State of Louisiana v. Mason N. Godfrey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-828

STATE OF LOUISIANA

VERSUS

MASON GODFREY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 16,993-05
HONORABLE ARTHUR J. PLANCHARD, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Jimmie C. Peters, Judges.

Saunders, J., dissents and assigns written reasons.

CONVICTION AND SENTENCE VACATED; VERDICT RENDERED;
AND REMANDED TO TRIAL COURT FOR SENTENCING.

Terri R. Lacy
James “David” Caldwell, Jr.
Harrell “Butch” Wilson, Jr.
Assistant Attorneys General
Louisiana Department of Justice
Post Office Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
Post Office Box 2775
Monroe, LA 71207-2775
(318) 387-6124
COUNSEL FOR DEFENDANT/APPELLANT:
Mason Godfrey

Mason Godfrey
Louisiana State Penitentiary
Angola, LA 70212
PRO SE

PETERS, J.

The State of Louisiana (state) charged the defendant, Mason N. Godfrey, by

bill of information with the offense of intimidation of a public official, a violation of

La.R.S. 14:122, and a jury found him guilty of the charged offense. The trial court

then sentenced the defendant to serve three years at hard labor.1 In his appeal, the

defendant’s appellate counsel asserts five assignments of error, and he asserts three

pro se assignments of error. For the following reasons, we vacate the conviction and

sentence; enter a verdict of guilty to threatening a public official, a violation of

La.R.S. 14:122.2; and remand the matter to the trial court for sentencing on that

conviction.

Assignments of Error Numbers 1 and 2
and
Pro Se Assignments of Error Numbers 1 and 2

The criminal charge arises from events which occurred on October 17, 2005,

at the Calcasieu Parish Courthouse, involving the defendant and Paul Reggie, an

assistant district attorney for the Fourteenth Judicial District. In these assignments

of error, the defendant asserts that the evidence was insufficient to convict him of the

offense charged. In raising the sufficiency of the evidence, the defendant denies the

state’s version of the evidence and, in the alternative, asserts that even if it were

established that he said and did what the state’s witnesses testified to, his actions and

words did not rise to the level of intimidation of a public official.

On the morning of October 17, 2005, the defendant was scheduled for trial on

a criminal charge unrelated to the matter before us. Mr. Reggie testified that

sometime during the midmorning, the defendant approached him in the courtroom

and attempted to discuss the pending charge with him. Mr. Reggie informed the

1
The defendant’s sentence was subsequently vacated by the trial court, and the defendant was
sentenced as a habitual offender. That action of the trial court is currently before this court in Docket
Number 08-1231.

defendant that ethical restraints prohibited him from speaking with him on anything

other than the general status of the case because the defendant was represented by an

attorney who was not present at the time. Sometime later in the morning, the

defendant again approached Mr. Reggie and was instructed to wait until his attorney

arrived. At this time, according to Mr. Reggie, the defendant appeared agitated. At

some point thereafter, the defendant left the courtroom.

When Mr. Reggie and his investigator, Cinnamon Salvador, exited the

courtroom at the lunch break, the defendant again attempted to speak with him. Mr.

Reggie again refused to talk with him. According to Ms. Salvador, the defendant

became so agitated that she pulled a file cart between the two men to keep them

separated. As the defendant continued to raise his voice, Deputy Gene Thibodeaux

of the Calcasieu Parish Sheriff’s Office stepped between them and, as Mr. Reggie

moved toward an elevator, instructed the defendant to leave the building.

According to Mr. Reggie, the defendant said something to the effect that he

[Mr. Reggie] was “making it personal with him.” Mr. Reggie responded that it was

not personal, but that professional conduct rules prevented him from discussing the

case with him. According to Mr. Reggie, as he moved toward the elevator, the

defendant made a hand gesture as if he was pointing a gun at him and stated that “I’m

going to pop-pop you.” Mr. Reggie testified that he interpreted this comment to mean

that the defendant “was going to shoot him at some point.” He further testified that

he thought the defendant was trying to coerce him into doing something that he could

not do. Sometime later, as he exited the courthouse, Mr. Reggie again encountered

the defendant, and testified that the two men made eye contact. Mr. Reggie then

telephoned the Calcasieu Sheriff’s Department and filed the complaint that gave rise

to this criminal charge.

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Ms. Salvador supported Mr. Reggie’s recitation of the facts in her testimony.

