State of Louisiana v. Woodrow Karey, Jr. AKA Woodrow Karey, II

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-522

STATE OF LOUISIANA

VERSUS

WOODROW KAREY, JR. A/K/A WOODROW KAREY, II

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 17151-14
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Marc T. Amy, Judges.

MOTION TO SUPPLEMENT DENIED; REVERSED AND REMANDED.

COOKS, J., dissents and assigns written reasons.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
Fourteenth Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLANT:
State of Louisiana

Adam P. Johnson
Todd S. Clemons
Johnson & Vercher, L.L.C.
P. O. Box 849
Lake Charles, LA 70602
(337) 433-1414
COUNSEL FOR DEFENDANT/APPELLEE:
Woodrow Karey, Jr.

PETERS, J.

The State of Louisiana (state) appeals the trial court‟s grant of a motion to

quash, thereby dismissing the charge of second degree murder against the

defendant, Woodrow Karey, Jr., also known as Woodrow Karey, II. For the

following reasons, we deny the state‟s request to supplement the record, reverse

the trial court‟s grant of the motion to quash, reinstate the grand jury indictment for

second degree murder, and remand the matter to the trial court for further

proceedings.

DISCUSSION OF THE RECORD

The defendant is accused of walking into the Tabernacle of Praise Church in

Lake Charles, Louisiana, on September 27, 2013, and killing the church‟s pastor,

Ronald Harris, Sr. On June 26, 2014, a grand jury indicted the defendant for the

offense of second degree murder, a violation of La.R.S. 14:30.1. However, at the

time of this grand jury indictment, the defendant was already under an indictment

returned by a different grand jury for the offense of manslaughter, a violation of

La.R.S. 14:31. The manslaughter indictment had been returned on November 14,

2013. Furthermore, in both indictments, the victim was the same Ronald Harris, Sr.

who died in his church on September 27, 2013. The indictments were assigned

different docket numbers and have been treated as two completely separate

proceedings. On July 28, 2014, the defendant appeared in the trial court for

arraignment on the charge of second degree murder, entered a not guilty plea, and

requested a jury trial. On July 30, 2014, the state nolle prossed the manslaughter

charge.

On August 8, 2014, the defendant filed a motion to quash the second degree

murder charge, but filed the motion under the docket number assigned to the then-

dismissed manslaughter charge and not the docket number assigned to the second

degree murder proceeding. The defendant based his motion on the argument that

the state and the defendant had entered into an agreement that both would be

bound by whatever charge or charges the first grand jury returned, and that the

state violated that agreement by taking the matter back to another grand jury and

obtaining an indictment for a more serious charge. The trial court heard the motion

on January 6, 2015. The next day, the trial court filed its written ruling, with

reasons, granting the defendant‟s motion to quash and dismissing the second

degree murder indictment.

OPINION

Motion to Supplement the Record

After perfecting its appeal in the trial court, the state filed a motion to

supplement the record in this court, and to extend the briefing schedule then in

place. With regard to supplementing the record, the state sought to have Docket

Number 26060-13 made part of the appellate record now before us. We find no

merit in the motion.

Although some documents from Docket Number 26026-13 found their way

into the record in Docket Number 17151-14, neither party moved in the trial court

to introduce the earlier record in the later one. Strictly speaking, the materials filed

under one docket number should not be included in an appellate record when the

pertinent motion for appeal does not bear the docket number of the materials at

issue. Louisiana Code of Criminal Procedure Article 917 provides, in pertinent

part, that “[t]he clerk of the trial court shall prepare the record in accordance with

the rules of the appellate court.” Additionally, Uniform Rules—Courts of Appeal,

Rule 2-1.7 states in pertinent part:

No record of another case (or prior record in the same titled and
numbered case) shall be included in the record, unless such other
record has been introduced in evidence (at trial) in the case on appeal
2

or on writs, in which event such other record shall accompany the
record as an exhibit.

For the foregoing reasons, we decline to grant the state the requested relief.

Assignment of Error

In its sole assignment of error on appeal, the state asserts that the trial court

erred in granting the motion to quash and in dismissing the grand jury indictment

for second degree murder. While the state asserts only one assignment of error, it

breaks that assignment down into three different segments, and we will consider

each segment separately.

