122 So. 3d 1 (La. Ct. App. 2012)

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State v. Higginbotham

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Jun 22, 2012

122 So. 3d 1 (La. Ct. App. 2012)

Summary

In State v. Higginbotham, 46,975 (La.App. 2 Cir. 4/25/12), 122 So.3d 1, 2012 WL 1414271, the defendant argued on appeal that a Batson violation had occurred when the State exercised peremptory challenges against five African–American prospective jurors.

Summary of this case from State v. Florant

See 1 Summary

Opinion

No. 46,975–KA.

2012-06-22

STATE of Louisiana, Appellee v. Bobby D. HIGGINBOTHAM, Appellant.

Rachel I. Conner, New Orleans, LA, Harry Daniels, III, for Appellant. Bobby D. Higginbotham, Pro Se.

CARAWAY

Rachel I. Conner, New Orleans, LA, Harry Daniels, III, for Appellant. Bobby D. Higginbotham, Pro Se.
James E. Paxton, District Attorney, Linda K. Watson, Anita T. Mack, Damon D. Kervin, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS, and CARAWAY, JJ.

CARAWAY, J.

On May 19, 2010, a six-person Tensas Parish jury convicted Bobby Higginbotham of malfeasance in office and felony theft for his actions as mayor of the Town of Waterproof. La. R.S. 14:134 and 14:67. During a lengthy recess of the trial and after the full presentation of the state's case on three charges contained in the indictment, a partial mistrial was granted on the charge of public contract fraud, a violation of La. R.S. 14:140. Higginbotham received concurrent sentences of five years at hard labor, two years suspended for the malfeasance conviction and seven years at hard labor, three years suspended for felony theft. Higginbotham appeals his convictions and sentences including a claim that the granting of the partial mistrial on the public contract fraud charge was in error. For the following reasons, we reverse the convictions.

Facts and Procedural History

In January of 2007, Bobby Higginbotham took office as Mayor of the Town of Waterproof (the “Town”), Louisiana, a Lawrason Act municipality, located in Tensas Parish. In February of 2009, a Tensas Parish grand jury issued a 44–count indictment charging Higginbotham with 21 counts of felony theft, 18 counts of malfeasance in office, 4 counts of public salary deduction and one count of unauthorized use of a movable.

Immediately before opening statements in the trial of this case, the state amended the grand jury indictment to reduce the charged offenses to only three counts, including, for the first time, a public contract fraud charge under La. R.S. 14:140. Those counts and their descriptions contained in the written amended bill of indictment included:

1) Public Contract Fraud due to Higginbotham's use of his power or position “by instructing Town of Waterproof employees to purchase goods and services from a business or partnership for the Town of Waterproof of which [Higginbotham] is a member.”

2) Malfeasance in Office by the intentional and unauthorized use of the Town's funds for personal travel unrelated to town business.

3) Felony theft “by increasing [Higginbotham's] salary in an amount in excess of $500.00 without the approval and/or knowledge of the Board of Alderman.” Higginbotham's salary authorized by ordinance was $12,000, yet he later was paid a salary of $36,000.

The name of Higginbotham's purported business out of which the public contract fraud occurred was Higginbotham's Place, a convenience store which sold gas. From Higginbotham's assignments of error now raised, the public contract fraud charge, which was ultimately dismissed during trial by the granting of a partial mistrial, will be central to our ruling in this appeal.

After the removal of Higginbotham's initial counsel in March 2009, due to a conflict of interest, Higginbotham sought numerous continuances of the case relating to his purported unsuccessful efforts to obtain counsel. In early 2010, assessing Higginbotham's actions as delay tactics, the court appointed a public defender as standby counsel for Higginbotham, and the case was set for trial on March 29, 2010.

On March 15, 2010, the recently appointed standby counsel filed a motion for discovery and Higginbotham followed with a similar pro se motion on March 17, 2010. Both motions were set for hearing on March 22, 2010. By the date of the hearing, the state had produced the “majority of discovery.” On March 26, 2010, Higginbotham filed a motion to continue on the grounds that he had not had time to review the evidence provided by the state. Hearing on the motion was set for the first day of trial.

Notably, standby counsel informed the court in a sidebar conference at the March 29 hearing of his intent to seek a continuance should he be formally appointed as counsel. Nevertheless, after a hearing to determine Higginbotham's financial status, the court refused to appoint an indigent defender to represent Higginbotham and continued the use of standby counsel.

On March 29, 2010, the state filed notice of its intent to use evidence of other crimes, specifically seeking to introduce evidence relating to the Mayor's payment of bonuses to police officers for their issuance of a high volume of traffic tickets.

Prior to the beginning of trial on March 29, 2010, the court denied Higginbotham's motion for continuance as not being well grounded and ordered the state to provide Higginbotham with any remaining discovery it had in its possession.

As evidence contained in the discovery responses was introduced by the state, Higginbotham continued to object on the grounds that he had not been able to review it.

The record shows that from the time of Higginbotham's discovery motion and the time of trial, the state had produced 10 boxes of documentary evidence. At the time of this argument, the state was prepared to produce copies of requested recordings of the Board of Aldermen meetings. The court's order for the state's production of remaining discovery pertained to this remaining evidence.

After the trial had proceeded through two days of testimony for the state's case,

on March 31, 2010, Higginbotham sought writs to this court on the issue of a continuance regarding his lack of time for preparation. This court stayed the trial proceedings on April 1, 2010, and ordered the state to submit a response and the trial court to submit a written per curiam to the court regarding the issues of the proceedings raised by defendant. At the trial court, simultaneously with this court's ruling on April 1, recommencement of the fourth day of trial was actually delayed by the hospitalization of the defendant with chest pains. Because of that development the trial court itself recessed the proceedings until Higginbotham's writ application and his health issue were resolved.

The state's presentation of its case, which included the testimony of 14 witnesses, concluded on March 31, 2010, at the time the state indicated it “would rest” because it had “admitted all the documents ... we need to.”

After reviewing the trial court's per curiam, this court granted Higginbotham's writ on April 8, 2010, with regard to the motion for continuance, directing the trial court to:

grant a recess of the trial for a minimum of 30 days to allow the defendant an opportunity to fully review the materials provided in response to the motion for discovery and prepare a defense to the indictment(s) charging public contract fraud and felony theft.

In April of 2010, during the recess of the trial, Higginbotham filed a motion for mistrial based upon the defectively transcribed testimony of two state witnesses which he claimed prejudiced his defense. During presentation of the testimony of Ted Higginbotham and Dr. Glenda Richardson, the court's recording equipment malfunctioned. Thus, none of Ted Higginbotham's testimony was transcribed and only part of Richardson's testimony was transcribed. On May 7, 2010, by written judgment, the court denied Higginbotham's motion for mistrial. Higginbotham sought writs to this court which, on the morning of May 18, 2010, ordered the granting of a partial mistrial on the public contract fraud case. The state's agreement to the partial mistrial was noted in this court's ruling as follows:

After reviewing both the application and the State's opposition, and in light of the State's agreement that the trial court should grant a partial mistrial as to Count One, this writ application is hereby granted in part to declare a partial mistrial as to Count One of the indictment charging Public Contract Fraud.

Simultaneously, on the afternoon of May 18, 2010, the trial court called a hearing on various motions including the mistrial. At the hearing, the state also advised the trial court of its agreement to a partial mistrial as to the public contract fraud charge only. The defense objected and requested a mistrial on all counts. The trial court granted the motion in part for the charge of public contract fraud, coinciding with this court's order of that date.

Trial resumed on May 19, 2010, and the state again immediately rested its case. For the first time during the delayed trial, Higginbotham was represented by counsel and the standby counsel arrangement ended. On that date, the state filed a Motion to Withdraw Evidence from the record seeking to withdraw four exhibits which were introduced during the testimony of Ted Higginbotham and seven other state exhibits which were introduced into evidence during the presentation of the state's case. On May 19, 2010, the court signed an order withdrawing these exhibits as well as Exhibit D–1, which was introduced into evidence during Ted Higginbotham's testimony. The exhibits which were removed from evidence upon the partial granting of a mistrial included:

1) State's Exhibit 3, introduced into evidence during the testimony of Lee Harville, a lieutenant with the Louisiana State Police and the state's first witness. Harville described S–3 as “original and/or copies of receipts where it appears that things were charged to Higginbotham's Place.”

2) State's Exhibit 7, introduced into evidence during Harville's testimony. Harville described E–7 as “the stuff that was seized by Trooper Todd Cummings, and brought back and receipt it.”

3) State's Exhibit 8, introduced into evidence during Harville's testimony. Harville described the document as the merchant participation agreement of US 65 South Partnership which was signed by Bobby Higginbotham as its principal officer. Further, Harville testified that the document showed the merchant application which identified Bobby Higginbotham as the principal owner of US 65 Partnership which had gone by the name of Higginbotham's Place, One Place Higginbotham and US 65 Partnership. Harville testified that “everybody referred to it as the Mayor's store.”

Notably Higginbotham objected to the introduction of S–8 on the grounds that it had no bearing on Town affairs. The prosecutor then stated that the evidence was relevant to public contract fraud and that the state “must establish that he is an owner in the business which is known as US 65 Partnership, Higginbotham's Place and a couple of other names.”

4) State's Exhibit 9—introduced during the testimony of Harville who described the document as being titled, “US 65 Partnership Property [sic] and Loss, January through December, 2007.”

5) State's Exhibit 20—introduced during the testimony of Harville who described the document as another profits and loss statement for US 65 Partnership for the year of January through December, 2005.

6) State's Exhibit 33—introduced during the testimony of state's witness Calvin Moore who identified the exhibit as the 2002–2004 US 65 Partnership tax returns which were signed by Bobby Higginbotham.

7) State's Exhibit 34 (same as S–9, S–20)—introduced during the testimony of Moore who described them as in globo tax returns for US 65 Partnership for 2005–2006.

8) Defense Exhibit 1—introduced during Higginbotham's examination of Dr. Glenda Richardson. Dr. Richardson described the document as the US Partnership Agreement which explained who the partners were. Richardson testified that the names listed on the document included Ted Higginbotham, Gibson Chickfoo and Dr. Glenda Richardson.

On May 19, 2010, the state also filed a Motion for Admonishment to the jury which included suggested language for the court to read to the jury regarding the partial mistrial. Prior to the restart of trial, counsel for Higginbotham objected to the proposed admonishment submitted by the state, refused to provide suggested language of his own, and also objected to the order removing evidence from the record relating to the charge of public contract fraud. The court overruled the objections and trial resumed.

