant could
afford an exculpatory explanation of the events. Rather, this court,
evaluating the evidence in the light most favorable to the prosecution,
determines whether the possible alternative hypothesis is sufficiently
reasonable that a rational juror could not have found proof of guilt
beyond a reasonable doubt under Jackson v. Virginia[.]
3
La. R.S. 15:438 describes the rule as to circumstantial evidence as follows: “assuming every fact
to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.”
9
Crawford, 14-2153 at 20, 218 So.3d at 26 (quoting State v. Davis, 92-1623, p.11
(La. 5/23/94), 637 So.2d 1012, 1020). Under Jackson, the test for evidentiary
sufficiency, both direct and circumstantial, is an objective one based on the point of
view of a hypothetical rational trier of fact. See State v. Mack, 13-1311, p. 9 (La.
5/7/14), 144 So.3d 983, 989.
In order to survive defendant’s sufficiency challenge in the present case, the
record must establish that the state proved beyond a reasonable doubt, as to each of
the charged counts, all of the essential elements of the offense of malfeasance in
office. Malfeasance in office is defined in La. R.S. 14:134:
A. Malfeasance in office is committed when any public officer or
public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully
required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee,
under his authority, to intentionally refuse or fail to perform any duty
lawfully required of him, or to perform any such duty in an unlawful
manner.
B. Any duty lawfully required of a public officer or public
employee when delegated by him to a public officer or public employee
shall be deemed to be a lawful duty of such public officer or employee.
The delegation of such lawful duty shall not relieve the public officer or
employee of his lawful duty.
Under this statute, the state must prove the existence of a law or statute
imposing an affirmative duty on the defendant as a public officer and that the
defendant intentionally refused or failed to perform that duty or intentionally
performed that duty in an unlawful manner. State v. Davis, 93-0599 (La. 4/11/94),
634 So.2d 1168, 1170. The duty must be one expressly imposed by law on the public
officer because the officer is entitled to know exactly what conduct is expected of him
10
in his official capacity and what conduct will expose him to criminal charges. State
v. Perez, 464 So.2d 737, 741 (La. 1985). Intent is likewise an essential element of
the offense. As we recently explained:
Louisiana R.S. 14:134 does not criminalize all ethical violations and/or
general derelictions of duty. The object of the malfeasance statute is to
punish a breach of duty committed with the required culpable state of
mind. To this end, the statute expressly limits its application to
instances in which a public officer or employee intentionally refuses or
fails to perform or intentionally performs in an unlawful manner, any
affirmative duty imposed by law upon him in his role as a public
servant. The inclusion in the statute of a criminally culpable state of
mind makes it clear that it applies only where the statutorily required
mens rea is proven beyond a reasonable doubt. Thus, mere inadvertence
or negligence, or even criminal negligence, will not support a violation
of the malfeasance statute because the statute specifies the act or failure
to act must be intentional.
State v. Petitto, 10-0581, p. 13 (La. 3/15/11), 59 So.3d 1245, 1254 (emphasis in
original).
Further, because the state charged defendant as a principal, it must show
beyond a reasonable doubt that defendant had an affirmative duty in his capacity as
a public officer, and that he either intentionally refused to perform that duty or
performed the duty in an unlawful manner himself, or was concerned in the
commission of the intentional refusal to perform that duty or concerned in the
commission of the intentional performance of that duty in an unlawful manner by
another. La. R.S. 14:24.4
The bill of information in this case charges that the duties defendant
intentionally failed to perform (or intentionally performed in an unlawful manner) are
4
La. R.S. 14:24 sets forth the law with respect to principals:
All persons concerned in the commission of a crime, whether present or
absent, and whether they directly commit the act constituting the offense, aid and
abet in its commission, or directly or indirectly counsel or procure another to commit
the crime, are principals.
11
his duties as mayor of Jonesboro. Louisiana R.S. 33:404 establishes the duties of
mayors. It provides, in pertinent part:
A. The mayor shall have the following powers, duties, and
responsibilities:
(1) To supervise and direct the administration and operation of all
municipal departments, offices, and agencies, other than a police
department with an elected chief of police, in conformity with
ordinances adopted by the board of aldermen and with applicable
provisions of state law; however, no such ordinance may limit the
authority granted to the mayor by this Paragraph. All administrative
staff shall be subordinate to the mayor.
(2) To delegate the performance of administrative duties to such
municipal officers or employees as he deems necessary and advisable.
(3) Subject to applicable state law, ordinances, and civil service
rules and regulations, to appoint and remove municipal employees, other
than the employees of a police department with an elected chief of
police. However, appointment or removal of a nonelected chief of
police, the municipal clerk, the municipal attorney, or any department
head shall be subject to approval by the board of aldermen, except that
in the case of a tie vote, the recommendation of the mayor shall prevail.
Furthermore, selection or removal of any person engaged by a
municipality to conduct an examination, review, compilation, or audit
of its books and accounts pursuant to R.S. 24:513 shall be subject to
approval by the board of aldermen of that municipality.
(4) To sign all contracts on behalf of the municipality.
(5) To prepare and submit an annual operations budget and a
capital improvements budget for the municipality to the board of
aldermen in accordance with the provisions of R.S. 39:1301 et seq. and
any other supplementary laws or ordinances.
(6) To represent the municipality on all occasions required by
state law or municipal ordinance.
(7) To be the keeper of the municipal seal and affix it as required
by law.
(8) To sign warrants drawn on the treasury for money, to require
that the municipal clerk attest to such warrants, to affix the municipal
seal thereto, and to keep an accurate and complete record of all such
warrants.
12
(9) To have any other power or perform any other duty as may be
necessary or proper for the administration of municipal affairs not
denied by law.
La. R.S. 33:404(A).
Count I
In Count I, the state charged that defendant, in contravention of his duties as
mayor, committed malfeasance in office by neglecting, failing or refusing to furnish
the Legislative Auditor with such records that the Legislative Auditor has the right
to inspect and examine; denying the Legislative Auditor access to the office, or to
such records, that the Legislative Auditor has the right to inspect or examine;
refusing, failing or neglecting to transmit to the Legislative Auditor reports,
statements of accounts or other documents upon request; and obstructing or impeding
the Legislative Auditor in making the examination authorized by law. In addition,
the state alleged that defendant committed malfeasance in office by failing to exercise
reasonable diligence and care in preserving the public records of the town of
Jonesboro for the period of time required by law and by failing to establish and
maintain an active continuing program for the economical and efficient management
of the records of the town of Jonesboro.
The provisions of law from which these allegations arise derive from the
sections of the Revised Statutes addressing Public Records and the duties of the
Legislative Auditor. Specifically, La. R.S. 24:513 directs that “the legislative auditor
shall have authority to compile financial statements and to examine, audit, or review
the books and accounts of ... municipalities” (among other enumerated entities)
annually, which task may be performed by a licensed certified public accountant
engaged for that purpose, approved by the Legislative Auditor, and acting “in
accordance with generally accepted governmental auditing standards and the
13
Louisiana Governmental Audit Guide.” La. R.S. 24:513(A)(1)(a), (3), (5)(a)(I), and
(6), and (J)(1). In connection with the audit, “the legislative auditor[, or his
designee,] shall have access to and be permitted to [inspect and copy] all papers,
books, accounts, records, files, instruments, documents, films, tapes, and other forms
of recordation of all auditees, including but not limited to computers and recording
devices” of the auditee, and the auditee, its officials and its staff are “directed to assist
the legislative auditor in his work and to furnish such information, reports, aid,
services and assistance as may be requested.” La. R.S. 24:513(A)(1)(a) and (5), (E),
(H)(1), and (I). The neglect, failure or refusal of any auditee or of any public officer
or employee of the auditee to furnish the Legislative Auditor with such records as the
auditor has the right to inspect and examine, the denial of access to such records, or
the commission of any acts which obstruct or impede the Legislative Auditor in
making the examination authorized by law subjects the offending party to fines and
penalties. La. R.S. 24:518(A)(1). Significantly for this case, any public officer of an
auditee who violates the provisions of La. R.S. 24:513 “shall, in addition to the ...
fines and penalties, be deemed guilty of malfeasance and gross misconduct in office,
and subject to removal.” La. R.S. 24:518(A)(2); see also La. R.S. 24:513(K).
In addition to the foregoing provisions of law, La. R.S. 44:412(A) of the law
on public records directs that the head of each state agency5 and its subdivisions must
establish and maintain an active records management system. Specifically, La. R.S.
44:412(A) provides:
The head of each agency of the state and its subdivisions shall
establish and maintain an active, continuing program for the economical
and efficient management of the records of the agency. Such program
5
La. R.S. 44:402(5) defines “agency” as “any state, parish and municipal office, department,
division, board, bureau, commission, authority, or other separate unit of state, parish, or municipal
government created or establish by the constitution, law, resolution, proclamation, or ordinance.”
14
shall provide for: effective controls over the creation, maintenance, and
use of records in the conduct of current business; cooperation with the
division in applying standards, procedures, and techniques designed to
improve the management of records, promote the maintenance and
security of records deemed appropriate for preservation, and facilitate
the segregation and disposal of records of temporary value; and
compliance with the provisions of this Chapter and the rules, and
regulations of this division.
In furtherance of this requirement, La. R.S. 44:36 stipulates the manner in
which public records of public bodies6 must be preserved by the custodians7 thereof.
It provides, in pertinent part:
All persons and public bodies having custody or control of any
public record, other than conveyance, probate, mortgage, or other
permanent records required by existing law to be kept for all time, shall
exercise diligence and care in preserving the public record for the period
or periods of time specified for such public records in formal records
retention schedules developed and approved by the state archivist and
director of the division of archives, records management, and history of
the Department of State. However, in all instances in which a formal
retention schedule has not been executed, such public records shall be
preserved and maintained for a period of at least three years from the
date on which the public record was made. ... [La. R.S. 44:36(A)]
Basically, the state’s theory under Count I was that the town of Jonesboro did
not maintain the public records necessary for an audit in accordance with the
provisions of La. R.S. 24:513, and that the town’s failure to prepare and maintain
such records resulted in the issuance of disclaimers for five consecutive years.
Defendant, as mayor of Jonesboro, had a duty to direct and supervise the
administration of the town in conformity with applicable provisions of state law, but
6
“Public bodies” are defined in La. R.S. 44:1(A)(1) as “any branch, department, office, agency,
board, commission, district, governing authority, political subdivision, or any committee,
subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or
municipal government, including a public or quasi-public nonprofit corporation designated as an
entity to perform a governmental or proprietary function, or an affiliate of a housing authority.”
7
“Custodian” is defined in La. R.S. 44:1(A)(3) as “the public official or head of any public body
having custody or control of a public record, or a representative specifically authorized by him to
respond to requests to inspect any such public records.”
15
by willfully failing to provide audits and to ensure the town prepared and maintained
adequate records to permit an audit, defendant committed malfeasance in office.
The state’s evidence in furtherance of this theory consisted of testimony from
the Louisiana Legislative Auditor, members of his staff who conducted compliance
and investigative audits of the town, and the certified public accountants engaged by
the town to perform its annual audits during the relevant time periods. Daryl Purpera,
the Legislative Auditor, explained that all governmental bodies are required to report
their financial conditions annually, and that municipalities with annual revenues in
excess of $500,000, such as the town of Jonesboro, are required to retain an
independent certified public accountant to conduct auditing procedures and prepare
an audit report. The resultant report can take one of four forms: an unqualified
opinion, a qualified opinion, an adverse opinion, or a disclaimer. Of those options,
the disclaimer is the least desirable, as it is an indication that the books and records
of the governmental body are such that no opinion can be formed as to the financial
condition of the body. In effect, the disclaimer is a type of “non-audit,” as it
represents a finding by the auditor that there is not sufficient documentation to
support a conclusion that the financial statements of the town are accurate. In the
case of the town of Jonesboro, disclaimers were issued by the certified public
accountants hired to conduct annual audits for an unprecedented five consecutive
years: the fiscal years ending June 30, 2008, 2009, 2010, 2011, and 2012.