Timeliness of the defendant’s motion to quash

The state first asserts that the defendant did not timely file his motion to

quash because he filed it in the dismissed manslaughter proceeding and not in the

second degree murder proceeding.

Louisiana Code of Criminal Procedure Article 535 provides the time

limitations associated with the filing of a motion to quash. That article provides

that a motion to quash may be filed of right, at any time before the commencement

of trial in eight situations: seven are listed in La.Code Crim.P. art. 535(A); and one

is listed in La.Code Crim.P. art. 535(B). Additionally, the seven grounds listed in

La.Code Crim.P. art. 535(A) “may be urged at a later stage of the proceedings in

accordance with other provisions of [the Louisiana Code of Criminal Procedure].”

Motions to quash addressing any other ground “shall be filed in accordance with

Article 521.” La.Code Crim.P. art. 535(C). Finally, La.Code Crim.P. art. 535(D)

provides that “[t]he grounds for a motion to quash under Paragraphs B and C are

waived unless a motion to quash is filed in conformity with those provisions.”

Louisiana Code of Criminal Procedure Article 521(A) provides that

“[p]retrial motions shall be made or filed within fifteen days after arraignment,

3

unless a different time is provided by law or fixed by the court at arraignment upon

a showing of good cause why fifteen days is inadequate.” That fifteen-day time

limitation may be extended by the trial court “[u]pon written motion at any time

and a showing of good cause” for the extension. La.Code Crim.P. art. 521(B).

The state arraigned the defendant on the second degree murder indictment

on July 28, 2014, and the defendant filed his motion to quash on August 8, 2014,

or within fifteen days of the defendant‟s arraignment. Thus, had the motion been

filed in the correct proceeding, there is no question but that it would have been

timely pursuant to La.Code Crim.P. art. 535(C).

The state argues on appeal, however, that the motion was not timely because

it was filed in the dismissed proceeding and, therefore, was never properly before

the trial court. In opposition, the defendant asserts that the state‟s argument on this

issue is not properly before the court because the state did not object in the trial

court proceedings and, therefore, the trial court was not required to and did not

address the issue. Additionally, the defendant argues that neither judicial economy

nor the interests of justice would be served with a dismissal or remand because all

of the parties were aware that the motion was to be heard on January 6, 2015, and

the trial court held a full hearing on the motion.

The record establishes that not only did the defendant file his motion to

quash in the previously dismissed manslaughter proceeding, but he never corrected

this error by filing a new motion or a certified copy of the improperly filed motion

in the proper proceeding. However, the record also reflects that at all times, the

state, the defendant, and the trial court treated the motion as if it had been filed in

the second degree murder proceeding. Given the fact that the state failed to object

at the trial on the motion, the issue is not properly before us, and we reject this

4

portion of the state‟s assignment of error. La.Code Crim.P. art. 841; Uniform

Rules—Courts of Appeal, Rule 1-3.

Statutory basis for the defendant’s motion to quash

The state next asserts that the defendant‟s motion to quash is improper

because it is not based on any of the grounds upon which a motion to quash can be

based under the law, including specifically La.Code Crim.P. arts. 532, 533, and

534. We agree that the basis for the motion is not one of those enumerated

grounds for the filing of a motion to quash as found in the appropriate provisions

of the Louisiana Code of Criminal Procedure. However, we find no merit in the

argument that the defendant‟s motion is not otherwise supported in law.

Louisiana Code of Criminal Procedure Article 532 provides the general

grounds for granting a motion to quash; La.Code Crim.P. art. 533 provides special

grounds particular to quashing a grand jury indictment; and La.Code Crim.P. art.

534 provides special grounds particular to quashing a bill of information. None of

these articles address a situation wherein a defendant challenges a criminal

prosecution based on the validity of a pretrial agreement. Thus, the state is correct

in its assertion that no article in the Louisiana Code of Criminal Procedure

provides the defendant with the relief he is seeking in this matter.

Despite the lack of direct statutory relief, the supreme court in State v. Perez,

464 So.2d 737, 739 (La.1985), held that “[t]he motion to quash is essentially a

mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do

not go to the merits of the charge.” Additionally, in State v. Franklin, 13-1489, p.

