Opinion
NO. 19-K-334
12-20-2019
STATE OF LOUISIANA v. KYLE DAVID JOEKEL
Susan Buchholz First Deputy Clerk IN RE STATE OF LOUISIANA APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE J. STERLING SNOWDY, DIVISION "C", NUMBER 12,313 Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED IN PART; DENIED IN PART; REMANDED
Relator, the State of Louisiana, seeks review of the trial court's (1) July 8, 2019 order requiring the State to produce a written report by Timothy Scanlan; (2) June 13, 2019 orders partially granting defendant's motion to quash the indictment as to counts 1 and 2; and (3) June 12, 2019 order requiring the State to produce the photographs and videos they intend to use at trial.
Motion to Prohibit Testimony by Timothy Scanlan Regarding Consistency of the Evidence with the Eyewitness Accounts Given by Deputies:
The State argues that the trial court abused its discretion by ordering the State to create a report concerning the opinion testimony of its expert witness. On July 8, 2019 the trial court ordered (1) that defendant was entitled to an expert report by Mr. Scanlan before he could testify; (2) the State to produce a report of its expert, Mr. Scanlan; and (3) that if the State failed to produce a report, Mr. Scanlan would "not be permitted to testify regarding consistency of the evidence with the eyewitness accounts given by the deputies."
A defendant has the right, upon motion, to inspect and copy results or reports of physical or mental examinations or scientific tests in the possession or knowledge of the state and intended for use at trial. La. C.Cr.P. art. 719. However, the State has no obligation to disclose information that it does not possess. State v. McGinnis, 04-1286 (La. App. 5 Cir. 10/06/05), 917 So.2d 471, 485; State v. Small, 29,137 (La. App. 2 Cir. 04/02/97), 693 So.2d 180, 191. The State has a continuing duty to disclose additional evidence which it discovers or decides to use at trial. La. C.Cr.P. art. 729.3.
La. C.Cr.P. art. 719 presently provides:
A. Upon written motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession , custody , control , or knowledge of the district attorney and intended for use at trial. If the witness preparing the report will be called as an expert, the report shall contain the witness's area of expertise, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor. If the expert witness has not reduced his results to writing, or if the expert witness's written report does not contain the information required of an expert as provided in this Article, the state must produce for the defendant a written summary containing any information required to be produced pursuant to this Article but absent from a written report, if any, including the name of the expert witness, his qualifications, a list of materials upon which his conclusion is based, and his opinion and the reason therefor.
( Emphasis added; new provisions underscored.)
The previous version of La. C.Cr.P. art. 719, applicable before January 1, 2014, did not contain any requirement or explanation as to what shall be contained in the expert's report, or that the State was required to produce a written summary if the expert did not reduce the results to writing or if the report did not contain the required information.
Previous version of La. C.Cr.P. art. 719 provided, in pertinent part:
A. Upon motion of the defendant, the court shall order the district attorney to permit or authorize the defendant to inspect and copy, photograph, or otherwise reproduce any results or reports, or copies thereof, of a physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial. Exculpatory evidence shall be produced under this Article even though it is not intended for use at trial.
It is unclear from either party's brief in this writ application which version of La. C.Cr.P. art 719 the parties contend is applicable. However, we do not have to make a determination of which version of article 719 is applicable to rule in this matter. Under either version of the article, the State is required to allow defendant access to the "results" of a "physical or mental examination, and of scientific tests or experiments, made in connection with or material to the particular case, that are in the possession, custody, control, or knowledge of the district attorney and intended for use at trial."
We are not persuaded by the State's argument that it satisfied its disclosure requirements by providing defendant with written notice that Mr. Scanlon will opine that the autopsy findings and physical evidence are consistent with "eyewitness accounts given by deputies." It is obvious that in order to reach this conclusion, Mr. Scanlan had to conduct examinations and tests of the relevant evidence which will undoubtedly be presented to the jury during his trial testimony. We are of the opinion that disclosure of the various examinations and/or test results used by Mr. Scanlan to formulate his conclusory opinion is necessary for the defendant's adequate preparation for trial and to cross-examine the expert, and must be given to the defense. Fundamental fairness and due process require that defendant have the opportunity to examine the basis from which Mr. Scanlan reached his conclusions. See State v. Lingle, 481 So.2d 1046, 1048 (La. 1985). Inherent in justice and the concept of fundamental fairness is ensuring a "balance of forces between the accused and his accuser." State v. Reimonenq, 19-0367 (La. 10/22/19), --- So.3d ---, citing, Wardius v. Oregon, 412 U.S. 470, 474, 93 S. Ct. 2208, 2212, 37 L. Ed. 2d 82 (1973).
