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State v. Joekel

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2019

STATE OF LOUISIANA
v.
KYLE DAVID JOEKEL IN RE STATE OF LOUISIANA

          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 12, 313

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

         WRIT GRANTED IN PART; DENIED IN PART; REMANDED

         Relator, the State of Louisiana, seeks review of the trial court's (1) July 8, 2019 order requiring the State to produce a written report by Timothy Scanlan; (2) June 13, 2019 orders partially granting defendant's motion to quash the indictment as to counts 1 and 2; and (3) June 12, 2019 order requiring the State to produce the photographs and videos they intend to use at trial.

         Motion to Prohibit Testimony by Timothy Scanlan Regarding Consistency of the Evidence with the Eyewitness Accounts Given by Deputies:

         The State argues that the trial court abused its discretion by ordering the State to create a report concerning the opinion testimony of its expert witness. On July 8, 2019 the trial court ordered (1) that defendant was entitled to an expert report by Mr. Scanlan before he could testify; (2) the State to produce a report of its expert, Mr. Scanlan; and (3) that if the State failed to produce a report, Mr. Scanlan would "not be permitted to testify regarding consistency of the evidence with the eyewitness accounts given by the deputies."

         A defendant has the right, upon motion, to inspect and copy results or reports of physical or mental examinations or scientific tests in the possession or knowledge of the state and intended for use at trial. La. C.Cr.P. art. 719. However, the State has no obligation to disclose information that it does not possess. State v. McGinnis, 04-1286 (La.App. 5 Cir. 10/06/05), 917 So.2d 471, 485; State v. Small, 29, 137 (La.App. 2 Cir. 04/02/97), 693 So.2d 180, 191. The State has a continuing duty to disclose additional evidence which it discovers or decides to use at trial. La. C.Cr.P. art. 729.3.

         La. C.Cr.P. art. 719 presently provides:

A. 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 any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. If the witness preparing the report will be called as an expert, the report shall contain the witness's area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor. If the expert witness has not reduced his results to writing, or if the expert witness's written report does not contain the information required of an expert as provided in this Article, the state must produce for the defendant a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.

(Emphasis added; new provisions underscored.)

         The previous version of La. C.Cr.P. art. 719, applicable before January 1, 2014, did not contain any requirement or explanation as to what shall be contained in the expert's report, or that the State was required to produce a written summary if the expert did not reduce the results to writing or if the report did not contain the required information.[1]

         It is unclear from either party's brief in this writ application which version of La. C.Cr.P. art 719 the parties contend is applicable. However, we do not have to make a determination of which version of article 719 is applicable to rule in this matter. Under either version of the article, the State is required to allow defendant access to the "results" of a "physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial."

         We are not persuaded by the State's argument that it satisfied its disclosure requirements by providing defendant with written notice that Mr. Scanlon will opine that the autopsy findings and physical evidence are consistent with "eyewitness accounts given by deputies." It is obvious that in order to reach this conclusion, Mr. Scanlan had to conduct examinations and tests of the relevant evidence which will undoubtedly be presented to the jury during his trial testimony. We are of the opinion that disclosure of the various examinations and/or test results used by Mr. Scanlan to formulate his conclusory opinion is necessary for the defendant's adequate preparation for trial and to cross-examine the expert, and must be given to the defense. Fundamental fairness and due process require that defendant have the opportunity to examine the basis from which Mr. Scanlan reached his conclusions. See State v. Lingle, 481 So.2d 1046, 1048 (La. 1985). Inherent in justice and the concept of fundamental fairness is ensuring a "balance of forces between the accused and his accuser." State v. Reimonenq, 19-0367 (La. 10/22/19), ___ So.3d ___, citing, Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82 (1973).

         Out of an abundance of caution, the trial court ruled that the State must give defendant a written report of Mr. Scanlan's findings which form the basis of his opinion. Under the facts and circumstances of ...


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