author: WEIMER, Justice. Guidry, J.,

text:
    STATE of Louisiana v. Derrick A. DOTSON
    NO. 2016-K-0473
    Supreme Court of Louisiana.
    10/18/2017

      ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, Hon. Leon A. Can-nizzaro, Jr., District Attorney, Donna R, Andrieu, Mithun Burde Kamath, For Applicant.
    Mary Constance Hanes, For Respondent.
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

WEIMER, Justice.

h The state’s writ application was granted to consider whether the court of appeal erred in reversing defendant’s conviction, finding that the trial judge abused his discretion in denying a challenge for cause of a prospective juror. During voir dire, the prospective juror gave an equivocal answer as to whether she could be impartial after indicating her mother had been the victim of a violent crime. The record of the voir dire proceeding is bereft of any information that would clarify the prospective juror’s response, and the remainder of her responses during voir dire indicate that she would be impartial. As such, .deference should have been afforded by the appellate court to the trial court’s ruling on the challenge. For the reasons that follow, the decision of the appellate court is reversed, and this matter is remanded to the appellate court for determination of the remaining issue raised on appeal by defendant.

| ¡.FACTUAL AND PROCEDURAL BACKGROUND

In 1994, K.T. was crossing the street in eastern New Orleans when a man she recognized as someone who had worked with her mother in the past called .'her to his car. When she walked over, she saw a gun on his lap. He ordered her to get into the car and then drove to a wooded area where he forced K.T. to engage in sexual intercourse. K.T: reported the incident and underwent a sexual assault , exam, but the police investigation did not lead to any suspects.

In 1996, H.B. was at home when a man came to the door and asked to speak to her brother, She recognized the man as someone to whom her brother had previously given money. The .man claimed that he wanted to thank H.B.’s brother for the money. Later, when H.B’s brother left for work, the man returned and claimed that he was locked out of his house. .He asked H.B. to make a'telephone call for him, and, when she returned to tell him the number did not work, he forced his way into the house and sexually assaulted her. H.B. reported the crime and underwent a sexual assault examination, but the police investigation did not yield any suspects.

In 2010, while investigating unsolved rape cases, a detective of the police force searched the national DNA data base (CO-DIS) and discovered that DNA from both cases matched that of Derrick A, Dotson (defendant). The state ‘ subsequently charged defendant with two counts of aggravated rápe. The jury found defendant guilty of the 1996 forcible rape of H.B;, but could not reach a verdict as to the charge involving K.T. The court sentenced defendant as a third felony offender to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

The court of appeal majority reversed defendant’s conviction, finding the trial court abused its discretion by-denying defendant’s challenge for causé of a prospective juror after defendant exhausted all of his peremptory challenges. State v. Dotson, 15-0191, p. 8 (La.App. 4 Cir. 2/17/16), 187 So.3d 79, 83-84. At issue was whether the prospective juror, whose mother had been raped and murdered, could be impartial. When asked by the trial court if the circumstances related to her mother’s death had any bearing on her ability to be impartial, she stated, ‘Tes, it might.” No direct follow-up questions were asked by the trial court, the state, or the defense as to this particular response. Although the prospective juror was not asked to, and did not, provide any additional insight to this particular response, the appellate court found that “bias, prejudice, or the inability to render' judgment according tó law can be reasonably implied” from her initial response. Dotson, 15-0191 at 8, 187 So.3d at 84. Accordingly, the trial court was found to have abused its discretion by denying defendant’s challenge for cause.

The state’s writ application was granted to determine if the trial court abused its discretion in finding that defendant failed to prove that the prospective juror was not impartial. State v. Dotson, 16-0473 (La. 3/24/17), 216 So.3d 809.

DISCUSSION

Louisiana Constitution article I, section 17 guarantees a defendant the “right to full voir dire examination of prospective jurors and to challenge jurors peremptorily.” State v. Juniors, 03-2425, p. 7 (La. 6/29/05), 915 So.2d 291, 304. The number of peremptory challenges granted to a defendant in a trial of an offense punishable necessarily by imprisonment at hard labor, such as the one currently before this court, is fixed by law at twelve. See La. Const. art. I, § 17(A); La. C.Cr.P. |4art. 799. When a defendant uses all twelve of his peremptory challenges, an erroneous ruling by a trial court on a challenge for cause that results in depriving the defendant of a peremptory challenge constitutes a substantial violation of the defendant’s constitutional and statutory rights, requiring reversal of the conviction and sentence. Juniors, 03-2425 at 7-8, 915 So.2d at 304; see La. C.Cr.P. art. 921 (“A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”). Therefore, prejudice is presumed when a challenge for cause has been erroneously denied by a trial court and the defendant exhausts all peremptory challenges statutorily afforded to the defendant. Juniors, 03-2425 at 8, 915 So.2d at 305 (citing State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280, and State v. Ross, 623 So.2d 643, 644 (La. 1993)). In summary, where all peremptory challenges have been used, as in this case, a defendant need only demonstrate the erroneous denial of a challenge for cause to establish reversible error warranting reversal of a conviction and sentence. See Juniors, 03-2425 at 8, 915 So.2d at 305.

A defendant may challenge a juror for cause if “[t]he juror is not impartial, whatever the cause of his partiality.” La. C.Cr.P. art. 797(2). Additionally, La. C.Cr.P. art. 797(3) provides a defendant may challenge a juror for cause on the ground that “[t]he relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the |fidistrict attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict.” A “juror [who] will not accept the law as given to him by the court” may also be challenged for cause by the defendant. See La. C.Cr.P. art. 797(4).

Voir dire examination of prospective jurors is designed to discover bases for challenges for cause and to secure information for an intelligent exercise of peremptory challenges. State v. Drew, 360 So.2d 500, 513 (La. 1978). The questions propounded are designed to determine any potential adverse influence on the prospective juror’s ability to render an impartial verdict. See id. A prospective juror’s responses during voir dire cannot be considered in isolation. See State v. Frost, 97-1771, p. 8 (La. 12/1/98), 727 So.2d 417, 426.

A trial judge is vested with broad discretion in ruling on challenges for cause, and such a ruling is subject to reversal only when a review of the entire voir dire reveals the judge abused his discretion. Robertson, 630 So.2d at 1281. The trial judge’s refusal to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the prospective juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. Id.

During voir dire, the trial court was questioning prospective juror number 9 (“K.C.”), who indicated she was an attorney, when the following exchange took place:

[Court:] [K.C.], are you familiar with the people involved in today’s case?
[K.C.:] No, sir.
[Court:] Anything about the facts of the case?
|fi[K.C.:] It may be a case I’ve been reading about in the paper, but I’m not sure.
[Court:] Okay. Hold that thought.
[Court:] Have you served on a jury before?
[K.C.:] Yes, sir.
[Court:] What kind of case?
[K.C.:] A possession of a narcotics case and the defendant took an acquittal.
[Court:] Was 'that recently?
[K.C.:] A few years.
[Court:] Have you or close friends or relatives ever worked in law enforcement?
[K.C.:] No, sir.
[Court:] Have you or a close friend or relative been a crime victim?
[K.C.:] Yes, sir.
[Court:] Could you tell us a little bit about that?
[K.C.:] My mother was raped and murdered.
[Court:] Would that event have any bearing on your ability to be a fair and impartial juror in today’s case?
[K.C.:] Yes, it might.
[Court:] Do you have any questions for me?
[K.C.:] No.
[Court:] Thank you very much. [Emphasis added.]

At this point, the trial court did not ask any follow-up questions of K.C.’s responses.

When K.C, was later questioned in chambers, the following colloquy took place:

|7The Court: .... [K.C.], number 9, said that she saw something in the news.
[Defense:] That’s the one that the mother was raped and killed.
The Court: [K.C.], would you have a seat right here and make yourself comfortable. [K.C.], earlier today when I asked you the question do you know anything about the facts of the case, you said I think this is the case I’ve been reading about in the news. Is that what you said? .
[K.C.]: Correct.
The Court: Can you expound on that?
[K.C.]: I was thinking this man was a New Orleans Police Officer. I’ve been reading some articles about a police officer being accused of rape. It doesn’t sound like it from voir dire that it’s the same case.
The Court: If it turns out that this is not that case, whatever you’ve been reading in the. news about a police officer, have any bearing on your ability to be a fair and impartial juror?
[K.C.]: No.
The Court: State?
[State:] No questions.
The Court: Defense?
[Defense:] None, your Honor.

The trial judge’s comment during voir dire (“Hold that thought.”) and the questions asked by the trial judge of K.C. in chambers indicate that K.C. was taken into chambers for further'questioning regarding her knowledge of the case based on media coverage. Aside from recognizing that K.C.’s mother had been raped and murdered, defense counsel did not revisit KC.’s prior response regarding whether her mother’s ordeal would affect K.C.’s ability to.be impartial in defendant’s cases.

