State v. Higginbotham

• Decision Date: 22 June 2012
• Docket Number: No. 46,975–KA.,46,975–KA.
• Citation: 122 So.3d 1
• Parties: STATE of Louisiana, Appellee v. Bobby D. HIGGINBOTHAM, Appellant.
• Court: Court of Appeal of Louisiana — District of US

122 So.3d 1

STATE of Louisiana, Appellee

v.Bobby D. HIGGINBOTHAM, Appellant.

No. 46,975–KA.

Court of Appeal of Louisiana,Second Circuit.

April 25, 2012.

Rehearing Granted May 10, 2012.

Opinion on Rehearing June 22, 2012.

Rachel I. Conner, New Orleans, LA, Harry Daniels, III, for Appellant.

Bobby D. Higginbotham, Pro Se.

James E. Paxton, District Attorney, Linda K. Watson, Anita T. Mack, Damon D. Kervin, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS, and CARAWAY, JJ.

CARAWAY, J.

[2 Cir. 1]On May 19, 2010, a six-person Tensas Parish jury convicted Bobby Higginbotham of malfeasance in office and felony theft for his actions as mayor of the Town of Waterproof. La. R.S. 14:134 and 14:67. During a lengthy recess of the trial and after the full presentation of the state's case on three charges contained in the indictment, a partial mistrial was granted on the charge of public contract fraud, a violation of La. R.S. 14:140. Higginbotham received concurrent sentences of five years at hard labor, two years suspended for the malfeasance conviction and seven years at hard labor, three years suspended for felony theft. Higginbotham appeals his convictions and sentences including a claim that the granting of the partial mistrial on the public contract fraud charge was in error. For the following reasons, we reverse the convictions.

Facts and Procedural History

In January of 2007, Bobby Higginbotham took office as Mayor of the Town of Waterproof (the “Town”), Louisiana, a Lawrason Act municipality, located in Tensas Parish. In February of 2009, a Tensas Parish grand jury issued a 44–count indictment charging Higginbotham with 21 counts of felony theft, 18 counts of malfeasance in office, 4 counts of public salary deduction and one count of unauthorized use of a movable.

Immediately before opening statements in the trial of this case, the state amended the grand jury indictment to reduce the charged offenses to only three counts, including, for the first time, a public contract fraud charge [2 Cir. 2]under La. R.S. 14:140. Those counts and their descriptions contained in the written amended bill of indictment included:

1) Public Contract Fraud due to Higginbotham's use of his power or position “by instructing Town of Waterproof employees to purchase goods and services from a business or partnership for the Town of Waterproof of which [Higginbotham] is a member.”

2) Malfeasance in Office by the intentional and unauthorized use of the Town's funds for personal travel unrelated to town business.

3) Felony theft “by increasing [Higginbotham's] salary in an amount in excess of $500.00 without the approval and/or knowledge of the Board of Alderman.” Higginbotham's salary authorized by ordinance was $12,000, yet he later was paid a salary of $36,000.

The name of Higginbotham's purported business out of which the public contract fraud occurred was Higginbotham's Place, a convenience store which sold gas. From Higginbotham's assignments of error now raised, the public contract fraud charge, which was ultimately dismissed during trial by the granting of a partial mistrial, will be central to our ruling in this appeal.

After the removal of Higginbotham's initial counsel in March 2009, due to a conflict of interest, Higginbotham sought numerous continuances of the case relating to his purported unsuccessful efforts to obtain counsel. In early 2010, assessing Higginbotham's actions as delay tactics, the court appointed a public defender as standby counsel for Higginbotham, and the case was set for trial on March 29, 2010.

On March 15, 2010, the recently appointed standby counsel filed a motion for discovery and Higginbotham followed with a similar pro se motion on March 17, 2010. Both motions were set for hearing on March 22, 2010. By the date of the hearing, the state had produced the “majority of discovery.” On March 26, 2010, Higginbotham filed a motion to continue [2 Cir. 3]on the grounds that he had not had time to review the evidence provided by the state. Hearing on the motion was set for the first day of trial.¹

On March 29, 2010, the state filed notice of its intent to use evidence of other crimes, specifically seeking to introduce evidence relating to the Mayor's payment of bonuses to police officers for their issuance of a high volume of traffic tickets.

Prior to the beginning of trial on March 29, 2010, the court denied Higginbotham's motion for continuance as not being well grounded and ordered the state to provide Higginbotham with any remaining discovery it had in its possession.² As evidence contained in the discovery responses was introduced by the state, Higginbotham continued to object on the grounds that he had not been able to review it.

