State v. Pierre

606 So. 2d 816, 1992 WL 229131
CourtLouisiana Court of Appeal
DecidedSeptember 16, 1992
DocketK92-307
StatusPublished
Cited by10 cases

This text of 606 So. 2d 816 (State v. Pierre) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pierre, 606 So. 2d 816, 1992 WL 229131 (La. Ct. App. 1992).

Opinion

606 So.2d 816 (1992)

STATE of Louisiana, Plaintiff-Appellee,
v.
Erick PIERRE, Defendant-Appellant.

No. K92-307.

Court of Appeal of Louisiana, Third Circuit.

September 16, 1992.
Writ Denied November 20, 1992.

*817 J. Lomax Jordan, Jr., Lafayette, for defendant-appellant.

Kathleen Peterson, Asst. Atty. Gen., Baton Rouge, for appellee.

Before DOUCET and KNOLL, JJ., and SALOOM,[*] J., Pro Tem.

KNOLL, Judge.

This writ application concerns a pretrial motion to produce physical evidence filed by the State to obtain blood from relator to conduct deoxyribonucleic acid testing (DNA testing). After a contradictory hearing, the trial court ordered relator to give a blood sample. Relator, Erick Pierre, applied for supervisory writs to this court attacking the constitutionality of the court ordered production of evidence. We granted writs in this matter to determine the correctness vel non of the trial court's order.[1]

Relator attacks the constitutionality of the trial court's ruling on two grounds: (1) The State of Louisiana has no right to compel the blood testing because Louisiana's Constitution of 1974 gives a "higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution"; and, (2) The State of Louisiana must make a due process showing of probable cause before ordering relator to submit a blood sample.

The writ application shows that relator was indicted by the Grand Jury of Jefferson Davis Parish on September 4, 1990, on one count of aggravated rape, which was allegedly committed between May 1, 1988, and June 30, 1988, and one count of forcible rape, which was allegedly committed on November 7, 1989. The victim is a very young minor female; her date of birth is March 17, 1977. It is alleged that as a result of one of these rapes by relator, she gave birth to a baby on February 6, 1989, when the victim was eleven years of age. Relator submitted voluntarily to one paternity determination testing[2] prior to indictment while he was under arrest for aggravated rape and the case was still under investigation. The results of that paternity test show that relator cannot be excluded as the biological father of the victim's child because they share genetic markers; the probability of paternity was 99.87%. Initially, *818 the victim gave a statement implicating relator and naming him as the father of her baby. Now the State alleges that the victim has recanted her statement and denies that relator is the father of her baby. Furthermore, the State alleges that relator now claims that he is impotent. In view of this, the State filed this second motion for the production of physical evidence to conduct DNA testing to determine relator's probability of paternity. From the trial court's order compelling relator to submit to DNA testing, this writ followed.

SCOPE OF LOUISIANA'S CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION

Relator contends "that the Louisiana Constitution of 1974 affords him protection and prohibits the State from compelling this evidence." Relator readily admits that the privilege against self-incrimination under the Fifth Amendment of the United States Constitution does not extend to evidence an accused is compelled to give. The Fifth Amendment of the United States Constitution provides in pertinent part: "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const.Amend. V.

Relator contends that Article I, Section 16, of the Louisiana Constitution of 1974 gives a higher standard of individual liberty than that afforded by the federal constitution. Article I, Section 16, of the Louisiana Constitution of 1974 states in pertinent part: "No person shall be compelled to give evidence against himself." Relator cites State v. Hernandez, 410 So.2d 1381 (La. 1982), and State v. Church, 538 So.2d 993 (La.1989), in support of his contention. Our Supreme Court has held in certain limited areas of criminal law pertaining to searches and seizures that the declaration of privacy embodied in our State constitution gives rise to a higher standard of individual liberty than that afforded under the Fourth Amendment of the United States Constitution. Hernandez concerned the search and seizure of evidence from a car parked on private property; Church concerned the search and seizure of evidence at a DWI roadblock. Relator has cited no cases supporting his contention other than in these limited areas of search and seizure that this higher standard of individual liberty has been extended to include evidence which an accused was compelled to give, e.g. blood, urine, hair, saliva, etc.

We recognize that at times our jurisprudential interpretation of the Fourth Amendment of the United States Constitution may differ from the federal jurisprudence in certain limited areas. For reasons of overriding state interest, and, finding the court ordered blood test minimally intrusive, relatively painless, and medically safe, we decline to extend the doctrine of a higher standard of individual liberty as set forth in Hernandez and Church, to include evidence which an accused may be compelled to give. For these reasons, we find no merit in this contention.

DUE PROCESS SHOWING OF PROBABLE CAUSE TO COMPEL PHYSICAL EVIDENCE

By this argument, relator contends that the State must make a due process showing of probable cause before the trial court may issue an order to compel the blood testing desired by the State. We agree. However, relator argues as though the State has failed to make a due process showing of probable cause. With this contention we disagree. We have carefully reviewed the writ application and find that it fully supports that the State made a due process showing of probable cause.

We note with significance that relator does not argue that there was insufficient probable cause in the indictment. Rather, relator is asking for a new probable cause showing patterned after the rules of civil procedure, because the determination of paternity is involved.

Relator's argument is premised upon In the Interest of J.M., 590 So.2d 565 (La. 1991). We fully agree with the pronouncements in J.M., which involved a civil suit for a determination of paternity. In J.M., the putative father challenged the constitutionality of court ordered blood testing to *819 determine paternity. The putative father in J.M. argued that LSA-R.S. 9:396 violated his right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and Article I, Section 5 of the 1974 Louisiana Constitution. He also argued that the statute violated his rights of due process and equal protection of the law under the Fourteenth Amendment of the United States Constitution and Article 1, Sections 2 and 3 of the 1974 Louisiana Constitution. This is basically the same argument relator is urging before us.

In holding LSA-R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
606 So. 2d 816, 1992 WL 229131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierre-lactapp-1992.