Opinion
NO. 20-K-406
03-17-2021
STATE of Louisiana v. Jake TASSIN
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
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" 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.
This description is included in the police report written by Agent Howard and admitted into evidence by the State in opposition to Mr. Tassin's motions to reveal the identity of the CI and to produce impeaching information regarding the CI.
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. 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."
The State alleged that Mr. Tassin was previously convicted of the crime of possession of cocaine over twenty-eight grams, in violation of La. R.S. 40:967(F), in case number 11-480, in the 24th Judicial District Court.
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.
The district court originally set a return date of October 10, 2020. On October 7, 2020, the State filed a motion for an extension of time to seek a writ, which was granted, extending the return date to November 9, 2020.
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, 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. The State acknowledged that disclosure may be warranted "where the confidential informant actually participated in the charged crime," but maintained that the CI in this case did not participate in the charged offense.
La. C.E. art. 514 provides, in pertinent part:
A. General rule of privilege. The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.
B. Who may claim the privilege. The privilege may be claimed by the prosecuting authority or an appropriate representative of the public entity to which the information was furnished.
C. Inapplicability of privilege. No privilege shall be recognized if: (1) The informer appears as a witness for the government and testifies with respect to matters previously disclosed in confidence.
(2) The identity of the informer has been disclosed to those who have cause to resent the communication by either the informer or the prosecution, or in a civil case, a person with authority to claim the privilege.
(3) The party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer's testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.
(4) In a criminal case, the prosecution objects.
State v. Baker , 15-401 (La. App. 5 Cir. 11/19/15), 179 So.3d 895, 901 and State v. Howard , 10-869 (La. App. 5 Cir. 5/24/11), 66 So.3d 1160, 1168.
State v. Lewis , 15-2256 (La. 4/4/16), 188 So.3d 1040 and State v. Dotson , 260 La. 471, 256 So.2d 594, 606 (1971).
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."
La. C.E. art. 806 provides in pertinent part, "When a hearsay statement, or a statement defined in Article 801(D)(2)(c) or (D)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. "
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 accosted Mr. Tassin without probable cause or reasonable suspicion, and fabricated the CI after the fact.
The State explained that it did not intend to call the CI to testify, and that any mention of the CI would come in under the police explanation doctrine, meaning an officer would testify only that the CI was the "genesis of this investigation" that caused the police to go to a particular public place where they observed the events leading to the arrest. The State argued that the police explanation doctrine did not trigger La. C.E. art. 806. The State further argued that disclosure of the impeachment information Mr. Tassin demanded would effectively reveal the CI's identity, even if it did not reveal the CI's name.
The trial court then denied the motion as to the CI's name, but granted it as to impeachment information, on the basis that La. C.E. art. 806 required the State to supply the impeaching information on the CI.
Law and Discussion
Louisiana has a strong public policy in favor of protecting the identity of confidential informants. State v. Ramsey , 10-333 (La. App. 5 Cir. 1/25/11), 60 So.3d 36, 41. The identity of confidential informants and information pertaining to them are considered privileged information pursuant to La. C.E. art. 514 and La. R.S. 44:3. Id. ; State v. Glosson, 36-999 (La. App. 2 Cir. 4/11/03), 843 So.2d 649, 655. La. R.S. 44:3 provides, "All records, files, documents, and communications, and information contained therein, pertaining to or tending to impart the identity of any confidential source of information... shall be privileged, and no court shall order the disclosure of same except on grounds of due process or constitutional law...."
We think it is clear that the impeaching information demanded by Mr. Tassin has the potential to reveal the CI's identity. See Ramsey , 60 So.3d at 38-39 (seeking documents pertaining to the "use, payment or employment of a confidential informant"). Therefore, the same rules governing disclosure of a CI's identity apply to disclosure of the impeaching information at issue here. See State v. Nedd , 2013-1068 (La. 5/12/13), 126 So.3d 1270 (reversing the trial court's grant of defendant's subpoena duces tecum because "[c]ompelled disclosure of the documents requested by the defendant would effectively reveal the identity of the State's confidential informant").
