State of Louisiana Versus Charles McQuarter, III

STATE OF LOUISIANA NO. 24-K-383

VERSUS FIFTH CIRCUIT

CHARLES MCQUARTER, III COURT OF APPEAL

STATE OF LOUISIANA

September 03, 2024

Linda Wiseman
First Deputy Clerk

IN RE CHARLES MCQUARTER, III

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH
OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE J. STERLING
SNOWDY, DIVISION "C", NUMBER 14,169

Panel composed of Judges Susan M. Chehardy,
Stephen J. Windhorst, and Scott U. Schlegel

WRIT GRANTED, JUDGMENT REVERSED

Defendant-relator, Charles McQuarter, III, seeks review of the trial court’s

judgment denying his Motion to Prohibit State from Staging Reenactment of

Former Trial. The trial court’s judgment permits the State to present a now-

deceased witness’s testimony from a previous trial by having the deceased

witness’s daughter, who is also listed as a witness in her own right, read her

mother’s testimony in the current trial. For the following reasons, we grant the writ

and reverse the trial court’s ruling.

On May 5, 2014, a St. John the Baptist Parish Grand Jury returned an

indictment charging defendant, Charles McQuarter, III, with the first degree

murder of Steven Finckbeiner, a violation of La. R.S. 14:30. Defendant allegedly

robbed the LaPlace Feed Store owned by Mr. Finckbeiner and his wife, Constance

Finckbeiner. Mr. Finckbeiner died of a gunshot wound; Mrs. Finckbeiner, who was

shot in the temple, survived the shooting but passed away due to cancer in 2022.

24-K-383

Defendant pled not guilty at his arraignment. However, the trial court

determined that defendant suffers from mental retardation within the meaning of

La. C.Cr.P. art. 905.5.1, and therefore is exempt from capital punishment. The

State thereafter amended the indictment, charging defendant with second degree

murder in violation of La. R.S. 14:30.1(A)(1) (count one), and armed robbery with

a firearm in violation of La. R.S. 14:64(A) and La. R.S. 14:64.3(A) (count two).

State v. McQuarter, 19-594 (La. App. 5 Cir. 11/25/20), 305 So.3d 1055, 1061, writ

not considered, 21-295 (La. 8/6/21), 322 So.3d 247.

On March 28, 2019, a jury found defendant guilty of second degree murder

by a vote of eleven to one, and guilty of armed robbery with a firearm by a

unanimous verdict. Id. Defendant appealed his convictions and sentences. Pursuant

to Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), this

Court found defendant was entitled to a new trial on the non-unanimous second

degree murder conviction. The Court vacated that conviction and sentence and

remanded to the trial court for further proceedings. McQuarter, 305 So.3d at 1068.

The conviction and sentence for armed robbery with a firearm were affirmed. Id.

at 1078.

On April 22, 2021, the State filed an amended indictment charging

defendant with second degree murder while engaged in a robbery in violation of

La. R.S. 14:30.1(A)(2). On April 9, 2024, before voir dire began, defendant filed a

Motion to Prohibit State from Staging Reenactment of Former Trial, essentially

arguing that the previous trial testimony of Mrs. Finckbeiner, now deceased,

should be read into the record by an assistant district attorney and a record

custodian, not by Mrs. Finckbeiner’s daughter, Kristin Fontenot.1 Counsel for

1
On April 10, 2024, defense counsel filed a Motion for Mistrial, because it was unclear whether
the State was pursuing a charge of second degree murder while engaged in an armed robbery or a
simple robbery, and due to the confusion with regard to the corresponding amendments to the
indictment after trial had begun. On April 12, 2024, the trial court declared a mistrial and issued
written reasons. Trial is now set for September 9, 2024.
2

defendant argued that the State’s proposed method was an improper elicitation of

victim impact testimony; that it would signal to the jury a previous trial had

occurred; and that the prejudicial value of the proposed presentation will

substantially outweigh any potential probative value, given that Mrs. Fontenot has

never read the transcript of her mother’s testimony and is likely to display her full

emotional reaction in front of the jury, presenting a significant danger of mistrial.

The defense claimed that a family member does not have a right to act as a

deceased loved one to introduce prior testimony. Defense counsel further argued

that the State’s intended method of introducing this testimony is contrary to La.

C.Cr.P. art. 857,2 adverse to jurisprudence, and directly contravenes defendant’s

constitutionally protected rights.

At the July 19, 2024 hearing, defense counsel argued that permitting Mrs.

Fontenot to testify would appeal to emotion and unduly inflame the passions on the

jury, and that it would be more appropriate to have a clerk of court read Mrs.

Finckbeiner’s testimony to avoid an improper emotional taint that could result in

another trial. Counsel argued the State should not be allowed to unduly distract

from the main issues or unduly arouse sympathy from the jury. Defense counsel

explained that the State’s assertion that no one has authority to dictate how it

presents its case is incorrect because the trial court has reasonable control over the

mode of presenting evidence pursuant to La. C.E. art. 611. Moreover, the evidence

could be presented in such a way as to ensure defendant a fair trial. Defense

counsel further contended that the new trial should be conducted as if there were

no prior trial.

