State v. Louis

• Decision Date: 30 November 1994
• Citation: 645 So.2d 1144
• Parties: 94-0761 La
• Court: Louisiana Supreme Court

Page 1144

645 So.2d 1144

94-0761 La. 11/30/94

STATE of Louisiana v. Joseph LOUIS.

No. 94-K-0761.

Supreme Court of Louisiana.

Nov. 30, 1994.

Eugene P. Cicardo, Jr., Alexandria, for defendant.

Richard P. Ieyoub, Atty. Gen., Charles F. Wagner, Dist. Atty., Thomas M. Yeager, Kathrine S. Williamson, Alexandria, for respondent.

[94-0761 La. 1] LEMMON, Justice ^*.

This case comes before the court on writ of certiorari granted to review the ruling of the trial court which denied defendant's motion to quash the indictment for possession of over 400 grams of cocaine and to enforce an agreement by the prosecutor to forego prosecution of defendant in exchange for defendant's cooperation in identifying and obtaining evidence against his drug source. The principal issues are whether defendant's attorney and the prosecutor reached an agreement and whether defendant performed in accordance with the agreement so as to entitle him to immunity from prosecution for the particular offense.

[94-0761 La. 2] Facts

On March 28, 1991, Michael Austin came out of a bus station in Alexandria and entered a car driven by defendant. When police officers approached Austin, he stepped out of the car, dropping a tote bag onto the ground. A narcotics dog signaled the presence of drugs in the bag, but Austin refused a request for consent to search. The officers subsequently searched the bag pursuant to a warrant and found 1.69 pounds of cocaine. Austin was arrested and charged with possession of cocaine, although he claimed the bag belonged to defendant. The officers interrogated defendant, but filed no charges against him at the time.

Shortly thereafter, defendant's attorney approached an assistant district attorney about the possibility of working out an agreement to dismiss the charges against Austin and to refrain from prosecuting defendant in exchange for defendant's information about drug sources in Houston, Texas. Although numerous additional meetings followed and defendant tendered some information to law enforcement agents, the prosecutor eventually refused to grant defendant immunity and obtained a grand jury indictment against defendant.

Defendant filed a motion to quash the indictment, based on the agreement with the prosecutor and his performance under the agreement. Both sides presented evidence at the hearing on the motion.

The trial court denied the motion, finding that although there were preliminary steps toward an agreement, "there was never an agreement consummated." While the court found that the prosecutor promised immunity for defendant on these charges if the Drug Enforcement Administration (DEA) accepted defendant to work with the agency in Houston and if defendant did in fact cooperate with the DEA, the judge concluded there was no evidence that defendant cooperated with the DEA or did anything to his detriment. Defendant then entered [94-0761 La. 3] a guilty plea, reserving his right under State v. Crosby, 338 So.2d 584 (La.1976) to appeal the denial of his motion.

The court of appeal affirmed the conviction and sentence. 634 So.2d 1237. The court held that the parties reached the preliminary agreement found by the trial court and that the evidence established the DEA was willing to work with defendant, but there was no evidence that defendant fulfilled his obligations under the agreement or that he relied to his detriment on the prosecutor's representations. This court granted defendant's application for certiorari. 640 So.2d 1320.

Evidence on Motion

At the hearing on the motion, the prosecutor testified that he conducted discussions with defense counsel, beginning in June of 1991, concerning the dismissal of the charges against Austin and defendant in exchange for defendant's revealing his drug source in Houston to the DEA and assisting in obtaining evidence against the source. The prosecutor, who testified that he was always interested in pursuing drug offenders higher up in the chain of distribution, agreed that he would grant defendant immunity from prosecution for the March 1991 incident if the DEA accepted defendant to work with the agency and if defendant in fact cooperated with the DEA. The prosecutor informed the defense attorney that defendant would have to be interviewed by a DEA agent in Houston in order to determine whether his information and assistance would be useful and of interest to that agency. Defendant then spoke to the DEA agent, provided him with the name of his drug source, and agreed to participate in sales and other activities which the DEA desired. ¹ The DEA agent then called the prosecutor, stating that [94-0761 La. 4] the agency was interested in working with defendant because the person defendant identified as his source was a "big seller of cocaine." The prosecutor then informed defense counsel that the DEA required a document, signed by a judge and by defendant's probation officer, ² authorizing defendant to go to Texas and to handle drugs while working with the DEA. The prosecutor further agreed to prepare the document and obtain the signatures.

