State v. Perez

The district judge denied a motion to quash a bill of information, which had been substituted for an indictment against the defendants, the district attorney and a district judge of the 24th Judicial District, charging both with malfeasance and conspiracy to commit malfeasance. On the application of the defendants, the 4th Circuit Court of Appeal granted writs and reversed the trial court, finding that neither defendant violated any statutory duty required of him by law. 450 So.2d 1324. With respect to the district attorney, the court found that no affirmative duty was violated by him in charging James Elliott and Joseph Defley with conspiracy to eom-mit extortion. The court of appeal’s decision was based on the finding that there was “legal cause” to discharge the grand jury because the Defley’s letter had “tainted” the grand jury. The letter charged the family of the district attorney with illegally obtaining oil properties of the Parish. It observed that civil litigation would be lengthy and suggested that if the grand jury were to bring indictments against the Perezs, the family might be persuaded to return some of the oil properties.

The court of appeal essentially held on the basis of the evidence produced on the motion to quash that the defendants were not guilty of malfeasance in discharging the grand jury because the evidence showed that the defendants did not misrepresent the facts and that due to outside influences upon the grand jury, there was legal cause for its discharge. While there may be merit to these holdings if the matter were before the court on a motion for a directed verdict or acquittal, the foregoing factual conclusions afford no legal basis to quash a bill of information.

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La.C.Cr.P. art. 531-534. It is treated much like an exception of no cause of action in a civil suit. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971).

In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. While evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720 (1971); State v. Ponthieux, 254 La. 482, 224 So.2d 462 (1969). The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974); State v. Snyder, 277 So.2d 660 (La.1973).

The only issue before the court of appeal was whether the trial court ruled correctly on the motion to quash. The court of appeal erred as it did not, in considering the motion to quash, construe the facts as set out in the bill of information and the bill of particulars to be true and then determine whether or not, if proved, they constituted the crime charged. Further, the question of whether there was a justification for discharging the jury is a defense on the merits, and the court of appeal should not have considered the issue on the motion to quash.

Proper Scope of Review

The bill of information charged the defendants with malfeasance and the conspiracy to commit malfeasance. In Count One, Perez and Leon are charged with conspiring with Assistant District Attorney Gilbert Andry, to commit malfeasance through one or more of the following:

(1) Conspiring to cause the discharge of the additional grand jury of the Parish of Plaquemines aforesaid by willfully and unlawfully preparing, presenting, filing and signing a legal pleading containing false representations and recitals.

(2) Conspiring to willfully and unlawfully deny the aforesaid additional grand jury the opportunity to exercise its statutory right to report on all offenses and matters presented and pending before it.

(3) Conspiring to willfully and unlawfully refrain from advising the aforesaid additional grand jury that it or any of its members had a statutory right to make applications for direct review of its discharge by the Louisiana Supreme Court.

In Count Two, defendants Perez and Leon are charged with malfeasance through any one or more of the following acts or omissions:

(1) Causing the discharge of the additional grand jury of the Parish of Plaque-mines aforesaid by willfully and unlawfully preparing, presenting, filing and signing of legal pleadings containing false representations and recitals.

(2) Willfully and unlawfully denying the aforesaid additional grand jury the opportunity to exercise its statutory right to report on all offenses and matters presented and pending before it.

(3) Willfully and unlawfully refraining from advising the aforesaid additional grand jury that it or any of its members had a statutory right to make applications for direct review of its discharge by the Louisiana Supreme Court.

In Count Three, Leander Perez is charged with committing malfeasance in connection with the criminal prosecutions of Jury Foreman Elliott and Joseph Defley. Here, the state alleged that the bill against Elliott was filed “in bad faith, without probable cause and with the felonious intention of punishing the said James Elliott for performing his duty as grand jury foreman.”

La.R.S. 14:134 provides that malfeasance in office is committed when any public officer or public employee shall:

(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or

(2) Intentionally perform any such duty in an unlawful manner; or

(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him or to perform any such duty in an unlawful manner.

The phrase in the statute upon which this opinion hinges is “any duty lawfully required of him”. Before a public official can be charged with malfeasance in office, there must be a statute or provision of the law which delineates an affirmative duty upon the official. State v. Passman, 391 So.2d 1140 (La.1980). The duty must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.