2
La. C.Cr.P. art. 857 states: “The effect of granting a new trial is to set aside the verdict or
judgment and to permit retrial of the case with as little prejudice to either party as if it had never
been tried.”

3

In response, the State argued at the hearing that it intended to call Mrs.

Fontenot as a witness in her own right to testify about her parents owning and

operating LaPlace Feed and Seed, the store in which the victims were shot, and as

a witness to her mother’s testimony at the previous trial. The State indicated that it

intended to display the transcript of the previous testimony on a television while

the prosecutor reads the questions and Mrs. Fontenot reads her mother’s responses.

The State argued that its method will not create any unfair prejudice and would be

less emotional and prejudicial than the original testimony. Citing State v. Ball, 99-

428 (La. 11/30/99), 756 So.2d 275, the State contended that it is entitled to prove

its case by evidence of its own choosing. The State argued that the trial court can

remedy any unforeseen, unfair prejudice resulting from a potential display of

emotions by instructing the jury that the verdict should not be based on sympathy,

passion, prejudice, bias, or public opinion, and that the jury is expected to reach a

just verdict.

The State further argued that it was not attempting to present victim impact

testimony and assured the trial court that it would not ask about how the incident

has affected Mrs. Fontenot or impacted her family. The prosecutor explained that

Mrs. Fontenot would describe who her parents were, how they operated their

business, where certain items were kept, and “forecast for the jurors what they’re

going to expect” as to who is situated in what room. The prosecutor claimed that if

an emotional outburst occurs, the trial court could take a short break and, outside

of the presence of the jury, ask Mrs. Fontenot to control herself. The prosecutor

further stated that an emotional outburst is not a reason to prohibit the State’s

intended method of introducing this evidence, and that the defense could make a

contemporaneous objection.

At the conclusion of the hearing, the trial court ruled that Mrs. Fontenot

could present her mother’s previous testimony with a pretrial or pretestimony

4

admonition. The court indicated that if Mrs. Fontenot breaks down, the court

would call a recess and reserve the option of having a different person continue

reading Mrs. Finckbeiner’s testimony. The trial court further announced its intent

to have the entire transcript read.

Defendant now seeks review of that ruling. Defendant concedes that the

State has a right to present Mrs. Finckbeiner’s prior testimony but reiterates his

objection to the State’s proposed method of presentation. He contends the

procedure is overly prejudicial and intended to trigger an emotional response from

the jury. Defendant urges that the instant method is more prejudicial than the

method employed in State v. Bell, 346 So.2d 1090 (La. 1977). Defendant reiterates

that an unbiased clerk of court should read the transcript, which would curtail

prejudice without altering the substance of the testimony. Defendant further avers

that the State is attempting to bolster Mrs. Finckbeiner’s credibility.

Defendant also argues that having Mrs. Fontenot both testify in her own

right and read her mother’s testimony will be confusing to the jury. He states that

Mrs. Fontenot should only testify in one form. Defendant explains that Mrs.

Finckbeiner testified as to the workings of the store, and that the State intends to

elicit such testimony from Mrs. Fontenot as well, which will be confusing and is

cumulative. Defendant further contends that Mrs. Fontenot is an unnecessary

witness who did not testify at the first trial, thus, the proposed method presents no

probative value while being prejudicial. He argues that Mrs. Fontenot’s dual-

purpose function will prevent the defense from fully cross-examining her. Finally,

there is a risk of mistrial if Mrs. Fontenot becomes overly emotional.

La. Const. art. I, § 16 grants the defendant a right to a fair trial. State v.

Nguyen, 11-229 (La. App. 5 Cir. 12/28/11), 88 So.3d 511, 522, writ denied, 12-287

(La. 5/18/12), 89 So.3d 1192. However, a defendant cannot control the State’s

5

method of proof, as the State is entitled to the moral force of its evidence. See State

v. Ramirez, 09-350 (La. App. 5 Cir. 12/29/09), 30 So.3d 833, 850-51.

La. C.E. art. 611 states in part:

A. Control by court. Except as provided by this Article and
Code of Criminal Procedure Article 773, the parties to a
proceeding have the primary responsibility of presenting the
evidence and examining the witnesses. The court, however,
shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to:

(1) Make the interrogation and presentation effective for the
ascertainment of the truth;

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

All relevant evidence is admissible, except where limited by law. La. C.E.

art. 402. Relevant evidence is evidence that has any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than without the evidence. La. C.E. art. 401. La. C.E. art. 403

states: “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or waste of time.” A

trial court is accorded great discretion in evidentiary rulings and, absent a clear

abuse of that discretion, rulings regarding the relevancy and admissibility of

evidence will not be disturbed on appeal. State v. Cox, 17-508 (La. App. 5 Cir.

