State of Louisiana v. James Daniel Johnson

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,028-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JAMES DANIEL JOHNSON Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 333,389

Honorable Charles G. Tutt, Judge

*****

STEPHEN A. GLASSELL Counsel for Appellant

JEFFREY M. LANDRY Counsel for Appellee
Attorney General

MADELEINE SLAUGHTER-YOUNG
CHRISTOPHER N. WALTERS
GRANT L. WILLIS
Assistant Attorneys General

*****

Before PITMAN, GARRETT, and THOMPSON, JJ.

THOMPSON, J., concurs with written reasons.

PITMAN, J.

A jury found Defendant James Daniel Johnson guilty as charged of

molestation of a juvenile, and the trial court sentenced him to five years at

hard labor. Defendant appeals his conviction and sentence. For the

following reasons, we affirm Defendant’s conviction and sentence.

FACTS

On September 14, 2015, the state filed a bill of information charging

Defendant with one count of molestation of a juvenile with control or

supervision, in violation of La. R.S. 14:81.2(A) and (C). It alleged that on or

about April 17, 2003, Defendant, whose date of birth is November 15, 1959,

committed lewd and lascivious acts upon or in the presence of S.M., whose

date of birth is March 19, 1990. Following the recusal of the Caddo Parish

District Attorney’s Office, the state, through the attorney general’s office,

filed an amended bill of information, alleging that the molestation occurred

on or about April 16, 2003.

On September 18, 2015, the state filed a motion to disqualify Paul

Carmouche as defense counsel. It argued that when the alleged molestation

occurred in April 2003, Carmouche was the Caddo Parish District Attorney;

and, at that time, the district attorney’s office rejected S.M.’s claims for

insufficient evidence. The state noted that in 2015, the district attorney’s

office charged Defendant with the same offense that, under Carmouche, it

rejected in 2003.

Defendant filed a response and requested that the trial court deny the

motion. He stated that there was no conflict because Carmouche never

represented S.M. or her family and because S.M. was never a client of the

district attorney’s office. He explained that the district attorney represents

the interests of the State of Louisiana, not the victim in the criminal action.

He argued that there was no evidence that Carmouche had contact with S.M.

or had access to any evidence brought forth in 2003.

A hearing was held on September 28, 2015, and the trial court

disqualified Carmouche from representing Defendant.

A jury trial began on December 3, 2019. Christine Philipbar, S.M.’s

mother, testified that she and Defendant married when S.M. was six years

old. In April 2003, she, S.M. and Defendant lived together; and, due to her

work schedule as a nurse, Defendant watched S.M. for a few hours during

the day. On April 16, 2003, Defendant picked up 13-year-old S.M. from

school while Philipbar was at work. When she returned home, S.M. was

outside waiting for her and was crying. S.M. told her that Defendant

inappropriately touched her “privates” while she was sitting on the couch.

S.M. told her that Defendant thought she was asleep and then lifted her shirt

and put his hands and mouth on her breasts and vagina. After taking S.M. to

a family member’s house, Philipbar confronted Defendant. She then

brought S.M. home, and they talked to Defendant. Philipbar testified that

Defendant did not “come right out and say” that he inappropriately touched

S.M., but he did say that S.M. “did the right thing by telling [her] because it

would have gotten worse.” Philipbar, who at the time was in training to

become a sexual assault nurse examiner, stated that she did not examine

S.M., take her to the emergency room or contact law enforcement. She

allowed S.M. to shower because she felt dirty. The next day she took S.M.

to see Shelly Booker, a counselor with whom S.M. had been meeting, and

Booker contacted Child Protective Services. A few weeks after the alleged

molestation, S.M. was interviewed at the Gingerbread House and was
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examined at the Cara Center. Philipbar subsequently divorced Defendant.

She stated that the district attorney’s office did not charge Defendant in 2003

and that this case was reopened in 2014 when he moved back to the area

from California. On cross-examination, Philipbar testified that S.M. began

attending counseling in June 2001 at the age of 11. On an intake form from

S.M.’s first appointment, Philipbar wrote that S.M. had a history of

“frequent lying, from constant white lies to big lies”; had “anger issues, total

loss of control in school”; and was “moody and dramatic, overreacts to

minor situations.”

