State v. Tassin

• Decision Date: 17 March 2021
• Docket Number: NO. 20-K-406,20-K-406
• Citation: 316 So.3d 116
• Parties: STATE of Louisiana v. Jake TASSIN
• Court: Court of Appeal of Louisiana — District of US

316 So.3d 116

STATE of Louisiana

v.Jake TASSIN

NO. 20-K-406

Court of Appeal of Louisiana, Fifth Circuit.

March 17, 2021

COUNSEL FOR PLAINTIFF/RELATOR, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Darren A. Allemand, Larose, Matthew Whitworth

COUNSEL FOR DEFENDANT/RESPONDENT, JAKE TASSIN, C. Gary Wainwright

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

WICKER, J.

The State seeks review of the district court's September 10, 2020 ruling granting defendant Jake Tassin's motion to compel the State to produce "impeaching information" as to a confidential informant (CI). For the following reasons, this writ is granted.

Background

The State's case against Mr. Tassin is based on the following facts. On October 23, 2019, at approximately 4:35 p.m., Agent Blaine Howard of the Jefferson Parish Sheriff's Office Narcotics Division received information from "a reliable and credible confidential informant"¹ that Mr. Tassin would be distributing a quantity of cocaine at Oakwood Mall in Terrytown. The CI provided that Mr. Tassin would arrive shortly in a white Chevrolet Impala. Agent Howard also learned that Mr. Tassin's history included numerous drug related arrests and convictions dating back to 1993.

At approximately 4:45 p.m., Agent Howard and Agent Carl Marshall began surveilling the mall parking lot and, after approximately ten minutes, observed the arrival of a white Chevrolet Impala. The agents ran the license plate and verified that the Impala was registered to Mr. Tassin. Thereafter, both agents Howard and Marshall focused attention on Mr. Tassin, who was backed into a parking spot with several vacant parking spots on both sides of his vehicle. Two or three minutes later, the agents saw a second man arrive in an older model Nissan sedan and park on the passenger side of Mr. Tassin's vehicle. They saw the man get out of the Nissan, enter Mr. Tassin's passenger seat, and exit less than one minute later.

Having observed behavior that the agents believed was indicative of a narcotics transaction, Agents Howard and Marshall began to converge on Mr. Tassin and the man in the Nissan, intending to perform an investigatory stop. However, when the two men drove in opposite directions, the agents followed Mr. Tassin to another area of the parking lot where he again backed into a spot between vacant spaces and remained in his car.

After observing for approximately two minutes, Agents Howard and Marshall pulled up in front of Mr. Tassin and activated the lights on their unmarked vehicles. As the agents approached Mr. Tassin's door, Agent Howard observed a Glock 27 handgun on Mr. Tassin's lap. Agents removed the weapon and arrested defendant for being a felon in possession of a firearm. No illicit narcotics or additional firearms were discovered during a search of Mr. Tassin's vehicle, but an N.C.I.C. check on the recovered firearm showed that it was reported stolen in Virginia. Mr. Tassin also had $877 on his person.

Procedural History

On October 23, 2019, Mr. Tassin was charged by bill of information with one count of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1.² On January 13, 2020 and May 7, 2020, Mr. Tassin filed motions to reveal the identity of the CI and to produce impeaching information regarding the CI (collectively "CI motions"). On July 15, 2020, Mr. Tassin filed a motion to compel a written response from the State as to the CI motions. The district court set a Rule to Show Cause why the State should not provide Mr. Tassin with the discovery he sought or be precluded from admitting any hearsay statements from the CI or eliciting testimony that officers in this case were acting on a "tip."

On August 28, 2020, the State filed a memorandum in opposition to defendant's motions. The matter proceeded to hearing on September 10, 2020, and the trial court denied Mr. Tassin's motion as to the identity of the informant, but granted the motion in part as to the impeaching information regarding the CI, providing oral reasons for judgment. The State objected and gave oral notice of its intent to seek a writ, after which the trial court stayed the execution of the production of impeachment information until the disposition of the State's writ. The instant writ application was timely filed on November 9, 2020.³

Summary of Arguments

In his CI motions, Mr. Tassin alleged that law enforcement officers executed "a pre-arranged vicious armed assault" upon him without observing any suspicious activity sufficient to give rise to reasonable suspicion or probable cause. He claimed that the sole justification for the officers’ actions was the alleged CI information, and he doubted that a CI existed, declaring, "the State has produced not one scintilla of evidence to corroborate the naked assertion that a confidential informant had been in a position to know such information."