Out of an abundance of caution, the trial court ruled that the State must give defendant a written report of Mr. Scanlan's findings which form the basis of his opinion. Under the facts and circumstances of this case, we cannot find the trial court erred in its ruling. Motions to Quash Counts 1 and 2 of the Indictment Pursuant to La . C.Cr.P. art. 532(5):
On June 13, 2019, the trial court granted in part defendant's motions to quash counts one and two of the indictment, and ordered counts one and two of the indictment to be amended to remove language stating that defendant was engaged in the perpetration of an assault by drive-by shooting. The trial court found as fact that the victim in each count was "not killed by a firearm discharged from a motor vehicle on a public street or highway. The allegation does not meet the facts made in open file discovery." The State contends that the trial court's partial granting of the defendant's motion to quash both counts one and two of the indictment was improperly based on factual evidence, instead of the face of the indictment.
The June 13, 2019 order states that a portion of the indictment on count 2 is granted in part, and thereafter mistakenly refers to it as count 1. The motion to quash count 1 is granted in part in a separate order. --------
In criminal prosecutions, "an accused shall be informed of the nature and cause of the accusation against him." La. Const. art. I, § 13. The State may provide that information in the indictment alone or in its responses to a defense request for a bill of particulars. State v. DeJesus, 94-0261 (La. 09/16/94), 642 So.2d 854, 855. La. C.Cr.P. art. 464 provides that the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.
La. C.Cr.P. arts. 532 and 485 list the general grounds for quashing an indictment, which include when it appears from the bill of particulars that the offense charged was not committed or that the defendant did not commit it. State v. Lauff, 06-717 (La. App. 5 Cir. 02/13/07), 953 So.2d 813, 817. Defendant filed his motions to quash under La. C.Cr.P. art. 532(5), which provides that a motion to quash may be based on a bill of particulars that has shown a ground for quashing the indictment under La. C.Cr.P. art. 485. La. C.Cr.P. art. 485 provides, in pertinent part:
If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured.
A motion to quash is a mechanism to urge pre-trial pleas, i.e., pleas which do not go to the merits of the charge. State v. Billard, 03-319 (La. App. 5 Cir. 07/29/03), 852 So.2d 1069, 1074, writ denied, 03-2437 (La. 02/06/04), 865 So.2d 739. At a hearing on such a motion, evidence is limited to procedural matters, and the question of factual guilt or innocence is not before the court. Id.
A court considering a motion to quash must accept as true the facts contained in the bill of information and in the bill of particulars and determine as a matter of law from the face of the pleadings whether a crime has been charged. Id. While evidence may be adduced on the motion to quash, such evidence may not include a defense on the merits. State v. Byrd, 96-2302, (La. 03/13/98), 708 So.2d 401, 411 cert. denied, Peltier v. State, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998). The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Billard, supra. When the issue presented in a motion to quash is exclusively a question of law, appellate courts review the ruling de novo. State v. Collins, 19-231 (La. App. 5 Cir. 06/19/19), 275 So.3d 401, 403.
Here, the defendant was charged with two counts of first degree murder under La. R.S. 14:30(A)(1), (2), and (3), and the State alleged that he "killed a human being . . . and was a principal to said killing, when [defendant] had the specific intent to kill and inflict great bodily harm and when [defendant] was engaged in the perpetration of an assault by drive-by shooting."
An assault by drive-by shooting is defined in La. R.S. 14:37.1 A as an "assault committed with a firearm when an offender uses a motor vehicle to facilitate the assault." La. R.S. 14:37.1 C details that the term "drive-by shooting" as used in that section and in La. R.S. 14:30 A(1) is "the discharge of a firearm from a motor vehicle on a public street or highway with the intent either to kill, cause harm to, or frighten another person." La. R.S. 14:37.1 C.
