author: PAUL A. BONIN, JUDGE LOVE, J.,

text:
    STATE of Louisiana v. Frederick JOHNSON
    NO. 2016-K-0480
    Court of Appeal of Louisiana, Fourth Circuit.
    October 12, 2016

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, 619 South White Street, New Orleans, Louisiana 70119, COUNSEL FOR RELATOR/STATE OF LOUISIANA
    C. Gary Wainwright, 2739 Tulane Avenue, New Orleans, Louisiana 70119, COUNSEL FOR RESPONDENT/ FREDERICK JOHNSON
    (Court composed of Judge Terri F, Love, Judge Paul A. Bonin, Judge Sandra Cabrina Jenkins)
   PAUL A. BONIN, JUDGE

Ijn 2013, the district attorney filed a bill of information charging Frederick Johnson with the second degree murder of Ruben Brown III. During the discovery stage of the proceedings, the district attorney produced to the defendant a redacted police report. The redactions concealed the identities of numerous persons.who reported personally witnessing the shooting of Mr. Brown,

Mr. Johnson filed a motion for the production of an unredacted version of the ■police report so 'that he would learn the identities and whereabouts of the reporting witnesses. The basis for his motion was that some of the reporting witnesses possessed information that was, in the sense of Brady, favorable to his defense and that others of the reporting witnesses were not persons whom the prosecution intended to call as witnesses upon the trial. Mr. Johnson also filed a motion seeking the contact information of an individual identified in a Notice of Disclosure provided by the prosecution, and who was not included in the initial police report, and a motion seeking tangible objects, specifically, recorded^interviews with certain witnesses. The trial judge conducted an in-court contradictory hearing. The district attorney opposed any disclosure.

Following'the hearing, the trial judge granted the relief sought by the defendant and ordered that the prosecution furnish “a completely unredacted police report immediately-.” The trial judge also ordered that the prosecution provide contact information for the two witnesses contained in the Notice of Disclosure and that all the tangible objects in Mr. Johnson’s motion be released to him. The district attorney applied for supervisory review and a stay of the order of production. We granted the requested stay because of our' concerns about the trial judge’s compliance with controlling jurisprudence relating to pretrial intervention of Brady disclosures as well as his application of Article 729.7 of the Louisiana Code of Criminal Procedure to this case. We also' stayed commencement of the trial until the issues raised in the application are resolved. ■

We find that the trial judge .abused his discretion in ordering production of a wholly unredacted version of the police report for two reasons: first, with respect to those Brady disclosures he determined were necessary, he failed to comply with the controlling directives of State v. Harper when he did not conduct an in camera review of witnesses alleged to possess exculpatory information and, second, he incorrectly applied the provisions of Article 729,7 even though those provisions are not applicable to any case, such as this one, in which the prosecution wa^_ instituted before January 1, 2014. Likewise, we find that the trial judge did not comply with the requirements in Harper with respect to the Notice of Disclosure and motion for tangible objects.

Accordingly, we vacate the order of immediate production of a wholly unredacted version of the police report, production of the contact information of the witness contained in the Notice of Disclosure, and production of all tangible objects. We recall the stay of proceedings and remand with instructions for further proceedings. We explain our decision in more detail below.

I

We begin our explanation by reviewing the factual background of the charges against- Mr. Johnson based primarily on the redacted version of the police report and detailing the specific redactions to the report and the trial judge’s particular actions concerning the redactions. Importantly, we note that our recitation of the facts based on the information in the police report in no way vouches for the accuracy of the report, nor should it be read as a reflection of our opinion on Mr. Johnson’s guilt or innocence, which of course is yet to be determined.

A

In the early evening of May 1, 2013, Ruben “Sugar-man” Brown III was standing on a sidewalk in the 3400 block of Magnolia Street in New Orleans when, according to police, he was approached by Frederick Johnson, who is known as “Blackman.” Upon the approach, Mr. Brown attempted to flee when he was shot |4in the back by Mr. Johnson. After Mr. Brown fell to the ground, Mr. Johnson stood over Mr. Brown and fired several .more times into him. Mr. Brown died at the scene.

According to the police report, investigating officers interviewed nine individuals in connection with the incident. Four of these individuals witnessed the shooting and described the shooter in some detail. These persons are identified in the redacted report as Witnesses Two, Three, Four, and Eight. Only Witness Two, however, actually identified the defendant from a six person photographic lineup. Witnesses Three, Four, and Eight were unable to identify Mr. Johnson as the perpetrator. The remaining interviewees did not witness the shooting nor did they provide a description of the shooter. The police report also contains several other redacted individuals, but they were not interviewed by detectives.

The trial judge found that the lineup procedures, wherein Witnesses Three, Four, and Eight, failed to identify Mr. Johnson, even though they had previously provided a description of the shooter, were exculpatory under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district attorney, therefore, was ordered to provide the identities and contact information for those three witnesses. The trial judge’s order, although unclear from a review of the contradictory hearing transcripts, included not only the three Brady witnesses, but extended to every redacted individual in the police report. The reasoning given in the trial judge’s per curiam was that the individuals were not “state witnesses,” ostensibly because they will not be called to testify, nor were there any safety concerns articulated by the | ^prosecution as to why the identities of such non-state witnesses should be redacted. Thus, the police report, unredacted in its entirety, was ordered to be turned over to the defense.

II

In this Part, we set forth the relevant legal principles applicable to this case.

A

The Louisiana Legislature, by way of 2013 La. Acts 250, amended several discovery rules in the Code of Criminal Procedure, including the enactment of Article 729.7, which regulates the protection of witness identities in pre-trial discovery proceedings. The Act specifically provides, however, that the provisions are only effective for cases indicted on or after January 1, 2014, and thus “shall be given prospective application from its effective date, unless the district attorney and the defendant stipulate otherwise in each particular case, in writing, on the record.” See 2013 La. Acts 250, Section 2. Mr. Johnson was indicted on October 11, 2013 and there is nothing in the record that indicates a stipulation between him and the district attorney. Indeed, the prosecution’s writ application specifically notes that the current discovery rules are inapplicable to this case. Thus, the trial judge eired to the extent that he applied the provisions of La. C.Cr.P. art. 729.7 to this case.

J#B ,

We next review legal principles which are applicable to all criminal cases, regardless of the date of indictment.

Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, the prosecution has an affirmative duty to disclose evidence which is favorable to the defense, “where the evidence is material either to guilt or to punishment” or impeaches the testimony of a witness where “the reliability of a given witness may well be determinative of guilt or innocence....” Brady, 373 U.S. at 87, 83 S.Ct. 1194; Giglio v. U.S., 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (internal quotation marks omitted); see also State v. Harper, 10-0356, p. 8 (La. 11/30/10), 53 So.3d 1263, 1269. Evidence is “material” when “there is any reasonable likelihood -it could have affected the judgment of the jury” and it is sufficient to undermine confidence in the verdict. See Wearry v. Cain, 577 U.S. —, —, 136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (internal quotation marks omitted) (citing Giglio, 405 U.S. at 154, 92 S.Ct. 763; Smith v. Cain, 565 U.S. 73, 73-79, 132 S.Ct. 627, 629-31, 181 L.Ed.2d 571 (2012)). This affirmative duty under Brady is “embedded in the principle that a criminal defendant is deprived of a fair trial when the state withholds exculpatory evidence that is material to guilt or punishment.” In re Jordan, 04-2397, p. 9 (La. 6/29/05), 913 So.2d 775, 781.

Louisiana jurisprudence has consistently held that “a defendant is generally not entitled of right to the names, addresses, and telephone numbers of witnesses in the absence of extraordinary circumstances.” Harper, 10-0356, p. 10, 53 So.3d at 1270 (citing State v. Weathersby, 09-2407, p. 2 (La. 3/12/10), 29 So.3d 499, 501). Disclosure of such identifying information may be warranted, however, upon a determination by the trial judge that there exist “peculiar and distinctive reasons why fundamental fairness dictates discovery.” Harper, 10-0356, p. 10, 53 So.3d at 1271 (quoting Weathersby, 09-2407, pp. 2-3, 29 So.3d at 501). And, even if extraordinary circumstances exist, witness information should only be made available to the defense after the trial judge conducts an in camera,interview and finds that the witnesses possess exculpatory information. See id. (citing State v. Golden, 95-0288, p. 1 (La. 2/17/95), 650 So.2d 237, 238). See also La. C.Cr.P. art. 718 (2013) (defendant entitled to copy and inspect documents within custody of the state if they are favorable to the defendant and- material = to guilt or punishment). In sum, where the defendant makes a request for evidence in the prosecution’s possession, and “if a substantial basis for claiming materiality exists,-it is reasonable to require the prosecutor to respond either by furnishing the information-.or by submitting the problem to the trial judge.” Harper, 10-0356, p. 10, 53 So.3d at 1270 (quoting United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)).