Therefore, Mr. Tassin argued that he was entitled to know the identity of the CI as "the testimony of the alleged informant [was] vital to the defense," and the defense would call him to testify. Mr. Tassin also demanded the disclosure of impeaching information, stating, "in order to justify the conduct of the JPSO officers involved in this assault, the State must not only introduce said informant hearsay, but the State must vouch for the credibility of the non-testifying declarant." Therefore, Mr. Tassin asserted that, because he was entitled to impeach a non-appearing witness in the same manner as if he appeared, the State should be required to produce the following information on the CI:

1) Any and all records and information revealing prior felony convictions, convictions for a crime involving false statements or dishonesty, and the relevant "rap sheets;"

2) Any and all records and information revealing prior misconduct or bad acts attributed to the informant, including, but not limited to, any acts of misconduct conducted by them ... all information relating to the informant's credibility, including any biases, prejudices or motives, as well as the substantive evidence in the informant's possession regarding entrapment; ...

3) Any and all consideration or promises of consideration given to the informant ...;

4) Any and all threats, express or implied, direct or indirect, or other coercion made or directed against the informant, criminal prosecutions, investigations, or potential prosecutions pending, or which could be brought against them, any probationary, parole, deferred prosecution, or custodial status of the witness and any civil, tax court, court of claims, administrative, or other pending or potential legal disputes or transactions with the government or over which the government has a real, apparent, or perceived influence;

5) The existence and identification of each occasion on which the informant has testified before the court, grand jury, or other tribunal or body in connection with this or other similar cases;

6) Any and all records and information which arguably could be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the government's evidence or which arguably could lead to such records or such information. This request includes any evidence tending to show the narcotic habits of the informant at the time of the relevant events, and the informant's personal dislike of the defendant;

7) The names and criminal numbers of any and all other criminal cases, state or federal, in which the informant has been involved either as informant or as defendant. [And] Any prior criminal conduct on the part of the informant either as informant or as a defendant that is relevant in establishing a possible defense of entrapment. (internal citations omitted).

In opposition, the State argued that an informant's identity was privileged information pursuant to La. C.E. art. 514,⁴ the identity of an informant should be revealed to defendant only when his right to prepare his defense outweighed the need for protecting the "flow of information," and the burden was on the defendant to show exceptional circumstances for the disclosure of the CI's identity.⁵ The State acknowledged that disclosure may be warranted "where the confidential informant actually participated in the charged crime,"⁶ but maintained that the CI in this case did not participate in the charged offense.

Instead, the State argued, the facts of this case were like the facts in State v. Smith , 09-259 (La. App. 5 Cir. 11/24/09), 28 So.3d 1092, wherein this Court found that exceptional circumstances did not exist requiring disclosure of the CI's identity when the CI was merely the source of the probable cause for a search warrant, and the defendant was charged based on the evidence seized during the search. In this case, the State alleged that the CI provided information that led to officers surveilling Mr. Tassin, but the officers executed an investigatory stop based on the suspected narcotics transaction they personally observed. The State also pointed out that the officers’ observation of a gun in plain view gave rise to the actual charge in this case, not the information obtained from the CI regarding a narcotics transaction.

At the hearing on the motions, Mr. Tassin acknowledged that the privilege existed as to the CI's name, but he insisted that the State would be relying on hearsay by the CI to establish probable cause, and therefore, La. C.E. art. 806 required that he be provided the impeachment information, specifically, information relating to the CI's criminal record, the CI's relationship with law enforcement, whether the CI faced open charges, and whether the CI was a "paid informant who did this for a living."⁷

Mr. Tassin asserted that part of the reason he was entitled to this information was that, when CI's are involved, the State must verify that law enforcement can identify an "actual living person." His theory of the case is that officers...