Mr. Purpera testified that he first became aware of potential problems with the
financial reports of Jonesboro in June 2009. As of that date, his office had not
received an audit report for the fiscal year ending June 30, 2008, although the law
requires the submission of audit reports six months after the end of the fiscal year (or
by December 31 of the calendar year). It was not until July of 2009 that an audit
16
report was submitted for the fiscal year ending June 30, 2008, and that report was a
disclaimer.
Once alerted to a potential problem, Mr. Purpera sent an advisory group from
his staff to Jonesboro to provide advice on how to correct the deficiencies. He sent
advisory groups again in 2010, 2011, and 2012. In addition, the Legislative Auditor
Advisory Council and the Fiscal Review Committee worked with the town to help it
become financially accountable. Mr. Purpera also discussed the town’s problems
directly with defendant. According to Mr. Purpera: “On numerous occasions the
mayor would inform me that he understood what the problems were and that he was
taking necessary action to correct the problems.” Despite these assurances, Mr.
Purpera testified that his office did not see that any action was actually being taken,
as the problems persisted. He confirmed that none of the required audits for 2008
through 2012 was submitted by the legal deadline of December 31 and that defendant
himself wrote to ask for extensions.
As a result of consecutive disclaimers, the Legislative Auditor’s Office
conducted two compliance/investigative audits of the town, the results of which were
published in reports dated June 1, 2011, and March 13, 2013. Mr. Purpera testified
that such audits are typically triggered by reports of misappropriation or illegal
activity, and the auditor’s office responds by sending auditors to act as factfinders to
prove or disprove the alleged violations.
Mr. Purpera explained that his auditors rely on the auditee to provide them with
all necessary records. In the case of the town of Jonesboro, many of the records
requested were nonexistent. Mr. Purpera testified that defendant, as chief
administrative officer of the town of Jonesboro, personally obstructed and impeded
the work of the Legislative Auditor’s office by refusing to provide bank
17
reconciliations, accounts receivable reconciliations, accounts payable reconciliations,
and many other business records that should be maintained. According to Mr.
Purpera, defendant obstructed his auditors in their work by not ensuring the necessary
records were prepared for them in the first place. As an example of defendant’s
personal responsibility for the inadequate record keeping, he pointed to a Gospel
Concert the town sponsored. Defendant and his wife personally assumed
responsibility for selling and collecting the money for tickets, but when asked for
records of how many tickets were sold and at what price points, defendant was unable
to provide those records, leaving auditors unable to determine whether all cash
collected was deposited to the town’s account.
Kevin Kelley and Kunta Osberry, auditors from Mr. Purpera’s office who
worked on the June 1, 2011 compliance audit, expanded on Mr. Purpera’s testimony.
Mr. Kelley testified to the town’s failure to properly document its expenditures. He
explained that the auditors reviewed approximately 435 town expenditures, totaling
approximately $1,100,000, but were unable to find documentation for 172 of these
expenditures, totaling approximately $385,000. Mr. Osberry testified that the town
was given a list of the 172 expenditures and asked to provide supporting
documentation for each, but despite multiple opportunities to do so, the town failed
to provide the requested documentation. Mr. Kelley and Mr. Osberry testified that
days before trial, defendant provided documents that were allegedly those requested
by the auditors. However, Mr. Kelley testified that the third party invoices provided
by the defense were suspicious because they appeared to be in identical format and
did not include information normally found on invoices, such as business name,
address, phone number, email or contact information. Mr. Osberry testified that the
18
invoices were on the same form even though they were from different individuals,
and that supporting documentation for 75 of the expenditures was still missing.
Mr. Osberry recounted that he spent a large amount of his time in Jonesboro
searching through unorganized files for information and that, while some of the boxes
of documents were fairly organized, others were not. He recalled that the accounts
payable clerk had papers scattered over her desk, on the floor, and in filing cabinets.
Based on his observations, it did not appear to Mr. Osberry that the town had a formal
records retention policy in place.
Mr. Osberry reiterated Mr. Purpera’s account of deficient record-keeping with
respect to the Gospel Concert, explaining that defendant, his wife and town
employees collected cash from the ticket sales, but did not keep records about who
collected funds, how much money was collected, or how many and at what price the
tickets were sold, making it impossible to verify that the money deposited was the
actual amount collected. He testified that he personally spoke with defendant about
the need for such records, and defendant told him that “staff did have documentation
showing how much money they collected from the sale of the tickets.” According to
Mr. Osberry, defendant “told us that he would give us that documentation. He would
get it to us and he never did.”
Sandra Whitehead, an auditor in the advisory services section of the Legislative
Auditor’s office, testified that advisory services provides training and performs
assessments. She recounted that she visited Jonesboro from January through March
2011, and again in September 2011 and July 2012. She explained that one of her
duties was to help the town reconcile its bank account, which had not been reconciled
since 2007. Explaining that this was one of the most challenging reconciliations she
had ever performed, she testified that she only reconciled bank statements up to June
19
2009, and her reconciliation required an adjustment of $3.6 million dollars.
According to Ms. Whitehead, the town’s accounting records were incomplete, in
disarray, disorganized, and “a train wreck.” To complicate matters, the town was
transitioning to a new accounting system, no one knew how to close out the old
system, and no one had been trained on the new software. Vendor folders, as well as
any folders related to payroll and Internal Revenue Service, Louisiana Department
of Revenue, and retirement system payments, were “pretty much non-existent.” The
cash receipts and cash disbursement journals for August and July 2008 were never
recovered. The town did not have a records retention schedule on file with the state
archivist as required by La. R.S. 44:411(A),8 and despite a recommendation in the
compliance audit report that a schedule be developed and submitted for approval to
the state archivist, as of the date of trial, no records retention schedule had been filed.
Moreover, because the town had failed to file its audit report in a timely manner for
four consecutive years, it had become ineligible to receive state funds.
As demonstrated by the foregoing, the state presented evidence establishing
that: (1) the independent auditors were unable to complete the audits mandated by La.
8
In pertinent part, La. R.S. 44:411(A) provides:
The secretary, acting through the state archivist, shall establish standards for
the selective retention of records of continuing value, and monitor state and local
agencies in the application of such standards to all records in their custody. To
facilitate this application:
(1) The head of each agency shall submit to the state archivist, in accordance
with the policies, rules, and regulations prescribed by the secretary and the
implementational standards and procedures established by the state archivist,
schedules proposing the length of time each state record series warrants retention for
administrative, legal, or fiscal purposes after it has been created or received by the
agency.
(2) The head of each agency shall also submit to the state archivist lists of
state records in the custody of that agency which are not required for the transaction
of current business and which lack sufficient administrative, legal, or fiscal value to
warrant further retention and request that the state archivist authorize appropriate
disposal.
20
R.S. 24:513 in a satisfactory and timely manner because of the disorganized and
incomplete state of the town’s financial records, (2) the legislative auditors were
stymied in their efforts to obtain necessary documentation, (3)the town had no formal
records retention schedule on file, and (4) the public records that should have been
prepared and preserved for review by the auditors were not. The evidence further
established that defendant was aware that the town was not in compliance with state
law in these respects and that, although he had a duty as mayor “[t]o supervise and
direct the administration and operation of all municipal departments” to ensure that
the departments and employees under his supervision were properly performing their
jobs such that the town was in compliance with state law,9 the town continued to
remain in default of its statutory obligations.
While defendant acknowledges the accounting deficiencies that plagued his
administration, he argues that the evidence is devoid of any proof of intentional
wrongdoing and that, to the contrary, the record demonstrates that he “did everything
humanly possible” to correct the problems once the deficiencies were made known.
He contends that the town’s clerk is statutorily designated as the individual
responsible for management and maintenance of municipal records and that the state
failed to show that he acted as a principal to the clerk’s failure to perform statutorily-
imposed duties or that he intentionally permitted the clerk’s poor records
maintenance. Rather, he maintains that the evidence demonstrates he and his staff
assisted and cooperated with the independent and legislative auditors and
implemented their recommendations. Further, he urges that as mayor of a
municipality governed by the Lawrason Act,10 his actions were constrained by an
9
La. R.S. 33:404(A)(1),
10
La. R.S. 33:321 et seq.
21
obligation to act in conjunction with the town’s Board of Aldermen and that he did
terminate one clerk, although as mayor he had no statutory duty to do so.
Indeed, as defendant argues, there is record evidence of steps defendant took
to try to improve the town’s admittedly deficient record keeping and accounting
practices once defendant was made aware of the town’s failure to comply with state
law. Kenneth Folden, the independent certified public accountant hired to perform
the town’s audit for the fiscal year ending June 30, 2008 (the first full fiscal year after
defendant assumed office), testified that he spoke with defendant on at least a weekly
basis about the problems he was encountering with the audit, which problems
defendant attributed to outdated software and inexperienced staff. In a written
response to the disclaimer audit that was ultimately issued by Mr. Folden, defendant
indicated that the town was in the process of purchasing new software and hiring
additional staff.
The software was purchased as promised, but as the June 1, 2011 compliance
audit reflects, approximately two years later, staff had still not been adequately
trained to use the new system. Defendant did hire Melba Holland, who would later
go on to become town clerk, as an office manager in 2009 to organize the town’s
records and filing system. He hired Earline Knox to organize the town’s grant
information and compliance, and later re-hired her on a contract basis to assist
auditors in 2010 and 2011. He retained certified public accountant Tonya Wade in
2010 to assist in reconciling the town’s bank statements and getting together
schedules for the auditors. The following year, Ms. Wade entered into a joint contract
with the town and the Legislative Auditor’s office to perform services the Legislative
Auditor’s deemed necessary to rectify the town’s accounting problems, including
reconciling accounts, implementing a centralized record-keeping system, developing
22
and implementing an accounting system, and training staff on the new software.
While Ms. Wade was able to accomplish many things on the Legislative Auditor’s
“to-do” list, her contract expired before she was able to complete the work.
Additionally, in 2011, defendant hired Sharetha Houston, who had previous training
in the new Quickbooks software, to enter checks into the new system and assist with
bank reconciliations and payroll. Ms. Houston was fired by defendant the following
year, however, over a dispute with defendant as to whether certain employees were
entitled to holiday pay. Defendant also attempted to hire Mr. Folden as chief
financial officer of the town, but Mr. Folden declined the offer because he “felt like
... you’ve got to want to do it right to do it right.”
In addition to the personnel hires, defendant attended numerous audit advisory
council and fiscal review committee meetings in Baton Rouge, along with members
of his staff. Furthermore, there was evidence offered to suggest that some of the
accounting problems encountered by the town were inherited from the previous
administration. Margie Williamson, the independent certified public accountant
retained by the town to perform the audits for the 2009 and 2010 fiscal years, testified
that in conducting her audits, which resulted in disclaimers for both years, she
discovered outstanding checks dating back to 1995.
