State v. Trosclair

• Decision Date: 28 November 1983
• Docket Number: No. 82-KA-2014,82-KA-2014
• Citation: 443 So.2d 1098
• Parties: STATE of Louisiana v. Angelo TROSCLAIR, III.
• Court: Louisiana Supreme Court

Page 1098

443 So.2d 1098

STATE of Louisiana v. Angelo TROSCLAIR, III.

No. 82-KA-2014.

Supreme Court of Louisiana.

Nov. 28, 1983.

Rehearing Denied Jan. 27, 1984. ^*

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Beryl McSmith, Bridget Bane, Judith Lombardino, Asst. Dist. Attys., for plaintiff-appellee.

Servando C. Garcia, III, Frank J. Uddo, Basile J. Uddo, New Orleans, for defendant-appellant.

DENNIS, Justice. ^*

Defendant, Angelo Trosclair, III, was convicted following a bench trial of two counts of bribery of sports participants in violation of La.R.S. 14:118.1 and sentenced to four years at hard labor on each count. The sentences were suspended and defendant was placed on supervised probation for five years under the terms and conditions set out in La.C.Cr.P. art. 895. As a special condition of probation, defendant was ordered to serve ninety days in the parish prison and to pay a fine of twenty-five hundred dollars. Defendant appeals his conviction, and raises important questions of statutory and constitutional law.

On May 28, 1981, defendant was indicted in the Parish of Orleans for two counts of bribery of a sports participant. The grand jury accused defendant of offering and giving L.J. Durousseau, a jockey who rode in the fourth race at the Fairgrounds Racetrack on February 14, 1981, three hundred dollars with the intent to influence Durousseau's performance that day. The grand jury also accused defendant of giving another jockey who rode in the fourth race, Curtis Hale, six hundred dollars in exchange for Hale's promise not to finish first, second or third in that race.

The District Attorney of Orleans Parish sought the indictment after Messrs. Hale and Durousseau testified at an eviction proceeding instituted by the Fairgrounds Corporation against Mr. Larry Solow, an alleged gambler. During the civil inquiry and again at the criminal trial, Durousseau testified that he was approached by defendant at some point between 6:00 a.m. and 10:00 a.m. on February 14, 1981 while he was in the kitchen at the Racetrack. At this time defendant allegedly asked Durousseau to "take hold" of his mount in the fourth race. Durousseau testified that he agreed to stop his horse from running to win if defendant would pay him three hundred dollars. According to this witness, the money was given to him by the defendant several hours later while the two men were preparing for the race.

Curtis Hale testified that while he was sitting in the jockey's room prior to the fourth race defendant approached him, said "do you know what to do," and handed him a wad of one hundred dollar bills. Then, according to Hale, defendant warned him that the people supplying the money were dangerous and that he should not finish first, second or third. Hale further testified that he was aware of the danger as he had been accosted on the eve of the race by several unknown men who warned that a first, second or third place finish in the fourth race would result in him never touching another horse.

Assignments of Error Numbers One, Two and Three

Through his first and second assignments of error defendant argues that the trial judge erred in denying his motion in arrest of judgment which was based on grounds that defendant was not advised of and did not knowingly and intelligently waive his right to trial by jury. In his third assignment defendant argues that the trial court erred in cutting short the hearing on his motion in arrest of judgment.

In our opinion, the statement by defendant's attorney during a pretrial hearing that he planned to waive trial by jury, the minute entry showing such a waiver in defendant's presence in open court on the day of trial, and the defense counsel's testimony at the motion in arrest of judgment hearing that the defendant had been advised of his right to a jury trial, collectively, constitute adequate proof that defendant knowingly and intelligently waived his right to a trial by jury. See, State v. Phillips, 365 So.2d 1304 (La.1978); State v. Muller, 351 So.2d 143 (La.1977); State v. McCarroll, 337 So.2d 475 (La.1976).

