author: PER CURIAM:

text:
    STATE of Louisiana v. Dustin DRESSNER
    No. 2018-KP-0828
    Supreme Court of Louisiana.
    October 29, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON
   PER CURIAM:

Denied. In 2004, a Jefferson Parish jury found relator, Dustin Dressner, guilty as charged of the first degree murder of Paul Fasullo. At trial, Fasullo's wife, Shannon, testified that she answered a knock on her door around 10:30 p.m. on June 6, 2002, to find Dressner (with whom she was familiar) and a black male asking to come inside to buy drugs. When Shannon declined and turned to close her door, one of the men struck her over the head with a glass wine bottle and both entered, armed with knives that Dressner had taken from a friend's apartment earlier in the day. The commotion woke Paul, who struggled with Dressner and ultimately sustained multiple stab wounds, lacerations, and abrasions to his chest, upper neck, and head areas; one of the chest wounds proved fatal. Shannon retreated to her bedroom in an attempt to protect her two-year-old daughter. Dressner chased after Shannon, who had begun to call 911, and he sliced her throat. After a prolonged struggle of her own, Shannon locked herself in the bathroom, but Dressner's accomplice kicked down the door. The men continued the attack, stabbing Shannon at least twice more before ultimately fleeing the scene. Shannon survived her grave wounds and later identified Dressner in a six-person photographic lineup.

The state presented a detailed recorded statement in which Dressner admitted his involvement in the home invasion murder and that he inflicted the fatal stab wound to Fasullo's chest. In the same statement, Dressner identified a black male named "Kelly" (Kellen Parker) as the other individual who entered the Fasullos' home with him and Troy Arnaud as a third man who was present in a car parked outside the home. Dressner assisted the police in identifying relevant addresses where his accomplices could be found and in locating discarded pieces of the weapons used in the attack.

After finding Dressner guilty as charged, jurors unanimously agreed to impose a sentence of death in light of the aggravating circumstances that the offense was committed in an especially heinous, atrocious, or cruel manner, and that the offender knowingly created a risk of death or great bodily harm to more than one person. The trial court sentenced him to death by lethal injection in accord with the jury's determination. This Court affirmed the conviction and sentence. State v. Dressner , 08-1366 (La. 7/6/10), 45 So.3d 127, cert. denied , 562 U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011).

In 2011, Dressner filed a pro se "shell" application for post-conviction relief. Thereafter, appointed counsel enrolled and filed two lengthy supplemental applications alleging a total of 16 claims. On November 16, 2017, the district court dismissed seven of the claims on procedural grounds. On January 12, 2018, the district court summarily denied the remaining claims with written reasons.

As an initial matter, Dressner contests the district court's procedural rulings, urging that, because he did not raise any ineffective assistance of counsel claims on appeal, each of his post-conviction ineffective assistance of counsel claims which the district court dismissed as repetitive were in fact new claims.

In State v. Lee , 14-2374, pp. 8-9 (La. 9/18/15), 181 So.3d 631, 638, another post-conviction capital case, we explained that an "attempt to re-litigate a claim that has been previously disposed of, by couching it as a post-conviction ineffective assistance of counsel claim, [should be] generally unavailing." As we found in Lee , Dressner's post-conviction ineffective assistance of counsel claims predicated upon issues which were in fact considered on appeal are not truly new claims under La.C.Cr.P. art. 930.4(A). The district court correctly dismissed part of one of Dressner's ineffective assistance of counsel claims under La.C.Cr.P. art. 930.4(A) -that trial counsel failed to object to the trial court's "unreasonable demands" of the jury-as having been fully litigated on appeal. See Dressner , 08-1366 (unpub'd appx., pp. 1-5).

Dressner also argues that the district court in other instances denied claims as repetitive under La.C.Cr.P. art. 930.4(C) (for claims raised in the trial court and inexcusably omitted on appeal) without first ordering him to state the reasons for his failure under La.C.Cr.P. art. 930.4(F). We note first that the district court afforded Dressner an opportunity to respond in writing to the state's procedural objections citing to La.C.Cr.P. art. 930.4(C). Dressner filed a reply, so the district court has substantially complied with La.C.Cr.P. art. 930.4(F). Moreover, even a claim which the district court has erroneously dismissed on procedural grounds does not necessarily warrant remand. State v. Singer , 09-2167, pp. 1-2 (La. 10/1/10), 45 So.3d 171, 171-72 (per curiam); see also La.S.Ct.R. X, § 1(a)(4) (supervisory writ grant based on a lower court's erroneous interpretation or application of law is generally not warranted unless the Court finds that the error "will cause material injustice or significantly affect the public interest."). A thorough assessment of Dressner's post-conviction claims reveals further that even those claims which the district court might have erroneously dismissed as repetitive do not warrant further review, as explained below.

First, Dressner is correct that his claim of ineffective assistance of counsel for failing to present evidence of mental illness to suppress his confession was not litigated on appeal. However, he fails to show grounds for remanding it. Dressner fails to identify what mental illness evidence he would have had trial counsel introduce or how it might have undermined the voluntariness of his confession. He refers to this evidence only in the abstract-"an extensive history of mental illness and poly-substance abuse" and "the myriad mental health information"-and in no way that persuasively demonstrates how the voluntariness of his confession might be called into question. Because Dressner has not demonstrated that counsel would have been successful in suppressing his confession on the strength of any such evidence, he has not adequately proven deficient performance or prejudice. While the district court invoked an improper procedural bar, the claim was worthy of summary denial on its merits under La.C.Cr.P. art. 929(A). This claim does not warrant remand.

Next, Dressner urges four related claims which challenge the death penalty on varied grounds. First, he contends that Louisiana's lethal injection protocol violates the Eighth Amendment's prohibition against cruel and unusual punishment. Second, he asserts that the death penalty violates international human rights law because it constitutes an arbitrary deprivation of life and is exacerbated by his "significant mental illness." Third, Dressner argues that the Fourth and Eighth Amendments, customary international law, and the International Covenant on Civil and Political Rights entitle him to a fair clemency process which complies with a minimum level of due process. Fourth, he avers that Louisiana's death penalty scheme is unconstitutional because it is imposed in an arbitrary and discriminatory manner and does not sufficiently narrow the class of offenders eligible for it. The district court procedurally barred the first, second, and fourth of these related claims under La.C.Cr.P. art. 930.4(C) as having been raised in the trial court and inexcusably omitted on appeal. The district court also ruled that the first, third, and fourth of these related claims did not present cognizable claims for relief under La.C.Cr.P. art. 930.3.

Even assuming arguendo that the district court should have reached the merits of these claims, Dressner shows no basis for remand. His claim concerning Louisiana's lethal injection protocol requires him to show that the procedure "creates a demonstrated risk of severe pain .... [and] that the risk is substantial when compared to the known and available alternatives." Baze v. Rees , 553 U.S. 35, 61, 128 S.Ct. 1520, 1537, 170 L.Ed.2d 420 (2008). A related claim is pending in the United States District Court for the Middle District of Louisiana, where-on July 16, 2018-Judge Shelly Dick imposed a 12-month extension to an order temporarily staying all executions in Louisiana. In light of that pending matter, Dressner's execution protocol claim does not warrant remand or relief in its current posture.

Further, although international law is relevant in interpreting the Eighth Amendment's ban on cruel and unusual punishment, see Graham v. Florida , 560 U.S. 48, 80, 130 S.Ct. 2011, 2033, 176 L.Ed.2d 825 (2010), Dressner introduces no authority for the idea that his execution is prohibited by international law. Insofar as Dressner argues the ICCPR should apply, the treaty is not self-executing, meaning the Court may not enforce it in the absence of corresponding state or federal legislation. See Inapplicability of ICCPR to Death Penalty Case, 95 Am. J. Int'l L. 878, 879 (2001) ; see also S. Res. of Advice and Consent to Ratification of the ICCPR, 102d Cong., 138 Cong. Rec. S4781, S4783 (daily ed. Apr. 2, 1992) (declaring that "the provisions of articles 1 through 27 of the Covenant are not self-executing."). These claims do not warrant relief or remand for additional factual development.