We also take note that the provisions governing discovery by the defense are less restrictive than the provisions governing discovery by the state: La. C.Cr.P. art. 723 restricts a .defendant’s right to statements made by witnesses or prospective j ¿witnesses made to the district attorney, but does not explicitly prohibit discovery of names or addresses of state witnesses. Conversely, La. C.Cr.P. art. 728 prohibits the prosecution from discovery of both statements and names .of defense witnesses or prospective witnesses, As the Louisiana Supreme Court aptly pointed out, “[o]n the basis of simple.. statutory construction, the difference is obvious and there seems to be, therefore, an intentional legislative disclaimer on the state’s discovery of the names of witnesses which is not paralleled as relates to defense discovery.” State v. Walters, 408 So.2d 1337, 1340 (La. 1982)..

Of course, the prosecution’s statutory and constitutional obligations do not relieve the defense of the duty to conduct its own investigation and prepare a defense for trial, as there is no duty -to furnish the defendant with information he already has or can obtain with reasonable diligence. See Harper, 10-0356, p. 11, 53 So.3d at 1271; State v. Jenkins, 14-1148, p. 16 (La. App. 4 Cir. 5/6/15), 172 So.3d 27, 39. Thus, there can be no Brady violation “where a defendant knew or should have known the essential facts permitting him. to take advantage of any exculpatory information, or where the evidence is available from another source, because in such cases there is really nothing for the government to disclose.” Harper, 10-0356, p. 11, 53 So.3d at 1271 (quoting State v. Hobley, 98-2460, p. 25 n. 10 (La. 12/15/99), 752 So.2d 771, 786).

In Harper, the defendant sought the addresses and phone numbers of two named eyewitnesses whose statements to police had been disclosed and which lorevealed an alleged discrepancy in the t-shirt color of the shooter. The trial judge ordered the prosecution to produce the witnesses for an in camera interview to determine the extent, if any, of exculpatory information. The Louisiana Supreme Court found that the district judge had abused his discretion by ordering a pretrial in camera interview under the circumstances presented. Specifically, the court found that the defendant had not demonstrated an '“exceptional circumstance or a peculiarly distinctive reason” why he was entitled to contact information on the mere basis of a t-shirt color discrepancy and in light of the fact that the defendant had already received the witnesses’ names, their uriredacted statements, and their RAP sheets: “With this identifying information, the defendants through the exercise of reasonable diligence should he able to locate these individuals prior to trial.” Harper, 10-0356, p. 13, 53 So.3d at 1272 (emphasis added).

Likewise, the court in Weathersby found the defendant’s contention that he should “have the benefit of eyewitnesses who can articulate who were the aggressors” did not constitute a particular and distinctive reason why fundamental fairness entitled him to the names of witnesses in a redacted police report, especially in light of the prosecution’s stated concern for the witnesses’ safety. Weathersby, 09-2407, p. 3, 29 So.3d at 501.

Louisiana courts have held that the failure of an eyewitness to positively identify a defendant in a photographic lineup is not exculpatory when the defendant is not included in the photographic lineup. See, e.g., State v. Hawkins, 96-0766, p. 4 (La. 1/14/97), 688 So.2d 473, 477; State v. Nel son, 96-0883, pp. 12-13 (La. App. 4 Cir. 12/17/97), 705 So.2d 758, 765; State v. Dantzler, 591 So.2d 1385, 1388 (La. App. 4th Cir. 1991) (defendant not prejudiced by pre-trial non-identification because it was brought to jury’s attention and it was not established that defendant’s photograph was in the lineup).

It has also been held, however, that the failure of a key state witness to identify the defendant from a pre-trial photographic lineup when that witness testifies at trial is material evidence under Brady. See, e.g., State v. Curtis, 384 So.2d 396, 397-98 (La. 1980).

Ill

In this Part, with the foregoing principles in mind, we determine the correctness of the trial judge’s rulings with regard to the witnesses in the police report and the Notice of Disclosure.

A

In this case, three out of four eyewitnesses who described the shooter to police were unable to positively identify Mr. Johnson from a photographic lineup. There is no doubt from the police report that Mr. Johnson’s photograph was included to each of the four lineups. Moreover, this ease appears to rest heavily on the testimony of Witness Two, the only individual out of four eyewitnesses who picked Mr. Johnson out of a- lineup. See generally State v. Bright, 02-2793, p. 9 (La. 5/25/04), 875 So.2d 37, 43-4 (“When the State’s case hinges on the testimony of one eyewitness, the Brady violation looms larger”).'We especially |nnote that, as contrasted with Harper, Mr. Johnson was not provided the names or the RAP sheets of Witnesses Three, Four, or Eight; Nor is this a situation where eyewitness descriptions merely differ over the color of a t-shirt. It is highly unlikely that Mr. Johnson,' even exercising reasonable diligence, would be able to identify these unnamed witnesses who were interviewed over three years ago. Further,. unlike the case in Weathersby, the prosecution has not articulated any concern about witness safety, which in any event, would be dubious considering that these witnesses are likely beneficial to the defendant.

Nevertheless, Louisiana jurisprudence requires that, even if Mr. Johnson has established circumstances entitling him to the identifying information of witnesses, the trial judge must first conduct an in camera interview to determine the existence and extent of any Brady information Witnesses Three, Four, and Eight possess.

B

As to the remaining witnesses in the policé report, that is, witnesses other than Witnesses Three, Four, and Eight, we find no legal basis for redaction. And although we acknowledge the general rule that “a defendant is generally not entitled of right to the names, addresses, and telephone numbers of witnesses,” see Harper, 10-0356, p. 10, 53 So.3d at 1270, Louisiana jurisprudence reflects that the 112concern is centered on “state witnesses,” that is, witnesses whom the prosecution intends to call- at trial. See generally State v. Lee, 00-0831 (La. App. 4 Cir. 5/8/00), 767 So.2d 97. Mm-state witnesses, therefore, are witnesses who will not be called to testify. The record suggests that the witnesses at issue in the police report will not be called to testify by the prosecution.

Further, we find no support in either statutory or case law for the prosecution’s apparent default policy of nondisclosure, which in this case is to redact all identifying information in a police report, regardless of whether the individuals therein will be called to testify or not. We also note that such a practice appears at odds with due process and thwarts the open nature of our justice system. See generally La. Const. art. 1, § 2 (Due Process of Law) and § 22 (Access to Courts); State in Interest of A.C., 643 So.2d 719, 728 (La. 1994) (Without “a sufficient countervailing justification for the State’s action [the denial of access will be] a denial of due process.”) (brackets in original) (quoting Boddie v. Connecticut, 401 U.S. 371, 382, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)).

We therefore find that the trial judge was correct to order the release of an unredacted police report as those witnesses other than Three, Four, and Eight. As discussed in Part III-A, ante,'the latter witnesses are to be interviewed in camera before any identifying information is disclosed to the defendant.

lisC

In his per curiam, the trial judge also ordered the contact information of the “two witnesses not contained in the police report” but which were included in the Notice of Disclosure provided to the defense. The Notice provides that a family member of the decedent stated Rory Dimes had told her that the perpetrator was known as “Blackman.” The Notice also discloses that Calvin Hughes gave a description of the shooter and the shooter’s car, which allegedly conflicts with other eyewitness descriptions. The trial judge ruled that Mr. Johnson is entitled to “full cross examination of the disclosed witnesses.” But, because Mr. Johnson’s motion only referenced Calvin Hughes, we vacate the portion of the judgment which requires the prosecution to provide identifying information for the unidentified family member contained in the Notice.

As to Mr. Hughes, the Notice of Disclosure provides that Mr. Hughes stated the shooter possibly had dreadlocks and drove a car with a Texas license plate. Mr. Johnson argues that he had short hair at the time of the incident and that his car bore a Louisiana license plate. Although investigating officers did not conduct an identification procedure, we do find the allegation of .Mr. Hughes’s conflicting descriptions similar to the cases of Witnesses Three, Four,, and Eight. Thus, as | uwith Witnesses Three, Four, and Eight, the trial judge should conduct an in camera interview with Mr. Hughes to determine whether Mr. Johnson is entitled to Mr. Hughes’s contact information. During the inspection, the trial judge should consider whether Mr. Johnson has demonstrated that his efforts to locate Mr. Hughes through the exercise of reasonable diligence have failed. See Harper, 10-0356, p. 13, 53 So.3d at 1272 (suggesting that a successful showing that all attempts to locate the witness have failed may be an exceptional circumstance warranting disclosure of the witness’s contact information).

IV

' We now address the portion of the trial judge’s 'ruling which granted the defendant’s Motion to Produce Tangible Objects in Possession of the State.

A

Mr. Johnson sought the recorded interviews and identification procedures conducted with Witnesses Three and Four, who did not identify him in a lineup, and the recorded interview with Witness Two, who did identify him in a lineup.

