State v. Richards

238 So. 3d 528
CourtLouisiana Court of Appeal
DecidedFebruary 21, 2018
DocketNO. 2018–K–0029
StatusPublished
Cited by1 cases

This text of 238 So. 3d 528 (State v. Richards) 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. Richards, 238 So. 3d 528 (La. Ct. App. 2018).

Opinion

JUDGE SANDRA CABRINA JENKINS

*529Relator/defendant seeks review of the trial court's December 20, 2017 ruling that overruled the defense's written objection to the State's discovery redaction. For the following reasons, we grant defendant's writ and remand this matter to the trial court to conduct an ex parte proceeding with the State in accordance with the mandatory provisions of La. C.Cr.P. art. 729.7.

PROCEDURAL BACKGROUND

On February 17, 2017, defendant was indicted for one count of second degree murder and one count of obstruction of justice. After entering a plea of not guilty, defendant filed several motions, including a motion for discovery. On April 7, 2017, the State tendered initial discovery, including police reports from the investigation leading to defendant's arrest and indictment. However, the State redacted identifying information as to two witnesses in the police reports. In response, on July 24, 2017, defendant filed a motion for supplemental discovery and, in accordance with La. C.Cr.P. art. 729.7, a written motion objecting to the State's redaction of information identifying the witnesses.

On December 20, 2017, the trial court held a hearing on defendant's motion objecting to the State's discovery redaction. At the hearing, the State agreed to provide defendant with information and a recorded statement as to one of the redacted witnesses. However, the State argued that the identity of the second witness was protected, pursuant to La. R.S. 46:1844(W) and La. Ch. C. arts. 322 and 323, because the witness is a juvenile. Defense counsel argued that the statutes cited by the State were inapplicable; and, in accordance with the mandatory, governing provisions of La. C.Cr.P. art. 729.7, the trial court should hold an ex parte , in camera hearing with the State where it must make a prima facie showing that the witness's safety may be compromised. Following arguments, the trial court stated, "I'll just rule that the person is protected."

DISCUSSION

In this writ, defendant argues that the trial court abused its discretion in determining the redacted witness was "protected" without conducting an ex parte hearing pursuant to La. C.Cr.P. art. 729.7. For the following reasons, we find the trial court's ruling was legal error.

First, we note that La. C.Cr.P. art. 718 authorizes and requires the production of law enforcement reports,1 as follows:

Subject to the limitation of Article 723 of this Code, and except as otherwise prohibited by law, upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph or otherwise reproduce law enforcement reports created and known to *530the prosecutor made in connection with the particular case, and to permit or authorize the defendant or an expert working with the defendant, to inspect, copy, examine, test scientifically, photograph, or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof that are within the possession, custody, or control of the state, and that are intended for use by the state as evidence in its case in chief at trial, or were obtained from or belong to the defendant.

Recognizing that, under certain circumstances, the disclosure of information identifying witnesses may compromise witness safety, La. C.Cr.P. art. 729.7 provides a procedure for the protection of witness identity as follows:

A. Notwithstanding any other provision of law to the contrary, the district attorney or the defendant may delete or excise from any information required to be disclosed herein any information which identifies a witness if such party believes the witness's safety may be compromised by the disclosure. If a party objects to the deletion or excision, he must do so by written motion. The court shall maintain the deletion or excision if, at an ex parte proceeding which shall be recorded and maintained under seal, the party
excising or deleting such information makes a prima facie showing that the witness's safety may be compromised by the disclosure. (emphasis added)
B. If the information excised by a party includes the substance, or any part thereof, of any written or recorded statement of the witness, that party must provide the excised substance, or any part thereof, to the other party immediately prior to the witness's testimony at the trial.
C. If a judge finds that the party excising or deleting such information has failed to present prima facie proof to support the deletion or excision of information related to a witness, then upon the motion of either party, the court shall order an automatic stay of all matters related to the disclosure of information about the witness and maintain all proceedings under seal during the time while the moving party seeks supervisory review to the appropriate reviewing courts with appellate jurisdiction, including the Louisiana Supreme Court.
D. The rules of evidence shall not be applicable to the ex parte proceedings conducted pursuant to this Article.

In State v. Le , 15-0014 (La. App. 4 Cir. 4/2/15), 165 So.3d 242, this Court considered the applicability of La. C.Cr.P. art. 729.7, in an analogous situation to the instant case. In Le , the defense filed a written objection to the State's redaction of witness information in the police reports; but the trial court overruled the objection and found that the State's discovery response was "good and sufficient." 15-0014,p. 2, 165 So.3d at 243. In seeking review of the trial court's ruling, the defense argued that it had complied with the provisions of La. C.Cr.P. art. 729.7, and, accordingly, the trial court erred by declining to hold an ex parte proceeding at which the State was required to make a prima facie showing that the disclosure would compromise witness safety. Finding that the provisions of La. C.Cr.P. art. 729.7 -made law by 2013 La. Acts, No. 250, § 1, effective January 1, 2014-had modified the trial court procedure for disclosure of witness identity known to the State in written form, this Court held that the mandatory provisions of La. C.Cr.P. art. 729.7 apply as follows:

A defendant must now file a written motion for the disclosure of the document *531in unredacted form. If the court believes that only a redacted document should be disclosed, the court shall (is required to) hold an ex parte proceeding in chambers with a court reporter and the state's counsel present where the state shall (is required to) disclose its reasons on the record why the deleted and excised portions of the document should not be disclosed. The recording of the proceedings and the unredacted document shall thereafter be retained under seal.

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Bluebook (online)
238 So. 3d 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-richards-lactapp-2018.