author: TORPY, J. ORFINGER, J.,

text:
    Rico JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2721
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017

      James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant, Rico Johnson, challenges his conviction for conspiracy to traffic in cocaine. Among other claims, he argues that the trial court erred by permitting police officers to give opinion testimony identifying his and a co-conspirator’s voices on intercepted telephone calls. He argues that because the police officers lacked any “pri- or special familiarity” with his voice, as witnesses to the crime or otherwise, admitting their testimony invaded the province of the jury. Based on our conclusion that the trial court did not abuse its discretion in admitting the voice identification testimony, and that the other claims of error do not merit discussion, we affirm.

In September 2014, the City/County Investigative Bureau in Seminole County (the “CCIB”) began investigating the sale and distribution of cocaine that allegedly involved Appellant, co-conspirator Edward Howard, Jr., and more than one hundred other suspects. A wiretap on Howard’s telephone allowed the CCIB to record calls and receive data about intercepted phone calls, including the date and time of the call, whether it was an incoming or outgoing call from the wiretapped phone, and the numbers dialed by the wiretapped phone. The investigating agents correlated the suspects’ names with phone numbers and video surveillance of them and relayed that information to Agents Matt Scovel, the lead investigative agent, and Kevin Pederson, the administrator of the software system that intercepted the phone calls. During the investigation, Agents Scovel and Pederson listened to thousands of intercepted phone calls involving the suspects.

Based on the intercepted phone calls, the CCIB executed a search warrant at Howard’s home on a day it suspected that Appellant would be delivering a supply of cocaine. Although cannabis and cash were found in the home, they found no cocaine. During the search, Agent Scovel spoke with Appellant for approximately five minutes but Agent Scovel “did most of the talking” because Appellant “felt uncomfortable talking to [him].” At the same time, Agent Pederson had a five-minute conversation with Howard, who spoke for approximately half of the time. This was the only time that either agent personally spoke with Appellant or Howard. Based on the intercepted phone calls, sixteen suspects, including Appellant and Howard, were eventually arrested and charged with conspiracy to traffic in cocaine.

At trial, the State called Agents Scovel and Pederson to identify Appellant’s and Howard’s voices, respectively, on the recorded phone calls. Agent Scovel testified that he recognized Appellant’s voice from the intercepted phone calls, their conversation at the time of the search, and a DVD recording of a hearing where Appellant testified for approximately twenty minutes. That recording was not entered into evidence at Appellant’s trial or played for the jury. Agent Pederson testified that he recognized Howard’s voice from the intercepted phone calls and' their conversation at the time of the search. The State later played several phone calls for the jury in which Appellant, Howard, and other suspects allegedly discussed drug transactions in coded terms. According to Agent Scov-el’s testimony, the coded calls involved discussions between Howard and Appellant, and between Howard and other co-conspirators, about buying and selling cocaine, the amounts of and prices for the cocaine, the availability of buyers, and plans to meet to exchange the cocaine for money.

Voice identification testimony has been utilized in this state in criminal prosecutions since at least 1907. See Mack v. State, 54 Fla. 55, 44 So. 706 (1907). The origins of this form of identification date back to the year 1660. Id. at 708. In Mach, the victim was attacked from behind in the dark of night. Before the victim lost consciousness from being choked by her assailant, the assailant uttered twelve words. The victim positively identified the defendant as her attacker after recognizing his voice in a post-crime show-up. The Florida Supreme Court affirmed the conviction despite a challenge to the reliability of this form of evidence. Id. at 709-10.

Twenty-three years later, the Florida Supreme Court again considered the admissibility of voice identification testimony. In Martin v. State, 100 Fla. 16, 129 So. 112 (1930), the defendant was in the victims’ presence in a dimly lit room for about five minutes. Characterizing the later voice identification of the defendant by the two victims as “direct and positive proof’ of identity, the supreme court emphasized that this form of evidence is ordinarily admissible despite threshold challenges to its credibility, leaving for the jury to decide its probative value. Martin, 129 So. at 115.

Indeed, a cursory review of decisions in this and other jurisdictions reveals hundreds of cases involving brief encounters between the victim of a crime and a defendant under circumstances where the defendant can be identified only by voice comparison. In the typical situation, the spoken words are few and the victim had no prior familiarity with the defendant’s voice before making the identification. The courts have uniformly approved the admission of this form of evidence, concluding that the jury should determine its credibility. .

In a more recent case, Macias v. State, 673 So.2d 176 (Fla. 4th DCA 1996), a nighttime battery and strong-arm robbery took place over a span of between two and ten minutes. The victim was unable to see the defendant’s face but identified him based on his voice. The defendant uttered about thirty words during the crime. Thirty-two days after the crime, police, played for the victim a tape-recorded interview with the defendant. The victim positively identified the defendant’s voice as that of the assailant. The taped interview used as the exemplar lasted only three minutes, during which time the police did the mar jority of the talking. Although much of the recording was unintelligible, the defendant could be heard uttering the words: “I’m not going to be railroaded again.” Macias, 673 So.2d at 179. Three months after the crime, the victim again made a voice identification of the defendant after hearing him speak at a pretrial bond proceeding. Emphasizing the thirty-two-day span of time between the crime and the first identification, our sister court concluded that the method used by police to present the voice exemplar to the victim was unduly suggestive. It nevertheless affirmed the conviction because there did not exist a “substantial likelihood of irreparable mis-identification.” Id. at 181.

Here, no argument was advanced below or on appeal that the method of identification was unduly suggestive. Rather than suggestiveness, Appellant argues two points, both of which require an analysis of the same section of the evidence code. First, he contends that, because the voice identification was made by police, the after-the-crime verification was unauthorized. Second, he urges that, because the jury could have listened to the DVD recording of the hearing and itself compared the voices, the introduction of the non-expert, opinion testimony of the agents usurped the function of the jury. Appellant places his primary reliance for both arguments on Evans v. State, 177 So.3d 1219, 1229 (Fla. 2015). After careful review of Evans, we conclude that Appellant’s reliance on this precedent is misplaced.

In Evans, a 911 operator received and recorded a brief conversation between two victims and an unidentified assailant during a heated confrontation immediately preceding the murders. To prove that the unidentified assailant was the defendant, the state presented the testimony of a police detective who had compared what she heard on the 911 recording to a later-obtained sample of the defendant’s voice retrieved from recorded jail phone calls made by the defendant after his arrest. On appeal, the supreme court concluded that the “detective usurped the role of the jury by being permitted to opine that a voice heard on a 911 call-back recording belonged to the defendant.” Evans, 177 So.3d at 1224. In its discussion on this point, the Evans court relied heavily on our opinion in Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989). In Ruffin, three police officers who had not witnessed a drug transaction in person, testified that, in their opinions, the man depicted in the video recording of the transaction was indeed the defendant. We held that the lay opinion testimony erroneously “invad[ed] ... the province of the jury.” Ruffin, 549 So.2d at 251; see also Alvarez v. State, 147 So.3d 537, 542-43 (Fla. 4th DCA 2014) (where detective was in no better position to view and interpret poor-quality video, admission of opinion testimony invaded province of jury).

We begin our analysis of Evans by emphasizing that it is not premised on section 90.901, Florida Statutes, which addresses the requirement of authentication that an item offered into evidence is what its proponent claims. Nor would an authentication argument be successful here. Authentication of a voice by a lay witness requires only a minimal amount of exposure to the unknown by the witness, together with a comparison of a known sample of the voice. See, e.g., United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005) (to be authenticated and thus admissible, voice identification only need rise to level of minimal familiarity); United States v. Cerone, 830 F.2d 938, 949 (8th Cir. 1987) (agent who listened to recordings and spoke to defendant several times thereafter could authenticate voice; minimal familiarity sufficient); United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979) (agent permitted to identify defendant’s voice in single phone call after hearing his voice in court on one occasion); Vilsaint v. State, 127 So.3d 647, 650 (Fla. 4th DCA 2013) (detective permitted to authenticate defendant’s voice on tape based on ten-to-fifteen-minute discussion after his arrest; credibility of identification for jury to determine). The threshold for authentication is low because the trier of fact makes the ultimate determination of whether the evidence is genuine. C. Ehrhardt, Florida Evidence § 901.1 (2016 ed.).