In his defense, Higginbotham called his first witness to testify and after the completion of her testimony, the court issued the following admonishment to the jury regarding the partial mistrial:

All right, ladies and gentlemen of the jury, if you would, listen closely, because this is an instruction of the Court that is important. During the recess, it was discovered that due to malfunction or human error, there is an incomplete recording of the trial testimony of Dr. Glenda Richardson and no recording of the trial testimony of Mr. Ted Higginbotham. Because testimony must be recorded, this Court has granted a partial mistrial as to the charge of public contract fraud, only, and admonishes and instructs you to disregard any and all testimony by Dr. Richardson and Mr. Higginbotham. And further admonishes and instructs you to disregard any documents or physical evidence offered by either the State or Defendant during the testimony of Dr. Richardson or Mr. Ted Higginbotham. You are to draw no inferences in favor of or against either party because a partial mistrial was granted. All items of evidence relevant or pertaining to the charge of public contract fraud have been removed from the record and will not be shown to you when you examine the evidence. In other words, you no longer have a charge of public contract fraud before you. You are further instructed that you are not to consider and must disregard such testimony or physical evidence in determining the guilt or innocence of the accused as to the remaining charges of malfeasance in office and theft. Thank you. Next witness. Please be sworn.

Higginbotham completed the presentation of his case but not without incident. Before the final two remaining witnesses, Higginbotham attempted to recall one of the state's witnesses who had been released from the rule of sequestration and had sat in the courtroom during the testimony of other witnesses. The court denied Higginbotham's request. Higginbotham called two final witnesses, including himself, before resting. The jury unanimously convicted Higginbotham of the remaining counts. He was sentenced on February 24, 2011.

On August 16, 2010, prior to sentencing, Higginbotham filed a motion for new trial arguing in relevant part that the trial court erred in failing to grant a mistrial after it was learned that two witnesses' testimony was not recorded or fully recorded. Higginbotham argued that the lack of transcribed evidence prejudiced his right to judicial review and that any and all references to the proof of contract fraud which was presented to the jury constituted inadmissible other crimes evidence which prejudiced the jury verdicts.

At the hearing on the motion for new trial, a court reporter testified that there was no recording of Ted Higginbotham's testimony and only a partial recording of Dr. Richardson's testimony. The witness testified that although the recorder appeared to be on, it was in fact turned off. The court rejected Higginbotham's argument that a full mistrial should have been declared upon the discovery of the missing recordings based in part upon this court's ruling on the partial mistrial and that the evidence was admissible at the time it was offered and did not qualify as other crimes evidence. Further, the court determined that the admonishment was sufficient to cure the lack of transcribed testimony.

Thereafter, the appeal ensued.

Discussion

In Higginbotham's appeal, his counsel raises 13 assignments of error and, in a pro se brief, 6 other assignments are made. There is no assignment of error directly challenging the sufficiency of the evidence of the convictions. In three assignments of error raised by counsel, the following assertions are made concerning the events surrounding the partial mistrial and its effects on the proceedings:

(1) The trial court erred in granting a partial mistrial on the public contract fraud charge.

(2) Mr. Higginbotham was denied his constitutional right to appellate review when the trial court failed to ensure a complete transcript of the proceedings.

(3) The trial court improperly admitted inadmissible 404B evidence over objection without proper Prieur notice.
In summary, defendant asserts, (1) that there is no authority for the grant of the partial mistrial under the Code of Criminal Procedure; (2) that the state's entire case for its charge of public contract fraud was presented to the jury; (3) that the admonishment to the jury to disregard the evidence of the public contract fraud demonstrates that “other crimes” evidence was improperly received by the jury; and (4) that even the measure of the question of harmless error caused by the “other crimes” evidence cannot be reviewed on appeal due to the incomplete transcript.

Regardless of all the other issues raised by defendant surrounding the procedural rulings before, during and after the trial, the technical problem regarding the incomplete transcription of the testimony was a clear error. In view of our law and the jurisprudence dealing with such a problem, the state made concessions to both the trial court and this court during the recess of trial that it should not proceed on the charge of public contract fraud because of the error in the transcription of the evidence.

A criminal defendant has a right to a complete transcript of the trial proceedings, particularly where appellate counsel was not counsel at trial. State v. Deruise, 98–0541 (La.4/3/01), 802 So.2d 1224,cert. denied, 534 U.S. 926, 122 S.Ct. 283, 151 L.Ed.2d 208 (2001), citing Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). La. Const. art. 1, § 19 guarantees a defendant a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.” Additionally, La.C.Cr.P. art. 843 provides:

In felony cases ... the clerk or court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.

A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal does not cause reversal of a defendant's conviction. State v. Draughn, 05–1825 (La.01/17/07), 950 So.2d 583, 625,cert. denied,552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) (upheld conviction where record included testimony of all witnesses); State v. Castleberry, 98–1388 (La.4/13/99), 758 So.2d 749, 773,cert. denied,528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999) (lack of recorded bench conference and transcript of voir dire proceedings held not to be substantial or significant omission from record); State v. Allen, 95–1754 (La.9/5/96), 682 So.2d 713 (upheld conviction where defendant's arguments relating to voir dire were noted as bench conferences in the record and challenges for cause and the attorney's arguments concerning them were transcribed). Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal. State v. Hoffman, 98–3118 (La.4/11/00), 768 So.2d 542. An incomplete record, however, may be adequate for appellate review. State v. Draughn, supra;State v. Castleberry, supra. A defendant will not be entitled to relief on the basis of an incomplete record absent a showing that he was prejudiced by the missing portions of the record. State v. Draughn, supra;State v. Castleberry, supra. The determination of whether the omissions are material must be made on a case by case basis. The critical inquiry is whether the defendant's right to judicial review can be performed or is the record so inadequate that the defendant's constitutional right to review is prejudiced. State v. Boatner, 03–0485 (La.12/3/03), 861 So.2d 149 (held defendant had shown no prejudice in omissions in the record during a witnesses's testimony who had not in fact identified exhibits which were never introduced into evidence and in the defendant's testimony which was not “perfectly” transcribed but was sufficient for review). See also, State v. Hawkins, 96–0766 (La.1/14/97), 688 So.2d 473 (which upheld defendant's conviction despite lack of transcripts of opening statements, closing arguments and jury instructions, due to a lack of showing of prejudice by defendant).

In State v. Landry, 97–0499 (La.6/29/99), 751 So.2d 214, the Louisiana Supreme Court reversed the defendant's conviction and remanded for a new trial when the record before the court referenced loud construction noise and did not include “adequate safeguards for the recording of the trial proceedings, which hindered the recording of the proceedings.” The transcript lacked the identity of the jurors who were speaking, jurors' responses to questions, peremptory strikes and challenges for cause. It also lacked a transcript of the preliminary hearing, the victim impact statement of defendant's mother, unrecorded bench conferences and included different versions of the defendant's criminal history, defendant's father's victim impact statement and misidentification of various speakers during trial. Defendant's appellate counsel was not trial counsel. In support of the reversal of defendant's conviction, the court cited State v. Parker, 361 So.2d 226 (La.1978); State v. Jones, 351 So.2d 1194 (La.1977); State v. Ford, 338 So.2d 107 (La.1976); and State v. Rooney, 187 La. 256, 174 So. 348 (1937), which are all illustrations of the reversal of convictions for errors in transcriptions of the proceedings.

Important to the Landry court was the fact that it was “faced with assignments of error relative to voir dire examination that we cannot resolve on the present record” based upon “numerous” defense counsel remarks which were transcribed as “inaudible responses during critical portions of voir dire which make it impossible to ascertain why certain jurors were excluded.”

With the transcription defect in the record of the Higginbotham proceedings, the foregoing jurisprudence does indicate that defendant's right to appellate review of a conviction would be adversely affected. However, since the lost transcript affected the testimony of two witnesses who purportedly testified concerning Higginbotham's business relationship and ownership of Higginbotham's Place, the state agreed that a partial mistrial for Count One of the indictment, the public contract fraud charge, was required. This mistrial conclusion finds support in La.C.Cr.P. art. 775 which provides in pertinent part as follows:

A mistrial may be ordered, and in a jury case the jury dismissed, when:

(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

Nevertheless, while Article 775 demonstrates that the procedural defect for mistrial was clear, the article and the criminal code itself do not give allowance for a partial mistrial in the course of a trial involving a multiple count indictment. From our review of jurisprudence, we have found very few cases involving the granting of a partial mistrial.

In State v. Diggs, 43,740 (La.App.2d Cir.12/10/08), 1 So.3d 673,writ denied,09–0141 (La.10/2/09), 18 So.3d 101, a partial mistrial was granted during a bench trial. The case involved a multiple count indictment where two separate rape victims had been accosted by the defendant within a short time period in nearby locations. When the second victim began her testimony, defense counsel recognized her as a person with whom counsel had a professional relationship and moved for a mistrial. After a hearing, the trial court granted a partial mistrial regarding the rape charges pertaining to the second victim. Defendant appealed the granting of a partial mistrial because of the lack of authority for such action in the criminal code. This court rejected that argument, finding that under La.C.Cr.P. art. 17, the trial court possesses inherent authority to conductthe proceeding. The court then found harmless error based in large part on the fact that a bench trial conviction had occurred.

In State v. Busby, 94–1354 (La.App.3d Cir.4/5/95), 653 So.2d 140,writ denied,95–1157 (La.9/29/95), 660 So.2d 854, the court of appeal rejected an ineffective assistance claim. The defendant was charged with three counts of molestation of a juvenile involving separate victims. The case went to a jury, and the state put on evidence for all three offenses. At the conclusion of the state's case, the prosecution dismissed one of the three counts. The jury returned with guilty verdicts on the two remaining counts. The court affirmed the dismissal of one of the three charges, finding harmless error.

In Busby, the defense argument raised the mistrial provision of La.C.Cr.P. art. 770(2) concerning the prosecution's evidence of another crime. The article provides as follows:

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:

* * * * * *

(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

* * * * * *

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.

Higginbotham likewise argues that the partial mistrial ruling was made after the state had presented all of its evidence of the crime of public contract fraud. He asserts that the prosecution therefore directly violated the prohibition of Article 770(2) and that the article specifically states that the trial court's admonition to the jury to disregard the defense testimony and exhibits of the other crime “shall not be sufficient to prevent a mistrial.”

