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State v. Peterson

Court of Appeals of Louisiana, Fifth Circuit

September 18, 2019

STATE OF LOUISIANA
v.
ERNEST PETERSON, JR. IN RE STATE OF LOUISIANA

          APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE J. STERLING SNOWDY, DIVISION "C", NUMBER 19, 75

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

         WRIT GRANTED, ORDER VACATED, AND REMANDED FOR HEARING

         In this case, relator, the State of Louisiana, seeks review of the trial court's March 21, 2018 ex parte order granting defendant's request that the grand jury proceeding against him be recorded.

         This order, for the reasons discussed herein, is vacated and the case is remanded to the trial court for a hearing. The State was not given an opportunity to show the basis for its position that the grand jury proceedings should not be recorded in this case. This Court is of the opinion that grand jury proceedings are presumed be recorded, and that the State bears the burden of proving why recordation is not necessary or possible to a preponderance of the evidence.

         On March 7, 2019, defendant, filed a Motion for Recordation of the Proceedings of the Grand Jury Empaneled in March 2019 by an Official Court Reporter. Upon consideration of the motion, the trial court issued an ex parte order granting the recordation of the grand jury proceedings by an official court reporting. The State filed a writ application with this court on March 22, 2019, asserting that the trial court abused its discretion and/or prejudiced the State by requiring the grand jury proceeding to be recorded. Facts & Procedural History

         On February 14, 2019, a Fortieth Judicial District Juvenile Court Judge found there was probable cause to hold the defendant, a juvenile, for charges including second degree murder. Accordingly, under La.Ch.C. art. 305, the matter was transferred to the Fortieth Judicial District Court. The State intends to proceed to Grand Jury to secure an indictment against the defendant. On March 7, 2019, defendant, filed a Motion for Recordation of the Proceedings of the Grand Jury Empaneled in March 2019 by an Official Court Reporter. The matter was set for a show cause hearing on March 19, 2019, but vacated upon a change in divisions. Judge Sterling Snowdy, issued an ex parte order granting the recordation of the grand jury proceedings by an official court reporting.

         The State filed a writ application on March 22, 2019, asserting that the trial court abused its discretion and/or prejudiced the State by requiring the grand jury proceeding to be recorded. Arguing that the defendant's motion failed to make a showing that recordation was necessary, the State relies upon public policy considerations regarding the importance of maintaining the secrecy of grand jury proceedings. The State argued there is no constitutional requirement that grand jury proceedings be transcribed and La. C.Cr.P. art. 433 permits but does not require recordation. Therefore, the State seeks a reversal of the trial court's order or that the matter be set for a show cause hearing to have the opportunity to respond.

         Defendant responds that the legislature implicitly gives the court authority to order recordation to carry out its duties and responsibilities to grand jury proceedings. The defendant argues that future in camera inspections and disclosures would be impossible without recordation. He further argues that the State will not suffer any prejudice from recordation.

         The issue before the court appears to be raised de novo. It is this Court's opinion that there is a dearth of authority directly on point as the two courts previously addressing the issue cite no basis for the opinion or rely on a case which does not address the issue before the court.

         Constitutional, Legislative, and Case History

         The Louisiana Constitution grants exclusive original jurisdiction of felony cases to the district courts. La. Const. Art. V, § 16 (A)(2). The courts have a duty to "control the proceedings" so that justice is done while maintaining dignity, order, and expedience. La. C.Cr.P. art. 17. While the Code and criminal statutes do not specifically require recordation, "the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions. La. C.Cr.P. art 3.

         In Title XII Grand Jury, the Louisiana Code of Criminal Procedure contains no language regarding what person or entity has the authority to decide whether grand jury proceedings are recorded and on what basis a request may be granted. The Code does specify that the court has the authority to direct the meetings of the grand jury. La. C.Cr.P. art 435. The foreman of the grand jury is directed to preside over hearings and determine rules of procedure. La. C.Cr.P. art 436. The district attorney, as the representative of the state, is to be the grand jury's legal advisor. La. Const. Art. V, § 26(B). Therefore, the Code of Criminal Procedure does not grant the State the authority to control the manner in which the grand jury proceeds.