Shortly after the prosecutor prepared the document, he received information that defendant was continuing to transport drugs from Texas to Alexandria. For several weeks, defense counsel repeatedly requested the document so that defendant could fulfill his obligation to provide assistance to the DEA in Houston, but the prosecutor put him off. The prosecutor finally told defense counsel in September of 1991 that he had no intention of completing the agreement, having decided not to deal with defendant because of his information that defendant was still engaging in narcotics traffic. ³

On the issue of whether the parties ever reached an agreement, the prosecutor asserted that he told defense counsel there was no deal until it was reduced to writing, but explained "I didn't say there was not a deal until it was reduced to writing, but I told him how the deal was going to be done in writing." The prosecutor also claimed that he told defense counsel, several weeks after the DEA agent expressed an interest in using defendant as an informant, that the agreement would be conditioned on defendant's not engaging in other criminal activities. The [94-0761 La. 5] prosecutor did not keep notes of his meetings and conversations with defense counsel.

Finally, as to the general procedure in agreements not to prosecute, the prosecutor testified that when an accused offers to reveal information or provide assistance in exchange for a promise not to prosecute, his first step is to verify that the information is useful to the police. After the police meet with the accused and express an interest in working with the accused as an informant, the prosecutor meets with the accused and the police and reduces the details of the agreement to writing so that there will be no misunderstanding on anyone's part as to the reciprocal obligations. ⁴

Defense counsel testified that he approached the prosecutor in June of 1991 regarding a possible "deal" for Austin and defendant. They discussed the possibility of defendant's acting as an informant for the DEA in Houston. After several conversations, the prosecutor requested that defendant reveal the name of his supplier. The prosecutor stated that if the DEA were interested in the named supplier and in defendant's working with the agency to develop evidence against the supplier, and if defendant did so, the state in return would dismiss the pending charges against Austin and grant defendant immunity from prosecution for the March 1991 incident. ⁵ Defendant thereafter provided the prosecutor with the name of his drug source.

A few days later, the prosecutor advised defense counsel that the DEA was interested in the named person and instructed him to contact the DEA agent. After several conversations with the agent, defense counsel set up a meeting between [94-0761 La. 6] defendant and the agent at defense counsel's office on August 1, 1991. At the meeting, defendant provided names, dates and places of the Houston drug dealer's activities, and he told the agent what he could do to help the DEA obtain evidence against the dealer. At the agent's request, defendant accompanied the agent to Houston to verify the information that he provided.

Approximately one week later, the prosecutor informed defense counsel that the DEA agent was interested in working with defendant and that the "deal would go through"--that is, defendant would work with the DEA in exchange for the state's agreement not to pursue charges against defendant. However, the DEA agent required a document releasing defendant from probation so that he could work with the DEA by handling drugs and dealing with drug suppliers. The prosecutor agreed to obtain the release, and further suggested that defendant be required to agree not to return to Louisiana. In defense counsel's words, "the ball was back in the park of the district attorney's office simply for a release letter."

During the next several weeks, defense counsel made numerous requests for the document authorizing defendant to work with the DEA in Texas, but each time the prosecutor put him off. Finally, in mid-September, the prosecutor informed defense counsel that the deal was off. ⁶

According to defense counsel, defendant had done as much as he could to fulfill his obligations under the agreement, but could go no further without the required document releasing him from probation. He also asserted that he has dealt with this prosecutor in the past without reducing the agreements to writing, and that the prosecutor made no demand for a writing in this case as a prerequisite to the validity of the agreement. He stated he relied on the prosecutor's verbal [94-0761 La. 7] representations when he advised his client to give incriminating information. He further denied that the prosecutor made defendant's freedom from criminal activity a condition of the agreement.

An expert in Louisiana...