Detective Dennis Pratt of the Shreveport Police Department testified

that in April 2003, he supervised this investigation. He stated that the

detective assigned to the case set up S.M.’s interview with the Gingerbread

House and physical examination with the Cara Center. The report from the

Cara Center stated that S.M.’s hymen was intact, there was no evidence of

physical abuse and S.M. did not spontaneously disclose abuse during the

examination. Det. Pratt later interviewed a second possible victim, Wendy

Hartley, who alleged that when she was a minor, Defendant gave her an

extra-long hug, tried to kiss her on the lips and rubbed her stomach just

below her breasts.

Wendy Westerman testified that in 2003 she was employed as a

forensic interviewer at the Gingerbread House and interviewed S.M. on

May 13, 2003. A video of the interview was played for the jury, in which

S.M. stated that on the afternoon of April 16, 2003, she was home with

Defendant while her mother was at work. She was asleep in the living room

and woke up to Defendant with his mouth on her vagina. She explained that

he pulled her shorts and underwear to the side. She stated that he also
3

sucked on her breasts and put her hand on his penis on the outside of his

clothing. During these actions, she kept her eyes closed to pretend she was

sleeping. He then left the room to wash his hands, and when he came back

in the room, he put his fingers in her vagina. When her mother got home, she

took her to her grandmother’s house. Her mother then brought her home

and they talked to Defendant about what happened, and Defendant said he

was sorry. She stated that this was not the first time Defendant touched her

and that in the past he kissed her on the mouth, rubbed her stomach and

touched her around her breasts and under her underwear.

Detective Mike Jones of the Shreveport Police Department testified

that in 2014, he was assigned to this investigation. He interviewed S.M.;

Defendant’s first wife, Candie Moore; and Wendy Hartley. He attempted to

interview Moore’s sister, Suzan Maxwell, but she was not willing to speak

to him. In his interview of S.M., she told him that Defendant went to her

bedroom and touched her breasts and her vagina and that she felt weird

when he hugged her. She also told him that on a trip to Colorado, she shared

a bed with Defendant and her mother, with her mother sleeping in the

middle, and Defendant licked her breasts during the night. In his interview

of Hartley, she told him that when she was 11 or 12 years old, she partnered

with Defendant at a ski club and later babysat his sons. She stated that

Defendant gave her two-armed hugs, tried kissing her on the cheek and then

the mouth, put his hand on her knee and then moved his hand up her leg

toward her inner thigh and put his hand on her vagina outside her clothing.

In his interview of Moore, she told him that she never saw any inappropriate

behavior between Defendant and Hartley or Defendant and Maxwell.

Det. Jones prepared an arrest warrant for molestation of a juvenile, and
4

Defendant was arrested in California. He noted that the arrest warrant was

not based on any behavior related to Hartley.

S.M. testified that in April 2003 she was 13 years old and lived with

her mother and Defendant. She noted incidents regarding Defendant that

progressed up to April 2003 when she told her mother. On a trip to

Colorado, she shared a hotel room and bed with her mother and Defendant.

Her mother slept between her and Defendant; but, during the night, she

woke up to Defendant sucking on her breast while her mother slept. She

also recalled the April 16, 2003 incident and noted that what she told the

Gingerbread House interviewer was accurate. She added that this was the

first time Defendant used his mouth on her vagina. She testified that her

mother’s testimony regarding the events of April 16, 2003, was accurate.

Regarding the physical examination at the Cara Center, S.M. stated that no

one asked her what happened with Defendant and that she did not offer any

information because she was scared. Regarding seeing a counselor, S.M.

stated that she did not recall telling lies, but that she was acting out due to

the abuse she was experiencing. She recalled being upset in 2003 when the

district attorney’s office did not charge Defendant. She testified that in

2014, she saw Defendant on Facebook in a picture with his granddaughter,

who appeared to be around the age of five. She contacted the child’s mother

out of concern for the child’s safety with Defendant. She testified that she

was unaware of Defendant’s actions with Hartley and Maxwell and that she

learned of their histories from the prosecutor.

