Opinion
NO. 2017–KK–0038
02-02-2017
STATE of Louisiana v. Shawn BART
Writ granted in part and otherwise denied. The district court's ruling granting issuance of a subpoena for the alleged victim to appear at a preliminary examination hearing is reversed. The defendant is charged with attempted first degree murder of a police officer and aggravated assault with a firearm upon a peace officer. The defendant requested a subpoena to compel the alleged victim's attendance at a preliminary hearing and urged that "good cause" for subpoenaing the victim exists because the victim's testimony would be relevant and not consist entirely of hearsay. The defendant also argues that since the alleged victim is a police officer, he is accustomed to testifying in court.
In State v. Harris, 2008–2117 (La. 12/19/08), 998 So.2d 55, this Court held:
Even though the Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[,]" the United States Supreme Court has specifically rejected confrontation clause claims in pre-trial proceedings. Similarly, although La. Const, Art. I, § 13 recognizes the right of a defendant to confront his accuser, the confrontation that this article secures is confrontation at the trial, not prior thereto.
Id. at 55–56.
Further, La. R.S. 46:1844(C)(3) provides that: ..."Before any victim may be subpoenaed to testify on behalf of a defendant at any pretrial hearing, the defendant shall show good cause at a contradictory hearing with the district attorney why the subpoena should be issued. See also, La. Const. Art. I, § 25 (1974) which enshrined in the Louisiana Constitution certain rights of a victim of a crime, including the right to refuse to be interviewed by the accused or a representative of the accused.
Police officers, who are victims of crime, are entitled to invoke the protections afforded by the Crime Victim Witness Protection Act, LSA–R.S. 46:1841 et seq. Further, hearsay testimony is explicitly permitted in preliminary examination hearings pursuant to LSA–C.E. Article 1101 B(4). Thus, the defendant has not demonstrated "good cause" to subpoena the alleged victim to appear at a preliminary examination hearing as required by La. Const. Art. I, § 25 and La. R.S. 46:1844(C)(3). The state's request for a stay and the state's request that defendant be held in contempt of court for asking that the subpoena be issued, is denied. This matter is remanded to the district court for further proceedings.
WEIMER, J., dissents and assigns reasons.
HUGHES, J., would deny the writ.
WEIMER, J., dissenting.
Respectfully, I would grant and docket this matter for analysis. Without mention of the standard of review or the deference afforded to a trial court's determination of good cause under La. R.S. 46:1844(C)(3), or the constitutional right to a preliminary examination afforded by La. Const. Art. I, § 14, or the codal right of a defendant to subpoena witnesses to the preliminary examination recognized in La. C.Cr.P. Art. 294(A), the trial court's ruling is summarily reversed.
"The right to a preliminary examination shall not be denied in felony cases except when the accused is indicted by a grand jury." La. Const. Art. I, § 14.
Article 294(A) affords a defendant the right to "produce witnesses [at the preliminary examination], who shall be examined in the presence of the defendant and shall be subject to cross-examination."
Our constitution affords rights to victims and we must be fully cognizant of that constitutional protection. See La. Const. Art. I, § 25. Concerning the rights of victims, La. R.S. 46:1844(C)(3) further provides "[b]efore any victim may be subpoenaed to testify on behalf of a defendant at any pretrial hearing, the defendant shall show good cause at a contradictory hearing with the district attorney why the subpoena should be issued."
While not insensitive to the rights of victims, including police officers, I would grant and docket this matter to examine and balance the competing constitutional and codal interests so as to provide guidance to the lower courts. I also believe that this matter should be docketed for a determination of what is required under La. R.S. 46:1844(C)(3) to establish good cause, and the deference owed-if any-by a reviewing court to the trial court's good cause determination.
Notably, this court in State v. Harris, 08–2117 (La. 12/19/08), 998 So.2d 55, which is cited in the per curiam, did not address La. Const. Art. I, § 14 and La. C.Cr.P. Art. 294(A). Further, under the analysis employed in the per curiam, the state would seemingly defeat any attempt to establish "good cause" by offering hearsay, thus, always preventing the defendant from presenting a defense using victim testimony at the preliminary examination.
For these reasons, I respectfully dissent from the grant with order.
Hughes, J., would deny the writ.