Under the provisions of • La. C.Cr.P; art. 718, applicable at the time, on motion of the defendant, “the court -shall order the district attorney to permit or authorize the . defendant., .to inspect, copy.. .or otherwise > reproduce,. .photographs, tangible objects.,, .that are within the possession, custody, or control of the state....” The tangible objects must be favorable to the defendant and material to hiiguilt or punishment, or they must be intended for use by the state at trial. See La. C.Cr.P. art. 718 (1) and (2) (2013). Although the trial court may conduct an in camera inspection to determine the nature of the requested materials, a defendant will be denied such an inspection if the prosecution' has denied possession of the specific materials. See State v. Cobb, 419 So.2d 1237, 1241 (La. 1982).

Here, the prosecutor admitted that the recorded interviews requested by Mr. Johnson are in possession of the state and indicated that the materials are to be used in the prosecution’s case-in-chief. Moreover, as discussed above, the interviews and identification procedures with Witnesses Three and Four are arguably material and relevant to the issue of guilt, in a case where a majority of the eyewitnesses described the shooter but were unable to identify Mr. Johnson in a photographic lineup. See also, n. 7, ante. We find, however, that before ordering the prosecution to turn over the recorded interviews and identification procedures with Witnesses Two, Three, and Four, the trial judge should conduct an in camera inspection to determine whether the information on: the recordings is favorable to Mr. Johnson as exculpatory or impeachment evidence. See Harper, 10-0356, p. 10, 53 So.3d at 1270; Cobb, 419 So.2d at 1242. We also point out that, for .purposes of materiality, there is an important distinction between a witness who merely says, “I don’t recognize anyone,” and a witness who affirmatively states, “The shooter is none of these men.”

ImB

Mr. Johnson also sought the recorded interviews conducted with Witnesses Five, Six, and Seven, and the recorded calls of an inmate, labeled as Witness Eleven -in the police report.

According to the police report, Witness Five told detectives that although he witnessed a “black male” exit an Infiniti sedan and heard shots fired shortly after-wards, he “could not provide investigators with a description of the shooter.” Likewise, Witness Seven told investigators that he was on the scene and spoke with the victim briefly, but left the area before the shooting. The witnesses were not shown photographic lineups. Mr. Johnson has not demonstrated how recorded interviews with these witnesses are material to his guilt or punishment and we find no reason why he would be entitled to them under the provisions of La. C.Cr.P. art. 718.

Witness Six was standing in the area when she observed Ruben Brown drive up in a, car with a Texas license plate. She spoke with Mr. Brown briefly but stated that she left the area before the shooting. She did not describe the shooter but told investigators that she heard the shooter was known as, “Blackman,” Regarding the jailhpuse recordings, the inmate (Witness Eleven) spoke to Witnesses Six and Two at different times. Witness Six told him she “saw” the individual who committed the shooting and Witness Two told the inmate he “knows” the shooter. These calls notably occurred before police interviewed Witness Six, during which interview she informed investigators that she did not witness the shooting. Evidence of a |! ./witness’s inconsistent statements can be powerful impeachment evidence. See, e.g., State v. Owunta, 99-1569, p. 1 (La. 5/26/00), 761 So.2d 528, 529 (per curiam); La. C.E. art. 607. And, even if Witness Six will not be called to testify, if she indeed witnessed the shooting, she may be in possession of evidence valuable to -the defense. Therefore, we find that the trial judge should also conduct an in camera inspection of this witness and/or her- statements to determine if Mr. Johnson is entitled to them under the provisions of La. C.Cr.P. art. 718, applicable at the time. Likewise, because Witness Six allegedly conveyed to Witness Eleven that she personally witnessed the shooting, the trial judge should also examine in camera the jailhouse telephone recordings.

As,to Witness Two, Mr. Johnson already possesses the recorded identification procedure and the recorded interview is to be submitted to' the trial judge for an in .camera inspection.

In sum, the recorded interviews, with Witnesses Three, Four, Six, as well as Two, and the recorded phone call of Witness Eleven, shall be examined by the trial judge in camera to determine what, if any, Brady material they possess,.or if other circumstances are present which, would en•title Mr. Johnson to the evidence. The trial judge’s ruling with respect to the remaining tangible objects listed in-Mr. Johnson’s .motion is vacated.

^CONCLUSION

• We vacate the trial judge’s ruling which ordered the district attorney to produce an unredacted police, report with regard to Witnesses Three, Pour, and Eight. We affirm the remainder of the ruling which ordered an unredacted police -report. To clarify: the identifying information of Witnesses Three, ¡Four, and Eight shall be redacted pending in camera interviews; the remainder of the report shall be unre-dacted and disclosed to the defense.

We vacate the ruling which ordered production of the contact information of both witnesses in the Notice of Disclosure and which granted the Motion to Produce Tangible Objects In Possession of the State. We-recall the stay previously imposed and remand for further proceedings.

REMAND INSTRUCTIONS

We remand for the trial judge to interview in camera Witnesses Three, Four, and Eight, as well as Calvin Hughes. He is also to inspect in camera the recorded interviews of Witnesses Three, Four, Six, as well as Two, and the recorded phone call between Witnesses Six and Eleven. If the trial judge determines that any of the foregoing witnesses or recordings contain material exculpatory or impeachment evidence under Brady, or if he determines that extraordinary circumstances are present under Harper, he is authorized to release such information, and only that information, to Mr. Johnson.

We acknowledge the difficulty in conducting a pre-trial determination in light of the retrospective test for materiality, which is • more often undertaken in | ^collateral review proceedings. The Louisiana Supreme Court has stated, however, that the concept of materiality in a pretrial posture “is to be given its ordinary meaning in the law of evidence,” where an examination is made into “the relation between the propositions for which the evidence is offered and the issues in the case.” See State v. Ortiz, 567 So.2d 81, 83 (La. 1990) (quoting McCormick on Evidence, § 185 at 341 (3rd Ed. 1984)).

We also emphasize that the in camera inspections do not absolve the prosecution of its ongoing obligation to disclose material exculpatory or impeachment evidence. The prosecution’s duty is non-delegable and does not shift to the trial judge, notwithstanding the ultimate ruling after the in camera review. See generally U.S. v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (duty remains whether defense makes specific request or not); State v. Marshall, 94-0461, p. 12 (La. 9/5/95), 660 So.2d 819, 825 (prosecutor has “affirmative duty” to disclose Brady evidence). Should the prosecution, on its own, conclude that the evidence in its possession is Brady material, it must disclose such evidence to the defense.

WRIT GRANTED; VACATED AND REMANDED; STAY RECALLED

LOVE, J„ CONCURS IN PART AND DISSENTS IN PART

LOVE, J.,

CONCURS IN PART AND DISSENTS IN PART

hi respectfully concur in part and dissent in part. I agree with the majority’s decision to remand the case to the trial judge to: (1) conduct an in camera examination of Calvin Hughes and Witnesses Three, Four, and Eight; and (2) inspect in camera the recorded interviews of Witnesses Three, Four, Six, and Two as well as the recorded jailhouse phone calls of inmate, Witness Eleven. Insofar as the majority affirms the trial court’s ruling ordering the State to produce to Mr. Johnson the unredacted police report, I join the majority. However, I disagree in part with the majority’s instructions on remand that in producing an unredacted police report the State shall redact the identifying information of Witnesses Three, Four, and Eight, pending in camera examinations. Further, I would affirm the trial court’s ruling ordering the State to produce the contact information of the two witnesses in the notice of disclosure. For the reasons that follow, I concur in part and dissent in part.

Police Report

First,- the State is correct in that the 2013 amendments, giving effect to our current discovery rules, do not apply in this case. The State argues, therefore, that Mr. Johnson may not challenge the State’s redaction. Nevertheless, the State tacitly relies on the newly enacted La. C.Cr.P. art. 729.7 for the complete deletion of personal information of all non-State witnesses included in the police report. In State v. Williams, 15-1074, p. 8, unpub. (La. App. 4 Cir. 10/20/15), this Court noted that though La. C.Cr.P. art. 729.7 does not apply to cases prior to January 1, 2014, it could be used for guidance. I find that La. C.Cr.P. art. 729.7 simply codifies what our jurisprudence previously recognized, providing now the statutory authority for redactions and challenges to those redactions. Although the trial court erred in applying La. C.Cr.P. art. 729.7 in this case, I find no error in using it as guidance in the consideration of Mr. Johnson’s challenge to the redacted police report.

In State v. Miller, 03-0796 (La. 6/4/01), 848 So.2d 529, the Supreme Court held that the disclosure of witness’ identity will be required only when it is essential for the defendant to have a fair trial. See also State v. Harper, 10-0356, p. 10 (La. App. 4 Cir. 11/30/10), 53 So.3d 1263, 1270 (“Louisiana jurisprudence has also consistently held a defendant is generally not entitled of right to the names, addresses, and telephone numbers of witnesses in the absence of extraordinary circumstances”). Harper noted that . .regardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady claim.” Id., 10-0356, p. 11, 53 So.3d at 1271 (internal citations omitted). Jurisprudence, prior to the 2013 amendments, demonstrates that “witness” under La. C.Cr.P. art. 723 refers only to State witnesses—those witnesses that the State intends to call at trial.

