State of Louisiana Versus Kevin Hollinger Corrie Wallace

STATE OF LOUISIANA NO. 21-K-23

VERSUS FIFTH CIRCUIT

KEVIN HOLLINGER COURT OF APPEAL

CORRIE WALLACE STATE OF LOUISIANA

March 16, 2021

Susan Buchholz
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
MADELINE JASMINE, DIVISION "A", NUMBER 20,125

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Robert A. Chaisson

WRIT GRANTED; JUDGMENTS VACATED

Relator, the State of Louisiana, seeks review of the district court’s

judgments that prohibited the State from consumptively testing its evidence

unless a defense expert is permitted to observe and photographically record

the DNA testing process.

Defendant, Corrie Wallace, was charged by grand jury indictment with

second degree murder, second degree kidnapping, and obstruction of justice. In

the same indictment, defendant, Kevin Hollinger, was charged as a principal to

second degree murder and second degree kidnapping, as well as obstruction of

justice.

In connection with this case, the State filed a “Notice of Intention to

Consume Evidence Through Testing,” indicating that certain contact swabs

collected into evidence could potentially be consumed through testing. In

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response, each defendant filed a “Motion to Allow Defense Expert to Observe

Testing of Physical Evidence.” On May 29, 2020, in an ex parte order, the district

court granted defendants’ motions and prohibited the State from conducting any

consumptive testing of the physical evidence “unless and until the defense has

adequate time to retain an independent expert to observe such testing.” The district

court further ordered that “the expert retained by the defense be permitted to attend

and observe testing including DNA analysis by the state.” The State thereafter

filed a writ application in this Court seeking review of the district court’s rulings.

On June 26, 2020, this Court granted the State’s writ application for the

limited purpose of vacating the district court’s May 29, 2020 orders and remanding

the matter with instructions to the district court to hold a contradictory hearing on

defendants’ motions. In so ruling, this Court noted, “Because the issue of allowing

defense experts to observe forensic testing by the State is res novo, and there is

nothing in the discovery articles that addresses respondents’ particular pre-trial

motions or otherwise permits their request as a matter of right, we find that judicial

fairness dictates that a contradictory hearing and an opportunity to present

evidence be held prior to ruling on the motions.” See State v. Wallace and

Hollinger, 20-184 (La. App. 5 Cir. 6/26/20). See also State v. Hollinger and

Wallace, 20-196 (La. App. 5 Cir. 6/26/20) (unpublished writ dispositions).

Pursuant to this Court’s remand, the district court conducted hearings on

October 6 and November 12, 2020. After considering the testimony presented and

the arguments of counsel, the district court, on December 29, 2020, granted the

defendants’ motions and ordered that “the defense’s expert be permitted to

physically attend and photographically record the DNA testing process.” It further

ordered that “no evidence be consumed for DNA analysis without court order and

until defense has had an opportunity to photographically record.” The State now

seeks review of these judgments.

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In its writ application, the State contends that the district court lacked the

authority to prohibit the State from consumptively testing its evidence unless a

defense expert is permitted to attend and photographically record the DNA testing

process. The State contends that the Louisiana Code of Criminal Procedure neither

requires nor authorizes such a protocol beyond the limits of the discovery articles;

that the defendants’ remedy is to conduct its own DNA testing pursuant to La.

C.Cr.P. art. 718, not to watch the State conduct its testing; and that the defendants’

concerns regarding the lab’s protocols and the possible mislabeling of samples and

other human error can be properly addressed through cross-examination.

In response, defendants assert that the district court did not abuse its

discretion in granting their motions. Defendants point out that the District

Attorney has not cited any law that the district judge erroneously applied or any

evidence that was erroneously assessed, and therefore, this Court should defer to

the district court’s determination. Defendants assert that since the State intends to

destroy and/or consume the evidence, they will not be able to independently test

the evidence, and therefore, in order to protect their rights, they should be afforded

the lesser right of observing the testing. Defendants further assert that providing

them with some of the liquid DNA extract for testing is insufficient to protect their

rights because “there is no way of knowing from analyzing the raw data or

analyzing the remaining liquid extract whether or not proper protocols were

followed” in the screening and extraction steps of the DNA testing process.

