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3/16/01

SUPREME COURT OF LOUISIANA

No. 00-KK-2472 STATE OF LOUISIANA v. PAUL STEPHENS

On Writ of Certiorari to the Fourth Circuit Court of Appeal

PER CURIAM: Following its dismissal in May, 2000, of a grand jury indictment charging respondent with capital aggravated rape, an action apparently prompted by the district court's refusal to continue the case on the morning of trial, the state sought return from the defense of a swatch of material cut from a stain allegedly left on a cushion at the time of the offense. The state had provided the sample to the defense for independent testing in the course of pre-trial discovery. Although no grand jury indictment was pending against relator, the state also sought to draw a sample of his blood for its own testing. The magistrate judge for Orleans Parish denied

the state's motion to recover its evidence but granted its motion to draw respondent's blood on grounds that probable cause existed to link him to the alleged rape of the victim. In response to cross applications filed by the state and defense, the Fourth Circuit affirmed the magistrate's denial of the state's motion to recover the cushion swatch but reversed the lower court's order directing respondent to provide a blood sample. With respect to the swatch, the court

of appeal ruled that "[u]ntil such time as the State shows

that the remaining cushion sample does not contain testable evidence, and thus the State must have access to the defendant's test results and/or the portions from which the defendant's test sample was drawn, the State has not made a sufficient showing that it should be able to remove the evidence from the defense's possession." State v. Stephens,

00-1306, p. 4 (La. App. 4th Cir. 7/19/00), 775 So.2d 465, 467. As to the blood sample, the Fourth Circuit did not entirely agree with respondent that the state's manipulation of its charging powers to avoid trial on May 18, 2000, despite the court's denial of its motion for a continuance, had violated his speedy trial rights and thereby foreclosed further prosecution. However, the court of appeal did agree, as the

basis for sanctioning the state by precluding it from drawing respondent's blood, that "by calling the present posture of the case 'investigatory' and not filing a new indictment, the state is attempting to buy additional time to conduct testing before the defense can file a motion to quash the prosecution on speedy trial grounds and/or the State is again forced to trial without DNA evidence." So.2d at 468. The court of appeal erred in both rulings. With regard Stephens, 00-1306 at 5, 775

to the state's motion for return of the cushion swatch, La.C.Cr.P. art. 718, like its federal counterpart, Fed. R. Crim. P. 16(a)(1)(C), permits independent scientific testing by the defense of tangible objects which the prosecution intends to use at trial. This statutory rule of discovery

advances important defense interests in securing the opportunity to have an expert of its choosing "examine a piece of critical evidence whose nature is subject to varying expert opinion." Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.

1975); see also, United States v. Nabors, 707 F.2d 1294, 1296 2

(11th Cir. 1983)("Clearly a defendant in a drug prosecution has a due process right to have an expert of his choosing perform an independent analysis on the seized substance."); ABA Standards Relating to Discovery and Procedure before Trial,

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Louisiana Law