While the privilege is not absolute, and the trial court is vested with wide discretion when determining whether disclosure is proper, the burden is on the defendant to show exceptional circumstances justifying the disclosure. See, e.g. , State v. Hills , 03-716 (La. App. 5 Cir. 12/9/03), 866 So.2d 278, 282. The court must decide whether the defendant's right to prepare his defense outweighs the need for protection of the flow of information. See, e.g. , State v. Dotson , 260 La. 471, 256 So.2d 594, 606–07 (1971) (citing Roviaro v. United States , 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) ); State v. Zapata , 97-1230 (La. App. 5 Cir. 5/27/98), 713 So.2d 1152, 1158, writ denied , 98-1766 (La. 11/6/98), 727 So.2d 443.
In State v. Becnel , 95-591 (La. App. 5 Cir. 1/30/96), 668 So.2d 1281, 1285-86, this Court recognized the following guidelines to determine when disclosure of the identity of a confidential informant is necessary:
When an informant only supplies the information and does not participate in the transaction, disclosure is not required. On the other hand, when the informant plays a crucial role in the transaction and the defense meets its burden of showing exceptional circumstances justifying disclosure, disclosure is required. Participation in the alleged criminal transaction is the key; if the informant does not participate, the defendant cannot compel disclosure.
Citing State v. Quetant , 466 So.2d 567, 568 (La. App. 5th Cir. 1985) ; Dotson, supra; State v. Clark , 05-61 (La. App. 5 Cir. 6/28/05), 909 So.2d 1007, 1015, writ denied , 05-2119 (La. 3/17/06), 925 So.2d 538. State v. Davis , 411 So.2d 434, 437 (La. 1982) State v. Howard , 10-869 (La. App. 5 Cir. 5/24/11), 66 So.3d 1160, 1168-69, writ denied , 11-1468 (La. 4/9/12), 85 So.3d 135.
In State v. Smith , 09-259 (La. App. 5 Cir. 11/24/09), 28 So.3d 1092, 1098, writ denied , 10-1414 (La. 6/24/11), 64 So.3d 212, the officer who prepared and obtained a search warrant for the defendant's home personally observed a controlled buy between the defendant and the CI. This Court found that the defendant was not entitled to disclosure of the CI's identity when the defendant was not charged with the distribution of drugs to the CI; the charge was based on the cocaine discovered when the search warrant was executed.
In this case, the trial court erred in ordering the disclosure of impeaching information as to the CI when the CI did not participate in the crime in any way. Unlike the Smith case, the CI did not have contact with Mr. Tassin while working with police. The CI merely provided police with a tip that Mr. Tassin would be engaging in a narcotics transaction at Oakwood mall. Mr. Tassin was approached under suspicion after law enforcement officers independently observed behavior they believed to be indicative of a narcotics transaction. As officers approached Mr. Tassin's vehicle, the firearm that led to the charge in this case was in plain view. Mr. Tassin's charge of being a felon in possession of a firearm is wholly unrelated to the information the CI provided.
La. C.E. art. 806 does not require disclosure of impeaching information pertaining to CIs nor does it overcome the privilege under these circumstances. The testimony of a police officer may include information provided by another individual without constituting hearsay, if offered to explain the course of a police investigation and the steps leading to the defendant's arrest. State v. Cho , 02-274 (La. App. 5 Cir. 10/29/02), 831 So.2d 433, 447, writ denied, 02-2874 (La. 4/4/03), 840 So.2d 1213 (citing State v. Hawkins, 96-0766 (La. 1/14/97), 688 So.2d 473, 477 ). The State has indicated that it does not intend to call the CI as a witness at any pre-trial hearings or at the trial of this matter. The mere mention that a CI provided information in order to explain law enforcement presence at a particular location would not constitute hearsay, such that the CI would be subject to impeachment under La. C.E. art. 806.