According to Ms. Salvador, the defendant attempted to approach Mr. Reggie two or

three times before the lunch recess and, when he was unsuccessful, became more and

more agitated. When she and Mr. Reggie attempted to exit the courtroom, the

defendant again approached Mr. Reggie, stating that “I want to talk to you. I need to

talk to you.” According to Ms. Salvador, the defendant got louder and stated that “I

got something for you, I got something for you.” When Mr. Reggie retreated to the

elevator, Ms. Salvador remained in the hallway and observed Deputy Thibodeaux

escort the defendant down a flight of stairs and out of the building. She testified that

when she and Mr. Reggie left the courthouse, the defendant was standing in the street,

but did not approach Mr. Reggie or attempt to speak with him.

Deputy Thibodeaux also supported Mr. Reggie’s version of the facts in his

testimony. He testified that he observed the defendant approach Mr. Reggie a number

of times while the two men were in the courtroom, and, on each occasion, Mr. Reggie

made it plain that he could not speak to him without his lawyer present. As Mr.

Reggie left the courtroom, the defendant again attempted to approach Mr. Reggie,

telling him they needed to talk. According to Deputy Thibodeaux, the defendant

asked why Mr. Reggie would not talk with him, and Mr. Reggie responded that “I

can’t talk to you, I don’t even know you.” To that comment, the defendant responded

“yeah, you know me. You know me enough to where you know I will pow-pow-pow

you.” Deputy Thibodeaux testified that during this exchange, the defendant made a

gesture with his fingers as if he were holding a gun. Deputy Thibodeaux then

escorted the defendant from the building.

The defendant did not dispute the assertions that he approached Mr. Reggie on

a number of occasions on the morning of October 17, 2005, but disputed the content

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of the discussions that transpired. According to the defendant, he arrived at court at

approximately 10:00 a.m., and the proceedings had already begun. Because he was

worried that a bench warrant had been issued in his case, he approached Mr. Reggie

for the singular purpose of informing him that he was present in court. According to

the defendant, Mr. Reggie responded by saying, “I know who you are. Go sit down.”

He then took a seat, but approached Ms. Salvador, not Mr. Reggie, at a 10:30 recess.

He testified that he asked Ms. Salvador if his lawyer was in court. He then left the

courtroom to unsuccessfully telephone his lawyer.

The defendant admitted approaching Mr. Reggie during the noon recess, but

suggested that the first confrontation occurred in the courtroom and not the hallway.

His purpose, he testified, was only to ask if his name had been called. According to

the defendant, Mr. Reggie responded by saying, “I don’t want to talk to you. I don’t

have nothing to say to you.” The defendant testified that he responded to Mr. Reggie

by saying, “Sir, I’m suppose to be in court. I’m trying to find out if a bench warrant.”

At that point a third party stepped between him and Mr. Reggie.

The defendant testified that when Mr. Reggie did leave the courtroom, he [the

defendant] approached him in the hallway, but only to apologize for his previous

behavior and to again ask if his name had been called. He testified that Mr. Reggie

began screaming, “I told you I don’t have nothing to say.” As before, his sole intent

was to avoid going to jail on a bench warrant, not to discuss the case. The defendant

testified that Deputy Thibodeaux grabbed him by the neck and told him to leave. The

defendant denied ever threatening Mr. Reggie by words or gesture.

It is well settled that,

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven

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beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the Jackson
standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing
State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court
to affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Smith, 07-1384, pp. 2-3 (La.App. 3 Cir. 5/28/08), 984 So.2d 238, 240

(quoting State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367,

1371).

The jury convicted the defendant of public intimidation which is defined as

“the use of violence, force, or threats upon [a number of persons including a public

officer], with the intent to influence his conduct in relation to his position,

employment, or duty.” La.R.S. 14:122. A “[p]ublic officer” is defined as “any

executive, ministerial, administrative, judicial, or legislative officer . . . of the state

of Louisiana or any parish, municipality, district, or other political subdivision

thereof, or of any agency, board, commission, department or institution of said state,

parish, municipality, district, or other political subdivision.” La.R.S. 14:2(9).

The offense of public intimidation requires specific criminal
intent. Public intimidation is not the intentional use of force or threats
upon a public employee, but rather the use of force or threats upon the
employee with the specific intent to influence the employee’s conduct
in relation to the employee’s duties. Specific intent is defined as “that
state of mind which exists when the circumstances indicate that the
offender actively desired the prescribed criminal consequences to follow
his act or failure to act.” LSA-R.S. 14:10(1). Specific intent is a state
of mind and, as such, need not be proven as a fact but may be inferred
from the circumstances and actions of the defendant. The determination
of whether the requisite intent is present in a criminal case is for the trier
of fact, and a review of the correctness of this determination is to be
guided by the Jackson standard.

