Opinion
NO. 19-K-136
09-18-2019
STATE OF LOUISIANA v. ERNEST PETERSON, JR.
Susan Buchholz First Deputy Clerk 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. 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 official revision comments to La. C.Cr.P. Art. 433 provide that recording devices are permitted at grand jury proceedings by paragraph (A)'s permission of persons "sworn to record the proceedings."
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 grand jury disclosure has the burden of proving a "compelling necessity" for the material sought, and the need must be demonstrated "with particularity." Ross, 144 So.3d at 937.
The Louisiana Supreme Court has declared that statutory rules of secrecy cannot interfere with an accused's constitutional rights to disclosure of material, exculpatory evidence. State v. Peters, 405 So.2d 189, 191 (La. 1981) citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In remanding the case to the district court, the Louisiana Supreme Court ordered the trial judge to conduct an in-camera inspection of a witness' grand jury testimony to determine whether it was inconsistent and material to the issue of guilt. Id. Without recordation, it would be almost impossible for a trial judge to carry out this task.
The State also has a great interest in the preservation of grand jury testimony to assist in the prosecution of their cases. Prosecutors may need to introduce into evidence a redacted transcript of a witnesses' inconsistent grand jury testimony. In State v. Ross, the sole eyewitness' prior identification of the defendant during the grand jury hearing was introduced when during trial, he claimed that "he didn't observe nothing." 144 So.3d at 940. The Louisiana Supreme Court found the State showed a compelling need for the introduction of grand jury testimony in this case.
The appellate court in Ross ruled that the State was required to show that their case would be "greatly prejudiced or an injustice done without the disclosure" since it did not fall within the exceptions in La. C.Cr.P. art. 434. This trial was conducted in March of 2011, prior to the legislative enactment of La. C.Cr.P. art 434.1., which allowed for disclosure of inconsistent witness testimony without demonstrating a compelling need. State v. Ross, 2011-1668 (La.App. 4 Cir 12/19/12), 144 So.3d 1037, 2012 WL6621342.
Discussion
In application of grand jury testimony disclosure, recordation seems necessary to preserve exculpatory and contradictory testimony by witnesses. Without recordation, a great burden is placed on the district attorney to be the memory keeper of the grand jury proceedings. The district attorney presenting at the grand jury proceeding may not be the same district attorney at the trial after indictment. There is a great risk that contradictory testimony would not be noticed by a different district attorney. Furthermore, the exculpatory nature of grand jury evidence may not become obvious until trial. The failure to turn over exculpatory evidence if prejudicial to the defendant will be reversible error. State v. Serigne, 2014-0379 (La. App. 4 Cir. 5/2/16), 193 So.3d 297, 319, writ granted , 2016-1034 (La. 5/26/17), 221 So.3d 78, and rev'd, 2016-1034 (La. 12/6/17), 232 So.3d 1227.
In the Serigne case, the Fourth Circuit held that the State's withholding of grand jury testimony, in which the sole witness recounted a completely different version of events than the version later given at trial, deeply prejudiced the defendants, entitling them to a new trial.
The Louisiana Supreme Court adheres to federal jurisprudence in interpreting state grand jury secrecy laws. Ross, 144 So.3d at 937. Since 1979, the federal system requires recordation of grand jury proceedings. Fed.R.Crim.P. 6(e)(1). The Advisory Committee on the 1979 Amendments to the Federal Rules of Criminal Procedure listed four benefits to requiring the recording of grand jury proceedings when the Federal Rules of Criminal Procedure were amended:
The State incorrectly cites to Federal Rule of Criminal Procedure 6(d) and cases decided before the 1979 Amendments when asserting that recordation of Federal grand jury proceedings is not required.
(1) ensuring that the defendant may impeach a prosecution witness on the basis of prior inconsistent statements before the grand jury, (2) ensuring that the testimony received by the grand jury is trustworthy, (3) restraining prosecutorial abuses before the grand jury, and (4) supporting the case made by the prosecution at trial.
State v. Grewell, 45 Ohio St. 3d 4, 7, 543 N.E.2d 93, 96 (1989).
Thirty-one states, and the District of Columbia, require grand jury proceedings to be recorded. Recording of Proceedings, Grand Jury Law and Practice (2d ed.) §4:9. It is discretionary in only two states, Missouri and Oregon. Id. In requiring recordation, the Ohio Supreme Court has stated that the grand jury serves as a shield against malicious prosecution and ill-advised trials. Grewell, 543 N.E.2d at 96. Recordation can restrain the potential for abuse within the grand jury system stemming from the prosecutor's rapport with and control over a grand jury. Id. The court further noted that there would be no means to challenge an illegally obtained indictment without a record of the proceedings. Id.
The disclosure of grand jury proceedings is "left to the sound discretion of the trial court." State v. Higgins, 03-1980 (La. 04/01/05), 898 So.2d 1219, 1241. If disclosure is to be decided by the trial court, it seems logical that the decision of whether recordation is necessary is properly with the trial court which will rely on the grand jury records in making a determination of disclosure. However, the State in this case had no opportunity to make its arguments against recordation. For these reasons, we remand this case to the trial court.
Furthermore, while the state asserts that the trial court acted without supporting statutory or jurisprudential authority in granting the Defendant's request for recordation, it seems to presume that it is the party authorized to control the manner in which the grand jury proceeds. The state posits that the Defendant must show that recordation is necessary under the circumstances because of the strong public policy of preserving the secrecy of grand jury proceedings. Despite recordation, the secrecy of grand jury proceedings will still be protected by the standards necessary for disclosure - standards which have been established in the Louisiana Code of Criminal Procedure. However, Louisiana has established no standards to be applied by the trial court in order to properly address this issue.