When defense counsel later challenged K.C. for cause, the following exchange took place:

|RThe Court: .... Panelist Number 9.
[State]: Acceptable.
[Defense]: Challenge for cause, Your Honor,
The Court: Cause based on what?
[Defense]: Her mother was murdered and raped.
The Court: That’s not cause.
[Defense]: She said that would—
The Court: No, she didn’t.
.[Defense]: Yes, she did. Also, she said she knows a witness.
The Court: She never said that.
[Defense]: [K.C.] said that — didn’t she—
The Court: What witness did she say she knew?
[Defense]: I don’t remember.
[State]: Ann Montgomery,- but she said she doesn’t remember really how she knows her. It would not affect her ability to be fair and impartial.
The Court: Is that going to be D2? '
[Defense]: No. Judge, she said—
The Court: Is that going to be D2? The cause is denied.
[Defense]: It’s denied.
The Court: Is that going to be D2? .
[Defense]: If it has to be.
[Defense]: D2.
The Court: Well, it doesn’t have to be. It can be J3.
[Defense]: She said—
The Court: Look, that’s the fifth time you’ve told me that....

IflDefendant’s challenge for cause as'to K.C. was related to the following facts: (1) K.C.’s mother was raped and murdered; and (2) KC. testified that her mother’s ordeal might affect her impartiality in this case. Because the basis for defendant’s challenge does not involve a relationship described in La. C.Cr.P. art. 797(3) (quoted supra), the ground at issue in this case is La. C.Cr.P. art. 797(2) (quoted supra).

The above-quoted colloquy pertaining to defendant’s challenge reveals the trial judge found that KC.’s “[y]és, it might”, response (to the trial judge’s question concerning whether her mother’s ordeal would have a bearing on her ability to remain impartial) alone was insufficient to establish K.C. could not be impartial so as to constitute cause for excusing her'under La. C.Cr.P. art. 797(2). In support of the trial judge’s finding, the state contends KC.’s response in this regard is equivocal and open to interpretation. Further, the state urges that defense counsel was given an opportunity to further question the prospective juror as to this response, but did not do so. Lastly, given the totality of the voir dire, because the prospective juror never definitively stated she could not be impartial based on her mother’s rape and murder, the state argues the trial court acted within its discretion by denying defendant’s challenge for cause of K.C. On the other hand, defendant maintains KC.’s response in and of itself demonstrates she could not be impartial, the state was obligated to rehabilitate K.C. and did not, and the appellate court was correct in finding an abuse of discretion by the trial court.

Although the trial judge at times cut off defense counsel during the challenge phase, the record of the voir dire indicates that defense counsel was in no way deprived of an opportunity to question K.C. about her “[y]es, it might” response regarding her mother’s ordeal. While in chambers, the trial judge afforded the parties an opportunity to further question K.C. After reminding the court that K.C. stated that her mother had been raped and murdered, counsel for .defendant declined to further question K.C. in this regard. Furthermore, contrary to defendant’s assertion, the record does not indicate that the trial judge did not have any recollection of K.C.’s “[y]es, it might” response to the trial judge’s question during voir dire about KC.’s ability to be impartial. During the challenge phase, the’ trial judge first simply observed that the fact that K.C.’s mother was raped and murdered does not constitute cause.

“[T]he, fact that a juror may have, painful memories associated with the subject of a criminal trial is not listed as a basis for a challenge for cause under La. C.Cr.P. art. 797.” State v. Magee, 13-1018, p. 12 (La.App. 5 Cir. 9/24/14), 150 So.3d 446, 454, writ denied, 14-2209 (La. 10/2/15), 178 So.3d 581. That a prospective juror personally has been the victim of a crime will not necessarily preclude that prospective juror from serving on a jury. State v. Dorsey, 10-0216, p. 3 (La. 9/7/11), 74 So.3d 603, 631. A prospective juror’s relationship to a person who was the victim of a crime likewise does not disqualify a prospective juror from serving. See id.; State v. Nix, 327 So.2d 301, 326 (La. 1975) (a prospee-tive juror’s relationship to a murder victim — his brother-in-law — was insufficient to establish cause for excusing the venireman).

The law does not require that a jury be composed of individuals who have not personally been a crime victim or who do not have close friends or relatives who have |nbeen crime victims. It requires that jurors be fair and unbiased. Juniors, 03-2425 at 11, 915 So.2d at 306. Therefore, the prospective juror’s past experience as, or relationship to, a victim of a crime similar to that for which the defendant is being tried must be examined in conjunction with other evidence in the record of the voir dire proceeding that bears on the prospective juror’s ability to be fair and impartial and to apply the law as instructed by the trial court. See Dorsey, 10-0216 at 38-39, 74 So.3d at 631; Nix, 327 So.2d at 326. Accordingly, the trial court did not abuse its discretion in refusing to find that KC.’s relationship with her mother, who was raped and murderéd, automatically rendered K.C. unable to be impartial in these cases. Although the record establishes a mother/daughter relationship, and this court is sensitive to the impact of crime on a family member, we are constrained by the record which reflects no follow-up questions were posed to in fact establish this prospective juror could not be fair and impartial in these cases.

Upon the trial judge’s recognition that K.C.’s relationship with a rape victim was alone insufficient to disqualify K.C., defense counsel referenced KC.’s response to the trial judge’s question regarding her ability to be impartial due to her mother’s ordeal. Defense counsel interpreted KC.’s response as “yes,” that is, K.C. could not be impartial in the instant cases against defendant. However, as the trial judge again correctly observed, K.C. did not declare that her mother’s rape and murder would affect her ability to be impartial, as her affirmative response was immediately qualified by an expression of uncertainty— “it might.” In this respect, K.C.’s testimony differs from that of prospective juror number 20, who testified that as a victim of molestation she could not be impartial and who was dismissed by the trial | i2court on a challenge for cause. Based on the qualification of KC.’s affirmative response, this court cannot say that the trial court erred or abused its discretion in finding that K.C. at no point declared that she could not be impartial in these cases; nor from this lone response can “bias, prejudice, or the inability to render judgment according to law ... be reasonably implied,” as found by the appellate court. Furthermore, K.C.’s conditional response neither required that KC. be rehabilitated, nor relieved defendant (who sought to exclude KC. for cause) of his burden of demonstrating, through questioning, that KC. lacked impartiality. See State v. Taylor, 99-1311, p. 8 (La. 1/17/01), 781 So.2d 1205, 1214 (“The party seeking to 11Rexclude the. [prospective] juror has the burden to demonstrate, through questioning, that the [prospective] juror lacks impartiality.”).

In Nix, 327 So.2d at 326, a murder trial, the trial court denied defendant’s challenge for cause of a prospective juror who testified that the murder of his brother-in-law might affect his thinking on the case. The equivocalness of that statement, together with the prospective juror’s testimony “that he understood the principles of law upon which he was instructed by the trial judge, including the presumption of innocence, and that he could apply those principles in the case at bar” was found by this court to. be sufficient to support the trial court’s denial of the defendant’s challenge for cause. Id.

Other cases involving equivocal responses that were found by this court to be insufficient to obtain reversal of the trial court’s denial of a challenge for cause include: State v. Robinson, 353 So.2d 1001, 1004 (La. 1977) (Where a prospective juror’s impartiality was brought into question by her “maybe not” response to whether she would acquit the defendant of one crime even if she thought he was guilty of other misconduct, this court found no abuse of discretion in the trial court’s denial of a challenge for cause in light of the prospective juror’s subsequent ■ responses which indicated she would be impartial.); State v. Passman, 345 So.2d 874, 879-80 (La. 1977) (A prospective juror responded that he might be influenced by whether the defendant took the stand on his own behalf, implicating La. C.Cr.P. art. 797(4). Furthermore, when asked if he would have trouble following the trial judge’s instruction not to consider whether the defendant testified in weighing the defendant’s guilt, the prospective juror in Passman indicated that he “may have trouble and [he] may not.” However, on further questioning by the trial judge, the prospective juror clarified that he would accept and apply the law in deciding whether |uthe defendant is guilty. This court found no abuse of discretion in the denial of the defendant’s challenge for cause.); State v. Frazier, 283 So.2d 261, 263-64 (La. 1973) (an equivocal answer given by the prospective juror (“I could try.”) to the trial judge’s question, “If [defendant] did not take the stand do you feel that you could return a fair and impartial verdict based on the evidence and the testimony that you did hear,” did not amount to a refusal to accept the law as charged so as to implicate La. C.Cr.P. art. 797(4).)

Also noteworthy on this point is State v. Robinson, 08-0652 (La.App. 4 Cir. 5/13/09), 11 So.3d 613, writ denied, 09-1437 (La. 2/26/10), 28 So.3d 269. In response to a question by the prosecutor, a prospective juror in Robinson “stated during voir dire that she did not know whether she could be impartial due to the fact that three of her children had been crime victims.” Id., 08-0652 at 11, 11 So.3d at 620. In analyzing this equivocal response, the appellate court found'that the prospective juror only “stated that she did not know if she could be impartial and did not affirmatively state she could not be” and observed “that defense counsel never asked [the prospective juror] any questions at all.” Id., 08-0652 at 13, 11 So.3d at 621. The Robinson court concluded that the prospective juror’s “responses as a whole [did not reveal] facts from which bias, prejudice, or an inability to render judgment according to law might be reasonably implied.” Id.