Evidence of other crimes, wrongs or acts committed by the defendant is generally inadmissible because of the “substantial risk of grave prejudice to the defendant.” State v. Prieur, 277 So.2d 126 (La.1973). This general rule ensures that a defendant who has committed other crimes will not be convicted of a present offense simply because he is perceived as a “bad person,” irrespective of the evidence of his guilt or innocence. The state may introduce evidence of other crimes, wrongs or acts if it establishes an independent and relevant reason such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. La. C.E. art. 404(B)(1). Although a defendant's crimes, wrongs or prior bad acts may be relevant and otherwise admissible under La. C.E. art. 404(B), the court must still balance the probative value of the evidence against its prejudicial effects before the evidence can be admitted. La. C.E. art. 403. Any inculpatory evidence is “prejudicial” to a defendant, especially when it is “probative” to a high degree. State v. Germain, 433 So.2d 110, 118 (La.1983). As used in the balancing test, “prejudicial” limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial. Id. See also, Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 650, 136 L.Ed.2d 574 (1997).

The erroneous admission of other crimes evidence due to the state's failure to give the defense proper notice, or for any other reason, is subject to the harmless error rule because the erroneous introduction of other crimes evidence is a trial error, i.e., an error which occurs during the case's presentation to the trier of fact, which may be quantitatively assessed in the context of the other evidence. State v. Johnson, 94–1379 (La.11/27/95), 664 So.2d 94, 102. An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06–1537 (La.1/16/08), 988 So.2d 166.

In State v. Johnson, supra, the Louisiana Supreme Court examined the erroneous admission of other crimes evidence by the state in a prosecution for attempted second degree murder and aggravated burglary. In Johnson, the defendant took the stand in his own defense. During his cross-examination, the defendant admitted to one 1973 guilty plea to simple burglary. When the defendant denied any other burglary convictions, the state presented a certified copy of court minutes which showed that in addition to the admitted offense, the defendant had pled guilty to four other burglary charges and not guilty to one. The defendant persisted in his admission of only one previous burglary conviction. The state offered the court minutes into evidence, along with certified copies of six bills of information corresponding the above-noted pleas. The defendant did not object to introduction of the minutes, believing that they were admissible under La. C.E. art. 609.1, but objected to the admission of the bills of information. The court sustained the defendant's objections finding that the bills of information were unduly prejudicial to the defendant. The state sought writs to the court of appeal which reversed the trial court's ruling and allowed introduction of the bills of information into evidence. Trial resumed and the state questioned the defendant about the documents. The defendant maintained that he pled guilty to only one count of burglary. He appealed his ultimate conviction and sentence. The court of appeal reversed his conviction after reviewing evidence which showed that what the defendant contended was true. The court concluded that the evidence was erroneously admitted as extraneous offenses that per se prejudiced the defendant. The Supreme Court granted writs to determine whether the harmless error analysis applied to the improper admission of other crimes evidence. The court agreed that the admission of the evidence was inadmissible other crimes evidence but concluded that the harmless error test applied to appellate review, rejecting the previous per se prejudice rule,

which had been applied to other crimes evidence violations.

In State v. Collins, 283 So.2d 744 (La.1973), the Louisiana Supreme Court reversed a defendant's simple burglary conviction based upon the state's cross-examination of the defendant which included the district attorney's reference to defendant's arrest and charge in connection with another burglary. Defense counsel's objection to the testimony was overruled by the court. Thereafter defense counsel moved for a mandatory mistrial under Article 770(2) which was denied. The Supreme Court determined that the prosecutor's reference to the defendant's arrest and charge was not admissible in evidence and constituted a mandatory ground for mistrial.

In so holding, the court stated that its determination was not barred by consideration of the mandatory provisions of La.C.Cr.P. art. 770, because although “couched in mandatory terms, this is a rule for trial procedure.” Using the harmless error analysis, the court upheld the defendant's conviction.

The court cited and overruled State v. Brown, 428 So.2d 438 (La.1983), which generally stated this rule, but determined that the defendant was not entitled to a mistrial under La. C. Cr. P. Art. 770(2). The Brown court cited State v. Green, 315 So.2d 763 (La.1975), which reversed a defendant's conviction after a prosecutor inappropriately referred to other crimes evidence and the defense sought a mandatory mistrial under Article 770. The court also mentioned State v. Duke, 362 So.2d 559 (La.1978), and State v. Hamilton, 356 So.2d 1360 (La.1978) which involved prejudice to the defendant's rights and application of the per se rule caused by other types of statements by the prosecutor. The court cited cases which had previously conducted the harmless error analysis in cases of improper introduction of other crimes evidence including State v. Connor, 403 So.2d 678 (La.1981), State v. Neslo, 433 So.2d 73 (La.1983), and State v. Tassin, 536 So.2d 402 (La.1988), cert. denied,493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989).

In State v. Bell, 99–3278 (La.12/8/00), 776 So.2d 418, the Louisiana Supreme Court reversed a defendant's armed robbery conviction based upon the prosecutor's introduction of evidence that the defendant had committed another armed robbery two months earlier. The court of appeal affirmed the conviction after determining that although the trial judge erred in admitting the evidence of the earlier robbery to prove identity, the error was harmless in light of the overwhelming evidence of the defendant's guilt. The Supreme Court ruled that the court of appeal had correctly ruled that the admission of the evidence for purposes of identity was erroneous. Nevertheless, upon harmless error review, the court ruled that:

When a defendant is being tried on a charge of armed robbery and the prosecutor chooses to present inadmissible evidence that the defendant has committed one or more armed robberies, and the trial court erroneously allows this inadmissible evidence, the prosecutor has a very heavy burden to demonstrate in the appellate court that the error was harmless beyond a reasonable doubt. The very purpose of prohibition of the admission of such evidence, as stated in La.Code Evid. art. 404 A, is to prevent the jury's convicting an accused on the basis of evidence that the accused's action in the charged crime was in conformity with his or her prior conduct and the evidence of the prior conduct tends to prove only that the accused was a person of bad character.

The court further stated that the prosecutor can overcome the burden only with “physical evidence directly connecting the accused with the charged crime, with independent testimonial evidence, or with strong and corroborated circumstantial evidence.” Because the only evidence in the case directly connecting defendant with the armed robbery was the testimony of two co-perpetrators who were also charged with the robbery, the court “simply [cannot] conclude with any confidence that the jury's guilty verdict was surely unattributable to the erroneous admission of evidence of a prior armed robbery.”

Article 770 of the criminal code contemplates a direct or indirect reference by the prosecution to another crime allegedly committed by defendant “as to which evidence is not admissible.” The state obviously believed in this unique setting that it had proven beyond a reasonable doubt the crime of public contract fraud. The proof of the crime not only involved the evidence of the two witnesses whose testimony was not transcribed, but numerous other witnesses and the exhibits indicating Higginbotham's directing to his personal business the Town's purchases of fuel and other products. This case for public contract fraud was more than a mere passing reference, directly or indirectly, to another crime. Additionally, the trial court's admonitionand the evidence and documents which were identified to the jury as withdrawn from their consideration served to reiterate the strong proof by the state of the crime of public contract fraud.

Higginbotham's alleged crime of public contract fraud was different in the manner of its commission from the other charged offenses so that the “other crime” was arguably irrelevant or of minimal independent relevance under Article 404(B) to demonstrate a similar plan or motive. Higginbotham's defenses for the malfeasance charge and the felony theft charge pertained to the accounting for the use of the Town funds and the payment of his salary, which he claimed were authorized by the Board of Aldermen. His actions with the Town's credit card and the checks for his salary were subject to the public audit. On the other hand, the public contract fraud concerned his clear graft which was attempted to be hidden from the public accounting. A summary of the evidence pertaining to the three charges, including the public contract fraud charges, reveals the following.

The state presented testimony of one state police employee who investigated complaints about Higginbotham's management of the Town and executed search warrants for the Town police department, the Town Hall and Higginbotham's Place. Through his testimony and the documentary evidence presented therein, the state sought to establish that Waterproof employees charged Town expenses to Higginbotham's Place, a business owned by Higginbotham. Additionally, Dr. Glenda Richardson, a partner in the Higginbotham's Place store, testified that Higginbotham had an ownership interest in Higginbotham's Place and that he owned “that store.” A legislative auditor also testified that Ted Higginbotham, the Mayor's brother and partner in Higginbotham's Place, told him that Bobby Higginbotham was the actual owner of the partnership that ran Higginbotham's Place.

Testimony by two employees of the Louisiana Legislative Auditor's Office and the documentation submitted during their testimony was also utilized to establish that Waterproof employees made $43,000 worth of charges at Higginbotham's Place which was paid with Town funds from January 2007 until July 2008. Several former and current Town employees and Aldermen testified about their knowledge that Town employees regularly bought gasoline from Higginbotham's Place. A former mayor testified that during her tenure, Higginbotham asked the Town to buy gas from “his” gas station, Higginbotham's Place, and identified minutes from a May 8, 2006 Board meeting where Higginbotham made this request.

Unfortunately, as noted above, the testimony of Ted Higginbotham was not transcribed, but the trial court allowed the auditor to testify to this fact because the auditor's report containing the same statement was admitted into evidence. Only the cross-examination of Dr. Glenda Richardson was transcribed.

Regarding the malfeasance charge, the auditors' testimony and related documentary evidence were presented to establish that Higginbotham charged $6,768.67 to the Town credit card for personal expenses and travel from February 2007–March 2009 without documentation of the purported business purpose for the charges. Four aldermen who served during Higginbotham's term as mayor testified that the Board of Aldermen never approved of the mayor's trips or received any information from them. One alderman testified that when Higginbotham became mayor, he asked the Board at the first meeting to apply for a credit card in the name of the Town. Initially, three signatures were required on any Town checks, but three aldermen testified that Higginbotham had “everyone else's name” taken off of the signature card for the Town's bank accounts, and ultimately the defendant's signature was the only one required. Two of the aldermen testified that the Board repeatedly asked for financial information from Higginbotham to no avail. Each stated that Higginbotham never provided financial information including credit card statements to the Board to review. One Town employee testified that while Higginbotham was mayor, he asked the employee to purchase a shredding machine with the Town credit card. Another employee testified that Higginbotham invited her and her daughter to stay at his condo in Hawaii.

