97-0967 La.App. 4 Cir. 9/3/97, State v. Chapman

• Decision Date: 03 September 1997
• Citation: 699 So.2d 504
• Parties: 97-0967 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 504

699 So.2d 504

97-0967 La.App. 4 Cir. 9/3/97

STATE of Louisiana v. Jerry CHAPMAN.

No. 97-K-0967.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 3, 1997.

Rehearing Denied Sept. 30, 1997.

Jerry Chapman, Angola, Defendant/Relator, in pro. per.

Harry F. Connick, District Attorney, Susan Erlanger Talbot, Assistant District Attorney, New Orleans, for the State.

[97-0967 La.App. 4 Cir. 1] BYRNES, Judge.

The defendant Jerry Chapman requests a review of the trial court's ruling which denied his application for post conviction relief as untimely.

Chapman asserts that he is entitled to post conviction relief because of newly discovered evidence in the supplemental police report which contained Brady material. Chapman now claims that he did not receive a fair trial because the state did not disclose exculpatory Brady material from the supplemental police report that related that Tammy Polk did not tell the police that she had witnessed the murder.

Chapman avers that he was unaware of the fact that the supplemental police report stated that Officer Williams stopped two detectives when they were leaving the Charity emergency room after the shooting, and introduced them to three women, including Tammy Polk. According to the police report, the two detectives interviewed the three females and learned that they were not on the scene when the victim Timothy Carruth was shot. Chapman complains that he was not aware of this information prior to trial, and therefore he was unable to prepare a defense. Chapman asserts that he was prejudiced because this information was contrary to Tammy Polk's trial testimony in which she [97-0967 La.App. 4 Cir. 2] stated that she was an eye witness to the murder. He also complains that the state made false statements during voir dire and the opening statements.

Chapman's writ application presents two issues: (1) whether the application is timely; and (2) whether he was prejudiced and did not receive a fair trial.

In the present case, the defendant styled his district court pleading as a motion for new trial. It would be time-barred under La.C.Cr.P. art. 851 absent a showing of due diligence, if it were treated as it is captioned. La.C.Cr.P. arts. 853, 854.

The characterization of a pleading is not controlling. Adams v. First Nat. Bank of Commerce, 93-2346 (La.App. 4 Cir. 9/29/94) 644 So.2d 219, writ denied 94-3053 (La. 2/3/95), 649 So.2d 411. The nature of the pleading must be determined by its substance, not its caption; this is especially true for a party representing himself. Fussell v. Reed, 95-0398 (La.App. 1 Cir. 11/9/95), 664 So.2d 1214. See also Polk v. Hunt, 282 So.2d 614 (La.App. 1 Cir.1973); State v. Higginbotham, 470 So.2d 648 (La.App. 1 Cir.1985).

In the present case, if the defendant's claim or pleading is treated as an application for post conviction relief as the trial court treated it, La.C.Cr.P. art. 930.8(A)(1) provides an exception to the three year time limitation based on new facts previously unknown to the petitioner or his attorney, but it does not establish a standard for determining when the exception is met, such as reasonable diligence toward discovery of the evidence (as in a motion for new trial). The exception of art. 930.8(A)(1) is analogous to a situation where the petitioner untimely raises a new claim, which is a repetitive application for post conviction relief under La.C.Cr.P. art. 930.4. Under art. 930.4(E) the dismissal of a repetitive application for post conviction relief is allowed "if it [97-0967 La.App. 4 Cir. 3] raises a new or different claim that was inexcusably omitted from a prior application." Under that article the court may order the petitioner to state the reasons for his failure, and if the failure is excusable, then the claim shall be considered. La.C.Cr.P. art. 930.4(F).

In Drew v. Collins, 5 F.3d 93 (5 Cir. (Tex.) 1993), certiorari denied, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994), the federal appellate court applied the federal "abuse of the writ" standard in determining whether additional petitions for writ of habeas corpus may be dismissed for failure to raise the claim in a petition filed previously. When the abuse of the writ standard is asserted, the petitioner must show that he exercised reasonable diligence to include all the grounds for relief in his initial habeas corpus petition.

Allowing a petitioner to assert a claim based on new facts which could have been discovered with reasonable diligence would permit him to circumvent the delay based on his own neglect. Petitioner's failure to timely assert his claim may not be due to his inexcusable omission under La.C.Cr.P. art. 930.8(A)(1).

