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State v. Le

Court of Appeals of Louisiana, Fourth Circuit

May 27, 2015


Page 1073


         Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR RESPONDENT/STATE OF LOUISIANA.

         Martin E. Regan, Jr., Regan & Sandhu, P.L.C., New Orleans, LA, COUNSEL FOR APPLICANT/DEFENDANT.

         (Court composed of Judge Max N. Tobias, Jr., Judge Roland L. Belsome, Judge Paul A. Bonin). BELSOME, J., DISSENTS WITH REASONS.


Page 1074

          [2015-0455 La.App. 4 Cir. 1] PAUL A. BONIN, J.

          Trung Le pleaded not guilty to the manslaughter charge of killing Brittany Thomas and the charge of the attempted second degree murder of an unknown male. During the pretrial discovery process, the prosecution furnished Mr. Le with a redacted supplemental report of the police investigation. In that report, the prosecution had deleted the names and contact information of some, but not all, of the witnesses to the gunfire exchange that resulted in Ms. Thomas's death and the attempted murder of the unknown male.

         Following this limited disclosure, Mr. Le filed a motion under Article 729.7 of the Louisiana Code of Criminal Procedure seeking to be furnished with the deleted information or an unredacted copy of the police report. Initially, the predecessor trial judge denied Mr. Le's motion to conduct an ex parte hearing and instead ordered that the prosecution disclose to Mr. Le all material evidence under Brady v. Maryland. See 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Le timely sought our supervisory review. We granted Mr. Le's writ and remanded the matter for the trial judge to [2015-0455 La.App. 4 Cir. 2] conduct an ex parte hearing in compliance with Article 729.79(A). See State v. Le, 15-0014, p. 8 (La.App. 4 Cir. 4/2/15), 165 So.3d 242, 2015 WL 1510724, *4.

         That ex parte hearing was conducted, recorded, and maintained under seal. And, on April 17, 2015, the trial judge maintained the redactions, thereby denying Mr. Le's motion for the disclosure of the witnesses' names and contact information. The trial judge found that the prosecution had made a sufficient prima facie showing that the " disclosure of witnesses' information will more [than] likely result in some form of direct or indirect contact of these witnesses by parties other than the defendant's counsel which could result in intimidation, threats, or physical harm." Mr. Le again invokes our supervisory jurisdiction to review this ruling. See La. C.Cr.P. art. 912.1(C)(1); La. Const. art. V, § 10(B).[1]

Page 1075

          Following oral argument, we grant Mr. Le's application for a writ of supervisory review. We have reviewed the trial judge's discovery ruling under a highly deferential abuse-of-discretion standard and find no erroneous application of law. We accordingly deny the relief sought by Mr. Le and affirm the trial judge's ruling.

         We explain our decision in greater detail in the following Parts.

         [2015-0455 La.App. 4 Cir. 3] I

         Because of the pretrial status of this matter, there has not been a full development of the facts surrounding the incident in question. We understand, however, based upon the parties' submissions in the trial court and to this Court, that the events which gave rise to the pending criminal charges occurred in the predawn hours of June 29, 2014 at the corner of Bourbon Street and Orleans Avenue in the French Quarter. Mr. Le arrived in the French Quarter armed[2] and joined a group of friends, who were previously engaged in activity involving narcotics, at that intersection. The submitted video recordings then show that crowds were in the area and that panic ensued as gunfire was exchanged. According to the redacted police report, in addition to Ms. Thomas, nine other persons were wounded by bullets.

         Forensic evidence suggests that at least two different types of firearms were discharged during the confrontation. The police have identified Mr. Le as one of the shooters, and Mr. Le does not dispute that he fired a weapon. The identity of another person, who is clearly visible in the submitted video firing a weapon, has never been determined and, according to the district attorney, is the unknown male victim identified in the indictment. We also understand that Mr. Le intends to justify his use of the weapon as acting either in self-defense or in the defense of others.

         [2015-0455 La.App. 4 Cir. 4] II

         In this Part we review Articles 718 and 729.7 of the Louisiana Code of Criminal Procedure and examine operative terms essential for determining the merits of Mr. Le's application.


         Articles 718 and 729.7 are both contained in Chapter 5 of Title XXIV of the Louisiana Code of Criminal Procedure, which controls pretrial discovery. Article 718 is contained in Part A of Chapter 5 relative to discovery by the defendant, while Article 729.7 is contained in Part C relative to the regulation of that discovery. See Le, 15-0014, pp. 4-5, 165 So.3d at 245, 2015 WL 1510724, *3.

         Article 718 was amended and Article 729.7 was codified in connection with a recent comprehensive revision of Chapter Five.[3] See 2013 La. Acts, no. 250. Following

Page 1076

the revision, both articles became effective for cases filed after December 31, 2013. See ibid. See also Le, 15-0014, p. 5, 165 So.3d at 245, 2015 WL 1510724, * 3. [2015-0455 La.App. 4 Cir. 5] This comprehensive legislation originated in the Louisiana House of Representatives as House Bill no. 371. See Louisiana State Legislature, 2013 Regular Session, House Bill no. 371,'d=833957 (last visited May 26, 2015). And testimony before the House Committee on the Administration of Criminal Justice on May 1, 2013 indicates that this revision was the result of a collaborative process between the Louisiana Association of Criminal Defense Lawyers, the Louisiana District Attorney's Association, and the Louisiana Law Institute.

         In amending Article 718, the legislature for the first time[4] authorized a defendant, during pretrial discovery, to inspect and copy " law enforcement reports created and known to the prosecutor made in connection with that particular case...." La. C.Cr.P. art. 718. The broadened discovery rights granted in this revision, including those in Article 718, were at the ...

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