State v. Kotwitz

• Citation: 549 So.2d 351
• Decision Date: 23 August 1989
• Docket Number: No. 20514-KA,20514-KA
• Parties: STATE of Louisiana, Appellee, v. Jerry KOTWITZ aka Jerry Kattwitz aka Jerry Kottwitz aka Jerry Rosen, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 351

549 So.2d 351

STATE of Louisiana, Appellee, v. Jerry KOTWITZ aka Jerry Kattwitz aka Jerry Kottwitz aka

Jerry Rosen, Appellant.

No. 20514-KA.

Court of Appeal of Louisiana,

Second Circuit.

Aug. 23, 1989.

Rehearings Denied Sept. 21, 1989.

Jay Nolen, Monroe, Hocker, Rodriquez & Morrow by Wesley H. Hocker, Houston, Tex., Robinson & Robinson by Donald J. Robinson, Monroe, and Jim Skelton, Houston, Tex., for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, T.J. Adkins, Dist. Atty. and Sp. Prosecutor, Appointed by Office of Atty. Gen., and Dan J. Grady, III, Asst. Dist. Atty., Ruston, for appellee.

Before HALL, C.J., and MARVIN and SEXTON, JJ.

HALL, Chief Judge.

The defendant, Jerry Kotwitz, was charged by bill of information with three counts of inciting a felony in violation of LSA-R.S. 14:28, and two counts of corrupt influencing in violation of LSA-R.S. 14:120. Following a jury trial, the defendant was found guilty of three counts of inciting a felony, one count of corrupt influencing and one count of attempted corrupt influencing. The defendant was sentenced to one year imprisonment at hard labor and a $1000 fine on each of the three counts of inciting a felony, four and one-half years imprisonment at hard labor, and a $5000 fine on the corrupt influencing count, and 18 months' imprisonment at hard labor and a $2500 fine on the attempted corrupt influencing count. The sentences were ordered to run concurrently. The defendant appealed from the convictions and sentences. As two of defendant's assignments of error have merit, the defendant's convictions on Count 3 for inciting a felony and Count 4 for corrupt influencing will be reversed. The remaining assignments of error have no merit and defendant's convictions and sentences on the three remaining counts will be affirmed.

Evidence

In the fall of 1984, James A. Norris, Jr., defeated the incumbent, Johnny Carl Parkerson, in the election for district attorney for the Fourth Judicial District. District Attorney Norris took office on January 1, 1985. (Trial testimony of DA Norris, R. p. 476). After the election, but prior to assuming office, district attorney Norris, while shopping for a vehicle at Ryan's Chevrolet in Monroe, met Bernard Presley, a salesman at Ryan. Presley had his picture taken with Norris and the photograph hung for a while at the dealership. (Trial testimony of Bernard Presley, R. p. 381-382; trial testimony of DA Norris, R. p. 477).

Sometime thereafter, the defendant heard rumors from either Andre Benjamin or Reginald "Fats" Brass that Presley claimed he had a photograph and information that connected DA Norris with cocaine use and homosexual activity. (Trial testimony of the defendant, R. pp. 659-660). Meanwhile, Presley had moved to Houston, Texas. (Trial testimony of Bernard Presley, R. p. 374). The defendant attempted to contact Presley in Houston, but he was unsuccessful. (Trial testimony of Bernard Presley, R. p. 458). Presley moved back to Monroe in 1986. (Trial testimony of Bernard Presley, R. p. 373).

Presley, who was living at the same apartment complex as defendant, ran into the defendant in June, 1987, and offered to give him a resume for the purpose of seeking employment with the defendant. The defendant did not discuss employment with Presley, but told him that he had heard, while having lunch with Det. Major Donald M. Hill of the Monroe Police Department, that there was a warrant out for Presley's arrest. It was later discovered that there was no warrant out for Presley's arrest, although a complaint against Presley had been made to the Monroe Police. (Trial testimony of Bernard Presley, R. pp. 378-379).

Several days later, the defendant and Presley met again, with the defendant asking Presley if he wanted to make some money. The defendant also said "We'd like to get [district attorney Norris] out of office." (Trial testimony of Bernard Presley, R. pp. 380-381). The defendant thought Presley had prior knowledge of district attorney Norris' use of drugs and sexual life, and told Presley that if he could get drugs on district attorney Norris or information about Norris and any homosexual activities, Presley would be paid a fee. (Trial testimony of Bernard Presley, R. pp. 381, 383-384). A couple of days later, Presley and the defendant agreed on a price of $7000 total, $2000 up front to be provided to Presley in exchange for this information. Presley testified that, if given the $2000, he would have left town. (Trial testimony of Bernard Presley, R. p. 387). He actually had no such information about Norris.