In State v. Ruffin, 11-0135 (La.App. 4 Cir. 12/21/11), 82 So.3d 497, writ denied sub nom., State ex rel. Ruffin v. State, 12-0400 (La. 9/12/12), 98 So.3d 813, a prospective juror responded that “it may” when asked if “her niece’s death would affect her ability to sit on the jury.” Id. 11-0135 at 25, 82 So.3d at 614. Upon further questioning, this prospective juror revealed that serving as a juror would be emotional for her in that it would likely cause her to have flashbacks. She testified that herjj^niece’s killers were still at large, and she had still not gotten oyer the incident. Id. Based on this information,. the defendant urged that the prospective juror was unable “to be a rational and unbiased juror,” citing State v. Holmes, 619 So.2d 761 (La.App. 4 Cir. 1993), discussed infra. Id. Relying instead on its decision in Robinson, the appellate court found no abuse of discretion in the trial court’s denial of the defendant’s challenge for cause since the prospective juror “did not say unequivocally that her [great]-niece’s death would prevent her from being an impartial juror.” Id. 11-0135 at 26-27, 82 So.3d at 514-15.

In the instant case, in reviewing the trial judge’s denial of defendant’s challenge, instead of relying on this court’s decision in Nix, the facts of which are strikingly similar to those of the instant case, or its decisions in Robinson and Ruffin, the appellate court relied on its decision in Holmes. The defendant in Holmes was charged with aggravated rape, aggravated kidnapping, and aggravated crime against nature. On appeal of his conviction for aggravated crime against nature, the defendant argued that the trial court committed reversible error in; denying his “challenge for cause to a [prospective] juror whose husband had previously been held hostage and who could not say affirmatively that the experience would not affect her ability to be' fair.” Holmes, 619 So.2d at 762. When the members of the jury venire were questioned by the state about why they did not “feel like [they] could sit on this type of case,” the prospective juror stated that her “husband,was held hostage.” Id. at 763. When the court asked if the fact that .her “husband was a victim of a crime” would cause her to be unfair, she stated, “I think it might. I’m not real sure.”. Id. During further.-questioning by the trial court, the prospective juror explained that her husband’s kidnapping had been a very traumatic time for her. Id. at 764. Defense counsel followed up by asking the 'prospective juror if she could “assure [him] that |1flwhat happened to [her] husband would not affect [her] in judging whether [the defendant] committed a crime or not.” Id. She relied, “I’m not sure.” Id. In reviewing the trial court’s denial -of the defendant’s challenge for cause as to this prospective juror, the-appellate court noted that the prospective juror stated that she could not assure defense counsel “that her husband’s kidnapping would not affect her judgment in [the] case” and observed that the state failed to rehabilitate the prospective juror. Id. at 764-65. Concluding that “[t]he trial court’s finding that the [prospective] juror could be fair is not supported by the voir dire transcript,” the appellate court held that “[t]he [prospective] juror was not impartial and the. [trial] court abused its discretion by failing to excuse her for cause.” Id. at 765. The defendant’s conviction was reversed, and a new trial was ordered. Id.

Defendant argues, and the appellate court found, that the' facts of the instant case are more akin to those of Holmes, while the state likens the facts of this case more to the facts of Robinson and Ruffin. Unlike Holmes, the prospective juror in this matter (K.C.) was not questioned further by anyone as to her “[y]es, it might” response. For this reason, the instant case, like Robinson and Ruffin, is clearly distinguishable from Holmes. As in Nix, K.C.’s use of the word “might” relative to the impact that her family member’s ordeal as a victim of a similar crime would have on KC.’s ability to be impartial in the instant cases rendered her response equivocal. Because of the equivocalness of K.C.’s response, the need for rehabilitation of K.C. by the state had not been triggered in this case. Furthermore, unlike the prospective juror in Holmes, K.C. was never asked to assure that she could be impartial to the defendant in .these cases.

Clearly, La. C.Cr.P. art. 797(2) does not require that a prospective juror state with absolute certainty that he/she cannot be impartial in order to be removed for cause. However, in the absence of such a statement, the trial court’s denial of a challenge for cause will not be reversed if, on review of the entire voir dire examination, the prospective juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence. Passman, 345 So.2d at 880. Reversal is appropriate only where it appears, upon review of the voir dire examination as a whole, that -the trial judge’s exercise of that discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. Id.; see Dorsey, 10-0216 at 28, 74 So.3d at 625; State v. Lee, 93-2810 (La. 5/23/94), 637 So.2d 102, 108. This standard of review is utilized “because the trial judge has the benefit of seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questions by the parties’ attorneys.” Lee, 93-2810 at 9, 637 So.2d at 108. “Such expressions and intonations are not readily ap-, parent-at the appellate level where review is .based on a cold record.” Id. As noted in State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396, because of the “complicated and oftentimes daunting” task faced by a trial court in deciding “challenges for cause of prospective jurors who give equivocal ... responses during voir dire,” “an appellate court should accord: great deference to the [trial] court’s ruling on a. challenge for cause, which is necessarily based, in part, on the court’s personal observations during questioning.” Id., 99-0192 at 14, 776 So.2d at 405-06. A review, of the entire record of the voir dire proceedings in this case does not suggest that the trial court’s exercise .of the sound discretion afforded in. determining KC.’s competency was arbitrary or unreasonable, to the. prejudicial injury of the defendant in obtaining a. fair and |, «impartial trial. Furthermore, the appellate court erred to the extent that it found KC.’s responses as a whole reveal facts from which “bias, prejudice or inability to render judgment according to law may be reasonably implied.” Accordingly, defendant failed to show any abuse of discretion in the trial court’s refusal to grant his challenge for cause as to K.C.

DECREE

For these reasons, the decision of the appellate court is reversed. This matter is remanded to the appellate court for determination of the remaining issue raised on appeal by defendant.

REVERSED and REMANDED.

Hughes, J., dissents for the reasons given by Guidry, J.

Guidry, J., dissents and assigns reasons.

Guidry, J.,

dissents and assigns reasons.

hi respectfully dissent from the majority’s decision today. In this case, the potential juror expressed during voir dire an undoubtedly equivocal response that she “might” be impartial or biased against this defendant, charged with two counts of aggravated rape, because her mother had been raped and murdered. In the face of this clear expression of possible bias, there was no follow-up questioning by the trial court, the state, or the defense as to whether the juror would be willing and able to decide the case impartially according to the law and evidence. The trial court, when the prospective juror was later challenged for cause, did not allow a full discussion of the juror’s response regarding her possible bias, and more troublingly, insisted the potential juror had not said anything that would bring into question her inability to be impartial, when in fact she did. See Anti, pp. 6 and 8; State v. Dotson, 15-0191 p. 8 (La. App. 4 Cir. 2/17/16), 187 So.3d 79, 83-84.

This court will not reverse a trial court’s ruling on a challenge .for cause unless it appears, upon review of the voir dire examination as a whole, that the trial judge’s exercise of its discretion has been arbitrary or unreasonable, resulting in prejudice to the accused. Anti, p. 17. While deference is certainly owed to the trial court’s determination, where due, I find in this case the trial court abused its discretion, because, upon review of the prospective juror’s voir dire examination as a whole, her bias, prejudice, or the inability to render judgment according to thej 2 law may be reasonably implied. Accordingly, I would affirm the appellate court’s decision.

| T Hughes, J., dissents for the reasons given by Guidry, J.

      .See La. R.S. 14:42.1(B) ("Whoever commits the crime of second degree ’ rape shall be imprisoned at hard labor for not less than five nor more than forty years. .At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension • of sentence.”); see also La. R.S. 14:42.1(0 ("For all purposes, "forcible rape” and "second degree rape” mean the offense defined by the provisions of this Section and any reference to the crime of forcible rape is the same as a reference to the crime of second degree rape.”).

      . In pertinent part, La. C.Cr.P. art. 799 provides’: "In trials of offenses punishable by death or .necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant.”

      . If all available peremptory challenges have not been used, a defendant must show some prejudice to overcome the requirements of La. C.Cr.P. art. 921 (quoted supra). State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280.

      . Courts have imposed the test set forth in La. C.Cr.P. art. 797(3) (that is, the relationship is such that one'might reasonably conclude that it would influence the juror in arriving at the verdict) in addressing a prospective juror’s relationship to others who. are not listed in Clause (3). See State v. Robinson, 353 So.2d 1001, 1004 (La. 1977) (relationship with people associated with law enforcement duties); State v. Calloway, 343 So.2d 694, 696 (La. 1976) (nephew was a police officer); State v. McClure, 258 La. 999, 249 So.2d 109, 113 (1971) (friendship with the clerk of court).

      . "Might” is defined as “expressing especially a shade of doubt or a smaller degree of possibility or permission.” Webster's New World Dictionary of the American Language 932 (College Edition 1964). Such definition confirms the equivocalness of K.C.’s response.