That Evans is not an authentication case is made clear by the court’s express holding that the “lead detective usurped the role of the jury by being permitted to opine that a voice heard on a 911 call-back recording belonged to the defendant.” Evans, 177 So.3d at 1224. Evans also distinguished, but did not overrule, the main precedent upon which the dissenting justices relied, Vilsaint v. State, 127 So.3d 647 (Fla. 4th DCA 2013), which it labeled as a “ease [that] concerns a trial judge’s determination of whether the recording can be authenticated and thus presented to the jury.” Evans, 177 So.3d at 1230. In Vil-saint, a police detective authenticated the defendant’s voice on a tape recording based upon a brief face-to-face interview during which the defendant spoke only thirty-six words, most of which were “yes” or “no.” 127 So.3d at 649.

Rather than authenticity, the evidentia-ry error in Evans involved section 90.701, Florida Statutes, which addresses the circumstances under which lay opinion testimony is admissible. One central tenet of this statute is that the testimony must be helpful to the jury in determining a fact at issue. See Ehrhardt, supra, at § 701.1 n.2; 7 Wigmore, Evidence §§ 1917-18 (Chadbourn rev. 1978) (lay opinions are inadmissible when jury can draw same conclusion). In Ruffin, we concluded that the opinion testimony would not be helpful because the jury could look at the surveillance tape and compare it to the defendant as he appeared in the courtroom—the same comparison upon which the police officers based their opinions. Because the comparison required no special expertise, the use of this evidence, especially from witnesses in positions of authority, was unfairly prejudicial. Alvarez was similarly premised. In that case, the police witness simply interpreted a surveillance video. The Fourth District emphasized that the officer was in no better position than the jury to render the opinion. Accordingly, it reversed the conviction based on the erroneous admission of the opinion evidence. Alvarez, 147 So.3d at 542-43. Central to an understanding of Alvarez was its discussion of Johnson v. State, 93 So.3d 1066, 1069 (Fla. 4th DCA 2012), which it distinguished because, in Johnson, the defendant’s appearance had changed before trial, and the police identification witness had observed the defendant after the crime occurred but before he changed his appearance. Id. at 542.

The dissent seems to dispute that “helpfulness” is a predicate for the admission of lay opinion testimony, claiming that this concept is erroneously derived from federal cases construing federal rule 701 and from Alvarez, which it calls into doubt as a pre-Evans case. Although ,the word “helpfulness” does not appear in the Florida code, that the concept is implicit in the Florida code was confirmed in Alvarez, the holding of which is well grounded in authoritative works. See Ehrhardt, supra, at § 701.1 n.2; Wigmore, supra, at §§ 1917-18; see also Ehrhardt, supra, at § 102.1 (explaining that most differences between Florida code and federal rules were intended to clarify and “not intended to change the substance of the Federal Rule”). Alvarez preceded Evans, but it is clearly not in tension with Evans. It reached the same conclusion as Evans and Ruffin (upon which Evans principally relied), reversing the conviction based on inadmissible lay opinion. Nevertheless, even if the dissent is correct that “helpfulness” is not a predicate for the admission of lay testimony under the Florida code, the elimination of this implied predicate would authorize a more liberal rule for the admission of lay testimony under Florida law, not the contrary as the dissent implies.

The dissent also makes a vague assertion that section 90.701 and federal rule 701 have been “interpreted differently.” Because Evans does not mention either section 90.701 or any federal precedents, we assume the dissent’s argument is that federal precedents construing rule 701 were implicitly rejected in Evans. Besides the lack of textual support for this argument, it contravenes a prior express directive from the supreme court that the Florida Evidence Code “should be construed] ... in accordance with federal court decisions.” Moore v. State, 452 So.2d 559, 561-62 (Fla. 1984).

Evans is a logical application of Ruffin and Alvarez. In Evans, the state made the decision not to offer the exemplar telephone recordings into evidence. Had the recordings been admitted, Evans would have been directly, factually analogous to Ruffin and Alvarez. The jury would have been able to make the same comparison that was made by the police because the police enjoyed no expertise or special familiarity with the voice. Because the state made the decision not to give the exemplar to the jury, the Evans court treated it as an invasion-of-the-province-of-the-jury case. In other words, it would circumvent the intent of the evidence code to allow the state to disadvantage the jury by withholding tangible evidence in its possession so as to justify the use of otherwise inadmissible lay testimony. Simply put, Evans is a case where the police merely compared one recording to another, an exercise that was well within the province of the jury, had it been given the opportunity to do so.

In Bush, the Tenth Circuit addressed both authentication and the “helpfulness” predicate of lay opinion testimony in the context of a police officer’s voice identification testimony. The Bush court’s discussion of the “helpfulness” predicate is particularly instructive and illustrates the distinction we highlight here between helpful and unhelpful lay opinion testimony:

Mr. Bush relies on United States v. LaPierre, 998 F.2d 1460 (9th Cir. 1993). LaPierre is distinguishable from the instant case, if not inapposite. In La-Pierre, a police officer investigating bank robberies allegedly committed by the defendant identified him in bank surveillance photographs. Id. at 1465. The Ninth Circuit held that because the jury could view the photographs and identify the perpetrator, the officer’s testimony “ran the risk of invading the province of the jury and unfairly prejudicing” the defendant. Id. Based in part on this reasoning, the court discouraged the use of lay opinion identification testimony. Id. We are not convinced that LaPierre applies here or furthers Mr. Bush’s argument in any manner.
In LaPierre, the testifying officer, like the jury members, had never seen the defendant in person before the trial. Id. In essence then, the officer’s identification of the defendant was no different from what the jury members themselves were required to do in comparing the surveillance photographs to the defendant in the courtroom. As a result, the court concluded the officer’s overall level of familiarity with the defendant’s appearance fell short of the standard of helpfulness required by Rule 701. Id. By contrast, Detective Bench conducted face-to-face conversations with Mr. Bush on at least three occasions and engaged in several phone conversations with J.R. The jury was denied an opportunity to engage in any comparison of Mr. Bush’s voice to that of J.R. because Mr. Bush exercised his right not to testify at trial and only limited recordings were available from the phone conversations. Detective Bench’s testimony was therefore helpful because it assisted the jury in determining a fact issue that was otherwise hampered by Mr. Bush’s constitutionally protected silence at trial. The district court’s ruling regarding the admissibility of Detective Bench’s lay opinion testimony was not an abuse of discretion.

Bush, 405 F.3d at 917-18 (footnote omitted).

The holding in Evans embraces the same distinction drawn by the Bush court by limiting the use of lay identification testimony to circumstances where the identification witness was an eyewitness to the crime or demonstrates a “prior special familiarity” with the defendant’s voice. Evans, 177 So.3d at 1229. In both of these scenarios, the identification witness has an advantage over the jury. An “eyewitness” to a crime has direct contact with the criminal, giving rise to a unique opportunity for sensory perception. Accordingly, even when a surveillance tape of the defendant during the commission of the crime is played for a jury, the “eyewitness” may still give an identification opinion because the personal contact during the event gives the witness a distinct perspective. “Prior special familiarity” also involves a witness with some advantage over the jury, gained by personal contact with the defendant, apart from that which the jury could experience in the courtroom.

In this case, the identification testimony satisfies both criteria. Agents Scovel and Pederson were “witnesses” to the crime. We do not interpret the term “eyewitness,” as used in Evans, to exclude witnesses who hear, rather than see, the crime. Indeed, voice identification usually involves witnesses who did not see the criminal. And, there is seldom an “eyewitness” to a conspiracy, which, by definition, merely involves an agreement to commit a crime. Unlike Evans, where the officers became involved in the investigation after the crime was completed, here, the agents were witnesses to the conspiracy as it unfolded. Unlike the typical property crime or crime of violence, a conspiracy is an ongoing crime that might span days, weeks, months, or years. Here, the conspiracy did not end until the conspirators were apprehended. During the course of the conspiracy, the agents listened to thousands of conversations, culminating in the discovery of a probable place and time for the exchange of drugs and money. That place was later identified as belonging to Howard. After studying the voices of the conspirators over an extensive period of time, the agents had the opportunity to confront the conspirators and hear their voices in person. As witnesses, under Evans, it was not inappropriate for the jury to receive their lay opinions.