The trial court noted in this case that “the State has not proclaimed in any hearing that [the remaining individuals listed in the police report] are State witnesses and thereby in need of protection.” Nor, has the State indicated to this Court that it intends to call these remaining individuals listed in the report as State witnesses. Furthermore, while identities and personal information relating to ^witnesses the' State intends to call at trial must be protected, the State concedes that it also redacted personal information of non-State witnesses. Yet, when the trial court asked the State for an explanation for the redaction of non-State witnesses it failed to provide one. The State only maintains that all witnesses, State or not, should be redacted.

The trial' court noted that sixteen witnesses were excised from the police report and were assigned numbers. The trial court deemed the report “virtually worthless.” The court further found that the State’s offer to give the “stuff’ over without a court order one week before trial is “insufficient” given the number of interviews and recordings. Defense counsel contends that his ability to develop a misiden-tification defense is compromised in a case over three years old, where counsel was hired years after the incident, and all that is provided is a redacted police report with witnesses identified solely by numbers. Therefore, the trial court reasoned that because the State has indicated it has no intention of calling thé redacted eyewitnesses at trial, and it has not indicated that producing the personal information poses a threat to the witnesses’ safety, fundamental fairness requires the State to provide Mr. Johnson with an unredacted police report.

While I agree with the majority in affirming the trial court’s order requiring the State to produce the unredacted police report, I disagree with its instructions on remand to redact Witnesses Three, Four, and Eight’s identifying information, pending in camera examination. Given the State does hot intend to call to testify at trial any of the witnesses enumerated in the police report Witnesses Three, Four, and Eight constitute non-State witnesses. Therefore, the State is not entitled to redact their information from the report. Even if' the trial court deems Witnesses Three, Four, and Eight do not possess Brady material helpful to Mr. Johnson’s Ddefense, the State has demonstrated no intent to call these witnesses at trial. Accordingly, I would order the State to provide Mr. Johnson the unredacted police report that previously excised the identifying information of all witnesses.,

Notice of Disclosure

Furthermore, I disagree with vacating part of the trial court’s judgment,' which ordered the State to provide Mr. Johnson with the contact information of the two witnesses not contained in the police report, but which were included in the notice of disclosure.

First, the State’s writ application and notice of, intent fail to provide an adequate representation of the pleadings Mr, Johnson filed and the trial court’s subsequent rulings. It is unclear looking at the State’s notices of intent from which of the trial court’s rulings'the State seeks relief. This point is compounded by the fact that the State’s writ application does .not comply with Uniform Rules 2-12.4(A)(5) and 4-5, requiring the State, to enumerate .its alleged assignments of error. The State asserts only that the issue presented is “whether, the , trial court erred when it ordered the State to provide the defendant with the names and personal information, including addresses, of various civilians who spoke to police and/or prosecutors.” Defense counsel filed several motions relating to disclosure , of witness information and evidence, and the trial court issued several rulings. The State’s vague notices: of intent and the issue presented make it difficult to determine precisely from what rulings the State seeks review.

I raise the foregoing issue because my appreciation of the record differs from the majority. The majority concludes that because Mr. Johnson’s motion only referenced Mr. Hughes, Mr. Johnson abandoned any claim that he was also entitled to the unidentified family member’s contact information; and therefore, the trial court incorrectly rendered judgment on this issue. The majority reaches this conclusion based on its finding that the unnamed witnesses referenced in Mr. | ^Johnson’s August 2015 motion for eviden-tiary hearing and limited bill of particulars “are two different people than the two people in the Notice of Disclosure.” (emphasis in original). In essence, the majority concludes there are at least four different witnesses that the State independently developed, that were not part - of the police report, and that the State notified defense of. '

Respectfully, I disagree with the majority in that I find there are only two witnesses which Mr. Napoli independently developed in this case—the unidentified family member and Mr. Hughes-—and which are the subject of dispute. As noted above, the writ -application is- confusing and unclear in some respects; however, the procedural history .and transcripts of the proceedings .below show Mr. Johnson sought the disclosure of the identifications and contact information of both witnesses as well as the circumstances surrounding the State’s independent development of them as witnesses and any deals that the State may have offered them. Both sides specifically argued the merits of Mr. Johnson’s previously filed motion for evidentia-ry hearing and limited bill of particulars as it related to the (previously) two unnamed witnesses. Additionally, the trial court reiterated in the per curiam, that its ruling ordered the contact information of the “two witnesses not contained in the police report” but which were included in the notice of disclosure.

Aside from Mr. Hughes and the unidentified family member, there is no | fievidence that Mr. Napoli independently developed an additional two witnesses which were not contained in the police-report and which were inexplicably absent from its notice of disclosure. Because the State reduced to writing Mr. Napoli’s assertion in open court that it intended to call at trial other -identification witnesses as a result of Mr. Johnson’s motion for evidentiary hearing and limited bill of particulars, I find the notice of disclosure and Mr. Johnson’s evidentiary hearing motion refer to the same two witnesses. Therefore, I find Mr. Johnson did not waive this issue. Finding it was properly raised and the trial court was correct to issue a ruling on the matter, I disagree with the decision to vacate the trial court’s ruling as'to the “unidentified family member contained in the Notice.”

With respect to Mr. Hughes, I agree that the matter should be remanded for an in camera examination of Mr. Hughes. This Court does not have the benefit of reviewing the statement Mr. Hughes gave to the State in this case. In Harper, the Supreme Court found an in camera procedure inapplicable because the State disclosed to the defendants the identity of the witnesses and- all information relative to the claim that their statements may be exculpatory including the police report, the witnesses’ statements, and their RAP sheets. Harper, 10-0356, p. 15, 53 So.3d at 1273. Only with respect to the' State providing Mr. Johnson with Mr. Hughes’ name is this case similar. The State, unlike it did in Harper, has- not provided Mr. Johnson with Mr. Hughes’ statement.

Moreover, the State conceded that both witnesses' in its notice of disclosure will testify at trial. Louisiana jurisprudence demonstrates that- “while-witness, statements-are normally not discoverable, this discovery rule must give way when a Statement' contains favorable information for Brady purposes.” State v. Godfrey, 08-828 (La. App. 3 Cir. 2/18/09), 4 So.3d 265; As the majority notes, “[w]hen the State’s case hinges on the testimony of one eyewitness, the Brady violation looms larger.” State v. Bright, 02-2793, p. 9 (La. 5/25/04), 875 So.2d 37, 43-44.

17Given this case appears to rest heavily on eyewitness identification. of the perpetrator and Mr. Hughes’ statement differs from other eyewitnesses (who ’ were not able to identify Mr. Johnson as the shooter in a photo-lineup), remanding for an in camera examination of Mr. Hughes will better determine whether he possesses or has access, to- any evidence which may be exculpatory. Moreover, the trial judge is in a better position to evaluate the matter which “requires a delicate balancing of the rights of the defendant.. .against the societal interest in protecting innocent witnesses who voluntarily come forward to testify.” State v. Miller, 03-0796, p. 2 (La. 6/4/03), 848 So. 2d 529.”

Motion to Produce under La. C.Cr.P. art. 718

Finally, I agree that the matter should be remanded an in camera inspection of the recorded interviews of Witnesses Three, Four, Six, and Two as well as the recorded jailhouse phone calls of inmate, Witness Eleven.

. For these reasons, I respectfully concur in part and dissent in part. I agree with the majority’s decision to remand in order for the trial judge to conduct, an in camera examination of Mr. Hughes and Witnesses Three, Four, and Eight. I also agree in the decision to remand in order for the trial judge to inspect in camera the recorded interviews of Witnesses Three, Four, Six, and Two as well as the recorded jailhouse phone calls of inmate, Witness Eleven. I join the majority insofar as it affirms the trial court’s ruling ordering the State to produce to Mr. Johnson the unredacted police report. However, I disagree in part with the majority’s instructions on remand that in producing an unredacted police report the State shall redact the identifying information of Witnesses Three, Four, and Eight, pending the in camera interviews. Further, unlike the majority, I would affirm the trial court’s 'ruling ordering the State to produce the contact information of both witnesses referenced in the notice of disclosure. Accordingly, I concur in part and dissent in part.

      . Mr. Johnson's motion requested the contact information of only one witness in the Notice of Disclosure, Calvin Hughes, yet the trial judge ruled that the defendant was entitled to the identifying information of "the two witnesses contained in the Notice of Disclosure.” This discrepancy is discussed in more detail in Part III-C, post.

      . 10-0356 (La. 11/30/10), 53 So.3d 1263.

      . We have previously noted that even though La. C.Cr.P. art. 729.7 is inapplicable to a case, it may nevertheless be used as guidance, especially when the central determination is whether a witness’s safety will be compromised by the release of his or her identifying information. See State v. Williams, 15-1074, p. 8 (La. App. 4 Cir. 10/20/15) (unpub’d). In this case, however, the prosecution has not expressed any specific concerns nor made any showing that the witnesses’ safety may be in jeopardy if their information is disclosed to the defense.

      . This Article has since beqn amended by 2013 fa. Acts 250.