      . Prospective juror number 20 testified as follows:
      The Court: Have you or any close friends or relatives been a victim of a crime?
      Juror []: Yes.
      The Court: Can you tell us a little bit about that?
      Juror []: My husband was murdered. My house was broken into and I was molested at 12 years old.
      The Court: Would those events have—
      Juror [ ]: Yes.
      The Court: Let me finish the question. Would those events have any bearing on your ability to be a fair and impartial juror?
      Juror [ ]: Yes.
      The Court: So you could not serve as a fair and impartial juror in this case?
      Juror []: That's correct.

        . Cf. Juniors, 03-2425 at 9, 915 So.2d at 305 (a challenge for cause should be granted "if [the prospective juror’s] responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied.").

      . Cf. State v. Mickelson, 12-2539, p. 23 (La. 9/3/14), 149 So.3d 178, 193 (which addressed the need "to rehabilitate a prospective juror whose unequivocal statements in voir dire evidence an inability to follow the law,” impli-eating La. C.Cr.P. art. 797(4). Mickelson does not mandate rehabilitation of. a prospective juror whose statements are equivocal and who simply indicated that he or she might not be able to be fair.

      . Neither party sought writs in this court in Holmes. Without a review of the full voir dire in Holmes, this court expresses ho' opinion regarding the appellate court’s decision therein.

      . Early on in the jury selection process, before voir dire of individuals began, the trial judge read aloud to the venire the relevant parts of the indictment, which alleged two counts of aggravated rape. The trial judge then asked generally: ‘‘[Bjased on what you've heard, any problems with difficulty in serving on a jury involved in this type of a situation? Anyone?” There was no response from the prospective jurors. Shortly thereafter, upon hearing the definition of aggravated rape and being asked if there were any questions or comments, the prospective jurors again remained silent. Then, just before individual voir dire commenced, the trial, judge aslced the prospective jurors: "Can anybody think of any reasons based on the things we’ve discussed so far why you couldn't be a fair and impartial juror in this case, anything whatsoever?” Once more, the trial judge was met with no response. Finally, in the middle of the state’s voir dire, the trial judge’ intervened to clarify the state’s burden of proof, asking at the end if everyone followed what the trial judge told them; the response from the venire was ”[y]es.” Also noteworthy is the fact that K.C. is an attorney, trained in the law and legal concepts applicable in a criminal trial, including the obligation of a juror to be fair and impartial. In fact, K.C. advised she had previously served on a jury in a criminal case in which the defendant was acquitted, a favorable response for a defendant.


source: Caselaw Access Project

author: JOHNSON, Chief Justice CRICHTON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Kayla BRIGNAC
    No. 2017-KK-0448
    Supreme Court of Louisiana.
    10/18/2017

      Justin Asher Zitler; LAPORTE LAW OFFICE, LLC, Ryan Frederick LaPorte; For Applicant;
    ORLEANS PARISH DISTRICT ATTORNEY’S OFFICE, Hon Leon A. Can-nizzaro, Jr., District Attorney, Donna R. Andrieu Esq., David Stephen Pipes, Jr.; George Augustus Blair, III; Katherine Za-betti Crouch; Thomas Ward Frampton; For'Respondent.
   JOHNSON, Chief Justice

hThe underlying issue in this case concerns the reasonableness of a warrantless search of a probationer’s'residence by mul-ti-agency state and federal law enforcement personnel. Specifically, we are called upon to determine whether the search violated Louisiana Code of Criminal Procedure Article 895(A)(13)(a), which provides as a. condition of probation that the defendant agree “to searches of ... his place of residence ... at any time, by the probation officer ... assigned to him, with or without a warrant ... when the probation officer ... has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.”

After review of the law and record, and considering the arguments of the parties, we hold that the warrantless search of defendant’s residence violated the provisions of Article 895(A)(13)(a) because the search was not conducted by the probation officer assigned to her. We further find that violation of this statute constituted an unconstitutional search under Louisiana Constitution Article I, § 5, requiring exclusion of the evidence pursuant to Louisiana Code of Criminal Procedure Article 703(C). Thus, we reverse the ruling of the court of appeal and reinstate the-ruling of the district court which granted defendant’s motion to suppress the evidence.

I «FACTS AND PROCEDURAL HISTORY

The charges against defendant, Kayla Brignac, stem from a warrantless search of her residence on March 8, 2016. On that date, two officers from the New Orleans District of Probation and Parole, Chris Turner and Tiffany Eagles, along with officers from the United States Marshals Office, the A.T.F (Bureau of Alcohol, Tobacco, Firearms and Explosives), and the Louisiana State Police conducted a search of Ms. Brignac’s residence at 524 ½ Bourbon Street in New Orleans.

Officer Turner testified the “residence check” was prompted because the probation department received information from another law enforcement agency that Ms. Brignac may be involved in the sale of narcotics. During the search of the residence, officers found Ms. Brignac in a bedroom and observed what appeared to bé a burned' marijuana cigarette in plain view. The officers then searched the kitchen and found miscellaneous pills and drug paraphernalia. Officers discovered' additional contraband on the porch.

According to testimony, Officers Turner and Eagles were not the probation officers regularly assigned to Ms. Brignac; the sole probation officer assigned to Ms. Brig-nac was Officer Rebecca Soileau.' Officer Soileau had previously performed a residence verification for Ms. Brignac.

On May 6, 2016, the state, filed a bill of information charging defendant-with possession of cocaine with intent to distribute; possession of oxycodone; possession of marijuana (third offense); and possession of a legend drug. Defendant filed various motions, including a motion to suppress the evidence. The district court held a hearing on August 9, 2016, and denied the motion to suppress. Ms. Brignac subsequently filed a motion for reconsideration of the motion to suppress, essentially arguing it was unlawful for the state to use a probation officer not assigned to her as |sa means to conduct a warrantless search of her home by a multi-agency task force, and further that the search was not based on “reasonable suspicion.” Following argument on the motion for reconsideration, the district court granted defendant’s motion to suppress the evidence. Considering La. C.Cr. P. art. 895(A)(13)(a) and the jurisprudence relating to searches of probationers, the district court found it “compelling” that Officer Soileau was the sole probation officer assigned to defendant’s case and that the other probation officers were not regularly assigned to defendant. The district court found Probation Officers Turner and Eagles were “simply there in order to effect a warrantless search ... at the behest of outside agencies.” The court further found this was “clearly not a residency check,” rather “this was a search, based on a tip.” The district court concluded that the search “smack[ed] of subterfuge to the point where ... Probation and Parole was being utilized in a manner in which they were legally not able to do so.”

The court of appeal reversed, finding the officers acted legally when they conducted the warrantless search. State v. Brignac, 16-1160, p. 3 (La. App. 4 Cir. 1/18/17), 229 So.3d 525, 2017 WL 193157. The court explained: •

Individuals on probation possess a diminished expectation of privacy. This reduced expectation of privacy is based on á probationer’s conviction ' and agreement to allow a probation officer to investigate his activities in order to confirm that the probationer is in compliance with the provisions of his probation. That reduced expectation of privacy authorizes reasonable warrantless searches of their persons • and residences by their probation or parole officer, even though' less than probable cause may be shown.
This Court has recognized that a probationer is not subject to the unrestrained power of the authorities, and a search of the probationer may not be a subterfuge for a police investigation. However, a probation officer may conduct a war-rantless search of a probationer’s property when the officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place. In order to determine reasonableness we must consider (1) the scope of the particular' intrusion, (2) the manner in which it was conducted, (3) the-justification for initiating it, and (4) the | jplace in which it was conducted.

Brignac, at p. 2, 229 So.3d at 527 (internal citations removed). The appellate court found the officers possessed reasonable suspicion to conduót a search of defendant’s residence based on information that she may be involved in the sale of illegal narcotics. Id. at p. 3, 229 So.3d at 528. The appellate court also, noted the -marijuana cigarette was- readily identifiable in plain. view by the officers when they entered defendant’s room which provided officers with the requisite level of cause to conduct a more thorough search of the remainder of the residence. Id.

Although the court of appeal did not directly address Article 895(A)(13)(a), the court found the “district court’s concern that the defendant’s probation officer played no role in the search of the residence ... is of little importance as an appellate court’s review on the legality, of the search is based on an assessment of the collective knowledge possessed by all of the police involved in the investigation.” Id. (internal citations removed). The court of appeal concluded that “defendant’s states as a probationer did not; operate a subterfuge to conduct a suspicionless search but rather allowed officers to conduct the search without a warrant and based on less. than probable cause.”. Id. (internal citations removed).

Judge Love dissented, finding the search .was not reasonable. She agreed with the district court that the officers “‘were simply there in order to effect a warrantless search on the behest or at the behest of outside agencies.’” Id. Judge Love noted “a residency verification was already conducted on the defendant by the sole probation officer assigned to her, and the search in this case was not a residency check, but was a search based on a tip.” Id.

On defendant’s application,-we granted supervisory review. State v. Brignac, 17-0448 (La. 5/12/17), 219 So.3d 1107.