Regarding the theft claim, the state also utilized expert testimony to establish the proper procedure for setting or increasing the mayor's salary through the passing of an ordinance. A former Waterproof mayor testified that she was unaware of this requirement. Otherwise, the state presented the testimony of four aldermen who served during Higginbotham's term to establish that the increase in Higginbotham's salary was never authorized by ordinance. Through cross-examination, Higginbotham attempted to show that the Board was aware of his salary increase and had approved it in the budget. Alderman Lionel Travers admitted he learned that Higginbotham had been paying himself $36,000 per year from July of 2007–July of 2008. Travers recalled that Higginbotham attempted to convince the Board that it had approved the salary increase and repeatedly tried to persuade the Board to pass an ordinance. Travers identified two proposed ordinances through which Higginbotham unsuccessfully attempted to increase his salary to $60,000 and $70,000. Ultimately, Travers admitted that he had been informed that Higginbotham was receiving a $36,000 salary and that the Board had approved a budget with the salary in it, but he insisted that the Board never passed an ordinance to authorize the increase.

Edna Jean Cooper testified that in 2008 Higginbotham requested the Board to increase his salary from $36,000 to $60,000, although, she stated, the Board never approved the $36,000 salary in the first place. On cross-examination, Cooper admitted that she was not present when the 2007/2008 budget was approved, which included Higginbotham's $36,000 salary. Alderman Elizabeth Cooper confirmed that the Board never approved by ordinance Higginbotham's $36,000 salary. Cooper was confused on whether the Board had approved the $36,000 salary in the 2007/2008 budget. Alderman Caldwell Flood testified that at a February 2008 Board meeting, Higginbotham requested an increase in his salary to $60,000 by ordinance. At that time Flood was unaware that Higginbotham was earning $36,000; Flood testified that the Board never approved the $36,000 salary.

Two of the witnesses called by the defense testified to the conduct of the Waterproof financial administration. A former mayor explained Waterproof's payroll procedure and salary approval. The Waterproof Chief Administrative Officer, Annie Watson, testified that she was at a 2007 Board of Aldermen meeting when the Board voted on a budget which approved the mayor's $36,000 salary.

Higginbotham chose to testify and categorically denied that he had stolen from the Town of Waterproof or that he had made up his own salary. He claimed that his mistakes were not criminal, and that he did not intentionally try to circumvent the law or do anything for personal gain. Higginbotham persisted in his position that the salary increase occurred in the 2007/2008 fiscal year budget and that the Board approved the salaries in May or June of 2007. He claimed that his salary was not approved by ordinance due to his ignorance of that requirement. Higginbotham also claimed that he personally guaranteed a credit card for the Town because the Town's credit was too poor for the bank to issue a card. Higginbotham testified that the credit card statements would come to the Town Clerk who had instructions to provide the Board access to those statements. Higginbotham admitted that he used the credit card when he traveled on behalf of the Town but claimed that in his travels, he was engaged in various efforts on behalf of the Town. Higginbotham admitted that when he used the card for “personal purposes,” he reimbursed the credit card company or the Town. Higginbotham also testified that he had the authority to remove all signatures from the check signature cards.

During cross-examination of Higginbotham by the state, the assistant district attorney sought explanation for the approximately $70,000 charged to the Town's credit card. Defense counsel questioned the breadth of the questioning as possibly relating to the charge of public contract fraud and requested the court to further admonish the jury. The court declined to issue any further admonishment. The state auditor had earlier explained that this sum represented the total amount of Town funds used to pay the credit card balances. As noted above, the auditor attributed $43,000 of the credit card charges to purchases from Higginbotham's Place and $6,768.67 to personal travel expenses.

From this review, we find that the state's entire case for public contract fraud could not be sufficiently withdrawn from the jury's consideration by the admonition given by the trial court. The evidence of the crime involving Higginbotham's surreptitious conduct for the municipal purchases from his personal business was highly prejudicial to his asserted defense for the two crimes for which he was convicted. Additionally, a total measure for a harmless error analysis cannot be given because of the same reason which caused the partial mistrial, the incomplete transcript. Moreover, a partial mistrial is not recognized in the criminal code apparently for the same policy expressed in Article 770(2), which in mandatory terms requires a complete mistrial. The Louisiana Supreme Court has never sanctioned a partial mistrial in its prior rulings, and therefore, we conclude that the mandate from the legislature under Article 770(2) must be followed in this unique setting and that the convictions must be reversed.

Conclusion

For the foregoing reasons, Higginbotham's convictions are reversed and his sentences vacated. The case is remanded for further proceedings.

REVERSED AND REMANDED. BROWN, Chief Judge, dissents with written reasons.

BROWN, Chief Judge, dissenting.

In February 2009, a Tensas Parish grand jury returned a 44–count indictment charging Higginbotham with 21 counts of felony theft, 18 counts of malfeasance in office, 4 counts of public salary deduction and one count of unauthorized use of a movable.

During a conference in chambers on the day of trial, the prosecutor dismissed all but three counts of the indictment. The three remaining counts were malfeasance in office, felony theft, and public contract fraud (the latter amended from the one court of original charge of malfeasance in office).

In this case, the delayed, tortuous pretrial proceedings were caused by defendant's evasiveness as to his legal representation. On March 29, 2010, Higginbotham went to trial representing himself. An attorney from the Indigent Defender's Office was present as standby counsel. The state rested its case two days later. The next day, this court granted Higginbotham a 30–day continuance and stayed the proceedings. When the trial resumed for the presentation of Higginbotham's case, defendant was represented by counsel.

During the delay, the trial court discovered an error in the recording of the testimony of two witnesses for the state. The state had presented evidence in support of the public contract fraud charge against Higginbotham, which included the testimony of Ted Higginbotham (defendant's brother), and Dr. Glenda Richardson (Higginbotham's business partner). Through an error in the court's recording equipment, neither of these two witnesses' testimony was recorded. Defendant moved for a mistrial. The trial judge granted a mistrial as to the public contract fraud count. The exhibits pertaining to the public contract fraud charge were removed from the record, and the jury was admonished to disregard the testimony and the exhibits.

Higginbotham made a writ application to this court, which affirmed the trial court's action. Thereafter, his writs to the supreme court were denied, Justice Johnson dissenting. State v. Higginbotham, 11–0564, (La.05/06/11), 60 So.3d 621.

The indictment was changed to charge contract fraud on the day that trial began. The public contract fraud charge was changed from a charge of malfeasance in office that related to the “purchasing [of] goods and services and instructing Town of Waterproof employees to purchase goods and services from a business or entity in which he and/or immediate family members has [sic] a personal substantial economic interest....” Thus, defendant was aware that evidence relating to his control and ownership of the store and the Town's purchases at the store would be at issue.

Further, this court specifically found that a partial mistrial was the appropriate remedy and writs were denied by the Supreme Court. At the time this court ruled, the state had presented its case-in-chief and the evidence relating to the public contract fraud charge had been presented. The missing transcription of the two witnesses' testimony by itself is not overly prejudicial to defendant. The jury was adequately admonished.

A mistrial is a drastic remedy to be invoked only when defendant suffers such substantial prejudice that he is deprived of any reasonable expectation of a fair trial. State v. Richardson, 35,450 (La.App.2d Cir.02/27/02), 811 So.2d 154;State v. Adams, 30,815 (La.App.2d Cir.06/24/98), 715 So.2d 118,writ denied,98–2031 (La.03/19/99), 739 So.2d 774. The decision to grant or to deny a mistrial lies within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion. Id. Likewise, the determination of whether an admonition will adequately cure any prejudice, and assure a fair trial, lies within the sound discretion of the trial court. State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993).

In State v. Diggs, 43,740 (La.App.2 Cir.12/10/08), 1 So.3d 673, 678, this court stated:

Neither the state nor the defense has set forth any legal authority allowing (or disallowing) the granting of a partial mistrial-that is, the granting of a mistrial on some but not all of the counts charged in the indictment. The state cites cases in which the trial court has granted a mistrial on some but not all of the counts in instances when the jury has been unable to agree on a verdict under La. C. Cr. P. art. 775(2). See State v. McCain, 583 So.2d 160 (La.App. 3d Cir.1991), writ denied,588 So.2d 1115 (La.1991)

* * *

Where the law is silent in such cases, the inherent authority of the court would permit a rule of reason requiring the proceedings to be conducted with dignity and in an orderly and expeditious manner. La.Code Crim. Proc. art. 17.

Defendant filed a writ application with this court seeking a complete mistrial. This court found that a partial mistrial was appropriate. The Supreme Court, thereafter, denied the writ application by defendant. There was no abuse of discretion in this case.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.

Rehearing granted. WILLIAMS and CARAWAY, JJ., would deny rehearing.

ON REHEARING

BROWN, Chief Judge, On Rehearing.

The facts and procedural history of this case have been throughly set forth in the initial opinion and dissent. We granted rehearing to revisit this court's reversal of Bobby Higginbotham's convictions and sentences based upon the two-judge majority's holding that the granting of a partial mistrial, that is, the granting of a mistrial on some but not all of the counts charged, was clear error. The majority found that “a partial mistrial is not recognized in the criminal code apparently for the same policy expressed in (C.Cr.P.) Article 770(2) (remarks to the jury directly referring to another crime), which in mandatory terms requires a complete mistrial.” We now vacate and set aside this court's original opinion and after considering the other assignments of error raised by defendant on appeal affirm defendant's convictions and sentences.

Discussion

Partial Mistrial

In January 2007, Bobby Higginbotham took office as the Mayor of the Town of Waterproof, Louisiana. Waterproof is a Lawrason Act municipality, La. R.S. 33:321 et seq. , in Tensas Parish. In February 2009, a Tensas Parish grand jury returned a forty-four count indictment charging Higginbotham with twenty-one counts of felony theft, eighteen counts of malfeasance in office, four counts of public salary deduction and one count of unauthorized use of a moveable.

Immediately before opening statements, the prosecutor amended the indictment to reduce the charged offenses to only three counts-one count of malfeasance in office, one count of felony theft, and the prosecutor amended one count of malfeasance in office (original Count One) to a charge of public contract fraud. Notably, the amended count previously read:

[Defendant] did commit Malfeasance in Office by violating R.S. 42:1112, by purchasing goods and services and instructing Town of Waterproof employees to purchase goods and services from a business or entity in which he/and or immediate family members has [ sic] a personal substantial economic interest, in the approximate amount of $56,582.57, all in violation of R.S. 14:134.
After the amendment, the count read:

[Defendant] did commit Public Contract Fraud, by using his power or position by instructing Town of Waterproof employees to purchase goods and services for the Town of Waterproof from a business or partnership of which he is a member, all in violation of R.S. 14:140.

