State of Louisiana Versus Joshua Every

STATE OF LOUISIANA NO. 25-K-43

VERSUS FIFTH CIRCUIT

JOSHUA EVERY COURT OF APPEAL

STATE OF LOUISIANA

February 14, 2025

Linda Wiseman
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE LEE V. FAULKNER,
JR., DIVISION "P", NUMBER 16-4176

Panel composed of Judges Marc E. Johnson,
John J. Molaison, Jr., and Scott U. Schlegel

WRIT DENIED IN PART AND GRANTED IN PART

The State of Louisiana seeks review of the trial court’s January 16, 2025

ruling granting defendant’s Motion for Protective Order Regarding Scope of

Permissible Disclosure of Lawyer-Client Communications in Competency

Proceedings (DM-125). For reasons stated more fully below, we deny the State’s

writ application in part and grant it in part.

On November 17, 2016, a Jefferson Parish Grand Jury indicted defendant of

first degree murder. The State is seeking the death penalty. The trial court

previously found defendant incompetent to proceed to trial on August 21, 2019,

and Feburuary 8, 2023, and remanded him to the Eastern Louisiana Mental Health

System (ELMHS) in both instances. On November 22, 2024, the trial court

entered an order indicating that the Superintendent of ELMHS informed the court

that defendant was presently able to understand the proceedings againt him and to

assist in his defense. As a result, the matter has been set for a competency hearing

on February 19, 2025.

On December 21, 2024, defense counsel filed DM-125 seeking a protective

order that would allow defense counsel to testify at the competency hearing to

“express an opinion regarding, and characterize, the defendant’s ability to

understand the proceedings against him and to assist in his defense,” but also order

that defense counsel “may not, and may not be required to, disclose the content of

lawyer-client communications.” In requesting the protective order, defense

counsel recognized that in State v. O’Brien, 20-477 (La. 10/14/20), 302 So.3d

1104, 1105, the Louisiana Supreme court held that “[i]nformation concerning the

competency and mental status of a defendant is not a confidential communication

under [La. C.E.] art. 506(B) because it was not disclosed in furtherance of

obtaining legal services, . . . and does not relate to the client’s reason for seeking

representation.” Defense counsel further observed that in his concurring opinion,

Justice Crichton indicated that information concerning the competency and mental

status of a defendant may be privileged in some circumstances and suggested that

the issue be addressed on a question-by-question basis:

I agree with the majority that the motion to subpoena defendant’s
previous counsel should be granted under these circumstances in
which defendant, represented by new counsel, is seeking to have his
guilty plea vacated based upon competency issues. Unlike the
majority, I would not broadly conclude that any and all information
related to competency and mental status of a defendant is not subject
to the attorney-client privilege. I believe that in some – but not all –
circumstances, information regarding defendant’s competency and
mental capacity to proceed at trial may not be a confidential
communication pursuant to the attorney-client privilege, as it may not
relate to the reasons for which defendant sought representation. I thus
concur to emphasize my view that the extent to which the lawyer can
testify is a specific question-by-question exercise in which
defendant’s present counsel can contemporaneously object as
necessary. See La. C.E. art. 506 (providing that “the perceptions,
observations, and the like, of the mental, emotional, or physical
condition of the client in connection with [otherwise privileged
communications pursuant to the attorney-client privilege]” are subject
to the attorney-client privilege). (Internal citations omitted.)

Defense counsel argued that due to the limited caselaw addressing these

issues and the capital nature of the case, the trial court should enter a protective

order establishing “the information that may be and may not be disclosed by

defense counsel.” In addition, defense counsel asked the trial court to enter a

protective order to “[p]rohibit the State from using any disclosures by defense

counsel save for the purpose of determination of the defendant’s competency.”

The trial court heard oral argument on DM-125 on January 16, 2025. The

discussion focused solely on whether the trial court would allow defense counsel to

testify at the competency hearing. The State cited to State v. Lee, 00-2516 (La.

App. 4 Cir. 4/6/01), 787 So.2d 1020, 1030, and argued that defense counsel should

not be allowed to testify based on the proposition that counsel should avoid

appearing as both an advocate and a witness except under extraordinary

circumstances. The State conceded that counsel’s observations about his client

may be relevant. However, the State argued that hearsay is admissible at a

competency hearing, and defense counsel’s observations regarding defendant’s

competency should be elicited from the doctors who interviewed counsel at the

hearing.

In response, defense counsel argued that the advocate-witness rule was

inapposite because it applied to scenarios involving trials where counsel’s dual role

could cause confusion for the trier-of-fact. Defense counsel further argued that the

court should hear his testimony “in an unedited and unbiased way from [his]

perspective, not filtered through the experts brought on by the State.” Neither

party mentioned the specific terms of the protective order requested by defense

counsel. At the end of the hearing, the trial court stated that it was granting the

motion without any discussion of the terms of the protective order.

In its writ application, the State first contends that the trial court erred by

ruling that defense counsel can testify at the competency hearing based on the

same grounds it raised during oral argument. It further argued that limiting

information regarding defense counsel’s observations to testimony from the

doctors, would avoid the dilemma of counsel potentially disclosing attorney-client

privileged information during the hearing.

