State of Louisiana v. Kevin Charles Gasaway

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-864

STATE OF LOUISIANA

VERSUS

KEVIN CHARLES GASAWAY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3817-05
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Kevin Charles Gasaway

KEATY, Judge.

This matter comes before us on an appeal from a trial court’s judgment

pursuant to a motion to recuse. Defendant, Kevin Charles Gasaway, asserts that

Judge Todd Clemons, randomly assigned to preside over a pre-trial recusal hearing,

erred in denying Defendant’s motion to recuse Judge David A. Ritchie, the judge

allotted to preside over a murder trial in which Gasaway was the defendant. For the

following reasons, we find that the appeal has no merit, and we dismiss.

Courtnee Lewis was murdered on December 14, 2004. Immediately before the

fatal shot was fired, her ten-year-old daughter witnessed Courtnee’s estranged

husband, Defendant, hitting her, dragging her through shattered glass, brandishing

a gun, and threatening to kill her. After the shot was fired, neighbors saw a black

male run away from the home and were able to describe the clothing he was wearing.

The next day, Defendant was arrested on the suspicion that he had killed Courtnee,

and, during the trip to the jail, he made self-incriminating statements, including an

admission that he had killed Courtnee.

On February 3, 2005, Defendant was charged by indictment with first degree

murder, in violation of La.R.S. 14:30. He entered a plea of not guilty on March 14,

2005. On December 5, 2005, the indictment was amended to charge Defendant with

second degree murder, and, again, Defendant entered a plea of not guilty.

On January 31, 2007, the State filed a notice under La.Code Evid. art. 404(B)

of its intent to introduce evidence of other crimes as Defendant had previously been

convicted of perpetrating violence against Courtnee Lewis. On May 16, 2007,

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following a Prieur1 hearing, Judge Ritchie granted the State’s motion over the

objection of defense counsel.

On October 19, 2007, Defendant filed a motion to recuse Judge Ritchie, the

trial judge. In his motion, Defendant made three allegations against Judge Ritchie

which he claimed were sufficient to warrant Judge Ritchie’s recusal pursuant to

La.Code Crim.P. art. 671.2 These allegations were: 1) that Judge Ritchie was

associated with the Public Defender’s Office (PDO) when it represented him in three

criminal matters which the State planned on introducing during the pending trial; 2)

that Judge Ritchie personally represented him in a separate criminal matter that would

not be introduced as evidence of other crimes; and 3) that Judge Ritchie had

personally represented Barbara Lee, a witness and a complainant in an incident giving

rise to one of the three prior convictions that would be introduced as evidence of

1
In State v. Prieur, 277 So.2d 126 (La.1973), the Louisiana Supreme Court set forth
safeguards to be applied when the State intends to offer evidence of other criminal offenses under
exceptions to the “other crime” exclusionary rule.
2
Louisiana Code of Criminal Procedure Article 671, entitled “Grounds for recusation of
judge” provides, in pertinent part, as follows:

A. In a criminal case a judge of any court, trial or appellate, shall be recused
when he:

(1) Is biased, prejudiced, or personally interested in the cause to such an
extent that he would be unable to conduct a fair and impartial trial;

(2) Is the spouse of the accused, of the party injured, of an attorney employed
in the cause, or of the district attorney; or is related to the accused or the party
injured, or to the spouse of the accused or party injured, within the fourth degree; or
is related to an attorney employed in the cause or to the district attorney, or to the
spouse of either, within the second degree;

(3) Has been employed or consulted as an attorney in the cause, or has been
associated with an attorney during the latter’s employment in the cause;

(4) Is a witness in the cause;

(5) Has performed a judicial act in the case in another court; or

(6) Would be unable, for any other reason, to conduct a fair and impartial
trial.

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other crimes during the pending trial. Judge Ritchie denied Defendant’s motion on

the same date. Defendant withdrew his former plea and entered a plea of not guilty

and not guilty by reason of insanity.3

Defendant filed a notice of intent to seek review of Judge Ritchie’s denial of

the motion to recuse on October 26, 2007. On November 14, 2007, Defendant filed

an application for writ of supervisory review with this court. We issued the following

ruling on November 21, 2007: “WRIT DENIED: The trial court did not err by

denying Defendant’s motion to recuse. See State v. Connolly, 06-540 (La. 6/2/06),

930 So.2d 951; See also State v. Mayeaux [sic], 06-944 (La.App. 3 Cir. 1/10/07), 949

So.2d 520.” State v. Gasaway, an unpublished writ ruling bearing docket number

07-1447 (La.App. 3 Cir. 11/21/07).