During the presentation of the state's case, Robert “Bobby” Trahan, a senior auditor with the Legislative Auditor's office, testified that in May 2008, he went to Waterproof to investigate why the Town had not submitted financial statements for the fiscal year ending in June 2007 as required by law. He explained that the Mayor was prohibited by law from causing the Town to have a transaction with a business owned by the Mayor or an immediate family member. Trahan discovered “a number of charges” on the Town credit card at Higginbotham Place, a business allegedly owned and operated by the Mayor. This was the basis of the public contract fraud count.

The auditor also found charges on the Town's credit card for airline travel to Los Angeles, Chicago and Las Vegas. The auditor testified that, when he asked the Mayor whether these were personal expenses or related to Town business, Higginbotham first said that he did not know but later admitted that they were personal matters. This pertained to the malfeasance count on which defendant was convicted. The felony theft count involved Higginbotham increasing his salary from $12,000 to $36,000 yearly without approval from the Board of Aldermen.

The next witness for the state was Ted Higginbotham who is defendant's brother. The recording equipment for the courtroom malfunctioned, and thus there is no record or transcript of Ted Higginbotham's testimony. The next witness was Dr. Glenda Richardson, who was a business associate of defendant. Because of the malfunction with the recording equipment, this witness's testimony on direct examination was not recorded, so there is no transcript of that part of her testimony. The transcript commences at a point during cross-examination of the witness by defendant. This witness answered questions from defendant about defendant's ownership interest in the business, Higginbotham Place. On re-direct, the witness told the jury that Bobby Higginbotham owned “that store” despite the signatures of the witness and Ted Higginbotham on a partnership agreement.

The state rested its case after two days of trial. Defendant requested a continuance which the trial court denied. The next day, this court granted Higginbotham's writ application and allowed him a 30–day continuance.

During the delay, the trial court discovered that something had gone wrong with the recording equipment. As stated, the prosecution had presented evidence in support of the public contract fraud charge against defendant, which included the testimony of defendant's brother, Ted Higginbotham, and defendant's business partner, Dr. Glenda Richardson. Because of the error in the court's recording equipment, Ted Higginbotham's testimony and much of Dr. Richardson's testimony were not recorded. Defendant moved for a mistrial. The state agreed to a mistrial as to the public contract fraud count. The trial judge granted a mistrial as to that count but denied defendant's motion for a mistrial as to the other two counts. The exhibits pertaining to the public contract fraud charge were removed from the record, and the jury was admonished to disregard the testimony and the exhibits.

Defendant filed a writ application with this court, which affirmed the trial court's action. Thereafter, defendant's writ to the supreme court was denied, with Justice Johnson dissenting. State v. Higginbotham, 11–0564 (La.05/06/11), 60 So.3d 621.

La. C. Cr. P. art. 775 provides in pertinent part:

A mistrial may be ordered, and in a jury case the jury dismissed, when:

...

(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

...

A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.

The mistrial granted in this case on the public contract fraud count was appropriate. As to the other two counts, in State v. Diggs, 43,740 (La.App. 2 Cir. 12/10/08), 1 So.3d 673, 678–679,writ denied,09–0141 (La.10/02/09), 18 So.3d 101, this court stated:

...

It would stand to reason that since all four counts (two separate victims of aggravated rape and armed robbery) were not required to be joined in the same indictment, the trial court had the power to grant partial relief in a case such as the one sub judice, where the Louisiana Code of Criminal Procedure is silent on the procedure to be followed.

This court in State v. Diggs, 1 So.3d at 679, then concluded that:

[F]urthermore, any error would have been harmless because the guilty verdict actually rendered in this trial was surely unattributable to the error.

A mistrial is a drastic remedy to be invoked only when defendant suffers such substantial prejudice that he is deprived of any reasonable expectation of a fair trial. State v. Richardson, 35,450 (La.App.2d Cir.02/27/02), 811 So.2d 154;State v. Adams, 30,815 (La.App.2d Cir.06/24/98), 715 So.2d 118,writ denied,98–2031 (La.03/19/99), 739 So.2d 774. The decision to grant or to deny a mistrial lies within the sound discretion of the trial court, and will not be disturbed absent a clear abuse of that discretion. Id. Likewise, the determinationof whether an admonition will adequately cure any prejudice, and assure a fair trial, lies within the sound discretion of the trial court. State v. Jeffers, 623 So.2d 882 (La.App. 2d Cir.1993).

In State v. Busby, 94–1354 (La.App. 3d Cir.04/05/95), 653 So.2d 140, 146,writ denied,95–1157 (La.9/29/95), 660 So.2d 854, the defendant was charge with three counts of molestation of three different juveniles. The state put on evidence as to all three counts; however, at the end of the state's case, the prosecutor dismissed one of the counts. The appellate court held that:

The state's case as to count one and count two was supported by the testimony of the two young victims, who graphically described the defendant's actions, e.g., one victim's testimony clearly described forced fellatio. Their testimony, in turn, was supported by evidence adduced from the examining physician and the investigating officers. Sufficient evidence was presented to prove the elements of the charged crimes beyond a reasonable doubt ... any prejudice resulting from the dismissal of count three was harmless beyond a reasonable doubt. Since defendant was not entitled to a mistrial, his attorney was not ineffective in failing to move for a mistrial. (Emphasis added).

In the case sub judice, the auditor's testimony concerning purchases made at the store as well as the missing transcription of the two witnesses' testimony regarding ownership of the store were not overly prejudicial. The jury was admonished to disregard all of this evidence.

We note that the question of defendant's guilt was clearly proven beyond any reasonable doubt. In fact, defendant does not claim or assign as error that the evidence was insufficient. The partial mistrial in the other counts in Diggs and Busby concerned rape, armed robbery and child molestation. The one mistrial count in the instant case was public contract fraud. The evidence of defendant's guilt of the remaining two counts was overwhelming and the guilty verdicts were surely unattributable to any error.

We find the same analysis applicable to defendant's argument concerning the introduction of other crimes, wrongs, or acts and the mandatory mistrial under La. C.Cr.P. art. 770. Generally, evidence of other acts of misconduct is not admissible because it creates the risk that the defendant will be convicted of the present offense simply because the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146 (La.1993). This rule of exclusion stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126 (La.1973).

A trial court's ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Scales, 93–2003 (La.05/22/95), 655 So.2d 1326,cert. denied,516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996). The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Ruiz, 06–30 (La.App.3d Cir.05/24/06), 931 So.2d 472;State v. Johnson, 94–1379 (La.11/27/95), 664 So.2d 94.

The other crimes evidence in this case was an indicted count of public contract fraud. Obviously, defendant had notice. It likewise represented a modus operandi, a method of operation. In both the malfeasance count and the public contract fraud count, defendant used the Town's credit card to enrich himself. We note in State v. Busby, supra, the state's entire case had been presented, and the defendant in Busby argued that the evidence already adduced as to the dismissed count was “other crimes” evidence which prejudiced the jury's consideration of the remaining counts. La.C. Cr. P. art. 770(2) provides that upon motion of a defendant, a mistrial shall be declared 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 another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible.

In our case, the other crime evidence would have been admissible under C.E. 404 B(1). The Third Circuit Court of Appeal in State v. Busby, supra, and this court in State v. Diggs, supra, found that any prejudice resulting from the dismissal of one count was harmless beyond a reasonable doubt.

There was no abuse of the trial court's discretion in this case. We will now address the remaining assignments of error which were raised by defense counsel and Higginbotham on appeal.

Jury Selection

Defendant's first and third assignments of error are intertwined complaints that the trial court allowed the state to excuse jurors based upon their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and that the record is inadequate for this court to review this alleged error.

In the voir dire for this six-person jury, defendant asserted that the state had excused five African–American jurors based upon their race. On appeal, defendant makes the bare claim that the trial court erred in allowing these jurors to be excused and argues that the record “is marked inaudible and does not reflect whether or not the trial court found a prima facie case of discrimination, undertook the analysis required by Batson or whether or not after hearing from the prosecutor, the trial judge denied or simply disregarded Mr. Higginbotham's objection.”

The transcript of Higginbotham's objection to the state's use of peremptory challenges and the court's handling of that objection appears to be abbreviated or incomplete. The material part of the record, from a sidebar conference, begins after the prosecutor exercised a back-strike against an African–American prospective juror. Even when there is an incomplete record of the proceedings, a defendant is not entitled to relief absent a showing of prejudice based on the missing portions of the transcript. State v. Castleberry, 98–1388 (La.04/13/99), 758 So.2d 749,cert. denied, Castleberry v. Louisiana, 528 U.S. 893, 120 S.Ct. 220, 145 L.Ed.2d 185 (1999); State v. Hawkins, 96–0766 (La.01/14/97), 688 So.2d 473;State v. Rodriguez, 93–0461 (La.App. 4th Cir. 03/29/94), 635 So.2d 391,writ denied,94–1161 (La.08/23/96), 678 So.2d 33.

In Batson, the Supreme Court held that an equal protection violation occurs if a party exercises a peremptory challenge to exclude a prospective juror on the basis of a person's race. The Supreme Court reaffirmed its position that racial discrimination in jury selection offends the Equal Protection clause of the 14th Amendment in Miller–El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005). Louisiana law codifies the Batson ruling in La. C. Cr. P. art. 795.

The trial court's responsibility when presented with a Batson challenge was detailed by the Louisiana Supreme Court in State v. Anderson, 06–2987 (La.09/09/08), 996 So.2d 973, 1004,cert. denied, Anderson v. Louisiana, 556 U.S. 1165, 129 S.Ct. 1906, 173 L.Ed.2d 1057 (2009):

If defendant makes a prima facie showing of discriminatory strikes, the burden shifts to the state to offer racially neutral explanations for the challenged members. If the race-neutral explanation is tendered, the trial court must decide, in step three of the Batson analysis, whether defendant has proven purposeful discrimination. The race-neutral explanation need not be persuasive or even plausible. Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), quoting Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). It will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory challenge. State v. Tyler, 97–0338, (La.09/09/98), 723 So.2d 939,cert. denied,526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999).