Lastly, in order to avoid arbitrary and capricious imposition of the death penalty, an aggravating circumstance used to justify a death penalty "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens , 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). The United States Supreme Court has found that the narrowing function of Zant is satisfied by the specification of circumstances in R.S. 14:30 for differentiating first degree murder from other forms of homicide. Lowenfield v. Phelps , 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). As a result, Dressner is not entitled to a remand for further consideration of this claim.

In sum, Dressner shows no reversible error as to the district court's procedural rulings on the claims identified in his applications as Claims III, VII, VIII, IX, and XVI. The district court correctly invoked the procedural bar of La.C.Cr.P. art. 930.4(A) as to part of Claim XV (related to the trial court's "unreasonable demands" of the jury), and its merits ruling on the remaining part of that claim is addressed below. The district court also procedurally barred Claim X (alleging cumulative error) as one not cognizable in post-conviction relief proceedings, but that claim also is addressed below.

As to those claims the district court rejected after considering the merits, Dressner also shows no basis for relief. All but one of these remaining claims involve allegations of ineffective assistance of counsel. Under the standard for ineffective assistance of counsel set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a reviewing court must reverse a conviction if the petitioner establishes (1) that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel's inadequate performance prejudiced defendant to the extent that the trial was rendered unfair and the verdict suspect. When the substantive issue that an attorney has not raised has no merit, then the claim that the attorney was ineffective for failing to raise the issue also has no merit. State v. Williams , 613 So.2d 252, 256-57 (La. App. 1 Cir. 1992) ; see also State v. Kenner , 336 So.2d 824, 831 (La. 1976) (counsel does not err in not undertaking futile steps).

In two related claims (Claims I and XII), Dressner argues that his trial counsels' failure to introduce evidence of the victims' drug use and alleged sexual misconduct toward his girlfriend resulted in prejudice occurring at both the guilt and penalty phases. Prior to trial, defense counsel sought to have this evidence deemed admissible. The fifth circuit ruled that only the evidence of the victims' general drug use was admissible in the guilt phase. See Dressner , 08-1366, p. 14, 45 So.3d at 137 (citing State v. Dressner , 04-0581 (La. App. 5 Cir. 5/20/04) (unpub'd) ). In denying writs, this Court noted that defense counsel would be entitled to reurge the admissibility of all the evidence at the penalty phase (but not necessarily that such evidence would, in fact, be admissible). See State v. Dressner , 04-1199 (La. 5/21/04), 874 So.2d 845.

At trial, Shannon Fasullo testified that she and her husband threw weekly or bi-weekly parties where the participants would partake of certain drugs, including alcohol, marijuana, cocaine, and ecstasy. Dressner , 08-1366, p. 4 n.9, 45 So.3d at 131. Therefore, the jury clearly was informed in the guilt phase concerning the victims' general drug use. To the extent trial counsel did not seek to introduce in the guilt phase evidence of the victims' alleged sexual misconduct, they merely complied with rulings from higher courts. Thus, Dressner shows no deficient performance as to this part of his claims.

Dressner also contends that trial counsel should have sought to introduce evidence of the victims' drug use and alleged sexual misconduct in the penalty phase. As to the former, the jury had already heard this evidence, and a jury in a capital sentencing hearing may consider any evidence offered at the trial on the issue of guilt. See La.C.Cr.P. art. 905.2(A). Therefore, to the extent that trial counsel might have elected not to present cumulative evidence, Dressner has not made an adequate showing either of deficient performance or prejudice.

With respect to the alleged sexual misconduct evidence, Dressner does not cite any additional factors that might have made this evidence more relevant in the penalty phase than it could have been in the guilt phase, where two courts found it not to have any relevance. See La.C.Cr.P. art. 905.2(A) ("The sentencing hearing shall focus on the circumstances of the offense, the character and propensities of the offender, and the victim, and the impact that the crime has had on the victim, family members, friends, and associates."). Therefore, he shows no likelihood of success in the event counsel would have again sought to admit the sexual misconduct evidence in the penalty phase. As a result, he fails to prove deficient performance or prejudice. The district court correctly rejected these claims.

Next, Dressner claims that trial counsel erred by failing to take adequate steps to prevent an earlier conviction for simple robbery from being introduced against him at the penalty phase. He asserts that trial counsel should have raised a purported actual conflict of interest that existed when he and his codefendant in the earlier matter were represented by the same attorney.

This claim fails on its merits for several reasons. First, Dressner essentially argues that trial counsel should have collaterally attacked his Orleans Parish conviction in an improper venue and in an untimely manner. See La.C.Cr.P. arts. 925 (venue for application for post-conviction relief is parish of conviction) & 930.8(A) (setting forth a limitations period of two years from the finality of conviction and sentence to apply for post-conviction relief). Second, because counsel could not have attacked the conviction itself, this Court's precedent specifically allowed the introduction of a felony conviction during the sentencing hearing. See State v. Jackson , 608 So.2d 949, 954 (La. 1992) (limiting the evidence to a "document certifying the fact of conviction and to the testimony of the victim or of any eyewitness to the crime"). Third, the simple robbery conviction would have been admissible under Jackson even as unadjudicated conduct because it was defined as a crime of violence in R.S. 14:2 and the period of limitation for instituting its prosecution had not run at the time of the first degree murder indictment. See Jackson , 608 So.2d at 955. The district court correctly rejected this claim.

Next, Dressner claims counsel erred by failing to take certain steps with respect to the jury's consideration of Troy Arnaud's guilty plea to accessory after the fact to first degree murder. He argues that trial counsel should have filed a motion in limine to prevent the jury from hearing the name of this plea and requested a curative or cautionary instruction to prevent the jury from considering that plea as evidence that a first degree murder actually occurred.

In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions. See La.C.E. art. 609.1(A). Ordinarily, only the fact of a conviction, the name of the offense , the date thereof, and the sentence imposed is admissible. La.C.E. art. 609.1(C) (emphasis added). Thus, there was no arguable basis for excluding the name of the offense for which Arnaud pleaded guilty. Therefore, trial counsel did not render deficient performance by failing to file a motion in limine to exclude the name of the offense.

Additionally, the jurisprudence in Louisiana generally holds that an accomplice is qualified to testify against a co-perpetrator even if the prosecution offers him inducements to testify; such inducements would merely affect the witness's credibility. See State v. Neal , 00-0674, p. 11 (La. 6/29/01), 796 So.2d 649, 658 (citations omitted). Dressner offers no evidence that the mere title of Arnaud's offense had a more damaging or prejudicial effect in the jury's consideration of his guilt than did Arnaud's actual testimony. The district court correctly noted that instead of drawing the jury's attention away from Arnaud's conviction, trial counsel appears to have opted to draw attention to it in an attempt to damage Arnaud's credibility. That this strategy might have failed (or at least did not prove persuasive) does not establish ineffective assistance of counsel. See State v. Felde , 422 So.2d 370, 393 (La. 1982).

Furthermore, Dressner also asserts that trial counsel should have requested a special instruction that the jury not consider the title of Arnaud's plea as evidence that a court had determined a first degree murder occurred. However, he did not supply the district court or this Court with the exact proposed charge that he would have had trial counsel give. Therefore, it is wholly speculative to say that the proposed but unarticulated charge would "not require qualification, limitation, or explanation, and [would be] wholly correct and pertinent." See La.C.Cr.P. art. 807 (concerning special written charges). As a result, Dressner has failed to show deficient performance or prejudice in this respect. The district court correctly rejected this claim.

Next, Dressner contends that trial counsel erred by failing to object to the flight instruction given at trial. However, this instruction tracks with that found in 17 La. Civ. L. Treatise, Criminal Jury Instructions § 5.8 (3d ed.), "Flight of the defendant," where the authors noted that "[t]he proposed instruction is designed for use when the state has presented evidence that the accused fled immediately after the offense or after accusation." The state presented evidence of the former, so the instruction was proper, and trial counsel did not err by failing to object to it. The district court correctly rejected this claim.

