Opinion
No. 01-K-117
March 28, 2001
APPLYING FOR SUPERVISORY WRITS FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NUMBER 00-4999 HONORABLE JOELLEN GRANT, DIVISION "I."
Linda Davis-Short Indigent Defender Board 848 Second Street, 3rd Floor Gretna, Louisiana 70053 Attorney for Appellant.
Paul D. Connick, Jr. District Attorney Terry M. Boudreaux, Rebecca J. Becker, Richard R. Pickens, II Assistant District Attorneys 24th Judicial District Parish of Jefferson State of Louisiana 5th Floor-Gretna Courthouse Annex Gretna, Louisiana 70053 Attorney for Appellee.
Panel composed of Judges Susan M. Chehardy, Clarence E. McManus, and Philip C. Ciaccio, Pro Tempore.
Defendant/Relator seeks review of the trial judge's denial of his request for a pretrial hearing to determine the admissibility of victim impact evidence in a death penalty case for which defendant is charged with first degree murder. Defendant also sought to limit the number of victim impact witnesses. The trial judge denied the requests and reserved defendant's objections for the penalty phase, at which time a ruling could be made.
To show its compliance with the requirements of Bernard, the state listed ten relatives of the victim, and presented general, conclusory statements regarding their testimony. We conclude the absence of particular statements prevents the trial judge from making the pretrial determination of admissibility as contemplated by Bernard. We are mindful, however, of the Louisiana Supreme Court's disapproval of an evidentiary hearing at which victim impact witnesses are called to testify. State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, cert. denied, 531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001). Thus, the trial judge correctly refused to conduct such an evidentiary hearing and the writ application is denied insofar as the trial court's ruling in that regard. However, the writ application is granted insofar as the trial judge denied any pretrial determination of the admissibility of victim impact evidence.
State v. Bernard, 608 So.2d 966 (La. 1992).
IT IS ORDERED that the trial judge's ruling denying defendant's request for a pretrial determination of the admissibility of victim impact evidence be and is hereby vacated and set aside.
IT IS FURTHER ORDERED that the case be remanded with instructions to the trial judge, to order, pretrial, the state to submit to defendant written, signed statements by the witnesses as to the testimony to be offered, and to allow defendant a reasonable period of time, pretrial, to make objections, if deemed necessary, to the statements, including any objection to the number of witnesses.
WRIT DENIED IN PART AND GRANTED IN PART; WRIT GRANTED INSOFAR AS VACATING AND SETTING ASIDE RULING DENYING MOTION FOR PRETRIAL DETERMINATION OF ADMISSIBILITY OF VICTIM IMPACT EVIDENCE; CASE REMANDED WITH INSTRUCTIONS .