
    STATE of Louisiana v. Eric ROSS.
    No. 2011-KA-1668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2012.
    Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Kevin V. Boshea, Kevin V. Boshea, Attorney at Law, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROLAND L. BELSOME, Judge.

1 ]By a grand jury indictment, the appellant, Eric Ross, was charged with second degree murder. He entered a not guilty plea and filed a motion to suppress identification. The district court denied the motion to suppress the identification. Following a trial, the appellant was found guilty as.charged by a unanimous jury. Subsequently, the district.court denied the motions for new trial and for post-verdict judgment of acquittal. After waiving delays, the district court sentenced appellant to serve life imprisonment at hard labor without benefits, to run concurrently. His motion for appeal was granted. A motion to reconsider sentence was denied.

On appeal the appellant raises several assignments of error.. In the first and most compelling of those assignments the appellant argues that the trial court erred in permitting the state to introduce Conrad Jackson’s grand jury testimony for purposes of impeaching him.

The appellant was found guilty of a homicide that occurred on October 6, 2008 near the intersection of L.B. Landry and Erie Streets in Algiers. The intersection is near the Fisher Housing Development. On that day, two victims were shot; one survived. The surviving victim would not cooperate with police. [¡/Tips received through Crimestoppers indicated that the SuWu gang was responsible for the shootings, and the appellant is a known member of the SuWu gang.

Conrad Jackson was the only eyewitness that came forward and identified appellant as one of the perpetrators. Mr. Jackson gave a recorded statement to Detective Anthony Pardo, and he also testifíéd before the grand jury detailing the incident and identifying the appellant. At the time that Mr. Jackson appeared in court for the appellant’s trial, he was incarcerated. He admitted to having charges pending against him and to having numerous prior drug convictions. Mr. Jackson then testified that on October 6, 2008, he was on his way to visit his niece in the Ficher Housing Development. From that point forward, Mr. Jackson became unresponsive except to deny seeing appellant shoot the deceased. When pressed by the prosecution, he admitted giving a statement to Detective Pardo; however, he stated that he was just saying whatever the detective wanted to hear. Further, Mr. Jackson also recalled viewing a six-person lineup shown to him by Detective Pardo, but he claimed that he chose appellant’s picture from the lineup simply because he knew appellant and not because he was one of the perpetrators of the homicide.

A portion of his recorded statement was then played for the jury; Mr. Jackson identified his voice on the recording. At that point, the proceedings were stopped, and the district court obtained counsel for Mr. Jackson. Although he attempted to invoke his Fifth Amendment right not to testify, the court ruled that he could not invoke the Fifth Amendment in advance of any potentially perjured testimony. The remainder of his recorded statement was then played for the jury.

13After the statement was played, Mr. Jackson pled the Fifth Amendment when he was asked whether he remembered giving the statement. ■ When asked whether he remembered speaking to Assistant District Attorney Margaret Parker, he was nonresponsive. Mr. Jackson was then declared a hostile witness at the request of the state. Thereafter, he refused to respond to any of the questions that were asked regarding his previous statements about witnessing the murder.

Mr. Jackson also claimed that he did not remember testifying before the grand jury. The prosecution urged the trial court'to allow a transcript of Mr. Jackson’s grand jury testimony to be produced to the jury. Over the objection of defense counsel, the trial court allowed the transcript of the grand jury testimony to be published for the jury. After the jury reviewed a transcript of his testimony, Mr. Jackson once again claimed not to remember telling the grand jury that the appellant shot the deceased or anything else regarding his grand jury testimony.

The transcript stated that on October 6, 2008, Jackson was headed to the Fisher Housing Development to visit his niece. He was driving his car on a street that runs along the side of the Development; the car in front of him pulled over to the right in front of a corner store. Two people jumped out of the car that pulled over and shot the deceased in front of the store. He personally knew one of the shooters, the appellant.

The issue before this Court is whether the trial court erred in allowing Conrad Jackson’s grand jury testimony to be admitted at trial. La. Const. Art. 5, § 34(A) mandates that the secrecy of grand jury proceedings be provided by law. La.C.Cr.P. art. 433 specifies who may be present during grand jury sessions, while La. C.Cr.P. art. 434 mandates that members of the grand jury, all other persons | ¿present at grand jury sessions, and all persons having confidential access to information concerning grand jury proceedings shall keep secret the testimony of grand jury witnesses, under penalty of contempt.

The four instances in which grand jury testimony may be disclosed under Article 434 are: (1) 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; (2) 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; (3) a witness may discuss his testimony with attorneys for the state and for the person under investigation or indicted, without court permission; and (4) the foreman of a grand jury that discovers a crime may have been committed in another parish after notification to his district attorney, shall make that discovery known to the attorney general, and the district attorney or attorney general may direct any relevant evidence and testimony to the district attorney of another parish. State v. Gutweiler, 2006-2596, p. 14 (La.4/8/08), 979 So.2d 469, 479. In addition to the mandates of La.C.Cr.P. art. 434, a trial court may act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment. State v. Trosclair, 443 So.2d 1098 (La.1983). Any party seeking the disclosure of grand jury testimony in any situation other than those allowed by |,⅞La.C.Cr.P. art. 434, is required to show a compelling necessity for the use of the materials. In re Grand Jury, 98-2277 (La.4/13/99), 737 So.2d 1,12.