Next, Dressner argues that trial counsel rendered ineffective assistance for failing to adequately prepare mental health experts who testified at the penalty phase, thoroughly investigate his need for neuropsychological testing, and present to the jury a more personalized and comprehensive picture of his background, mental infirmities, and circumstances.

A defendant at the capital penalty phase is entitled to the assistance of a reasonably competent attorney acting as a diligent, conscientious advocate for his life. State v. Fuller , 454 So.2d 119, 124 (La. 1984) ; State v. Berry , 430 So.2d 1005, 1007 (La. 1983) ; State v. Myles , 389 So.2d 12, 28 (La. 1980) (on reh'g). Thus, counsel's role at capital sentencing resembles his role at the guilt phase in that he must "ensure that the adversarial testing process works to produce a just result ...." Burger v. Kemp , 483 U.S. 776, 788-89, 107 S.Ct. 3114, 3122-26, 97 L.Ed.2d 638 (1987). A finding of ineffective assistance of counsel at the penalty phase requires a showing that counsel failed to undertake "a reasonable investigation [which] would have uncovered mitigating evidence," and that failing to put on the available mitigating evidence "was not a tactical decision but reflects a failure by counsel to advocate for his client's cause," which resulted in "actual prejudice." State v. Hamilton , 92-2639, p. 6 (La. 7/1/97), 699 So.2d 29, 32 (citing State v. Brooks , 94-2438 (La. 10/16/95), 661 So.2d 1333 ; State v. Sanders , 93-0001 (La. 11/30/94), 648 So.2d 1272 ) ).

In the penalty phase, the jury heard evidence concerning Dressner's educational, mental, social, and criminal history. See Dressner , 08-1366, pp. 36-41, 45 So.3d at 150-53. As to his mental health, the jury heard testimony from Dressner's brother, who described him as "an attention seeker; arrogant; cocky; boastful; very bright; very articulate; very manipulative; [and a] schemer." Id. , 08-1366, p. 37, 45 So.3d at 150.

Trial counsel also presented two experts who testified nearly identically. See Ibid. n.41 (describing that the trial judge chastised defense counsel for wasting two hours of the jury's time by calling a second witness to testify to the same conclusions as the first). Together, the experts indicated that Dressner had a history of Bipolar Affective Disorder, polysubstance abuse and dependency, and a history of Attention Deficit Hyperactivity Disorder. Id. , 08-1366, p. 37, 45 So.3d at 150-51. He suffered a head trauma at the age of six or seven and had previously received inpatient psychiatric treatment and intensive outpatient treatment for substance abuse. Id. , 08-1366, pp. 37-38, 45 So.3d at 151. One of the doctors opined that Dressner "is not mentally ill, he has some responsibility, but he refused the help provided him," and his mental conditions were "highly treatable." Id. , 08-1366, p. 38, 45 So.3d at 151. The other opined that Dressner "understood the criminality of his conduct." Ibid.

In support of his current claim, Dressner relies upon testing that has taken place after his conviction while he has been incarcerated at Louisiana State Penitentiary. He contends that new reports indicate pretrial neuropsychological testing would have revealed that he suffers from organic and/or traumatic brain damage. While the reports state that Dressner might have issues with impulse control and his ability to exercise proper judgment, he fails to attach actual medical records or demonstrate why this subsequent testing is more reliable or accurate than that conducted by his trial experts. Moreover, these conclusions are somewhat cumulative of the evidence the jury considered.

Dressner also faults trial counsel for failing to more properly prepare the penalty phase experts. However, his main complaint rests with one expert in particular (Dr. Vyas), whom he claims was given only a few weeks to prepare. That both experts testified nearly identically undermines this claim and Dressner's ability to show prejudice from any purported lack of preparation time.

Additionally, Dressner avers that trial counsel themselves should have undertaken a more extensive investigation of his mental health. However, given the trial experts' conclusions, Dressner has made no showing that counsel failed to undertake a reasonable investigation that would have uncovered mitigating evidence, as Hamilton requires. Nothing in the retained experts' conclusions raised red flags that might have caused trial counsel to direct or request further testing.

Dressner further argues that trial counsel should have done more to present evidence concerning his parents' mental health histories in the penalty phase. However, Dressner does not claim to have inherited any of his parents' purported mental illnesses, so they do not reflect directly upon his own mental health. To the extent his parents' conditions might have had some tangential effect upon his childhood, Dressner has still not shown any actual prejudice as a result of their omission from evidence at the penalty phase. By nearly any account, Dressner's parents were repeatedly involved in attempting to secure mental and behavioral assistance for him, but without success. Presented with such evidence, the jury could have found-as did one of the trial experts-that Dressner simply "refused the help provided him." Dressner , 08-1366, p. 38, 45 So.3d at 151.

In sum, while Dressner now identifies different evidence that he would have had trial counsel present to the jury, he fails to carry his burden of demonstrating why trial counsel were ineffective in choosing to present to the jury what they did. He has not shown that trial counsel performed deficiently in their penalty phase representation or that the result would have been different had they presented the evidence upon which he currently relies. Trial counsel properly presented to the jury evidence of Dressner's medical history, family and social history, mental illness and cognitive impairments, and substance abuse. The district court correctly rejected this claim.

Next, Dressner contends that trial counsel erred by failing to have him plead "not guilty" and "not guilty by reason of insanity." In doing so, Dressner relies upon much of the same evidence from his previous claim. Though he argues that counsel would have been able to prove insanity by a preponderance of the evidence, Dressner in essence asserts that such evidence would have undermined his level of intent in committing the first degree murder. However, the substance of Dressner's claim is better categorized as one of "diminished capacity," which Louisiana has never recognized. See State v. Lecompte , 371 So.2d 239, 243 (La. 1978) ("[A] mental defect or disorder short of insanity cannot serve to negate specific intent and reduce the degree of the crime."). He makes no showing that trial counsel could have satisfied the actual insanity criteria of proving "the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question." R.S. 14:14. One of Dressner's trial experts testified that he "understood the criminality of his conduct." Dressner , 08-1366, p. 38, 45 So.3d at 151. That conclusion would have undermined any attempt to prove insanity, so Dressner has failed to demonstrate either deficient performance or prejudice. The district court correctly rejected this claim.

Next, Dressner faults trial counsel for failing to argue that the death penalty was a disproportionate punishment because of his youth, mental impairments, and immaturity. However, no federal jurisprudence applies to bar the death penalty in this case. Cf. Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (barring execution of persons under the age of 18 at the time the crime was committed); Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (barring execution of persons with intellectual disabilities). Similarly, Dressner has made no showing that he has become mentally insane subsequent to his conviction. See State v. Perry , 502 So.2d 543, 563-64 (La. 1986) ("The State of Louisiana will not execute one who has become insane subsequent to his conviction of a capital crime."). On appeal, this Court conducted an extensive proportionality review and found the death sentence to be an appropriate punishment. See Dressner , 08-1366, pp. 44-54, 45 So.3d at 154-60. No subsequent legal or factual developments call that conclusion into question. As a result, counsel did not render ineffective assistance in this respect. The district court correctly rejected this claim.

Next, Dressner argues that trial counsel failed to protect his due process rights against the trial court's alleged "abuse" of the jurors. In the portion of this claim that is not procedurally barred, Dressner asserts that the trial court made statements that chilled prospective jurors' claims of hardship. While the trial court made statements concerning its skepticism of hardship claims, Dressner has not made alleged that any jurors' claims of hardship were denied or ignored. To the extent that he argues prospective jurors' claims of hardship were chilled by these statements and that trial counsel should have questioned them about hardship during voir dire, Dressner's claims are wholly speculative and conclusory. He points to no juror actually seated for trial who suffered any hardship that might have affected the ultimate outcome. As a result, Dressner has failed to make any showing of deficient performance or prejudice concerning his trial counsels' failure to object to the trial court's statements concerning hardship. The district court correctly rejected this claim.