Even if the officers here were not “eyewitnesses,” as contemplated by Evans, we view this as a “prior special familiarity” case. What this means in the context of section 90.701 is that, prior to trial, the identification witness must have gained familiarity with the defendant that assists the witness in identifying him as the perpetrator and which the jury cannot itself acquire. Johnson is an example of a case where the police identification witness had “prior special familiarity.” Although the jury had the ability to compare the surveillance video with the defendant’s in-court appearance, his appearance had changed since the taking of the video and the police identification witness had observed him before he changed his appearance but after the crime. The fact that the “prior” knowledge came after the crime was committed, but before the trial, was inconsequential to the holding in that case. Bush and Vilsaint are examples of “prior special familiarity” in the context of voice identification. In Bush, the personal contact between the police officer and the defendant was not capable of replication for the jury because the defendant did not testify. Vilsaint is similar to Bush. There, the police identification witness had personal contact with the defendant during the booking process. Here, like in Bush and Vilsaint, the agents’ personal contact with the co-conspirators was the type of identification testimony that could help the jury in identifying the voices on the tapes. This is clearly not a case like Evans, Ruffin or Alvarez, where police simply performed an after-the-fact comparison between two recordings, offering nothing additional to aid the jury.

The dissent’s central argument—that Evans sets a “heightened” standard for the admission of voice identification testimony to foster greater reliability—is a straw man argument that confuses the holding of the case. Evans did not compel the exclusion of the tangible recordings or condemn this method of identification. The upshot of Evans is that the jury must compare the recordings, unpersuaded (or unassisted) by duplicative lay opinions. At best, the danger of misidentification is unaffected by the exclusion of the lay opinion evidence.

The dissent’s characterization of Evans as a reliability heightening case also conflates the distinct evidentiary concepts at issue in voice identification cases, each of which is rooted in a distinct policy. The prohibition against suggestive show-up methods—not at issue here—protects against tainted identifications and promotes reliability. Authenticity too establishes a minimal threshold for reliability but is also not at issue here. By contrast, the “helpfulness” predicate for lay opinion testimony has nothing to do with the accuracy of the opinion. It is grounded in a policy against invading the jury’s province. See Wigmore, supra, at §§ 1917-18. As the Evans court emphasized, especially when the inadmissible lay opinions are offered by persons in positions of authority like police officers, the admission of these unhelpful lay opinions creates the enhanced risk that the jury might give undue deference to the lay opinions. Adherence to the “helpfulness” predicate, while not logically bearing on the reliability of the identification, fosters the distinct goal of jury independence. See Evans, 177 So.3d at 1230.

Even if we indulge the dissent in a debate over reliability of the identification evidence, we conclude that the identity evidence presented here was no less reliable than in the vast majority of cases where identification is an issue. The fact that the duration of the post-arrest, personal contact was brief is not a distinguishing feature of this case that affects the admissibility of the evidence. Many, if not most, identification cases, voice or otherwise, involve brief encounters during the crime and/or during the post-crime identification process. In Macias, for example, the assailant uttered about thirty words during the encounter with the victim. Thirty-two days later the victim identified him from a three-minute recording, during which, like the face-to-face interview here, the defendant spoke very few words. Vil-saint too involved brief personal contact with the defendant by police during the booking process, after his arrest.

Buttressing the opinion testimony here was the additional circumstantial evidence gleaned from the content of the conversations themselves. From these conversations, the universe of suspects was considerably narrowed. Police became aware of a probable exchange at a particular place and time. When the police converged on the place, later confirmed to be Howard’s house, Appellant and Howard were present. This circumstantial evidence of identity supported the opinion testimony offered at trial. It was for the jury to decide whether the totality of the identity evidence satisfied the high burden of proof for a criminal conviction. See Manson, 432 U.S. at 116, 97 S.Ct. 2243 (“Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”).

AFFIRMED.

COHEN, C.J., concurs.

ORFINGER, J., concurs in part, and dissents in part, with opinion.

ORFINGER, J.,

concurring in part, and dissenting in part.

The holding of Evans v. State, 177 So.3d 1219, 1229 (Fla. 2015), is clear: the “testimony that a witness recognizes the voice of the accused is inadmissible ... unless the testifying witness (1) was an eyewitness to the crime, (2) has some prior special familiarity with the voice of the defendant, or (3) is qualified as an expert in identification.” Because I conclude the majority misapplies this holding, I respectfully dissent.

The legal system relies heavily on witness identifications for investigating and prosecuting crimes. However, identification errors are the leading cause of false convictions. Cindy E. Laub, Lindsey E. Wylie & Brian H. Bomstein, Can the Courts Tell an Ear from an Eye? Legal Approaches to Voice Identification Evidence, 37 Law & Psychol. Rev. 119, 119 (2013). Because reliability is the linchpin in determining the admissibility of identification testimony, Manson v. Brathwaite, 432 U.S, 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and the role of witness identification is so important, especially when there is no physical evidence, the Florida Supreme Court limited the witnesses able to give opinion testimony about the identity of a recorded voice in Evans. See C. Ehrhardt, Fla. Evidence § 901.6 (2016 ed.).

To ensure the reliability of opinions presented to the jury, Evans raised the standard for a voice identification by requiring the witness offering an opinion on the identity of a speaker to be either an eyewitness or a witness with prior special familiarity with the voice. As a result, Evans demands more than did the earlier cases relied on by the majority. In an effort to satisfy the Evans construct, the majority contends that Agent Scovel either was an eyewitness to the crime (a position not advanced by the State) or had sufficient prior special familiarity with Johnson’s voice to be able to reliably identify it on the recordings. I disagree with both contentions.

First, with respect to the majority’s position that Agent Scovel was an eyewitness, an eyewitness is someone who personally sees an event and can describe it later. Eyewitness, Black’s Law Dictionary (10th ed. 2014); see also Earwitness, Black’s Law Dictionary (10th ed. 2014) (defining earwitness as witness who testifies about something he or she heard, but did not see). I do not dispute that Agent Scov-el listened to the tapes of the recorded telephone calls or that the tapes were properly authenticated. But the question here is not one of authentication; it is whether Agent Scovel is able to reliably opine—either as an eyewitness or as a witness with prior special familiarity with Johnson’s voice—that he recognized Johnson’s voice on the tape. Agent Scovel was not present when the calls were recorded, and did not observe Johnson speaking on the phone while simultaneously listening to the calls. Had that occurred, arguably, he could be considered an eyewitness. But, with the exception of one brief personal conversation with Johnson, Agent Scovel was in no better position to identify the voice on the recordings than anyone else who listened to the tapes and the recording of Johnson’s pretrial testimony.

The majority’s reliance on Mack v. State, 54 Fla. 55, 44 So. 706 (1907), Martin v. State, 100 Fla. 16, 129 So. 112 (1930), and Macias v. State, 673 So.2d 176 (Fla. 4th DCA 1996), is misplaced. Each of those cases involved the victim of the crime testifying as to what the perpetrator said while the crime was being committed. The victims in those cases were prototypical eyewitnesses to the crimes and as such, satisfied the Evans requirements. Just as the officers in Ruffin v. State, 549 So.2d 250 (Fla. 5th DCA 1989), and Alvarez v. State, 147 So.3d 537 (Fla. 4th DCA 2014), were not eyewitnesses to a crime merely because they later watched a recorded video of the crime, Agent Scovel is not an eyewitness to the conspiracy merely because he later listened to the recorded phone conversations discussing it.

Perhaps the strongest support for the majority opinion can be found in Alvarez, which held that “[e]ven non-eyewitnesses may testify as to the identification of persons depicted or heard on a recording so long as it is clear the witness is in a better position than the jurors to make those determinations.” 147 So.3d at 542. Because Agent Scovel had a brief, in-person conversation with Johnson, he was in a slightly better position than the jurors to determine if Johnson’s voice was on the recorded telephone calls. However, this “better position than the jurors” language—which the majority refers to as the “helpfulness” standard—cannot be found in Evans, which postdates Alvarez. It was apparently adopted from Federal Rule of Evidence 901 and numerous federal cases cited by the majority, but it is premised on what appears to be a lower standard for the admissibility of opinion testimony in federal courts.