^DISCUSSION

,As a general constitutional rule, warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution and Article I, § 5 of the Louisiana Constitution. State v. Surtain, 09-1835 (La. 3/16/10), 31 So.3d 1037, 1042. Ordinarily, when evidence is seized without a warrant, the burden is on the state to demonstrate that a search is justified by some exception to the warrant requirement. State v. Tatum, 466 So.2d 29, 30-31 (La. 1985). The capacity to claim the protection of the Fourth Amendment or La. Const. art. I, § 5 depends upon whether the person who claims the. protection has a legitimate expectation of privacy in the invaded place; See State v. Warren, 05-2248 (La. 2/22/07), 949 So.2d 1215, 1223. This court has long recognized that individuals on probation possess a diminished expectation of privacy. State v. Malone, 403 So.2d 1234, 1239 (La. 1981). This diminished expectation of privacy is reflected in La. C.Cr. P. art. 895(A)(13)(a), which provides:

A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
(13)(a) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant , of arrest, or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.

(Emphasis added). At issue is whether the search of Ms. Brignac’s residence was conducted in compliance with this statutory-provision, in particular whether the search was conducted by the probation officer “assigned to” Ms. Brignac.

Interpretation of La. C.Cr. P. art. 895(A) (13) (a)

| (¡Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-0193 (La. 1/19/11), 56 So.3d 181, 187; Louisiana Mun. Ass’n v. State, 04-0227 (La. 1/19/05), 893 So.2d 809, 836. After our review, we “render judgment on the record, without deference to the legal'conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620, 628.

The parties offer different interpretations of Article 895(A)(13)(a). Defendant argues the language of the statute is clear and unambiguous, and the district court correctly gave the “assigned to” language its generally prevailing meaning. Defendant argues the court of appeal failed to adequately address, much less provide, a meaningful review of the district court’s ruling. Defendant further argues the legislative history of the Article supports á finding that the legislature narrowly tailored the law to provide authority to conduct such a search only to the probation agent directly assigned to the probationer.

By contrast, the state argues the district court misapplied Article 895(A)(13)(a). According to the state, this Article does not require that the probation officer who conducts a check or search be “the day-to-day supervisory agent” of the defendant. The state argues in this, case the Office of Probation and Parole assigned two officers to check on defendant because the office had received information from law enforcement that she was involved, in the sale of illegal narcotics. Thus, by the plain language of the statute, Officers Turner and Hagles were “assigned to” the defendant for a specific purpose by their office, The state argues nothing in the Article prevents the Office of Probation and Parole from assigning officers to conduct a residence 17cheek immediately prior to executing it, as was the case here. The state further argues that to interpret the Article otherwise would lead to absurd consequences because if the day-to-day supervisory officer were unavailable, no action could be taken against a probationer even if there was overwhelming evidence of a violation.

The rules of statutory construction as set forth by this court are summarized as follows:

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative-intent. We have often noted the paramount' consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.
The starting point in the interpretation of any statute is the language of the statute itself. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be. made in search of the intent of the legislature.” La. Civ.Code. art. 9. However, “when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. Civ. Code art. 10; Moreover, “when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as á whole.” La. Civ.Code art. 12.
It is also well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the -effect of their acts, and a purpose in view. It is equally well settled under our rules of statutory construction, where it is 'possible, courts have a duty in the interpretation, of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter. La. Civ. Code art. 13.

M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d 16, 26-27, amended on reh’g (La. 9/19/08) (internal citations removed).-With these principles in mind, we first consider the language of Article 895(A)(13)(a).

The word “assign” is commonly defined as “to appoint to a post or- duty; to appoint as a duty or task.” Merriam-Webster, https://www.merriam-webster.com/ dictionary/assign (last visited September 18, 2017). The statutory language “assigned to him” implies a relationship and a duty of supervision by requiring a particular probation officer be appointed to a particular probationer. Although the state suggests a broad reading of this language to encompass searches by any probation officer, as long as the officer was assigned to some task involving a probationer, we find the legislature intended a narrower application. The legislature has explicitly provided that probationers ■ agree - to searches “by the probation officer ... assigned to him.” The specificity of the language contemplates a limited authority granted only to the particular probation officer who is generally arid regularly assigned to a particular probationer. The legislative history of La. C.Cr. P. art. 895(A)(13)(a) supports this position.

• Article 895(A)(13)(a) did not exist prior to 2008. The Article originated as House Bill (“HB”) 1136, introduced during the 2008 Regular Session of the Legislature. HB 1136 initially sought to amend and reenact La. R.S. 15:574.4(H)(4)(r), relative to conditions of parole, specifically to provide that as a condition of parole a person on parole agrees to searches of his person or property by law enforcement officers with or without an arrest or search warrant. At the time, subsection (r) provided that parolees agreed “to -searches of ... his place of residence ... at any time, by the probation officer or the pa/role officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on parole is engaged- in or has been engaged in criminal activity since his. release on parole.” (Emphasis added). HB 1136 defined “law enforcement officer” as1 ¡Including “commissioned police officers, sheriffs, deputy sheriffs, marshals,- deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.” 2008 Original House Bill No. 1136.

HB 1136 was subsequently amended by the House Committee on Administration of Criminal Justice to provide the same relative to searches as a condition of probation through the enactment of Code of Criminal Procedure Article 895(A)(13). The committee amendment added the following language to HB 1136:

Section 2. Code of Criminal Procedure Article 895(A)(13) is hereby enacted to read as follows:
Art. 896. Conditions of probation
A. When the court places a defendant on probation, it shall require the defendant to refrain from criminal conduct and to pay a supervision fee to defray the costs of probation supervision, and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following. That the defendant shall:
(13) Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by a law enforcement officer, with or without a warrant of arrest or with or without a search warrant, when the law enforcement officer has reasonable suspicion to believe that the person who is on parole is engaged in or has been engaged in criminal activity since his release on parole. For the purposes of this Subpara-graph, “law enforcement officer” shall mean commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, state park wardens, and probation and parole officers.

2008 Engrossed House Bill No. 1136 (emphasis added).

The current version of Article 895(A)(13)(a) was the result of Senate Floor Amendments to the Engrossed House Bill. Specifically, HB 1136 was amended to remove all of the language relative to La. R.S. 15:574.4(H)(4)(r) (corresponding to parole). Additionally, the original proposed language for Article 895(A)(13) was deleted and replaced with the following:

(13) Agree to searches of his person, his property, his place of residence, |inhis vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.

2008 Enrolled House Bill No. 1136 (emphasis added).

This legislative history makes clear that the legislature specifically considered the exact wording of Article 895(A)(13)(a) relative to who is entitled to conduct war-rantless searches of probationers. Although the original amended language in the engrossed version of the bill would have allowed any law enforcement officer — which specifically included any probation officer — to conduct such searches, the legislature further amended and limited the language to restrict that authority to the probation officer assigned to the probationer. 2008 La. Acts 666.

Moreover, we are not swayed by the state’s assertion that such an interpretation leads to absurd consequences because the probation department would be left without authority to act, even if there was overwhelming evidence of a violation, if the “day-to-day” assigned probation officer is unavailable. The authority granted to probation officers . in Article 895(A)(13)(a) applies solely to warrantless searches. Exigent situations involving probation violations can be handled in other ways. For example, La. C.Cr. P. art. 899(B) allows the probation officer to- authorize a peace officer, either in writing or verbally, to,arrest the probationer without a warrant if he has “reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer.” Further, nothing would prevent any law enforcement officer from obtaining, a search warrant Infer a probationer’s residence based on probable cause.

Application of La. C.Cr. P. art. 895(A)(13)(a)

In applying Article 895(A)(13)(a), we decline to impose' strict requirements on probation departments purporting to regulate assignments of officers to probationers. Although we hold there must' be some official general assignment of the particular probation officer to the particular probationer to authorize a warrantless search under the Article, we recognize the facts and circumstances of each case differ. We leave'open the possibility that the facts of a case-may sufficiently demonstrate that more than one probation officer was assigned to a particular probationer. We also find no blanket prohibition to outside law enforcement personnel accompanying the assigned probation officer to conduct a. search under Article 895(A)(13)(a). In sum, we leave to the district court the factual determination of whether a search was conducted in accordance with . Article 895(A)(13)(a) by the probation officer assigned to the defendant.

Here, the district court implicitly, if not expressly, made a finding that the search was not conducted by the probation officer assigned to Ms. Brignac as required by Article 895(A)(13)(a). After review of the record, we find no error in that ruling. As a general rule, this court reviews district 'court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review. State v. Hunt, 09-1589 (La. 12/1/09), 25 So.3d 746, 751. When a district court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings. Id.

The state argues that Officers. Turner and Eagles were “assigned to” Ms. 112Brignac immediately prior to execution of the “residence check” because the probation office had received information from law enforcement that she was involved in the sale of illegal narcotics. Relevant to this issue, Officer Turner testified:

Q (State): What is your occupation, sir?
A (Turner): I am a Probation and Parole Officer with the New Orleans District of Probation and Parole.
Q: And, in connection with your employment, did you have the occasion to take part in the supervision and activities related to Ms. Kaylá Brignac?
A: Yes.
Q: [PJlease inform the court what exactly was your role in the events surrounding March 8th of 2016, as it relates to Ms. Brignac?
A: On March the 8th, we conducted a residence check at Ms. Brignac’s address of record, 524 ½ Bourbon Street.
* * *
Q: And, as part of- doing that residence check, what information was it that led you to conduct a check on that day?
A: We received information that Ms. Brignac may be involved in the sale of illegal narcotics.
Q: And, did you receive that information from another law enforcement agency?
A: Yes.
Q: Armed with that information] what did you do? , '
A: Armed with that information, we elected to conduct a residence check that morning on March the 8th, around seven a.m.