In connection with some of his ineffective assistance claims, Dressner has argued that appellate counsel rendered ineffective assistance for failing to raise certain claims (many or all of which were not raised by trial counsel and, thus, not preserved for review). However, as a general matter, a defendant does not have the right to designate issues counsel must raise on appeal. See Jones v. Barnes , 463 U.S. 745, 751-53, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983). In any event, Dressner is entitled to relief only if he shows both that counsel erred by "ignor[ing] issues ... clearly stronger than those presented," Smith v. Robbins , 528 U.S. 259, 288, 120 S.Ct. 746, 765, 145 L.Ed.2d 756 (2000) (citation and internal quotation marks omitted), and that there was a "reasonable probability" that he would have prevailed on the claim on appeal. Mayo v. Henderson , 13 F.3d 528, 533-34 (2d Cir. 1994).

As discussed above, all of Dressner's ineffective assistance claims are meritless. Thus, appellate counsel did not render ineffective assistance by failing to raise the underlying issues on appeal, see State v. Smith , 547 So.2d 760, 763 (La. App. 4 Cir. 1989) ("Since neither of relator's substantive claims have merit, the claim of ineffectiveness of appellate counsel is also without merit."). The district court correctly rejected these claims where they were presented.

Next, Dressner contends that at least one juror improperly relied upon an incorrect belief in the penalty phase that the return of a life sentence would mean he would be released from custody after a mere 10 years, thereby influencing that juror (and perhaps others) to vote in favor of the death penalty. In support of this claim, Dressner attached to his application a handwritten affidavit from the juror who allegedly harbored this belief.

As an initial matter, the juror's post-trial affidavit is inadmissible pursuant to Louisiana's jury shield law, found in pertinent part in La.C.E. art. 606(B) :

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

Dressner admits that the jury was instructed "no less than ten times" that a life sentence without parole was the only available alternative to the death penalty. "[T]he presumption is that the jury followed the judge's instructions." See State v. Ward , 246 La. 766, 774, 167 So.2d 359, 362 (1964). The juror's affidavit details not "extraneous prejudicial information [that] was improperly brought to the jury's attention," but her own purported "mental processes" in deciding the appropriate sentence in this case. Dressner does not argue that the juror was misinformed by any outside source during her deliberations, but he relies solely upon her apparent misunderstanding of the jury instructions, which an internal factor not appropriate for inquiry. See United States v. Flemming , 223 Fed.Appx. 117, 124 (3d Cir. 2007) (juror's misunderstanding of the burden of proof barred from consideration because it was not extraneous prejudicial information or an improper outside influence); State v. Ward , 663 S.W.2d 805, 808 (Tenn. Ct. Crim. App. 1983) ("The incorrect application of an otherwise valid jury instruction does not constitute the impropriety necessary to allow a juror to impeach his verdict by affidavit."). The district court correctly rejected this claim.

Finally, Dressner also shows no grounds for relief based on his argument that the cumulative effect of the claimed errors rendered the proceedings fundamentally unfair. Although we have previously reviewed cumulative error arguments, we have never endorsed them. See, e.g., State v. Strickland , 94-0025, pp. 51-52 (La. 11/1/96), 683 So.2d 218, 239 ; State v. Taylor , 93-2201 (La. 2/28/96), 669 So.2d 364 (unpub'd appx.); State v. Tart , 93-0772, p. 55 (La. 2/9/96), 672 So.2d 116, 164 ; State v. Copeland , 530 So.2d 526, 544-45 (La. 1988) (citing State v. Graham , 422 So.2d 123, 137 (La. 1982) ). Given Dressner's failure to show prejudice as a result of any of the claimed errors, he cannot show that their combined effect entitles him to relief. See, e.g., Mullen v. Blackburn , 808 F.2d 1143, 1147 (5th Cir. 1987) (rejecting cumulative error claim, finding that "twenty times zero equals zero").

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

      Dressner relies upon the dosage of midazolam called for by the state's current fallback protocol (10 milligrams) as prima facie evidence that an execution conducted using that dosage will carry a substantial risk of causing severe pain. In support, he cites botched executions in Ohio and Oklahoma that took place with much higher dosages of midazolam (50 milligrams and 100 milligrams, respectively).

      The hearing concerning the admissibility of this conviction occurred on May 24, 2004, over two years from the date of Dressner's Orleans Parish conviction (August 28, 2001).

      Dressner also initially argued that the state misled the jury during opening arguments by referencing Arnaud's plea to accessory after the fact to first degree murder, believing that Arnaud had actually pleaded guilty to accessory after the fact to second degree murder. However, the district court noted that the former is the correct conviction, and Dressner has since dropped this contention.

      The instruction read:
      If you find that the defendant fled immediately after a crime was committed or after he was accused of a crime, flight alone is not sufficient to prove he was guilty. However, flight may be considered in light of all other evidence. You must decide whether such flight was due to consciousness of guilt or to other reasons unrelated to guilt.


source: Caselaw Access Project

author: JOHNSON, C.J., would grant.

license: Public Domain

text:
    STATE of Louisiana v. Monroe WILSON
    No. 2017-K-2087
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF JEFFERSON
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

Louisiana Revised Statutes 40:967(F)(1)(a), in effect at the time the defendant was sentenced, required the imposition of a $50,000 fine. It appears from the transcript of the testimony that the trial judge was under the impression that she had no option but to impose the fine as statutorily provided. However, as we found in State v. Dorthey , 623 So.2d 1276, 1280-81 (La. 1993), the trial judge retained "the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive." Therefore, I would grant defendant's writ application to remand the matter back to the trial court for further proceedings, including possible resentencing, subject to the trial court's determination as to whether imposition of the $50,000 fine on this defendant is constitutionally excessive.


author: PER CURIAM

text:
    IN RE: George Martin GATES IV
    NO. 2018-B-0977
    Supreme Court of Louisiana.
    October 29, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, George Martin Gates IV, an attorney licensed to practice law in Louisiana.

PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 16-DB-036 and 16-DB-088. Respondent answered each set of charges, essentially denying any misconduct. The matters were then considered by separate hearing committees. Thereafter, the board filed in this court a recommendation of discipline pertaining only to 16-DB-036. Prior to any action by the court on that matter, the ODC filed a motion to remand, advising of the additional disciplinary matter (16-DB-088) involving respondent. We granted the motion to remand and 16-DB-036 was returned to the board for consolidation with 16-DB-088. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

FORMAL CHARGES

16-DB-036

Count I

Respondent represented Glenn Elliot in a criminal matter. In December 2014, Mr. Elliot filed a disciplinary complaint against respondent, alleging that respondent failed to comply with requests for his file. The ODC sent letters to respondent, advising him to return the file to Mr. Elliot and reminding him of his obligation to cooperate in the disciplinary investigation. Respondent failed to respond, and the ODC issued a subpoena compelling his appearance on June 3, 2015 to submit to a sworn statement. Despite being personally served with the subpoena, respondent failed to appear. On June 4, 2015, respondent sent the ODC a postal receipt showing that he had mailed a package to Angola, Louisiana, where Mr. Elliot was incarcerated. Respondent gave no explanation for his tardiness in sending to the file to Mr. Elliot or for his failure to appear for the sworn statement.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.16(d) (obligations upon termination of the representation) and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II

In July 2011, Jennifer O'Carroll hired respondent to represent her in a disabilities claim against her former employer. During the representation, respondent was unresponsive to Ms. O'Carroll's phone calls, e-mails, and text messages. On July 9, 2013, respondent notified Ms. O'Carroll via text message that her case had been dismissed due to a "lack of witnesses." Ms. O'Carroll continued to attempt communications with respondent, but he did not return her phone calls or messages. Ms. O'Carroll then sent respondent a letter via certified mail requesting the return of her file so that she could retain another attorney to assist her with her claim. Respondent failed to respond to the letter.

During the representation, respondent refused to answer discovery requests from the defendant, even after being twice compelled by the court to do so. Respondent was sanctioned $500 by the court, and still refused to comply. After filing a third motion to compel discovery, the defendant filed a motion for summary judgment. Respondent failed to respond to the motion, and the claim was dismissed.