Although I agree with the majority that the provisions of the Florida and federal evidence codes regarding lay opinion testimony are similar, one need only compare Evans with United States v. Bush, 405 F.3d 909, 919 (10th Cir. 2005), to see that they have been interpreted differently by Florida and federal courts. Had this case been prosecuted in federal court, Agent Scovel’s opinion testimony would certainly have been allowed. See, e.g., Bush, 405 F.3d at 919 (holding voice identification need only rise to level of minimal familiarity); United States v. Axselle, 604 F.2d 1330, 1338 (10th Cir. 1979) (holding single telephone call, combined with hearing voice in court, is sufficient for voice identification testimony to go to jury). However, I am compelled to follow the interpretation of the Florida evidence code by the Florida Supreme Court, not the interpretation of the federal evidence code by federal courts. Under Florida law, because Evans raised the bar for the admissibility of an opinion on voice identification, I conclude Agent Scovel was not an eyewitness competent to render an opinion on whose voice was heard on the recordings.

Turning to the majority’s position that Agent Scovel had adequate prior special familiarity with Johnson’s voice that qualified him to testify, it seems a matter of common sense that the ability to identify a speaker from his or her voice depends on the number of exposures to the voice in question, the quality of these exposures, and the nature of the identification process. See Lawrence Solan & Peter M. Tiersma, Hearing Voices: Speaker Identification in Court, 54 Hastings L.J. 373, 375 (2003). The Evans court incorporated this common sense approach by creating a standard permitting a witness to identify the voice of the defendant when the witness was previously familiar with the defendant. Evans, 177 So.3d at 1229; see State v. Cordia, 564 So.2d 601, 601-02 (Fla. 2d DCA 1990) (permitting witness to testify who had known defendant “for a significant period of time” and had spoken to defendant in person and over telephone); Hardie v. State, 513 So.2d 791, 792 (Fla. 4th DCA 1987) (holding that police officers who had prior knowledge and contact with defendant could properly testify and identify him).

Here, however, Agent Scovel lacked the requisite prior special familiarity with Johnson. Before initiating the investigation, Agent Scovel had no contact with Johnson. During the course of the investigation, Agent Scovel spoke to Johnson only once, during the search of Howard’s house, and Johnson said little during that conversation. Other than this brief conversation, the only familiarity Agent Scovel had with the voice that he believed to be Johnson’s was through listening to recordings of intercepted phone conversations and a subsequent recording of Johnson’s pretrial hearing. This limited interaction with Johnson is not sufficient to constitute prior special familiarity. Indeed, Evans specifically held that “a police officer investigating a particular suspect’s voice after the investigation is ongoing ... does not constitute the requisite prior familiarity with the suspect.” 177 So.3d at 1230 (emphasis added); see Proctor v. State, 97 So.3d 313, 315 (Fla. 5th DCA 2012); cf. Cordia, 564 So.2d at 601-02; Hardie, 513 So.2d at 792. While the majority contends that the timing of an officer’s interaction with a voice is inconsequential, the Florida Supreme Court held otherwise. It is clear from Evans that an investigating officer does not obtain prior special familiarity with a suspect’s voice if his or her first encounter with the voice occurs after a criminal investigation into the suspect’s behavior has begun, regardless of whether at that time the crime has been completed. Evans, 177 So.3d at 1280. Additionally, a trial court’s error in permitting an improper identification “may be exacerbated where the testimony comes from a police officer” and the jury is aware of that position because officers are often regarded as highly credible. Martinez v. State, 761 So.2d 1074, 1080 (Fla. 2000); see also Evans, 177 So.3d at 1230 (finding use of questions that elicit witness’s position as police officer when witness is identifying defendant’s voice or image may be reversible error even when identification itself is permissible).

In the end, the majority distinguishes this case from Evans by claiming that Agent Scovel was an eyewitness because he listened to the recordings and spoke briefly in-person with Johnson, whereas the detective in Evans had no personal interaction with the defendant. Although this is accurate, it is insufficient under the heightened Evans standard to make Agent Scovel an eyewitness or to give him the requisite prior special familiarity with Johnson’s voice to reliably identify it in the recordings. I would reverse for a new trial.

      . In this case, the face-to-face discussions between the agents and the co-conspirators occurred contemporaneous with the last documented moments of the conspiracy. Agents had been led to the point of the suspected exchange of money for" drugs, expecting to find the yet-to-be-identified co-conspirators at the premises. After having confronted and having identified Appellant and Howard, any further attempt at identification through a show-up procedure would have been superfluous. Although the dissent does not argue that the identification here was suggestive, it cites Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), where the witness was shown a single photograph of the defendant in a show-up procedure. There, despite the suggestiveness of the pretrial identification, the Court affirmed the conviction based upon the in-court identification, relying upon the “good sense and judgment” of the jury to "intelligently [weigh] ... the identification testimony,” Id. at 116, 97 S.Ct. 2243.

      . Arguably, a distinction can be made between visual identification cases and voice identification cases. In the former, unless the defendant changes his appearance before trial, the jury can see him in person in the courtroom and compare his appearance to the image on a photograph or video tape. In a voice case, unless the defendant testifies, the jury is left to compare the incriminating recording to a recorded exemplar,

      - ¶⅛ outcome might be different in a case where the defendant is successful in objecting to the state's attempts to offer the exemplar into ev¡¿ence

      . The dissent emphasizes that Agent Scovel did not actually listen to the intercepts until after they were recorded. Whether the agents heard the mechanically intercepted voices during or after the conversation seems to us a formalistic distinction having no effect on the reliability of the voice comparison. The point we emphasize is that, under the Evans construct, the agents were clearly investigating the crime while it was in progress. The investigation culminated in the search and arrests, in which Agent Scovel personally participated. This was not a case like Evans, where the police participation came after the crime was completed.

      . The Florida Supreme Court decided Evans after Johnson’s tried.

      . I concur with the majority that Johnson’s other claims of error lack merit.

      .Expert testimony is also permitted by Evans, but is not an issue in this case.

      . Because this case concerns lay opinion testimony, I need not distinguish Vilsaint v. State, 127 So.3d 647 (Fla. 4th DCA 2013), which the majority concedes is a case regarding authentication. See opinion at 648-49.

      . The State could have allowed the jury to determine for itself if Johnson’s voice was heard on the incriminating recordings by playing the recording of the pretrial hearing at which Johnson testified, or by compelling him to give a voice exemplar, either before or at trial, in order to evaluate the physical properties of his voice. See Fla. R. Crim. P. 3.220(c)(1)(B); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

      . Likewise, I do not believe Agent Pederson was an eyewitness or had prior special familiarity with Howard’s voice to reliably identify it in the recordings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gregory COTHRON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3973
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 7, 2017
    Gregory Cothron, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gregory Cothron appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of postconviction relief except on ground three.

Cothron’s claim three is insufficiently pled, but he should be allowed an opportunity to amend. See Fla. R. Crim. P. 3.850(f)(3). On remand, Cothron shall be given an opportunity to amend ground three within sixty days as authorized by the rule.

AFFIRMED in part; REVERSED in part; REMANDED for further proceedings.

ORFINGER and WALLIS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: WOLF, J.

text:
    Johnny R. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5124
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017

      Office of Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Melissa J. Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant pled no contest to grand theft of $300 or more, criminal mischief, and interfering with railroad equipment; the factual basis for these crimes was that appellant and a co-defendant dug up railroad culverts with the intention of selling the culverts as scrap metal. After a separate restitution hearing, appellant and his co-defendant were ordered to pay $5,050 in restitution.

Appellant challenges the restitution amount for two reasons. He first alleges the trial court abused its discretion by ordering $5,050 in restitution where the only evidence of that amount of restitution came from the hearsay testimony of a railroad employee, Carlton Strickland. He also claims the $5,050 restitution amount was improperly based on the culverts’ replacement value instead of their fair market value. We hold that the latter issue raised by appellant lacks merit, but because the restitution amount was improperly based solely on hearsay evidence, we reverse the restitution determination and remand for a new restitution hearing.

“The trial court’s determination of the amount of restitution is subject to an abuse of discretion standard of review.” Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007). Here, the trial court abused its discretion in ordering appellant and his co-defendant to pay $5,050 in restitution when the only evidence regarding the restitution amount was the objected-to hearsay testimony of Mr. Strickland.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2013). Hearsay is generally inadmissible unless the evidence falls into an exception to the hearsay rule as outlined per statute. § 90.802, Fla. Stat. (2013). Hearsay evidence may not be used to determine a restitution amount if there is an objection to the hearsay. Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003).