On cross examination, Officer Turner testified:

Q (Defense):[] According to your report, the agents who conducted the search were Agents Eagles, Bartel, Easley, andhsDickens? Is that correct?
A (Turner): Agent Eagles is from our office, and the other ones were from „ other law enforcement agencies. Correct.
Q: So, there were folks from the Marshals Service there?
A: Correct.
Q: From the State Police?
A: Correct.
Q: And, from the Alcohol, Tobacco, and Firearms?
A: That’s correct.
Q: And, just to be clear, you are not Ms. Brignac’s regularly assigned agent?
A: No, sir.

The defense called Probation Officer Rebecca Soileau to testify: .

Q (Defense):[]. Can you introduce yourself to the Court?
A (Soileau): Agent Rebecca Soileau with New Orleans Probation and Parole.
***
Q: ..And, you were the probation officer who was assigned to Ms. Kayla Brig-nac, correct?
A: Yes, sir.
Q: You were the sole probation officer assigned to Ms. Kayla Brignac, cor- - rect? :
A: Yes.

No other testimony or evidence was introduced relative to the issue of whether the probation officers who were involved in the search were assigned to Ms. Brignac. Officer Turner did not testify that he was regularly assigned to Ms; Brignac, Officer Eagles was not called to testify. At most, Officer Turner’s testimony suggests he and luOfficer Eagles were assigned the task 'of-conducting-a -search of Ms, Brig-nac’s residence on March 8, 2016. Moreover, Officer Soileau’s testimony that she was the sole agent assigned to defendant was not controverted.

Based on the record in this case, we find the state did not present evidence to’ establish that the probation officers involved in the search of Ms. 'Brignac’s residence were “assigned to” her within the meaning of Article 895(A)(13)(a). Thus, we find no error in the. district court’s factual finding. We hold the search of Ms. Brignac’s residence violated the provisions of Article 895(A)(13)(a). '

Suppression of the Evidence

There is no legislatively-mandated remedy for violation of Article 895(A)(13)(a), necessitating a determination of whether suppression of the evidence seized as a result of the search is required. Searches violative of the Fourth Amendment may result in exclusion of the evidence in certain situations. Additionally, Louisiana law allows for the exclusion of evidence “unconstitutionally obtained.” La. C.Cr. P. art. 703(C) (“A defendant adversely affected may move to suppress any evidence from use at the trial on the merits on the ground that it was unconstitutionally obtained.”) Thus, to justify exclusion of the evidence, we must find the search was unconstitutional under either the United States or Louisiana Constitution.

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly ^J^describing the place to be searched, and the persons or things to be seized.” Although the Fourth Amendment protects the right to be free from unreasonable searches and seizures, it does not prescribe a remedy for its violation. Thus, the United States Supreme Court created the exclusionary rule, “a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229, 231-32, 131 S.Ct. 2419, 2423, 180 L.Ed.2d 285 (2011); see also State v. Davis, 375 So.2d 69, 72 (La. 1979). However, the fact that a Fourth Amendment violation occurred— i.e., that a search was unreasonable — does not necessarily mean that the exclusionary rule applies. See Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009); Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 2324, 76 L.Ed.2d 527 (1983). As the Supreme Court explained in United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3411-12, 82 L.Ed.2d 677 (1984)(internal citations removed):

The wrong condemned by the Amendment is fully accomplished by the unlawful search or seizure itself ... and the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered. The rule thus operates as a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.
Whether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.

The Supreme Court has generally held that to trigger application of the exclusionary rule, the deterrent effect of suppression must be substantial and outweigh any harm to the justice system. See Herring, 555 U.S. at 147, 129 S.Ct. 695; Leon, 468 U.S. at 909-10, 104 S.Ct. 3405.

In considering whether the violation of Article 895(A)(13)(a) constitutes a Fourth Amendment violation, we examine the most recent decisions from the United States Supreme Court addressing Fourth Amendment rights of probationers. In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the Court upheld a search of a probationer conducted pursuant to a Wisconsin regulation permitting “any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there are ‘reasonable grounds’ to believe the presence of contraband.” 483 U.S. at 870-71, 107 S.Ct. 3164. The Court held that a state’s operation of its probation system presented a “special need” for the “exercise of supervision to assure that [probation] restrictions are in fact observed,” Id. at 875, 107 S.Ct. 3164. That special need for supervision justified the Wisconsin regulation and the search pursuant to the regulation was thus reasonable. Id. at 875-80, 107. S.Ct. 3164.

In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Court again took up ah issue involving Fourth Amendment rights of probationers. In Knights, the defendant’s California probation order contained a “search condition” stating that Knights would “‘[s]ub-mit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer.’” 534 U.S. at 114, 122 S.Ct. 587. The Court upheld a search of Knights’ residence as part of an arson investigation, rejecting the notion that the Fourth Amendment permits only “probationary” searches and not “investigatory” searches of probationers. Id. at 117-18, 122 S.Ct. 587. In upholding the search, the Court explained that the probation condition “significantly diminished Knights’ reasonable expectation of privacy.” Id. at 119-20, 122 S.Ct. 587. Given the reduced expectation of privacy, a search based on reasonable suspicion, even by a police officer, was permissible. Id. at 121, 122 S.Ct. 587.

Five years later,' the Court addressed the scope of Fourth Amendment protection to parolees in Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). In Samson the Supreme Court extended the principle of Knights |17to uphold a warrantless search of a parolee even in the absence of reasonable suspicion. 547 U.S. at 847, 126 S.Ct. 2193. The search was authorized by a state statute which provided, in relevant part, that every prisoner eligible for release on parole “shall agree in writing to be subject to search or seizure by a .parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S.Ct. 2193.

Although the Supreme Court declined to find Fourth Amendment violations in these cases, and appears to have given wide latitude to law enforcement officers tocon-duct warrantless searches of probationers and parolees, the Court’s sanctioning of these searches was not based on the defendants’ probationer or parolee status alone. Rather, it is legally significant that these cases are all premised on the probationer’s or parolee’s diminished expectation of privacy stemming from either a state regulation or their parole/probation agreement. Specifically,'in Griffin, the search was conducted by a probation officer pursuant to a state regulation applied to all probationers which permitted “any probation officer to search a probationer’s home without a warrant as long as his supervisor approves and as long as there' are ‘reasonable grounds’ to believe the presence of contraband.” (Emphasis added). In Knights, the defendant was subject to a probation condition which provided that-he would “[submit his ... person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable causé by any probation officer or law enforce ment officer.” (Emphasis added). Finally, in Samson, the search was conducted under the authority of a California law which provides that every prisoner eligible for release on state parole “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without 1 iScause.” (Emphasis added). Notably, the Court in Sampson recognized “that some States and the Federal Government require a level of individualized suspicion,” and implied that in such jurisdictions a suspicionless search would remain impermissible. 547 U.S. at 855, 126 S.Ct. 2193.

Unlike the more expansive search authority granted by the particular state regulations or probation/parole agreements in those cases, Article 895(A)(13)(a) limits the authority to conduct a search to the probation officer assigned to the probationer, and requires reasonable suspicion. Given Louisiana’s more restrictive provision governing warrantless searches of probationers, we do not read these Supreme Court cases broadly to provide constitutional validity to the search of Ms. Brignac’s residence under a Fourth Amendment analysis. See U.S. v. Freeman, 479 F.3d 743, 748 (10th Cir. 2007)(“Samson does not represent a blanket, approval for warrantless parolee or probationer searches -by general law enforcement officers without reasonable suspicion; rather, the Court approved the constitutionality of such .searches only when authorized under state law.”)

Moreover, our decision in this case does not hinge on finding a Fourth Amendment violation. Article I, § 5 of the Louisiana Constitution also protects its citizens against unreasonable searches and seizures, but it is not identical to the Fourth Amendment. La. Const. art. I, § 5 provides;

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy, No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

This court has recognized:

Our state constitution’s declaration of the right to privacy contains an affirmative establishment of a right of privacy, explicit protections against unreasonable searches, seizures or invasions of property and communications, as well as houses, papers and effects, and gives standing to any person adversely affected by a, violation of these .safeguards to. raise the illegality in the courts. This constitutional declaration of right is not a duplicate of the Fourth Amendment or merely coextensive with it; it is one of the most conspicuous instances, in which our citizens have chosen a higher standard of individual liberty than that afforded by the jurisprudence interpreting the federal constitution.