At the next meeting between Presley and the defendant, the two discussed acquiring cocaine to plant on district attorney Norris and on someone within the district attorney's office. Presley lied to the defendant and told him that he knew a black female in Norris' office. The defendant at first told Presley he would get the cocaine, but later agreed only to finance it. (Trial testimony of Bernard Presley, R. pp. 386-387).

Around the time the defendant and Presley first met, the defendant went to Major Hill and related to Major Hill the identity of Presley and the information about district attorney Norris. Major Hill was a close friend and business associate of defendant. Major Hill recommended that the defendant go to the FBI. (Trial testimony of Donald M. Hill, R. p. 634). Major Hill contacted Special Agent John M. Tanzy of the FBI. Shortly thereafter, the defendant met with Agent Tanzy, and discussed his knowledge of a person who had allegedly sold cocaine to DA Norris and an assistant district attorney. Agent Tanzy told the defendant that the FBI needed to meet his "source", that any expenditure by the defendant for the purchase of cocaine would be illegal, and if such a transaction were to take place, the FBI would want to control it. The defendant was specifically told not to furnish drugs or money for this scheme. (Trial testimony of John M. Tanzy, R. p. 532).

During the next several weeks, Presley and the defendant met regularly. The defendant found out that there was no black female investigator in the district attorney's office. (Trial testimony of Bernard Presley, R. pp. 388-389). Presley told the defendant that his contact was not an investigator, but Presley said he did know a black female who worked in the district attorney's office. As Presley did not have a contact in the district attorney's office, he stalled for time, refusing to give the name of his non-existent contact in the district attorney's office until the defendant told Presley who the defendant's associates in the scheme were. (Trial testimony of Bernard Presley, R. p. 389).

Around this time, Presley began to fear for his own safety and for the safety of his daughter. He knew that the defendant wanted more information and Presley did not have a black female contact in the district attorney's office, nor did he have any scandalous information on district attorney Norris. For this reason Presley, on August 13, 1987, contacted Monroe Attorney Oscar Barnes. (Trial testimony of Bernard Presley, R. pp. 390-393). Mr. Barnes contacted district attorney Norris and arranged a meeting between Presley and Norris. At two meetings, on August 13th and 14th, Presley explained the situation regarding the defendant to district attorney Norris. At that time, district attorney Norris offered Presley limited immunity if Presley would assist in an investigation of the defendant. Presley agreed to wear a body microphone during future meetings with the defendant. Additionally, district attorney Norris provided Presley with the name of a black female assistant district attorney, Kathy McCoy, to use as his so-called contact. (Trial testimony of Bernard Presley, R. p. 403; trial testimony of DA Norris, R. pp. 477-480).

Following the meeting with district attorney Norris, Presley, as agreed, began to wear a body microphone and his conversations with the defendant were thereafter recorded. At this time, Presley had a theft charge pending in the Monroe City Court. Presley told the defendant that assistant DA McCoy had a cocaine habit, and the defendant proposed that they "test" Ms. McCoy by getting her to arrange for Presley's theft charge to be dismissed. This was to be in exchange for supplying Ms. McCoy with some cocaine. The defendant gave Presley $125 to purchase the cocaine. (Tape, August 19, 1987; trial testimony of Bernard Presley, R. p. 424; trial testimony of the defendant, R. p. 657; trial testimony of DA Norris, R. p. 490; trial testimony of Kathy McCoy, R. p. 471). Presley delivered the money to deputy sheriffs. To satisfy the defendant that Presley actually knew Ms. McCoy, Presley and Ms. McCoy were to have lunch together on August 19th at which time the cocaine was supposedly to be delivered to her. As previously agreed with the defendant, Presley called the defendant and left a message with his answering service regarding the time and place of Presley's lunch meeting with Ms. McCoy. Presley and Ms. McCoy were under the impression that the defendant, or an associate of his, would be at the restaurant to verify that Presley knew Ms. McCoy. The only person Presley and Ms. McCoy knew at the restaurant, and who would have known that Ms. McCoy was an assistant district attorney, was former DA Johnny Carl Parkerson. (Trial testimony of Bernard Presley, R. pp. 424-425; trial testimony of Kathy McCoy, R. pp. 471-472).

On August 18th or 19th, DA Norris informed FBI Special Agent Ken Roberson of their investigation of the defendant. Agent Roberson then briefed Agent Tanzy on this investigation, at which time Roberson learned of the prior meetings between special agents Tanzy and Jim Burks of the FBI and the defendant. On August 25th, the defendant spoke with Agents Tanzy and Burks, telling them "the cocaine deal" had "gone down" between his "informant" (Presley) and the "contact" in the district attorney's office (McCoy), but that the...