State of Louisiana v. Eldridge Tezano, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1160

STATE OF LOUISIANA

VERSUS

ELDRIDGE TEZANO, JR.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 10K1066B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Marc T. Amy, Judges.

CONVICTIONS AFFIRMED, SENTENCES VACATED,
AND REMANDED FOR RESENTENCING.

Earl B. Taylor
Twenty Seventh Judicial District Court District Attorney
Jennifer Ardoin
Assistant District Attorney
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR DEFENDANT/APPELLANT:
Eldridge Tezano, Jr.

SAUNDERS, Judge.

On April 7, 2010, the St. Landry Parish District Attorney filed a bill of

information charging Defendant, Eldridge Tezano, Jr., with automobile insurance

fraud, a violation of La.R.S. 22:1925, and theft of funds greater than $1,000.00, a

violation of La.R.S. 14:67. On February 6, 2012, Defendant filed an Updated

Motion for Production of Exculpatory Evidence; the trial court signed order

language on the same date that ordered the State to produce such evidence. The

court signed identical order language on February 10. On the latter date, the trial

court also signed an order that the State “make a good faith effort” to obtain from

insurance companies‟ depositions or statements from related civil litigation that

were exculpatory in nature or prior inconsistent statements of potential State

witnesses.

On February 24, 2012, Defendant submitted an Order for a Motion for

Supplemental Discovery for Potential Exculpatory Evidence or “Brady Evidence”

in open court, again focusing on depositions produced pursuant to related civil

litigation. The trial court denied the motion on the same date. After the

supplemental discovery motion was disposed of, the jury began to hear evidence.

It found Defendant guilty as charged on both counts on the same date.

On May 10, 2012, the court sentenced Defendant to four years at hard labor

on each count with credit for time served, but suspended two (2) years and placed

the defendant on four (4) years of active supervised probation under all of the

conditions of Article 895 of the Louisiana Code of Criminal Procedure on each

count. The terms are concurrent.

Defendant now appeals his conviction, assigning two errors.

FACTS:

On June 26, 2008, Defendant and some other individuals staged a fake

automobile accident in St. Landry Parish. As a result of that offense, he and

several of the other individuals received payments from insurance companies.

Payments to Defendant exceeded $1,000.00.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find that an error patent concerning Defendant‟s sentences.

Defendant was sentenced to four years at hard labor for each offense, to run

concurrently. Two years of each sentence was suspended, and Defendant was

placed on supervised probation for a period of four years. The probationary

periods were imposed to run concurrently, with the court ordering various

conditions of probation. One condition of probation was that Defendant make

restitution to the victims, “which are primarily the insurance companies.” The

court went on to state:

[A]nd that total sum is $146,009.47, and that will be less any amounts
that any of the co-defendants pay as pursuant to their sentencing, and
that this amount will consist of the amount of proceeds that you
received in the amount of $32,056.30, plus one-fourth of the
administrative costs of $37,166[.00], less any subrogation
reimbursement credits; do you understand that?

....

Do you further understand that if any of the other defendants, for
whatever reason, do not pay their respective shares as is going to be
calculated, that you are bound to pay all that they don‟t pay, up to the
sum of $146,009.47; you understand that?

In this case, it appears that the court ordered Defendant to pay the amount of

proceeds he received ($32,056.30) plus one-fourth of the administrative costs

($37,166.00), less subrogation reimbursement credits. Further, Defendant was to

be responsible for any of the unpaid codefendants‟ shares, up to $146,009.47. The
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trial court erred in failing to set the amount of restitution, the amount due to each

victim, and to specify on which count or counts the restitution was imposed.

In State v. Fussell, 06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, reversed

on other grounds, 06-2595 (La. 1/16/08), 974 So.2d 1223, this court on error

patent review, found the trial court imposed indeterminate sentences by ordering

restitution without specifying the amount of restitution and without specifying on

which count or counts restitution was being imposed. In that case, the trial court

ordered restitution as follows:

I‟m gonna sentence you in bill number 69,110, to pay all
costs of this suit. I‟m directing the District Attorney to
secure from the Clerk of Court, the Clerk‟s costs, to
secure from the Sheriff the Sheriff‟s costs and to secure
all other statutory fees and costs and to prepare a written
judgment which will be filed in the mortgage records of
LaSalle Parish. I‟m also gonna order you to pay all
restitution involved with respect to –if there is any –I
order you to pay for any and all medical counseling and
health expenses incurred by the victim or her family, as a
consequence of your conviction for these offenses.
That‟s also gonna be – it‟s an indetermined amount, it‟s
just gonna be generally made in the judgment. I don‟t
know what it‟s gonna be. I don‟t even know if the
State‟s gonna make an application for that.