The trial court's findings with regard to a Batson challenge are entitled to great deference on appeal. State v. Tyler, supra; see also, State v. Juniors, 03–2425 (La.06/29/05), 915 So.2d 291. When a defendant voices a Batson objection to the state's exercise of a peremptory challenge, the finding of the absence of discriminatory intent depends upon whether the trial court finds the prosecutor's race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy. Miller–El v. Dretke, supra.

In this case, the state did give race-neutral reasons for the strike-back challenges. Unfortunately, the appellate record does not reflect whether the trial court made an initial finding of a prima facie case, or whether the court itself required any further explanation from the prosecutor of the use of his peremptory challenges. However, once the prosecutor offers a neutral reason for a peremptory challenge, the question of whether defendant had made a prima facie showing of intentional discrimination is rendered moot. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); State v. Sparks, 88–0017 (La.05/11/11), 68 So.3d 435,cert. denied, El–Mumit v. Louisiana, ––– U.S. ––––, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).

As outlined above, the determination that a party has made a prima facie case and that the proffered reasons are, or are not, race-neutral is a function of the trial court, who has the benefit of being in the presence of the jurors and the prosecutor. What is clear is that the prosecutor did give race-neutral reasons for the challenges and that the trial court did not require further explanation. By its proceeding with the trial, the court implicitly denied defendant's Batson objection.

A review of voir dire is instructive. The transcript of the state's back strikes shows that the state peremptorily challenged jurors Diane Perry, Willie Percy and Patrick McCraney. According to the prosecutor in brief, the other two African–American jurors who were excused were Amanda Gales and Johnny Coleman.

The first of these jurors was Diane Perry. Ms. Perry reported that she had been a child care worker for 18 years and that her husband, formerly a farmer, was unemployed. Ms. Perry knew defendant and, in fact, had been employed “at his store in Waterproof back there” in 1999. She said that her acquaintance with defendant would not affect her ability to be fair and that she would not be afraid to vote for either side. She also said that she could vote “guilty” if she believed that defendant was guilty. She explained that, if the Mayor repaid the Town any of the money he allegedly took, that would be “good” or “better,” but that his taking of the money should still be a crime.

The second juror was Amanda Gales. Ms. Gales' boyfriend was incarcerated and facing criminal charges and according to her, he “was supposed to appear for today.” When questioned, she said that she did not have any bias against the Sheriff's Office or the prosecutor because of that pending charge; she said, “because if you have evidence and you have proof, then that's all that matters.”

The third juror was Johnny Coleman, a truck driver and farmer in Pineville. The state had information that Coleman had a pending felony charge for second degree battery in Catahoula Parish. Coleman was unclear about the current status of his case, saying that he had not been to court since December 2003, that the case may have been “discontinued” and that he would have to look at the records to know. The state exercised a peremptory challenge after the issue could not be conclusively resolved.

The fourth juror was Willie Percy, a maintenance worker for the Tensas Parish School Board. Percy had also worked for the Town of St. Joseph as a patrolman. He had a conviction for possession of marijuana in 1975. He said that he had no “axe to grind” with the state and that his offense was a misdemeanor. When asked whether his prior law enforcement experience would work against defendant, he gave no audible response, but the prosecutor clarified that Percy said that he would consider defendant innocent until proven guilty.

The fifth juror was Patrick McCraney, a truck driver from Newellton. His wife worked for the Community Head Start in St. Joseph. McCraney's wife, Marilyn, was also on the prospective jury panel. During her voir dire, she said that she would hold the state to a higher burden of proof than required by law because “I've dealt with Mr. Higginbotham, and ah, he's been, I mean, he's done a lot for Head Start.” By contrast, McCraney said that he could return a verdict of guilty for defendant if the state could prove its case beyond a reasonable doubt.

After reading the transcript of voir dire, we find that the trial court did not err in rejecting defendant's Batson challenges.

Motion to Quash

Defendant challenged the jury venire as a whole (i.e., not the selected jury) on the grounds that the venire disproportionately underrepresented African–Americans. At the hearing on this motion, defendant asserted that only 40% of the 150–person jury pool was African–American, yet the racial makeup of the parish was nearly equal between African–Americans and whites.

Defendant argued that only 40% of the jury pool was African–American, but the Clerk of Court for Tensas Parish testified that the pool, going back to 2005, was 49.8 percent African–American and 48.5 percent white, and the particular jury pool available for defendant's trial was 52% African–American and 47% white. Further, defendant had no proof that any “alleged” underrepresentation was due to systematic exclusion of African–Americans; the clerk explained that the drawing of the pool was done randomly by computer from voting and Department of Motor Vehicle records.

Defendant failed to show that the representation of African–Americans in the Tensas Parish jury venire was not fair and reasonable in relation to the number of such persons in the community. See Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The motion to quash was properly denied.

Disqualification of Counsel

As noted above, in March 2009, the district court disqualified defendant's retained attorney, Karl Koch, from representing defendant in this criminal case because it found that the attorney had a conflict of interest due to his concurrent representation of the Town of Waterproof, the victim of the alleged offenses by defendant. Higginbotham sought supervisory review in this court, which granted the application and affirmed, agreeing that the attorney had a conflict of interest.

On appeal, defendant argues that the trial court violated his right to counsel of his choice, a structural error that cannot be harmless and requires reversal.

This issue was fully litigated in 2009, well before trial. Typically, a court will not revisit an issue on appeal that has previously been decided on a writ application granted on the merits; this is the “law of the case” doctrine. State v. Holder, 44,386 (La.App.2d Cir.10/28/09), 25 So.3d 920;State v. Hunter, 39,664 (La.App.2d Cir.06/29/05), 907 So.2d 200,writ denied,05–2027 (La.03/10/06), 925 So.2d 507. Nothing in the record and no other developments in this prosecution require reexamination of this issue which was previously decided by this court. Defendant's choice of Mr. Koch as his attorney was clearly unacceptable. Accordingly, this assignment of error is without merit.

Right to Counsel

Defendant argues that the trial court violated his right to counsel by forcing him to go to trial without an attorney and represent himself despite his protestations that he wanted to be represented by an attorney.

In State v. Dunn, 30,269 (La.App.2d Cir.02/25/98), 713 So.2d 479, 490–91,writ dismissed,98–0978 (La.01/15/99), 735 So.2d 644, this court explained the right to counsel, the waiver thereof, and when a defendant's conduct amounts to a waiver:

The accused in a criminal proceeding has the right to assistance of counsel for his defense. U.S. Const. amends. VI, XIV; La. Const. art. I, § 13; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

...

A defendant must exercise his right to counsel of his choice at a reasonable time, in a reasonable manner and at an appropriate stage of the proceedings. State v. Seiss, 428 So.2d 444, 447 (La.1983). The accused's unquestioned right to legal representation at his trial cannot be manipulated by him, by attempts at last-minute substitution or otherwise, so as to secure unwarranted delays or otherwise obstruct the orderly administration of justice. City of Baton Rouge v. Dees, 363 So.2d 530, 531 (La.1978). A defendant's refusal to proceed with appointed counsel and to retain counsel on his own may constitute a waiver of the right to counsel. See State v. Harper, 381 So.2d 468, 471 (La.1980); State v. McGowan, 359 So.2d 972, 974 (La.1978); State ex rel. Johnson v. Maggio, 449 So.2d 547, 549 (La.App. 1st Cir.), writ denied sub nom., State v. Johnson, 450 So.2d 354 (La.1984). If an accused repeatedly fails to retain counsel for trial, or if he appears without counsel after being clearly and unequivocally warned by the trial court that the case will be tried regardless, such fact may support a finding of implied waiver. State v. Wisenbaker, 428 So.2d 790, 793 n. 10 (La.1983).

This case is a very atypical waiver of counsel case. After a review of the entire record, it is apparent that defendant's uncounselled status through the first half of his trial was wholly his own choice, a decision made by his deliberate manipulation of his right to counsel in an effort to derail the orderly progress of the prosecution. At the outset, defendant retained counsel with a clear conflict of interest, and once that attorney was excused from the case, defendant repeatedly and stubbornly refused either to retain an attorney or request that an indigent defender be appointed for him. Approximately two months before trial, the district judge patiently explained to Higginbotham, who has an advanced education including an M.B.A. degree, that he must either retain an attorney or request that the public defender be appointed before his next appearance in February 2010. At that next appearance, defendant told the court:

Your Honor, under advice of counsel, I'm gonna take the Fifth, under the U.S. Constitution. I have no comment to make to the Court until a counsel is enrolled. (Emphasis added).
Clearly at this time, defendant was receiving advice from one or more attorneys—a fact he also admitted at his pauper hearing—yet he again deliberately chose neither to enroll an attorney for himself nor to request the appointment of the public defender.

At trial, after jury selection began, defendant requested the appointment of the public defender, but an examination of defendant's finances led the trial court to conclude that defendant was not indigent and could afford to retain an attorney. On the evidence adduced in the record, that finding is not manifestly erroneous, and indeed defendant did retain an attorney to present a case after the recess in the trial.

As to defendant's objection, the trial court stated, “This court is of the firm opinion that defendant has manipulated his right to counsel in an effort to delay or prevent trial.” The trial court's conclusion is amply supported by the record. Defendant's conduct was a deliberate attempt by him to disrupt the orderly proceedings, as was the case in the “implied waiver” cases cited in State v. Dunn, supra.

Standby Counsel

Defendant argues that the first public defender appointed to assist him, Leroy Smith, had a conflict of interest that precluded him from representing defendant, and that conflict carried over to the other attorneys employed by the public defender's office, including Jamie Crews who assisted defendant at trial.

This conflict between defendant and Smith is not shown in the record and defendant's argument on this point does not refer to any particular facts in the record to clarify the situation, although according to argument, Smith may have represented someone adverse to defendant in a car accident case.

Although defendant voiced an objection early in the proceedings to the appointment of the public defender to represent him, at no time did defendant object to Smith's participation or that of his standby counsel on the grounds that Smith had a conflict. Indeed, at the point when the conflict was first raised by Smith, defendant was, apparently, attempting to have an attorney from the public defender's office appointed to represent him.

Because of the lack of an objection below, none of these attorneys were actually enrolled to represent defendant; there is no evidence that whatever conflict that may have existed affected the attorney's performance See Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), and the nature of the conflict is not well developed in the record-which it would have been had there been an objection. This assignment of error is without merit.

