STATE v. WATSON (2021)

Stay denied. Writ application denied.

I agree with the denial of defendant's priority writ application. While the facts are not well developed at this pretrial stage of the proceedings, it appears that defendant's former counsel conveyed information and physical evidence to law enforcement officers in the process of arranging for defendant to turn himself in to the police. In the proceedings below, the district court determined that these statements were admissible. The court of appeal reversed, finding the attorney-client privilege applied to the statements, and remanded with instructions to conduct a hearing to determine if the privilege was waived.

Defendant alleges trial will commence in this matter today with jury selection and argues that the court of appeal erred in not staying those proceedings and that the district court must immediately hold an evidentiary hearing. In my view, it is clearly within the district court's inherent authority pursuant to La. C.Cr.P. art. 17 to commence voir dire prior to conducting the hearing, and thus the court of appeal did not err in denying defendant's motion to stay. However, I write separately to urge the district court to conduct the hearing before opening statements commence so that the parties are aware of whether this evidence will be admissible and can adjust their opening remarks accordingly. See La.C.Cr.P. art. 766 (“The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.”).

While the court of appeal ruling focused on waiver of attorney-client privilege, I also believe the district court ought to tread carefully with regard to hearsay. I note that whether this testimony constitutes hearsay is not before us at this time because defendant did not challenge that portion of the district court's ruling in the court of appeal or here. However, the question merits careful consideration. Following the hearing and once the record is made on the issue of admissibility, there should be a sufficient opportunity to seek appellate review.

Hughes, J., concurs. At this point, the State's motion in limne has not been granted. If the trial court persists in picking the jury before the evidentiary issue is settled, care should be taken to not mention the subject evidence during voir dire. Crichton, J., additionally concurs and assigns reasons.