In the instant case we are not presented with any of the four exceptions that permit the release of the grand jury testimony. The State informed the trial court that they sought to use the testimony to impeach the witness, but there was no specific request stated with particularity, nor was the transcript reviewed in camera by the trial court prior to its publication to the jury. The Supreme Court has said that the secrecy of the grand jury testimony is indispensible and the party seeking disclosure bears the burden of showing his case would be greatly prejudiced or an injustice done without the disclosure. State v. Higgins, 03-1980, p. 35 (La.4/1/05), 898 So.2d 1219, 1241 (citing State v. Tros-clair, supra). After such a showing is made, the decision to disclose the material is within the sound discretion of the trial court. Id. No such showing was made in this case, therefore the admission of Conrad Jackson’s grand jury testimony was an abuse of the trial court’s discretion.

Given that the grand jury testimony admitted by the trial court was from the only person to identify the appellant as the shooter, the gravity of the trial court’s error warrants a new trial. Accordingly, we vacate the appellant’s conviction and sentence and remand the matter for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons

|,1 respectfully dissent from the majority as it relates to the introduction of Conrad Jackson’s grand jury testimony.

“[T]he secrecy of grand jury proceedings is not absolute.” State v. Troselair, 443 So.2d 1098, 1102 (La.1983). “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.’ ” Troselair, 443 So.2d at 1102, quoting 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 (1979). A showing of “compelling necessity” is required to disclose grand jury testimony during a trial. Trosclair, 443 So.2d at 1103. “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.’ ” Troselair, 443 So.2d at 1103, quoting United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). “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.” Troselair, 443 So.2d at 1103.

When Mr. Jackson, the State’s eyewitness to the murder, took the stand, he informed the prosecutor that his questions were “irrelevant.” After being | instructed by the trial court judge that he had to answer the questions for the record, Mr. Jackson testified that he “didn’t observe nothing” and told Detective Pardo “whatever he wanted to hear.” However, Mr. Jackson could not recall what he told Detective Pardo during his interview. After repeatedly stating that he “didn’t see that guy shoot nobody,” a portion of Mr. Jackson’s recorded audio statement was played for the jury and Mr. Jackson identified his voice on the audio recording.

The trial court judge then dismissed the jury and obtained private counsel for Mr. Jackson. Mr. Jackson’s counsel stated that Mr. Jackson did not wish to testify any further. The trial court judge stated:

The Court finds there is no Fifth Amendment privilege at this point, that the State has argued, and the Court agrees, that you cannot prospectively or in advance of any potentially perjurious testimony invoke the Fifth Amendment right.
So the Fifth Amendment does not apply to this situation, and the State is allowed to both play the audio tape and/or present other evidence to Mr. Jackson concerning his alleged statements to N.O.P.D. after this alleged homicide.
And I need to put on the record, too, I know Mr. Jackson testified before the grand jury. That is proper impeachment should he fail to acknowledge that he testified before the grand jury.
I mean, the issue at that point is Mr. Jackson, from what he’s testified to here now, has said that he never spoke to Detective Pardo and Detective Pardo must have misheard him. And the fact is that if he testified essentially the same in the grand jury without that influence, I think it is a proper admissible document.

Following these statements, the jury reentered and the remainder of Mr. Jackson’s recorded audio statement to Detective Pardo was played for impeachment purposes. Upon examination by the State regarding the contents of the audio tape, Mr. Jackson stated, “I plead the Fifth. I ain’t testifying.” Mr. Jackson then ^testified, “[y]ou can do perjury or whatever. I didn’t see that man shoot nobody.” After several inaudible responses, Mr. Jackson informed the trial court that he was not going to answer any more questions.

The State then asked Mr. Jackson about his statements to an assistant district attorney; however, he gave inaudible responses and attempted to improperly “plead the Fifth.” After numerous responses including: “I plead the Fifth,” “I’m not going to answer no more of his questions,” “I didn’t see that dude shoot nobody,” and “give me perjury,” the trial court judge informed Mr. Jackson that he was “going to have to answer the questions.” Mr. Jackson then refused to answer questions regarding a beating, which required hospital attention, within the two months prior to testifying at trial.

Finally, the State asked Mr. Jackson: “Do you remember testifying before the Orleans Parish grand jury in this matter?” Mr. Jackson replied, after several nonverbal responses: “I don’t know what he talking about.” At this point, the trial court judge permitted Mr. Jackson’s statement to the grand jury to be read by the trial jury. When questioned about his statements to the grand jury, Mr: Jackson repeatedly testified that he did not “recall” anything.

Mr. Jackson’s brief testimony before the grand jury was introduced only as a last resort by a trial court judge dealing with an extremely hostile witness who attempted to plead the Fifth, refused to answer any questions, and demanded a perjury charge. Mr. Jackson’s repeated refusal to cooperate with the trial court judge’s instructions presented a compelling necessity for the release of the grand jury testimony. As the State’s eyewitness, the case would have been greatly prejudiced. Accordingly, I do not find that the trial court abused its discretion when it permitted Mr. Jackson’s sacrosanct grand jury testimony to be utilized as an impeachment tool when he refused to admit that he testified before the grand jury.

1¿Furthermore, the introduction of Mr. Jackson’s grand jury testimony also constitutes a harmless error due to the impeachment testimony provided by Detective Prado, the assistant district attorney, and Mr. Jackson’s previously recorded statement. Therefore, I would affirm the conviction and sentence of the trial court. 
      
      . In State v. Terrebonne, 256 La. 385, 236 So.2d 773 (La. 1970), the court held that the exception in La.C.Cr.P. art. 434 allowing the use of grand jury testimony to show that a witness committed peijury applies to situations where the witness is actually being prosecuted for the crime of peijury.
     
      
      . Detective Pardo spoke with Mr. Jackson after being contacted by the Sheriffs Office and informed that Mr. Jackson might be a possible witness to the murder. Detective Pardo and Mr. Jackson's conversation was recorded on audio tape.
     