Here, Mr. Strickland testified, over appellant’s objection, to a restitution amount of $6,570, which would cover the cost of labor as well as replacement of the culverts and ballast. However, Mr. Strickland’s testimony was hearsay; Mr. Strickland explicitly testified that he was not the person who calculated the $6,570 estimate because such a determination was outside of his jurisdiction: “Now, what it would actually cost, I don’t know, because that’s out of my jurisdiction.” Mr. Strickland also explicitly stated, “I have nothing to do with making the estimates.”

Rather, a road master for the railroad company had made the estimate and had e-mailed the estimate to Mr. Strickland. However, the State never entered that email or any other document pertaining to the estimate into evidence.

The State alleges Mr. Strickland’s testimony was not hearsay because it fell under the business records exception outlined in section 90.803(6)(a), Florida Statutes (2013). However, the business records exception is not applicable to testimony without the business records. T.J.N. v. State, 977 So.2d 770, 773 (Fla. 2d DCA 2008); Thompson v. State, 705 So.2d 1046, 1048 (Fla. 4th DCA 1998). Here, without either the road master’s physical estimate or his e-mail to Mr. Strickland, Mr. Strickland’s restitution testimony was hearsay, which was appropriately objected to by defense counsel.

Thus, though we affirm appellant’s judgment and sentence, we REVERSE the restitution determination and REMAND for a new restitution hearing. See Nelson v. State, 95 So.3d 368 (Fla. 1st DCA 2012).

LEWIS and WETHERELL, JJ., CONCUR.

       Mr. Strickland testified as to estimated costs of $1,270 for new pipes, $1,300 for new ballast, and $4,000 for labor. Because there had not been ballast over the culverts when appellant and his co-defendant dug them up, the trial court determined restitution should only include $1,270 for the pipes and $4,000 for the labor, minus $220 that the railroad obtained when it exchanged the old, dug-up pipes for cash. Thus, the trial court ordered a restitution amount of $5,050.


text:
    Dianne MCFARLANE, Appellant, v. MIAMI-DADE TRANSIT AUTHORITY and Miami-Dade County Risk Management, Appellees.
    CASE NO. 1D16-2080
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017.

      Bill McCabe, Longwood, and Bradley D. Asnis of Asnis, Srebnick & Kaufman, LLC, Sunrise, for Appellant.
    Abigail Price-Williams, County Attorney, and Lynda S. Slade, Miami, for Ap-pellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals the Judge of Compensation Claims’ (JCC’s) denial of her claim for continued medical care with Dr. Hodor, a previously authorized medical provider. The JCC based his decision on a finding that Claimant acquiesced to the authorization of another provider as her one-time change of physician from Dr. Hodor. Because we find that the JCC improperly considered the E/C’s acquiescence defense, we reverse.

Following her workplace accident on August 6, 2009, Claimant received authorized medical treatment from Dr. Hodor for a right wrist injury and from Dr. Baylis for a right shoulder injury. In 2011, Claimant requested a one-time change of physician from Dr. Baylis in accordance with paragraph 440.13(2)(f). Paragraph 440.13(2)(f) provides that upon the grant of a one-time change, the originally authorized physician shall become deauthorized upon written notification by the E/C. In a timely response, the E/C authorized a change from Dr. Baylis to Dr. Feanny. After receiving treatment from Dr. Feanny for both the right wrist and right shoulder injuries, Claimant filed a petition for benefits (PFB) in 2015, which sought authorization of continued care with Dr. Hodor. Although the claims adjuster had testified only months earlier that Dr. Feanny was the one-time change from Dr. Baylis, that Dr. Baylis was no longer authorized, and that Dr. Hodor remained authorized, the E/C sent a deauthorization letter to Dr. Hodor shortly after the PFB was filed.

Florida Administrative Code Rule 60Q-6.113(2)(a) states, in pertinent part, that “ah available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown” and that “[ajbsent an agreement of the parties, in no event shall an amendment or supplement be used to raise a new claim or defense that could, or should have been raised when the initial pretrial stipulation was filed, unless permitted by the judge for good cause shown.” In the pretrial stipulation, the E/C asserted a defense that Claimant had previously requested a one-time from Dr. Ho-dov, who is no longer authorized, and that the authorized physician is Dr. Feanny, who has been treating Claimant since the onetime change. Significantly, the word “acquiescence” does not appear at all in the pretrial stipulation and was not mentioned by the E/C until their trial memorandum was filed less than a week before the final healing. The E/C have not established good cause for this omission. We are unpersuaded by the E/C’s argument that the absence of the word “acquiescence” in the pretrial stipulation is irrelevant because this defense was somehow implicit in the words that were used.

We also find no merit in the E/C’s argument that they were not required to raise acquiescence as a defense because it is not an affirmative defense. It appears self-evident that acquiescence is an affirmative defense under these circumstances; but even if we were to assume otherwise, the pretrial rule applies to all defenses.

In short, by failing to comply with the applicable pretrial rule, the E/C here waived any defense based on acquiescence. We therefore REVERSE and REMAND for entry of an order granting the claimed benefits in accordance with this opinion.

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ, CONCUR.


text:
    Dale DRIGGERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4168
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2017
    Dale Driggers, East Palatka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Richards, 639 So.2d 680, 681 (Fla. 2d DCA 1994).

COHEN, C.J, LAMBERT and EDWARDS, JJ, concur.


text:
    Carl ROBINSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2230
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 18, 2017
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 690 So.2d 686 (Fla. 5th DCA), approved, 702 So.2d 487 (Fla. 1997).

ORFINGER and TORPY, JJ., and JACOBUS, B.W., Senior Judge, concur.


text:
    Kamari SHERRELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3337
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kamari Sherrell appeals the trial court’s order revoking his probation. Although the trial court orally pronounced that Sherrell violated conditions 6 and 7, its order does not state in writing the conditions that Sherrell violated. We find that competent, substantial evidence supports the trial court’s oral findings which, if written, would “have been adequate to sustain the trial court’s conclusion of a willful and substantial violation.” Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004). Accordingly, we affirm the trial court’s order revoking Sherrell’s probation, but we remand for the entry of a proper adjudication order identifying which conditions Sherrell violated.

AFFIRMED and REMANDED with Instructions.

COHEN, C.J., EVANDER, and WALLIS, JJ., concur.


text:
    Dionte Jermaine DAVIS, Appellant, v. DEPARTMENT OF CORRECTIONS and State of Florida, Appellees.
    Case No. 5D16-3575
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 21, 2017
    Dionte Jermaine Davis, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Caroline Johnson Levine, Assistant Attorney General, Tampa, for Appellee, State of Florida.
    No Appearance for Other Appellee.
   PER CURIAM.

We affirm the dismissal of the petition for habeas corpus filed in the circuit court by Dionte Davis without prejudice to Davis filing, in the future, a proper petition in the appropriate court at the appropriate time.

AFFIRMED without prejudice.

SAWAYA, WALLIS, and LAMBERT, JJ., concur.


text:
    A.P., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1041
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 27, 2017
    Robert Wesley, Public Defender, and Ashley Dunbar, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

A.P. petitioned for a writ of habeas corpus, alleging that he was sentenced to five days in secure detention for indirect contempt of court without being afforded the due process required by rule and statute. We previously granted the petition by order and now explain our decision in further detail.

Petitioner appeared before the court regarding an alleged violation of his previously imposed court-ordered curfew. The trial court indicated that Petitioner would be detained for five days in the juvenile detention center. Petitioner’s counsel objected, and requested that the trial court follow the contempt procedures found in section 985.037, Florida Statutes (2017). The trial court noted Petitioner’s objection and request, but without further delay, ordered Petitioner’s detention.

The trial court erred in two respects. First, indirect criminal contempt is the procedure a trial court must use to enforce violations of a juvenile pretrial diversion program or conditions of pretrial release. See §§ 985.345(1)(b); 985.24(1)(d)2., Fla. Stat. (2017); T.N. v. Portesy, 932 So.2d 267, 268 (Fla. 2d DCA 2005). Second, “a prosecution for indirect criminal contempt is to follow the procedural due process set forth in [Florida Rules of Juvenile Procedure] rule 8.150 and section 985.037.” K.M. v. State, 962 So.2d 969, 970 (Fla. 4th DCA 2007); see also G.C. v. State, 901 So.2d 1021, 1021 (Fla. 4th DCA 2005). The trial court did not follow those procedures thereby resulting in a failure to provide Petitioner with due process. Accordingly, we determined and ordered that Petitioner was entitled to be immediately released from custody. The order of detention is quashed.