....

And I‟ve already ordered you to pay for any and all
medical counseling or other health expenses incurred by
the victim or her family as a consequence of your
commission of those particular offenses in this case.

Id. at 139.

This court vacated Fussell‟s sentences and remanded the case for

resentencing, noting that if restitution is imposed, the trial court must specify the

amount of restitution imposed as well as on which count or counts the restitution is

imposed.

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The supreme court in Fussell, 974 So.2d 1223, agreed with this court on the

restitution issue holding, in pertinent part:

We agree with the Third Circuit Court of Appeal that, due to a
nonspecific restitution order, the sentences imposed upon Defendant
by the trial court were indeterminate and, thus, invalid. See La[.]
C.Cr.P. art. 879 (stating that “[i]f a defendant who has been convicted
of an offense is sentenced to imprisonment, the court shall impose a
determinate sentence”); La.C.Cr.P. art. 883.2. Accordingly, this case
must now be remanded for resentencing on all convicted counts.

Id. at 1238 (footnote omitted)(first alteration ours).

In State v. Nguyen, 10-483, p. 3 (La.App. 3 Cir. 2/2/11), 55 So.3d 976, 979,

writ denied, 11-285 (La. 6/17/11), 63 So.3d 1038, this court found an order that the

defendant “pay any outstanding restitution, out of pocket expenses that this victim

has[]” was indeterminate and, thus, illegal, because the trial court did not specify

the amount of restitution owed. The sentences were vacated, and the case was

remanded for resentencing.

We find that the trial court erred in failing to set the specific amount of

restitution to be paid, rendering the sentences indeterminate. Additionally, the

restitution order does not specify the amount to be paid to each victim. Finally, the

court failed to specify on which count or counts the restitution was imposed.

Accordingly, we vacate the sentences and remand the case for resentencing. We

note that upon remand for resentencing, if the trial court imposes sentences which

include probation and payment of restitution as a condition thereof, the trial court

must specify the amount of restitution to be paid to each victim and specify the

manner in which the restitution is to be paid pursuant to La.Code Crim.P. art.

895.1. See State v. Landry, 09-260 (La.App. 3 Cir. 11/4/09), 21 So.3d 1148, writ

denied, 09-2577 (La. 5/21/10), 36 So.3d 229. Further, we note that pursuant to

State v. Stevens, 06-818, p. 3 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, 600 a

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payment plan “may be determined by the trial court or formulated by Probation

and Parole and approved by the trial court.”

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, Defendant claims that the trial court erred by

failing to order the State or the relevant insurance companies to produce

exculpatory materials. He specifically refers to depositions that various trial

witnesses gave during civil negotiations that stemmed from the fake car wreck.

We find no merit to this assignment of error.

A defendant‟s right to obtain exculpatory evidence in possession of the State

is a settled principle. However, as the trial court observed:

THE COURT: Mr. Iles, you just indicated to me that you
had the deposition of Mr. Tezano.

MR. ILES: Yes, sir.

THE COURT: That deposition did not contain the names of
the attorneys for the insurance company?

MR. ILES: Yes, sir, it does.