Accepting as true the facts contained in the amended indictment, the face of the indictment states that defendant killed human beings and had the specific intent to kill or inflict great bodily harm when engaged in the perpetration of an assault by drive-by shooting, a chargeable offense. It additionally alleges that defendant had the specific intent to kill or inflict great bodily harm upon a peace officer engaged in the lawful performance of his duties or when he had the specific intent to kill or inflict great bodily harm upon more than one person. The indictment does not mislead defendant. Further, the State was not required to set forth any aggravating factors under which it would seek to prove defendant's commission of first degree murder at trial. See La. C.Cr.P. art. 465 A(31); State v. Lee, 10-1592 (La. App. 1 Cir. 11/10/10), 52 So.3d 210, 213, writ denied, 10-2741 (La. 09/02/11), 68 So.3d 523.
A review of the transcript shows that defendant relied on evidence and testimony from other hearings and introduced testimony of a witness to support his motion to quash, and that the trial court relied on more than the allegations in the bill of indictment, including the district attorney's open file discovery accepted by defense counsel in lieu of a bill of particulars, and provided it to the court. However, open file discovery cannot be used as a substitute for a bill of particulars for purposes of La. C.Cr.P. art. 485. State v. M.J.S., 05-380 (La. App. 3 Cir. 11/02/05), 916 So.2d 1215, 1219-1221; State v. James Manuel Turnbo, No. 2007-270 (La. App. 3 Cir. 10/03/07), 966 So.2d 1220.
Based on the amended indictment, upon de novo review, we find that the trial court improperly considered evidence of the merits of defendant's defense, and erred in partially granting the motions to quash and removing language regarding "assault drive-by shooting" from counts one and two of the indictment. Even if the State could not prove that defendant was a principal to or engaged in the perpetration of an assault by drive-by shooting, the State additionally charged defendant with first degree murder under La. R.S. 14:30 A(2) and (3). Accepting the facts contained in the amended bill of indictment as true, from the face of the indictment a crime was properly charged. Furthermore, we note that the trial court should not have granted the motion to quash without first allowing the State an opportunity to cure the alleged defect. See State v. Estem, 18-0560, 2018 WL 4623176, at *2 (La. App. 4 Cir. 09/26/18). Accordingly, the trial court's June 13, 2019 orders requiring the indictment on count one and two to be amended to remove language regarding an "assault by drive-by shooting" is reversed and the defendant's motions to quash counts 1 and 2 are hereby denied.
Motion for Notice of Which Photographs/Video Images the State Intends to Introduce at Trial and to Exclude Photographs/Video Images that are Unduly Prejudicial:
The State contends that the trial court abused its discretion in ordering the State to specify which photographs and videos it intends to use at trial, and by barring any photographs or videos as prejudicial without a hearing. The trial court's June 12, 2019 order granted defendant's motion stating that "[t]he State should produce photos and videos they intend to use at trial by June 14, 2019. The photos and videos that are chosen for trial shall not be duplicates nor overly prejudicial against the defense."
Pursuant to La. C.Cr.P. art. 17, the trial court has the authority to issue any order which is necessary or proper to aid in the exercise of its jurisdiction. The trial court is afforded vast discretion as to matters pertaining to the conduct of judicial proceedings. State v. Charles, 10-1856 (La. 8/23/10), 42 So.3d 406.
Upon review, we find that the State has not shown that the trial court abused its vast discretion by ordering it to produce the photographs and videos prior to trial. The trial court's order was entered to ensure that the proceedings are conducted in an orderly and expeditious manner. The State argues that photographs and videos should not be excluded because there has not been a hearing on admissibility. This argument is premature since the trial court's ruling only ordered the State to produce the photographs/videos it intended to use. The trial court did not rule that any specific photographs or videos were duplicative in nature or that any specific photographs or videos were prejudicial and inadmissible. Accordingly, the writ application is denied as to this claim.
DECREE:
For the reasons stated herein, the State's application for writs is granted in part, denied in part, and the case remanded, as follows:
(1) We deny the writ as to the trial court's July 8, 2019 order requiring the State to produce a written report by Timothy Scanlan;
(2) The trial court's June 13, 2019 orders partially granting defendant's motion to quash the indictment as to counts 1 and 2 is reversed and defendant's motion is hereby denied; and
(3) We deny the writ as to the trial court's June 12, 2019 order requiring the State to produce the photographs and videos they intend to use at trial.
This matter is remanded to the trial court for further proceedings consistent with this disposition.
Gretna, Louisiana, this 20th day of December, 2019.