Wendy Hartley testified that she first met Defendant at a water ski

club when she was around the age of ten, and they partnered to perform

acrobatic skills. She also babysat for Defendant’s two sons. She stated that
5

when Defendant drove her home from babysitting, he made her

uncomfortable when he hugged her and kissed her on the cheek or lips. She

stated that on occasion he put his hands on her breasts or between her legs

and that he also put his hands on her vagina on the outside of her clothing.

She estimated that she was 15 or 16 when these actions occurred. She noted

that she did not tell her parents about Defendant’s actions. She stated that

she was first contacted by an investigator regarding Defendant in 2003 or

2004 when she was 35, and she gave an interview. She was again contacted

in 2014 and gave an interview to Det. Jones in which she provided more

details about Defendant’s actions than she did in her first interview. She

stated that in her early 30s when she was going through a divorce, she stayed

with Defendant and Philipbar because she was afraid of her husband.

Suzan Maxwell testified she was 13 or 14 years old when her sister

married Defendant in 1974 or 1975. She stated that she was alone with

Defendant on occasion and that he did things that made her uncomfortable,

including wrestling with her on the floor, kissing her on the lips, pressing

himself against her and touching her breasts. She noted that this behavior

went on for several years, and she did not tell anyone about it. She testified

that when Det. Jones came to her business to speak to her, she did not speak

to him and that she did not want to testify at trial because of how it affected

her family.

Candie Moore testified that she began dating Defendant when she was

18, they married when she was 19, they had two sons and they divorced after

18 years of marriage. She stated that her sister never complained about

anything Defendant did to her or in her presence and that Hartley never told

her that she was uncomfortable with Defendant. She testified that she
6

thought Defendant’s relationship with Hartley was unusual as he was an

adult giving her, a 12- or 13-year-old, so much attention, but she never saw

any inappropriate behavior.

The state rested its case, and the defense called its witness. Defendant

testified that he has never had any sexual contact with S.M. or anyone

underage. He stated that he and Maxwell roughhoused when she was 12 or

13 and he was 16 or 17, but there was nothing sexual about it. He stated that

if he kissed her, it was a peck, not an open-mouthed kiss, and it would not

have been a regular occurrence. He testified that he met Hartley when she

was 10 years old and he was 22 and they were partnered in water skiing

doubles. He stated that he did not touch Hartley’s breasts or vagina when

she was a child, but stated he did hug her and gave her an occasional peck on

the cheek. Regarding the allegations made by S.M., he recalled being

confronted by Philipbar and denying the actions. He denied touching S.M.’s

breasts, touching her vagina, licking her vagina and placing her hand on his

penis. Regarding the trip to Colorado, he stated that he did sleep in a bed

with Philipbar and S.M., but he denied touching S.M.’s breasts while she

slept.

On December 4, 2019, the jury found Defendant guilty as charged of

molestation of a juvenile. On January 3, 2020, Defendant filed a motion for

new trial and a motion for post-verdict judgment of acquittal. The trial court

denied both motions.

A sentencing hearing was held on January 9, 2020. The trial court

sentenced Defendant to five years at hard labor. On February 6, 2020,

Defendant file a motion for reconsideration of sentence, which the trial court

denied.
7

Defendant appeals his conviction and sentence.

DISCUSSION

Disqualification of Defense Counsel

In his first assignment of error, Defendant argues that the trial court

erred in granting the state’s motion to disqualify Carmouche as defense

counsel. He contends that a defendant has the constitutional right to retain

the counsel of his choice and that the state did not present sufficient

evidence to support the disqualification of his choice of counsel. He

contends that even though Carmouche was the district attorney in 2003,

there was no evidence that he had personal or substantial involvement in this

case that would impute a conflict of interest and warrant his disqualification.

The state argues that the trial court correctly disqualified Carmouche

as defense counsel. It contends that Carmouche had complete authority,

control and supervision of the district attorney’s office in 2003 when it

decided not to prosecute Defendant. It states that Defendant would have had

an unfair advantage if, at trial, Carmouche stated that the district attorney’s

office under his leadership declined to prosecute due to insufficient

evidence.

