State v. Jones

• Decision Date: 29 June 2001
• Docket Number: No. 2000-KK-2837.,2000-KK-2837.
• Citation: 791 So.2d 622
• Parties: STATE of Louisiana v. Terrence J. JONES.
• Court: Louisiana Supreme Court

791 So.2d 622

STATE of Louisiana v. Terrence J. JONES.

No. 2000-KK-2837.

Supreme Court of Louisiana.

June 29, 2001.

Richard P. Ieyoub, Attorney General, Baton Rouge, Paul D. Connick, Jr., District Attorney, Metarie, Rebecca J. Becker, Gregory M. Kennedy, Quentin P. Kelly, Gretna, for Applicant.

Martin E. Regan, Jr., New Orleans, for Respondent.

PER CURIAM:¹

In this pending prosecution for second degree murder in violation of La.R.S. 14:30.1, the trial court has determined that the state's withholding of a witness's prior statements before the hearing conducted on respondent's motion to suppress the witness's identification testimony so impaired the opportunity of the defense to cross-examine the witness, and the court's determination of the identification's reliability, that the state is precluded from introducing the witness's prior recorded testimony at trial upon a showing that he is no longer available to testify. La.C.E. art. 804(B)(1). We granted the state's application to reverse that ruling because the transcript of the suppression hearing shows clearly that even without benefit of the prior statements defense counsel not only had the opportunity to cross-examine the witness but also subjected him to a detailed testing of his ability to perceive accurately the events he related as the basis for identifying respondent. Moreover, notwithstanding the loss of the opportunity to confront the witness directly in court at trial, the defense will still have the opportunity to place before jurors the witness's prior statements and to argue what those statements may reveal about the accuracy of his identification. La.C.E. art. 806. In the present context, as in other instances of alleged prosecutorial misconduct, "the touchstone of due process analysis ... is the fairness of the trial, not the culpability of the prosecutor.... [T]he aim ... `is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused.'" Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982) (quoting Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963)).

James Artberry, Jr., made the statements at issue to Jefferson Parish Deputy Sheriff Michael Tucker on the morning of July 28, 1997, shortly after the victim's death. In his first statement, Artberry gave a skeleton outline of his activities earlier that night and claimed that while the shooting had taken place outside of his apartment as he stood on his front porch witnessing the events, he did not get a "good look" at the assailant because of the poor lighting in the area. In a second statement taken approximately 40 minutes later, after Deputy Tucker turned off his tape recorder and spoke to the witness off the record, Artberry acknowledged that he had been concealing some details about that evening. Artberry revealed that he had acted as an intermediary for the victim in an abortive drug transaction with respondent which was to have taken place outside of Artberry's apartment. Artberry informed Tucker that the drug deal went sour when the victim could not produce $20 for a rock of cocaine and respondent then shot and killed him in the dispute over payment. He also told Tucker that moments before the victim died, respondent turned and "looked at me, he said I fault you for this and then he shot the fellow." Artberry explained at the beginning of this second statement that he "was hiding some facts from the first statement `cause I was scared.'" Artberry subsequently identified respondent in the second of two photographic lineups conducted by Deputy Tucker.

At the hearing on respondent's motion to suppress Artberry's identification, the attorney representing respondent conducted a wide-ranging cross-examination of the witness with regard to the circumstances under which he viewed the offense and then identified respondent's photograph. However, Artberry made no mention, and defense counsel did not confront him, with his prior statements, either to the effect that he could not identify the perpetrator or that he had initially concealed his ability to make an identification because he had played a role in precipitating the events which led to the victim's death and because he was afraid of the perpetrator. The trial court denied the motion to suppress. Two months before trial of the present case was set to begin, Artberry died.