On March 12, 2014, respondent gave a sworn statement to the ODC. At that time, respondent admitted his failure to timely pay the federal court sanctions. He eventually paid the sanctions on March 25, 2014, almost a year after they were due. Respondent also agreed to provide additional documents to the ODC within ten days, but he failed to do so. Respondent acknowledged that he did not take any depositions or collect any medical reports on behalf of Ms. O'Carroll. He also admitted his failure to file an opposition to the motion for summary judgment, which resulted in the dismissal of Ms. O'Carroll's claim. Respondent had agreed in October 2013 to refund his $2,500 fee, which he maintained was fully earned, but he failed to do so.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.5(f) (failure to refund an unearned fee), 8.1(c), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

16-DB-088

On July 1, 2015, Bernard Anderson paid respondent a $2,500 fee to represent his interests in a succession matter. Thereafter, Mr. Anderson became displeased with respondent's work, and along with opposing counsel, had difficulty communicating with respondent. Mr. Anderson discharged respondent and requested a refund, which he did not receive.

Mr. Anderson contacted the Louisiana State Bar Association ("LSBA") and was advised that respondent was ineligible to practice law. Between June 1, 2015 and July 27, 2015, respondent was ineligible for failure to comply with the mandatory continuing legal education ("MCLE") requirements. E-mail exchanges dated July 2, 2015 and July 6, 2015 indicate that respondent discussed the succession matter with opposing counsel while he was ineligible to practice law.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.1(c) (a lawyer is required to comply with all of the requirements of the Supreme Court's rules regarding annual registration) and 5.5(a) (engaging in the unauthorized practice of law).

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges against respondent in 16-DB-036. Respondent initially did not answer the formal charges, and the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). One month later, respondent filed a motion to recall the deemed admitted order, which was granted by the hearing committee chair. The matter then proceeded to a formal hearing on the merits, conducted in January 2017.

In November 2016, the ODC filed formal charges against respondent in 16-DB-088. Respondent initially filed a motion to dismiss the charges, which was denied by the board. Respondent then filed an answer to the charges and the matter proceeded to a formal hearing on the merits, conducted in October 2017.

Hearing Committee Reports

16-DB-036

Following the formal hearing in this matter, the hearing committee summarized the relevant testimony as follows:

Count I - Respondent testified that Mr. Elliot's matter was referred to the Louisiana Appellate Project. It is unclear whether respondent understood that Mr. Elliot was requesting that his file be sent directly to him or requesting that the file be sent to the Appellate Project. Respondent testified that he aided in getting the court record to the Appellate Project for the appeal. Respondent testified that he was not personally served with the ODC subpoena and agreed to pick up the subpoena from an ODC representative. Respondent testified that he was asked to comply with the request of returning the file on June 3, 2015. Respondent complied with the request the next day by mailing the file to Mr. Elliot.

Count II - Jennifer O'Carroll testified that respondent was paid a $2,500 flat fee for the representation. Ms. O'Carroll became dissatisfied with the amount of communication she had with respondent, as their contact became less frequent and he was no longer "keeping in touch." Respondent testified that he never had a witness to support an opposition to summary judgment and was unable to submit a true affidavit of genuine issues of material fact. His failures to submit an affidavit or an opposition resulted in summary judgment being granted. Respondent testified that he offered to return the fee.

After considering this testimony and the other evidence in the record, the committee made the following findings:

Count I - There is contradictory evidence as to whether respondent had his proper address on file for the ODC. It is clear that he immediately responded when he was notified of Mr. Elliot's request for the file. Respondent provided competent representation for a serious criminal charge and timely referred Mr. Elliot to the Louisiana Appellate Project, although there is some question as to whether he acted expeditiously in his commitment of reasonable due diligence and promptness in representing his client.

Count II - Respondent timely pursued Ms. O'Carroll's case, but he did not have any witnesses to oppose the motion for summary judgment. He did a poor job of continuing to inform the client of the status and circumstances of her case and was slow in determining that there was no evidence to oppose summary judgment. Without question, he spent a significant amount of time working on the file. Although the $2,500 fee seems to have been earned, respondent offered to return the fee and testified that he is still willing to do so.

Based on the above findings, the committee determined respondent violated Rules 1.3 and 1.4 (failure to communicate with a client).

Based on these findings, the committee recommended respondent be publicly reprimanded and that he be required to attend "continuing legal education in the area of Professionalism, Ethics, and/or Law Office Practice."

The ODC filed an objection to the hearing committee's report.

16-DB-088

Following the formal hearing in this matter, the hearing committee summarized the relevant testimony as follows:

Respondent noted that since Hurricane Katrina, mail for him that was addressed to his New Orleans address was sometimes forwarded to his Maryland address, and vice versa. He attributed the mail delivery problems to the U.S. Postal Service. Respondent testified that he has lived in the Washington, D.C. and Maryland area and in New Orleans, where he visited to care for his parents and to work on the family property.

Respondent completed his 2014 MCLE hours in January 2015, resulting in the assessment of a late fee. On May 1, 2015, this court sent a notice to respondent advising him of a June 1, 2015 ineligibility date, pertaining to the necessity that he pay the outstanding $250 delinquency penalty related to the 2014 MCLE hours. The notice also stated that if certification of ineligibility became effective, respondent would have to pay a $350 delinquency penalty and reinstatement fee. Respondent testified that he did not recall receiving the notice.

On June 3, 2015, the Director of the MCLE Committee e-mailed respondent to confirm that he had the requisite hours for compliance, to request the whereabouts of his late fee, and to advise that the "last date any correspondence could be postmarked was June 1." Respondent testified that if the e-mail had mentioned suspension, he would have immediately taken care of the late fee, but the director said nothing of suspension or ineligibility. Respondent testified that he understood how failure to acquire the requisite MCLE hours could lead to ineligibility, but was unaware that delinquency in paying the late fee would do the same.

Respondent testified that he learned of his ineligibility on July 16, 2015, when a criminal court judge informed him that she could not find his name on the list of eligible attorneys. Once he learned of his ineligibility, he informed the court of his status, asked for a continuance in another matter, and shut everything down.

On July 27, 2015, respondent paid the $350 late fee and penalty, picked up a letter of good standing, and called the attorney for Mr. Anderson's brother to inform him of the circumstances and of his recommendation that Mr. Anderson contact him. That same day, the Director of the MCLE Committee sent a notice to respondent, informing him that he had been reinstated. Respondent testified that he was not anticipating a letter of that same date and did not recall receiving the notice.

Respondent acknowledged that during his ineligibility, he represented Mr. Anderson in the succession, accepted an attorney's fee, and exchanged e-mail communications with counsel for Mr. Anderson's brother. Copies of their e-mail exchanges as well as text message exchanges between respondent and Mr. Anderson are included in the record.

After considering the testimony presented at the hearing, as well as the other evidence in the record, the hearing committee made the following factual findings:

Between June 1, 2015 and July 27, 2015, respondent was ineligible to practice law for noncompliance with 2014 MCLE requirements. The only evidence of law practice during this period was for a portion of July 2015. Although he was properly noticed of his ineligibility, he engaged in the practice of law from July 1, 2015 to July 8, 2015. E-mail and text messages exchanged between respondent and Mr. Anderson reflect that respondent met with Mr. Anderson on July 1, 2015 and received $2,500 from Mr. Anderson. The next day, respondent contacted counsel for Mr. Anderson's brother, received a draft detailed descriptive list, and began the process of setting up a meeting with the brother and his attorney to discuss the estate.

There is no evidence that respondent practiced law in June 2015 or after July 8, 2015 (until his July 27, 2015 reinstatement). On July 16, 2015, after learning of his ineligibility, respondent properly noticed the court for continuances. Between July 16, 2015 and July 27, 2015, he continued to communicate with Mr. Anderson via text messaging, but the messages do not reflect that he was practicing law or that he rendered any legal advice. However, there is also no evidence that he notified Mr. Anderson of his ineligibility until he was reinstated. The communications are in the nature of reporting case status only, and fail to report that legal services were discontinued or suspended due to his ineligibility.