The customary remedy for an alleged conflict of interest is

disqualification of the attorney with the conflict. Walker v. State, Dep’t of

Transp. & Dev., 01-2078 (La. 5/14/02), 817 So. 2d 57. In determining

whether a conflict exists, courts often look to the Louisiana Rules of

Professional Conduct. Id. The ethical rules that regulate attorneys’ law

practices have the force and effect of substantive law. Id. The burden of

proving disqualification of an attorney rests on the party making the

challenge. Id.
8

Rule 1.11(a)(2) of the Louisiana Rules of Professional Conduct states:

[A] lawyer who has formerly served as a public officer or
employee of the government . . . shall not otherwise represent a
client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or
employee, unless the appropriate government agency gives its
informed consent, confirmed in writing, to the representation.

Rule 1.11(e) explains that the term “matter” includes:

(1) any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular
matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of
the appropriate government agency.

La. C. Cr. P. art. 61 sets forth the powers and duties of the district

attorney and states:

Subject to the supervision of the attorney general, as provided
in Article 62, 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.

By operation of his powers and duties as district attorney, Carmouche

participated personally and substantially in every criminal prosecution in his

district, including the 2003 allegations against Defendant. Therefore, the

trial court did not err in disqualifying him as defense counsel.

We note that Defendant did not seek review of the trial court’s

disqualification of Carmouche at the time of the ruling in September 2015.

Further, after Carmouche’s disqualification, Defendant hired a number of

attorneys of his choice, including Peter Flowers, Marty Stroud, Katherine E.

Gilmer and Sarah R. Giglio during district court proceedings and Stephen A.

Glassell on appeal.

Accordingly, this assignment of error lacks merit.

9

Sufficiency of the Evidence

In his second assignment of error, Defendant argues that the state

presented insufficient evidence at trial to sustain a guilty verdict. He notes

that the district attorney’s office reviewed the evidence in 2003 and 2004

and determined there was insufficient evidence to charge Defendant. He

argues that Philipbar’s actions immediately after S.M. reported the alleged

molestation, i.e., allowing S.M. to shower, resulted in destruction of

evidence that may have been favorable to him. He contends that as a nurse

who was in training to be a sexual assault nurse examiner, she should have

followed her training to preserve DNA evidence. He argues that this is a

possible Brady violation.

The state argues that it presented sufficient evidence at trial to support

Defendant’s conviction for molestation of a juvenile. It states that the jury

found the state’s witnesses to be more credible than Defendant. It contends

that the testimony of the state’s witnesses shows Defendant’s disposition and

pattern of behavior toward juvenile females.

The standard of appellate review for a sufficiency of the evidence

claim is whether, after viewing the case in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Hearold,

603 So. 2d 731 (La. 1992). See also La. C. Cr. P. art. 821. This standard

does not provide an appellate court with a vehicle for substituting its

appreciation of the evidence for that of the fact finder. State v. Pigford,

05-0477 (La. 2/22/06), 922 So. 2d 517. The trier of fact makes credibility

determinations and may accept or reject the testimony of any witness. State
10

v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531 U.S.

840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000). The appellate court does not

assess credibility or reweigh the evidence. State v. Smith, 94-3116 (La.

10/16/95), 661 So. 2d 442. A reviewing court affords great deference to a

trial court’s decision to accept or reject the testimony of a witness in whole

or in part. State v. Gilliam, 36,118 (La. App. 2 Cir. 8/30/02), 827 So. 2d

508.

In the absence of internal contradiction or irreconcilable conflict with

the physical evidence, one witness’s testimony, if believed by the trier of

fact, is sufficient to support a factual conclusion. State v. Elkins, 48,972 (La.

App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 153

So. 3d 438. This is equally applicable to the testimony of victims of sexual

assault. Id. Such testimony alone is sufficient even when the state does not

introduce medical, scientific or physical evidence to prove the commission

of the offense. Id.

At the time of the commission of the alleged act of molestation, La.