9 (La.App. 4 Cir. 6/11/14), 147 So.3d 231, 239, writ denied, 14-1326 (La. 2/13/15),

159 So.3d 460, the fourth circuit recognized that “judicial enforcement of [an]

agreement not to prosecute was properly sought through the filing of a motion to

quash.” The fourth circuit further held that while La.Code Crim.P. arts 532 and
5

534 do not include “the enforcement of agreements not to prosecute” as a ground

upon which a motion to quash may be based, the examples set forth in those

articles “are merely illustrative and far from exhaustive.” Id. at 239. We recognize

the rationale set out by the fourth circuit and conclude that a motion to quash is the

proper vehicle to enforce an agreement not to prosecute. We reject this portion of

the state‟s assignment of error as well.

Agreement between the parties

Finally, the state argues that it had no agreement with the defendant that

would have prevented it from pursuing additional or enhanced charges against him.

The evidence before the trial court on this issue included a number of exhibits and

the testimony of four lawyers: John DeRosier, the district attorney for the

Fourteenth Judicial District; Hugo Holland, an assistant district attorney for the

Fourteenth Judicial District; Brett Sandifer, a former assistant district attorney for

the Fourteenth Judicial District; and Todd Clemons, one of the defendant‟s legal

counsel.

Mr. DeRosier testified that he did not directly participate in the presentation

of evidence to either grand jury or in the prosecution of the defendant thereafter;

and he expressed an extremely limited recollection of his personal involvement in

the litigation. The defendant asserts that Mr. DeRosier participated in two

telephone conversations with the defendant‟s legal counsel wherein a discussion of

the purported agreement occurred: The first on October 30, 2013, when Mr.

DeRosier was in his office with Mr. Holland and Mr. Sandifer; and the other the

next evening as Mr. DeRosier cooked dinner at his home.1 Mr. DeRosier recalled

1
According to Mr. DeRosier, these two assistant district attorneys were assigned to try
the matter.

6

part of the home conversation, but remembered nothing of the office conversation

or the fact that it even occurred.2

According to Mr. DeRosier, he informed Mr. Clemons during the home

telephone conversation that “[b]ecause of the nature of this case, it had to go to

[the] Grand Jury[,]” and that the state would allow the defense team to present any

witnesses they “deemed appropriate” at the grand jury proceeding. Mr. DeRosier

did not recall telling Mr. Clemons that he would make no charge recommendations

and would leave everything up to the grand jury. However, he did recall Mr.

Clemons expressing a concern about the state controlling what the grand jury heard

and, thereby, controlling the verdict. He further recalled responding to Mr.

Clemons‟ concerns by saying “something to the effect that, present your witnesses

and the Grand Jury‟s going to do what it‟s going to do.”

Although he did not recall doing so, Mr. DeRosier acknowledged that he

may have told Mr. Clemons that certain “family issues” had to be considered in the

prosecution process. However, at the time of the trial on the motion, he could not

recall the specific nature of the family issues other than to say that the family “was

very concerned and had contacted [the district attorney‟s office] . . . about this

whole situation.”

With regard to the agreement claimed by the defendant, the following

exchange occurred between Mr. Clemons and Mr. DeRosier during the hearing on

the motion to quash:

Q Now, isn‟t it true, Mr. DeRosier, that you reached an agreement
ultimately with me that the case would be fairly presented to the
Grand Jury and the Grand Jury would determine the appropriate
charge?

A. Yes.
2
Mr. DeRosier did not question the occurrence of the office telephone conference. He
stated that he simply did not remember it taking place.

7

Q. Okay.

A. I don‟t know if that‟s an agreement. I made that statement.

Mr. DeRosier subsequently suggested that had he considered this conversation to

result in anything more than an affirmation of what should take place in any matter

before the grand jury, he would have taken additional steps to memorialize the

agreement by reducing it to writing. He asserted that he often spoke to defense

attorneys at his home about their cases and that this incident was no different from

those general conversations.

