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State v. Montgomery
Citations: 158 So. 3d 87; 14 La.App. 3 Cir. 390; 2014 La. App. LEXIS 2974; 2014 WL 7156501Docket: No. 14-390
Court: Louisiana Court of Appeal; December 16, 2014; Louisiana; State Appellate Court
Kenneth Wayne Montgomery was convicted on two counts of cocaine distribution under La. R.S. 40:967. Following his sentencing, the State charged him as a habitual offender under La.R.S. 15:529.1, resulting in a trial court adjudication as a second-felony offender and concurrent thirty-year hard labor sentences. Montgomery's convictions are now under appeal, with the appellate counsel raising one primary error regarding the trial judge's failure to recuse himself despite the defendant’s prior complaints and lawsuits against him, citing violations of Code of Criminal Procedure Article 812. Montgomery also filed three pro se assignments of error: 1) denial of a full suppression hearing, 2) violation of due process due to untimely discovery from the district attorney, and 3) claims of unconstitutional juror selection methods that systematically exclude African-Americans. The recusal motion, filed shortly after his indictment, alleged bias from the trial judge based on past interactions and numerous complaints to the Louisiana Judiciary Commission. The procedural standards for recusal under La.Code Crim. P. art. 671 were referenced, stating that a judge must recuse themselves if biased or unable to conduct a fair trial. Article 674 outlines that a valid recusal motion must result in either the judge recusing themselves or referring the motion to another judge. A trial judge in Louisiana is presumed to be impartial, as established in State v. Mayeux. For a recusal motion to be valid, it must present specific factual allegations supporting a statutory cause for recusal; mere conclusory statements do not suffice. In the present case, the trial judge denied the defendant's motion to recuse, citing a failure to allege valid grounds per Louisiana Code of Criminal Procedure Article 671. On appeal, the defendant suggested that the trial judge should have referred the motion to another judge due to their history, but the state argued that the defendant did not demonstrate bias in the judge's pretrial rulings, which were ordinary evidentiary decisions. Citing State v. Rollins, the state emphasized that the defendant failed to provide specific facts supporting claims of bias. The record indicated the trial judge acted with restraint throughout the trial, and the defendant's complaints lacked factual support, consisting only of unsupported conclusions. Regarding the first pro se assignment of error, the defendant filed a motion to suppress evidence obtained via a video recording made in his home without a warrant during a controlled drug purchase. The trial court rejected the motion without a hearing, and the defendant did not claim innocence but argued the evidence was unlawfully obtained. The defendant argues for the suppression of video evidence based on Katz v. U.S. and the Louisiana Electronic Surveillance Act. However, the court finds these cases inapplicable. In Katz, the Supreme Court ruled that a defendant had a reasonable expectation of privacy in a public telephone booth, and the government's electronic recording constituted a Fourth Amendment violation due to the lack of a warrant. Conversely, in the current case, the video evidence of illegal narcotics transactions was obtained with the consent of one party involved, distinguishing it from Katz. The Louisiana Electronic Surveillance Act, which regulates the interception of communications, was not followed in this instance, but the consent of one party renders the law irrelevant here. Additionally, the court references U.S. v. Nash, where video recording by a purchaser working with law enforcement was deemed permissible under the Fourth Amendment, as the defendant had no reasonable expectation of privacy in their own home when they exposed their activities to an invited guest who was an informant. This precedent supports the admissibility of the video evidence in the current case. The Fourth Amendment does not prohibit a confidential informant from recording interactions with a suspect in the suspect's residence. This conclusion derives from established Supreme Court precedent, particularly the ruling in Hoffa v. United States, which clarifies that the use of informants to gather evidence does not constitute an unconstitutional search or seizure. The Court emphasized that a defendant's ignorance of an informant's true purpose does not affect the legality of the informant's presence or disclosures. Further, the Supreme Court in White affirmed that if an agent's non-electronic observations do not infringe on a defendant's privacy expectations, then simultaneous recordings (audio or video) made by that agent are also permissible. Multiple circuit courts have consistently ruled that video recording by a consensually admitted informant is as constitutional as audio recording under similar circumstances. Noteworthy cases include United States v. Davis, which equates the legality of audio and video recordings, and United States v. Wahchumwah, confirming that warrantless use of video by an invited undercover agent does not violate the Fourth Amendment. In the present case, Mr. Nash failed to provide any substantial argument differentiating video from audio recordings in this context. Consequently, based on Supreme Court precedent and consistent circuit rulings, the Court determined that the video recording conducted by a consensually admitted informant in Mr. Nash's home did not infringe upon his Fourth Amendment rights. The court's decision in State v. Caldwell reiterated the legality of warrantless seizure of oral communications when one party consents to the recording. The defendant argued that a recorded conversation violated his rights under the Louisiana Constitution, but the court cited established precedents confirming that consent from one party negates privacy invasion claims, thereby exempting such recordings from warrant requirements. Consequently, the court dismissed the defendant's claims regarding the trial court's handling of this issue. In a separate error claim, the defendant contended he was denied due process due to the state's late disclosure of a witness's identity and criminal record, revealed only on the trial day. The court referenced the Louisiana Code of Criminal Procedure, which does not mandate prior disclosure of witness lists or criminal records before trial, affirming that the state's actions were permissible. Finally, the defendant challenged the jury selection process in Calcasieu Parish, alleging it systematically excluded African-Americans. However, the record presented only included the trial court’s general instructions to jurors and discussions with the defendant's counsel post-selection, failing to substantiate the claim of constitutional violation. The court found no merit in this assignment of error as well. Ms. Stagg expressed a desire to include at least one Black juror on the panel, stating that having only one potential Black juror could lead to problems on appeal due to perceived racial prejudice in the jury selection process. She indicated the necessity of raising a formal objection regarding the composition of the jury venire, which lacked sufficient representation of Black individuals. The trial court acknowledged the issue but did not provide a solution at that moment. Despite these concerns, neither the defendant nor his counsel formally objected to the jury's composition before the jury was sworn in and the trial commenced. The record indicates that there were 43 prospective jurors, with 19 placed in the jury box, and 12 selected as jurors, but it is unclear whether the racial balance issue pertained to just the final jurors or the entire venire. The court found no evidence that the jury selection process in Calcasieu Parish systematically excluded African-Americans, concluding that the defendant did not meet the burden of proof on this matter. Consequently, the court affirmed the defendant’s convictions. Additionally, it was noted that the sentence imposed included a mandatory minimum period, as required by law, and the defendant displayed disrespect during the proceedings, which the trial judge managed professionally. The appointed counsel's role was primarily advisory, with occasional advocacy for the defendant.