In response to a defense motion in limine filed by respondent's new counsel, the trial court ruled that Artberry's hearing testimony would be admissible at the forthcoming trial under the hearsay exception provided by La.C.E. art. 804(B)(1) for the prior recorded testimony of an unavailable declarant. The trial court thereby rejected respondent's argument that because defense counsel had used the criteria set out in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), to focus his cross-examination of Artberry at the suppression hearing on the circumstances under which he viewed the perpetrator and then identified him in Deputy Tucker's photographic array, he had not exercised his full opportunity to question the witness because he had not delved into Artberry's "bias, interest and motive for identifying someone else as the perpetrator of the murder; to in fact take the blame or the focus or the spotlight off of himself." Respondent unsuccessfully sought review of the trial court's ruling on the motion in limine in the court of appeal and in this Court. State v. Jones, 00-1286 (La.App. 5th Cir.7/14/00); State v. Jones, 00-2155 (La.7/18/00) 766 So.2d 1261.

On the date of trial, and during its redirect examination of Deputy Tucker, the state showed defense counsel the two statements made by Artberry on the morning of the victim's death. Defense counsel immediately moved for a mistrial on grounds that the state had not disclosed either statement before the hearing on respondent's motion to suppress Artberry's identification. After conducting a hearing outside of the jury's presence, the trial court found that, in fact, the state had not disclosed the statements before the suppression hearing despite a defense discovery request and despite the claim of the prosecutrix that she had provided counsel with open file discovery. The court reversed itself with respect to the admissibility of Artberry's prior recorded testimony on grounds that the state's withholding of the statements had deprived the court, and, in view of Artberry's subsequent death, would necessarily deprive the jury, of the opportunity to determine the reliability of Artberry's identification in light of his prior conflicting statements. Because jurors had learned of Artberry's identification in the state's opening remarks, the trial court then granted the motion for a mistrial. The state sought review in the court of appeal, which upheld the trial judge's ruling on grounds that "the defense did not have an opportunity to fully and effectively cross-examine the now unavailable witness, a necessary condition for admissibility of the former testimony." State v. Jones, 00-1432 (La.App. 5th Cir.9/13/00), ___ So.2d ___. The state's application to this Court followed.

As does its federal counterpart, Fed. R.Evid. 804(b)(1), La.C.E. art. 804(B)(1) provides an exception to the hearsay rule for testimony given by an unavailable declarant as a witness in another hearing in the same case "if the party against whom the testimony now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." The statute incorporates a firmly-rooted exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); United States v. Koon, 34 F.3d 1416, 1426 (9th Cir.1994),rev'd on other grounds,518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). The provisions of art. 804(B)(1) subsume jurisprudential criteria designed to protect the defendant's right to confrontation under the Sixth Amendment and La. Const. art. I, § 16. See State v. Hills, 379 So.2d 740, 743-44 (La.1980)

.

In the present case, before the state's disclosure of Artberry's prior statements, the trial court, court of appeal, and this Court had all rejected respondent's argument that La.C.E. art. 804(B)(1) did not apply to Artberry's testimony at the suppression hearing because defense counsel was motivated by different concerns at that proceeding than he would have been at trial. See United States v. Salerno, 505 U.S. 317, 326, 112 S.Ct. 2503, 2509, 120 L.Ed.2d 255 (1992) (Blackmun, J., concurring)

("Because `similar motive' does not mean `identical motive,' the similar motive inquiry ... is inherently a factual inquiry, depending in part on the similarity of the underlying issues and on the context of the [prior] questioning."); 2 McCormick on Evidence, § 304, p. 296 (5th ed., John W. Strong, ed. 1999) ("The requirement has become, not a mechanical one of identity or even of substantial identity of issues, but rather that the issues in the first proceedings, and hence the purpose for which the testimony was offered, must have been such as to produce an adequate motive for testing on cross-examination the credibility of the testimony.") (footnote omitted).

The subsequent revelation of Artberry's prior statements does not change our view as to the admissibility at trial of the witness's prior recorded testimony. In conducting the suppression hearing, the trial court not only allowed defense counsel the opportunity to confront and cross-examine Artberry but also permitted him to question the witness extensively as to his ability to perceive accurately and to recall the events of that evening. Under questioning by defense counsel, Artberry testified that he had seen respondent twice that night, on the first occasion "around the corner from my house." Respondent was in his car, and...