      , Thus, when there has been a request made by the defense for Brady material or evidence that otherwise requires á showing of extraordinary circumstances, and if the prosecutor refuses to furnish the information (in light of ' an argument, perhaps, that the state is not in possession of Brady evidence), the trial-judge must then inspect the evidence -in camera' to determine whether the defendant is entitled to it under federal (.Brady) or state (“extraordinary circumstances” or “fundamental fairness”) jurisprudence. But see State v. Lee, 00-0831, pp. 4-5 (La. App. 4 Cir. 5/8/00), 767 So.2d 97, 100 (“While the trial court may conduct an in camera inspection of evidence to determine whether it is Brady material, the initial privilege—and high responsibility—belongs to the State....”) (emphasis in original).

      .Both Articles have since been amended by 2013 La. Acts 250.

      . It is worth noting that Mr. Johnson claims in his brief that although Witness Two identified him in a photographic lineup, the recorded identification procedure reveals that , the witness initially refused to identify anyone. Mr. Johnson alleges that a “heated discussion” occured,' which eventually resulted in Witness Two initialing Mr. Johnson’s photograph. Mr. Johnson also alleges in his brief, that Witness Two testified in open court that Mr. Johnson was not the shooter and that an assistant district attorney had traveled to the prison where Witness Two was housed and offered to reduce his prison term if he would testify that Mr. Johnson was the shooter. The witness apparently rejected this offer. We have no transcript of the testimony in the record before us, but the Orleans Parish Docket Master indicates that Witness Two testified in court and the colloquy between defense counsel and the trial judge in the current record corroborates this. It thus makes an even stronger case for Mr. Johnson to have accéss to the witnesses who did not identify him.

      . This distinction between "state witnesses” and "non-state witnesses” illuminates the trial judge’s reasons for judgment set forth in his per curiam.

      . Of course we recognize that under Brady, "the prosecutor is not required to deliver his entire file to defense counsel....” U.S. v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).'This should not be read, however, as sanctioning an entirely closed-file policy. See generally State v. Wells, 11-0744, p. 11 (La. App. 4 Cir. 4/13/16), 191 So.3d 1127, 1139 (disapproving of the Orleans Parish prosecuting authorities’ practice of producing discoverable evidence in “dribs and drabs” over extended periods of timé) (internal citation omitted).

      . Mr. Johnson also filed a Motion for Evi-dentiary Hearing Upon Unnamed Identification Witness wherein he sought information pertaining to "two or more identification witnesses which ADA Jason Napoli divulged in open court he had garnered, while ‘in the street,’ ” The record indicates that these witnesses are two different people than the two people in the Notice of Disclosure. Nor are they in the police report. The prosecutor stated that there was no identification procedure conducted with the two unnamed individuals but "[t]hey saw [the shooter] do it...They knew him by name.” The trial judge ruled that if the prosecution had offered the two witnesses anything in exchange for their testimony, it must disclose such to the defense. The prosecution does not complain about that ruling in the instant writ application.

      . It is unclear why Mr, Johnson did not request the recorded identification procedure with Witness Eight, who also failed to identify him in a photographic lineup.

      . Mr. Johnson concedes in his brief that he has already received a copy of the recorded identification procedure conducted with Witness Two and is aware of the witness's identify.

      . Whether the evidence is favorable to Mr. Johnson and material to guilt or punishment appears to be the most relevant consideration. See La. C.Cr.P. art. 718(1). Of course, if the prosecution intends to use the evidence at trial, then La. C.Cr.P. art: 718(2) would also entitle Mr, Johnson to the recordings.

      . It appears from the record that Witness Two is the only witness included in the police report that the State has indicated any intent to call at trial.

      . The procedural history indicates that: (1) Mr, Napoli stated in open court that he intended to call at trial "other identification witnesses” he had independently developed; (2) Mr. Napoli’s assertion promulgated defense to file a motion for evidentiary hearing on identification of unnamed witnesses and limited bill of particulars in an effort to "flesh out” the State’s assertion; (3) a month after defense filed said motion, the State reduced to writing what Mr. Napoli previously intended to communicate to the trial court and defense in open court; (4) the only filing in the record reflecting Mr. Napoli's previous assertion in open court is the State’s notice of disclosure, which indicated Mr, Napoli independently developed two witnesses—one whom the State identified, presumably for the first time, as Calvin Hughes and an unidentified family member of the victim; and, (5) after the State provided Mr. Hughes’ name defense filed a more particularized motion relative to Mr. Hughes; however, Mr. Johnson did not abandon his previous motion because at the hearing he re-urged his motion for the disclosure of the contact information and the circumstances surrounding Mr. Napoli’s development of Mr. Hughes and the unidentified family member as witnesses, who were not in the police report.


source: Caselaw Access Project

author: Judge Roland L. Belsome LOBRANO, J.,

license: Public Domain

text:
    ST. BERNARD PORT, HARBOR & TERMINAL DISTRICT v. VIOLET DOCK PORT, INC., LLC St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., LLC St. Bernard Port, Harbor & Terminal District v. Violet Dock Port Inc., LLC
    NO. 2016-CA-0096, NO. 2016-CA-0262, NO. 2016-CA-0331
    Court of Appeal of Louisiana, Fourth Circuit.
    December 14, 2016
    Rehearing Denied February 8, 2017.

      James M, Garner, Peter L. Hilbert, Jr., Joshua S. Force, Ashley G. Coker, Eric J. Blevins, SHER GARNER ' CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poydras Street, 28th Floor, New Orleans, LA 70112,- COUNSEL FOR PLAINTIFF/APPELLANT
    Randall A." Smith, L. Tiffany Hawkins, Mary Nell Bennett, SMITH & FAWER, L.L.C., 201 St. Charles Avenue, Suite 3702, New Orleans, LA 70170, Val P; Ex-nicios, LISKA EXNICIOS & NUNGES-SER,. 1515 Poydras Street, Suite 1400, New Orleans, LA 70112, W. Scott Hastings,, LOCKE LORD, LLP, 601 Poydras Street, Suite 2660, New Orleans, LA 70130, Hárry T. Lemmon, ;650 Poydras Street, Suite 2335, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano)
   Judge Roland L. Belsome

| iThis appeal arises from the trial’ court proceedings of a quick-take expropriation of Violet Dock Port, L.L.C’s (“VDP”) property initiated by and for the benefit of the St. Bernard Port, Harbor & Terminal District (“the Port”). The subject property consists of approximately 75 acres of land, 22' acres of batture, 38.5 acres of upland property, and 4,238 linear feet of frontage along the Mississippi River as well as a 4-acre parcel across La. State Hwy. 46 (“the Property”).

VDP was a privately owned industrial port facility with one mile of water frontage on the Mississippi River in St. Bernard Parish. VDP built the facility, which included five heavy-duty docks and related infrastructure. VDP’s improvements were designed to berth and service ocean-going ships for the United States Navy. VDP had held contracts with the Navy for many years. The docks were also used for topside repair, and commercial vessel lay-berthing.

Procedural History

In 2007, the Port offered to purchase the Property and VDP declined. After years of failed negotiations, the Port expropriated the Property on December 22, 2010, and deposited the estimated just compensation of $16,000,000 into the ^registry of the court. In response, VDP challenged the public purpose of the expropriation. After conducting an evidentiary hearing, the trial court found that the taking served a public purpose. Later, the Port filed an Amended Petition for Expropriation in which it added claims against VDP alleging damages for debris material being buried on the Property, among other things. Based on those claims, the trial court ordered that $1,900,000 of the $16,000,000 was to remain in the registry of the court. VDP withdrew the balance of the funds.

The matter proceeded to trial to determine the value of the Property as well as the Port’s claim for damages on the allegations that debris had been dumped and buried on the Property after the expropriation date. The trial court rendered its judgment finding that the value of the Property was $16,000,000, the trial court denied the Port’s claim for damages for debris removal, and VDP was awarded judicial interest on the $1,900,000 in funds that had remained in the registry of the court. Subsequent to the judgment being issued, both the Port and VDP filed motions to recover attorney’s fees and costs. The trial court denied both parties’ motions. This appeal and cross-appeal followed. The appeals challenge each of the three judgments.

Assignments of Error

On appeal VDP maintains that the trial court erred in finding that the taking was constitutional and thereafter finding the value of the Property to be $16,000,000. In addition, VDP asserts that if this Court were to overturn either of those rulings by the trial couit it would be statutorily eligible for attorney’s fees and costs.

|sThe cross-appeal filed by the Port contends that the trial court erred in denying its claims for damages regarding buried debris, erred in awarding judicial interest on the $1,900,000 that remained in the registry of the court, erred in excluding testimony of an expert economist, and also erred in failing to award costs and attorney’s fees.

Standard of Review

In an expropriation case, the trial court’s factual determinations are subject to the manifest error standard of review, while legal determinations are reviewed de novo, and evidentiary rulings are subject to the abuse of discretion standard.

