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State v. Silvestri

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

STATE OF LOUISIANA
v.
JOSEPH L. SILVESTRI IN RE JOSEPH L. SILVESTRI

          APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION "G", NUMBER 24TH

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Timothy S. Marcel, Pro Tempore

         WRIT DENIED IN PART; WRIT GRANTED IN PART FOR LIMITED PURPOSE, RELIEF DENIED; REMANDED

         In this writ application, relator/defendant, Joseph Silvestri ("relator"), argues that the trial court abused its discretion by granting the State's 404 B motion and improperly admitting State's exhibits A, C, D, E, F, and G into evidence based on hearsay at the 404 B/Prieur hearing on May 2, 2019 ("the hearing"). Relator also contends that the trial court abused its discretion when it held that relator could not testify in defense of the other alleged crimes or wrongs without that testimony being used against him at trial under La. C.Cr.P. art. 703 E.

         For the reasons stated herein, this writ application is (1) denied as to relator's claims regarding La. C.E. art. 404 B "other crimes, wrongs, or acts" evidence and exhibits A, C, D, E, F, and G as premature, in that the trial court has not yet ruled thereon; (2) granted in part for the limited purpose of determining whether relator is afforded the protection of La. C.Cr.P. art. 703 E, and finding that he is not afforded that protection, that relief is denied; and (3) remanded for further proceedings.

         Upon review of the writ application and the transcript of the hearing, we find that the trial court did not rule on the State's La. C.E. art. 404 B motion or determine whether State's "other crimes, wrongs, or acts" evidence, and specifically exhibits A, C, D, E, F, and G, will be admissible at trial. The transcript shows the trial court only ruled that the exhibits were admissible at the hearing. After the exhibits were admitted into evidence over the objection of relator, an issue was raised as to whether relator could testify under the protection of La. C.Cr.P. art. 703 E and the proceeding was stayed to allow relator to file this writ application. Therefore, there are no rulings by the trial court for this Court to review. La. U.R.C.A., Rule 1-3.

         Additionally, relator failed to attach State's exhibits A, C, D, E, F, and G to this writ application in violation of La. U.R.C.A., Rule 4-5. Without these documents, this Court is unable to make a determination as to the merits of relator's claim that the State's exhibits A, C, D, E, F, and G were improperly admitted into evidence for the purpose of the hearing. Thus, this writ is denied as to relator's claims related to La. C.E. art. 404 B "other crimes, wrongs, or acts" evidence, and specifically to exhibits A, C, D, E, F, and G.

         At the hearing, relator/defendant wished to testify, and moved the trial court for a ruling that he could do so without having his motion testimony used against him at trial, pursuant to the provisions of La. C.Cr.P. art. 703 E. The State objected, and the trial court denied relator's request for a ruling in advance of relator testifying.

         Relator argues that when the State seeks to introduce evidence of other crimes against him, he is compelled to respond to each allegation through testimony at the hearing. Relator contends that this places him in a procedural posture analogous to a motion to suppress hearing. Relator contends that although there is no prescribed procedure for conducting a 404B/Prieur hearing, the Louisiana Supreme Court in Taylor, supra, considered that an evidentiary hearing with testimony may be necessary. Relator contends that in this case, his testimony at the 404B/Prieur hearing is necessary and he should be afforded the opportunity to testify under the protection of La. C.Cr.P. art. 703 E. Relator contends that the trial court erred by refusing to rule that he could testify in defense of the allegations of other crimes without that testimony being used against him at trial except to attack the credibility of his testimony at the trial on the merits under La. C.Cr.P. art. 703 E.

         We agree that the trial court erred by declining to rule, and we grant this writ on the trial court's denial of relator's motion. Because relator cannot fairly be expected to determine whether to testify at the hearing without a ruling in advance on this issue, and the hearing cannot fairly proceed without a ruling, we invoke our supervisory jurisdiction to address this issue. We agree with relator only to the extent that we believe he should have the benefit of a ruling on this issue before he decides whether to testify. Accordingly, we grant this writ to determine whether relator is afforded the protection of La. C.Cr.P. art. 703 E during a 404 B/Prieur hearing, and so that relator and the hearing may proceed on that basis.[1]

         For the reasons which follow, we conclude that La. C.Cr.P. art. 703 E does not apply to a defendant's testimony at a 404 B/Prieur hearing, and does not exclude his hearing testimony at trial. A review of the clear and express language of La. C.Cr.P. art. 703 E shows that La. C.Cr.P. art. 703 E is applicable only to motions to suppress and does not apply to other pre-trial hearings, such as a 404 B/Prieur hearing. Additionally, no jurisprudence exists extending the protection of La. C.Cr.P. art. 703 E to a defendant who chooses to testify in defense of allegations at a Prieur hearing.[2]

         Additionally, relator's reliance on Taylor, supra, is misplaced. In Taylor, supra, the defendant subpoenaed officers to testify at the Prieur hearing and the trial court denied the defendant's request. Taylor, 217 So.3d at 286. In that case, the Supreme Court re-examined the requirements and procedure for introduction of other crimes, wrongs or acts evidence at trial, holding that a pre-trial hearing is required and that the State is only required to make some showing of sufficient evidence to support a finding that defendant committed the other act. Id. at 292. The Supreme Court also stated that "Although testimony is not required, it may be necessary depending on the facts of a particular case." Id. (Emphasis added.) In Taylor, the defendant did not request to testify with the protection afforded by La. C.Cr.P. art. 703 E; rather, he wanted the subpoenaed officers to testify. Thus, we find that Taylor is not applicable to the facts of this case as to whether a defendant's testimony at a Prieur hearing is afforded the protection of La. C.Cr.P. art. 703 E.

         Finding that a defendant's testimony at a 404 B/Prieur hearing is not entitled to the protection afforded a defendant testifying at a motion to suppress hearing under La. C.Cr.P. 703 E, we looked to other statutory and/or case law to determine if a defendant is entitled to testify at a 404 B/Prieur hearing without his testimony being used against him at trial. This Court was unable to find any legal authority to support such a finding.

         Accordingly, for the reasons stated herein, this writ application is (1) denied as to relator's claims regarding La. C.E. art. 404 B "other crimes, wrongs, or acts" evidence and exhibits A, C, D, E, F, and G as premature upon finding that the trial court has not yet ruled; (2) granted in part for the limited purpose of determining whether relator is afforded the protection of La. C.Cr.P. art. 703 E, and ...


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