Nevertheless, Ms. Houston testified that when concerns about the
incompetence of personnel were brought to defendant’s attention, he did not seem to
be concerned or to want to get involved. Ms. Holland, a former town clerk, verified
that defendant would not force employees to do their jobs and that, when complaints
were brought to defendant, although he promised he would handle matters, he failed
to take action to address the problems she raised. Jonald Walker, the independent
certified public accountant hired to perform the town audits for the fiscal years ending
23
June 30, 2011 and June 30, 2012, testified as to policies and procedures he
recommended the town adopt at the conclusion of his 2011 disclaimer audit.
According to Mr. Walker, while the town followed his recommendation and adopted
policies and procedures, when he returned for the 2012 audit, he discovered that
many of the staff were unaware of those policies as copies had not been provided to
them. He testified that the situation in 2012 was actually worse than 2011 insofar as
being able to conduct a clean audit.
As defendant points out, the record does contain testimony establishing that
defendant and his staff provided the auditors with open access to all existing
documents, offices and staff, and assisted with obtaining whatever records existed,
and no testimony demonstrates that defendant or any of his staff ever denied access
or acted to prevent anyone from obtaining any existing documents or records.
However, this argument misses the point. The duty that exists under La. R.S. 24:513
is the duty to furnish the Legislative Auditor with such records as he may request and
that he has the right to inspect and examine. The offense that forms the basis of the
malfeasance charge in Count I is that defined in La. R.S. 24:518–the neglect, refusal,
or failure to furnish those records. In this case, the state’s evidence demonstrates that
the crux of defendant’s offense is not the blocking of access to existing documents,
but the neglect, refusal or failure to prepare and preserve the necessary records in the
first instance (a violation of La. R.S. 44:36 and 44:412).
In brief, defendant counters that the town clerk is statutorily designated as the
individual responsible for management and maintenance of municipal records, and
the record is devoid of evidence that he acted as a principal to the clerk’s failure to
perform statutorily-imposed duties or that he intentionally permitted the clerk’s poor
record maintenance. While it is certainly true that the clerk is charged by statute with
24
the duty to “keep such ... books and records as may be provided for by ordinance, and
... file in his office and preserve all records and papers appertaining to the business
of the municipality,” (La. R.S. 33:421) as mayor, defendant was charged with the
duty of supervising and directing the administration and operation of municipal
departments to ensure conformity with applicable provisions of state law. See La.
R.S. 33:404(A)(1). The testimony demonstrates that defendant did just that, actively
inserting himself in all aspects of municipal operations. According to Mr. Folden, the
independent certified public accountant who conducted all but two of the town audits
between 1985 and 2007, prior to the time defendant assumed office, long-time town
clerk Bea Rice controlled the town’s documents and, as clerk, had instituted proper
controls. After defendant assumed office, Ms. Rice “had pretty much been taken out
of the loop on pretty much everything.” Shortly thereafter, Ms. Rice resigned and,
when Mr. Folden returned to attempt the 2008 audit, defendant “wanted his hand on
everything that took place.” According to Mr. Folden, defendant “pretty much
wanted to have the final say on pretty much everything. I think we were given at one
point an organizational chart, and you had the mayor, and then pretty much everybody
was across the straight line underneath that. And–and his comments–his comments
to me were that he was the CEO, the man in charge, and he made the decisions.” In
a similar vein, Margie Williamson testified that it was defendant who assumed
responsibility for taking corrective action to rectify the accounting and record-
keeping deficiencies that she reported in her June 30, 2009 disclaimer audit. As the
testimony previously recounted establishes, defendant assumed personal
responsibility for ticket sales for the town’s Gospel Concert and failed to produce the
records of those sales requested by the legislative auditors. Finally, former town clerk
25
Melba Holland testified that she resigned from her position when the job became too
stressful because defendant would not force employees to do their jobs.
Of course, defendant is correct in his contention that to sustain a conviction for
malfeasance in office, there must be proof that defendant intentionally refused or
failed to perform a duty imposed on him by law, or knowingly permitted an employee
under his authority to intentionally refuse or fail to perform any such duty. See La.
R.S. 14:134(A)(1) and (3); Petitto, 10-0581 at 13, 59 So.3d at 1254. Specific intent
in this context is statutorily defined as “that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act.” La. R.S. 14:10(1). As a state of
mind, specific intent need not be proved as a fact, but may be inferred from the
circumstances of the transaction and the actions of defendant. State v. Graham, 420
So.2d 1126, 1127 (La. 1982).
In this case, the question presented is whether the evidence is such that any
rational juror could reasonably infer that defendant’s refusal and/or failure to perform
his statutory duties as mayor was intentional.11 Evaluating the evidence, as we must,
in the light most favorable to the prosecution,12 giving deference to the jury’s
assessment of credibility and weighing of the evidence, and without substituting our
appreciation of the facts for that of the jury,13 we answer that inquiry in the
affirmative.
With the first disclaimer audit issued by Mr. Folden in 2008, continuing
through the June 1, 2011 compliance audit completed by the Legislative Auditor,
11
See Jackson, 443 U.S. at 319.
12
See id.13
See Crawford, 14-2153 at 20, 218 S.3d at 26.
26
defendant had notice of the town’s noncompliance with the obligations imposed by
La. R.S. 24:513 and the criminal consequences that flow therefrom. See La. R.S.
24:518. Defendant also had notice that the failure of the town to provide
documentation supporting the 172 expenditures requested by the legislative auditors
rendered the town in violation of La. R.S. 44:36. Nevertheless, the evidence shows
that the town’s financial and record-keeping problems persisted, resulting in five
consecutive disclaimer audits. Further, none of the required audits were submitted
timely,14 and it was defendant who, rather than ensure compliance with state law,
requested extensions. In addition, there was testimony from legislative auditors
Kevin Kelley and Kunta Osberry that, despite having multiple opportunities to
produce the missing documentation for 172 town expenditures, it was not until just
days prior to trial that defendant produced the allegedly missing documents, and the
invoices produced were “suspect” and the requested documentation was still “not
complete.” As regards the Gospel Concert ticket sales, there was testimony that
defendant assumed personal responsibility for ticket sales, promised Mr. Osberry that
he would produce the records of tickets sales, and failed to do so. Further, Ms.
Holland testified that she resigned her position as town clerk as a result of
defendant’s failure/refusal to address the management problems she raised. Finally,
despite a recommendation in the compliance audit report of 2011 that a records
retention schedule be developed and submitted to the state archivist, there was no
evidence of any attempt by the town to submit such a schedule, and Ms. Whitehead’s
testimony confirmed that, as of the date of trial, the town had no formal records
retention schedule on file.
14
See La. R.S. 24:513(A)(5)(a)(i) requires that “audits shall be completed within six months of the
close of the entity’s fiscal year.”
27
Given the foregoing, coupled with the testimony establishing that defendant
took an active part in management of the town’s finances and wanted his hand on
everything that took place, we find that the jury was reasonable to infer from the
circumstances the requisite intent on the part of defendant.
Specific intent is an ultimate legal conclusion to be resolved by the finders of
fact. Graham, 420 So.2d at 1128. In finding defendant guilty as charged in Count
I, the jury necessarily reached a conclusion that specific intent was present, along
with all of the other elements of the crime of malfeasance in office. We find this
conclusion was within the jury’s discretion, which, as we have noted, should be
impinged upon only to the extent necessary to guarantee the fundamental protection
of due process of law. See Crawford, 14-2153 at 20, 218 So.3d at 26.
As the court of appeal noted in its opinion:
When the Town received the first disclaimer, Defendant had
notice of the dire state of the Town’s financial records and practices. As
mayor, he knew it was his duty to resolve these problems so that the
Town could become and remain compliant with state laws regarding
audits and preservation of public records. However, the same problems
plagued the Town for the following four years; and, as new disclaimers
were reported, Defendant received additional notice that the Town’s
records were still not properly maintained.
Thompson, 49,483 at 53-54, 163 So.3d at 173-74.
The fact that the same problems with financial recordation and management
persisted for five consecutive years without remedy is evidence from which any
rational factfinder could reasonably infer that defendant’s failure to perform his
statutory duty as mayor to ensure the town’s compliance with state law was
intentional. The evidence presented by the state is such that a rational juror could
have reasonably believed that the efforts defendant did make to rectify the situation
were not sincere ones, especially when coupled with testimony that defendant failed
28
to follow the law in other respects, e.g., by failing to provide proper documentation
for his use of a town vehicle and by using town funds to pay for an inauguration
ceremony.15
Evaluating the evidence in the light most favorable to the prosecution, giving
deference to the jury’s obvious assessment of credibility and weighing of the
evidence, and without substituting our own appreciation of the facts for that of the
jury, we find that the evidence was sufficient to find defendant guilty beyond a
reasonable doubt as to Count I of the malfeasance in office charge.
Count II
In Count II, the state charged that between January 2011 and June 2012,
defendant committed malfeasance in office by misappropriating or taking public
funds belonging to the town of Jonesboro in the amount of $13,720.75, with the
intent to permanently deprive the town of the funds, without the town’s consent, and
by means of fraudulent conduct, practices, or representations. More precisely, the
state charged that defendant, as a principal, paid public funds totaling $13,720.75 to
the Municipal Employees’ Retirement System (“MERS”) on behalf of employees who
were not eligible for MERS participation because they were not actively employed
on a permanent regularly scheduled basis of at least 35 hours a week.
The specific provisions of law defendant is charged with violating in this Count
are La. R.S. 14:67, 11:1751 and 11:1732(13). Louisiana R.S. 14:67(A) defines the
crime of theft as follows:
Theft is the misappropriation or taking of anything of value which
belongs to another, either without the consent of the other to the
15
While testimony as to these latter acts was found by the court of appeal to have been improperly
admitted in evidence, Thompson, 49,483 at 73-74, 163 So.3d at 183-84, review of the sufficiency
of the evidence takes into account all of the evidence introduced at trial, inadmissible as well as
admissible. See State v. Mack, 13-1311, p. 12 (La. 5/7/14), 144 So.3d 983, 991.
29
misappropriation or taking, or by means of fraudulent conduct,
practices, or representations. An intent to deprive the other permanently
of whatever may be the subject of the misappropriation or taking is
essential.
Louisiana R.S. 11:1751 addresses membership in the MERS, which “shall be
composed of all employees.” An employee is defined in La. R.S. 11:1732(13) as “a
person including an elected official, actively employed by a participating employer
on a permanent, regularly scheduled basis of at least an average of thirty-five hours
per week.”16
Given these definitions, to prove this Count of the malfeasance charge, the state
had to present evidence establishing that between January 2011 and June 2012,
defendant made $13,720.75 in payments to MERS on behalf of employees whom he
knew were ineligible to participate in MERS. To meet this threshold, the state was
required to prove (1) that municipal employees were in fact ineligible to participate
in MERS because they were not actively employed on a permanent regularly
scheduled basis of at least an average of 35 hours a week during the charged period;
(2) that defendant knew the employees were ineligible when the MERS payments
were made, yet he or members of his staff made fraudulent representations to MERS
that the employees were eligible; and (3) the total amount of payments defendant
knowingly made on behalf of eligible employees during the period between January
2011 and June 2012 was at least $13,720.75.
Ineligibility for MERS participation
To prove the town employed persons who were ineligible to participate in
MERS, the state relied primarily on the testimonies of William Ryder and Greg
16
La. R.S. 11:1732 was amended subsequent to the date of the offense charged, and the relevant
provision has been re-designated as La. R.S. 11:1732(13)(a). See 2014 La. Acts 320, § 1, effective
July 1, 2014.