Evidence shows respondent began legal services to move the matter forward the day after Mr. Anderson made payment, diligently worked to further Mr. Anderson's cause, and communicated same to Mr. Anderson. The problem is that respondent was ineligible to practice law at the time, and thus ineligible to represent Mr. Anderson before the courts or in any negotiations with the brother's attorney, who also relied on respondent's eligibility in representing his own client. Mr. Anderson was dissatisfied with respondent because he was ineligible to practice law. Respondent agreed to refund Mr. Anderson's fees, which he did after being reinstated. His post-reinstatement e-mails show he continued to assist Mr. Anderson.

At the hearing, respondent was straightforward, cooperative, and credible in his responses, offering plausible explanations.

Based on the above findings, the committee determined respondent violated Rules 1.1(c) and 5.5(a).

The committee determined that respondent negligently violated duties owed to his client, having not paid the requisite fees for eligibility to practice law. His misconduct caused potential harm to his client in that any agreements confected during respondent's eligibility were subject to contest. After reviewing the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the applicable baseline sanction is suspension.

The committee found the following aggravating factors are present: a prior disciplinary record (a 2014 admonition for failing to pay $5,000 to a former client) and substantial experience in the practice of law (admitted 1999). The committee found the following mitigating factors are present: absence of a dishonest or selfish motive and a cooperative attitude toward the proceedings.

After further considering this court's prior jurisprudence addressing similar misconduct, the committee recommended respondent be publicly reprimanded.

The ODC filed an objection to the hearing committee's report.

Disciplinary Board Recommendation

16-DB-036 and 16-DB-088

After considering the totality of the misconduct, the board recommended respondent be suspended from the practice of law for six months, fully deferred, subject to a one-year period of probation. As conditions of probation, the board recommended that respondent attend the LSBA's Ethics School, make full restitution of the fees paid on behalf of Ms. O'Carroll, and pay all costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee's factual findings. See In re: Caulfield , 96-1401 (La. 11/25/96), 683 So.2d 714 ; In re: Pardue , 93-2865 (La. 3/11/94), 633 So.2d 150.

The record in this consolidated matter supports a finding that respondent neglected a legal matter, failed to refund an unearned fee, failed to return a client file upon request, practiced law while ineligible to do so, engaged in conduct prejudicial to the administration of justice, and failed to cooperate with ODC in its investigations. Based on these facts, respondent has violated Rules 1.1(c), 1.3, 1.5(f), 5.5(a), 8.1(c), and 8.4(d) of the Rules of Professional Conduct.

In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

Respondent violated duties owed to his clients, the legal system, and the legal profession. His conduct was negligent in some instances and knowing in others, and caused actual and potential harm. The baseline sanction for the misconduct is suspension. The record supports the following aggravating factors: a prior disciplinary record and substantial experience in the practice of law (admitted 1999). The following mitigating factors are present: absence of a dishonest or selfish motive, personal problems, timely good faith effort to make restitution or rectify the consequences of the misconduct, and full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings.

Considering the circumstances of this matter, we will adopt the disciplinary board's recommendation and suspend respondent from the practice of law for six months, fully deferred, subject to a one-year period of unsupervised probation governed by the conditions set forth in the board's report.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that George Martin Gates IV, Louisiana Bar Roll number 26295, be and he hereby is suspended from the practice of law for a period of six months. It is further ordered that this suspension shall be deferred in its entirety and that respondent shall be placed on unsupervised probation for a period of one year, subject to the conditions set forth in this opinion. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

HUGHES, J., dissents.

GENOVESE, J., would disallow any deferral of sentence.

      Respondent also confirmed that during his ineligibility, he appeared in court to represent another client in a criminal matter.

      The dates and details of the relevant e-mails and texts are as follows:
      1. July 2, 2015: Text to respondent with contact information for the attorney for Mr. Anderson's brother and text from respondent to Mr. Anderson confirming contact with the attorney. E-mail exchange between respondent and the attorney, including delivery of a draft of the succession paperwork, a detailed descriptive list, and a representation from the attorney that appointing brothers as independent co-administrators would be easier, with respondent's acknowledgement of receipt.
      2. July 6, 2015: Respondent asks the attorney for Mr. Anderson's brother if "both of our clients meet... [in] our office," to which the attorney responded with a request for a proposed agenda, points for discussion, and a conference call.
      3. July 8, 2015: Text to Mr. Anderson that respondent was in a hearing on illegal weapons possession and an acknowledging text from Mr. Anderson.
      4. July 16-24, 2015: Eleven texts exchanged between respondent and Mr. Anderson in which respondent asks for his e-mail address and explains that he is waiting for a response from the attorney for Mr. Anderson's brother. There is a reference to entries of $1,500 and $1,000. On July 20, 2015, respondent replies to Mr. Anderson that he is in a hearing concerning a pro se representation in the wrongful foreclosure of his deceased parents' New Orleans home. There is also a statement about background checks.
      5. July 28-29, 2015: Text exchanges show respondent notified Mr. Anderson of his reinstatement, described a specific time for a conference call, suggested contacting his brother's attorney, suggested a resolution in the way of court appointment of co-administrators, and stated that he would return the unearned fee.


text:
    IN RE: Juan C. LABADIE
    NO. 2018-B-1033
    Supreme Court of Louisiana.
    October 29, 2018
    ATTORNEY DISCIPLINARY PROCEEDING
   PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Juan C. Labadie, an attorney licensed to practice law in Louisiana but currently on interim suspension for threat of harm to the public. In re: Labadie , 16-0884 (La. 8/31/16), 199 So.3d 607.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent's prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1996.

In 2011, respondent consented to be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of supervised probation with conditions, for maintaining incomplete records of his client trust account, which resulted in a negligent commingling and conversion of funds. In re: Labadie , 11-1021 (La. 6/24/11), 65 So.3d 152.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

FORMAL CHARGES

17-DB-002

Count I

Judge Michael Mentz presided over a child custody and support suit involving respondent and respondent's former spouse. During the proceeding, respondent was ordered to submit to a drug test, which he refused. Judge Mentz later recused himself from the matter because respondent qualified to run against him in the general election for the Division "F" bench in the 24th Judicial District Court.

During the election, respondent made statements to the news media and it was reported "there was no basis for his ex-wife's request that he be drug-tested, and he accused Mentz of altering the court transcript as it related to the deadline by which he was supposed to take the drug test." According to a news story published on nola.com on September 26, 2014, respondent made accusations against Judge Mentz by "asserting that Mentz has doctored the public record, altering the transcript of an Aug. 7 court hearing." According to an article published in The New Orleans Advocate dated October 25, 2014, respondent stated that he was running for judge to "highlight that Mentz doesn't belong on the bench." Respondent said that "when faced with a situation where I have firsthand knowledge (of misconduct) and I know it happened, how can I turn my back on this and not do it?"

In response to the accusation, Judge Mentz publicly stated that he has never altered a transcript and would have no reason to alter one. Judge Mentz also stated that he is not involved in transcribing court proceedings and has never reviewed a transcript before it was entered into the record.

Respondent later made the same accusation of transcript tampering against Judge Mentz during a formal ODC proceeding. Respondent testified that a tape recording could establish his claims that a transcript of the hearing in front of Judge Mentz had been altered.

In the domestic proceeding, respondent filed a motion to review the audio file, but the request was denied. Respondent sought supervisory review of this ruling. The Fifth Circuit Court of Appeal ordered Judge Donald A. Rowan to conduct an in camera inspection of the audio file of the August 7, 2014 hearing to ensure that the written transcript in the trial record accurately reflected the verbal orders of Judge Mentz. Judge Rowan's report and affidavit to the court confirmed the accuracy of the transcript when compared with the audio recording. Respondent did not produce any evidence to support the statements and allegations he made to nola.com and to the Advocate. The investigation by the Fifth Circuit concluded that respondent's accusations against Judge Mentz were without merit.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.2(a) (a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard for its truth or falsity concerning the qualifications or integrity of a judge), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

Count II

Tamara George was injured in a slip and fall accident at the Boomtown Casino gift shop. On March 4, 2004, she retained respondent to represent her in a claim for damages against Boomtown. Although Ms. George signed a contract with respondent, he never provided her with a copy of the contract. On March 1, 2005, Ms. George's claim against Boomtown prescribed.