However, Mr. Tassin seems to argue that whether the CI is credible or whether the CI exists is crucial for determining whether officers had reasonable suspicion for an investigatory stop or probable cause for an arrest. This Court has found that the reliability of a CI was not at issue when the CI was only responsible for introducing an undercover officer to the defendant, and the defendant proceeded to sell the officer cocaine while the CI waited in the other room. State v. Jones , 02-267, (La. App. 5 Cir. 7/30/02), 824 So.2d 514, 517, writ denied, 02-2518 (La. 6/27/03), 847 So.2d 1254 ; see also State v. Semien , 06-841 (La. App. 3 Cir. 1/31/07), 948 So.2d 1189, 1196, writ denied , 07-448 (La. 10/12/07), 965 So.2d 397 (finding the reliability of the CI was not at issue where the CI did not testify at trial or provide police with information used in the prosecution of the defendant). When, as in this case, the State's case relies on the personal observations of the arresting officers—rather than the information the CI provided—to establish reasonable suspicion or probable cause, the credibility of the CI is not at issue, See State v. Rogers , 95-1485 (La. App. 1 Cir. 9/27/96), 681 So.2d 994, 998, writs denied , 96-2609 (La. 5/1/97), 693 So.2d 749 and 96-2626 (La. 5/1/97), 693 So.2d 749, and La. C.E. art. 806 does not provide a basis for the disclosure of impeaching information that is likely to reveal the CI's identity.
This writ is granted. The trial court order compelling the State to produce impeaching information as to the CI is hereby vacated, and Mr. Tassin's motions to reveal the identity of the confidential informant and to produce impeaching information regarding the confidential informant are denied.
WRIT GRANTED
WINDHORST, J., DISSENTS WITH REASONS
I agree in principle with the legal conclusions of the majority. However, at the trial court's September 10, 2020 hearing, no evidence was admitted nor was any stipulation of fact entered showing that the confidential informant ("CI") had not participated in the criminal transaction, which is the determining factor here. Therefore, based on what was before her at the hearing, I do not believe that the trial court abused its broad discretion. Accordingly, I would deny this writ. When an informant only supplies the information and does not participate in the transaction, disclosure is not required. On the other hand, when the informant plays a crucial role in the transaction and the defense meets its burden of showing exceptional circumstances justifying disclosure, disclosure is required. Participation in the alleged criminal transaction is the key; if the informant does not participate, the defendant cannot compel disclosure. State v. Becnel, 95-591 (La. App. 5 Cir. 1/30/96), 668 So.2d 1281, 1285-1286.
Thus, evidence tending to prove that the CI did not participate in the crime charged in this case precludes the defendant's chance to show exceptional circumstances and obtain disclosure, and is therefore crucial.
Defense counsel argued to the trial court that the state had not submitted any evidence to show non-participation by the CI, which appears to have been so during the hearing.
Consider the following:
• The disclosure motions were argued and the court ruled on Sept. 10, 2020.
• Some 34 days later, on Oct. 14, 2020, a "status conference" was had via Zoom at which the defendant and defense counsel were not present. I can find no notice of this conference to defendant or his counsel in the record, nor is there anything in the record from which to determine how it came about. The minute entry of the conference is Exhibit "H" of the writ application.
• At this "status conference," which was not attended by defense, the State offered for the first time the police report and probable cause statement into evidence, and it was "admitted" into evidence long after the hearing and the court's ruling. The record shows that they were filed with the Clerk of Court for the 24th JDC on Oct. 15, 2020 (Exhibit "I").
• Exhibit "I" is the only arguable evidence of the premise that the CI only supplied information and was not involved in the crime. It was not before the court when the court ruled.
The only notice issued between Oct. 10, 2020 and Oct. 14, 2020 was for a subsequent pre-trial conference then scheduled for Nov. 5, 2020.
The writ granted by the majority relies on this premise, yet the only support for the assertion of non-involvement by the CI is Exhibit "I," the police report and probable cause statement, which was first filed as evidence 35 days after the hearing. It is also used in support of the argument that the police witnessed the criminal transaction from a public place.
