State v. Le

• Decision Date: 27 May 2015
• Docket Number: No. 2015–K–0455.,2015–K–0455.
• Citation: 188 So.3d 1072
• Parties: STATE of Louisiana v. Trung LE.
• Court: Court of Appeal of Louisiana — District of US

188 So.3d 1072

STATE of Louisiana

v.Trung LE.

No. 2015–K–0455.

Court of Appeal of Louisiana, Fourth Circuit.

May 27, 2015.

Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Respondent/State of Louisiana.

Martin E. Regan, Jr., Regan & Sandhu, P.L.C., New Orleans, LA, for Applicant/Defendant.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN ).

PAUL A. BONIN, Judge.

Trung Le pleaded not guilty to the manslaughter charge of killing Brittany Thomas and the charge of the attempted second degree murder of an unknown male. During the pretrial discovery process, the prosecution furnished Mr. Le with a redacted supplemental report of the police investigation. In that report, the prosecution had deleted the names and contact information of some, but not all, of the witnesses to the gunfire exchange that resulted in Ms. Thomas's death and the attempted murder of the unknown male.

Following this limited disclosure, Mr. Le filed a motion under Article 729.7 of the Louisiana Code of Criminal Procedure seeking to be furnished with the deleted information or an unredacted copy of the police report. Initially, the predecessor trial judge denied Mr. Le's motion to conduct an ex parte hearing and instead ordered that the prosecution disclose to Mr. Le all material evidence under Brady v. Maryland. See 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Mr. Le timely sought our supervisory review. We granted Mr. Le's writ and remanded the matter for the trial judge to conduct an ex parte hearing in compliance with Article 729.7 A. See State v. Le, 15–0014, p. 8 (La.App. 4 Cir. 4/2/15), 165 So.3d 242, 244,.

That ex parte hearing was conducted, recorded, and maintained under seal. And, on April 17, 2015, the trial judge maintained the redactions, thereby denying Mr. Le's motion for the disclosure of the witnesses' names and contact information. The trial judge found that the prosecution had made a sufficient prima facie showing that the "disclosure of witnesses' information will more [than] likely result in some form of direct or indirect contact of these witnesses by parties other than the defendant's counsel which could result in intimidation, threats, or physical harm." Mr. Le again invokes our supervisory jurisdiction to review this ruling. See La.C.Cr.P. art. 912.1 C(1); La. Const. art. V, § 10 (B).¹

Following oral argument, we grant Mr. Le's application for a writ of supervisory review. We have reviewed the trial judge's discovery ruling under a highly deferential abuse-of-discretion standard and find no erroneous application of law. We accordingly deny the relief sought by Mr. Le and affirm the trial judge's ruling.

We explain our decision in greater detail in the following Parts.

I

Because of the pretrial status of this matter, there has not been a full development of the facts surrounding the incident in question. We understand, however, based upon the parties' submissions in the trial court and to this Court, that the events which gave rise to the pending criminal charges occurred in the predawn hours of June 29, 2014 at the corner of Bourbon Street and Orleans Avenue in the French Quarter. Mr. Le arrived in the French Quarter armed² and joined a group of friends, who were previously engaged in activity involving narcotics, at that intersection. The submitted video recordings then show that crowds were in the area and that panic ensued as gunfire was exchanged. According to the redacted police report, in addition to Ms. Thomas, nine other persons were wounded by bullets.

Forensic evidence suggests that at least two different types of firearms were discharged during the confrontation. The police have identified Mr. Le as one of the shooters, and Mr. Le does not dispute that he fired a weapon. The identity of another person, who is clearly visible in the submitted video firing a weapon, has never been determined and, according to the district attorney, is the unknown male victim identified in the indictment. We also understand that Mr. Le intends to justify his use of the weapon as acting either in self-defense or in the defense of others.

II

In this Part we review Articles 718 and 729.7 of the Louisiana Code of Criminal Procedure and examine operative terms essential for determining the merits of Mr. Le's application.

A

Articles 718 and 729.7 are both contained in Chapter 5 of Title XXIV of the Louisiana Code of Criminal Procedure, which controls pretrial discovery. Article 718 is contained in Part A of Chapter 5 relative to discovery by the defendant, while Article 729.7 is contained in Part C relative to the regulation of that discovery. See Le, 15–0014, pp. 4–5, 165 So.3d at 245.