30
Clapinsky. Mr. Ryder is a retiree from the Legislative Auditor’s office who was
appointed by the court as fiscal administrator of the town of Jonesboro following a
unanimous recommendation by the Fiscal Review Committee. Mr. Ryder served as
fiscal administrator from July 25, 2012, until October 18, 2012, a period of roughly
three months. He testified that he noticed during his first week on the job that
municipal employees did not appear to work fixed schedules. Upon investigating
further, Mr. Ryder identified six employees who did not appear to be working
sufficient hours to be classified as full-time employees. In order to determine if his
suspicions with respect to these employees was correct, he reviewed payroll records
for the preceding 53 weeks and created a document summarizing the hours worked
by the six employees for each of the 53 weeks, including along with regular hours,
holiday hours, sick days, vacation days, and paid personal leave days. Drawing on
the town’s employee handbook, which defines part-time employees as “those who
consistently work fewer than 35 hours per week,” and further states that “[e]mployees
who consistently work more than 35 hours per week are full-time,” Mr. Ryder
concluded that these six employees were not full-time employees consistently
working more than 35 hours per week and, thus, were not eligible to participate in
MERS. Mr. Ryder testified that he informed defendant of his conclusions, and
defendant responded that it was defendant and the employees’ supervisors who
determined whether someone was full or part-time.
Mr. Ryder turned his findings with respect to the six employees over to Mr.
Clapinski, an investigative audit manager with the Legislative Auditor’s office who
oversaw the investigative audit of March 13, 2013. Mr. Clapinski testified that he
reviewed the schedule prepared by Mr. Ryder and then went back and reviewed the
payroll records for these employees for an 18-month period–from January 2011
31
through June 2012. He concluded that two of the employees identified by Mr. Ryder
were not participating in MERS during the relevant time period and, thus, excluded
them from his calculations. He explained that he contacted MERS and matched
employee earnings and contribution reports with checks that the town issued to
MERS to conclude that the town used public funds totaling $13,721 to pay the
employer portion of retirement contributions for ineligible employees. The checks
were dual signature checks, and defendant signed each one. On cross-examination,
Mr. Clapinski explained that he relied on the town employee handbook in
determining whether an employee was full or part-time and, thus, entitled to benefits.
In brief, defendant points out that it is the statute, La. R.S. 11:1732(13), that
determines eligibility to participate in MERS, and not the town’s employee handbook.
Pursuant to La. R.S. 11:1751, if a municipality elects to participate in MERS, then all
eligible employees, defined as persons “actively employed ... on a permanent,
regularly scheduled basis of at least an average of thirty-five hours per week,” “shall
become members of this system.” La. R.S. 11:1751(A)(1); La. R.S. 11:1732(13)
(emphasis added). Robert Rust, the executive director of MERS, confirmed that “all
employees who are regularly scheduled to work thirty-five hours a week and are
permanent employees must be members of the retirement system.” He further testified
that a “regularly scheduled employee” for purposes of MERS is “a full-time employee
that’s supposed to work thirty-five hours a week,” and verified that the full-time
status does not change if a permanent regularly-scheduled employee periodically
works fewer than 35 hours.
Susita Suire, the administrative assistant at MERS, testified that whenever a
municipality hires a new employee, a MERS enrollment form must be completed, and
someone from the city must verify the employee’s full-time status. She explained that
32
a town’s policy regarding full or part-time status is irrelevant to MERS eligibility
determinations, which are governed by statute. She acknowledged that Mr. Ryder
contacted her in September or October 2012 with questions about employee eligibility
for participation in MERS and, in connection with that inquiry, sent her the
spreadsheet he had prepared documenting work hours for six employees over a 53-
week period; however, she testified that the spreadsheet did not contain information
relevant for determining MERS eligibility.
Ms. Suire explained that she also received an inquiry about MERS eligibility
from David Dill, who was at that time acting as an assistant to defendant. She
identified the letter she sent to Mr. Dill on August 10, 2012, in response to his
inquiry, which explained MERS policy in pertinent part as follows:
All full time permanent employees hired to work a regular schedule of
at least an average of thirty-five (35) hours per week must become
members of the retirement system and begin contributing on their first
day of full time employment. There is no waiting period or any other
kind of delay between the date of employment and enrollment in
membership in the retirement system (page 5 of the handbook).
The Town of Jonesboro shall remit employee and employer
contributions on the total regular earnings paid to an active member
whether or not this employee works a full 35 hours per week.
To establish the employment status of the six employees whose MERS
eligibility was questioned by Mr. Ryder, defendant offered the testimony of Gwan
Jefferson, Jonesboro’s public works supervisor in the street department. Mr.
Jefferson testified that he supervised employees Ryhemio Wyatt, Jerry Lester, and
Donte Amos between September 2011 and August 2012, and all were permanent
staff, regularly scheduled to work from 7:00 a.m. to 4:00 p.m. He testified that he
also supervised Dwight Davis, and that Mr. Davis worked the 7:00 a.m. to 4:00 p.m.
schedule during this period, but by the time of trial Mr. Davis had requested that his
33
hours be reduced. Kanesha Raybon testified that she was hired as a full-time
employee of the town of Jonesboro and that her hours as human resources director
were initially from 7:00 a.m. to 4:00 p.m., but had been changed to 8:00 a.m. to 5:00
p.m. by the time of trial. Calvin Moore, an investigative auditor with the Legislative
Auditor’s office, testified that his investigation into Mr. Ryder’s allegations revealed
the employees in question were scheduled to work from 7:00 a.m. until 4:00 p.m., five
days a week.
Denise Akers, general counsel for MERS, testified that she received Mr.
Ryder’s inquiry regarding employee eligibility for MERS participation from Ms.
Suire, along with the spreadsheet he had prepared. Because the numbers presented
were “confusing,” after conferring with a supervisor, she replied to the inquiry by
providing a copy of the MERS policy, instructing the town to apply that policy and
asking that MERS be notified of any breaks in service experienced by any employee.
She received a similar inquiry from Douglas Stokes, the town’s attorney, and replied
to this inquiry in a similar fashion–reiterating MERS policy and asking the town to
provide “a more detailed report ... so we can determine what, if any, credible service
these employees have accrued over the time period worked with the City of
Jonesboro.”
Ms. Akers testified that frequently employees require leave in excess of their
paid leave and, as a result, MERS policy is such that an employee does not become
categorically ineligible for participation in MERS when his or her hours dip below
35 hours per week. Instead, MERS suspends eligibility for such breaks in service if,
on a rolling 30-day basis, the employee’s hours drop below the minimum. When the
employee’s hours again reach the minimum, participation in MERS is resumed. Ms.
Akers further testified about a statement she made to the effect that if the town had
34
been telling MERS that employees were working 35 hours per week and they were
not, the town would have a made a false certification. She explained that in making
that statement, she was simply responding to a hypothet. According to Ms. Akers,
MERS was not going to step in and interpret the numbers provided by Mr. Ryder
because they were confusing. She reiterated that MERS eligibility is separate from
the town’s policy with regard to whether an employee is full or part-time.
As a review of the foregoing testimony reveals, the only evidence offered by
the state to prove the hours worked by the six employees was the spreadsheet
prepared by Mr. Ryder, and both Ms. Suire and Ms. Akers testified that the numbers
presented were confusing17 and did not convey the information necessary to
determine whether the employees in question were eligible to participate in MERS
or had breaks in service.18 Given the testimony from the MERS representatives that
the spreadsheets relied on by the state’s witnesses did not contain sufficient
information to determine whether the employees were eligible for MERS
participation or had any breaks in service, even viewing the evidence in the light most
favorable to the prosecution, no rational factfinder could conclude that the state
proved any of the employees in question were ineligible to participate in MERS. See
State v. Higgins, 03-1980, pp. 17-18 (La. 4/1/05), 898 So.2d 1219, 1232 (“The due
process standard of review under Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, does not
sanction juror speculation if the evidence is such that a reasonable factfinder must
have a reasonable doubt.”)
17
In fact, the spreadsheet does not appear to conform to the calendar in any identifiable way. The
spreadsheet lists 53 weeks between the first week of September 2011 and the last week of August
2012, rather than the conventional 52 weeks. The spreadsheet only identifies pay periods by the
month, year, and week, and lists five months comprised of five weeks, which cannot be reconciled
with the calendar or the employee work-hours corresponding to those weeks.
18
While Ms. Suire indicated that the number of hours worked by and employee is significant to
MERS participation, that testimony related to the calculation of possible breaks in service. (3839)
35
Knowledge of employee ineligibility for MERS participation
To prove Count II of the bill of information, it was not only necessary for the
state to establish that municipal employees were in fact ineligible to participate in
MERS–a threshold the state failed to meet–but the state was also required to establish
that defendant knew the employees were ineligible when the MERS payments were
made–between January 2011 and June 2012–yet intentionally permitted improper
payments to be made on behalf of the employees. To establish this element of the
offense, the state relied on the testimony of Ms. Holland, Ms. Houston, and Mr.
Ryder. Ms. Holland testified that she confronted defendant at some unspecified time
during her tenure regarding two employees under her supervision who were not
working regular hours. Ms. Houston testified to a letter she prepared at the end of
June 2012, informing defendant of her opinion that certain employees were not
eligible to receive holiday pay for Memorial Day because the employees “have not
habitually or regularly worked 35 or more hours and/or did not work the full day after
or before the holiday as specifically required in Town policy.” Mr. Ryder, who
assumed his position as fiscal administrator of the town on July 25, 2012, testified
that shortly after assuming his duties, he prepared a spreadsheet of employee hours
and then confronted defendant with his opinion that some employees were ineligible
to participate in MERS.
The problem with this testimony is evident. It fails to establish that defendant
was alerted to the possibility that municipal employees who were ineligible to
participate in MERS were doing so and, thus, that defendant had knowledge that
improper payments were being made during the time period charged in the bill of
information. Ms. Holland’s testimony simply reflected her concern with getting staff
to work regular hours; Ms. Houston’s complaints centered solely on employee
36
eligibility for benefits, i.e., holiday pay, under the town employee handbook; and Mr.
Ryder did not confront defendant about MERS eligibility until some time after he
assumed his duties in July 2012, which is after the date charged in the bill of
information.
What the evidence does demonstrate is that there was some confusion as to
eligibility for MERS benefits, and the issue was originally brought to light when, on
August 10, 2012, (two months after the charged period) Mr. Dill, defendant’s
assistant, sought an opinion on the topic from MERS. As quoted supra, Ms. Suire
replied to Mr. Dill’s inquiry by explaining that MERS participation is mandatory
immediately upon hiring for employees scheduled to work 35 hours or more per
week, and that employees must continue to participate, regardless of whether they
actually work fewer hours during a given week. Thus, the evidence indicates that as
of August 10, 2012, defendant had sought and obtained from MERS advice indicating
that participation in MERS was mandatory. It was not until October 3, 2012, that Mr.
Ryder sought his own opinion from MERS regarding employee eligibility for
participation–a date after the period charged in the bill of information, that cannot
reasonably form the basis for attributing any notice or knowledge of wrongdoing to
defendant.
Consequently, even assuming the state had been able to establish that
employees had a break in service or were ineligible to participate in MERS because
of their failure to work the required hours, the state presented no evidence that
defendant knew this when he authorized the MERS payments. The evidence shows
that Mr. Ryder and Ms. Houston retroactively analyzed employee payroll records and,
on that basis, sought a determination from MERS that the employees were ineligible.
The only evidence introduced to show defendant intentionally permitted improper
37
payments to be made on behalf of employees was Mr. Ryder’s testimony that
defendant disagreed with him as to who was part-time and who was full-time for
purposes of MERS participation when Mr. Ryder brought the matter to his attention
sometime after July 25, 2012. In short, the state presented no evidence that defendant
had notice of possible eligibility concerns until after the MERS payments were made.
