STATE of Louisiana v. Levi Joseph GARRICK
No. 2003-K-0137
Supreme Court of Louisiana
April 14, 2004
870 So.2d 990
Robert F. DeJean, Jr., Opelousas, for respondent.
PER CURIAM.
Although not required to do so by Louisiana law, if a prosecutor adopts an open file policy by which he or she makes the prosecution file available to the defense to satisfy the state‘s discovery obligations as a matter of
In the present case, the court of appeal reversed respondent-defendant‘s conviction and sentence for armed robbery, a violation of
The evidence at trial established that on the morning of March 27, 2001, two hooded and armed men entered the Washington State Bank in Palmetto, Louisiana, and took over $20,000. The men fled to a car parked outside occupied by respondent in the back seat. The vehicle sped away from the scene but was stopped shortly thereafter by West Baton Rouge Parish law enforcement officers. The police recovered all of the money taken in the robbery along with three sets of gloves and hoods, and three weapons, only one of which, a .45 caliber automatic, was actually loaded.
In a statement given to the police following his arrest, which the state did not introduce at trial, respondent identified the perpetrators as his friends and traveling companions, Hilton Kelly and Skyler Guidry, and claimed that he was an innocent victim of circumstances in which, on the spur of the moment after they drove into Palmetto, Kelly and Guidry decided to commit the robbery and then left him behind in the car as they walked into the Washington State branch bank. Testifying under a grant of immunity, and in return for sentencing concessions in his own case, Guidry told jurors that the three men spent the night before the robbery in a motel room in Lafayette drinking and consuming drugs with two female companions. During the evening, the men discussed robbing a drug dealer in Palmetto.
The state subsequently charged all three men with armed robbery and jury selection in respondent‘s case was completed on December 5, 2001. The court sent the jurors home with the evidentiary portions of the trial set to begin on December 13, 2001. On December 12, the state and defense filed into the record a joint stipulation acknowledging that the state had “provided a copy of the entire law enforcement agency investigative file in this matter to the defendant” in satisfaction of its discovery obligations, and had further agreed “to provide to the defense any additional law enforcement agency investigative material subsequently obtained ... [including] any exculpatory evidence discovered, irrespective of the source.” The agreement specifically excepted the state‘s work product from the open file discovery.
However, unknown to the defense, the case file did not contain a copy of a motion submitted by the prosecutor to the Attorney General‘s Office on December 6, 2001, the day after jury selection concluded, seeking approval of a grant of use immunity to Guidry to compel his testimony at trial.
Proceedings then resumed in open court with the trial judge‘s general instructions to the jury and the state‘s opening remarks. At that point, the court conducted a second conference in chambers, evidently prompted by the prosecutor‘s report that Guidry had agreed to testify as a state witness. From the subsequent questioning of Guidry in open court, it appears that the co-defendant had met with his attorney and an investigator for the District Attorney‘s Office earlier that morning to discuss the immunity grant and had agreed to testify. Guidry had also provided a brief oral statement outlining the testimony he would provide the state. In the brief meeting which subsequently took place in the hallway outside the courtroom before he testified, Guidry did not discuss details of his testimony with the prosecutor but learned that the state had “sweetened the pot” with a promised sentencing cap of 25 years imprisonment at hard labor in his own case as an incentive for testifying.
Against this backdrop, the court reaffirmed its decision to grant Guidry limited use immunity and appointed new and separate counsel for both co-defendants as the
In reversing respondent‘s conviction and sentence, the court of appeal observed that “[f]ailure of full, good faith compliance [with open file discovery] cannot be looked upon as harmless error where the failure relates to a due process violation such as failure to divulge exculpatory evidence.” Garrick, 02-0712 at 14, 832 So.2d at 1118. We have no quarrel with the court of appeal‘s premise that “when litigants [choose] to modify the discovery process and enter into an open file discovery agreement, it must be fully complied with in good faith.” Id. However, this Court has held generally that discovery violations do not provide grounds for reversal unless they have actually prejudiced the defendant. State v. Strickland, 398 So.2d 1062, 1067 (La.1981); State v. Norwood, 396 So.2d 1307, 1309 (La.1981). Even a discovery violation involving the state‘s failure to disclose exculpatory evidence does not require reversal as a matter of the Due Process Clause “unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.” Strickler, 527 U.S. at 281, 119 S.Ct. at 1948. Strickler observes in this regard that while “the term ’Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence .... [t]here are three components of a true Brady [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] claim: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Id., 527 U.S. at 281-82, 119 S.Ct. at 1948.
In the present case, the state did not actually suppress the exculpatory portions of Guidry‘s testimony and the prosecutor may not even have been aware of the mixed testimony his witness would present from the brief oral statement taken by his investigator shortly before Guidry appeared as the state‘s first witness at trial. Moreover, the state‘s strategy of turning one of the co-defendants in the case into a prosecution witness to increase the odds of convicting respondent arguably did not constitute part of the investigative file the state had committed itself to disclose as opposed to work product specifically exempted from the open file agreement. However, for present purposes, we assume that as part of its open file discovery the state should have provided specific notice to the defense that it had sought the approval of the Attorney General‘s Office for immunity to compel Guidry‘s testimony, that Guidry‘s oral statement to the state‘s investigator on the morning of December
Nevertheless, while late disclosure as well as nondisclosure of exculpatory evidence may deprive the defendant of a fair trial, in both instances the impact on the defense “must be evaluated in the context of the entire record.” Kemp, 00-2228 at 7, 828 So.2d at 545. In the present case, defense counsel sought a continuance or mistrial to “regroup” but the record shows that the testimony subsequently provided by Guidry meshed with the defense that counsel had painstakingly explained to prospective jurors during the voir dire examination conducted a full week before Guidry testified and, apparently, before open file discovery had occurred. Counsel had emphasized in jury selection that under the law of principals in Louisiana, see
Guidry‘s testimony changed the contours of that defense somewhat when the prosecutor impeached his own witness on the basis of Guidry‘s post-arrest statement in which he made no mention of any initial conspiracy to rob a drug dealer in Palmetto during the night of drinking and drug consumption in the Lafayette motel room. Guidry conceded on redirect that the discussion about robbing the Washington State branch bank took place in the Lafayette motel room and not as the men drove into Palmetto the next morning. However, even that concession by Guidry did not impact the core of the defense, which remained consistent from the beginning of jury selection to closing argument. In those final remarks, counsel asked jurors to consider that whatever else might have been said during the night of drinking in the Lafayette motel room, on the following morning, when respondent sobered up and found himself “over there in front of that bank that‘s where the tire met the road legally speaking ... this young man, said no I‘m not doing it, he is withdrawing. He is withdrawing from that act that they are contemplating committing.” Counsel also gave the same explanation for why respondent did not leap out of the car and run away that Guidry gave in his testimony. “Who is the only man with the bullets in the gun,” counsel reminded jurors, “The testimony you heard was Kelly was the only man with bullets in the gun.”
The record therefore shows that defense counsel integrated Guidry‘s unanticipated
The record thus shows that the trial court‘s denial of a mistrial or a postponement of the evidentiary portions of trial did not prejudice the defense or otherwise render the proceedings fundamentally unfair. The Third Circuit‘s decision is therefore reversed and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermitted on original hearing.
DECISION OF THE COURT OF APPEAL REVERSED; CASE REMANDED.