Mr. Holland could not remember if he participated in the office telephone

conversation, but did acknowledge having some conversations with Mr. Clemons

concerning the prosecution of the defendant. He recalled that in one conversation

Mr. Clemons asked him whether the testimony of the witnesses appearing before

the grand jury would be recorded, and he responded that all testimony except that

of the lead detective would be recorded. He also recalled Mr. Clemons asking if

the defendant could present witnesses to the grand jury, and Mr. Holland

responded that “if there was information you wanted the Grand Jury to have, if you

told me who the witnesses were, I‟d be happy to put them in front of the Grand

Jury.” He suggested to Mr. Clemons that such action might be a good thing on his

part because he was also of the opinion that the grand jury “could go either way” in

returning either a manslaughter indictment or a second degree murder indictment.

According to Mr. Holland, he accepted Mr. Clemons‟ offer to present

testimony to the grand jury for no other reason than professional courtesy. He

testified that he told Mr. Clemons to provide him a list of the proposed defense

8

witnesses together with a summary of the expected testimony of each witness.3

When questioned concerning the fact that he had issued a subpoena for the

defendant‟s wife to appear before the grand jury, Mr. Holland denied that she was

one of the witnesses offered up by the defendant. Instead, he suggested that he

intended to have her appear regardless of any concurrence or opposition of the

defendant.

When Mr. Holland was questioned by Mr. Clemons, the following exchange

took place addressing Mr. Holland‟s understanding of the parameters of any

agreement with Mr. Clemons concerning the grand jury proceeding:

Q: So, it has—it was agreed that this case would be fairly
presented to this Grand Jury and they would be allowed to determine
the appropriate charge?

A: Sir, I don‟t have agreements with defense lawyers on anything
like that, because that‟s what every Grand Jury does, the case is fairly
presented and they reach a decision.

Q: Okay.

A: So, no, we had no agreement like that. The agreement was, if
there was one, that we were going to fairly present the evidence,
which was done.

Mr. Sandifer, who was working as an assistant attorney general with the

Louisiana Attorney General‟s office at the time of the hearing on the motion to

quash, did recall the office telephone conference and Mr. DeRosier‟s participation

in that conference. He could not recall, however, whether Mr. Holland participated

in the conference; nor could he be sure that the conference occurred on October 30,

2013, as the defendant suggested.

When asked by Mr. Clemons if the parties reached an agreement in that

conference to carry the matter to the grand jury and allow the grand jury to

3
Mr. Holland explained that he needed the testimony summary because he was not
inclined to place a witness before the grand jury without having some reasonable expectation of
what that witness‟s testimony would address.
9

determine the appropriate charge, Mr. Sandifer responded that carrying the matter

to the grand jury would have been required in any event, given the nature of the

offense. Mr. Sandifer also acknowledged that Mr. DeRosier agreed to allow the

defendant to provide a list of witnesses he wanted to testify before the grand jury.

However, Mr. Sandifer explained that Mr. DeRosier did not propose this to the

defendant, but rather agreed to the defendant‟s suggestion in that regard.

Mr. Sandifer acknowledged receiving a summary of the expected testimony

of the defendant‟s proposed witnesses from the defendant‟s legal team before the

presentation to the first grand jury. The summary was structured as numbered

factual points rather than as a narrative, and was accompanied by a cover letter

from Mr. Clemons dated November 13, 2013, wherein Mr. Clemons stated: “Brett,

attached are my notes/talking points. Let me know if you get them or have any

questions.”4 None of the four individuals listed were witnesses to the shooting

itself, and their proposed testimony provided background material more than

anything else. However, this background information, if true, provided a strong

picture of the defendant‟s motivation for shooting Mr. Harris. Mr. Sandifer

acknowledged at the trial on the motion that before the four names were submitted,

he had no knowledge of their involvement in the circumstances surrounding the

offense. The defendant‟s wife was not one of the proposed witnesses.

When questioned by Mr. Clemons concerning his understanding of the

parameters of any agreement between defense counsel and the state, Mr. Sandifer

responded as follows:

Q: And the agreement that was reached was that this Grand Jury
would be presented the pertinent evidence and they would be allowed
to determine the appropriate charge?

4
The cover letter and the testimony summary were introduced as exhibits in the hearing
on the motion to quash.
10

A: Right.

Q: Okay.