PETITION GRANTED.

ORFINGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: PER CURIAM:

text:
    STATE EX REL. Karl FORTENBERRY v. STATE of Louisiana
    No. 15-KH-2135
    Supreme Court of Louisiana.
    03/13/2017
   ON SUPERVISORY WRITS TO THE TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY

PER CURIAM:

11 Denied. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated two applications for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his I aright to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE EX REL. Randall Chad THOMPSON v. STATE of Louisiana
    No. 2015-KH-2215
    Supreme Court of Louisiana.
    04/07/2017
   ON SUPERVISORY WRITS TO THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU

PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

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

hThe amendment by the state of the date of offense six days before trial from a single date to a two year window, under any standard one might wish to apply, provided valid grounds for a continuance. It is the duty of the prosecution, not to win the case, but to seek the truth.


text:
    STATE EX REL. William A. HENDERSON v. STATE of Louisiana
    No. 2015-KH-1617
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

|! Denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Relator has now fully litigated his application for 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’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Harold BUNCH v. STATE of Louisiana
    No. 2015-KH-1672
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for 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’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Ronald KNIGHTSHED v. STATE of Louisiana
    No. 2015-KH-2216
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

1(Writ not considered. Untimely filed pursuant to La. S.Ct. Rule X, § 5; see also State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122.

Relator has now fully litigated at least one application for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims were previously fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and the denial is final. Hereafter, unless relator can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The District Court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Lan TRAN v. STATE of Louisiana
    No. 2015-KH-2269
    Supreme Court of Louisiana.
    04/13/2017
   ON SUPERVISORY WRITS TO THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated five applications for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

GENOVESE, J., recused


text:
    STATE EX REL. Leroy FIELDS v. STATE of Louisiana
    No. 2015-KH-2270
    Supreme Court of Louisiana.
    04/13/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. Furthermore, to the extent relator contends his claim is jurisdictional, relator fails to show that the indictment was defective and thus fails to show that the trial court lacked jurisdiction to accept his guilty plea for simple robbery.

Relator has now fully litigated his application for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his | aright to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant the writ.


text:
    STATE EX REL. Roy James JONES v. STATE of Louisiana
    No. 2015-KH-2292
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| -[Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated three applications for 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 La.C.Cr.P. art. 930.4 to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in state collateral proceedings in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Kian TATE v. STATE of Louisiana
    No. 2016-KH-0003
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

|, Denied. Relator’s sentencing claims are not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172.

Relator has now fully litigated his application for 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’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Harold J. BUNCH v. STATE of Louisiana
    No. 2016-KH-1337
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| TPenied. Relator’s sentencing claim is not cognizable on collateral review. La. C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. Relator has exhausted his right to collateral review. See State ex rel. Bunch v. State, 15-1672 (La. 4/13/17), 215 So.3d 664.


author: PER CURIAM

text:
    IN RE: Lance Hac NGUYEN
    NO. 2017-B-0214
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM

| ¡This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Lance Hac Nguyen. Mr. Nguyen is licensed to practice law only in Texas; however, the ODC asserts jurisdiction over him in this matter pursuant to Supreme Court Rule XIX, § 6(A) and Rule 8.5 of the Rules of Professional Conduct, which together extend this court’s disciplinary authority to lawyers who provide or offer to provide legal services in Louisiana.

FORMAL CHARGES

On August 12, 2013, respondent was admitted pro hac vice in the United States District Court for the Western District of Louisiana specifically to defend Tyrone Thibeaux in the case captioned United States of America v. Rodriguez, et al. One of Mr. Thibeaux’s co-defendants was Glenn Charles.

On December 12, 2013, during Mr. Charles’ sentencing hearing, the judge learned that respondent had improperly contacted Mr. Charles outside the presence of and without the approval of Mr. Charles’ counsel. The judge then ordered respondent to show cause why he should not be sanctioned for this conduct. During the show cause hearing, respondent admitted he improperly contacted Mr. Charles. On April 11, 2014, the judge sanctioned respondent and referred the matter to the court’s chief judge, as well as the attorney disciplinary authorities in |Texas and Louisiana. On July 23, 2014, the chief judge suspended respondent from the pro hac vice practice of law in the Western District of Louisiana for eight months.

During its ensuing investigation into respondent’s conduct, the ODC made numerous attempts to contact him via telephone, U.S. mail, and FedEx. Respondent failed to respond to all of the ODC’s attempts to contact him.

The ODC alleged that respondent’s conduct violated the following provisions of the Rules of Professional Conduct: Rules 4.2(a) (unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order, a lawyer in representing a client shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter) and 8.1(c) (failure to cooperate with the ODC in its investigation).

DISCIPLINARY PROCEEDINGS

In March 2016, the ODC filed formal charges against respondent. Respondent failed to answer the formal charges. 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 reviewing the ODC’s deemed admitted submission, the hearing committee found that the factual allegations in the formal charges were deemed admitted and proven by clear and convincing evidence. Based on these facts, thej3 committee determined that respondent violated the Rules of Professional Conduct as charged.

After considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee determined the applicable baseline sanction ranges from suspension to disbarment, In aggravation, the committee found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the committee found the absence of a prior disciplinary record.

After also considering this court’s prior jurisprudence addressing similar misconduct, the committee recommended that respondent be “sanctioned” one year and one day.

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

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual allegations in the formal charges were deemed admitted and proven. The board also determined that the hearing committee correctly applied the Rules of Professional Conduct to the facts and evidence.

The board then determined that respondent knowingly violated duties owed to the legal system and the legal profession. Respondent caused harm in the form of interrupting Mr. Charles’ sentencing hearing and by causing the judge to hold an additional hearing to determine sanctions for respondent. Respondent’s conduct also caused the potential for significant harm in the form of potentially altering the outcome of Mr. Charles’ criminal proceeding. Finally, respondent’s failure to cooperate with the ODC caused that office to expend additional resources. After] 4 considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency. In mitigation, the committee found the absence of a prior disciplinary record and the imposition of other penalties or sanctions (eight-month suspension from pro hac vice admission in the Western District of Louisiana and participation in a diversion program in the Texas attorney disciplinary system).

After considering this court’s prior jurisprudence addressing similar misconduct, the board determined that a one-year suspension is appropriate. However, the board also noted that, because respondent is not a member of the Louisiana bar, he has no license to suspend. In addressing this issue, the board cited In re: Cortigene, 13-2022 (La. 2/14/14), 144 .So.3d 915, wherein this court held that, when an attorney is not a member of the Louisiana bar, it has the power to enjoin the attorney from “seeking the benefits of a full or limited admission to practice in this State.”

In light of Cortigene, the board recommended that, instead of being suspended from the practice of law, respondent be enjoined from seeking admission to the Louisiana bar in any form, temporary or permanent, for one year.

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 | sbeen 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 record in this deemed admitted matter supports a finding that respondent, while admitted pro hac vice in the Western District of Louisiana, inappropriately communicated with a criminal defendant without the permission of the defendant’s counsel. Respondent also failed to cooperate with the ODC’s ensuing investigation into his conduct. Based on these facts, respondent 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).

LThe record further supports a finding that respondent knowingly violated duties owed to the legal system and the legal profession, causing actual and potential harm. The baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the disciplinary board are supported by the record.

Turning to the issue of an appropriate sanction, we agree with the board that respondent’s misconduct would warrant a one-year suspension from the practice of law if he were a member of the Louisiana bar. In In re: Williams-Bensaadat, 15-1535 (La. 11/6/15), 181 So.3d 684, an attorney communicated with a party known to be represented by counsel and mishandled a fee dispute. For this misconduct, we suspended the attorney from the practice of law for one year, with six months deferred, followed by a two-year period of supervised probation. In In re: Fahrenholtz, 09-0748 (La. 10/2/09), 18 So.3d 751, an attorney knowingly, if not intentionally, failed to cooperate with the ODC in two investigations and failed to fulfill his professional obligations. For this misconduct, we suspended the attorney from the practice of law for one year and one day. Taken together, this case law indicates a one-year suspension is appropriate for respondent’s misconduct. However, as the board noted, respondent does not have a Louisiana law license to suspend. Nevertheless, based on our holding in In re: Cortigene, 13-2022 (La. 2/14/14), 144 So.3d 915, we may sanction respondent by enjoining him from “seeking the benefits of a full or limited admission to practice in this state.”