The trial court fell into error, however, when it terminated the motion in arrest of judgment hearing without permitting the defendant to attempt rebuttal of the state's prima facie showing of a knowing and intelligent waiver of his right to jury trial. Accordingly, we will provisionally reject defendant's assignment of error and affirm his conviction, but we will remand the case for completion of the hearing, instruct the trial court to rule anew on the motion, and preserve the parties' rights to a further appeal from the ruling.

Assignment of Error Number Four

Through assignment of error number four defendant challenges four rulings by the trial judge, arguing that the trial judge committed reversible error in each instance. For the reasons discussed below, we conclude that defendant's fourth assignment of error is without merit.

A. Denial of Motion for Production of Grand Jury Testimony

Defendant moved pretrial for production and inspection of testimony of certain witnesses before the grand jury which indicted him. After a pretrial hearing, the trial court overruled the motion. At the hearing the defendant's attorney gave his reasons for the request to inspect the grand jury testimony: Certain witnesses may have perjured themselves before the grand jury; certain witnesses, some of whom were known to the defense counsel, may have given testimony favorable to the defendant before the grand jury. However, in his motion and argument, the defense counsel gave no specific facts to show the court that there was reason to believe these assertions.

It is a long established policy that the secrecy of grand jury proceedings should be carefully maintained. Many reasons for this have been stated. Secrecy helps to prevent the escape of prospective indictees by providing no forewarning to them of the investigation in progress; it insures that the grand jury investigation can proceed freely by protecting the grand jurors from outside influences and threats of reprisal; it serves to prevent the subornation of perjury and tampering of witnesses by targets of the investigation; it promotes free and open disclosure of information by witnesses without fear of retaliation; and finally, it acts as a shield by protecting innocent people under investigation from the injury to their reputations that could be caused by the disclosure of baseless accusations. However, the secrecy of grand jury proceedings is not absolute. The Supreme Court has stated that "in some situations, justice may demand that discrete portions of transcripts be made available for use in subsequent proceedings." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 at 219-20, 99 S.Ct. 1667 at 1673, 60 L.Ed.2d 156. 8 Moore's Federal Practice § 6.05.

Thus, Louisiana Code of Criminal Procedure Article 434 generally prohibits members of the grand jury and others present from divulging the testimony and other matters occuring during meetings but permits disclosure of grand jury materials in several situations: First, after the indictment, members of the grand jury and other persons present may reveal statutory irregularities in grand jury proceedings to defense counsel, the attorney general, the district attorney or the court; second, a court may direct disclosure of testimony given before the grand jury to show that a witness committed perjury in his testimony before the grand jury; third, attorneys for the state and for a person under investigation or indicted, are permitted access to witnesses for the purpose of discussing their testimony before the grand jury without court permission.

The difficulty encountered by the courts has been that on one hand, there is a strong public policy in favor of maintaining the secrecy of grand jury proceedings, while on the other hand, there is a strong policy in favor of openness in civil, as well as criminal, discovery and grand jury transcripts often provide "a storehouse of relevant fact." Dennis v. United States, 384 U.S. 855, 873, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966). Thus, the courts have been forced to strike a balance between these two competing forces.

The United States Supreme Court has stated that the indispensable secrecy of grand jury proceedings must not be broken except where there is a compelling necessity. While there may be instances in which a party's need for grand jury materials outweighs the need for continued secrecy, that need must be demonstrated "with particularity". That is, 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." Furthermore, a general wholesale request for transcripts does not satisfy the requirement of demonstrative particularized need. United States v. Proctor & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958). The Louisiana Supreme Court has followed basically the same approach in determining whether to permit discovery of grand jury transcripts. State v. Ates, 418 So.2d 1326 (La.1982); State v. Peters, 406 So.2d 189 (La.1981); State v. Martin, 376 So.2d 300 (La.1979).

The court must balance the continuing need for secrecy and the particularized need for disclosure in arriving at its determination. The party seeking disclosure has the burden of proving that the need for disclosure outweighs the continuing need for secrecy. If disclosure is permitted, it must be closely confined to the limited portion of the material for which there is particularized need. In any event, disclosure is left to the sound discretion of the trial court and will not be reversed in the absence of an abuse of that discretion. See Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).

A general claim such as that made...