State of Louisiana v. Tyron Davis

STATE OF LOUISIANA * NO. 2024-K-0597

VERSUS *
COURT OF APPEAL
TYRON DAVIS *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPLICATION FOR WRITS DIRECTED TO
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 555-243, SECTION “SECTION L”
Judge Angel Harris,
******
Judge Nakisha Ervin-Knott
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(Court composed of Judge Joy Cossich Lobrano, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)

Jason R. Williams
District Attorney
Brad Scott
Assistant District Attorney
ORLEANS PARISH
619 South White Street
New Orleans, LA 70119

COUNSEL FOR RELATOR, STATE OF LOUISIANA

Rachel I. Conner
Grace Bronson
3015 Magazine Street
New Orleans, LA 70115

COUNSEL FOR DEFENDANT/RESPONDENT, TYRON DAVIS

WRIT GRANTED
SEPTEMBER 20, 2024

The State of Louisiana (“the State”) seeks review of the trial court’s
NEK
JCL September 18, 2024 pretrial ruling that the RaceTrac surveillance video does not
RDJ
qualify as a business record, thus cannot be self-authenticated under La. C.E. art.

902(11). For the following reasons, we grant the State’s writ and reverse the trial

court’s ruling.

On August 19, 2022, the State charged Tyron Davis (“Defendant”) with

second degree murder and obstruction of justice; trial was set for September 23,

2024. Ten days prior to trial, the State emailed notice to defense counsel of its intent

to offer surveillance video from the RaceTrac gas station and self-authenticate this

video under La. C.E. art. 902(11). Defendant objected to the self-authentication of

the surveillance video. On September 18, 2024, the trial court ruled from the bench

that the surveillance video was not a business record, and therefore was not self-

authenticating. The next day, the State filed a notice of intent to seek a writ of review

on the September 18, 2024 trial court ruling. The trial court signed the order on the

same day. This writ review follows.

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Louisiana Code of Evidence Article 902(11)1 allows evidence to be self-

authenticated if it meets the requirements of La. C.E. art. 803(6)2, which excludes

from the hearsay rule records of regularly conducted business activity. The present

issue before this Court is whether the RaceTrac surveillance video is a “record of a

regularly conducted business activity”, thus permitting self-authentication. Although

there is no Louisiana caselaw that addresses whether a business’ surveillance video

1 Louisiana Code of Evidence Article 902(11) states:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not
required with respect to the following:

…

(11) Certified records of a regularly conducted business activity in criminal cases.
In criminal cases, the original or a copy of a record of a regularly conducted
business activity that meets the requirements of Article 803(6)[1], as shown by a
certification of the custodian or another qualified person, and that complies with
Louisiana law, including R.S. 13:3733 through 3733.2, or a rule prescribed by the
Louisiana Supreme Court. Before the trial or hearing, the proponent shall give an
adverse party reasonable written notice of the intent to offer the record and shall
make the record and certification available for inspection so that the party has a fair
opportunity to challenge it.
2 Louisiana Code of Evidence Article 803(6) states:

The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:

…

(6) Records of regularly conducted business activity. A memorandum, report,
record, or data compilation, in any form, including but not limited to that which is
stored by the use of an optical disk imaging system, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted
by, a person with knowledge, if made and kept in the course of a regularly
conducted business activity, and if it was the regular practice of that business
activity to make and to keep the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of preparation indicate lack
of trustworthiness. This exception is inapplicable unless the recorded information
was furnished to the business either by a person who was routinely acting for the
business in reporting the information or in circumstances under which the statement
would not be excluded by the hearsay rule. The term "business" as used in this
Paragraph includes business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit. Public records and
reports which are specifically excluded from the public records exception by Article
803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

2

is considered a business record, the Eleventh Circuit has recognized the surveillance

videos of a business – connected to that business – are in fact business records. See

United States v. Clotaire, 963 F.3d 1288, 1294 (11th Cir. 2020) (“[N]o one doubts

that the surveillance videos themselves were self-authenticating business records

under Rule 803(6).”).

Further, in citing to Fed.R.Evid. 803(6), which mirrors La. C.E. art. 803(6),

the Ninth Circuit has determined:

For a memorandum or record to be admissible as a business record, it
must be (1) made by a regularly conducted business activity, (2) kept
in the “regular course” of that business, (3) “the regular practice of that
business to make the memorandum,” (4) and made by a person with
knowledge or from information transmitted by a person with
knowledge.

Clark v. City of Los Angeles, 650 F.2d 1033, 1036-7 (9th Cir. 1981).

In the matter herein, the State desires to offer into evidence the RaceTrac

surveillance video and have it self-authenticated under La. C.E. art. 902(11). The

State has provided a business record certification signed by the custodian of records

for RaceTrac, which provides, in pertinent part:

I am a custodian of records maintained by our business or am a person
otherwise qualified to make these representations contained herein as
my job responsibilities include the gathering of records pursuant to
subpoena or other requests…

The attached record(s) are either originals or duplicate copies described
as: video surveillance from RT2383 (3500 General DeGaulle)

The attached record(s) were made at or near the time of the occurrence
of the matters set forth by, or from information transmitted by, a person
having knowledge of those matters.

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The attached records(s) were kept in the course of the regularly
conducted activity of our business.

I am aware that falsely making this Certification or Declaration would
subject me to criminal penalty under the laws of the foreign or domestic
location in which this certification or declaration was signed.

This Court agrees that a business’ surveillance video is a business record of

that particular business. Consequently, the RaceTrac surveillance video is a business

record that can be self-authenticated, and the State has provided a notarized

certification from RaceTrac, which properly self-authenticates the surveillance

video.

For these reasons, we find that the trial court erred in ruling that the RaceTrac

surveillance video does not qualify as a business record, and thus cannot be self-

authenticated under La. C.E. art. 902(11). Accordingly, this writ is granted, and the

trial court’s September 18, 2024 ruling is reversed.

WRIT GRANTED

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