March 21, 2012 Judgment (Public Purpose)

Through the Louisiana Constitution and state statutes, the Port is granted the express right to expropriate private property. For the taking to be constitutional it must be for a public purpose and the landowner must be paid just compensation. After conducting an evidentiary hearing on the issue of public purpose only, the trial court determined that the Port had established a valid public purpose for the expropriation of the Property pursuant to La. R.S. 34:1705 and 1708. More specifically, the trial court found that the “[ejxport of goods and commodities through the port is one of the basic industries of St Bernard Parish. The acquisition of the Violet terminal would be a logical extension of port services in St. Bernard.” The trial court also reasoned that the contemplated construction and use of the property would bring employment to the citizens of St. Bernard Parish.

LVDP argues that the Port’s expropriation was not for a public purpose and therefore violated its constitutional protections as a private landowner. Specifically, it maintains that the trial court erred in upholding the Port’s taking of the Property because the expropriation was in violation of La. Const. Art. I, §§ 4(B)(1), (2), (3), and (6), La. R.S. 34:1708 and U.S. Const. amend. V. |SVDP cites to several constitutional violations, but more specifically contends that the taking did not meet a public purpose and the Port was not authorized to expropriate the property. VDP argues that the real purpose for the taking was so the Port could continue to operate its layberthing and cargó facility and obtain the Navy contracts in violation of La Const. Art. I § 4(B)(6). For these reasons, VDP claims the taking was unconstitutional. We disagree.

The State of Louisiana created the Port as a public corporation and political subdivision to regulate domestic, coastwise, and intercoastal commerce and traffic. La.. R.S. 34:1705 establishes the authority and jurisdiction of the Port, and 1708 provides the manner in which the Port can acquire property. The | r,Legislature has bestowed broad discretion and authority upon the Port to support its, efforts to maintain and further development of its operations.

The constitutional rights of Article I, § 4-that VDP maintain were violated, are subject to the exceptions provided in Article VI, § 21. Section 21 provides-in pertinent part:

(A) Authorization. In order to (1) induce and encourage the location of or addition to industrial enterprises therein which would have economic impact upon the area and thereby the state, (2) provide for the establishment and furnishing of such industrial, plant, (3) facilitate the operation of public ports, or (4) provide movable or immovable property, or both, for pollution control facilities, the legislature by law may authorize, subject to restrictions it may impose, any political subdivision, public port commission, or public port, harbor, and terminal district to:
* * * *
(b). acquire, through purchase, donation, exchange, and expropriation', and improve industrial plant buildings and industrial plant equipment, ma-chinerg, furnishings, and appurtenances, including public port facilities and operations which relate to or facilitate the transportation of goods in domestic and international commerce; and
(c) sell, lease, lease-purchase, or demolish all or any part of the foregoing

La. Const. Art. VI, § 21 (emphasis added).'

The trial court was presented evidence of the Port’s intention to maintain the current use of the Property initially, with a comprehensive plan to expand the 17facility to include a dry and liquid bulk cargo operation. In Board of Comm’rs of Port of New Orleans v. City of New Orleans, this Court acknowledged the important role that ports fulfill for the State and the local communities stating, “a healthy port generates local jobs and industry and associated local consumption.” This Court further recognized that the health of the Port rests with its ability to be competitive and the maintenance and development of the Port provides “a great public benefit to the people of Louisiana.”

Although the authority granted to the ports of Louisiana in the expropriation of private property is exceptionally broad, it is supported by the constitution and statutes of the State. Accordingly, we do not find that the, trial court was manifestly erroneous or committed legal error in determining that the Port’s expropriation of the Property was for a public purpose.

July 31, 2015 Judgment (Property Valuation/Debris Damages)

VDP asserts that the trial court erred when it awarded only $16,000,000 for the Property, Additionally, the Port argues that the trial court erred by not awarding damages for the debris removal and further erred in limiting expert testimony and awarding interest on the funds that were held in the registry of the court.

Property Valuation

Once the trial court found that' the expropriation served a public purpose, it then had to determine the valuation that would provide just compensation .to the landowners. In accordance with the constitutional- provisions governing expropriations, a property owner must be “compem sated to the full extent of his j8loss” Commonly in expropriation- cases, just compensation is- determined by the fair market value of the property.

When making, a fair market value determination in an expropriation case, the highest and best usé of the property must be established.'-Several'factors’are considered in a highest and best use analysis including:

Market demand, proximity to- areas already developed in a compatible manner with the intended use, economic development in the area, specific plans of' business and individuals, including action already taken to develop the land for that use, scarcity of the land available for that use, negotiations with buyers interested in the property taken for a particular use, absence of offers to buy the property made by the buyers who put it to the use urged,- and the use to which the property was being put at the time of the taking.

Additionally, the presumption is that the use at the time of expropriation is the highest and best use. However, that presumption can be overcome if the landowner proves that the property could realistically be used in a more valuable way in the not too distant future. .

The trial court’s reasons for judgment outlined the evidence relied upon to determine the appropriate value to place on the Property, starting with the ongoing negotiations between the Port and VDP. The first offer made by the Port in 2007 was for $10,000,000, which was based on an appraisal that was performed on behalf of the Port and with VDP’s approval. VDP rejected that offer and eventually countered with $14,000,000, and the Port accepted that price. There were some issues on VDP’s conditions and terms which prevented the Port from moving forward. Then in 2010, after another appraisal was performed, the Port offered $16,000,000, and VDP countered with $35,000,000.

[¡At trial, several expert opinions were presented regarding the value, of the Property. VDP’s experts valued the property from $51,000,000 to $67,487,449, while both of the Port’s appraisers arrived at a market value of $16,000,000. Generally, fair market value is considered the price a buyer is willing to pay based on all likely uses of the property, but those uses cannot be “speculative, remote or contrary to law.” In assessing the experts’ opinions and reports, the trial court noted that VDP’s experts’ analysis proved to be ‘questionable,” “flawed,” and at times “inaccurate.” When evaluating expert opinions, the fact finder has broad discretion in determining the effect and weight.to be given expert testimony. The fact finder can either accept or reject any or all of an opinion expressed by an expert.

In further evaluation of the evidence presented, the trial court considered the physical constraints of the Property. Taking into account the condition of the Property at the time of the expropriation and the possible uses that were realistic in the “not too distant future,” the Port’s appraisers testified that their appraisals took into account the highest and best use of the Property as being a layberthing facility, with some topside repair, and limited cargo operations. The trial court concluded that the Port’s experts presented a solid analysis based on credible facts and' presumptions.

| ipThe appropriate review of the trial court’s factual findings in civil cases is the manifest error-clearly wrong standard. On appeal, it is this Court’s function to review the record in its entirety to see if the trial.court’s factual conclusions were reasonable. If the record supports the factual determinations, this Court cannot reverse those findings merely because we would have found differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Thus, upon a thorough review of this record, we cannot find, that the trial court was.manifestly erroneous or clearly wrong in its ruling that $16,000,000 was just compensation for the Property.

Exclusion of Expert Economist’s Testimony

In this assignment, the Port seeks to have this Court overrule the trial court’s decision to exclude Dr. Timothy Ryan’s expert opinion, regarding the market value of VDP’s business and earnings. Evidentiary rulings by the trial court are reviewed under an abuse of discretion standard.

In ruling to limit the testimony, the trial court referred to an earlier ruling made in the case where it was determined that Dr. Ryan, an economist, could not testify as to the valuations and appraisals of the Property. The record indicates that Dr. Ryan’s^ testimony was to be limited to his area of expertise which did not |n include evaluating the value of businesses or real estate. Therefore, we do not find that trial court abused its discretion in limiting the testimony.

Damages for Debris Removal

The Port sought damages for the removal of what was' characterized as debris trader La. C.C. Art. 2315.

The record contains substantial testimony and photographic evidence regarding the fill on the Property. VDP did not dispute the fact that fill had been spread throughout the property dating back to the 1980s. Donald Dieudonne, the corporate representative for VDP, testified that VDP had been receiving fill for decades and using it to raise some of the lower areas of the Property. He claimed that after the expropriation the practice of receiving fill continued until the Port objected in June of 2012. Mr, Dieudonne’s testimony was that once the Port objected VDP did not authorize any further fill to be deposited.

Mr. Dieudonne’s ■ statements were not directly contradicted. A review of the testimony and evidence presented, failed to establish with any certainty the quantity of fill that,was deposited after the expropriation or that VDP continued to authorize such activity after the Port objected. Additionally, there was no evidence indicating the Property was damaged or that removal was required. ' '

Further there is no precedent set for allowing the Port to offset its purchase price for the remediation of the Property after the purchase. To the contrary, in State, DOTD v. Todd, the court denied DOTD’s cause of action for reimbursement for a remediation required by the Department of Environmental Quality to remove contaminated soil and ground water on expropriated property.

| ^Consequently, .this Court cannot find error with the trial court’s determination that the Port did not prove its claims for damages against VDP.