5

State v. Stamps, 06-971, pp. 7-8 (La.App. 5 Cir. 5/15/07), 960 So.2d 237, 240-41

(footnotes omitted).

Thus, in order to convict the defendant of the offense charged, the state was

required to prove beyond a reasonable doubt (1) that the defendant threatened Mr.

Reggie, (2) that Mr. Reggie is a public officer or public employee, and (3) that in

threatening Mr. Reggie, the defendant had the specific intent to influence Mr.

Reggie’s conduct in relation to his position, employment, or duty as an assistant

district attorney.

We find that a rational trier of fact could have found that the first two elements

were proven beyond a reasonable doubt, but find proof of the third element lacking.

As pointed out by the defendant in brief, there exists no evidence to suggest that the

defendant sought to have his case continued, the charges dropped, or sought to

influence Mr. Reggie in his position, employment, or duties. See State v. Burgess,

04-121 (La.App. 3 Cir. 6/16/04), 876 So.2d 263, and the cases cited therein.

We reject the state’s argument that a rational trier of fact can infer specific

intent on the part of the defendant to do more than simply determine whether his

name had been called in open court from the defendant’s persistence in attempting to

speak to Mr. Reggie—that this persistence was clear evidence that the defendant was

attempting to influence Mr. Reggie as an assistant district attorney. We note that in

making this argument, the state fails to show exactly what conduct on the part of Mr.

Reggie the defendant was attempting to influence. As noted in State v. Jones, 00-980

(La.App. 5 Cir. 10/18/00), 772 So.2d 788, it must be considered whether the threat

at issue was made in anger or retaliation or whether it was made in an attempt to

influence Mr. Reggie’s conduct in relation to his employment duties. In the matter

now before us, the defendant attempted, unsuccessfully, to speak to Mr. Reggie at

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least three times. Mr. Reggie refused to speak to the defendant because of ethical

considerations, but did state that he would speak to a represented defendant about the

status of his case. While Mr. Reggie assumed that the defendant wanted to speak to

him about the case, and not just the status, at one point he testified that he did not

know what the defendant wanted to speak to him about.

Although we find that the state did not establish every essential element of

intimidation of a public official and that the defendant’s conviction and sentence must

be set aside, our inquiry does not end here. Even if the evidence does not support a

conviction for the offense charged, discharge of a defendant is not proper when the

evidence does support a conviction for a lesser and included offense. State v. Byrd,

385 So.2d 248 (La.1980); La.Code Crim.P. art. 815.

In this case, all of the elements of threatening a public official have been

proved beyond a reasonable doubt. “Threatening a public official is engaging in any

verbal or written communication which threatens serious bodily injury or death to a

public official.” La.R.S. 14:122.2(A)(1). The only element of La.R.S. 14:122 not

required to be proved under La.R.S. 14:122.2 is that of “intent to influence [the public

official’s] conduct in relation to his position, employment, or duty.” La.R.S.

14:122(A).

Assignment of Error Number 3

The defendant asserts in this assignment of error that the altercation in the

courthouse hallway occurred in the presence of the trial judge, and that the trial judge

should have been recused. The record establishes otherwise.

Louisiana Code of Criminal Procedure Article 671(A)(4) provides that a judge

“shall be recused when he . . . [i]s a witness in the cause.” At the first hearing on the

motion to recuse, the trial judge stated that he had not witnessed any part of the

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incident or incidents giving rise to the criminal charge, and, at that time, no one had

brought the facts to his attention in any way. Thus, the trial judge refused to recuse

himself. When the matter was heard anew on the morning of the trial, and before

another judge of the district, the trial judge testified that he had no recollection of the

events in question, although he recalled seeing the defendant “maybe twice” in the

past. According to the trial judge, he only became aware of the events after the filing

of the first motion to recuse. The judge assigned to hear the recusal motion then

denied the motion, and trial commenced.

The defendant argues on appeal that the trial judge’s denial of any knowledge

of the hallway altercation does not preclude the possibility of him being called as a

witness. Given the trial judge’s testimony, and absent any evidence to the contrary,

there exists no possibility of the trial judge being called as a witness. To be a witness

in a cause, the trial judge must be a material witness and his testimony must relate to

the guilt or innocence of the defendant. State v. Tyler, 342 So.2d 574 (La..1977).

That is not the case in the matter now before us and we find no merit in this

assignment of error. In fact, to accept this argument would open the door for any

defendant not satisfied with the presiding judge to simply subpoena that judge and

force recusal.

Pro Se Assignment of Error Number 3

In this assignment of error, the defendant asserts that the trial court erred in

refusing to admit evidence favorable to him. The evidence at issue is contained in the

pretrial statements of Mr. Reggie and Ms. Salvador. According to the defendant, the

statements contain inconsistent assertions on the part of the two witnesses, but were

suppressed at trial.

