
    STATE of Louisiana v. Mark BROOKS.
    No. 2015-KD-0353.
    Supreme Court of Louisiana.
    Feb. 23, 2015.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 513-987; to the Court of Appeal, Fourth Circuit, No. 2015-K-180.

Stay denied. Writ denied.

CLARK, J., dissents and assigns reasons.

CRICHTON, J., dissents and assigns reasons.

CRICHTON, J.,

dissents and assigns reasons.

| i While it appears the issues raised in the State’s original writ application are now moot, I dissent from the majority’s writ denial because I believe there was an abuse of discretion by the trial court through its authorization of ex parte issu-ances of witness subpoenas. In my view, the trial court’s reliance on State v. Touchet, 642 So.2d 1213 (La.9/6/94), is misplaced. In the majority opinion in Tou-chet, Justice Pike Hall thoroughly explains the exceptions to contradictory hearings, particularly where indigent defendants are concerned. Specifically, Touchet provides the bases for ex parte hearings for applications for various methods of funding for indigent criminal defendants (including expert witnesses), and the decision was purposefully narrowed to that issue. Id. at 1217, 1220-1. Based upon the information presented to this court, it does not appear any issues of indigent funding are present and as such, I cannot agree with the trial court’s reliance on Touchet in this instance. Furthermore, I do not agree that the request for service by the Sheriff would have been “severally [sic] impacted” by the Mardi Gras holiday and therefore, is an insufficient basis for the appointment of a special process server.

I also find that the circumstances in this matter, particularly the blatant ex parte communications that appear to have occurred between the trial judge and defense counsel, are troublesome and potentially violations of not only the Code of | gCriminal Procedure, but the Code of Judicial Conduct, as well as the Rules of Professional Conduct. For these reasons, I would grant the state’s writ application.

CLARK, J.,

dissents and assigns reasons.

|TI would grant the State’s writ application because I find nothing in the Louisiana Code of Criminal Procedure that authorizes the appointment of a special process server under these circumstances. In fact, La.Code Crim.P. art. 734(A) mandates that “[t]he sheriff of any parish in which the witness may be found or of the parish in which the proceeding is pending shall serve the subpoena and make a return thereof without delay.” The use of the mandatory word “shall” over the permissive word “may” indicates a choice of the legislature that subpoenas be served exclusively in this manner. Exceptions to this rule must be statutorily provided, as evidenced by the legislature in subsections (B) and (C) of La.Code Crim.P. art. 734, wherein investigators employed by the attorney general and the district attorney, respectively, may serve subpoenas under the limited circumstances listed therein. While different types of service are contemplated by the Code of Criminal Procedure, the server is always the sheriff, i.e., the sheriff can effect domiciliary service, personal service, or employ the use of the United States Postal Service. La.Code Crim.P. art. 735. Accordingly, I see no codal authority for circumventing the requirement that the sheriff shall serve the subpoena.

I additionally concur in the dissent of Justice Crichton.  