In State v. DiLosa, 94-2903 (La. 11/27/95), 662 So.2d 1040, where the defendant averred that he learned of a possible Brady claim after obtaining documents under the Public Records Act, the Louisiana Supreme Court remanded the case to the trial court for a hearing to determine whether the defendant proved or the state conceded that his claim rested on facts unknown to him or his counsel, and if so, whether the state suffered prejudice.

The Louisiana Supreme Court denied a defendant's writ application in State ex rel. Wade v. State, 95-0558 (La. 9/13/96), 679 So.2d 94, without [97-0967 La.App. 4 Cir. 4] remanding the case to the trial court for a hearing. Chief Justice Calogero dissented, stating that he would grant partial relief by requiring the district court to conduct a hearing to determine whether the state suffered any prejudice to its ability to respond because of the delay involved. The Chief Justice noted:

... Art. 930.8(A)(1) does not supply a specific time period, nor does it specify whether it requires a showing of due diligence by the petitioner or his attorney in attempting to procure new evidence. Instead, art. 930.8(A)(1) acts in concert with the general provision of art. 930.8(B), which allows for dismissal of both timely and untimely (but excepted) post-conviction-relief applications upon a showing of material prejudice to the state's ability to respond to the allegations in the petition. That showing is to be made in "a hearing limited to that issue." Thus, if relator in the instant case has demonstrated the existence of a fact of which he did not have knowledge, under the terms of the statute his claims would require a hearing in the district court as to what prejudice to the state's ability to respond, if any, the delay has caused.

Accordingly, I would grant relator partial relief by issuing an order remanding to the district court to determine: whether the relator's claim meets the threshold tests of La.C.Cr.P. arts. 928 and 929, and whether the relator has proved that his claim rests on facts not known to him or his attorney. If the state did not show prejudice from the delay to its ability to respond to the petition's allegations, the court would be required to adjudicate the merits of the relator's claim. [Footnote omitted.]

Id., 95-558, p. 1-2, 679 So.2d 94, 94-95.

In that case the majority did not require that the case should be remanded for a hearing. The requisite of a hearing is not mandated in all cases.

In State ex rel. Cormier v. State, 95-2208 (La. 10/4/96), 680 So.2d 1168, the Louisiana Supreme Court held that the district court was required to determine whether a claim would entitle the defendant to relief and whether a hearing was necessary, and if so, the district court was required to hold a [97-0967 La.App. 4 Cir. 5] hearing. Initially the trial court must decide if a hearing is necessary; however, a hearing is not mandatory.

In State v. Owen, 95 00407 (La.App. 3 Cir. 6/29/95), 663 So.2d 46, the case involved a fact situation similar to the present case. The defendant in Owen did not seek public records until almost ten years after his conviction was final and nearly three years after the time limitation under Article 930.8 had expired. The appellate court stated:

... We find, as did the trial court, that the relator failed to take reasonable steps to pursue his claims within the statutorily mandated filing deadline and that relator has therefore stated no ground warranting an exception to article 930.8 time limitations. Further, article 930.8 does not require the trial court notify the relator and afford him an opportunity to respond prior to dismissing the relator's application as untimely.

Id., 95 00407, p. 1, 663 So.2d 46.

This court agrees with the Third Circuit's determination to dismiss an application for post conviction relief under La.C.Cr.P. art. 930.8 where the defendant does not state adequate grounds for an exception to art. 930.8 time limitations without requiring that relator be given an opportunity to respond. Whether or not relator may be given an opportunity to respond is discretionary rather than mandatory under the totality of circumstances of each case.

In the present case, Chapman has not shown that his failure to timely raise the claim is excusable. The defendant alleges only that he obtained the District Attorney's records "on or about September 19, 1996" but gives no explanation for why he had not obtained the records in a timely fashion. In his supplemental brief, Chapman only states that "several years ago petitioner requested what ever [sic] reports the police had in its files." In his additional brief objecting to the State's answer, Chapman asserts that "your Honorable [97-0967 La.App. 4 Cir. 6] Court" denied his request for documents on September 19, 1989. It appears that at that time, the trial court rather than this appellate court denied Chapman's motion for failure to state a particularized need. Chapman does not establish if he stated a reason for his request for his production of documents.

Chapman avers that the District Attorney caused the delay in filing the claim. He states that he sued Harry Connick in trying to obtain the requested documents in August 1985; however, considering that Chapman did not provide a copy of...