R.S. 14:81.2(A) stated:

Molestation of a juvenile is the commission by anyone over the
age of seventeen of any lewd or lascivious act upon the person
or in the presence of any child under the age of seventeen,
where there is an age difference of greater than two years
between the two persons, with the intention of arousing or
gratifying the sexual desires of either person, by the use of
force, violence, duress, menace, psychological intimidation,
threat of great bodily harm, or by the use of influence by virtue
of a position of control or supervision over the juvenile. Lack of
knowledge of the juvenile’s age shall not be a defense.

Viewing the evidence in the light most favorable to the prosecution,

the state presented sufficient evidence at trial for a reasonable jury to convict

Defendant of molestation of a juvenile when Defendant had a position of

11

control or supervision over the juvenile. Defendant, whose date of birth is

November 15, 1959, was over the age of 17 on April 16, 2003; S.M., whose

date of birth is March 19, 1990, was under the age of 17; and there was an

age difference of greater than two years between them. As S.M.’s stepfather

who was at home with her while her mother was at work, Defendant was in

a position of control or supervision over S.M.

At trial, the jury heard S.M.’s testimony and viewed the video of her

interview at the Gingerbread House. S.M. stated that Defendant put his

mouth on her vagina, sucked on her breasts, put her hand on his penis and

put his fingers in her vagina. A rational trier of fact could find that these

actions by Defendant were lewd and lascivious acts performed with the

intention of arousing or gratifying his sexual desires. The sole testimony of

S.M. was sufficient to convict Defendant. The jury clearly chose to accept

S.M.’s testimony as more credible than Defendant’s. It was within the

discretion of the trier of fact to make such a credibility determination, and

this court will not disturb this determination on appeal.

Further, Defendant’s allegation of a Brady violation is misplaced. As

explained by the United States Supreme Court in Strickler v. Greene, 527

U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999):

[T]he term “Brady violation” is sometimes used to refer to any
breach of the broad obligation to disclose exculpatory
evidence—that is, to any suppression of so-called “Brady
material”—although, strictly speaking, there is never a real
“Brady violation” unless the nondisclosure was so serious that
there is a reasonable probability that the suppressed evidence
would have produced a different verdict. There are three
components of a true Brady violation: The evidence at issue
must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.

12

See also State v. Brown, 15-2001 (La. 2/19/16), 184 So. 3d 1265. In the case

sub judice, Defendant has not alleged that the state failed to disclose

exculpatory evidence. Instead, he argues that a witness failed to preserve

evidence, which is not a Brady violation.

Accordingly, this assignment of error lacks merit.

Excessive Sentence

In his third assignment of error, Defendant argues that the trial court

imposed an excessive sentence in failing to adequately consider mitigating

factors, including his age, work history, lack of a criminal history and the

length of time between the incident and conviction.

The state argues that Defendant’s sentence is not excessive. It

contends that the trial court detailed its decision, including the aggravating

and mitigating circumstances it considered.

Appellate review of sentences for excessiveness is a two-pronged

inquiry. First, the appellate court examines the record to determine if the

trial court used the criteria set forth in La. C. Cr. P. art. 894.1. The trial

court is not required to list every aggravating or mitigating circumstance so

long as the record reflects adequate consideration of the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Davis, 52,453

(La. App. 2 Cir. 2/27/19), 265 So. 3d 1194; State v. Boehm, 51,229 (La.

App. 2 Cir. 4/5/17), 217 So. 3d 596. The court shall state for the record the

considerations taken into account and the factual basis therefor in imposing

sentence. La. C. Cr. P. art. 894.1(C). The goal of La. C. Cr. P. art. 894.1 is

an articulation of the factual basis for the sentence, not simply a mechanical

compliance with its provisions. Davis, supra. Where the record clearly

shows an adequate factual basis for the sentence, resentencing is
13

unnecessary even where there has not been full compliance with La. C. Cr.

P. art. 894.1. Id. The defendant’s personal history (age, family ties, marital

status, health, employment record), prior criminal record, seriousness of the

offense and the likelihood of rehabilitation are important elements to

consider. State v. Jones, 398 So. 2d 1049 (La. 1981); Davis, supra; Boehm,

supra. There is no requirement that specific matters be given any particular

weight at sentencing. Davis, supra; Boehm, supra.