Interest

The Port maintains that the trial court erred in awarding'VDP judicial interest on the funds that remained in the registry of the court. The Port relies on La. R.S. 19:156, to argue that the award of judicial interest on funds deposited in the registry of the court, in an' expropriation case, is statutorily prohibited. Under the facts of this case, we disagree.

Although the Port deposited the estimated just compensation of $16,000,000, it later requested that the trial court withhold $1,900,000 of the deposit pending the outcome of a claim against VDP for an offset. It was approximately three' years later that the trial court determined that the Port could not prove it was owed an offset.. The landowners were deprived of the use .of funds • that were deposited as estimated just compensation for the expropriation, due to .the Port’s filing of a claim for offset. Effectively, it was as if the money was never deposited. As such, it is subject to the statutory 5% annual interest provided for by La. R.S. 19:155, less any interest accrued while on deposit. Accordingly, the trial court’s ruling in this respect is amended.

December 1, 2015 judgment (Costs and Attorney’s Fees)

The Port challenges this judgment arguing that the trial court erred in not awarding costs to the Port because it offered the true value of the Property prior to hsthq beginning of the litigation. Further, the Port argues that the trial court erred in denying attorney’s fees based upon VDP’s bad faith litigation.

For the Port’s argument regarding its entitlement to costs including expert costs, it relies on La. R.S. 19:12. At the time of the filing for expropriation, in 2010, La. R.S. 19:12 provided that “[i]f a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation,' the costs of the- expropriation proceedings shall be paid by the owner.”

The amended version of the statute which went into effect on August 1, 2012, reads, “[i]f the highest amount offered pri- or to -the filing of the expropriation suit is equal to or more than the final award, the court may, in its discretion, order the defendant to pay all or a portion of the costs of the expropriation proceedings.”

The obvious difference in the two versions of the statute is the discretion given to the trial court. However, for this case we need only focus on the condition that is consistent in both, which is that a tender must occur “prior to” or “before” the filing of the expropriation.

,The jurisprudence is clear,, because the assessment of costs pursuant to La. R.S. 19:12 impacts, the landowner’s guaranteed right to just compensation under La. Const. Art. 1, § 4, the statute roust be strictly construed. According to Black’s Law Dictionary, a tender is defined as an unconditional offer Qf money. Although it is undisputed that there were ongoing negotiations for the Property over many years, all offers prior to the $16,000,000 offer are irrelevant to the assessment of costs. Also, undisputed is that the deposit of $16,000,000 in thé | ¶ ¿registry of the court was not made prior to the institution of the suit. In reviewing the record and more specifically the testimony of Mr. Dieudonne, the offer from the Port for $16,000,000 contained numerous conditions and terms favoring the Port, including the ability to withdraw from the sale with a full refund of the deposit. A strict reading of the statute together with the applicable jurisprudence and the facts surrounding the offer to purchase in this ease, we find it was not a tender for the purpose of assessing costs. ■

Attorney’s Fees

In addition to requesting costs, the Port also seeks to recover attorney’s fees pursuant to La. C.C.P. Art. 863(B). The Port maintains that VDP pursued the litigation in bad faith because they were well aware that the Property was only worth $16,000,000.

The trial court, in its discretion, declined to award eosts to the Port in accordance with-La. R.S. 19:12. Additionally, the trial : court specifically found that VDP did not act in bad faith by pursuing this litigation. Therefore, there'was no violation of article 863, and attorney’s fees were denied. We find no error hi the trial court’s ruling.

I mConclusion

For the reasons discussed, the trial court’s ruling regarding judicial interest on VDP’s $1,900,000 that remained in the registry of the court at the Port’s request is affirmed as amended to reflect that interest is due .in accordance with La. R.S. 19:166 with an offset for any interest already received. In all other respects the rulings of the trial court are affirmed.

AFFIRMED AS AMENDED

LOBRANO, J., DISSENTS AND 'ASSIGNS REASONS

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

LI respectfully dissent from the majority’s opinion. Because expropriation laws must be strictly construed against the expropriating authority, and the Louisiana Constitution expressly prohibits the taking of a.business enterprise, I find that the Port’s taking of VDP’s Property is clearly unconstitutional. Thus, I would remand this case to the district court for a return of title and determination of necessary compensation for the time the Port has possessed VDP’s Property as required by La. R.S. 19:160.

|gThe majority interprets La. Const, art. VI, § 21’s authorization allowing public ports to exercise eminent domain to be an unrestricted exception to La. Const. art. I, § 4’s protections from the unchecked use of eminent domain. This interpretation is fundamentally incorrect. La. Const. art. I, § 4 grants private property rights to every person subject to reasonable statutory restrictions and the reasonable exercise of the police power. See New Orleans Redevelopment Auth. v. Burgess, 2008-1020, p, 10 (La. App. 4 Cir. 7/8/09), 16 So.3d 569, 577. La. Const. art. VI, § 21 serves only to authorize public ports to exercise eminent domain to accomplish their, public purpose, “subject to restrictions it [the Legislature] may impose.” Nothing in La. Const, art. VI, § 21 grants public ports unfettered and unrestricted exercise of their eminent domain power.

This misreading appears to result from improperly applying La. Const. art. I, § 4(B)(1) to the business enterprise exception provided in (B)(6). La. Const. art. I, § 4(B)(1) reads as follows:

(B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or. into court for his benefit. Except as specifically authorized by Article VI, Section 21 of this Constitution property shall not be taken or damaged by the state or its political subdivisions: (a) for prédominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity (emphasis added).

This provision prohibits the taking of property for predominant use by any private person or entity or for transfer of ownership to any private person or entity unless that taking is “authorized” by La. Const. art. VI, § 21.

La. Const. art. VI, § 21, entitled “Assistance to Local Industry,” begins with the word “Authorization.” It reads, in relevant part, as follows: .

A) Authorization. In order to (1) induce and encourage the location of or addition to industrial enterprises therein which would have economic impact upon the area and thereby the state, (2) provide for the establishment and furnishing of such industrial plant, (3) facilitate the operation of public ports, or (4) provide movable or immovable property, or both, for pollution control facilities, the legislature by law Rmay authorize, subject to restrictions it may impose, any political subdivision, public port commission, or public port, harbor, and terminal district to:
(b) acquire, through purchase, donation, exchange, and expropriation, and improve industrial plant buildings and industrial plant equipment, machinery, furnishings, and appurtenances, including public port facilities and operations which relate to or facilitate the transportation of goods in domestic and international commerce; and
(c) sell, lease, lease-purchase, or demolish all or any part of the foregoing.

Together, La. Const, art. I, § 4(B)(1) and La. Const, art. VI, § 21 authorize the Legislature to allow public ports to exercise eminent domain powers that may include the taking of private property for use or transfer of ownership to another private entity, which but for La. Const, art. VI, § 21 would be prohibited.

However, both of these articles are subject to the business enterprise exception provided in La. Const. art. I, § 4(B)(6), which reads, in relevant part:

(6) No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise ....

Whereas La. Const. art. I, § 4(B)(1) specifically references La. Const. art. VI, § 21 as an exception, La. Const. art. I, § 4(B)(6) contains no exceptions. The majority, by finding that La. Const. art. VI, § 21 is an exception to La. Const. art. I, § 4(B)(6), treats (B)(6) as a subpart of (B)(1) rather than as the separate provision it clearly is. There is simply nothing in La. Const, art. VI, § 21 that abrogates or otherwise limits La. Const. art. I, § 4(B)(6). Given that (B)(6) is not a subpart of (B)(1), I am bound to consider the restrictions imposed by La. Const. art. I, § 4(B)(6) in determining whether the Port acted constitutionally in its taking of VDP’s property. I find it did not.

As acknowledged by the majority, “[t]he trial court was presented with evidence of the Port’s intention to maintain the current use of the Property initially....” In actuality, the record establishes that the Port planned to have Associated Terminals, another private entity, operate VDP’s facility as it was Loperated by VDP for eight to ten years in order to allow Associated Terminals to raise funds to expand the Property’s dry and liquid bulk cargo capacity. The taking of VDP’s business enterprise in order for the Port’s favored business, Associate Terminals, to use VDP’s Property to produce the same revenue VDP was previously generating is a clear violation of La. Const, art. I, § 4(B)(6). The taking of a business enterprise in order for government or its chosen beneficiaries to produce revenue is exactly the kind of violation of property rights La. Const, art. I, § 4(B)(6) exists to prevent. Should the majority’s interpretation stand, a public port convinced that it can make better use of a private business enterprise’s assets will be empowered to usurp that private business enterprise and fashion it into a revenue maker for government. One practical effect of that decision would be to stifle future port development by private businesses, who would be unwilling to take the risk that a public port could, at any time, take that private investment by expropriation.

The Port argues that La. Const, art. I, § 4(B)(6) is not violated because VDP’s business enterprise allegedly will not be operated by Associated Terminals in perpetuity. This argument fails to render the taking constitutional. Expropriation proceedings are in derogation of the right of individuals to own property, and as a result, the laws governing these proceedings must be strictly construed against the expropriating authority. Davis, 572 So.2d at 42. Interpreting La. Const. art. I, § 4(B)(6) strictly against the Port, because the expropriation plan involved operating VDP’s business to generate funds to finance a future dry and liquid bulk cargo facility, I must find that the Port seized VDP’s business enterprise for the purpose of operating VDP’s business enterprise.