A: We were going to present them with a murder indictment and a
manslaughter indictment and they were going to decide on which
one—yeah, what‟s the appropriate charge.

Mr. Clemons recalled that he had two telephone conversations with Mr.

DeRosier: the first being the office conference; and the second being the telephone

call the next day to the district attorney‟s home. According to Mr. Clemons,

during the office conference Mr. DeRosier, and not the defense team,

recommended that the matter be presented to the grand jury for a decision

concerning how to charge the defendant; and that Mr. DeRosier offered to allow

him to present evidence to the grand jury. In response to his question concerning

the recording of witness testimony, Mr. Clemons asserted that Mr. Holland stepped

in and stated that all testimony, except that of the lead detective, would be recorded.

When asked why the state simply did not file a manslaughter bill of

information if it considered that to be the appropriate charge, Mr. Clemons

responded that the issue did not come up in the office conference, but that he

broached that very issue with Mr. DeRosier the next evening in the second

telephone conversation. According to Mr. Clemons, Mr. DeRosier responded that

he had “family issues” and that he had to take it to the grand jury. Mr. Clemons

took that to mean that Mr. DeRosier intended to use the grand jury as a cover for

the action he intended to take. When questioned by the state, the following

exchange transpired concerning Mr. Clemons‟ understanding of the agreement:

Q: Okay. And your testimony here today is that there was an
agreement for manslaughter—somebody told you that manslaughter
was going to be the final charge forever; is that what you‟re testifying
to, sir? I‟m trying to get clarity here on what your perceived
agreement was.

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A: Okay. I don‟t think you heard me say that, Ms. Sigler. I‟ll say
it again. Our agreement [was] that the case would be fairly presented
to the Grand Jury, that this Grand Jury would determine that
appropriate charge. And the record is clear, that Grand Jury
determined that manslaughter was the appropriate charge. So, no,
there was no agreement, and I don’t think you think there was an
agreement that this man—that this Grand Jury would come back with
manslaughter. No, the agreement that the case would be fairly
presented with our cooperation, and that we would let this Grand Jury
decide. That Grand Jury decided manslaughter, and that agreement
was reneged on by somebody who had the power to renege on it.

(Emphasis added.)

Thus, the undisputed facts are that the offense occurred on September 27,

2013, and less than two months thereafter, the defendant‟s counsel contacted the

district attorney by telephone on behalf of his client. Based on the discussions that

transpired in the October 30, 2013 telephone conference, Mr. Clemons informed

the defendant that the criminal charge would be fairly presented to a grand jury

which would determine the appropriate charge based on the evidence before it,

either second degree murder or manslaughter. While the defendant takes the

position that implicit within the agreement was the understanding that the state

would not later seek a new indictment even if new evidence were to become

available, he acknowledges that none of the three representatives of the state he

communicated with specifically made any such assurance. Additionally, the

defendant‟s counsel sought, and obtained, an agreement with the state that he could

present witness testimony before the grand jury. The only condition was that he

would provide the state with a summary of the anticipated testimony in advance.

The defendant‟s counsel followed this office conversation with a personal

telephone call to the district attorney after office hours the next day. Mr. Clemons

telephoned Mr. DeRosier at his home because his experience as a federal

prosecutor caused him to be aware of the influence a prosecutor has in the grand

jury, and he wanted assurances that the state would not seek the more severe
12

charge behind the closed doors of the grand jury process. He received that

assurance from Mr. DeRosier and appeared satisfied with that assurance.

The grand jury heard the evidence on November 14, 2013, or two weeks

after the conversations between defense counsel and the district attorney‟s office,

and over two months after the criminal act. After hearing the evidence, the grand

jury indicted the defendant for manslaughter. Approximately seven and one-half

months later, on June 26, 2014, a new grand jury heard evidence on the same

criminal act and indicted the defendant for the more severe offense of second

degree murder. While the state asserts that the presentation to the second grand

jury involved evidence not available at the first grand jury proceeding, no evidence

presented at the hearing on the motion to quash suggests the content of this new

evidence.