The trial court is afforded great discretion in evidentiary rulings and, absent

a clear abuse of that discretion, rulings on admissibility of evidence will not be

disturbed on appeal. State v. Frickey, 22-261 (La. App. 5 Cir. 3/1/23), 360 So.3d

19, 41, writ denied, 23-468 (La. 11/8/23), 373 So.3d 59. La. C.Cr. P. art. 647

discusses the evidence that may be presented at a competency hearing:

The issue of the defendant’s mental capacity to proceed shall be
determined by the court in a contradictory hearing. The report of the
sanity commission is admissible in evidence at the hearing, and
members of the sanity commission may be called as witnesses by the
court, the defense, or the district attorney. Regardless of who calls
them as witnesses, the members of the commission are subject to
cross-examination by the defense, by the district attorney, and by the
court. Other evidence pertaining to the defendant's mental capacity to
proceed may be introduced at the hearing by the defense and by the
district attorney.

The State concedes that no statutory provision prohibits defense counsel

from appearing as a witness at the competency hearing. And the Lee case cited by

the State did not involve a competency hearing. In addition, in State v. Qualls, 377

So.2d 293, 298 (La. 1979), the Louisiana Supreme Court explained that the final

determination of a defendant’s competency to proceed to trial is a legal issue for

the court, as opposed to a medical issue:

While a thorough mental examination is necessary, the final
determination of defendant's competency to stand trial must rest in a
judicial authority and is a legal, rather than a medical, issue. The trial
judge should not rely so heavily upon the medical testimony that he
commits the ultimate decision of competency to the physician.
Competency to stand trial should not turn solely upon whether the
defendant suffers from a mental disease or defect. The decision must
be made with specific reference to the nature of the charge, the

complexity of the case and the gravity of the decisions defendant must
face at trial. State v. Bennett, 345 So.2d 1129 (La. 1977).

See also State v. Hernandez, 98-448 (La. App. 5 Cir. 5/19/99), 735 So.2d

888, 893, writ denied, 99-1688 (La. 1999), 750 So.2d 194.

Considering the extensive history of the competency proceedings in this

matter and the trial court’s great discretion on evidentiary issues, we find that the

trial court did not abuse its discretion and deny the State’s writ application on the

issue of whether defense counsel may testify at the competency hearing. The trial

court clearly believes that the observations of defense counsel could be helpful to

consider before making its ruling and the State has already conceded that counsel’s

observations about his client may be relevant.

As to the issue of the protective order, the State argues that while the trial

court granted DM-125, (1) it did not expressly delineate the terms of any protective

order; and (2) a protective order is unnecessary because La. C.E. art. 506 always

addresses information protected by the attorney-client privilege, including during a

competency hearing.1 The State also argues that the request to limit the use of any

disclosures by defense counsel to the issue of competency is overbroad and

premature. In reply, defense counsel explains that he requested the protective

order due to Justice Crichton’s observance in O’Brien, supra, that in some

instances, information concerning the competency and mental status of a defendant

may involve privileged communications.

1
La. C.E. art. 506(B) provides in pertinent part:

A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a
confidential communication, whether oral, written, or otherwise, made for the purpose of
facilitating the rendition of professional legal services to the client, as well as the perceptions,
observations, and the like, of the mental, emotional, or physical condition of the client in
connection with such a communication, when the communication is:

(1) Between the client or a representative of the client and the client's lawyer or a representative of
the lawyer.
(2) Between the lawyer and a representative of the lawyer.
(3) By the client or his lawyer, or a representative of either, to a lawyer, or representative of a
lawyer, who represents another party concerning a matter of common interest.
(4) Between representatives of the client or between the client and a representative of the client.
(5) Among lawyers and their representatives representing the same client.
(6) Between representatives of the client's lawyer.

We agree with the State. The granting of the protective order as requested

by defense counsel was unnecessary and premature. Clearly, La. C.E. art. 506

applies to protect privileged communications and these issues are best handled on a

question-by-question basis. Defense counsel can contemporaneously object as

necessary. And the State should be given the opportunity to cross-examine defense

counsel based upon the testimony provided during the hearing without a

preliminary, overboard protective order that did not delineate any specific terms.

Accordingly, to the extent that the trial court granted a protective order, we grant

the State’s writ application and vacate the protective order.

Gretna, Louisiana, this 14th day of February, 2025.

SUS
MEJ
JJM

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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 02/14/2025 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:

25-K-43
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Lee V. Faulkner, Jr. (DISTRICT JUDGE)
Thomas J. Butler (Relator) Kerry P. Cuccia (Respondent)
Darren A. Allemand (Relator)

MAILED
Cody Brown (Respondent) Honorable Paul D. Connick, Jr. (Relator)
Attorney at Law District Attorney
3606 Canal Street Twenty-Fourth Judicial District
New Orleans, LA 70119 200 Derbigny Street
Gretna, LA 70053