Any interpretation of La. Const, art. VI, § 21 that grants public ports unfettered rights to expropriate private property exceeds the authority that has been be-, stowed by the-Legislature and the citizenry of, this- .State, The Louisiana | .-.Constitution was carefully crafted to. balance the needs of public ports to facilitate the transport of goods or persons in domestic or international commerce with the right of Louisiana’s citizens,to be secure in their ownership of private property.- To undo this balance fr.om the bench is to. reach beyond the authority of a judge.

For these reasons, I respectfully dissent-from the majority opinion.

      . March 21, 2012 Judgment.

      . July 31, 2015 Judgment.

      . December 1, 2015 Judgment.

      . See State, DOTD v. Restructure Partners, L.L.C., 07-1745 (La.App. 1 Cir. 3/26/08), 985 So.2d 212.

      . See, La. Const. Art. I, § 4 and Art. VI, § 21.

      . La. Const. Art. I, § 4.

      . The pertinent provisions of § 4. Right to Property read as follows:
      (B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Except as specifically authorized by Article VI, Section 21 of this Constitution property shall not be taken or damaged by the state or its political subdivisions: (a) for predominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity.
      (2) As used in Subparagraph (1) of this Paragraph and in Article VI, Section 23 of this Constitution, “public purpose" shall be limited to the following:

      * * ⅜
      (vi) Public ports and public airports to facilitate the transport of goods or persons in domestic or international commerce.

      (3) Neither economic development, enhancement of tax revenue, or any incidental benefit to the public shall be considered in determining whether the taking or damaging of property is for a public purpose pursuant to Subparagraph (1) of this Paragraph or Article VI, Section 23 of this Constitution.

      (6) No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction.
      La. Const. Art. I, § 4 (emphasis added).

      . La. R.S. 34:1708 states:
      A. The board is authorized to acquire by purchase, donation, expropriation, appropriation, or otherwise any lands in the district needed for railways, wharves, sheds, buildings, canals, channels, and other facilities required for the operation of the board and to be owned and operated by the board except those pipelines in operation on May 1, 2008. The board may also provide that payments for such lands be made out of funds under its control not otherwise specifically appropriated.
      B. The board is further authorized to receive by gift, grant, donation or otherwise, any sum of money, aid or assistance from the United States, the state of Louisiana, or any of the political subdivisions thereof, for the purpose of carrying out the objects and purposes of this Chapter.
      C. In addition to its power to acquire such property in the various modes set out here-inabove, the board shall also have power to expropriate property within the district in the same manner applicable to Louisiana State University and Agricultural and Mechanical College and the Department of Transportation and Development under the provisions of R.S. 19:141 et seq.

      . Amemdment V of the takings clause mandates that just compensation be paid for private property taken for public use.

      . La. R.S. 34:1701.

      . La. R.S. 34:1705 reads:
      A. (1) The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall have the sole power to regulate, pursuant to R.S. 34:1703, the domestic, coast-wise, and intercoastal commerce and traffic of said district and all commerce and traffic within the district including cargo bound for and/or in, and/or coming out of international commerce where such commerce and traffic is conducted by or through a facility wholly owned by the district.
      (2) The board of commissioners-of the St. Bernard Port,' Harbor and Terminal District shall also have and exercise the powers granted to deep water port commissions pursuant to R.S. 9:1102.l in all cases where riparian owners of property on navigable rivers, lakes, or streams within said district desire to construct wharves, buildings, or improvements- on the batture or banks owned by them, which are designed for and/or used for such commerce and traffic domestic, coastwise, or intercoastal commerce, including cargo, bound for and/or in and/or coming out- of international commerce where such is conducted by or through a facility wholly owned by the district.
      B. The board of commissioners of the St. Bernard Port, Harbor and Terminal District shall have the right to enter into any and all contracts and agreements with the. parish of St. Bernard, the board of commissioners of the Port of New Orleans, and any other public subdivisions or authorities relative to any and all matters which lie within the jurisdiction of the district and the board of commissioners thereof.

      . La. R.S. 34:1708 states:
      A. The board is authorized to acquire by purchase, donation, expropriation, appropriation, or otherwise any lands in the district needed for railways, wharves, sheds, ’buildings, canals, channels, and other facilities required for the operation of the board and to be owned and operate^ by the board except those pipelines 'in operation on May 1, 2008. The board may also provide that payments for such lands be made out of funds under its control not otherwise specifically appropriated.
      B. The board is further authorized to receive by gift, grant, donation or otherwise, any sum of money, aid or assistance from the United States, the state of Louisiana, or any of the political subdivisions thereof, for the purpose of carrying out the objects and purposes of.this Chapter.
      C. In addition to its power to acquire such property in the various modes set out here-inabove, the board shall also have power to expropriate property within the district in the same manner applicable to Louisiana State University and Agricultural and Mechanical College and the Department of Transportation and Development under the provisions of R.S. 19:141 etseq.

      . See, La. R.S. 34:1701 etseq.

      . 15-0768, p. 8 (La.App. 4 Cir. 3/16/16), 186 So.3d 1282, 1287.

      . Id.

      . La. Const. Art. I § 4

      . Exxon Pipeline Co. v. Hill, 00-2535, 00-2559, p. 8 (La. 5/15/01), 788 So.2d 1154, 1160 (citations omitted).

      . Id.

      '. These values were based on the property being developed into a multimodal, heavy- ■ cargo, international trade facility.

        . Exxon Pipeline, 788 So.2d at 1160 (citing West Jefferson Levee Dist. v. Coast Quality, 93-1718 (La. 5/23/94), 640 So.2d 1258).

      . Cooper v. Bouchard Transp., 12-0868, p.6 (La.App. 4 Cir. 3/27/13), 140 So.3d 1, 7 (citations omitted).

      . Id.

      . The trial court stated, among other things, that limitations exist as to the type of cargo that could be stored due the Property’s proximity to a school- and residential area. The trial court also found that the Property was limited due to its configuration, which included several acres of land that was not owned by VDP.

      . Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8-9 (La. 12/8/15), 193 So.3d 1110, 1115-16 (citations omitted).

      . Id.

      . Id.

      . Id.

      . 727 Toulouse, L.L.C. v. Bistro at the Maison De Ville, L.L.C., 12-1014, p. 19 (La.App. 4 Cir. 8/21/13), 122 So.3d 1152, 1163 (citing In re Succession of Holzenthal, 12-0211, p. 8 (La. App. 4 Cir. 9/26/12), 101 So.3d 81, 87).

      . 01-0374 (La.App. 3 Cir. 12/4/02), 834 So.2d 1114.

      . La. R.S. 19:155 reads:
      The judgment' rendered therein shall include, as part of the just compensation awárded, interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.

      . See, South Central Bell Tel. Co. v. Marsh Inv. Corp., 344 So.2d 6 (La.App. 4th Cir. 1977); Southern Natural Gas Co. v. Poland, 406 So.2d 657 (La.App. 2nd Cir. 1981); and Louisiana Gas Purchasing Corp. v. Sincox, 368 So.2d 816 (La.App. 2nd Cir. 1979).

      . Black’s Law Dictionary 1606 (9th ed. 2009).

      . La. C.C.P. Art. 863 (B),reads:
      B, Pleadings need not be verified or accom-paniéd by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or patty shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following;
      (1) The pleading is not being presented-for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
      (2) Each claim, defense, or other legal assertion in the pleading, is warranted by existing law or by. a nonfrivolous argument for the extension, modification, or reversal of existing law.
      (3) Each allegation or other factual assertion in the pleading has evidentiary support .or, for a specifically identified allegation or .factual assertion, is likely to have evidentia-ry support after a reasonable opportunity for further investigation or discovery.
      (4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

      . State, through the Dep't of Transp. and Dev. v. Estate of Davis, 572 So.2d 39, 42 (La. 1990).

      . La. Const. art. I, § 4(B)(6).

      . As explained in Hoag v. State, 2004-0857, p. 4 (La. 12/1/04), 889 So.2d 1019, 1022:
      Our state constitution divides governmental power into separate legislative, executive and judicial branches and provides that no one branch shall exercise powers belonging to the others. La. Const., art, II, §§ 1, 2. This trichotomous branching of authority furnishes the basis for the existence of an inherent judicial power which the legislative and executive branches cannot abridge. Singer, Hutner, Levine, etc. v. LSBA, 378 So.2d 423 (La. 1979); Saucier v. Hayes Dairy Products, 373 So.2d 102, 109, 114 n. 3 (La. 1979). Likewise, the judicial branch is prohibited from infringing upon the inherent powers of the legislative and executive branches. LaBauve v. Louisiana Wildlife and Fisheries Comm'n, 289 So.2d 150, 151 (1974).