STATE OF LOUISIANA v. IN RE STATE OF LOUISIANA

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Court of Appeal of Louisiana, Fourth Circuit.

STATE OF LOUISIANA v. TIRONE LOCURE, ET AL. IN RE: STATE OF LOUISIANA

NO. 2016-K-0246

Decided: March 17, 2016

The Relator, the State of Louisiana, seeks review of the district court's January 15, 2016, ruling granting the defendants' motions to sever. The Relator's writ is denied. The Relator's motion to stay is denied as moot.

New Orleans, Louisiana this 17th day of March, 2016.

JUDGE ROLAND L. BELSOME

JUDGE JOY COSSICH LOBRANO

I respectfully dissent and would grant the State's writ application. La.C.Cr.P. art. 704 provides that jointly indicted defendants shall be tried jointly unless the state elects to try them separately, or the court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance. Whether justice requires a severance must be determined by the facts of each case. State v. Prudholm, 446 So.2d 729, 741 (La. 1984). A defendant is not entitled to a severance as a matter of right; the decision to sever is one resting within the sound discretion of the trial court. Id.

A severance is necessary if the defenses of the co-defendants are mutually antagonistic to the extent that one co-defendant attempts to blame the other, causing each defendant to defend against both his co-defendant and the state. Id. The defendant bears the burden of proof in such a motion. Mere unsupported allegation that defenses will be antagonistic is not sufficient to require a severance. Id. Furthermore, the fact that each defendant has pointed a finger at the other does not make defenses automatically antagonistic. Prejudice must be shown if defendants are to receive separate trials. State v. Williams, 416 So.2d 914, 916 (La. 1982).

According to the police report in this matter, on December 10, 2015, defendants, Hughes, Williams and Locure, were arrested after the silver Nissan Maxima in which they were riding (with Lucore as the driver) ran a red light, failed to stop for law enforcement and collided with a New Orleans Fire Department fire truck. The defendants then abandoned a firearm in the street and proceeded to strike three more vehicles as they fled from police. All three defendants attempted to flee from law enforcement and the vehicle was subsequently found to contain marijuana, paraphernalia, and stolen firearms.

Two of the defendants, Lucore and Williams, moved to sever their trials from their codefendants without presenting any evidence at the hearing on the motion to sever. “A mere allegation by a defendant that he will attempt to cast blame on his codefendant does not suffice. The judge must be satisfied by convincing evidence that justice requires a severance.” State v. Bradford, 367 So.2d 745, 747 (La. 1979). Neither defendant represented that he intended to testify against his codefendants nor did any defendant establish how he would be prejudiced by a joint trial.

The allegation of antagonistic defenses in this case thus far is wholly unsubstantiated. An underlying policy consideration implicit in the mandate of La. C.Cr.P. art. 704 that jointly indicted defendants shall be jointly tried is the need to present the whole case at one time where, as here, several defendants are involved in the same transaction. The State's decision to try these defendants together is supported by the general principle that the State decides when, how, and whom to prosecute and should therefore be permitted to join offenders under appropriate circumstances. Bradford, 367 So.2d at 747. Without a convincing showing of prejudice, I would find that the district court abused its discretion when it severed the defendants and ordered three separate trials.

JUDGE ROSEMARY LEDET