Accordingly, we hereby adjudge respondent guilty of conduct that would warrant a one-year suspension from the practice of law if he were a member of our bar. Recognizing that he is not a member of the bar, we order that respondent shall be enjoined for a period of one year from the date of this order from seeking full admission to the Louisiana bar or seeking admission to practice in Louisiana on any temporary or limited basis, including, but not limited to, seeking pro hac vice |7admission before a Louisiana court pursuant to Supreme Court Rule XVII, § 13 or seeking limited admission as an m-house counsel pursuant to Supreme Court Rule XVII, § 14. We will further direct the ODC to report our judgment to all jurisdictions in which respondent is currently admitted.

DECREE

Upon review of the findings and recommendation of the hearing committee and the disciplinary board, and considering the record, it is ordered that Lance Hac Nguyen shall be enjoined for a period of one year from seeking admission to the Louisiana bar or seeking admission to practice in Louisiana on a temporary or limited basis, including, but not limited to, seeking pro hac vice admission before a Louisiana court pursuant to Supreme Court Rule XVII, § 13 or seeking limited admission as an in-house counsel pursuant to Supreme Court Rule XVII, § 14. The Office of Disciplinary Counsel is directed to report this judgment to all jurisdictions in which Mr. Nguyen is currently admitted.

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.


text:
    STATE EX REL. Preston DEMOUCHETTE, Jr. v. STATE of Louisiana
    No. 2015-KH-2266
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| ] Denied. The application was not timely filed in the district court, and relator fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. It is also repetitive. La.C.Cr.P. art. 930.4.

Relator has now fully litigated numerous applications for 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’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Steven HOLDEN v. STATE of Louisiana
    No. 2015-KH-2175
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| denied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator’s claim of prosecutorial misconduct is procedurally barred. La.C.Cr.P. art. 930.4. We attach hereto and make a part hereof the district court’s written reasons denying relator’s application.

Relator has now fully litigated his application for 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’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

| ^Attachment

PLEASE SERVE!

PRISONER: Steven Holden, DOC # 415451, Louisiana State-pettitentioiy, Angola, LA 707,12

Gall Schlosser, District. Attorney's-Office, 200 Deibigny St., Gretna, LA 70053


text:
    STATE EX REL. Lyndon JOHNSON v. STATE of Louisiana
    No. 2015-KH-2267
    Supreme Court of Louisiana.
    04/13/2017
   PER CURIAM:

| denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker, 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator’s application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La. 9/5/95), 660 So.2d 1189. In addition, relator’s sentencing claim is not cognizable on collateral review. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172; see also State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030. We attach hereto and make a part hereof the court of appeal’s written reasons denying relator’s writ application.

Relator has now fully litigated at least two applications for 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 m La. C.Cr.P. art. 930.8. Notably, the [^Legislature in 2013 La. Acts 251 amend-e(j that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La.C.Cr.P. art, 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

I ¡Attachment

illegality jn ⅛⅛- sentence. Instead, he challenges ⅛6 validity .of his habitual ofibfyfe bill of iirforteaflain and ai^üdicatipk'ih lease :#0>2706t Pursuant to ¾⅝ C;Cr.P; áft. 930,¿;.r$laííir -had two ySars feini&e ⅛⅛⅝ bonYtoftc® and sentence ⅛¾⅜⅛⅛ ⅜⅛ to apply for post-convioticfr relief; W«¡ Ad no error. in the trial court's ruling .that .relatoras application, filed. 3⅛⅜ twelve, -years -nfipr ⅛⅛ oonLytcfioná a&d.,sentences became Aál,js untimely, This application ⅛ domed, Gretna, i, Louisiana, As 5Ay of-/íÁ^m..¡yPP_ Á ■13015. JUDGES'® fetpENJ. WINDHORST W " . JUDGED (⅛ G. GRAVOIS ⅛0-JUBGEROfiERT A.-CHAISSON'


text:
    Charlotte Gish KENNEDY, Jimmy Paul Kennedy, Ruth Carol Shepard, Roy D. Gish & Rena Evans Gish v. Mohamed “Jack” SAHEID
    NO. 2016-C-2241
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 539,202-C; to the Court of Appeal, Second Circuit, No. 51,-044-CA;

| denied.


text:
    STATE EX REL. Victor DURDEN v. STATE of Louisiana
    NO. 2016-KH-1579
    Supreme Court of Louisiana.
    January 23, 2017
   Applying for Reconsideration of this Court’s action dated November 7, 2016, Parish of Caddo, 1st Judicial District Court Div. 3, No. 207,087; to the Court of Appeal, Second Circuit, No. 50962-KH;

|! Reconsideration denied,


text:
    STATE of Louisiana v. Jennifer GAUBERT
    NO. 2016-K-0122
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 517-669; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0774

11 Denied.


text:
    STATE of Louisiana v. Lafelix D. MILLER
    NO. 2016-KO-0152
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. I, No. 11 CR9 114770; to the Court of Appeal, First Circuit, No. 2015 KA 1031.

|! Denied.


text:
    STATE of Louisiana v. Bryan Noah CARPENTER
    NO. 2016-K-0163
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. C, No. 29736; to the Court of Appeal, First Circuit, No. 2015 KA 0704;

| denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Christopher Lee HORTON
    NO. 2016-KO-0170
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 2007-174615; to the Court of Appeal, First Circuit, No. 2015 KA 1022

| denied.


text:
    STATE of Louisiana v. Brandon L. BARNES
    NO. 2016-KO-0181
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 12-4458; to the Court of Appeal, Fifth Circuit, No. 15-KA-236

11 Denied.


text:
    Deborah MELANCON and Claude Melancon v. JEFFERSON PARISH HOSPITAL DISTRICT NUMBER 1, d/b/a West Jefferson Medical Center and Thyssenkrupp Elevator Corporation
    NO. 2016-CC-2182
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 727-550; to the Court of Appeal, Fifth Circuit, No. 16-C-560;

| iDenied.

GUIDRY, J., would grant.


text:
    Deborah MELANCON and Claude Melancon v. JEFFERSON PARISH HOSPITAL DISTRICT NUMBER 1 d/b/a West Jefferson Medical Center Thyssenkrupp Elevator Corporation
    NO. 2016-CC-2195
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 727-550; to the Court of Appeal, Fifth Circuit, No. 16-C-557

|! Denied.

GUIDRY, J., would grant.


text:
    Sandalon JACOBS, et al. v. David SAMPSON, et al.
    NO. 2016-C-2201
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. A, No. 2014-1111-A; to the Court of Appeal, Third Circuit, No. 16-506;

| denied.

HUGHES, J., would grant.


text:
    FIRST NATIONAL BANK v. RICHLAND SPORTING GOODS, L.L.C., and Eugene Blaylock and Barbara L. Freeland Blaylock
    NO. 2016-CC-2204
    Supreme Court of Louisiana.
    January 23, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Richland, 5th Judicial District Court Div. B, No. 41,185; to the Court of Appeal, Second Circuit, No. 51155-CW

| denied.

HUGHES, J„ would grant.


text:
    STATE of Louisiana v. Jonathan FRANK
    NO. 2017-KK-0076
    Supreme Court of Louisiana.
    January 24, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. D, No. 530-973; to the Court of Appeal, Fourth Circuit, No. 2017-K-0031;

| t Stay lifted. Writ denied.


text:
    Lorraine Elaine ROEBUCK, Wife of Rodney Roebuck v. Rodney Leon ROEBUCK
    No. 2016-C-1884
    Supreme Court of Louisiana.
    January 25, 2017
   Applying for Reconsideration of this Court’s action dated December 5, 2016, Parish of St. Bernard, 34th Judicial Court Div. B, No. 15-0302; to the Court of Appeal, Fourth Circuit, No. 2016-CA-0221

[ t Reconsideration denied.

WEIMER, Justice, would grant.