Second, a sentence violates La. Const. art. I, § 20, if it is grossly out

of proportion to the seriousness of the offense or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993); Davis, supra. A sentence is considered grossly

disproportionate if, when the crime and punishment are viewed in light of

the harm done to society, it shocks the sense of justice. State v. Weaver,

01-0467 (La. 1/15/02), 805 So. 2d 166; Boehm, supra.

A trial court has wide discretion to sentence within the statutory

limits. Absent a showing of manifest abuse of that discretion, a sentence

will not be set aside as excessive. On review, an appellate court does not

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. Davis, supra; Boehm, supra.

At the time of the commission of the alleged act of molestation, La.

R.S. 14:81.2 stated:

B. Whoever commits the crime of molestation of a juvenile
shall be fined not more than five thousand dollars, or
imprisoned, with or without hard labor, for not less than one nor
more than ten years, or both, provided that the defendant shall
not be eligible to have his conviction set aside or his
prosecution dismissed in accordance with the provisions of
Code of Criminal Procedure Article 893.

14

C. Whoever commits the crime of molestation of a juvenile
when the offender has control or supervision over the juvenile
shall be fined not more than ten thousand dollars, or
imprisoned, with or without hard labor, for not less than one nor
more than fifteen years, or both, provided that the defendant
shall not be eligible to have his conviction set aside or his
prosecution dismissed in accordance with Code of Criminal
Procedure Article 893.

As to the first prong of the excessive-sentence test, the trial court

complied with La. C. Cr. P. art. 894.1. At the sentencing hearing, it stated

that it reviewed Defendant’s sentencing memorandum, which included

information about his personal history and letters from his family and

friends. The trial court also considered the factors listed in La. C. Cr. P.

art. 894.1(A) to determine if it should impose a sentence of imprisonment

and found that all three circumstances were applicable. It then examined the

aggravating and mitigating circumstances set forth in La. C. Cr. P.

art. 894.1(B) and determined that the following factors applied to

Defendant’s case: 1) that Defendant’s conduct during the commission of the

offense manifested deliberate cruelty to the victim; 2) that Defendant knew

or should have known that the victim of the offense was particularly

vulnerable or incapable of resistance due to extreme youth; 3) that

Defendant used his position or status to facilitate the commission of the

offense; 4) and that the offense resulted in a significant permanent injury to

the victim. The trial court determined that none of the mitigating factors

applied in this case.

As to the second prong of the excessive-sentence test, the sentence of

five years at hard labor is not constitutionally excessive. At the sentencing

hearing, the trial court informed Defendant that the sentencing range was

one to ten years, which suggests the trial court relied on La. R.S. 14:81.2(B).

15

As the jury convicted Defendant of molestation of a juvenile when the

defendant had control or supervision, the trial court should have sentenced

Defendant pursuant to La. R.S. 14:81.2(C), which has a sentencing range of

not less than one, nor more than 15 years. Although the trial court did not

state the correct sentencing range on the record, nothing in the record

suggests that the trial court intended to impose a lenient sentence, and the

sentence imposed was within the correct sentencing range. See State v.

Preston, 47,273 (La. App. 2 Cir. 8/8/12), 103 So. 3d 525. Considering

Defendant’s molestation of S.M., the sentence imposed by the trial court

does not shock the sense of justice, nor is it grossly disproportionate to the

severity of the offense. The trial court did not abuse its discretion in

sentencing Defendant.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the forgoing reasons, we affirm the conviction and sentence of

Defendant James Daniel Johnson.

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THOMPSON, J., concurring.

I concur in affirming the conviction of the defendant on the evidence

presented and the resulting sentence, and I reach the same result as the

majority in denying the relief sought for disqualification of defendant’s

counsel but on different grounds.

I am prompted to write because although the current matter presents

an uncommon set of facts, there still exists a likelihood a similar situation

may occur, which could have significant impact on the victims of crime and

unnecessarily cost taxpayers for multiple trials. Here, the defendant

previously had criminal charges reviewed and screened out by the office of

district attorney. Over a decade later and under a different administration,

the charges were reconsidered, and the defendant was charged based on the

same set of facts from years prior. The defendant sought to hire the former

district attorney to represent him against the charges, and the State objected

and sought to have the former district attorney disqualified.

