APPLICATION FOR WRITS DIRECTED TO ST. BERNARD 34TH JUDICIAL
DISTRICT COURT NO. 15-06328, DIVISION "B" Honorable
Jeanne Nunez Juneau, Judge
M. Nicosia District Attorney 34th Judicial District Court
Parish of St. Bernard Michael G. Morales Assistant District
Attorney COUNSEL FOR STATE
W. Gernhauser, Jr. Dan A. Robin, Jr. Erich Puderer Law
Offices of Dan. A Robin, Jr., LLC COUNSEL FOR DEFENDANT
composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet,
Judge Tiffany G. Chase
COSSICH LOBRANO JUDGE
presented with two writ applications arising out of the same
case that were consolidated for consideration. We discuss
each writ separately.
facts are briefly as follows. Shortly after midnight on
November 27, 2014, the victim in this case
("Victim") went to 2105 River Park Drive. The
defendant, Kory Mattox ("Defendant") and Raquel
Nicolosi were at the residence. Nicolosi answered the door.
It is alleged that upon entering, Victim struck Nicolosi in
the head with a collapsible police style baton. Defendant
appeared from the rear of the residence and killed Victim
with a single shot from a 12-gauge shotgun.
was indicted for one count of second degree murder but has
claimed from the time of the shooting that the homicide was
justified. Nicolosi testified during the grand jury
proceedings. Defendant filed a motion to unseal the grand
jury testimony. Nicolosi's testimony was unsealed and
given to the defense by the State under the provisions of La.
C.Cr.P. art. 434.1(B).
reviewing the transcript in camera, the district court
ordered that page 28, lines 22-25, page 29, lines 1-25, and
page 30, lines 1-24 be unsealed and provided to Defendant.
This portion of the transcript contains legal advice and
remarks by the State to the grand jury before it began its
deliberations. Defendant maintains that the State erroneously
omitted from its instructions the law on justifiable
homicide. As such, Defendant argues that this alleged
misconduct by the State no longer protects the secrecy of
grand jury proceedings.
State filed the instant writ. It contends that grand jury
proceedings are confidential as per the La. Const. Art. V
§34(A) and as provided for in the La. C.Cr.P. arts. 431,
et seq. For the reasons that follow, we grant the
State's writ and reverse the judgment of the district
court ordering the unsealing of page 28, lines 22-25, page
29, lines 1-25, and page 30, lines 1-24.
Supreme Court, in State v. Francis, 18-1395 (La.
9/21/18), ___ So.3d ___, 2018 WL 4560268 (per curiam),
"[T]he indispensable secrecy of grand jury proceedings
must not be broken except where there is a compelling
necessity." State v. Trosclair, 443 So.2d 1098,
1103 (La.1983). The party seeking disclosure must demonstrate
a particularized need that outweighs the need for continued
secrecy. Trosclair, 443 So.2d at 1103. That is,
"[h]e must show that, without the material, his case
would be greatly prejudiced or that an injustice would be
done." State v. Higgins, 03-1980, p. 36 (La.
4/1/05), 898 So.2d 1219, 1241 (citing Trosclair, 443
So.2d at 1103; State v. Ates, 418 So.2d 1326,
1328-29 (La. 1982)).
In State v. Ross, 13-0175, pp. 6-7 (La. 3/25/14),
144 So.3d 932, 937, the Court stated the reasons for grand