Recordation of grand jury proceedings should be presumed due to the interest in preserving evidence. In deciding who bears the burden at a hearing on recordation, because the state has the obligation of disclosure from grand jury proceedings under La. Code of Criminal Procedure Art. 434.1, the state should bear the burden of proving to a preponderance of the evidence that there is just cause to not record grand jury testimony.
Conclusion
For the foregoing reasons, we vacate the order of the trial court and remand for a hearing at which the state bears the burden of proving to a preponderance of the evidence that there is just cause not to record the grand jury testimony.
Gretna, Louisiana, this 18th day of September, 2019.
FHW WINDHORST, J., - CONCURS IN PART AND DISSENTS IN PART WITH REASONS (SEE ATTACHED) LILJEBERG, J., - CONCURS WITH REASONS (SEE ATTACHED) WINDHORST, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS
While I agree with the majority's disposition granting the State's writ application, I respectfully disagree with vacating the trial court's order and remanding the matter for a hearing on defendant's motion. I would reverse the trial court's order, deny defendant's motion, and remand for further proceedings, if any.
The secrecy of grand jury proceedings should be carefully maintained; however, this secrecy is not absolute. 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 La. C.Cr.P. art. 434 and 434.1 under which disclosure of grand jury proceedings is allowed. Outside the confines of those circumstances, a party seeking disclosure of grand jury material must show a compelling necessity for the material. Ross, 144 So.3d at 938. La. C.Cr.P. art. 433 permits, but does not require, the recording of grand jury proceedings. Recording grand jury proceedings is tantamount to disclosure. Whether revealed now or later, there is no other purpose or reason to record grand jury proceedings.
My review of defendant's motion shows that defendant did not allege specific facts that would entitle him to have the grand jury proceedings recorded. Defendant's motion alleged only that (1) failure of the State to record the grand jury proceedings against him would result in due process violations; and (2) recordation of the proceedings would in the best interest of the court to protect the integrity of the proceedings.
It is well-settled in Louisiana jurisprudence that a party seeking grand jury disclosure has the burden of proving a "compelling necessity" for the disclosure, and the need must be demonstrated "with particularity." Ross, 144 So.3d at 937. The party seeking disclosure must prove that, without access to the grand jury materials, the party's case would be "greatly prejudiced" or that an "injustice would be done." Id. at 937-938. A general wholesale request for transcripts does not satisfy the requirement of demonstrative particularized need. Id. at 938; In Re Grand Jury, 98-2277 (La. 04/13/99), 737 So.2d 1, 8.
Here, the defendant did not allege that any statutory or jurisprudential exception to the rule of grand jury secrecy applies. Nor do the allegations in the motion state with particularity any compelling necessity, or how any great prejudice or injustice would occur, as required by Ross, supra. The allegations in the motion are conclusory legal contentions. Moreover, defendant's request—in this case, in advance of the grand jury proceedings—amounts to a "wholesale request" which does not meet the requirement of a particularized need.
Lastly, and as a procedural matter, this is not the type of motion and relief which may be granted ex parte.
In this case, I would not remand for a hearing on this motion because the motion does not state any particularized grounds which, if true, would justify disclosure or recording of grand jury proceedings. Thus, as a matter of law, the motion is without merit and insufficient on its face. Further, the absence of any particular statement of necessity leaves nothing to be proven at a hearing.
If we order the trial court to conduct a hearing without requiring the mover to state any compelling necessity with particularity as required by law, we will be allowing any case brought before a grand jury to be stalled and the progress thereof thwarted by the filing of a baseless form motion. This would necessitate hearings with no stated purpose or justification for the court to consider. That is not what the law contemplates.
The grand jury is a district attorney's function. Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. La. C.Cr.P. art. 61.
The district attorney is free to file a bill of information instead of seeking an indictment by the grand jury, except on offenses punishable by death or life imprisonment. La. C.Cr.P. art. 382. Courts should not discourage the filing of indictments by interfering with the strong confidentiality of the grand jury proceedings.
The majority disposition states that "This Court is of the opinion that grand jury proceedings are presumed to be recorded," and that "the Code of Criminal Procedure assumes that grand jury proceedings will be recorded," and cites three articles to support that contention.
I disagree. La. C.Cr.P. art. 843 clearly applies after the filing of an indictment or bill of information, requiring recording of matters heard or which occur in the trial court. La. C.Cr.P. art. 433 gives an exclusive list of persons who may be present in a grand jury proceeding, but does not presume that they necessarily will be. La. C.Cr.P. art. 441 provides that persons employed to record and transcribe the proceedings be administered an oath. As above, requiring taking an oath when needed does not result in a presumption that recording will occur at all grand jury proceedings.
Accordingly, I would grant the State's writ application, reverse the trial court's March 21, 2019 ex parte order, and deny defendant's motion. I would further remand this matter to the trial court for other further proceedings, if any.
SJW LILJEBERG, J., CONCURS WITH REASONS
I agree with the writer's decision to grant the writ application, vacate the trial court's order and remand the matter for a hearing on defendant's motion to record the grand jury proceedings. The trial court erred by granting an ex parte order requiring the State to record the grand jury proceedings without first allowing the opportunity to present its opposing arguments.
However, I disagree with the writer's finding that the State bears the "burden of proving by a preponderance of the evidence that there is just cause not to record the grand jury testimony." Louisiana law does not require the recordation of grand jury proceedings. Therefore, I believe defendant should bear the burden at the hearing to prove why the trial court should order recordation of the grand jury proceedings.
HJL