Moreover, the state presented no evidence that defendant ever misrepresented to
MERS the hours worked by employees; rather the evidence revealed that the town’s
payments to MERS on behalf of the employees were calculated on the basis of the
hours they actually worked.
Given the foregoing, we conclude that, after viewing all of the evidence as
favorably to the prosecution as a rational factfinder can, no rational factfinder could
conclude that the state proved all of the elements to Count II of the malfeasance
charge beyond a reasonable doubt. The state failed to offer evidence either that
municipal employees were ineligible to participate in MERS, or that defendant knew
employees were ineligible to participate in MERS at the time MERS payments were
made, yet he or members of his staff made fraudulent representations to MERS that
the employees were eligible. See generally, Jackson, 443 U.S. at 314 (“[A]
conviction based upon a record wholly devoid of any relevant evidence of a crucial
element of the offense charged is constitutionally infirm.”).
In reaching a contrary conclusion, the court of appeal appears to have
erroneously conflated the evidence regarding employee participation in MERS (which
is governed by statute) with the similar but distinct issue of employee eligibility for
town benefits (which is governed by the town’s employee handbook). Rather than
apply the pertinent eligibility standards–those set forth in La. R.S. 11:1751 and
11:1732(13)–the court of appeal relied on the “consistently working” standard set
38
forth in the employee handbook to conclude the state had shown that six employees
were ineligible for MERS. Thompson, 49,483 at 57, 163 So.3d at 175 (“The
evidence presented at trial demonstrates that six employees were not consistently
working 35 hours per week, but were included in the MERS system.”). However, the
clear wording of the statute, and the testimony of MERS representatives Mr. Rust,
Ms. Suire, and Ms. Akers confirms that MERS participation is a mandatory obligation
for all permanent employees regularly scheduled to work at least 35 hours per week,
regardless of hours actually worked, and that MERS provides for breaks in service,
rather than disenrollment for those not averaging 35 hours per week on a sustained
basis.
Further, the court of appeal appears to have added to its error by misconstruing
the evidence. The court of appeal’s affirmance of defendant’s conviction on Court
II is based on a finding that “[s]everal witnesses testified that they notified Defendant
of the improper payment of retirement contributions for ineligible employees,” and
that “Defendant’s decision to continue using the Town’s public funds to pay
retirement contributions for ineligible employees, even after being notified of their
ineligibility, indicates his intent to permanently deprive the Town of these public
funds.” Thompson, 49,483 at 57, 163 So.3d at 175. As discussed at length above,
the state introduced no evidence to show that defendant had notice of possible MERS
eligibility issues until after Mr. Ryder was appointed fiscal administrator on July 25,
2012. Moreover, the testimony reflects that once Mr. Ryder retroactively analyzed
the timesheets of the questioned employees and wrote to MERS seeking a
determination of eligibility, which MERS declined to provide, Mr. Ryder terminated
MERS payments for the employees effective October 3, 2012. Thus, there was no
evidence from which any factfinder could reasonably conclude that defendant
39
intentionally permitted improper payments on behalf of employees after he was
notified their eligibility was in question. As a result, the court of appeal erred in
affirming defendant’s conviction on Count II of the malfeasance in office charge.
Count III
In Count III, the state charged that between January 2011 and June 2012,
defendant committed malfeasance in office by taking or using public funds belonging
to the town of Jonesboro in the amount of $38,072.06, without the intent to
permanently deprive the town of the funds, but without the town’s consent, and by
means of fraudulent conduct, practices, or representations. Specifically, the state
charged that defendant used public funds to pay Blue Cross Blue Shield of Louisiana
insurance premiums for individuals not employed by the town.
The provision of law defendant is charged with violating in this Count is La.
R.S. 14:68, or unauthorized use of a movable, which is defined as “the intentional
taking or use of a movable which belongs to another, either without the other’s
consent, or by means of fraudulent conduct, practices, or representations, but without
any intention to deprive the other of the movable permanently.” La. R.S. 14:68(A).
The state’s theory under this Count was that town funds were used to pay Blue
Cross insurance premiums on behalf of individuals who were no longer employed by
the town, which constitutes unauthorized use of a movable. Defendant, as mayor, had
a duty to direct and supervise the administration of the town in conformity with
applicable provisions of state law, but by continuing to sign insurance premium
checks and by willfully failing to ensure that the policies of former employees were
cancelled, defendant committed malfeasance in office.
The state’s evidence in furtherance of this theory consisted of testimony from
two Blue Cross employees, two members of the investigative audit team who worked
40
on the March 2013 investigative audit, and two former town employees. Ms.
Holland, who served as town clerk from January 2011 until August 2012, testified
that one of her duties was to pay the Blue Cross bill. She explained that in the course
of reviewing the Blue Cross invoice, she noticed that some former employees had
erroneously remained on the monthly invoice and that, consequently, the invoice
included their premiums. Ms. Houston, who was working under Ms. Holland at the
time, also recognized the problem and created a spreadsheet breaking down the
monthly premium charges for each employee by department, including in the
breakdown the employment status of each employee. Ms. Holland testified that “at
some point” she notified defendant “that we were having problems trying to get some
employees off the Blue Cross invoice, and he would say, you know, ‘Okay.’ I’d say,
‘We’re trying to work on it.’ And I gave him copies of where we were trying to cancel
the employees.”
Ms. Holland explained that she, along with employees Kanesha Raybon and
Yunti Belton, repeatedly submitted cancellation forms to Blue Cross, however, “the
next month the employees would still be on the invoice, so we kept going through the
same process over and over again of trying to submit the cancellation form to get the
employees off.” Ms. Holland testified that, in addition to submitting cancellation
forms, she had numerous phone conversations with Blue Cross employees regarding
the matter. Ms. Holland explained that she paid the invoices every month, despite the
inclusion of erroneous charges because her failure to pay in full would result in Blue
Cross’s cancellation of all employees’ insurance policies. During the cross-
examination of Ms. Holland, the defense introduced the Blue Cross Coverage
Cancellation forms that Ms. Holland, Ms. Raybon, and Ms. Belton had submitted for
the employees in question, along with corresponding fax verification sheets dated
41
February 16, 2011; May 10, 2011; July 27, 2011; September 30, 2011; May 24, 2012;
June 4, 2012; and June 25, 2012.
Becky LeBlanc, a legal secretary for Blue Cross, confirmed that the town had
repeatedly submitted cancellation forms, but explained that the forms were rejected
either because the town was using old, outdated cancellation forms or because
information, such as a signature and date, was missing and the forms were
incomplete. Dawn Williams, an automated enrollment specialist with Blue Cross,
testified about the coverage cancellation process. She explained that to cancel a
particular employee of the group, a form would have to be filled out and submitted
to Blue Cross within 30 days of the employee’s termination for Blue Cross to end
coverage at the end of the billing cycle. She noted that if the form is submitted more
than 30 days from termination, Blue Cross will terminate coverage at the end of that
billing cycle, but termination will not be retroactive to the actual termination date of
the employee. Ms. Williams stated that it appeared that the town was diligently
attempting to cancel coverage for the former employees, but she did not know why
it took six months to a year to do so.
Finally, Mr. Clapinsky testified that, as part of his investigative audit, he and
his team of auditors reviewed the amounts the town paid for insurance for former
employees and determined that, from January 2011 to June 2012, the town paid
$38,072 in insurance premiums for former employees and officials. Calvin Moore,
a member of Mr. Clapinsky’s audit team, testified that defendant’s signature appears
on the insurance premium checks and that, when he asked defendant about the
invoices, defendant indicated that it was the staff’s responsibility to remove the
employees from coverage.
42
In finding the evidence sufficient to sustain defendant’s conviction for Count
III, the court of appeal evidently relied on Mr. Moore’s assertion that defendant told
him that it was staff’s responsibility to cancel the insurance coverage and not his to
conclude that defendant “took no action to assist the employees in ending these
payments,” thereby violating “his statutory duty to properly manage the employees’
and the Town’s resources.” Thompson, 49,483 at 59, 163 So.3d at 176. However,
it is this conclusion on part of the appellate court that exposes the flaw in the state’s
case.
As we have repeatedly recognized, the malfeasance statute does not punish all
forms of misconduct in office; rather, as an essential element of its case, the state
must prove the existence of an affirmative duty delineated by statute or law that is
imposed on the defendant public official. See Petitto, 10-0581 at 8-9, 59 So.3d at
1251; Davis, 634 So.2d at 1170; Perez, 464 So.2d at 741. This is because, in the
absence of some provision of law which specifically directs the public official’s
action, it is fundamentally unfair to attempt to judge, after the fact, what specific
things he or she should have done.
In this case, the court of appeal found that defendant had a duty to “assist the
employees” in performing their jobs, i.e., in cancelling the insurance coverage, a duty
which allegedly derives from a broader duty to “properly manage the employees’ and
the Town’s resources.” Thompson, 49,483 at 59, 163 So.3d at 176. However, the
statute which sets forth the duties of a mayor, La. R.S. 33:404, delineates as one of
those duties, not the specific duty to “properly manage the employees’ and the
Town’s resources,” but the duty “[t]o supervise and direct the administration and
operation of all municipal departments, offices, and agencies, ...in conformity with
ordinances adopted by the board of aldermen and with applicable provisions of
43
state law.” La. R.S. 33:404(A)(1) (emphasis added). This statute, upon which the
state relies in charging defendant, imposes a general duty on defendant to administer
the town in conformity with ordinances properly adopted and with applicable
provisions of state law. Davis, 634 So.2d at 1170. As a result, to prove its case, it
was incumbent on the state to prove the existence of either an ordinance or a state law
that imposed on defendant the express duty to manage the employees’ and the town’s
resources by assisting staff in cancelling insurance coverage for former employees.
The state failed to prove the existence of any such ordinance or state law and,
consequently, failed to prove an affirmative duty imposed by law on the defendant,
an essential element of the malfeasance charge.19 See,e.g., Davis, 634 So.2d at 1172
(wherein the court reversed and vacated defendant’s malfeasance in office conviction
because the state failed to prove the existence of a valid town ordinance establishing
the duty of the mayor regarding payment of annual and sick leave).
Further, to the extent that the bill of information charges defendant as a
principal to unauthorized use of a movable (a violation of state law), the state’s
evidence likewise falls short. Although the state’s evidence did show that the town
did not promptly cancel health insurance for some former employees, there was
absolutely no evidence whatsoever to indicate that defendant or any member of his
staff engaged in any “fraudulent conduct, practices, or representations” in failing to
timely cancel insurance coverage or in continuing to pay premiums while
cancellations were pending, as required by La. R.S. 14:68(A). Evidence including
fax records, testimony from Ms. Holland and Ms. Houston, and testimony from Blue
19
The circumstances surrounding Count III are readily distinguishable from those presented in
Count I, where the provisions of La. R.S. 24:513 and 24:518 impose an affirmative, positive duty
on the defendant, as a public officer of the town of Jonesboro, to furnish or provide whatever records
are necessary for an audit.
44
Cross representatives Dawn Williams and Becky LeBlanc demonstrated that three
town staff members attempted to cancel the policies at issue, but their attempts failed
because they submitted outdated cancellation forms and then incorrectly completed
the updated forms. The state introduced no evidence to indicate that defendant’s staff
intentionally used incorrect forms, intentionally filled out the forms incorrectly,
submitted any fraudulent information, or that defendant directed anyone to do so.
