STATE OF LOUISIANA NO. 22-K-532 VERSUS FIFTH CIRCUIT SHAWN BRISCOE AND LANCE MCINTYRE COURT OF APPEAL STATE OF LOUISIANA

November 18, 2022 Linda Wiseman First Deputy Clerk

IN RE STATE OF LOUISIANA APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DONALD L. FORET, DIVISION "H", NUMBER 16-5524

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and John J. Molaison, Jr.

WRIT GRANTED IN PART; DENIED IN PART; STAY LIFTED Relator, the State, seeks review of the trial court’s evidentiary ruling that a recorded co-defendant’s jailhouse call could not be introduced without redactions.

We agree with the State that recorded inmate phone calls have been considered non-testimonial in nature, as an exception to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This Court has previously held such evidence to be admissible. See, State v. Massey, 11-357 (La. App. 5 Cir. 3/27/12), 91 So.3d 453, writ denied, 12-991 (La.9/21/12), 98 So.3d 332; State v. Harris, 15-485 (La. App. 5 Cir. 4/13/16), 190 So.3d 466, 480-81, writ denied, 16- 0902 (La. 5/12/17), 220 So.3d 746. However, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues. La. C.E. art. 403. A trial court is vested with much discretion in determining whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect. State v. White, 09-0025 (La. App. 4 Cir. 9/16/09), 22 So.3d 197. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Francis, 98-811 (La. App. 5 Cir. 1/26/99), 727 So.2d 1235, 1237, writ denied, 99-0671 (La.6/25/99), 746 So.2d 597.

After a review of the complete recording, we do not find that the trial court erred or otherwise abused its discretion in its ruling that it will only allow a redacted version of the call to be played for the jury. From the record, it appears that further redactions to the version submitted for our review will need to be incorporated, removing any references to Defendant Briscoe’s attorney.

Accordingly, the State’s writ is denied in part.

22-K-532 We grant the writ, in part, upon finding that the probative value of portions of the recorded phone call, wherein Defendant McIntyre discusses his and Defendant Briscoe’s presence in the general vicinity of the crime and their purpose for being in the area, in this instance, is not outweighed by the danger of unfair prejudice, or confusion of the issues under La. C.E. 403. We reverse this portion of the trial court’s ruling and hold that these specific portions should be incorporated into the final version of the tape played for the jury.

We further lift the stay previously imposed in this matter.

Gretna, Louisiana, this 18th day of November, 2022.

JJM FHW RAC

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 11/18/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-K-532 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Donald L. Foret (DISTRICT JUDGE) Anna L. Friedberg (Respondent) Thomas J. Butler (Relator) Darren A. Allemand (Relator) MAILED Anthony J. Angelette, Jr. (Respondent) Honorable Paul D. Connick, Jr. (Relator) Attorney at Law District Attorney Whitney Avenue Twenty-Fourth Judicial District Suite 406 200 Derbigny Street Gretna, LA 70053 Gretna, LA 70053