Refusal to Allow Defendant to Argue That His Prosecution was Politically Motivated by the Grant of State Motion in Limine

During the recess of the trial, the state filed a motion in limine seeking to exclude evidence or argument from defendant “about any information that may relate to the May 7, 2010, Second Circuit Court of Appeal ruling re-instating defendant as Mayor of Waterproof ... or about who is or who is not the Mayor of Waterproof.” In arguing on that motion, defendant urged that such a limitation would prohibit him from fully presenting a defense because, as defense counsel stated, “But what I've read, I believe a lot of it is politically motivated.” Counsel further argued, “The whole thing is about [what] he's done in office. And the State arguing that's illegal, his activities, which are not. And that's what we hope to prove in this case. So we're being limited in our ability to present that defense, if we can't mention the fact that he is [sic] officially been placed back into office, which he really wasn't legally taken out to begin with.”

The court did not grant the state's motion in its entirety; rather, the court said that it would grant the motion:

[T]o the extent that I already have during opening, I believe it was during the opening statements, there was an effort to discuss political motivation and “this is a witch hunt” kind of argument. And that was disallowed already. So I think I would be changing my ruling if I said that now you can bring in political motivation and that kind of thing. So to that extent I will grant it and rule that it's inadmissible. If there're other things that counsel wish to discuss as we go along, about, you know, what's admissible and what's not, I'll have to rule on it as it comes.

On appeal, Higginbotham argues the general rule that a defendant has the right to present a complete defense, and in his pro se brief, he argues that he was prosecuted for the irregularity with his salary while the Board of Aldermen were not prosecuted.

Generally, substantive issues of selective/vindictive or politically motivated prosecution are handled separately from the evidence that is adduced for defendant's guilt. See, e.g., United States v. Berrigan, 482 F.2d 171, 175 (3d Cir.1973):

By both tradition and constitutional mandate the jury is given the responsibility of determining guilt or innocence according to instructions of law delivered by the court. The question of discriminatory prosecution relates not to the guilt or innocence of Appellants, but rather addresses itself to a constitutional defect in the institution of the prosecution.
Further, as stated by the court in United States v. Abboud, 438 F.3d 554, 580 (6th Cir.2006), cert. denied, 549 U.S. 976, 127 S.Ct. 446, 166 L.Ed.2d 309 (2006):

We wholeheartedly agree with Defendants' argument that cross-examination plays a vital role in the adversarial system of our country, and the ability to show bias, motive, or prejudice on the part of a witness is an integral part of cross-examination. Defendants, however, seem to conflate the concepts of witness bias and selective prosecution. Witness bias speaks to “ ‘the reliability of the witness.’ ” Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). When one exposesbias, motive, or prejudice of a witness, one is calling into question the credibility of that witness's testimony. Selective prosecution is a separate and distinct claim that defendant has been unconstitutionally selected for prosecution.

Defendant did not file a motion to quash the prosecution on the grounds that it was politically motivated, or would such a motion likely have been successful. Defendant's salary was set by ordinance at $12,000 per year, yet he paid himself $36,000 per year. The board members he complains about being treated differently apparently had a salary of $250 per month and paid themselves $500 per month, a figure significantly less than defendant's “salary.” There is also no evidence that any of the board members used the Town credit card for luxury travel, dining and accommodations costing thousands of dollars, all at the Town's expense.

A review of the entire transcript of the trial does not reveal any instance where defendant's cross-examination of the witnesses was unduly curtailed, either before or after the court's ruling on the motion in limine. Defendant was given ample leeway in cross-examining the state's witnesses and was allowed to probe any evidence of bias or prejudice they may have had in their testimony.

In his opening statement, defendant said, “I submit to you today that this defendant is a victim of a political witch hunt perpetrated by state officials, perpetrated by Board of Alder[men] members, perpetrated by regular ordinary citizens, perpetrated by the District Attorney, the State Police, and others.” Finally, despite the court's ruling, defendant was able to probe his allegations, through his questioning, that the prosecution was politically motivated. During cross-examination of John Gallagher, defendant questioned the witness about whether defendant was still identified in the Secretary of State's website as the Mayor of Waterproof. Because defendant was not unduly restricted in his cross-examination of witnesses or in his own testimony, any error in the trial court's rather limited restriction on defendant's argument is harmless beyond a reasonable doubt.

Witness Sequestration

Defendant argues that the trial court erred by releasing former Alderman Elizabeth Cooper from the rule of sequestration at the end of her testimony during the state's case and then refusing to allow him to recall her during his case-in-chief because she had listened to the testimony of other witnesses.

The purpose of sequestration is to assure that a witness testifies as to his own knowledge, to prevent witnesses from being influenced by the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Lucas, 39,419 (La.App.2d Cir.03/09/05), 896 So.2d 331;State v. Barber, 30,019 (La.App.2d Cir.01/21/98), 706 So.2d 563,writ denied,98–1353 (La.10/09/98), 726 So.2d 24. The mere fact that a witness speaks to other witnesses does not establish a violation of the order of sequestration and does not show possible prejudice. State v. Strickland, 94–0025 (La.11/01/96), 683 So.2d 218;State v. Armstead, 432 So.2d 837 (La.1983); State v. Lucas, supra. Exclusion of witnesses is not an appropriate sanction without a showing of how the infraction prejudiced the opposing side's right to cross-examine the witness and develop needed facts in this case. State v. Lucas, supra.

A trial court's exclusion of a witness dues to a sequestration violation may be an error that prejudices the defendant and requires reversal. In this case, the trial court excused the witness and did not allow defendant to elicit testimony from her because “the Court excused her from the rule and her being in the courtroom during the testimony of the other witnesses.” According to the court in State v. Lucas, supra, a mere violation of the rule may not be enough without an accompanying showing of prejudice.

However, in this case, the difficulty with reviewing this assignment of error on appeal is that we do not know what the witness would have said had she been allowed to testify. For purposes of appellate review, a party may make a proffer of evidence, including testimony, that the trial court has excluded. See, e.g., State v. Dunn, 01–1635 (La.11/01/02), 831 So.2d 862,appeal after remand,01–1635 (La.05/11/10), 41 So.3d 454;cert. denied, Dunn v. Louisiana, ––– U.S. ––––, 131 S.Ct. 650, 178 L.Ed.2d 480 (2010), (in which a proffer was made of the testimony of a witness excluded because of a sequestration violation; a review of the proffer revealed no prejudice to defendant). Without such a proffer to preserve the witness's testimony for review, it is exceedingly difficult for this court to determine whether defendant was prejudiced by the trial court's action.

Because the record is inadequate to address this assignment, we hold that the record, as it stands, reveals no prejudice to defendant.

Amended Indictment

Defendant argues that the prosecutor amended the indictment in open court on March 30, 2010, the day after the first jurors were sworn in, and that this required the trial court to grant a mistrial. The state argues that the record shows that the indictment was amended on March 29, 2010, in a recess prior to the swearing of the first juror.

The record does include the voicing of an amendment to the indictment by the prosecutor on March 30, 2010, after jurors were sworn. However, the prosecutor's statement includes the sentence, “And I think I explained it in chambers what the amendments are.” The trial judge who was present at the chambers conference said in his ruling denying defendant's motion for mistrial that the amendment was done in chambers on March 29, 2010, in accordance with the chronology given by the state.

The amended indictment mostly dismissed a variety of charges against defendant; the substantive amendment changed one count of malfeasance in office to a charge of public contract fraud. Both the previous malfeasance and the public contract fraud charges were based upon the same operative facts: the Mayor's alleged order to Town employees to buy fuel from the store in which the Mayor allegedly had an ownership interest.

Because the record does not support defendant's contention that the amendment was initially done on March 30, 2010, after the jurors had been sworn, there was no reason for the trial court to grant a mistrial. La. C. Cr. P. arts. 487, 761.

Jury Instruction

According to defendant, the trial court erred in refusing to give a requested jury instruction regarding circumstantial evidence. During discussion of the charge to the jury, the district court chose to exclude the proposed instruction, which read:

You cannot find defendant guilty solely on circumstantial evidence unless the facts proven by the evidence exclude every reasonable hypothesis of innocence.
The court explained that the charge was being removed because “this is not, in my view, a circumstantial evidence only case.” Defendant objected to the exclusion of that charge.

The jury charge actually given stated:

Evidence is either direct or circumstantial. Direct evidence is evidence which, if believed, proves a fact. Circumstantial evidence or indirect evidence is evidence which, if believed, proves a fact and from that fact you may logically and reasonably conclude that another fact exists.

Failure to give a requested jury instruction constitutes reversible error only when there is a miscarriage of justice, prejudice to the substantial rights of the accused, or a substantial violation of a constitutional or statutory right. State v. Tate, 01–1658 (La.05/20/03), 851 So.2d 921,cert. denied,541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); see alsoLa. C. Cr. P. art. 802.

In this case, as the trial court recognized, the evidence against defendant consisted of both direct and circumstantial evidence. The state proved by direct evidence and beyond a reasonable doubt that the Mayor's salary was never legally raised to the level of the salary he paid himself and that the Mayor took in excess of $500 of Town funds for personal purposes. Accordingly, the requested charge—while an accurate statement of the law-had essentially no application to the facts as presented through the evidence adduced because this was not a “solely” circumstantial evidence case. The trial court did not err in refusing the requested charge, so this assignment of error is without merit.

Jury Polling Slips

This assignment of error concerns the presentation to the jury of polling slips. Defendant argues that the wording and design of the slips were a clear signal to the jurors as to what the court believed the correct and inevitable verdict to be.

As this Court recently explained in State v. Jones, 46,758 (La.App.2d Cir.12/14/11), 81 So.3d 236, 248:

Any private communication, direct or indirect, with a juror after the beginning of trial is deemed presumptively prejudicial, if not made with full knowledge of all parties and pursuant to court order or rule. State v. Bates, 508 So.2d 1346 (La.1987); State v. Sanders, 33,778 (La.App.2d Cir.10/04/00), 769 So.2d 183. The presumption is not conclusive, but a heavy burden rests upon the state to establish, after notice to and hearing of defendant, that such contact with the juror was harmless to defendant. State v. Sinegal, 393 So.2d 684 (La.1981); State v. Sanders, supra. Prejudice may be shown by evidence that an extrinsic factual matter tainted the jury's deliberations. State v. Day, 414 So.2d 349 (La.1982); State v. Sanders, supra.
See alsoLa. C. Cr. P. arts. 770 and 771.