In September 2004, respondent advised Ms. George that he had filed suit on her behalf. Thereafter, Ms. George made several attempts to contact respondent regarding the status of her suit, to no avail. On February 19, 2007, she contacted the Second Parish Court and the 24th Judicial District Court (both courts of proper venue) in an effort to discover the status of her suit, but she was advised that neither venue had a record of her suit.

Ms. George scheduled an appointment with respondent for February 27, 2007, at which time she was advised that the case had been "lost." Respondent did not admit to Ms. George that he never actually filed suit. Ms. George then filed a malpractice suit against respondent.

The malpractice suit was settled pursuant to a consent judgment dated October 5, 2011. Under the terms of the agreement, respondent was to pay Ms. George a total of $22,355 in damages; of that amount, $15,548.74 was to be paid no later than sixty days from September 21, 2012, and $4,231.26 was to be paid no later than 120 days thereafter. In addition, respondent was to pay $2,575 to Ms. George's medical provider, also within 120 days of September 21, 2012. To date, however, no funds have been paid to Ms. George or to the medical provider.

The sixth provision of the consent agreement barred Ms. George from filing a formal complaint with the Louisiana Attorney Disciplinary Board and/or the Louisiana State Bar Association. This provision of the agreement was impermissible.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.4(c), and 8.4(d).

Count III

Cammie Templet hired respondent to appeal a restitution order which had been entered against her in a criminal case. Ms. Templet paid respondent $3,000 for the representation in October 2013. In December 2013, respondent filed a motion to stay enforcement of the restitution order in the Fifth Circuit Court of Appeal. The motion was denied. Respondent filed an appeal in January 2014, at which time delay cutoffs were set by the court. On March 13, 2014, respondent was notified that his brief was overdue. He then filed a voluntary motion to dismiss the appeal, which was granted on March 31, 2014.

Ms. Templet regularly attempted to contact respondent to discover the status of her appeal. On November 25, 2014, nearly eight months after respondent had dismissed the appeal, Ms. Templet sent respondent a text message requesting the status of the appeal. Respondent failed to reveal that he had already dismissed the appeal. On December 1, 2014, Ms. Templet again messaged respondent, but he did not respond. On December 4, 2014, she messaged respondent, who replied that he would answer the message later that day. He failed to do so. On December 9, 2014, Ms. Templet texted respondent. Again, respondent failed to advise that he had dismissed the appeal. Ms. Templet and respondent messaged back and forth on December 10, 11, and 17. On December 17, 2014 respondent stated to Ms. Templet that he did not think that the appeal would be a good idea "considering that your payments were lowered to what I believe would be lower than you would have even if successful in an appeal." Respondent failed to disclose that he had long since dismissed the appeal. Ms. Templet requested a refund, but respondent balked at the suggestion.

Shortly thereafter, Ms. Templet contacted the court to seek the status of her appeal. The clerk informed her that the appeal was voluntarily dismissed in March 2014. Respondent stopped responding to Ms. Templet's attempts at contact. She has never received an accounting of the $3,000 fee she paid to respondent.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5) (failure to refund an unearned fee), and 8.4(c).

17-DB-025

Count I

Deborah Frazier hired respondent to represent her interests in a potential malpractice claim against her former attorneys. She paid respondent $3,000 for the representation and met with respondent on September 21, 2013 to discuss the case.

Despite frequent calls to respondent, Ms. Frazier was unable to compel respondent to take action on her claim. Respondent ultimately allowed her cause of action to prescribe. Ms. Frazier asked respondent to refund the fee, to no avail. After July 1, 2015, respondent's telephone line was disconnected and Ms. Frazier was unable to locate respondent.

In May 2016, Ms. Frazier filed a complaint against respondent with the ODC. Respondent failed to respond to the complaint.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.3, 1.4, 1.5(f)(5), 1.15(d) (failure to timely remit funds to a client or third person), 8.1(b) (knowing failure to respond to a lawful demand for information from a disciplinary authority), and 8.1(c) (failure to cooperate with the ODC in its investigation).

Count II

Lana Rousell paid respondent $1,000 to represent her son. On November 10, 2014, Ms. Rousell visited respondent's office to terminate his services and request a refund. That day, respondent agreed to issue a refund. By October 2015, he still had not refunded the money, and Ms. Rousell filed a disciplinary complaint against respondent.

Respondent received notice of the complaint but failed to respond, necessitating the issuance of a subpoena to obtain his sworn statement. Respondent appeared for the sworn statement, at which time he admitted advising Ms. Rousell that he would issue a $1,000 refund. Respondent stated that he would be able to issue the refund within thirty days, but he failed to do so.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 1.5(f)(5) and 1.15(d).

Count III

The Louisiana Attorney General sent a formal complaint to the ODC. Attached to the complaint was a crime report from the Jefferson Parish Sheriff's Office indicating that on July 23, 2014, deputies were dispatched to take the statement of Sherri Patureau, respondent's live-in girlfriend, who had suffered domestic abuse at the hands of respondent. According to the report, respondent had isolated Ms. Patureau in the master bedroom closet of her home and verbally abused her. When she tried to leave, respondent grabbed her and threw her to the floor. While on the floor, respondent grabbed Ms. Patureau by the neck and pinned her down. Ms. Patureau tried to get up, but respondent grabbed her hair and held her down. Ms. Patureau felt short of breath, and respondent told her that she "deserved to die." Respondent then rose and wielded a leather belt, menacing Ms. Patureau with the belt. Shortly thereafter, Ms. Patureau was able to escape the home with her two children. According to the police report, Ms. Patureau sustained physical injuries in the form of swelling of her left wrist and a redness of her neck. Respondent was apprehended by deputies and arrested for domestic abuse battery.

According to Ms. Patureau's sworn statement, as well as the crime report, respondent spat tobacco saliva in Ms. Patureau's face while she was pinned to the floor. Additionally, Ms. Patureau advised that on a later, separate occasion while she and respondent lived with his parents, respondent held the edge of a straight razor to her throat in a menacing and threatening manner. Asked if she feared for her life, she admitted that she did.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer).

Count IV

The Louisiana Attorney General sent a formal complaint to the ODC. Attached to the complaint were police reports alleging that respondent had engaged in domestic violence against his wife, Lori Labadie.

The first police report indicated that on January 1, 2005, pursuant to a verbal argument about finances, respondent grabbed Ms. Labadie, kicked her on the left knee, and pushed her out of the home and into the yard. Deputies noted marks on Ms. Labadie's wrist and knee. Respondent was placed under arrest.

A second police report indicated that on May 1, 2010, Ms. Labadie was attempting to enter the family home, but respondent had physically restrained her and pushed her away. Respondent then used his body to block her entrance into the home. At the time, respondent had an active arrest warrant and deputies took him into custody.

In the family law dispute between respondent and Ms. Labadie, respondent was ordered by the court to submit to a drug test, but he refused to comply. On August 11, 2014, Judge Mentz held respondent in contempt of court and ordered him to serve thirty days of house arrest. That day, respondent announced his campaign to unseat Judge Mentz in the upcoming judicial election. Judge Mentz was compelled to recuse himself from the case. There is an outstanding attachment for respondent's arrest because he failed to appear at a hearing on his motion to recuse Judge Donald Rowan, who is currently presiding over his domestic matter. Respondent's motion was denied and the order of attachment was issued.

The ODC alleged that respondent's conduct violated the following provisions of the Rules of Professional Conduct: Rules 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 8.4(a), 8.4(b), and 8.4(d).

DISCIPLINARY PROCEEDINGS

The ODC filed two sets of formal charges against respondent under disciplinary board docket numbers 17-DB-002 and 17-DB-025. Respondent failed to answer either set of formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3).

The matters were then considered by separate hearing committees. No formal hearings were held, but the parties were given an opportunity to file with the hearing committees written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee's consideration in either matter.

Thereafter, the board filed in this court a recommendation of discipline pertaining only to 17-DB-002. Prior to any action by the court on that matter, the ODC filed a motion to remand, advising of the additional disciplinary matter (17-DB-025) involving respondent. We granted the motion to remand and 17-DB-002 was returned to the board for consolidation with 17-DB-025. The board subsequently filed in this court a single recommendation of discipline encompassing both sets of formal charges.