The state alleges in the bill of particulars that Leander Perez violated the affirmative duties outlined in (1) La. Const. art. 10, § 30 which contains his oath of office; (2) La. Const. art. 5, § 26, La.R.S. 16:1 and La.C.Cr.P. art. 64 which state that the district attorney is the legal advisor to the grand jury; (3) La.R.S. 15:117 which states that the discharged grand jury has the right to have its dismissal reviewed; (4) La.C.Cr.P. art. 680(1) which states that the district attorney shall be recused if he has a personal interest in the proceeding; and (5) La.Code of Professional Responsibility, DR 7-103 and (6) La.C.Cr.P. art. 415.2, which provides for the duration of additional grand juries.

The state alleges that Judge Leon violated the following affirmative duties: (1) signing the order accompanying the motion to discharge knowing that the representations were false with respect to the grand jury having completed its report; (2) La. R.S. 15:117 which states that the grand jury has a right of review of its discharge; (3) La.C.Cr.P. art. 415.2 which states that the grand jury has a right to report if discharged prior to the end of its term.

No explanation is given in the bill of particulars of how these provisions of law impose the duties upon the defendants which they are accused of violating in the bill of information. In their brief, the state contends that La.C.Cr.P. art. 680(1) imposed a mandatory duty upon the district attorney to recuse himself in this case as he had a personal interest in the indictments pending before the grand jury at the time of its discharge. The state argues that La.C.Cr.P. art. 415.2 imposed a duty on both the district attorney and the trial judge not to effect the discharge of the grand jury without giving the panel an opportunity to report on matters pending before it at the time of its discharge. As legal advisor to the grand jury, the state contends that the district attorney had a duty to inform the grand jury of its right to report upon discharge and its right of review of that discharge under La.R.S. 15:117. The state argues that this was particularly true in this case as the district attorney and his family were the parties about to be indicted by that panel. La.C. Cr.P. art. 432 is said to impose a duty on Judge Leon to charge the grand jury with all its rights, powers and duties. The state argues that he violated that duty when he did not charge the grand jury of its right to report under La.C.Cr.P. art. 415.2 and of its right of review of the discharge under La.R.S. 15:117. The state also contends that the La.Code of Professional Responsibility DR 7-103 imposed an affirmative duty on the district attorney not to institute the extortion charges against Defley and Elliott in bad faith and without probable cause.

The defendants contend that no provision of Louisiana law delineates an express affirmative duty on the defendants not to act in the manner outlined in the specifications of the bill of information. They argue that without such duties expressly set forth in some legislative provision, the bill of information fails to charge the defendants with crimes that are punishable under a valid statute. While there is merit to some of the defendants’ arguments, we find that the bill of information does charge offenses punishable under a valid statute and should not have been quashed.

The Discharge, of the Grand Jury

The bill of information read together with the bill of particulars alleges that the defendants conspired and prevented the grand jury from reporting on indictments which were pending before the panel. The bill of particulars states that the district attorney filed a motion containing false representations so as to discharge the grand jury, and the judge, knowing that the allegations in the motion were false, granted the motion.

The district attorney and the trial judge swore in their oath of office to “support the constitution and laws of this state” and to “faithfully and impartially discharge and perform all the duties incumbent [upon them as public officials]”. La. Const. art. 10, § 30. Both public officials have a mandatory duty to conform to the standard of conduct required by that oath. State v. Melerine, 236 La. 881, 109 So.2d 454 (1954). When the defendants swore to uphold the laws of Louisiana, this oath imposed a specific duty upon them not to obstruct or interfere with the execution of those laws. To intentionally interfere with the execution of any law would be a failure to perform a duty lawfully required of them under their oath and would constitute malfeasance.

In the case before us, the grand jury was under a specific statutory duty to “return its report on all offenses and matters presented or pending before it.” La.C. Cr.P. art. 415.2 The district attorney and the trial judge had an express affirmative duty under their oath of office not to interfere or obstruct the grand jury from performing the positive duties imposed upon it by law. Allegations (1) and (2) of count 1 and count 2 of the bill of information charge the defendants with preparing, presenting, filing and signing a motion which contained false representations so that the grand jury would be dismissed before the panel could report on indictments which were still pending before it. These actions prevented the grand jury from performing a positive duty required of it by law. As the defendants had a duty not to interfere with or obstruct the grand jury in performing its duties and the bill of information charges them with a violation of that duty, the bill of information charges the defendants with an offense punishable under a valid statute.