In reasons set forth in its ruling on the motion to quash, the trial court

accepted, as fact, the assertion that the victim‟s family was pressuring the state to

indict the defendant for second degree murder “even though the circumstances of

this case, at least on the surface and based on what was known at the time,

indicated that Manslaughter was the more appropriate charge” and that “the desired

result from both the defense and prosecutors of the initial grand jury proceeding

was a Manslaughter indictment.”

The trial court then concluded that when the defendant decided to

voluntarily provide testimony from defense witnesses, including the defendant‟s

wife, he “revealed information „not otherwise available to the state‟ based on the

implicit understanding that both sides would live with the result of the initial grand

jury[,]” and regardless of whether or not the information benefited the state, the

surrender of this defense information caused the decision of the first grand jury to

be binding on the state.
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In reaching its ruling, the trial court relied primarily on the concurring

opinion in State v. Tanner, 425 So.2d 760 (La.1983). In that case, the defendant

had been involved in an automobile accident in which both the occupants of the

other vehicle were killed. The state initially charged the defendant by bill of

information with two counts of negligent homicide, but after filing the bill of

information, brought the case to a grand jury. After considering all of the evidence

presented, that grand jury declined to indict the defendant for any criminal offense.

Despite the grand jury‟s rejection of any charges against the defendant, the state

continued to pursue prosecution under the previously filed bill of information.

At the trial on the motion to quash the bill of information, the defendant‟s

counsel testified that an assistant district attorney approached him after the filing of

the bill of information and suggested that if the defendant and one of his witnesses

would testify before the grand jury, and if the grand jury declined to indict the

defendant, the state would dismiss the bill of information. The defendant accepted

the offer and he and another witness voluntarily testified before a grand jury.

The assistant district attorney handling the charges for the state testified that

“he thought a grand jury would be to the state‟s advantage because it would

eliminate the time and expense of a trial if there were a good defense to the case.”

Id. at 762. While denying that he ever specifically promised that he would dismiss

the bill of information, he admitted that the defendant‟s attorney “could logically

have concluded that the charges would be dismissed if the grand jury report was

favorable.” Id.

In granting the motion to quash, the supreme court stated that “[w]hen a

district attorney or assistant district attorney makes a good faith bargain with a

person accused of a crime and defendant, in reliance on that bargain, relinquishes

such a fundamental right as the privilege against self-incrimination, the state
14

cannot repudiate the bargain.” Id. at 763. However, the concurring opinion went

even further than the majority:

In my opinion, this case is better decided on principles of
judicial integrity, to-wit: our judicial system cannot countenance
prosecutorial misconduct which puts an unwary defendant at an unfair
disadvantage. We cannot allow the state to enter into a supposed
bargain which causes the defendant to reveal information not
otherwise available to the state in carrying its burden of proving the
defendant‟s guilt in a criminal prosecution, only to have the state
renege on the deal once it discovers chinks in the defendant‟s tactical
armor.

Id. at 764. (Blanche, J. concurring).

In State v. Louis, 94-761 (La. 11/30/94), 645 So.2d 1144, the supreme court

revisited the issue of the enforcement of pretrial agreements. In that case, the

defendant‟s counsel approached the state concerning the defendant providing

information about his illegal narcotics suppliers in Texas in exchange for the

dismissal of charges against him. After a number of meetings, the defendant

provided the state with information, but the state charged him anyway. The

supreme court held that “because of defendant‟s relinquishment of his right against

self-incrimination, any constitutional considerations flow in favor of immunity

from prosecution.” Id. at 1151. In reaching this conclusion, the supreme court

stated the following concerning the validity of agreements similar to that which is

before us:

In determining the validity of agreements not to prosecute or of
plea agreements, the courts generally refer to rules of contract law.
State v. Nall, 379 So.2d 731 (La.1980); State v. Lewis, 539 So.2d
1199 (La.1989). Contractual principles may be helpful by analogy in
deciding disputes involving plea agreements. Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987); Cf. Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). However,
the criminal defendant‟s constitutional right to fairness may be
broader than his or her rights under contract laws. State v. Nall, 379
So.2d at 734 (Dennis, J., concurring). Moreover, commercial contract
law can do no more than to serve as an analogy or point of departure,
since “plea agreements are constitutional contracts.” Ricketts v.