After a hearing, the trial court granted the disqualification, and a

timely objection was noted on the record, preserving that issue for

supervisory review. Four years later, the case proceeded to trial, and the

defendant was convicted by a unanimous jury. The defendant appealed his

conviction and listed the order by the district court disqualifying the prior

district attorney as his defense attorney among the assignments of error.

The majority concluded that there were sufficient grounds to

disqualify the former district attorney, considering the broad authority over

that office pursuant to La. C. Cr. P. art 61. I disagree. The general rule of

statutory construction provides for specific statutes to control over a broader,

more general statute on the same subject. When considering the issue of
1

recusal of a former government officer, La. Rules of Prof’l Conduct R. 1.11

(“Rule 1.11”), entitled Special Conflicts of Interest for Former and Current

Government Officers and Employees, is controlling. As opposed to the

broad authority conferred to a district attorney that could be exercised

hypothetically, the specific inquiry provided by Rule 1.11 that determines if

recusal is necessary is whether the former government officer actually

“participated personally and substantially as a public officer” in the matter.

At the recusal hearing in this matter, there was absolutely no evidence

presented to support any argument that the former district attorney had

personally participated at any level, and certainly not substantially, in the

screening of the case during his time in office. I suggest that recusal is

specific to the individual and not subject to hypothetical authority. The

threshold for recusal in this matter was not met and reversal of the trial

court’s order would have been proper, had supervisory review been sought

prior to trial.

It is also the opinion of this writer that even though timely preserved,

an objection to disqualification of an attorney should be considered

abandoned if the defendant proceeds to trial without seeking supervisory

review. The trial court granted the disqualification in this matter on

September 28, 2015, and trial did not occur until over four years later, on

December 3, 2019. The issue of disqualification was allowed to remain

dormant by defendant for years before the trial occurred. The defendant

only now asserts the issue in an effort to have his conviction vacated.

Justice is not best served by such a procedural policy.

Objections to rulings of the trial court provide it with notice of an

alleged irregularity and with the opportunity to make a proper ruling to
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correct any claimed prejudice against the party alleging the error. State v.

Browning, 06-929 (La. App. 5 Cir. 4/11/07), 956 So. 2d 65, 72. The alleged

prejudice to the defendant would be being forced to proceed to trial without

his attorney of choice. If he elects to do just that and not exhaust

supervisory review on the issue, then there is no longer an appropriate

remedy afforded to him. Seeking supervisory review before the trial

provides the opportunity to correct the claimed prejudice actually suffered.

If the disqualification is affirmed after exhausting supervisory review, then

the defendant could at least plan accordingly with new counsel, as that

matter is resolved. Reserving this issue as an assignment of error on appeal

after the trial creates an unnecessary risk for significant potential harm and

expense.

There has been no allegation by the defendant that he proceeded to

trial without competent legal representation, and he has not asserted any

ineffective assistance of counsel claims in connection with this matter.

Defendant seeks a new trial without any certainty that the attorney he

selected beforehand is available or interested. The court lacks the authority

to require that a specific attorney represent the defendant. There could be

instances in similar situations where the attorney has retired, has limited

their practice, can no longer be afforded by the defendant, has become

disabled, or even died. There is no remedy available to the court should the

defendant prevail in his endeavors, as there can be no mandate requiring the

former district attorney in this matter to represent the defendant at a new trial

in the future.

The existing statutory authority and jurisprudence does not appear to

clearly place any requirement that an objection to a recusal ruling be
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resolved before trial. Likewise, there appears to be no prohibition against

determining the right has been abandoned. In these limited factual

circumstances, I suggest that when a defendant proceeds to trial without

having sought supervisory review of the order granting the disqualification

of their attorney of choice, they should be considered to have abandoned

their ability to raise the issue on appeal.

Reaching the same ultimate conclusion as the majority, I concur in all

other regards for the reasons set forth in the opinion.

AFFIRMED.

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