In considering this assignment, we note that the defendant seems to be arguing

8

that the fact the statements at issue were not introduced into evidence constitutes a

violation of the requirements of disclosure set forth in Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194 (La.1963).

For purposes of the prosecution’s due process duty to disclose
evidence favorable to a defendant, Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), no distinction exists between
exculpatory and impeachment evidence. United States v. Agurs, 427
U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). While witness
statements are normally not discoverable, La.C.Cr.P. art. 723, this
discovery rule must give way when a statement contains favorable
information for Brady purposes. Kyles [v. Whitley, 514 U.S. 419, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995)]; see La.C.Cr.P. art. 718. In
addition, the prosecution must make timely disclosure of the favorable
evidence to provide the defense with adequate opportunity to present the
material effectively in its case. State v. Prudholm, 446 So.2d 729, 738
(La.1984). This Court therefore recognized that late disclosure as well
as non-disclosure of exculpatory evidence may deprive the defendant of
a fair trial. State v. Williams, 448 So.2d 659, 665 (La.1984); State v.
Landry, 388 So.2d 699, 702 (La.1980); State v. Roussel, 381 So.2d 796,
798 (La.1980).

State v. Kemp, 00-2228, p. 7 (La.10/15/02), 828 So.2d 540, 545.

However, our review of the record does not suggest that the state failed to disclose

the content of the statements to the defendant in advance of trial. In fact, at no time

does the defendant assert that the state failed to disclose the statements. The record

does reflect that discovery was conducted and the statements at issue are attached to

his pro se brief and the record does not contain any post-trial motion to produce the

documents. Furthermore, the record contains no discussion of the admissibility of the

statements.

Even assuming, for the purpose of argument, that the defendant did not have

access to the statements before trial, the alleged inconsistent statements related to

nothing more than the timing of certain events. For example, the statements do not

make it totally clear if the altercation occurred just before noon or after the morning

recess—although they are consistent in establishing that the primary altercation took

9

place outside the courtroom. Another inconsistency the defendant suggests is

relevant is his assertion in his brief that Ms. Salvador testified that “appellant did not

want to speak to anyone except Mr. Reggie,” but in her written statement she said that

“she thought appellant was more interested in speaking to Mr. Reggie.” Our review

of the written statement at issue reflects that it does not contain the language cited by

the defendant.

The United States Supreme Court has determined that there are
three components of a true Brady violation: The evidence must be
favorable to the accused, either exculpatory or impeaching in nature;
the evidence must have been suppressed by the State either willfully or
inadvertently; and there must be prejudice. Strickler v. Greene, 527
U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); State v.
Louviere, 00-2085 (La.9/4/02), 833 So.2d 885, cert. denied, 540 U.S.
828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003). Moreover, the evidence must
be “material.” Evidence is material only if it is reasonably probable that
the result of the trial would have been different had the evidence been
disclosed to Defendant. A reasonable probability is one which is
sufficient to undermine confidence in the outcome of the trial. United
States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

State v. Mayeux, 06-944, p.15 (La.App. 3 Cir. 1/10/07), 949 So.2d 520, 531.

None of the alleged inconsistencies meet the three component test.

We find no merit in this pro se assignment of error.

Assignments of Error Numbers 4 and 5

Both of these assignments of error address the defendant’s subsequent

adjudication as a fourth felony offender and the sentence he received as a result of

that adjudication. These issues are not properly before this court in this appeal as

they have been raised in a separate appeal pending before this court. Thus, we

decline to address these assignments of error in this appeal.

DISPOSITION

For the foregoing reasons, we vacate the defendant’s conviction and sentence

for intimidation of a public official and enter a verdict of guilty to the offense of

10

threatening a public official, a violation of La.R.S. 14:122.2. We further remand the

matter to the trial court for sentencing on this conviction.

CONVICTION AND SENTENCE VACATED; VERDICT RENDERED;
AND REMANDED FOR SENTENCING.

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NUMBER 08-828

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

MASON GODFREY

Saunders, J., dissents and assigns written reasons.

I would affirm the trial court. I feel that the Assistant District Attorney’s
decision whether to speak to the Defendant is “conduct in relation to his position,
employment, or duty” under La.R.S. 14:122. While the Assistant District Attorney
has an ethical duty to refrain from speaking to the Defendant, his decision whether
to comply with this duty is a choice he has to make that is related to his position.
As such, I disagree that the third element of the crime was lacking as the majority
opines. I respectfully dissent.

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