HUGHES, Justice, would grant.


text:
    STATE EX REL. Dereck Darnell TAYLOR v. STATE of Louisiana
    NO. 2016-KH-2159
    Supreme Court of Louisiana.
    January 25, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. C, No. 330,842;

11 Denied.

GENOVESE, J., would not consider the writ application. See Louisiana Supreme Court Rule X, § 5.


text:
    STATE of Louisiana v. $14,143.00 IN U.S. CURRENCY; (for Reference Only: Durance Albert Taylor and Shannon D. Spears)
    NO. 2016-CC-2179
    Supreme Court of Louisiana.
    January 25, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 2016-2215 D; to the Court of Appeal, Third Circuit, No. CW 16-00787

| t Denied.

WEIMER, J., would grant.

HUGHES, J., would grant.

GENOVESE, J., recused.


text:
    SUCCESSION OF Milton YOUNGER
    NO. 2016-C-2202
    Supreme Court of Louisiana.
    January 25, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 12,604; to the Court of Appeal, Second Circuit, No. 50,-876-CA

L Denied.


text:
    Peterson M. YOKUM, Polly Elizabeth Anderson, Vieux Carre Property Owners, Residents and Associates, Inc., and French Quarter Citizens for the Preservation of Residential Quality v. 544 FUNKY, LLC, d/b/a Funky 544 Rhythm and Scottsdale Insurance Company
    NO. 2016-C-2231
    Supreme Court of Louisiana.
    January 25, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2010-6826; to the Court of Appeal, Fourth Circuit, No. 2015-CA-1353.

| tDenied.


text:
    MEYER & ASSOCIATES, INC. v. COUSHATTA TRIBE OF LOUISIANA
    NO. 2017-CC-0154
    Supreme Court of Louisiana.
    January 27, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. B, No, 2006-2683; to the Court of Appeal, Third Circuit, Nos. CW 16-01002, CW 16-01003;

|-i Stay denied. Writ denied.

GENOVESE, J., recused.


text:
    IN RE: COMMITTEE ON BAR ADMISSIONS CFN55
    NO. 2017-BA-0123
    Supreme Court of Louisiana.
    February 2, 2017
   Applying For Petition to Take Bar Examination

Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, § 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana


text:
    STATE EX REL. Ben H. SCOTT v. STATE of Louisiana
    NO. 2015-KH-1611
    Supreme Court of Louisiana.
    February 3, 2017
   Applying for Reconsideration of this Court’s order dated October 17, 2016, Parish of Jefferson, 24th Judicial District Court Div. I, No. 04-1277; to the Court of Appeal, Fifth Circuit, No. 15-KH-432

_JjNot considered. See La.S.Ct. Rule IX, § 6.


text:
    William O. BELT v. Tracy Bryant BELT
    NO. 2016-C-2247
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Avoyelles, 12th Judicial District Court Div. 0, No. 2012-8288; to the Court of Appeal, Third Circuit, No. 16-136; February 3, 2017

| iDenied.


text:
    Michelle GIBBS and Michael Gibbs v. LIVINGSTON PARISH MOSQUITO ABATEMENT DISTRICT; Vector Disease Control Incorporated; Everest National Insurance; and AIG Aeorspace Insurance Services, Inc.
    NO. 2016-CC-2018
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. F, No. 148903; to the Court of Appeal, First Circuit, No. 2016 CW 1035;

11 Denied.


text:
    Rosalvo M. MARTINEZ, individually and on behalf of The Minor Child, Alexander Martinez v. OCHSNER MEDICAL CENTER-KENNER, L.L.C.
    NO. 2016-CC-1446
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2015-11392; to the Court of Appeal, Fourth Circuit, No. 2016-C-0542

JjDenied.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    STATE of Louisiana v. Christopher Dewayne FISHER
    NO. 2016-KO-0228
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 309577; to the Court of Appeal, Second Circuit, No. 50,-301-KA

|, Denied.


text:
    STATE of Louisiana v. Alonzo T. WASHINGTON
    NO. 2016-KO-0224
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 200,474; to the Court of Appeal, Second Circuit, No. 50,-337-KA;

| denied.


text:
    STATE of Louisiana v. Johnny FAIR
    NO. 2016-KO-0185
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 12-2777; to the Court of Appeal, Fifth Circuit, No. 15-KA-434

|! Denied.


text:
    STATE of Louisiana v. Christopher JOHNSON
    NO. 2016-KO-0174
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 98313; to the Court of Appeal, First Circuit, No. 2015 KA 0513

I, Denied.


text:
    James ROBINSON v. The BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM and Joey Strum, Individually and in his Official Capacity as Chief of Police for the University of Louisiana at Lafayette
    NO. 2016-C-2145
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. C614860; to the Court of Appeal, First Circuit, No. 2015 CA1707;

| granted.


text:
    B.T.B. v. V.L.B.
    NO. 2017-CJ-0039
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. L, No. 2009-13515; to the Court of Appeal, First Circuit, No. 2016 CU 0918;

L Not considered. Not timely filed. See Louisiana Supreme Court Rule X, § 5.

HUGHES, J., recused.


text:
    STATE EX REL. Karl PETERS v. STATE of Louisiana
    NO. 2015-KH-0732
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 491-939; to the Court of Appeal, Fourth Circuit, No. 2015-K-0195

| denied. Moot.


text:
    STATE EX REL. Herman WILSON v. STATE of Louisiana
    NO. 2015-KH-1999
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 250-828; February 3, 2017

| denied. Moot.


text:
    STATE of Louisiana v. Shannon MORRIS
    NO. 2017-KK-0170
    Supreme Court of Louisiana.
    Supreme Court of Louisiana February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 523-718; to the Court of Appeal, Fourth Circuit, No. 2017-K-0071;

11 Stay denied. Writ denied.


text:
    STATE of Louisiana v. Dontel KENNEDY
    NO. 2016-KK-1882
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 528-084; to the Court of Appeal, Fourth Circuit, No. 2016-K-0847;

11 Writ Granted. This matter is remanded to the trial court to reconsider the state’s notice of intent to introduce evidence of other crimes pursuant to La. C.E. art. 404(B)(1), in view of the Court’s recent opinion in State v. Joseph Taylor, 2016-1124, 2016-1183 (La. 12/1/16), 217 So.3d 283, 2016, 2016 WL 7030750.


text:
    STATE of Louisiana v. Kenric RODNEY
    NO. 2016-KK-1843
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 524-682; to the Court of Appeal, Fourth Circuit, No. 2016-K-0985

Writ Granted. This matter is remanded to the trial court to reconsider the state’s notice of intent to introduce evidence of other crimes pursuant to La. C.E. art. 404(B)(1), in view of the Court’s recent opinion in State v. Joseph Taylor, 2016-1124, 2016-1183 (La. 12/1/16), 217 So.3d 283, 2016, 2016 WL 7030750.


text:
    Sheryl S. FUSILIER v. LAKE CHARLES MEMORIAL HOSPITAL
    NO. 2016-CC-1359
    Supreme Court of Louisiana.
    February 3, 2017
   Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court, Div. B, No. 2015-4007; to the Court of Appeal, Third Circuit, No. CW 16-00290

| denied. See Billeaudeau v. Opelousas General Hospital, 16-0846 (La. 10/19/16), — So.3d-.

GUIDRY, J., would grant.

CLARK, J., would grant.


text:
    Clifford LEDET, Both Indiv. and as Co-Tutor on Behalf of the Minor Child Lazarius Ledet v. PROGRESSIVE CASUALTY INS. CO., et al.
    NO. 2016-CC-2005
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 00125372; to the Court of Appeal, Third Circuit, No. CW 16-00610;

1 t Denied.


text:
    Emerson and Colette COLEMAN, Individually and on Behalf of the Minor Nakhia Coleman v. LOWERY CARNIVAL COMPANY, Crabtree Amusements, Inc. T.H.E. Insurance Company and The State Fair of Louisiana
    2016-CC-2251
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 535,190-B; to the Court of Appeal, Second Circuit, No. 51,300-CW

| denied.


text:
    Timothy BERNARD, Sr., et al. v. LAFAYETTE CITY POLICE DEPARTMENT, et al.
    NO. 2016-C-2253
    Supreme Court of Louisiana.
    February 3, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, No. C-20150951; to the Court of Appeal, Third Circuit, No. 16-361 C/W 16-362;

| denied.