Because this alleged error formed a significant part of defendant's motion for new trial and because the trial judge responsible for the polling slips, as well as the other parties involved, including a juror, testified at the hearing on that motion, the record on this assignment is unusually complete. Given the testimony of the witnesses at the motion for new trial, it is clear that the polling slips-regardless of their flaws-had no effect whatsoever upon the jury's verdict. The jury had already reached their verdict and had documented them on the verdict form prior to the delivery of the polling slips. Indeed, the unfortunate early delivery of the slips was prompted by notice from the jury, in the form of a knock on the door, that they had reached a verdict. The trial judge who decided defendant's motion for new trial correctly found that defendant suffered no prejudice from the presentation of the polling slips to the jurors before they announced their verdict in open court. Accordingly, this assignment of error is without merit.

Exculpatory Evidence

Defendant asserts that the prosecutor withheld exculpatory evidence from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, defendant's argument in brief concerns the alleged failure of the Board of Aldermen to approve, by ordinance, their own salary increase from $250 to $500, and his allegation that these board members were thus guilty of felony theft. Defendant alleges that the state had in its possession, but refused to provide to him, a recording of a June 2007 board meeting containing “the proof of all salary increases.”

As the state noted in its May 14, 2010, response to defendant's several belated discovery motions:

Upon information and belief, the State shows that there is no exculpatory information in this case. However, the State has provided copies of the cassette tapes which were seized from the Town of Waterproof to defendant. The micro-cassette tapes were copied to CD–Roms with all information provided on the micro-cassette tapes copied to the CD–Roms. The data is all there and it is certainly not useless.
The state goes on to inform the court that it is recopying the microcassette tapes to other microcassette tapes, and recopying the identifying markings on the tapes and boxes, to provide to defendant.

The record does not reflect proof that the state withheld any information from defendant, and certainly there is nothing to indicate that the state withheld exculpatory information. This assignment of error is without merit.

Juror Challenge for Cause

Defendant complains that the trial court erred when it denied his challenge to venireman Harry Goldman, III, an attorney. Defendant first stated that he wanted to challenge the juror peremptorily, but later changed his challenge to one for cause, which the court denied on the grounds that the juror's occupation as an attorney was not a basis for a cause challenge.

Jury selection was not overly long in this case. Defendant's peremptory challenges were as follows: Gracie Jesseph, David Lutken, and Barclay Tullos. At that point the judge said that they had six jurors. Defendant was told that he still had three peremptory challenges.

After this exchange, despite the fact that the jury had been completed with six jurors, selection continued without discussion of an alternate. The next juror defendant challenged was Audrey Hemphill. To that challenge, the court responded, “Defense peremptory number 5.” Thereafter, the parties did not agree on any of the remaining jurors in the first panel of 12.

However, when the court informed the excused jurors from that first panel that they could leave the courtroom, the court excused venireperson Melinda Fuller. The record shows that the state originally accepted Ms. Fuller and that defendant said, “Okay, that's fine.” No explanation appears in the transcript for excusing this juror.

In the next panel, defendant peremptorily challenged juror Linda Outlaw. After a state challenge for cause, the next juror called was Harry Goldman, III. The record reflects:

Prosecutor: We would accept.

Defendant: I don't have any more challenges. Can I challenge for cause? That's the lawyer. He's a lawyer. And the law says that attorneys....
After the trial court denied defendant's challenge for cause, Mr. Goldman was made a member of the jury.

Thus, the record suggests, but does not conclusively show, that defendant was allowed only five peremptory challenges rather than six.

However, the record strongly suggests that defendant exercised a peremptory challenge to excuse venireperson Melinda Fuller. There is no explanation in the transcript for the removal of Ms. Fuller, but the record shows that the parties had selected six jurors just prior to defendant's apparent request to use a peremptory challenge to strike one of the previously accepted jurors, i.e., Melinda Fuller. From that point, the parties continued selecting jurors because they had selected only five jurors; thus, it seems reasonable to assume that the transcript simply does not reflect that defendant excused Ms. Fuller at the point where he apparently asked to strike one of the previously accepted jurors.

If defendant was actually denied one of his peremptory challenges, that is potentially a reversible error. However, it appears that the record is simply incomplete or inaccurate, perhaps because of something inaudible-asit is in many other places in the transcript—and does not show that the trial court's count of peremptory challenges is incorrect.

Recusal of District Attorney

Defendant complains that the trial court erred when it denied his motion to recuse the district attorney. Defendant filed two such motions, one on March 23, 2010, and one on March 29, 2010. He argues that the district attorney had a conflict of interest in that he represented the Town of Waterproof as the Town attorney at the beginning of defendant's tenure as Mayor and that he also represented a client (another gas station owner in Waterproof) with a financial interest adverse to defendant. After a very extensive hearing, the trial court denied the motion. On the merits, the trial court found that the district attorney had not represented Higginbotham in this criminal case, so there was no valid reason to recuse him.

La. C. Cr. P. art. 681 provides:

A district attorney may recuse himself, whether a motion for his recusation has been filed or not, in any case in which a ground for recusation exists. A motion to recuse the district attorney shall be in writing and shall set forth the grounds therefor. The motion shall be filed in accordance with Article 521, and shall be tried in a contradictory hearing. If a ground for recusation is established the judge shall recuse the district attorney.

La. C. Cr. P. art. 680 provides:

A district attorney shall be recused when he:

(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;

(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to a party who is a focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or

(3) Has been employed or consulted in the case as attorney for defendant before his election or appointment as district attorney.

At the hearing, the district attorney said that he had been the Town attorney at the beginning of 2007 when defendant was elected Mayor, but he said, “I never had any communications with Mr. Higginbotham short of me getting a letter that I was fired. So that being done, what we're talking about are things he did after that period of time, by taking salary in excess of what had been approved by the Board and authorized by the Lawrason Act, which started in July of 07, long after I had, wasn't affiliated with the Town of Waterproof.” The trial court's examination of the facts in its ruling was quite thorough and its ruling finds strong support in the record.

Conclusion

This court's original opinion is vacated and set aside. We reinstate defendant's convictions and sentences and as reinstated, the convictions and sentences are affirmed.

WILLIAMS, J., dissents.

I am writing these additional comments in dissent because of my disagreement with the panel's decision to proceed with the rehearing and to render an affirmance after becoming aware that the state had failed to provide notice of its application for rehearing to the defendant's counsel of record as required by the Uniform Rules of the Courts of Appeal.

All motions not made in open court and other pleadings filed in a court of appeal shall be in writing. Unless the motion or pleading bears a certificate showing that a legible copy thereof has been delivered or mailed to opposing counsel of record and to each opposing party not represented by counsel, and showing the date of service thereof, it shall not be filed or docketed. URCA Rule 2–7.2. Legible copies of all papers filed in a court of appeal by any party shall, at or before the time of filing, be mailed to all other parties or counsel of record. URCA Rule 2–14.1. The fact of such service shall be evidenced by a certificate listing all parties and all counsel, indicating the parties each represents and showing how and when such service was accomplished. URCA Rule 2–14.2.

In the present case, the state filed an application for rehearing on May 8, 2012, with a certificate of service, signed by District Attorney James Paxton, stating that a copy of the application had been mailed to the defendant, with no mention of defendant's counsel of record. The motion of attorneys Rachel Conner and Harry Daniels, III, to enroll as counsel for defendant was granted on June 14, 2010. Attorneys Conner and Daniels filed the motion for appeal and on September 21, 2011, this court mailed the Notice of Lodging and Briefing Order to attorneys Conner and Daniels, noting that they were listed as counsel of record for defendant. This court's notice of judgment was also mailed to attorneys Conner and Daniels. Significantly, the state filed an appellate brief on November 4, 2011, with a certificate of service stating that a copy of the brief had been mailed to “counsel of record, Rachel Conner ... and H[arry] Daniels, III[.]”

Contrary to the district attorney's assertion in his letter to this court, the defendant's pro se filings do not excuse the state's failure to mail a copy of its rehearing application to the defendant's counsel of record, who as a consequence were not made aware of the state's application until they received this court's notice that rehearing had been granted. The state did not comply with URCA Rules 2–14.1 and 2–14.2. Consequently, the clerk of this court should not have accepted the state's rehearing application for filing without the certificate of service required by URCA Rule 2–7.2. Once the pleading was filed, this court was confronted with the issue of the state's failure to provide notice.

Under the constitutions of the United States and Louisiana, notice and the opportunity to be heard are fundamental to due process of law. To serve the interest of fairness, the state was required to mail a copy of its rehearing application to this criminal defendant's attorneys of record. Absent certification by the state that such notice was provided, this court should reverse the decision to grant the state's application for rehearing and deny rehearing for failure to comply with the URCA requirements. In the alternative, because our clerk's office accepted the state's inadequate pleading contrary to URCA, this court should convene en banc to determine 3the appropriate response to address the state's serious omission, which is detrimental to the defendant's right to fair notice. CARAWAY, J., dissents for the reasons assigned in the initial opinion rendered on April 25, 2012. WILLIAMS, J., dissents for the reasons assigned in the initial opinion rendered on April 25, 2012 and assigns additional reasons.

State v. Higginbotham

Summary

Opinion

Facts and Procedural History

Discussion

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Conclusion

APPLICATION FOR REHEARING

ON REHEARING

Discussion

Partial Mistrial

Jury Selection

Motion to Quash

Disqualification of Counsel

Right to Counsel

Standby Counsel

Witness Sequestration

Amended Indictment

Jury Instruction

Jury Polling Slips

Exculpatory Evidence

Juror Challenge for Cause

Recusal of District Attorney

Conclusion

State v. Higginbotham

State v. Higginbotham

Case Details

Citations

Citing Cases

State v. Higginbotham

Summary

Opinion

Facts and Procedural History

Discussion

* * * * * *

* * * * * *

Conclusion

APPLICATION FOR REHEARING

ON REHEARING

Discussion

Partial Mistrial

Jury Selection

Motion to Quash

Disqualification of Counsel

Right to Counsel

Standby Counsel

Witness Sequestration

Amended Indictment

Jury Instruction

Jury Polling Slips

Exculpatory Evidence

Juror Challenge for Cause

Recusal of District Attorney

Conclusion

State v. Higginbotham

State v. Higginbotham

Case Details

CitationsCopy Citation

Citing Cases

Citations