On January 3, 2008, the supreme court reversed this court’s ruling, stating:

“Writ granted—the ruling of the trial court is vacated and the motion to recuse is

remanded to the district court for hearing before another judge or a judge ad hoc as

provided in La.C.Cr.P. art. 674 & 675.” State v. Gasaway, 07-2456 (La. 1/3/08), 973

So.2d 722.

Subsequent to the supreme court’s decision, Judge Ritchie ordered that the

motion to recuse be randomly re-allotted to another judge. Judge Clemons became

the presiding judge for purposes of determining whether Judge Ritchie should be

recused. During the course of the April 2, 2008 hearing, Judge Clemons heard

testimony from Judge Ritchie and from Ron Ware, the executive director of the PDO.

He also heard argument from the attorney for Defendant and the attorney for the

State. At the end of the hearing, Judge Clemons took the case under advisement and

3
Several sanity commissions were appointed to examine Defendant, and, after each
examination, he was found competent to proceed to trial.

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indicated that he would make his ruling in open court on April 4, 2008. At that time,

however, Judge Clemons still was not ready to rule. He stated, “I gave this a lot of

consideration. . . . I mean it is a serious decision. The man is facing some serious

charges, and like I said, I thought I was ready to rule but I’m just not ready.” Judge

Clemons gave the attorneys the option of submitting additional briefs and reset the

matter for the following Wednesday, April 9, 2008.

On April 9, 2008, after considering the briefs submitted to the court, the

testimony of the witnesses, and the arguments of counsel, Judge Clemons denied

Defendant’s motion to recuse. He found no evidence that Judge Ritchie was biased,

prejudiced, or personally interested in the outcome of Defendant’s pending second-

degree murder case. Judge Clemons based his decision on his finding that although

Judge Ritchie was employed by the PDO during 2003, he was not associated in this

cause.4

Defendant filed a notice of intent to seek review of Judge Clemons’s ruling on

April 16, 2008, and his application for writ of supervisory review was filed with this

court on May 9, 2008. On May 30, 2008, we issued the following ruling: “WRIT

DENIED: There is no error in the denial of the Defendant’s motion to recuse the trial

judge.” State v. Gasaway, an unpublished writ ruling bearing docket number 08-587

(La.App. 3 Cir. 5/30/08), writ denied, 08-1457 (La. 10/3/08), 992 So.2d 1016.

The indictment against Defendant was again amended on December 1, 2009,

to reflect the second degree murder statute, La.R.S. 14:30.1; the body of the bill was

amended to reflect that: “he did commit second degree murder of Courtnee Lewis

4
Judge Clemons, in explaining why he denied Defendant’s motion to recuse, stated, “in this
cause does not include the Prieure [sic] evidence that occurred in 2003; and therefore, there are not
grounds to recuse.”

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when the defendant had the specific intent to kill or inflict great bodily harm.” After

the amendment, Defendant entered a plea of not guilty and not guilty by reason of

insanity. Trial by jury subsequently commenced on December 4, 2009. On

December 7, 2009, Defendant was found guilty of second degree murder. On

January 8, 2009, he was sentenced to serve life imprisonment without benefit of

probation, parole, or suspension of sentence.

A motion for appeal was filed on January 15, 2010, and was subsequently

granted. Defendant is now before this court asserting one assignment of error.

Therein, he contends that Judge Clemons erred in denying his motion to recuse Judge

Ritchie. This assignment of error lacks merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there are no errors

patent.

DISCUSSION

In his only assignment of error, Defendant contends that Judge Clemons erred

in denying his motion to recuse Judge Ritchie.

Although the trial court’s ruling was addressed in a pre-trial writ application

filed by Defendant, he alleges that this court’s prior ruling was patently erroneous and

produced an unjust result. Defendant contends that the jurisprudence is clear that

La.Code Crim.P. art. 671(A)(3) applies when a trial judge was counsel for a

defendant for prior crimes that were used as other crimes evidence at trial.

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Defendant asserts that throughout 2003, he was charged with at least the

following four bills of information arising from confrontations with the decedent,

Courtnee Lewis. The charges against him were:

1. An April 19, 2003 offense of simple battery of his wife, Courtnee
Gasaway, in Fourteenth Judicial District Court, Docket Number
8875-03.

2. An Apri1 23, 2003 offense of simple battery of his wife, Courtnee
Gasaway, and violation of a protective order, in Fourteenth
Judicial District Court, Docket Number 8876-03.