Right of Review of the Discharge

Louisiana Code of Criminal Procedure article 432 states:

After the oath is administered to the members of the grand jury, the judge shall charge them orally in open court upon their duties, rights and powers. Upon completion of the charge the judge shall give the grand jury a written copy of the charge.

At any time thereafter, the judge, on his own initiative or on request of the grand jury, may give the grand jury additional charges concerning their duties, rights and powers. Such additional charges shall be given in open court, and a written copy thereof shall thereafter be given to the grand jury.

This statute imposes an express duty on the judge to charge the grand jury immediately after it is impanelled with its rights, powers and duties. The bill of information charges Judge Leon with a violation of this duty because he intentionally did not inform the grand jury of its right to seek writs to the Louisiana Supreme Court under the provisions of La.R.S. 15:117. As the judge has a duty to inform the jury of its rights and the bill of information charges the intentional failure to inform the jury of one of those rights, the bill of information charges Judge Leon with the violation of a duty imposed upon him by law which can serve as a basis for the malfeasance charges.

Judge Leon may have a defense that his failure to charge the grand jury with this obscure right was justified. When the initial charge was given to the grand jury almost 1½ years before the jury discharged, there was no reason to contemplate that there would be a need for this particular instruction. However, as this is a defense, it should be considered at the trial on the merits and is not to be considered in determining if the bill of information charges the defendant with an offense punishable by law.

Three provisions of Louisiana law provide that the district attorney is the legal advisor to the grand jury. La. Const. art. 5, § 26; La.R.S. 16:1 and La.C.Cr.P. art. 64. The state argues that as the legal advisor to the grand jury, the district attorney had a duty to inform the grand jury of its right to review of its discharge. The state contends that the oath of office requires that the district attorney perform his duties as legal advisor in an impartial manner and if Perez had been acting impartially, he would have informed the grand jury of its right to review.

None of the provisions which provide that the district attorney is the legal advis- or to the grand jury elaborate on what duties are imposed on him in that capacity. No provision of law requires that the district attorney inform the grand jury of its right of review by this court when prematurely discharged. For that matter, no positive provision of law requires the district attorney to inform the grand jury of any of its rights.

In the instant case, the bill of information charges Perez with the failure to inform the grand jury of a specific right. Without some provision of law which sets forth what duties the district attorney has in his capacity as legal advisor to the grand jury, we cannot simply conclude after-the-fact what specific things the defendant should have done in that capacity with respect to this additional grand jury.

The provisions of the law which state that the district attorney is the legal advis- or to the grand jury cannot be used as the basis for charges of malfeasance because it cannot be said that they impose a duty lawfully required of the district attorney to inform the panel of its right of review when discharged prior to the expiration of its term. Therefore, the portion of the bill of information charging Leander Perez with malfeasance and conspiracy to commit malfeasance on this ground does not charge the defendant with an offense punishable under a valid statute.

Bad Faith Prosecution

The third count of the bill of information concerns the extortion charges filed by Perez against Elliott, the grand jury foreman, and Joseph Defley. The state charged that Perez brought the extortion charges “in bad faith without probable cause and with felonious intent of punishing Elliott for performing his duty as grand jury foreman.”

The district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom, when and how he shall prosecute. La.C.Cr.P. art. 61; State v. Collins, 242 La. 704, 138 So.2d 546 (1962); State v. Jourdain, 225 La. 1030, 74 So.2d 203 (1954). The district attorney is given absolute discretion in the institution of criminal charges. As there is no provision of law that defines or limits the type of cases a district attorney may prosecute, the portion of the bill of information which charges Perez with instituting charges against Elliott and Defley in bad faith and without probable cause does not charge a crime under a valid statute.