2/21/18), 239 So.3d 465, 473, writ denied, 18-455 (La. 1/14/19), 261 So.3d 782.

Here, defendant agrees that Mrs. Finckbeiner’s prior testimony may be

introduced at the upcoming trial but objects to the State’s proposal on the basis that

it is potentially inflammatory, prejudicial, and could result in a mistrial.

In State v. Bell, 346 So.2d at 1093-94, prior trial testimony of two since-

deceased witnesses was introduced into evidence at a subsequent trial via the East

Baton Rouge Parish District Attorney reading the testimony. Questions that the

6

prosecutor asked in the first trial were read by an assistant district attorney, while

the former defense attorney’s questions on cross-examination were read by the

defendant’s present counsel. The defendant objected to the procedure on the basis

that the district attorney’s position of respect in the community as an elected

official might cause the jury to give greater weight to the testimony than it

otherwise would have given. On review, the Supreme Court explained that before

the testimony of each absent witness was read, the trial court cautioned the jury

that the district attorney was not testifying but was merely reading the testimony of

State witnesses who could not be called to testify in person. The Court concluded

that the “more desirable procedure would have been to have a neutral party read

the prior testimony of the deceased witnesses,” but the Court was not prepared to

say that the procedure utilized amounted to an abuse of discretion or a substantial

violation of the defendants’ constitutional rights. Id.

In Plaisance v. Collins, 365 So.2d 608 (La. App. 1 Cir. 1978), a first trial

adjudicating the possession of disputed land resulted in a mistrial. At the second

trial, the court permitted prior testimony of a deceased witness to be read by that

witness’s son. The appellate court explained that no objection to this method of

introducing evidence was raised below, but it nevertheless considered the issue.

The First Circuit noted that the trial court stated it would not permit the son to

exhibit any expressions of sympathy or exclamation; he was simply to read the

testimony. Additionally, the son read prior testimony of a second deceased witness.

Noting that the trial court explained to the jury what was happening, the First

Circuit found nothing objectionable with the procedure. Id.

In contrast to the outcome in Bell, we find the State’s proposal to introduce

the deceased victim’s testimony through the victims’ daughter, Mrs. Fontenot,

appears prejudicial to defendant and potentially confusing to the jury, given the

State’s desire to introduce Mrs. Fontenot as a witness in her own right as well. In

7

Bell, before the district attorney read the testimony of each absent witness, the jury

was cautioned that the reader was not testifying but was merely reading the

testimony of unavailable State witnesses. Here, a similar warning would be

insufficient where Mrs. Fontenot, a close family member of the victims, would be

reading her mother’s description of being shot in the temple, awaking to a feeling

that she had lost her hearing and sight on one side of her face and that she was

bleeding to death, and finding her husband shot. The potentially inflammatory

nature of permitting the victims’ daughter to introduce this testimony cannot be

disregarded. In addition, Ms. Fontenot is expected to testify as an independent

witness, which may confuse the jury.

Moreover, although the district attorney in Bell had a professional interest in

the outcome of the case, that interest pales in comparison to Mrs. Fontenot’s

interest here. Similarly, we find Plaisance inapplicable here. Plaisance was a civil

suit involving the possession of land, not the perpetration of a violent crime. More

importantly, the appellate court in Plaisance noted that no one objected to the

method in which the testimony from the first trial was presented.

At the hearing in the present case, the parties discussed with the trial court

the possibility of replacing Mrs. Fontenot with someone else if she were to become

emotional or overwhelmed while reading her mother’s testimony. In our view, that

course of action would not only highlight Mrs. Fontenot’s emotional reaction but

also play to the jury’s sympathy for the victims and unfairly prejudice defendant.

In light of the fact that barring the State’s proposed method of introducing the

evidence does not alter the introduction of the evidence itself, and considering that

other means of introducing Mrs. Finckbeiner’s testimony remain available, we find

in this instance that the trial court abused its discretion in denying defendant’s

motion.

8

Accordingly, we grant the writ and grant defendant’s motion requesting the

trial court to prohibit the State from introducing Mrs. Finckbeiner’s prior testimony

through Mrs. Fontenot. The State may present Mrs. Finckbeiner’s earlier testimony

at trial through a different method.

Gretna, Louisiana, this 3rd day of September, 2024.

SMC
SJW
SUS

9

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/03/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-K-383
E-NOTIFIED
40th District Court (Clerk)
Honorable J. Sterling Snowdy (DISTRICT JUDGE)
Frederick R. Sprinkle (Relator) Honorable Bridget A. Dinvaut (Respondent)
Sammons K. Corbett (Relator)

MAILED
Kathryn J. Burke (Relator) Charles H. Robinson (Respondent)
Jacob G. Longman (Relator) Jacob L. Johnson (Respondent)
Brady Skinner (Relator) Assistant District Attorney
Attorney at Law Fortieth Judicial District
830 Main Street Parish of St. John the Baptist
Baton Rouge, LA 70802 1342 LA Highway 44
Reserve, LA 70084