State v. Hernandez, 410 So.2d 1381, 1385 (La. 1982)(internal citations removed). Supreme Court jurisprudence relative to Fourth Amendment rights of .probationers is of limited relevance in considering whether the search-of Ms. Brignac’s residence violated the-Louisiana Constitution. Although , this «court gives “careful consideration to the United States Supreme Court interpretations of relevant provisions of the federal constitution ., .-we are not bound by them in construing the Louisiana Constitution.” State v. Reeves, 427 So.2d 408, 409 (La. 1982). Thus, even absent a Fourth Amendment violation, we are not prevented from finding the search nonetheless violated the more explicit privacy protections in Louisiana’s constitution.

Article 895 sets forth the conditions of probation, providing rules and guidelines that directly define a probationer’s expectation of privacy. Article 895(A)(13)(a) diminishes the privacy rights of probationers by allowing for warrantless searches under certain conditions. By the same token, Article 895(A)(13)(a) protects certain privacy rights of probationers by providing limitations on warrantless searches of a probationer’s person, property, residence, vehicle, or personal effects (i.e., searches must be conducted by the probation officer assigned to the probationer, and reasonable suspicion of criminal activity is required). Considering the holdings in Griffin, Knights, and Samson, it is clear Article 895(A)(13)(a) does not restrict probationers’ rights to the extent permitted by the Supreme Court. Although our legislature is undoubtedly free to further curtail probationers’ privacy rights, it has presumably chosen not to do so. .

While not all violations of statutory restrictions on searches can be deemed constitutional violations, this court has suggested that the exclusionary rule can be applied to prevent violations of a statute where that statute is designed to prevent unconstitutional invasions of privacy interests. See State v. Gates, 13-1422 (La. 5/7/14), 145 So.3d 288, 299 (“Nor have we extended the exclusionary rule to include non-constitutional violations of statutes which are not designed to protect the privacy interests of citizens. “When the statutory limitation (or duty) alleged to have been violated by the officer is not designed to implement fundamental rights of privacy, this court should not employ the exclusionary rule as a device to enforce such legislative directives.’”); State v. Barrilleaux, 620 So.2d 1317, 1321 (La. 1993)(“The affiant in the present ease violated the requirements of La.Code Crim. Proc. art. 162 by not including in the affidavit all the information necessary to establish probable cause. Because Article 162 was designed to prevent unconstitutional invasions of privacy interests, the exclusionary rule may be used to prevent violations of these statutory requirements.”); State v. Bickham, 404 So.2d 929, 933 (La. 1981). Because Article 895(A)(13)(a) protects certain privacy interests of -probationers by placing limitations on warrant-less searches of their residences, we find the violation of Article 895(A)(13)(a) in this case constituted an unreasonable search and invasion of Ms. Brignac’s privacy under Article I, § 5 of the Louisiana Constitution. For these reasons, we-hold the evidence is properly excluded and the district court correctly granted defendant’s motion to suppress the evidence. See La. C.Cr. P. art. 703(C).

CONCLUSION

La. C.Cr; P. art. 895(A)(13)(a) requires that a warrantless search of a probationer’s residence be conducted by the probation officer specifically assigned |aito that probationer. The determination of whether a probation officer is “assigned to” a particular-probationer is a factual finding to ’be made by the district court. -Based on the record in this case, we find no error in the district court’s finding that the search of Ms. Brignac’s residence was not conducted by the probation officer assigned to her. Accordingly, we hold the search failed to comply with the requirements of Article 895(A)(13)(a). We further find this statute provides certain privacy protections for probationers,, and thus, its violation resulted in an unconstitutional search under.Ar-tide I, § 5 of the Louisiana Constitution. Because the search was unconstitutional, we hold the evidence obtained in the search should be excluded pursuant to La. C.Cr. P. art. 703(C). The district court correctly granted defendant’s motion to suppress the evidence.

Therefore, the ruling of the court of appeal' is reversed, and the ruling of the district court is reinstated.

DECREE

REVERSED AND REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

GUIDRY, Justice, concurs in the result.

CRICHTON, J.,

concurs and assigns reasons

I concur in the majority’s conclusion in this matter, but write separately to emphasize that the plain language of the statute at issue, art. 895(A)(13)(a) of the Louisiana Code of Criminal Procedure, necessarily dictates the result. Specifically,' the majority appropriately finds the district court correctly gave -the “assigned to” language its generally prevailing meaning. Based upon our rules of statutory construction, I cannot disagree with the majority’s finding in this regard. However, I do note that the specific portions of the statute at issue which state that a defendant agrees to searches ... “by the probation officer or the parole officer assigned to him.... ” (emphasis added) are superficial in that, should the legislature find that the result here was not what was intended, they may change the wording of the statute without compromising its substance. In my view, it is unlikely that the legislature intended for a repeat felon to receive the remedy he does here today when a different officer conducted a search provided for by this same statute. As the majority aptly notes, defendants on probation have a decreased expectation of privacy, and as a condition of their probation, consent to searches such as those outlined in the statute. Consequently, a warrantless search under La. C.Cr.Pr. art. |2895(A)(13)(a) does not present a constitutional prohibition on its face-if one applies the plain language of the statute and has only the probation officer or parole officer “assigned to him” conduct the search. It is for this reason I am constrained to the terms of the statute, and believe its strict application to the facts of this case mandates the Court’s decision today.

      . Subsection (A)(13) was further divided into its current form, (a) and (b), in 2009. See 2009 La. Acts 362. The content of (b) was added to provide less restrictive search criteria for probationers convicted of a sex offense.

        . Officer Turner was initially questioned by counsellor a related defendant, Jermain Tobi-as.

      . Officer Soileau was questioned by counsel for defendant Kayla Brignac.

      . Because we have determined the search' of Ms. Brignac’s residence violated LA. C.Cr. P. art. 895(A)(13)(a) on the basis it was not conducted by the probation officer assigned to her, we need not reach the issue of whether "reasonable suspicion” existed for the search.


author: PER CURIAM

text:
    IN RE: Charles D. JONES
    NO. 2017-OB-1827
    Supreme Court of Louisiana.
    01/29/2018
   ON APPLICATION FOR READMISSION

PER CURIAM

|This proceeding arises out of an application for readmission to the practice of law filed by petitioner, Charles D. Jones, a disbarred attorney.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In August 2010, petitioner was convicted of one felony count of tax evasion, a violation of 26 U.S.C.' § 7201, and two felony counts of making and subscribing a false tax return, a violation of 26 U.S.C. § 7206(1). He was subsequently sentenced to serve 27 months in prison and was ordered to pay $305,174.06 in restitution to the Internal Revenue Service (“IRS”). In September 2010, we interimly suspended petitioner based upon his conviction of a serious crime. In re: Jones, 10-2047 (La. 9/20/10), 44 So.3d 262.

In the meantime, petitioner failed to provide competent representation to two clients, neglected their legal matters, and failed to adequately communicate with them. He also failed to fulfill his obligations to a federal court and failed to adequately supervise his non-lawyer staff. For this misconduct, as well as for petitioner’s criminal conviction, we imposed disbarment, retroactive to the date of his interim suspension. In re: Jones, 13-1112 (La. 9/13/13), 123 So.3d 1202.

In September 2016, more than five years after the effective date of petitioner’s disbarment, petitioner filed an application for readmission with the disciplinary board, alleging he has complied with the readmission criteria set forth in Supreme |2Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position regarding the application for readmission. Accordingly, the matter was referred for a formal hearing before a hearing committee. During the hearing, testimony and evidence was presented indicating petitioner was ordered to and is paying $500 a month to the United States District Court Clerk toward the $305,174.05 in restitution related to his criminal conviction, is paying $1,578 a month to the IRS pursuant to an installment agreement related to his federal' tax debt, and is paying $1,080 a month to the Louisiana Department of Revenue (“LDR”) pursuant to an installment agreement related to his state tax debt.

Following the hearing, the hearing committee recommended that petitioner be readmitted to the practice of law, without conditions. Neither petitioner nor the ODC objected to the hearing committee’s recommendation.

DISCUSSION

After considering the record in its entirety, we find petitioner has met his burden of proving that he is entitled to be readmitted to the practice of law. Nevertheless, further precautions are warranted to insure that the public will be protected upon petitioner’s return to practice. See Supreme Court Rule XIX, § 24(J).

. Accordingly, we will order that petitioner be conditionally readmitted to the practice of law, subject to a three-year period of probation governed by the following conditions:

1. During the probationary period, petitioner shall provide evidence to the ODC, on at least a quarterly basis,'demonstrating that (a) he is making the court-ordered monthly restitution payments to the United States District Court Clerk; (b) he is making monthly payments to the IRS in accordance with the provisions of his installment agreement; and (c) he is making monthly payments to the LDR in accordance with the provisions of his ^installment agreement; and

2. Petitioner shall cooperate with' the ODC, and shall comply with any and all requirements imposed upon him by the ODC.

3. Should petitioner fail to comply with these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately, or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate. ‘ ,

DECREE

Upon review of the recommendation of the hearing committee, and considering the record, it is ordered that Charles' D. Jones, Louisiana Bar Roll number 7476, be immediately readmitted to the practice of law in Louisiana, subject to a three-year period of unsupervised probation governed by the conditions set forth herein. The probationary period shall commence from the date petitioner and the ODC execute a formal probation plan. Should petitioner fail, to comply with the conditions of probation, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated immediately, or he may be subjécted to other discipline pursuant to :the Rules for Lawyer Disciplinary Enforcement, as appropriate. All costs of these proceedings are assessed against petitioner.