Although repeated submission of outdated or incomplete forms by several different
staff members could demonstrate incompetence and/or negligence, and although
wholly unacceptable from the standpoint of managing the town’s finances, the state’s
evidence is insufficient to show that defendant or his employees intentionally refused
to perform a duty lawfully required of them, intentionally performed any duty in an
unlawful manner, or deprived the town of funds through fraudulent conduct, practices
or representations. Therefore, viewing the evidence in the light most favorable to the
state, we find that no reasonable factfinder could have found that the state’s evidence
was sufficient to prove beyond a reasonable doubt that defendant was guilty of
malfeasance in office as to Count III. The court of appeal erred in finding to the
contrary.
Mistrial
Having concluded the evidence is sufficient to support defendant’s conviction
of Count I of the malfeasance charge and that defendant is not entitled to an acquittal
in relation to this charge, we must now consider defendant’s remaining assignments
of error to determine whether defendant is nevertheless entitled to a new trial. See
State v. Hearold, 603 So.2d 731, 734 (La. 1992). In doing so, we turn first to
defendant’s contention that the district court erred in denying his motion for mistrial
45
and the court of appeal erred in applying a harmless error analysis to gauge the effect
of that erroneous ruling.
Early in the course of trial, the defense made an oral motion for mistrial during
the testimony of Legislative Auditor Purpera, when the prosecutor stated: “Mr.
Purpera, there’s been an allegation made ... [that] the Mayor has been harried by
various conservative and or white people ....” The defense objected to this statement
and moved for a mistrial on grounds that the prosecutor was injecting race into the
proceedings. The prosecutor responded by arguing that although the defense had not
expressly used the term “white people,” it was implied by the defense’s opening
argument that he won the race for mayor just ahead of his opponent, yet his opponent
and detractors would not accept defeat and kept moving the finish line so that
defendant could never succeed as mayor.20
Agreeing with the prosecutor, the district court denied the motion for mistrial,
finding that defense counsel’s opening statement did use examples that indicated race
was an issue, but stating that the district court would admonish the jury regarding the
“white people” comment. Defense counsel responded to the adverse ruling, insisting
that he had made no references or allusions to race during opening argument, but
rather identified particular detractors of defendant, including the former mayor and
disgruntled former employees, not all of whom are white. Defense counsel
acknowledged referring to race during voir dire, but only after the state had already
done so, and only in the context of exploring whether potential jurors could be fair.
20
Notably, the defense’s opening statement was preceded by that of the state, in which the
prosecutor introduced the topic, arguing: “With respect to this non-compliance that we talked about,
... Leslie Thompson’s response has always been that he’s being unfairly targeted because of his
race.” Defense counsel responded to this argument by denying that he had made race an issue,
arguing instead that the prosecution was a political one, that defendant had crossed the finish line
first, winning the mayoral election, and that his detractors kept moving that finish line, deliberately
undermining his effectiveness.
46
Nevertheless, the prosecutor continued to argue, without citing to specific examples,
that the defense had repeatedly alluded to race, which entitled the state to rebut the
racial implications. The district court again denied the motion for mistrial.
Defendant subsequently filed a written motion for mistrial in which he argued
that “the effort to keep race from being a factor in this trial has failed.” As an
example, he pointed to the state’s use of photos of Osama Bin Laden and President
Barack Obama during voir dire and interchanging their names, to which use his
counsel had objected.21 He noted that the prosecutor had questioned potential jurors
about the Trayvon Martin case, a case which had divided citizens along racial lines.
Acknowledging that both parties had questioned potential jurors regarding the topic
of racial fairness, he asserted that several members of the venire had expressed
concern that their verdicts would divide the community further, and further alleged
that the state had subpoenaed supporters of defendant, even though there was no
reasonable expectation of calling them as witnesses, in order to keep them out of the
courtroom. Finally, defendant reiterated that the prosecutor had, in front of the jury,
accused defendant of talking about “white people,” and argued that this appeal to race
was a mandatory, and not permissive, ground for a mistrial.
The state responded to the written motion by arguing that the case had been
racially charged from its inception, pointing to out-of-court incidents, such as a
protest march and “videos” of defendant discussing the racial implications of his
prosecution, as evidence that defendant had raised the racial issue first. The state
asserted that it had the right, and obligation, to rebut defendant’s race-based defense.
21
In brief, the state maintains that this is an incorrect characterization of the state’s pictorial display
which, according to the state, consisted of a picture of Osama Bin Laden with the caption “[e]xperts
agree Al-Qaeda leader is dead or alive” followed by a picture of Taliban men with the caption
“where’s Obama?” The state’s pictorial display during the voir dire, ostensibly to demonstrate media
errors, can only be described as poorly conceived and executed.
47
After entertaining argument, the district court denied defendant’s motion for
mistrial. In doing so, the court cited defendant’s out-of-court activities, as well as
remarks made during voir dire and opening statements, as justification for the state’s
references to race in court.
In addressing defendant’s mistrial motion on direct review, the court of appeal
concluded that the district court erred by failing to grant defendant’s motion for
mistrial. Thompson, 48,483 at 80, 163 So.3d at 186-87. The appellate court found
that the district court’s ruling was based on “an incorrect restatement of the defense’s
voir dire questioning and opening statements,” and that the prosecutor’s reference to
“white people” while questioning Mr. Purpera was a direct reference to race that was
“neither material nor relevant to the charges and, arguably, could create prejudice in
the mind of the jury.” Id., 48,483 at 80-81, 163 So.3d at 186-87. We agree with the
court of appeal’s analysis and ruling in this regard.
Louisiana C.Cr.P. art. 770 provides, in pertinent part:
Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument, refers
directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or
comment is not material and relevant and might create prejudice against
the defendant in the mind of the jury;
....
An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,
requests that only an admonition be given, the court shall admonish the
jury to disregard the remark or comment but shall not declare a mistrial.
In addition, La. C.Cr.P. art. 775 sets forth the permissive and mandatory
grounds for a mistrial, and states, in part:
48
Upon motion of a defendant, a mistrial shall be ordered, and in a
jury case the jury dismissed, when prejudicial conduct in or outside the
courtroom makes it impossible for the defendant to obtain a fair trial, or
when authorized by Article 770 or 771.
Clearly, under Louisiana law, a mistrial is mandatory when a prosecutor refers
directly or indirectly to race or color and the remark or comment is not material and
not relevant and might create prejudice against the defendant in the mind of the jury.
State v. Wilson, 404 So.2d 968, 970 (La. 1981). This rule has been a part of
Louisiana jurisprudence for decades. As the court explained in State v. Kaufman,
278 So.2d 86, 98 (La. 1983):
The purpose of this mandatory prohibition of our 1966 code is to
avoid the use of racial prejudice to obtain convictions. This is in accord
with our jurisprudence since our earliest days as an American
jurisdiction. It is, of course, founded upon a stringent requirement that
trials be conducted in accordance with law and that convictions be
founded on evidence of guilt and not upon prejudice. Without this
mandatory rule of law, the convictions of innocent defendants may be
secured, not because of their guilt, but because of their race.
In this case, as accurately noted by the court of appeal, both parties questioned
potential jurors about race during voir dire, but neither appeared to say anything
directly connecting race to the facts of this case. That changed after the jury was
sworn and trial commenced. In his opening statement and during the examination of
Mr. Purpera, the prosecutor made statements directly referencing race in connection
with this case. As the court of appeal noted:
[There is] a distinction between exploring the biases and prejudices of
potential jurors during voir dire and improperly injecting race as an issue
at trial. The prosecutor’s reference to “white people” while questioning
Mr. Purpera was a direct reference to race and was not an accurate
restatement of what the defense attorney said in his opening statement
or voir dire questioning. The defense attorney did not allege that “white
people” or “conservatives” made allegations against Defendant that led
to investigations; the defense attorney merely noted that Defendant had
detractors who were unhappy that he was elected mayor. Although the
trial court overruled the objection and the motion for mistrial because
the defense raised the issue of race during voir dire and during opening
49
statements, this ruling was a misconstruction of the defense’s comments
during opening statements.
Thompson, 49,483 at 79-80, 163 So.3d at 186.
While the state acknowledges in brief that “you could possibly argue that the
state mentioned race twice” in opening statements, it argues that the racial reference
is less offensive than that in other cases in which mistrials have been declared, and
the appeal to racial prejudice is less egregious. However, this court noted long ago
that “race is such a sensitive matter that a single appeal to racial prejudice furnishes
grounds for a mistrial, and ... a mere admonition to the jury to disregard the remark
is insufficient.” Wilson, 404 So.2d at 970. That principle holds true today.
The prosecutor’s comment about “white people” in this case could only be
perceived as appealing to racial prejudice, as it had no relevance to the crime of
malfeasance and did not tend to enlighten the jury as to a relevant fact. We agree,
therefore, with the court of appeal’s conclusion that the district court erred in failing
to grant defendant’s motion for mistrial. However, to the extent that the court of
appeal’s language suggests that a mistrial was not mandatory in this case, we
respectfully disagree. Thompson, 49,483 at 80, 163 So.3d at 187 (“[T]he trial court
could have granted a mistrial based on the improper remark regarding race made the
prosecutor.”) (Emphasis added.) Louisiana C.Cr.P. arts. 770 and 775 provide that
a mistrial is mandatory upon the motion of the defendant, and not discretionary as the
court of appeal’s language implies.
Having determined the district court erred in failing to grant defendant’s
motion for a mistrial, we must now determine the appropriate remedy for that error.
Defendant argues the prosecutor’s improper appeals to race affected substantial rights
of the accused; that, as a result, prejudice is presumed; and thus the court of appeal
50
erred in applying a harmless error analysis to assess the effect of the district court’s
erroneous ruling. The state argues to the contrary, adopting the court of appeal’s
position that “precedence” dictates a harmless error analysis.
After determining the district court erred in denying defendant’s motion for
mistrial, the court of appeal remarked that it was “reluctantly ... constrained by
precedence to find that the failure to grant a mistrial was harmless error.”
Thompson, 49,483 at 80, 163 So.3d at 187. The “precedence” the court of appeal
cites for this proposition is this court’s opinion in State v. Johnson, 94-1379 (La.
11/27/95), 664 So.2d 94.22 However, review of that decision reveals that it addressed
a single issue: “whether a harmless error analysis may be used to review a conviction
where inadmissible other crimes evidence is disclosed to the jury.” Id., 94-1379 at
12, 664 So.2d at 100. In answering that question in the affirmative, this court clearly
limited its ruling to inadmissible other crimes evidence. Id., 94-1379 at 17, 664
So.2d at 102 (“[W]e hold that the introduction of inadmissible other crimes evidence
results in a trial error subject to harmless error analysis.”). While in the course of
reaching its decision, the court discussed the mandatory provisions of La. C.Cr.P. art.
770(2), and overruled previous jurisprudence holding that a violation of La. C.Cr.P.
art. 770(2) is per se prejudicial and a substantial denial of the defendant’s statutory
rights, the Johnson case should not be read so expansively as to encompass the issue
presented in the present case: the appropriate remedy for an improper appeal to racial
prejudice.23 Besides the fact that this court carefully limited its holding in Johnson
22
Thompson, 49,483 at 69-70,79, 163 So.3d at 181-82,186.
23
The decision in Johnson is procedurally, as well as substantively, distinguishable from this case.