Hearing Committee Reports

17-DB-002

After considering the ODC's deemed admitted submission, the hearing committee acknowledged that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. The committee also made the following factual findings:

In Count I, respondent accused a sitting judge facing re-election of doctoring a public record by altering the transcript of a court hearing in which respondent was a party. This accusation was made public in news stories carried in both local newspapers. Respondent offered no proof of his own and an examination of the hearing tape proved the accusation to be false.

In Count II, respondent lied to his client when he told her he had filed her lawsuit. He then ignored further communications regarding the status of the matter. When confronted by the client after she found out on her own that no suit was filed, respondent lied to her again when he said her case had been "lost." Respondent never admitted his failure to file suit.

In Count III, respondent accepted $3,000 to file an appeal. After missing the deadline to file his client's brief, respondent voluntarily dismissed the appeal but did not tell his client. Despite multiple communications, respondent failed to reveal to his client that he had dismissed her appeal. He later told the client that the appeal was not a good idea, despite taking the engagement for just that purpose. After the client found out on her own that respondent had dismissed her appeal, respondent stopped responding to the client's communication attempts. Respondent failed to account for the $3,000 fee he accepted.

Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee found respondent violated duties owed to his clients, the public, the legal system, and the profession. His conduct caused actual harm to his clients. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the baseline sanction is suspension. The committee found the following aggravating factors are present: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, substantial experience in the practice of law, indifference to making restitution, and "failure to respond to these proceedings." The sole mitigating factor found by the committee was respondent's personal and emotional problems.

After considering this court's prior jurisprudence addressing similar misconduct, as well as the multiple aggravating factors present in this case, the committee recommended respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee's report.

17-DB-025

After considering the ODC's deemed admitted submission, the hearing committee acknowledged that the factual allegations of the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated Rules 1.3, 1.4, 1.5(f)(5), 3.4(c), 8.1(c), 8.4(a), 8.4(b), and 8.4(d) of the Rules of Professional Conduct.

The committee determined respondent knowingly violated duties owed to his clients, and that his misconduct caused injury to his clients. Respondent abused the judicial process by failing to appear in court when so ordered by a judge and by failing to take a drug test when so ordered by the court. While it is unclear from the record whether he has ever been convicted of a criminal act, respondent physically abused his former wife as well as his domestic partner. Respondent did not display an inability to assist in his defense with regard to the disciplinary proceeding due to a physical or mental incapacity.

After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the baseline sanction is suspension. The committee found the following aggravating factors are present: a dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of conduct, vulnerability of the victim, substantial experience in the practice of law, indifference to making restitution, and illegal conduct. The committee found the following mitigating factors are present: personal or emotional problems and mental disability or chemical dependency.

After further considering this court's prior jurisprudence addressing similar misconduct, as well as the multiple aggravating factors present in this case, the committee recommended respondent be suspended from the practice of law for one year and one day. The committee also recommended respondent be required to pay restitution to Ms. Frazier in the amount of $3,000 and to Ms. Rousell in the amount of $1,000.

The ODC filed an objection to the leniency of the sanction recommended by the hearing committee.

Disciplinary Board Recommendation

17-DB-002 and 17-DB-025

After considering the collective misconduct in these matters, and the jurisprudence of this court, the disciplinary board recommended respondent be disbarred. The board also recommended respondent be ordered to pay restitution to Ms. George, Ms. Templet, Ms. Frazier, and Ms. Rousell. Finally, the board recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the disciplinary board's recommendation.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks , 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan , 01-3058 (La. 1/10/03), 838 So.2d 715.

The record in this consolidated proceeding supports a finding that respondent neglected his clients' legal matters, failed to return unearned fees, made false statements regarding the integrity of a judge, and committed multiple acts of domestic violence. Based on these facts, respondent has violated the Rules of Professional Conduct as charged in the formal charges.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent's actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass'n v. Reis , 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass'n v. Whittington , 459 So.2d 520 (La. 1984).

Respondent violated duties owed to his clients, the public, the legal system, and the legal profession. His conduct was both knowing and intentional, and caused actual harm. The baseline sanction for this misconduct is suspension.

The record supports the following aggravating factors: a prior disciplinary record, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of conduct, vulnerability of the victims, substantial experience in the practice of law, indifference to making restitution, and illegal conduct. No mitigating factors are present.

In deemed admitted matters of misconduct involving neglect, failure to communicate, failure to return unearned fees, and failure to cooperate with the ODC, we have typically imposed suspensions of at least one year and one day. We have imposed short periods of suspension for matters wherein an attorney was found to have committed acts of domestic violence. We have recently disbarred an attorney who was found to have made false statements regarding the qualifications or integrity of a judge.

Considering the totality of the misconduct in this proceeding in light of our jurisprudence, we will adopt the disciplinary board's recommendation and disbar respondent. We will further order respondent to (1) pay restitution to Tamara George consistent with the provisions of the malpractice settlement, (2) provide an accounting and/or a refund of unearned fees, with legal interest, to Cammie Templet, (3) provide a refund of $3,000, with legal interest, to Deborah Frazier, and (4) provide a refund of $1,000, with legal interest, to Lana Rousell.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Juan Carlos Labadie, Louisiana Bar Roll number 24145, be and he hereby is disbarred. His name shall be stricken from the roll of attorneys and his license to practice law in the State of Louisiana shall be revoked. It is further ordered that respondent shall make restitution to his clients as set forth in this opinion. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court's judgment until paid.

      The committee's report does not elaborate on the nature of these problems.

      Respondent tested positive for cocaine in 2016, which was a basis for the ODC's petition for interim suspension for threat of harm to the public. However, in order to prove the mitigating factor of chemical dependency or mental disability, ABA Standard 9.32(i) provides the lawyer must prove the following four factors by clear and convincing evidence: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability ; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. See In re: Stoller , 04-2758 (La. 5/24/05), 902 So.2d 981. The committee did not discuss these factors.

      In In re: Engum , 09-1619 (La. 10/28/09), 21 So.3d 926, an attorney was suspended for one year and one day for neglecting legal matters, failing to communicate with clients, failing to timely account for or refund unearned fees, and failing to fully cooperate with the ODC in its investigations.

      In In re: Bowman , 12-2410 (La. 3/19/13), 111 So.3d 317, an attorney was suspended for six months, with all but thirty days deferred, based on his conviction of domestic abuse battery for pushing his ex-wife with his arm, causing her to stumble backwards against a door, and pinning her against the door by placing his forearm against her throat and chest. In In re: Cardenas , 11-0031 (La. 5/6/11), 60 So.3d 609, an attorney was suspended for one year, with six months deferred, based on his conviction of domestic abuse battery for striking his estranged wife in the presence of their minor child.

      In In re: McCool , 15-0284 (La. 6/30/15), 172 So.3d 1058, an attorney was disbarred using the Internet and social media to disseminate false and misleading information about two judges handling her client's child custody cases.


text:
    Gilda WOODS v. WINN-DIXIE MONTGOMERY, L.L.C., The Coca-Cola Company a.k.a. Louisiana Coca-Cola Bottling Company a.k.a. Coca-Cola Refreshments USA, Inc., and Jonathan Burden
    No. 2018-C-1263
    Supreme Court of Louisiana.
    October 29, 2018
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIFTH CIRCUIT, PARISH OF ST. CHARLES
    Denied.
    CRICHTON, J., would grant and docket and assigns reasons.
   In this trip and fall case, the underlying issue is whether two cases of drinks left in the beverage aisle of a grocery store by a distributor created an unreasonable risk of harm, leading to a finding of liability as found by the trial court here, or whether it was an open and obvious condition, which would lead to an opposite result. I would grant and docket the defendant's application in this matter to explore whether the trial court erred in delivering what the court of appeal deemed to be a "compressed" jury instruction regarding the factors used to determine whether a condition is open and obvious. See Broussard v. State, through Office of State Bldgs., Div. of Admin. , 12-1238 (La. 4/5/13), 113 So.3d 175, 184.