WEIMER, J., would deny readmission,

GENOVESE, J., would grant readmission but with a five-year period of probation.


author: Hughes, J.,

text:
    IN RE: Eleanor Pierce (Marshall) STEVENS LIVING TRUST Consolidated With in re: Eleanor Pierce (Marshall) Stevens Living Trust and Eleanor Pierce Stevens Revocable Gift Trust
    No. 2017-C-1864
    Supreme Court of Louisiana.
    01/29/2018
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CALCASIEU

| iDenied.

Hughes, J., would grant, and assigns reasons.

GENOVESE, J., recused.

Hughes, J.,

would grant the writ.

|This matter involves a discovery dispute in a civil matter. It is not a case of “criminal contempt”. The trial court should be allowed to manage his docket in order to progress this litigation.


text:
    STATE of Louisiana v. Jonathan Lane JOHNSON
    No. 2017-KK-1250
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU

I i Denied.

HUGHES, J., would grant and assigns reasons.

GENOVESE, J., would grant.

Hughes, J.,

would grant the writ.

hlf the state chooses to do its own recording of Grand Jury testimony, without the services of a certified court reporter, it should at least do so in a fair and competent manner, not selectively or with gaps, to avoid the problems presented here.


author: PER CURIAM CLARK, J.,

text:
    IN RE: James A. GRAY, II
    NO. 2017-B-1929
    Supreme Court of Louisiana.
    01/29/2018
   ATTORNEY DISCIPLINARY PROCEEDING

PER CURIAM

This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) ‘against respondent, James A. Gray, II, an attorney licensed to practice law in Louisiana, but currently suspended from practice.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1973.

In 2015, this court suspended respondent from the practice of law for a period of two years. In re: Gray, 14-2085 (La. 3/17/15), 166 So.3d 969 (“Gray /”).' The misconduct at issue involved respondent’s neglect of four legal matters, failure to communicate with clients, failure to return client files'upon request, failure to refund unearned fees, and failure to cooperate with the ODC in its investigations. Respondent has not yet sought reinstatement from his suspension in Gray I and thus remains suspended from the practice of law.

Against this backdrop, we now turn to a consideration of the misconduct at issue in the instant proceeding.

| ¡.FORMAL CHARGES

In February 2014, a disciplinary complaint was filed against respondent with the ODC. On March 12, 2014 and May 5, 2014, notices of the, complaint were forwarded to respondent at his primary registration address via certified mail with a return receipt request. In both instances, neither the notice nor the return receipt card was returned to the ODC, and the United States Postal Service tracking information indicated that the item was “currently in transit to the destination.”

On August 14, 2014, an ODC investigator hand-delivered a copy of the' complaint to respondent’s primary registration address. An office employee signed for and received the complaint. Although respondent was instructed to forward a written, substantive response to the complaint within fifteen days of receipt of the complaint, he failed to do so and failed to contact the ODC about the matter.

On January 28, 2015, respondent received a hand-delivered copy of the complaint while attending oral arguments in this court. On April 2, 2015, another copy of the complaint was forwarded to respondent’s attorney of record, Ernest Jones. Two months later, the ODC contacted Mr. Jones to inquire about the status of a response to the complaint, but respondent never responded to the complaint.

DISCIPLINARY PROCEEDINGS

In July 2015, the ODC filed formal charges against respondent, alleging that his conduct violated the following provisions of the Rules of Professional Conduct: Rules 8.1(c) (failure to cooperate with the ODC in its investigation) and 8.4(a) (violation of the Rules of Professional Conduct). Respondent was personally served with the formal charges but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee | ¡¡written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee determined that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as alleged in the formal charges.

The committee determined that respondent violated duties owed to the legal system by failing to cooperate in the investigation of a complaint. It is apparent that he acted intentionally as he was served with notice that action was required by him and yet he never took any action. Respondent caused harm to the legal profession because the ODC has been unable to investigate and resolve the complaint. Such conduct, according to the committee, results in the legal profession being held in disrespect by the public and.prevents the legal profession from policing itself. Under the ABA’s Standards for Imposing Lawyer Sanctions, the baseline sanction is suspension.

In aggravation, the committee found a prior disciplinary record. The committee did not mention any mitigating factors.

After further considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended respondent be suspended from the practice of law for two years. The committee also recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection to the hearing committee’s report.

| ¿Disciplinary Board Recommendation

After review, the disciplinary board adopted the factual findings and legal conclusions of the committee. The board also determined that the committee correctly applied the Rules of Professional Conduct.

The board determined that respondent knowingly violated duties owed to the legal profession, causing actual harm. During oral argument before the board, respondent offered no explanation for his failure to- participate in the ODC investigation. Respondent stated that he had intended to respond to the formal charges but simply-failed to do so.

The board agreed with the committee that the baseline sanction is suspension. In aggravation, the board found a prior disciplinary record. The board found no mitigating. factors are present.

Turning to the issue of an appropriate sanction, the board cited the case of In re: Duhy, 14-2052 (La. 11/21/14), 154 So.3d 541, wherein this court suspended an attorney from the practice of law for one year and one day, with all but three months deferred, for failing to cooperate with the ODC in three investigations. The court found that the attorney, who had been previously disciplined five- times for failing to cooperate with the ODC, acted knowingly. The following aggravating factors. were present: a prior disciplinary record, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The following mitigating factors were present: personal or emotional problems and remorse.

Considering the foregoing, the board recommended respondent be suspended from the practice of law for one year, followed by a one-year period of probation. The board also recommended respondent be assessed with the costs and expenses of this proceeding.

Neither respondent nor the ODC filed an objection, to the disciplinary board’s recommendation. ' :

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09), 18 So.3d 57.

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a, specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow, from the admitted factual allegations. In re: Donnan, 01-3058 (La. 1/10/03), 838 So.2d 715.

The evidence in the record of this deemed admitted matter supports a finding that respondent failed to cooperate in a disciplinary investigation. As such, he has violated the Rules of Professional Conduct as alleged by the ODC.'

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the-profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La. 1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and ^mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La. 1984).

Respondent knowingly, if not intentionally, violated duties owed to the legal profession, causing actual harm. The baseline sanction is suspension. The record supports the following aggravating factors: a prior disciplinary record and substantial experience in the practice of law (admitted 1973). There are no mitigating factors present.

In the past, this court has found that an attorney's failure to cooperate with the ODC, standing alone; is sufficient to warrant a period of actual suspension. See, e.g., In re: Augustine, 97-1570 (La. 9/26/97), 707 So.2d 1 (thirty-day suspension imposed upon an attorney who knowingly failed to cooperate with the ODC in two investigations), and In re: Boudreau, 03-1890 (La. 12/3/03), 860 So.2d 1119 (six-month suspension imposed upon an attorney who failed to cooperate with the ODC in its investigation of a complaint filed against him; the attorney had recently been disciplined for similar misconduct, and his continued failure to cooperate was therefore found to be “particularly egregious”).

At first glance, the one-year suspension recommended by the board appears somewhat excessive given that the sanctions imposed by this court in failure to cooperate cases have resulted in no more than a six-month actual suspension from the practice of law. However, respondent’s failure to cooperate with the ODC in the instant case is more egregious than the typical failure to cooperate case. The ODC went to great lengths to ensure that respondent had notice of the complaint and a copy of the formal charges. Nevertheless, respondent made no effort to respond to the ODC’s repeated inquiries, which is particularly troublesome since respondent was an elected official throughout the ODC’s investigation. See In re: Bankston, 01-2780 (La. 3/8/02), 810 So.2d 1113 (an attorney occupying a position of public |7trust is held to even a higher standard of conduct than an ordinary attorney). The sanction recommended by the board is appropriate in this case.

Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year, followed by a one-year period of probation.

DECREE

Upon review of the findings and recommendations of the.hearing, committee and disciplinary board, and considering the record, it is ordered that James A. Gray, II, Louisiana Bar Roll number 6262, be and he hereby is suspended from the practice of law for one year, followed by a one-year period of probation. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

CLARK, J., would impose a suspension for one year and one day.

GENOVESE, J., would impose a suspension of two years.

CLARK, J.,

dissenting.

I would impose a suspension for one year and one day.


author: PER CURIAM:

text:
    STATE EX REL. Thaddeus A. WILLIAMSON v. STATE of Louisiana
    No. 2017-KH-1957
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

| VWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5. Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling denying relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Sean SHORT v. STATE of Louisiana
    No. 2017-KH-1952
    Supreme Court of Louisiana.
    01/29/2018
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

JjWRIT NOT CONSIDERED. Untimely filed pursuant to La.S.Ct.R. X § 5.

Relator has now exhausted the right to obtain post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La. C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator has filed an application for post-conviction relief in the district court, and the district court’s ruling deny-tag relief is now final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted the right to state collateral review. The district court is ordered to record a minute entry consistent with this per cu-riam.