It is well and firmly established that neither the trial court, nor the reviewing court, may consider any evidence not formally admitted into evidence at a hearing, i.e ., the police report and the statement of probable cause. This principle is universal in the jurisprudence of the Fifth Circuit Court of Appeal and the Louisiana Supreme Court. Exhibits and attachments not properly and officially offered and admitted into evidence cannot be considered, even if it is physically filed into the trial court record. State v. Whitley, 14-737 (La. App. 5 Cir. 3/25/15), 169 So.3d 658, 660, citing Denoux v. Vessel Management Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88 ; State v. Cobb, 13-0431 (La. App. 5 Cir. 06/25/14), 161 So.3d 28, 29 ; State v. Jones, 18-909 (La. App. 3 Cir. 6/5/19), 275 So.3d 34, 40 ; State v. Jackson, 11-1280 (La. App. 4 Cir. 8/22/12), 99 So.3d 1019, 1026.
The Supreme Court and this Court have routinely held that appellate courts may not consider evidence not properly admitted into evidence, even when the lack of admission into evidence was not assigned as error. Freeman v. Ochsner Clinic Foundation, 20-283 (La. App. 5 Cir. 11/10/20), 307 So.3d 335, 338 ; Wood Materials, LLC v. City of Harahan, 17-142 (La. App. 5 Cir. 10/2/17), 228 So.3d 293, 295.
In the case before us, the State obviously also views the previously unadmitted exhibit as necessary, and in the Exhibits List of its writ application the State included this note:
***At the hearing on September 10, 2020, the State inadvertently neglected to offer, file, and introduce its exhibit attached to its Opposition to the Defendant's Motions. The State remedied this deficiency on October 14, 2020, and all that occurred during the October 14, 2020 hearing was the State offering, filing, and introducing that exhibit.
Whether the omission was inadvertent or not, the submission of evidence a month after the ruling of the trial court does not "remedy the deficiency" of failing to offer such evidence during the hearing at issue. This evidence was not before the trial judge for her consideration, nor before defense counsel to confront it. Consideration of this evidence for the first time on review (or assuming the facts alleged therein) when it was not offered or proffered during the hearing disregards our consistent rule and that of the cases cited above.
It is true that during such a hearing the rules of evidence are relaxed, and hearsay is generally admissible. This, however, is not a matter of admissibility of evidence; the indispensable evidence here was simply not offered until after the trial court had ruled.
I don't doubt the State's or police version of events. However, I see no abuse of discretion or reversible error by the trial judge to justify granting this writ, based on what was presented to her during the hearing. I would therefore deny the writ.
Attachments hereto discussed above and made a part hereof are:
1. Exhibit "H"
2. Exhibit "I"
3. State's note in the Exhibit List in the Writ Application
Attachment 1
Attachment 2 Attachment 3
EXHIBITS
A. BILL OF INFORMATION.................................15
B. DEFENDANT'S MOTION TO REVEAL CONFIDENTIAL INFORMANT AND TO PRODUCE STATUTORILY REQUIRED IMPEACHING INFORMATION.................................................16
C. SECOND DEFENDANT'S MOTION TO REVEAL CONFIDENTIAL INFORMANT AND TO PRODUCE STATUTORILY, REQUIRED IMPEACHING INFORMATION......................................24
D. DEFENDANT'S MOTION TO COMPEL WRITTEN RESPONSE ON CONFIDENTIAL INFORMANT MOTIONS..............................31
E. STATE'S MEMO IN OPPOSITION TO CONFIDENTIAL INFORMANT MOTIONS AND EXHIBIT.........................................34
F. MINUTE ENTRY FROM SEPTEMBER 10, 2020 (WITH WRIT RETURN DATE).......................................................47
G. MOTION FOR EXTENSION OF TIME TO SEEK WRITS..........48
H. MINUTE ENTRY FROM OCTOBER 14, 2020..................51
I. EVIDENCE RECEIPT....................................52
J. TRANSCRIPT FROM SEPTEMBER 10, 2020..................53
*** At the hearing on September 10, 2020, the State inadvertently neglected to offer, file, and introduce its exhibit attached to its Opposition to the Defendant's Motions. The State remedied this deficiency on October 14, 2020, and all that occurred during the October 14, 2020 hearing was the State offering, filing, and introducing that exhibit.