15

Adamson, 483 U.S. at 16, 107 S.Ct. at 2689. The Court further stated
in Ricketts:

The values that underlie commercial contract law and
that govern the relations between economic actors, are
not coextensive with those that underlie the [D]ue
Process Clause, and that govern relations between
criminal defendants and the State. Unlike some
commercial contracts, plea agreements must be construed
in light of the rights and obligations created by the
Constitution.

483 U.S. at 16, 107 S.Ct. at 2689.

In State v. Nall, 379 So.2d 731 (La.1980), the prosecutor agreed
to reduce a murder charge to manslaughter with a ten-year sentence in
exchange for Nall‟s promise to testify against a companion in
accordance with Nall‟s statement that his companion shot the victim
during a residential burglary. After this agreement was reached, Nall
gave an entirely different statement, asserting that he hired the
companion to assist in murdering the victim because of Nall‟s
romantic involvement with the victim‟s wife, and that he fired the first
shot. This court held that when Nall‟s statement which prompted the
agreement turned out to be false, the agreement fell because of failure
of cause. The decision further noted that the agreement did not
involve a bargain for immunity which is frequently troublesome
because of the bargain‟s forced infringement on the right against self-
incrimination. Implicit in the court‟s decision was the consideration
that the prosecutor‟s denial of immunity under the circumstances,
irrespective of contract principles, did not violate any concepts of
fundamental fairness.

In State v. Lewis, 539 So.2d 1199 (La.1989), the defendant
entered into a written agreement with the district attorney of Rapides
Parish and others in a complex factual situation involving separate
state charges in several parishes as well as federal charges. The
defendant‟s efforts led to the recovery of several tractors stolen from
Rapides Parish valued in excess of $125,000, and he admitted
participation in and gave information about several other crimes.
However, when he denied responsibility for the arson of his former
girlfriend‟s vehicle, the state concluded he had breached his plea
bargain, and several prosecutions went forward. This court noted that
the defendant enjoyed “equitable immunity” as to the prosecution in
Rapides Parish. As to the prosecutions in other parishes, this court
held that the contract failed because both parties believed they
bargained for something other than what they were actually to get;
however, on the basis of constitutional fundamental fairness, this
court barred use of the incriminating statements in those prosecutions

16

because the statements were given under the reasonable belief that
they would not be used against him.[5]

Id. at 1148 (footnote omitted).

On appellate review, great deference must be given to the findings of fact

made by the trial court while ruling on a petitioner‟s motion to quash. In fact, we

will not reverse those findings “unless there is no evidence to support [them].”

State v. Wells, 08-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580 (emphasis added).

Still, the finding of facts we review may only reach properly raised pre-trial issues

and not the defenses on the merits of the pending charge. State v. Byrd, 96-2302

(La. 3/13/98), 708 So.2d 401. Our deference stems from the constitutional

limitation on our appellate jurisdiction: “In criminal cases [an appellate court‟s]

jurisdiction extends only to questions of law.” La. Const. art. 5, § 10(B). This

limited scope of review also aligns with the “complementary role of trial courts

and appellate courts.” State v. Love, 00-3347, p. 9 (La. 5/23/03), 847 So.2d 1198,

1206. This is because the judges presiding in the trial court have the unique

“opportunity to observe the witnesses and weigh the credibility of their testimony.”

Wells, 45 So.3d at 581. Still, “[a] trial court necessarily abuses its discretion if its

ruling is based on an erroneous view or application of the law.” Franklin, 147

So.3d at 240. In that situation, we need not give such heightened deference to the

trial court‟s ruling. Id.

With regard to the trial court‟s factual findings, we note that while the record

does contain some vague discussion concerning pressure from the victim‟s family,

the evidentiary record does not support a factual finding that an indictment for

manslaughter was considered by all to be the appropriate disposition in October

and November of 2013. Neither Mr. DeRosier nor Mr. Clemons expressed an

5
The supreme court followed its discussion of Lewis with a discussion of Tanner, but
since Tanner has previously been discussed, we have not reproduced that discussion.
17

opinion on the appropriate charge; Mr. Holland was of the opinion that the grand

jury could easily go either way; and Mr. Sandifer was of the opinion that the

criminal act was clearly one of second degree murder. Additionally, with regard to

the trial court‟s reliance on the defendant allowing his wife to testify, the record

establishes that she was not one of the witnesses offered to the state, and Mr.