Other Issues

Although it was not one of the charges in the bill of information, the state argues that the district attorney violated a mandatory duty to recuse himself under La.C.Cr.P. art. 680(1) as he had a personal interest in the grand jury proceedings. La. C.Cr.P. art. 680(1) states:

Art. 680. Grounds for recusation of district attorney.

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 the defendant before his election or appointment as district attorney.

This statute does not impose an express duty on the district attorney to recuse himself; rather, it merely sets forth the circumstances in which the district attorney may be recused. La.C.Cr.P. art. 681 states that “A district attorney may recuse himself, whether a motion for his recusation has been filed or not, in any case in which the grounds for recusation exist.” This article indicates that the district attorney has the option — not the duty — to recuse himself when he has a personal interest in a ease.

Conclusion

We find that Count 3 and allegation (3) of count 1 and count 2 of the bill of information do not charge the defendant Perez with offenses punishable under a valid statute. These portions of the bill of information are regarded as unnecessary and are rejected as surplusage. La.C.Cr.P. art. 486; State v. Scheuering, supra. The remaining allegations in count 1 and count 2 charge defendants Perez and Leon with offenses punishable under a valid statute and the motions to quash the bill of information are overruled.

DECREE

For the foregoing reasons, the decision of the court of appeal is reversed in part, affirmed in part and the case is remanded to the trial court for further proceedings not inconsistent with this decision.

REVERSED IN PART, AFFIRMED IN PART, REMANDED FOR FURTHER PROCEEDINGS.

DENNIS, J., concurs with reasons.

LEMMON and MARCUS, JJ., dissent and assign reasons.

Judge William Norris, III, sitting ad hoc for Justice Watson, recused.

. James Elliott was the foreman of an additional grand jury which was investigating corruption in Plaquemines Parish. Joseph Delfey had been a witness before the grand jury and had a letter, which was to be a "continuation of his testimony", delivered to Elliott's home on Sunday, February 15, 1981. On the next Tuesday, Elliott asked the court reporter to attach a copy of Defley’s letter to the daily transcripts of the grand jury proceedings. The charge of extortion was based on the theory that this letter was an attempt to solicit indictments of Leander Perez in order to gain concessions with Delta Development.

. The court of appeal justified their deviation from the proper scope of review because the state did not object to the admission of evidence concerning the defenses at the hearing on the motion to quash. The State argues that it did object to the admission of the evidence. In any event, this matter need not be resolved by us as the Court of Appeal should not have deviated from the proper scope on review.

. La.C.Cr.P. art. 415.2 states:

Grand juries impaneled in accordance with Article 415.1 shall remain impaneled for a period not to exceed one year unless discharged sooner by the court upon motion by the district attorney. Provided, however that prior to discharge of a grand jury by the court, a grand jury shall return its report on all offenses and matters presented or pending before it as authorized by the provisions of Article 444. Upon the request of the district attorney, the court may extend this time limit for an extra six months, (emphasis added)

. La.R.S. 15:117 states:

§ 117. Discharge of grand jury; review of discharge by supreme court.

Upon being discharged for legal cause, the discharged grand jury or any of the discharged members may make applications for review directly to the supreme court. Such application must be made within two days from the date that the district judge ordered a discharge for legal cause, and shall be taken up by the supreme court, by preference, immediately over all other matters.

If, after the discharge by the district judge is ordered, application is made by the discharged grand jury or any of the discharged members as prescribed by law said grand jury or the members making application shall serve as before; and should the supreme court affirm the order of discharge or deny the application of the grand jury or any of its members, the validity of indictments shall be in no wise be affected because they were brought in by the grand jury between the time that the district judge ordered a discharge for legal case of the grand jury or any of its members and the time that the supreme court affirmed the order or denied the application.

Within two days after the order of the district judge discharging for legal cause, the grand jury or any of its members, is affirmed by the supreme court, or becomes final, the district judge shall make the necessary appointments to fill vacancies caused thereby as prescribed by law.

. Allegations in a bill of information which do not charge an offense under a valid statute may be regarded as unnecessary and rejected as sur-plusage. La.C.Cr.P. art. 486; State v. Scheuering, 226 La. 660, 76 So.2d 921 (1954). The validity of this bill of information is not affected if this portion of the bill of information is excised because without the unnecessary allegations the bill still charges an offense. State v. Scheuering, supra.