3. June 5, 2003 offenses of simple battery and false imprisonment of
his wife, Courtnee Gasaway, and violation of a protective order,
in Fourteenth Judicial District Court, Docket Number 8877-03.

4. The offenses of simple battery of his wife, Courtnee Gasaway,
unauthorized use of a movable involving an automobile, and
violation of a protective order, in Fourteenth Judicial District
Court, Docket Number 8878-03.

Defendant contends that the PDO was appointed to represent him in this cause,

and, at the time, Judge Ritchie was employed by the PDO. Additionally, Defendant

contends that Judge Ritchie was assigned to Docket Number 8878-03 and represented

Defendant in the matter before it was dismissed.5 Defendant further contends that

Docket Number 8878-03 was dismissed and he entered a guilty plea in the remaining

docket numbers.

Defendant contends that he was entitled to conflict-free counsel under the Sixth

Amendment. According to Defendant, that right includes not having the PDO

represent him in the four cases charged in 2003 and then having Judge Ritchie preside

over the admissibility of three of those same cases in his 2004 murder case.

5
Docket Number 8878-03 is not one of the prior crimes the State intended to introduce
against Defendant in the 2004 murder trial.

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Defendant further contends that Judge Clemons erred in finding that La.Code

Crim.P. art. 671(A)(3) did not apply because Judge Ritchie was present in name only

and was not actually associated with the PDO because he was actively campaigning

for judge at the time. This was the same argument he made in his application for

supervisory writs to this court in May of 2008 and to the supreme court in July of

2008.

In arguing that the trial court did not err in denying Defendant’s motion to

recuse, the State points to this court’s decision in State v. Pierce, 01-94, p. 11

(La.App. 3 Cir. 10/31/01), 799 So.2d 732, 740, writ denied, 01-3312 (La. 1/10/03),

834 So.2d 427, wherein we noted the following:

In State v. Edwards, 420 So.2d 663, 673 (La.1982), the supreme
court stated:

It is well settled that a trial judge is presumed to be
impartial. State v. Collins, 288 So.2d 602 (La.1974). For
an accused to be entitled to the recusation of a trial judge
on the grounds of bias, prejudice and personal interest such
bias, prejudice and personal interest must be of a
substantial nature based on more than mere conclusory
allegations. State v. Qualls, 377 So.2d 293 (La.1979).

In State v. Chambers, 99-678, p. 3 (La.App. 3 Cir. 1/19/00), 758 So.2d 231,

233, writ denied, 00-551 (La. 9/22/00), 768 So.2d 600, this court stated the following:

A defendant may seek review of a pretrial ruling by the trial court
even after the denial of a pretrial supervisory writ application seeking
review of the same issue.

The prior denial of supervisory writs does not bar
reconsideration of an issue on appeal, nor does it prevent
the appellate panel from reaching a different conclusion.
State v. Fontenot, 550 So.2d 179 (La.1989); State v.
Decuir, 599 So.2d 358 (La.App. 3 Cir.1992), writ denied,
605 So.2d 1095 (La.1992). When a defendant does not
present any additional evidence on this issue after the pre-
trial ruling, the issue can be rejected on appeal. See, e.g.,
State v. Regan, 601 So.2d 5 (La.App. 3 Cir.1992), writ

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denied, 610 So.2d 815 (La.1993); State v. Wright, 564
So.2d 1269 (La.App. 4 Cir.1989). Judicial efficiency
demands that this court accord great deference to its pre-
trial decision unless it is apparent that the determination
was patently erroneous and produced unjust results. State
v. Decuir, supra, at 360.

State v. Hebert, 97-1742 (La.App. 3 Cir. 6/3/98); 716 So.2d 63, 67, writ
denied, 98-1813 (La.11/13/98); 730 So.2d 455, citing State v. Magee,
93-643, p. 2 (La.App. 3 Cir. 10/5/94); 643 So.2d 497, 499.

Defendant presents no new arguments to this court on appeal. In accordance

with State v. Decuir, 599 So.2d 358, we must accord great deference to our pre-trial

ruling. After reviewing the record in detail, including Judge Clemons’s reasons for

ruling, it is clear that he thoroughly considered all law, testimony, and evidence

presented to him before making a determination on the issue of Judge Ritchie’s

recusal. As it is not apparent that this court’s prior ruling is patently erroneous, we

find that Defendant’s assignment of error lacks merit, and we affirm Judge Clemons’s

ruling on the recusal of Judge Ritchie.

DECREE

For the foregoing reasons, the judgment of the trial court denying Defendant’s

motion to recuse Judge David A. Ritchie is affirmed.

AFFIRMED.

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