Holland made it clear that he intended to call her as a witness before the grand jury,

regardless of any agreement with the defense team.

The only sentence provided for one convicted of second degree murder is

“life imprisonment at hard labor without benefit of parole, probation, or suspension

of sentence.” La.R.S. 14:30.1(B). Additionally, La.Code Crim.P. art. 437

provides, in pertinent part, that “[t]he grand jury shall inquire into all capital

offenses and offenses punishable by life imprisonment[.]” As pointed out by the

witnesses for the state, given the potential charge of second degree murder, the

matter had to be presented to a grand jury. Additionally, the prosecutor‟s moral,

ethical, and legal responsibility is to present a case fairly to the grand jury. Thus,

that part of the agreement the defendant obtained from the state was nothing more

than what would otherwise be required.

We also find that the trial court erred as a matter of law in relying on the

concurring language set out in Tanner, 425 So.2d 760. The jurisprudence is

consistent in finding the existence of a binding agreement between the state and a

defendant only when the defendant relinquishes a constitutional right as part of an

agreement. The majority of the supreme court in Tanner choose not to expand the

existing rule despite the concurring opinion. We follow the supreme court‟s

jurisprudence.

In the case now before us, the defendant did provide the state with evidence

which he considered favorable to him, but he did not relinquish his right against
18

self-incrimination by testifying; nor did he relinquish any other fundamental

constitutional right. Additionally, the “[s]pousal privilege is not constitutional in

nature.” State v. Hughes, 587 So.2d 31, 40 (La.App. 2 Cir. 1991), writ denied, 590

So.2d 1197 (La.1992).

DISPOSTION

For the foregoing reasons, we deny the motion of the State of Louisiana to

supplement the appellate record, reverse the trial court‟s grant of the motion to

quash dismissing the second degree murder indictment against the defendant,

Woodrow Karey, Jr., also known as Woodrow Karey, II. We remand the matter to

the trial court for further proceedings.

MOTION TO SUPPLEMENT DENIED; REVERSED AND
REMANDED.

19

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-522

STATE OF LOUISIANA

VERSUS

WOODROW KAREY, JR. A/K/A WOODROW KAREY, II

COOKS, J., dissenting.

I respectfully dissent from the portion of the majority opinion reversing the

grant of Defendant’s motion to quash. The facts established on November 14,

2013, Defendants was indicted for Manslaughter. On that same date the grand jury

returned a “no true bill” on the charge of Second Degree Murder. Despite that,

seven months later, Defendant was indicted by another grand jury on the charge of

Second Degree Murder for the same crime. Defendant then filed his Motion to

Quash the second indictment alleging it violates the understanding between he and

the State that all would be bound by the result of the initial grand jury. The trial

court agreed with Defendant, and granted the Motion to Quash.

The trial court heard testimony from the prosecutors and defense counsel

regarding the many conversations in October and November of 2013 leading up

the initial grand jury proceeding. The trial court specifically found there “was a

joint effort to steer the grand jury towards a Manslaughter indictment.” My review

of the record find ample support for this conclusion. The district attorney

acknowledged it may have “suggested” that if Defendant testified and a no true bill

was issued, the bill of information would be dismissed. There was also clear

testimony from an assistant district attorney that defense counsel “could logically

have concluded” that the charged would be dismissed once the grand jury returned

a no true bill on the charge of Second Degree Murder. The trial court relied on

these “admissions’ by the State to find a deal binding the State to the grand jury’s

result. I find no basis for the majority to reverse that decision.

The record established, in exchange for this push to get an indictment for

Manslaughter, Defendant provided specific information regarding what witnesses

would say, provided a specific list of witnesses and allowed his wife to testify

without invoking her right to spousal privilege. By providing the list of witnesses

and the key points of each witnesses’ testimony, the defense gave the prosecution

an advantage they would not otherwise have had when the matter was later brought

back to a second grand jury. This information was only given based on the

implicit understanding that both sides would be bound by the initial grand jury’s

determinations. The State violated that agreement, and the trial court did not abuse

its discretion in granting the motion to quash.