Defendants request that this Court, in the event it finds the district court erred in

allowing the defense expert to observe the DNA testing, fashion alternative relief

requiring that the first two stages of the testing are videotaped and photographed.

Having reviewed the State’s writ application and the exhibits attached

thereto, including the transcripts from the hearings, defendants’ opposition, the

amicus curiae brief, and the applicable law and jurisprudence, we find that the

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district court abused its discretion in allowing the defense’s expert to physically

attend and photographically record the DNA process and in prohibiting the State

from consumptively testing its evidence until the defense has had an opportunity to

photographically record. Our determination is limited to the particular

circumstances of this case and is based on the following considerations.1

First, we have found no requirement in Louisiana law or jurisprudence that

experts be present during DNA testing or that the DNA procedures be

photographed or videotaped. In fact, the testimony at the hearings reflected that

the crime lab policy does not allow for the presence of independent experts during

testing. Ms. Erica Sparacino, the DNA manager for the Louisiana State Police

Crime Lab, and Mr. Paul Berry, the DNA technical leader for the Louisiana State

Police Crime Lab and an expert in DNA analysis, testified that the lab’s policy

does not allow outside experts to observe testing and analysis due to concerns

regarding liability, security, potential for contamination, property damage, and

other case work having to be “shut down.” Mr. Berry also testified that if the court

ordered that the DNA could not be tested without an outside expert, then the lab

would refer the State to a private lab.

Second, at the end of the hearing, the State agreed not to consume the bulk

evidence and the second swab from the sexual assault kit. Further, there was

evidence at the hearing that defendants would have access to some liquid DNA

extract for testing. Mr. Berry specifically testified that when they extract DNA, in

a normal case, there are thirty-three microliters left over for DNA testing by the

defense, noting that they had sent out DNA extract for testing in the past. Ms.

Sparacino testified that if they had liquid left over, which they usually did, they

1
In State v. Dewey and McQuarter, 16-68 (La. App. 5 Cir. 3/2/16) (unpublished writ disposition), this Court found
no abuse of discretion in the district court’s denial of the State’s motion to rescind the district court’s order allowing
the presence of a defense expert at the State testing of the evidence. That case is clearly distinguishable as the
District Attorney specifically agreed to the order that allowed for the presence of a defense expert at the testing of
the evidence.
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could decide not to do any additional testing, and defense counsel would be able to

get a DNA profile.

Third, with regard to defendants’ concern over mislabeling and human error

in the first two steps of the DNA process, we note that the testimony at the

hearings set forth the safeguards and procedures the lab has in place to prevent

such problems. Further, defendants have the ability to challenge the testing

procedures by cross-examining the appropriate State’s witnesses on this matter.

Accordingly, we grant the State’s writ application and vacate the

district court’s judgments that prohibited the State from consumptively

testing its evidence unless a defense expert is permitted to observe and

photographically record the DNA testing process.

Gretna, Louisiana, this 16th day of March, 2021.

RAC
SMC
MEJ

5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
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

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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 03/16/2021 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:

21-K-23
E-NOTIFIED
40th District Court (Clerk)
Honorable Madeline Jasmine (DISTRICT JUDGE)
Honorable Vercell Fiffie (DISTRICT JUDGE)
Justin B. LaCour (Relator) Honorable Bridget A. Dinvaut (Relator)
Lisa M. Parker (Respondent)
Jarrett P. Ambeau (Respondent)
Fontella F. Baker (Respondent)
Randy J. Dukes (Respondent)

MAILED
Edward K. Alexander, Jr. (Respondent)
Attorney at Law
Post Office Drawer 3757
Lake Charles, LA 70602