In ruling that the mandatory language of La. C.Cr.P. art. 921 provides the proper scope of appellate
review, the court in Johnson found the mandatory language of La. C.Cr.P. art. 770(2) inapplicable
to its decision because the defendant in that case had not moved for a mistrial. Johnson, 94-1379
at 16, 664 So.2d at 101 (“Although Article 770 is couched in mandatory terms, ... [i]ts operation
depends upon motion by the defendant.”). Here, defendant moved for a mistrial, both orally and in
51
to inadmissible other crimes evidence, there are compelling reasons for treating the
issues differently. Foremost among those reasons is the fact that the erroneous
admission of other crimes evidence does not implicate the equal protection
considerations inherent in an appeal to racial prejudice. See Miller v. State of North
Carolina, 583 F.2d 701, 707 (4th Cir. 1978) (citing United States ex rel. Haynes v.
McKendrick, 481 F.2d 152, 158-59 (2nd Cir. 1973) (“One of the animating purposes
of the equal protection clause of the fourteenth amendment, and a continuing
principle of its jurisprudence, is the eradication of racial considerations from criminal
proceedings.”). Moreover, an appeal to racial prejudice impugns not only the concept
of equal protection of the laws, but strikes at the due process guarantee of a fair trial
as well. See Miller, 583 F.2d at 706 (“Nothing is more fundamental to the provision
of a fair trial than the right to an impartial jury. The impartiality of the jury must exist
as the outset of the trial and it must be preserved throughout the entire trial.”)
(Citation omitted.).
Because the holding in Johnson addresses only inadmissible other crimes
evidence, that case does not serve as “precedence” for the issue presented here.
Rather, the “precedence” that exists is the unbroken line of jurisprudence holding that
an improper appeal to racial prejudice in violation of La. C.Cr.P. art. 770(1) is per se
prejudicial and a mistrial is mandatory. See Wilson, supra; State v. Jones, 283 So.2d
476 (La. 1973); Kaufman, supra.
The provisions of La. C.Cr.P. art. 921 do not require a different result. As the
court recognized in Johnson, La. C.Cr.P. art. 921 is a codification of the harmless
error rule. It provides:
writing.
52
A judgment or ruling shall not be reversed by an appellate court
because of any error, defect, irregularity, or variance which does not
affect substantial rights of the accused.
Also as noted in Johnson, this court has adopted the federal test for harmless
error announced in Chapman v. California, 386 U.S. 18 (1967), as refined by
Sullivan v. Louisiana, 508 U.S. 275 (1993), as a practical guide for determining
whether substantial rights of the accused have been violated. Johnson, 94-1379 at
13-14, 664 So.2d at 100. Under that test, the inquiry “is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.” Id. (quoting Sullivan, 508 U.S. at 279).
Chapman recognizes that there are exceptions to the harmless error rule.
Chapman, 386 U.S. at 23 (“[T]here are some constitutional rights so basic to a fair
trial that their infraction can never be treated as harmless error.”) These exceptions
have become known as structural errors. Weaver v. Massachusetts, 137 S.Ct. 1899,
1907 (2017). “The purpose of the structural error doctrine is to ensure insistence on
certain basic, constitutional guarantees that should define the framework of any
criminal trial.” Id. “[T]he defining feature of a structural error is that it ‘affect[s] the
framework with which the trial proceeds,’ rather than being ‘simply an error in the
trial process itself,’” and thus infects the entire proceeding, thereby “def[ying]
analysis by harmless error standards.” Id., 137 S.Ct. 1907-08 (quoting Arizona v.
Fulminante, 499 U.S. 279, 309-10 (1991)).
As Weaver explains, there appear to be three rationales that explain why a
particular error is structural and not amenable to harmless error analysis: (1) “the right
at issue is not designed to protect the defendant from erroneous conviction but instead
protects some other interest”; (2) “the effects of the error are simply too hard to
53
measure”; and (3) “the error always results in fundamental unfairness.” Id., 137 S.Ct.
at 1908. “These categories are not rigid”; rather in a given case, “more than one of
these rationales may [explain] why an error is deemed to be structural.” Id.
In the instant case, we are presented with an improper appeal to racial
prejudice. As noted, supra, such an appeal may be violative of both the due process
and equal protection guarantees of the federal and state constitutions.24 United States
ex rel. Haynes, 481 F.2d at 159 (When racial prejudices are improperly injected into
a criminal proceeding, “the due process and equal protection clauses overlap or at
least meet.”). Indeed, it has been remarked that:
Race is an impermissible basis for any adverse governmental action in
the absence of compelling justification ... To raise the issue of race is to
draw the jury’s attention to a characteristic that the Constitution
generally commands us to ignore. Even a reference that is not
derogatory may carry impermissible connotations, or may trigger
prejudiced responses in the listeners that the speaker might neither have
predicted nor intended.
McFarland v. Smith, 611 F.2d 414, 416-17 (2nd Cir. 1979).
While the Supreme Court has not expressly ruled that an appeal to racial
prejudice during the presentation of evidence or argument to the jury constitutes
structural error, in our view, such an appeal carries the indicia of structural error in
that racial bias implicates the defendant’s right to trial before an impartial jury. Like
racial discrimination in the selection of grand jurors (a structural error pursuant to
Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)), the injection of racial
considerations during the presentation of evidence harms not only the defendant, but
24
U.S. Const. amend. XIV, § 1 (“No state shall ... deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws.”); La. Const. art. I, § 2 (“No person shall be deprived of life, liberty, or property, except by due
process of law.”); La. Const. art. I, § 3 (“No person shall be denied the equal protection of the laws.
No law shall discriminate against a person because of race or religious ideas, beliefs, or
affiliations.”).
54
“undermine[s] public confidence in the fairness of our system of justice.” Alex v.
Rayne Concrete Service, 05-1457, 05-2344, 05-2520, pp. 23-24 (La. 1/26/07), 951
So.2d 138, 155-56 (citing Batson v. Kentucky, 476 U.S. 79, 87 (1986), and
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 629 (1991)). Such
considerations are among those that prompted this court, in Alex, supra, to reject a
harmless error analysis in connection with a challenge to the discriminatory exercise
of peremptory challenges pursuant to Batson/Edmonson. See Alex, 05-1457 at 22-
24, 951 So.2d at 155-56. They are among the considerations that prompt us to
conclude that an improper appeal to racial prejudice during the presentation of
evidence is not susceptible to harmless error review. The right to a fair trial that is
free from improper racial implications is one that serves not only to protect the
defendant from a conviction founded on prejudice, but also to protect the public’s
confidence in the integrity of the judicial process and the administration of justice.
Where the jury is improperly exposed to an appeal to racial prejudice, the impartiality
of the jury as a factfinder is compromised. “Because that contamination may affect
the jury’s evaluation of all of the evidence before it, speculation about the effect of
that error on the verdict is fruitless.” Miller, 583 F.2d at 708. When an improper
appeal to racial prejudice infects a proceeding, such as this one, a substantial right of
the defendant is violated, prejudice is presumed, and reversal is required.
The court of appeal erred in applying a harmless error analysis to assess the
effect of the district court’s erroneous ruling denying defendant’s motion for mistrial
brought pursuant to La. C.Cr.P. art. 770(1).25 Defendant’s conviction on Count I of
25
Even were we to hold that the improper denial of defendant’s motion for mistrial is subject to
harmless error review, it would be difficult to conclude beyond a reasonable doubt that the improper
appeal to prejudice did not contribute to defendant’s convictions. Contrary to the court of appeal’s
conclusion that “the state presented overwhelming evidence against Defendant upon which the jury
could base its verdict[],” the evidence was clearly insufficient to support defendant’s conviction of
55
the malfeasance in office charge must be set aside and defendant must be afforded a
new trial as to this Count.26
DECREE
For the foregoing reasons, we reverse the judgment of court of appeal, vacate
defendant’s convictions and sentences, and remand this matter to the district court for
a new trial as to Count I of the malfeasance charge.
REVERSED, VACATED, AND REMANDED
Counts II and III of the malfeasance charge. Thompson, 49,483 at 80-81, 163 So.3d at 187. Given
the particular facts and circumstances of this case, we cannot conclude with certainty that the jury’s
guilty verdicts were surely unattributable to the error of the district court in denying defendant’s
motion for mistrial once an improper appeal to racial prejudice was made.
26
As noted, supra, one of the arguments that prompted our writ grant was defendant’s contention
that the district court erred by permitting the state to introduce unduly prejudicial “other bad acts”
evidence under La. C.E. art. 404(B), and the court of appeal compounded that error by applying a
faulty harmless error analysis in assessing the effect of the erroneous admissions. In its review, the
appellate court found that the district court erred by issuing a global ruling admitting the “other bad
acts” evidence, instead of individually assessing the admissibility of each item with findings that the
individual acts were supported by clear and convincing evidence. Thompson, 49,483 at 71, 163
So.3d at 182. Addressing each act individually, the court of appeal found that out of the 11 “other
bad acts” introduced, five were inadmissible because they were too dissimilar to be probative of any
facts at issue, and/or were not supported by clear and convincing evidence. Nonetheless the court
found the error in admitting the evidence was harmless. Id., 49,483 at 75, 163 So.3d at 184.
However, defendant argues, the appellate court’s conclusion that the erroneous admissions were
harmless is directly contradicted by that court’s own reliance on that very evidence to find that
defendant possessed the requisite intent to support his conviction for Count I. Id., 49,483 at 54, 163
So.3d at 174 (“Defendant’s penchant to refuse to follow the law is further illustrated by his failure
to provide proper documentation for his use of the Town vehicle, for sponsoring Town events, for
personally accepting payment for tickets to the event and for untimely reimbursing the Town for
travel advances.”). Because the court of appeal’s sufficiency finding expressly relied on erroneously
admitted Article 404(B) evidence to find defendant’s intent had been proved, it is difficult to
conclude that the verdict is surely unattributable to the error, or that the error was harmless.
However, having determined that the conviction should be reversed on the mistrial issue, it is
unnecessary to definitively rule on this, or any of the other errors assigned by defendant.
56
09/18/17
SUPREME COURT OF LOUISIANA
No. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Jackson
JOHNSON, C.J., concurs in part, dissents in part, and assigns reasons.
Although I agree with the majority that no rational trier of fact could have
found defendant guilty beyond a reasonable doubt as to Counts II and III, I must
dissent in this case because I also find the evidence was clearly insufficient to find
defendant guilty beyond a reasonable doubt as to Count I of the malfeasance in office
charge. Further, because the evidence was insufficient, defendant is entitled to
acquittal on all counts and any retrial of defendant as to Count I is barred by Double
Jeopardy principles.
The charges in this case arise from political strife in the town of Jonesboro, and
the case has been fraught with racial undertones from inception. The defendant took
office in 2000 as the first African-American mayor of Jonesboro, during a time when
the town was experiencing substantial racial tensions. Throughout his two terms as
mayor, the defendant was subject to opposition and obstruction from several members
of the town’s board of aldermen and members of his own staff. The investigations
leading to his prosecution were prompted by repeated complaints from defendant’s
political opponents. The problems with this case continued with the trial of this
matter, which was replete with errors. Although the majority chose to address only
1
one error in finding defendant was entitled to a mistrial, a review of the record reveals
a multitude of other irregularities and errors.
The record reveals a clear intent by the prosecutor to stir up racial tensions with
the goal to obtain an all white jury. In addition to the prosecutor’s racial comments
addressed by the majority, the prosecutor used a PowerPoint slide show during voir
dire to display several irrelevant and racially contentious pictures to potential jurors.