After the trial had proceeded through two days of testimony for the state's case,³ on March 31, 2010, Higginbotham sought writs to this court on the issue of a continuance regarding his lack of time for preparation. This court stayed the trial proceedings on April 1, 2010, and ordered the state to submit a response and the trial court to submit a written per curiam to the court regarding the issues of the proceedings raised by defendant. At [2 Cir. 4]the trial court, simultaneously with this court's ruling on April 1, recommencement of the fourth day of trial was actually delayed by the hospitalization of the defendant with chest pains. Because of that development the trial court itself recessed the proceedings until Higginbotham's writ application and his health issue were resolved.

After reviewing the trial court's per curiam, this court granted Higginbotham's writ on April 8, 2010, with regard to the motion for continuance, directing the trial court to:

grant a recess of the trial for a minimum of 30 days to allow the defendant an opportunity to fully review the materials provided in response to the motion for discovery and prepare a defense to the indictment(s) charging public contract fraud and felony theft.

In April of 2010, during the recess of the trial, Higginbotham filed a motion for mistrial based upon the defectively transcribed testimony of two state witnesses which he claimed prejudiced his defense. During presentation of the testimony of Ted Higginbotham and Dr. Glenda Richardson, the court's recording equipment malfunctioned. Thus, none of Ted Higginbotham's testimony was transcribed and only part of Richardson's testimony was transcribed. On May 7, 2010, by written judgment, the court denied Higginbotham's motion for mistrial. Higginbotham sought writs to this court which, on the morning of May 18, 2010, ordered the granting of a partial mistrial on the public contract fraud case. The state's agreement to the partial mistrial was noted in this court's ruling as follows:

After reviewing both the application and the State's opposition, and in light of the State's agreement that the trial court should grant a partial mistrial as to Count One, this writ application is hereby [2 Cir. 5]granted in part to declare a partial mistrial as to Count One of the indictment charging Public Contract Fraud.

Simultaneously, on the afternoon of May 18, 2010, the trial court called a hearing on various motions including the mistrial. At the hearing, the state also advised the trial court of its agreement to a partial mistrial as to the public contract fraud charge only. The defense objected and requested a mistrial on all counts. The trial court granted the motion in part for the charge of public contract fraud, coinciding with this court's order of that date.

Trial resumed on May 19, 2010, and the state again immediately rested its case. For the first time during the delayed trial, Higginbotham was represented by counsel and the standby counsel arrangement ended. On that date, the state filed a Motion to Withdraw Evidence from the record seeking to withdraw four exhibits which were introduced during the testimony of Ted Higginbotham and seven other state exhibits which were introduced into evidence during the presentation of the state's case. On May 19, 2010, the court signed an order withdrawing these exhibits as well as Exhibit D–1, which was introduced into evidence during Ted Higginbotham's testimony. The exhibits which were removed from evidence upon the partial granting of a mistrial included:

1) State's Exhibit 3, introduced into evidence during the testimony of Lee Harville, a lieutenant with the Louisiana State Police and the state's first witness. Harville described S–3 as “original and/or copies of receipts where it appears that things were charged to Higginbotham's Place.”

2) State's Exhibit 7, introduced into evidence during Harville's testimony. Harville described E–7 as “the stuff that was seized by Trooper Todd Cummings, and brought back and receipt it.”

[2 Cir. 6]3) State's Exhibit 8, introduced into evidence during Harville's testimony. Harville described the document as the merchant participation agreement of US 65 South Partnership which was signed by Bobby Higginbotham as its principal officer. Further, Harville testified that the document showed the merchant application which identified Bobby Higginbotham as the principal owner of US 65 Partnership which had gone by the name of Higginbotham's Place, One Place Higginbotham and US 65 Partnership. Harville testified that “everybody referred to it as the Mayor's store.”

Notably Higginbotham objected to the introduction of S–8 on the grounds that it had no bearing on Town affairs. The prosecutor then stated that the evidence was relevant to public contract fraud and that the state “must establish that he is an owner in the business which is known as US 65 Partnership, Higginbotham's Place and a couple of other names.”

4) State's Exhibit 9—introduced during the testimony of Harville who described the document as being titled, “US 65 Partnership Property [sic] and Loss, January through December, 2007.”

5) State's Exhibit 20—introduced during the testimony of Harville who described...