Article 718 was amended and Article 729.7 was codified in connection with a recent comprehensive revision of Chapter Five.³ See 2013 La. Acts, no. 250. Following the revision, both articles became effective for cases filed after December 31, 2013. See ibid. See also Le, 15–0014, p. 5, 165 So.3d at 245. This comprehensive legislation originated in the Louisiana House of Representatives as House Bill no. 371. See Louisiana State Legislature, 2013 Regular Session, House Bill no. 371, http://www.legis.la.gov/Legis/ViewDocument.aspx?d=833957 (last visited May 26, 2015). And testimony before the House Committee on the Administration of Criminal Justice on May 1, 2013 indicates that this revision was the result of a collaborative process between the Louisiana Association of Criminal Defense Lawyers, the Louisiana District Attorney's Association, and the Louisiana Law Institute.

In amending Article 718, the legislature for the first time⁴ authorized a defendant, during pretrial discovery, to inspect and copy "law enforcement reports created and known to the prosecutor made in connection with that particular case...." La.C.Cr.P. art. 718. The broadened discovery rights granted in this revision, including those in Article 718, were at the same time, however, limited by the enactment of Article 729.7. See 2013 La. Acts, no. 250.

Article 729.7"modified the procedure for disclosure of a witness known to the state and made known to the [district attorney] in written form." Le, 15–0014, p. 6, 165 So.3d at 246. Article 729.7 A provides: "Notwithstanding any other provision of law to the contrary, the district attorney or the defendant may delete or excise from any information required to be disclosed herein any information which identifies a witness if such party believes the witness's safety may be compromised by the disclosure." Article 729.7 thus permits, as here, the district attorney to excise from a law enforcement report the identifying information of any witness to a crime, including those whom the district attorney does not intend to testify at trial, if the district attorney believes that the witness's safety may be compromised by the inclusion of such information in the report.

To properly object to an excision or deletion, an opposing party must file a written motion requesting the disclosure of the document in unredacted form. See La.C.Cr.P. art. 729.7 A. See also Le, 15–0014, p. 6, 165 So.3d at 244. The trial judge, in order to find that a deletion was proper, must conduct an ex parte hearing in chambers, which is recorded and maintained under seal. SeeLa.C.Cr.P. art. 729.7 A. See also Le, 15–0014, p. 8, 165 So.3d at 246. The rules of evidence "shall not be applicable to the [se] ex parte proceedings...." La.C.Cr.P. art. 729.7 D. At this hearing, the redacting party must "disclose its reasons on the record why the deleted and excised portions of the document should not be disclosed. The recording of the proceedings and the unredacted document shall thereafter be retained under seal." Le, 15–0014, p. 7, 165 So.3d at 246.

The trial judge shall "maintain the deletion or excision if ... the party excising or deleting such information makes a prima facie showing that the witness's safety may be compromised by the disclosure."⁵ La.C.Cr.P. art. 729.7 A (italics added). In the event the trial judge concludes that the redacting party has not made a sufficient prima facie showing to support the deletion of the witness's identifying information, then the trial judge, upon motion of either party, shall grant an automatic stay of all matters related to the disclosure of the witness's information and maintain all proceedings under seal while the moving party seeks the supervisory review of appellate courts, including the Louisiana Supreme Court. See La.C.Cr.P. art. 729.7 C.

B

In this Part we examine the prima facie showing required to be made by the redacting party under Article 729.7 and then discuss the legal precepts that guide a district judge's determination of the sufficiency of a showing under that standard.

When House Bill no. 371 was proposed, Article 729.7 was initially designated as Article 716.1 and contained in Part A of Chapter Five, which, as previously stated, addresses pretrial discovery by the defendant. See Louisiana State Legislature, 2013 Regular Session, House Bill no. 371, http://www.legis.la.gov/Legis/ViewDocument.aspx?d=833957 (last visited May 26, 2015). Significantly, proposed Article 716.1 A indicated that the "court shall maintain the deletion or excision if, at an ex parte proceeding which shall be recorded and maintained under seal, the state establishes probable cause to believe the witness's safety may be compromised by the disclosure." See ibid. (emphasis added).

The House Committee on the Administration of Criminal Justice relocated proposed Article 716.1 to Part C of Chapter Five, which, as previously stated, addresses the regulation of pretrial discovery, and re-designated the original article as Article 729.7. See Louisiana State Legislature, 2013 Regular Session, Engrossed House Bill no. 371, http://www.legis.la.gov/Legis/ViewDocument.aspx?d=844000 (last visited May 26, 2015). Most importantly, the Committee amended the article to impose upon the...