         The two other appellate courts which faced this question fail to provide a consistent standard for determining what the burden of proving necessity of recordation is and who should carry the burden. The State relies on In re Grand Jury Proceedings, No. 52713 (La.App. 2 Cir. 02/14/19), in which a writ was granted, vacating the trial court's order requiring the proceedings of and testimony before the grand jury to be recorded. The Second Circuit held that the order was improper without the defendant "showing that such recordation is necessary under the circumstances presented in a particular defendant's case." Id. The Second Circuit, without citing to authority, makes a blanket assertion that there is "no support in the law, statutory or jurisprudential, for a trial judge's sua sponte order that all grand jury proceedings be recorded." However, as discussed above, both constitutional and statutory authority do indicate that the court and the grand jury foreman, rather than the state, control "the proceedings" and the procedural rules.

         In State v. Lavigne, 13-1414, 2013 WL 1212444 (La.App. 1 Cir. 9/10/13), the First Circuit denied a supervisory writ where the trial court found the grand jury foreman had authority to order recordation of the grand jury proceedings. The court in this case opines that district attorneys and trial courts, upon motion of the defendant "in certain cases, " have the authority to order recordation. The First Circuit cites to the Constitution and Code of Criminal Procedure's grant of the "charge and control" of prosecutions to the district attorney. La. Const. art V, § 26(B); La. C.Cr.P. art. 61. While they do cite to the court's grant of power to control proceedings, they seem to disregard the authority of the foreman of the grand jury to preside over hearings and determine rules of procedure. La. C.Cr.P. art 436. Furthermore, the First Circuit relies upon State v. Lacaze, 2012-2131 (La. 6/17/13), 117 So.3d 915 (per curiam) to support the assertion that the defendant must "indicate he will be greatly prejudiced or that an injustice will be done if proceedings are not recorded." However, that case addresses discovery of already recorded grand jury testimony, not whether to record the grand jury proceeding itself. Therefore, again, the First Circuit opined without authority.

         The Louisiana Supreme Court has not addressed this issue on the merits. In State v. Foster, 02-2918 (La. 10/3/03), 858 So.2d 1281 (per curiam), the Louisiana Supreme Court was faced with the issue of whether a trial court had the authority to order the recordation of the testimony before the grand jury. However, it found the issue had been rendered moot as the defendant had pled guilty and was sentenced. Id. The court found that to consider the validity of the trial court's order would essentially amount to an advisory opinion since the issue was not properly before it. Foster, 858 So.2d at 1281. However, Justice Victory, dissenting, wrote that he would consider the issue under the exception of the mootness doctrine as one "capable of repetition yet evading review." Id.

         It appears that the Code of Criminal Procedure assumes that grand jury proceedings will be recorded. La. C.Cr.P. article 843 requires the recording of "all of the proceedings" in felony cases by clerk or court stenographer. In specifying the persons who may be present during grand jury sessions "a person sworn to record the proceedings of and the testimony given" is listed as well as the district attorney, attorney general, and witnesses under examination in Louisiana Code of Criminal Procedure article 433.[1] In grand jury proceedings, "persons employed to record and transcribe the testimony and proceedings" are required to faithfully perform their duties and keep secret the proceedings under oath. La. C.Cr.P. Art. 441.

         The secrecy of grand jury proceedings should be carefully maintained; however, this secrecy is not absolute. La. Const. Art V § 34(A); State v. Ross, 13-175 (La. 03/25/14), 144 So.3d 932, 937; State v. Trosclair, 82-2014 (La. 11/28/83), 443 So.2d 1098, 1102. Circumstances are set forth in Louisiana Code of Criminal Procedure articles 434 under which disclosure of grand jury proceedings is allowed. All persons with "confidential access to information concerning grand jury proceedings" may disclose testimony given before the grand jury to show statutory irregularities or that a witness committed perjury. La. C.Cr.P. Art. 434(A). Witnesses may discuss their grand jury testimony with defense counsel, the attorney general/district attorney, or with the court. Id. Furthermore, district attorneys of one parish may direct "any and all evidence, testimony, and transcripts thereof" from the grand jury proceeding to the district attorney of another parish if it is discovered that a crime may have been committed in the other parish. La. C.Cr.P. Art. 434(B)(emphasis added).

         In 2012, Louisiana Legislature enacted Code of Criminal Procedure Article 434.1, adding exceptions to grand jury secrecy that allowed for disclosure of information, documents, evidence, and statements by the State. For the purposes of investigation and law enforcement, information and documents may be disclosed to prosecutors, law enforcement officers, investigations, and expert witnesses. La. C.Cr.P. Art. 434.1(A). Further, the district attorney is required to disclose favorable material evidence to the defendant. La. C.Cr.P. Art. 434.1(B). Finally, the district attorney may disclose inconsistent grand jury statements of trial witnesses. La. C.Cr.P. Art. 434.1(C). Outside of these exceptions, a party seeking ...


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