STATE v. JOHNSON (2022)

Writ application denied.

For the reasons set forth by my colleague Justice McCallum and Judge Thompson below, I concur in the Court's denial of defendant's writ application. In my view, Rule 1.11 of the Louisiana Rules of Professional Conduct, setting forth the standard for recusal of a government officer, is applicable here. As Judge Thompson aptly notes, there has been no evidence in this matter to support any argument that the defendant's chosen lawyer, the former Caddo Parish District Attorney, had participated in any fashion (personally or substantially) in the screening of this case during his time in public office. Although it appears the trial court's disqualification of counsel was likely incorrect, defendant did not seek supervisory review of that ruling prior to trial and has waived any such challenge to that decision. See State v. Arvie, 505 So.2d 44, 47 (La. 1987), citing State v. Mart, 419 So.2d 1216 (La. 1982) (defense cannot “sit on” an error and gamble unsuccessfully on the verdict and later resort to appeal on an error which might have been corrected at trial); see also State v. Holmes, 06-2988 (La. 12/2/08), 5 So.3d 42, 80 (by not adopting defendant's motion for a change of venue, defense counsel waived it); and Land v. Vidrine, 10-1342, p. 8 (La. 3/15/11), 62 So.3d 36, 41 (failure to plead the declinatory exception of improper venue prior to filing an answer deems objection waived).¹ Four years elapsed between the disqualification of counsel (2015) and trial itself (2019), and thus, defendant cannot now claim prejudice in the absence of any incompetent legal representation or ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, I agree with the denial of defendant's writ application, which I view as nothing more than appellate strategy to gain a new trial.

I agree with the denial of the defendant's writ application in this matter. I write separately, however, to emphasize that, in my opinion, the denial is warranted for the reasons assigned by Judge Thompson in his concurring opinion. State v. Johnson, 54,028 (La. App. 2 Cir. 9/22/21), 328 So. 3d 524, 536 (Thompson, J., concurring). As Judge Thompson correctly found, when the district court granted the State's motion to disqualify the defendant's counsel, it was incumbent on the defendant to seek supervisory review of that ruling. He did not do so, and thus, he waived any objection to that ruling by proceeding to a trial on the merits. Furthermore, the defendant has not asserted an ineffective assistance of counsel claim in this case, as Judge Thompson also noted. Accordingly, the defendant's writ application is properly denied.

FOOTNOTES

1.   See also, State v. Ruiz, 06-1755, p. 8 (La. 4/11/07), 955 So.2d 81, 87 (holding Louisiana's contemporaneous objection rule provides “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence” and failure to do so constitutes waiver, citing La. C.Cr.P. art. 841(A), State v. Knott, 05-2252, p. 2 (La. 5/5/06), 928 So.2d 534, 535, and State v. Baylis, 388 So.2d 713, 721 (La. 1980)).

Hughes, J., would grant. Crichton, J., additionally concurs and assigns reasons. McCallum, J., additionally concurs and assigns reasons.