State of Louisiana Versus Djuan MacKey

STATE OF LOUISIANA NO. 22-K-257

VERSUS FIFTH CIRCUIT

DJUAN MACKEY COURT OF APPEAL

STATE OF LOUISIANA

June 10, 2022

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 VERCELL
FIFFIE, DIVISION "A", NUMBER 18,157

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

WRIT GRANTED, JUDGMENT REVERSED

Defendant-relator, Djuan Mackey, is charged with two counts of being a
principal to second-degree murder and one count of being a principal to attempted
second-degree murder. Trial began on June 1, 2022. Before jury selection,
defendant again requested copies of immunity agreements between the State and
Mr. Derrence Greenup.1 After the jury was selected, the State provided two
immunity agreements, one from the Orleans Parish District Attorney’s Office, and
the other from the St. John the Baptist Parish District Attorney’s Office. Before
opening statements, defendant orally moved for a mistrial alleging that the late
disclosure of the two immunity agreements substantially prejudiced him in
preparing his defense. The trial court granted defendant’s motion, ordered a
mistrial, and entered a stay in conjunction with the State’s filing of a supervisory
writ application in this Court to review the declaration of a mistrial. In a 2-1 ruling,
this Court denied the State’s writ application. See State v. Mackey, 22-246 (La.
App. 5 Cir. 6/6/22) (unpublished writ disposition).

Defendant then sought to be released from his bond obligations and from
incarceration. The trial court granted defendant’s immediate release on June 6,
2022. The trial court stated on the record:

… after hearing the arguments and getting a clarification
in regards to how the two statutes being 582 and 701

1
Defendant had previously requested the agreements from the State, and the trial court allegedly
ordered the State to turn over the agreements to defendant in April 2022. See State v. Mackey,
22-246 (unpublished writ disposition).

22-K-257

intertwine. And looking at the four factors by which a
speedy trial is to be evaluated, the length of the delay, the
reason for delay, the defendant’s assertion of his rights,
and the prejudice to the defendant, and looking at some
other aspects in which that case - - in that case in which
they say that the test that was put forward in Barker v.
Wingo and State v. Foat is not designed to supply simple
automatic answers to complex questions but instead to
provide a framework for a difficult and sensitive balancing
process. And looking at those factors together, looking at
the length of the delay also, we can’t forget that.

The original Motion for Speedy Trial was filed on July 7,
2021, and the fact that the mistrial was due to the Defense
receiving what they considered important discovery
material the day before trial, that’s less than 24 hours
before trial, …

Also, we have to look at whether or not there was just
cause for this particular issue. The agreements were signed
roughly six years ago. In fact, one of the agreements was
signed by this District Attorney’s Office, which means that
the release of the particular information was actually in
control of the State.

It could be argued that the State provided the information
as soon as it could, but that is not a valid reason for the
delay. We don’t have a valid reason here. So, this delay
must be counted against the State[.]

Therefore, the Court does not find just cause for holding
Mr. Mackey. And, of course, as [defense counsel] said, the
Court cannot look at any seriousness of the crime that was
committed. I think that that would be possibly a violation
of my duties. …

So, at this point looking at the reasons and the factors, the
Court is going to release Mr. Mackey.

The State filed a motion to stay the trial court’s ruling, which this Court
granted. See 22-KM-252 (unpublished Order). The State now seeks supervisory
review of the trial court’s immediate release of defendant, arguing that the trial
court incorrectly applied La. C.Cr.P. art. 701, which sets the time delays within
which the State must proceed to trial against the defendant, rather than La. C.Cr.P.
art. 582, which governs the time delay for proceeding to trial after a mistrial has
been declared.

La. C.Cr.P. art. 582 provides:

When a defendant obtains a new trial or there is a mistrial,
the state must commence the second trial within one year
from the date the new trial is granted, or the mistrial is

2

ordered, or within the period established by Article 578,
whichever is longer.

In opposition to the State’s writ application, defendant argues that the reason
for the mistrial was the State’s own delay in turning over alleged Brady material
and suggests that defendant should not be forced to remain incarcerated where the
State caused the delay. Defendant suggests that the State intentionally withheld the
immunity agreements in order to “goad” defendant into seeking a mistrial.
Defendant further argues that La. C.Cr.P. art. 729.5, which provides remedies
available to the trial court for a party’s failure to comply with discovery requests,
constitutes an additional basis for upholding the trial court’s order of immediate
release.

Upon review of the writ application and opposition thereto, we find the
State’s argument—that the trial court incorrectly applied La. C.Cr.P. art. 701 to
order defendant’s immediate release—has merit.

The remedy provided by Article 701 is pre-trial release. State v. Johnson,
622 So.2d 845, 848 (La. App. 4 Cir. 1993). Trial commenced in this case on June
1, 2022, and neither party disputes that trial had begun.2 Once trial commenced, a
claim under Article 701 became moot. Id.; cf. State v. Otkins-Victor, 15-340 (La.
App. 5 Cir. 5/26/16), 193 So.3d 479, 529 (holding that any rights under La. C.Cr.P.
art. 701 become moot after conviction because the remedy for such a violation is
defendant’s pre-trial release). Likewise, the trial court’s consideration of the
factors used to evaluate whether a defendant is entitled to release for violation of
his Sixth Amendment right to a speedy trial, enunciated in Barker v. Wingo, 407
U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), was no longer appropriate.3

Instead, Article 582 applies to these facts. Under Article 582, “when a
defendant obtains a new trial or there is a mistrial, the state must commence the
second trial within one year[.]” The language of Article 582 does not provide
additional remedies to defendant in the event the mistrial, and neither La. C.Cr.P.
art. 582 nor La. C.Cr.P. art. 729.5, cited by defendant, contains a provision
allowing for defendant’s immediate release. La. C.Cr.P. art. 729.5 permits the trial
court to “enter such other order, other than dismissal, as may be appropriate[,]” but
defendant has not cited a case, nor have we located any, in which the defendant has
been ordered immediately released for the State’s alleged failure to comply with
the rules of discovery.

2
A jury trial commences when the first prospective juror is called for examination. La. C.Cr.P.
art. 761; State v. Lovett, 359 So.2d 163, 166 (La. 1978).

3
In Barker v. Wingo, 407 U.S. at 530-31, the U.S. Supreme Court stated:

A balancing test necessarily compels courts to approach speedy trial cases on an ad
hoc basis. We can do little more than identify some of the factors which courts
should assess in determining whether a particular defendant has been deprived of
his right. Though some might express them in different ways, we identify four such
factors: Length of delay, the reason for the delay, the defendant’s assertion of his
right, and prejudice to the defendant. … [B]ecause of the imprecision of the right
to speedy trial, the length of delay that will provoke such an inquiry is necessarily
dependent upon the peculiar circumstances of the case.
3

Accordingly, we grant the State’s writ application and reverse the trial
court’s judgment permitting defendant’s immediate release. Defendant shall be
remanded to custody pending trial.

Gretna, Louisiana, this 10th day of June, 2022.

SMC
FHW
JGG

4

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. 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

(504) 376-1498 FAX
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 06/10/2022 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:

22-K-257
E-NOTIFIED
40th District Court (Clerk)
Honorable Vercell Fiffie (DISTRICT JUDGE)
Randy J. Dukes (Respondent) Honorable Bridget A. Dinvaut (Relator)
Justin B. LaCour (Relator)

MAILED