First, the prosecutor displayed a picture of Osama bin Laden with the caption “Hunt
for Osama bin Laden.” Defense counsel objected and argued that it was prejudicial
because Osama bin Laden “is considered as one of the most hated people in the
United States after 911 especially.” The prosecutor responded that “I’m going to ask
and see if they (prospective jurors) see anything wrong with the screen and the next
slides are intended to display how the news often makes mistakes and gets things
wrong.” The district court directed the prosecutor to ask his particular question but
move on to a different slide. The prosecutor then displayed a slide which he described
as “a bunch of Muslims, probably Taliban folks and it says, “Where’s Obama?”“ The
prosecutor also asked potential jurors if they thought race was a factor in the George
Zimmerman case in Florida, where he was tried for shooting Trayvon Martin, a black
teenager. The prosecutor’s actions were a blatant attempt to inflame racial prejudices
in the jurors.
The voir dire process was also troubling, and the lower courts failed to give
credence to Mayor Thompson’s Batson challenge. As pointed out by Mayor
Thompson, all African-American potential jurors were eliminated from the jury pool
by challenges for cause by the state, and one peremptory challenge exercised by the
state. Mayor Thompson contended it was nearly impossible for him, as an
African-American, to be represented by a jury of his peers because the
2
African-Americans in the community knew Defendant and, therefore, would be
challenged for cause by the state. In the end, Mayor Thompson was tried by an all
white jury.1
At the end of the voir dire process, Mayor Thompson filed a motion to change
venue asserting media attention and pretrial publicity prevented him from receiving
a fair trial in Jackson Parish. Mayor Thompson pointed out every single juror in the
first panel indicated they had heard something about the case, and he referenced the
extensive media coverage over the past five years. Given this pretrial publicity and
the history of racial intolerance in Jackson Parish, the district court should have
granted the change of venue.
The district court also erred in allowing the state to introduce “other bad acts”
evidence under Article 404(B), which was clearly prejudicial. While the court of
appeal correctly determined the district court erred by allowing the state to globally
introduce this evidence, the court of appeal wrongly determined this was harmless
error. This error was compounded because the court of appeal actually relied on this
same evidence to support Mayor Thompson’s conviction on Count I.
My review of the record reveals Mayor Thompson was targeted and convicted
with no legal basis to do so. He is entitled to an acquittal on all three counts,
including Court I. The malfeasance in office statutes are intended to protect the public
by deterring public officers and employees from abusing their positions of public
trust. State v. McGuffie, 42,069 (La. App. 2 Cir. 8/1/07), 962 So. 2d 1111, 1118, writ
denied, 07-2033 (La. 2/22/08), 976 So. 2d 1283. Count I essentially charged that
defendant committed malfeasance by failing and/or refusing to maintain proper
1
The court of appeal noted that the record does not include information on the races of the
potential and seated jurors in this case. However, the court further stated that “the comments made
by the parties and the trial court during the Batson colloquy are consistent and suggest that
Defendant’s allegations regarding the race of the juror the state struck and racial composition of the
jury are true.” State v. Thompson, 49,483 (La. App. 2 Cir. 3/18/15), 163 So. 3d 139, 191.
3
records and to supply them to the Louisiana Legislative Auditor in violation of La.
R.S. 24:513, La. R.S. 24:518, La. R.S. 44:36, and La. R.S. 44:412. In determining
whether the evidence was sufficient to convict defendant as to Count I, the court must
determine “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In
reviewing the sufficiency of the evidence, “the actual fact finder’s discretion will be
impinged upon only to the extent necessary to guarantee the fundamental protection
of due process of law.” State v. Crawford, 14-2153 (La. 11/16/16), 218 So. 3d 13, 26
(quoting State v. Mussall, 523 So. 2d 1305, 1310 (La. 1988)). The evidence presented
by the state does not meet the Jackson standard. Jurisprudence demonstrates this
court has a history of requiring more than the circumstantial evidence presented here
to uphold a conviction for malfeasance. See State v. Schwehm, 729 So. 2d 548 (La.
1999); State v. Davis, 634 So. 2d 1168 (La. 1994); State v. Harris, 46, 721 (La. App.
2 Cir. 12/9/11), 79 So. 3d 1248.
As acknowledged by the majority, defendant correctly contended that to sustain
a conviction for malfeasance in office, there must be proof that defendant
intentionally refused or failed to perform a duty imposed on him by law. This court
has previously explained:
The object of the malfeasance statute is to punish a breach of duty
committed with the required culpable state of mind. To this end, the
statute expressly limits its application to instances in which a public
officer or employee intentionally refuses or fails to perform or
intentionally performs in an unlawful manner, any affirmative duty
imposed by law upon him in his role as a public servant. The inclusion
in the statute of a criminally culpable state of mind makes it clear that
it applies only where the statutorily required mens rea is proven beyond
a reasonable doubt. Thus, mere inadvertence or negligence, or even
criminal negligence, will not support a violation of the malfeasance
statute because the statute specifies the act or failure to act must be
intentional.
4
State v. Petitto, 10-0581 (La. 3/15/11), 59 So. 3d 1245, 1254 (emphasis added). In my
view, the evidence was insufficient to support defendant’s conviction for malfeasance
in office in Count I. The state failed to show that defendant acted with the necessary
criminal intent, or that he intentionally refused to perform any duties.
My review of the nearly 2000 pages of the trial transcript reveals the state’s
witnesses gave generalized, seemingly biased, and sometimes irrelevant testimony.
Certain witnesses testified with overt hostility and open contempt for defendant.
Several former employees testified that they resigned because of stress from these
conflicts, and more than one auditor testified that employee turnover was so high that
it impaired their ability to conduct the audit. The charges in Count I appear, in my
view, to stem from the aggregation of several years’ worth of the town’s management
and financial issues, which the state attributed to defendant solely by virtue of his role
as mayor. Both the court of appeal and the majority largely infer defendant’s criminal
intent from evidence of the town’s shoddy recordkeeping.
The evidence demonstrates that defendant did not create the town’s accounting
issues, but rather inherited longstanding recordkeeping problems and a poorly-
managed accounting structure. Further, no direct evidence was introduced to show
that defendant acted with criminal intent, intentionally refused or failed to perform
his duties, or intentionally performed his duties in an unlawful manner. To the
contrary, extensive testimony showed that defendant and his staff made ongoing,
albeit unsuccessful, efforts to improve the town’s admittedly poorly-managed
recordkeeping and accounting practices, and to properly manage the finances.
While the state presented evidence that financial records were in disarray, the
evidence does not support a finding of intentional refusal or failure to perform a duty
on the part of defendant. Rather, the evidence showed defendant and his staff
5
cooperated with auditors, attempted to provide all requested documents, and tried,
although with limited success, to resolve numerous issues, all while struggling with
personnel turnover and political controversy. In an effort to resolve the issues,
defendant updated software, hired staff, procured staff training, and provided
legislative auditors access to records. Even viewing the evidence in the light most
favorable to the prosecution, I cannot conclude that defendant acted with the criminal
intent necessary to support this conviction. While the evidence may well suggest a
level of negligence on the part of defendant in resolving the town’s financial and
recordkeeping issues, negligence–even criminal negligence–is insufficient to support
a conviction for malfeasance.
I also find it important to note that while motive is not an element of
malfeasance, its absence in this case further undermines any finding of intent. The
state failed to show that defendant had any illicit motivation sufficient to support a
finding of criminal intent within his non-criminal acts, or that he derived any benefit
from his actions, and the state’s case fails to otherwise explain why defendant would
have spent years intentionally undermining the town he was twice elected to serve.
In my view, the state had every opportunity to offer proof of its case at trial.
However, the proof offered by the state was undoubtedly insufficient to support a
conviction of malfeasance as to Count I. The majority effectively gives the state a
second bite at the apple. Because there is a lack of sufficient evidence to support the
defendant’s conviction, I find he is entitled to an acquittal, rather than a mistrial.
Moreover, a retrial of defendant in this case would violate the Double Jeopardy
Clause. The United States Supreme Court has made clear that the Double Jeopardy
Clause precludes a second trial once the reviewing court has found the evidence
legally insufficient to support the guilty verdict. See Hudson v. Louisiana, 450 U.S.
640, 44-45 (1981). I would find Hudson precludes a new trial in this case, where the
state has failed as a matter of law to prove its case despite a fair opportunity to do so.
Id. at 45.
7
09/18/17
SUPREME COURT OF LOUISIANA
NO. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
On writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Jackson
GUIDRY, J., concurs in the result.
1
09/18/17
SUPREME COURT OF LOUISIANA
NO. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
On writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Jackson
CLARK, J., concurs in part, dissents in part and assigns reasons.
I concur in the opinion insofar as it concludes the evidence was sufficient to
find defendant guilty beyond a reasonable doubt as to Count I of the malfeasance in
office charge. However, I dissent from the remainder of the opinion.
In this case, six rational jurors found the essential elements of each of the three
charged offenses beyond a reasonable doubt. Adhering to the standard of appellate
review for sufficiency of the evidence set forth in Jackson v. Virginia, 443 U.S. 307(1979), I agree with the five judges of the court of appeal who determined the
evidence was sufficient to convict defendant of all three counts of the malfeasance
in office charge.1 Furthermore, I disagree with vacating defendant’s convictions and
sentences because the district court failed to declare a mandatory mistrial after the
prosecutor made a reference to “white people” during the testimony of Legislative
Auditor Purpera. In my opinion, the prosecutor’s comment was neither an appeal to
racial prejudice nor so prejudicial that it affected the substantial rights of the accused.
Because I dissent from the opinion granting defendant a new trial on Count I, I would
address the pretermitted assignments of error.
Finally, for the record, I agree with the court of appeal’s conclusion that
defendant’s sentences, while individually within the statutory guidelines, were
1
A court of appeal panel comprised of three judges reviewed the record in defendant’s appeal. Two judges were
added to the original panel to consider defendant’s application for rehearing, which was denied on April 9, 2015.
See State v. Thompson, 49,483 (La. App. 2 Cir. 3/18/15), 163 So. 3d 139.
1
excessive when aggregated, and the district court failed to articulate sufficient
reasons to run the sentences for Counts I and II consecutively, as they were based
on the same acts and transactions. Thus, I believe the court of appeal correctly
vacated the sentences and remanded the matter for resentencing.
2
09/18/17
SUPREME COURT OF LOUISIANA
NO. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
SECOND CIRCUIT, PARISH OF JACKSON
CRICHTON, J., concurs in part, dissents in part and assigns reasons:
I respectfully dissent in part from the Court’s plurality opinion.1 “Mistrial is a
drastic remedy, and the determination of whether prejudice to the defendant has
resulted from the prosecutor’s comments lies in the sound discretion of the trial
judge.” State v. Draughn, 2005-1825, p. 44 (La. 1/17/07), 950 So.2d 583, 614. In
my view, the statement made by the prosecutor—merely a preface to a question—
was not an error, much less one that should be elevated to a structural error analysis.
Even so, because I do not find the district court’s denial of the motion for mistrial
was an abuse of that discretion, I dissent in part and would address the pretermitted
assignments of errors. In all other respects, I agree with the plurality opinion.
1
A plurality opinion (consisting of less than four votes at the Louisiana Supreme Court) “lack[s]
precedential authority.” See Warren v. La. Med. Mutual Ins. Co., 2007–0492 (La.12/2/08), 21
So.3d 186, 210 (Knoll, J., concurring). For the United States Supreme Court, “[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977)
(internal quotations omitted).
09/18/17
SUPREME COURT OF LOUISIANA
NO. 2015-K-0886
STATE OF LOUISIANA
VERSUS
LESLIE C. THOMPSON
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, SECOND
CIRCUIT, PARISH OF JACKSON
GENOVESE, J., concurs in the result.