THE COURT: And so those individuals -- or you couldn‟t
have derived that from those individuals, or subpoenaed those
individuals, or . . . I‟m at a loss as to why. I mean, Mr. Granger
testified -- I didn‟t ask Ms. Watson -- but Mr. Granger testified he had
not been requested, either by discovery or otherwise, as to copies of
those, at least of Mr. Tezano or Mr. Fontenot‟s deposition. And so
I‟m kind of at a loss here, Mr. Iles. It appears to me that it was
available to you. And I know what the insurance companies testified
to, and yes, they -- I think that they have some responsibility in
knowing what‟s supposed to be in their files, or what‟s in their files,
or being transferred items in their files to the representatives here
today. However, I don‟t know -- well, I do know that it was obviously
available to you, and you obviously knew of these depositions, and in
at least one deposition you have, they had -- I don‟t know if all
defense counsel was [sic] in that deposition -- but you had knowledge
of at least defense counsel in that particular deposition. And you are
representing Mr. Tezano, I realize that, and you have obtained his
deposition, but you didn‟t obtain Mr. Phil Fontenot‟s deposition who
was also represented by Mr. Granger. And so I‟m kind of at a loss for
that.

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And in connection with that, I‟m going to find that it was
available to you and that you could have obtained that by discovery
from -- now, if they wouldn't have provided it to you, then we‟d have
another issue, but it wasn‟t even requested.

The state, obviously, in my opinion and in connection with the
rules provided -- the evidentiary rules provided -- I don‟t think that the
state is, if you will, liable, or should be sanctioned in any respect, due
to the fact that both of these insurance companies are not agents of the
state, or not agents of the district attorney‟s office and, therefore, they
are only obligated to produce what they know and what they have,
and obviously, they were provided -- the State was provided with no
knowledge. In fact, it was emphatically indicated to them that there
were no depositions taken. In fact, one of the insurance companies
indicated there was no suit filed. So I‟m going to deny your motions.

The supreme court has explained:

In accordance with the due process clause of the Fourteenth
Amendment to the United States Constitution, the State must disclose
evidence which is favorable to the defense when “the evidence is
material either to guilt or to punishment” or impeaches the testimony
of a witness where “the „reliability [or credibility] of a given witness
may well be determinative of guilt or innocence.‟” Brady [v.
Maryland], 373 U.S. [83,] 87, 83 S.Ct. [1194,] 1196-97; Giglio v.
United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104
(1972). “[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481
(1985); see also, State v. Rosiere, 488 So.2d 965, 970 (La.1986). “A
„reasonable probability‟ is a probability sufficient to undermine
confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. at
3383; see also Rosiere, 488 So.2d at 970-71. Contrarily, “[t]he mere
possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial, does not
establish „materiality‟ in the constitutional sense.” United States v.
Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342
(1976). “Thus, the prosecutor is not required to deliver his entire file
to defense counsel, but only to disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a fair
trial.” Bagley, 473 U.S. at 675, 105 S.Ct. at 3380. Significantly,
because the prosecution “alone can know what is undisclosed,” it is
“assigned the consequent responsibility to gauge the likely net effect
of all such [favorable] evidence [unknown to the defense] and make
disclosure when the point of „reasonable probability‟ is reached.”
Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 1567, 131
L.Ed.2d 490 (1995).

....

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Louisiana jurisprudence has also consistently held a defendant
is generally not entitled of right to the names, addresses, and
telephone numbers of witnesses in the absence of extraordinary
circumstances. State v. Weathersby, 09-2407, p. 2 (La.3/12/10), 29
So.3d 499, 501; State v. Jackson, 608 So.2d 949, 957 (La.1992); State
v. Loyd, 425 So.2d 710, 718-19 (La.1982); State v. Walters, 408 So.2d
1337, 1339 (La.1982). Disclosure may be warranted, however, with a
“determination that there exist peculiar and distinctive reasons why
fundamental fairness dictates discovery.” Weathersby, 09-2407 at pp.
2-3, 29 So.3d at 501; State v. Washington, 411 So.2d 451, 451
(La.1982). Still, even in extraordinary circumstances, witnesses
should only be “made available” to the defense if the trial court after
conducting an in camera interview finds they possess exculpatory
information. State v. Golden, 95-0288, p. 1 (La.2/17/95), 650 So.2d
237, 238.

Nevertheless, the State‟s constitutional obligation to disclose
exculpatory evidence does not relieve the defense of its obligation to
conduct its own investigation and prepare a defense for trial as the
State is not obligated under Brady or its progeny to furnish defendant
with information he already has or can obtain with reasonable
diligence. State v. Kenner, 05-1052, p. 2 (La.12/16/05), 917 So.2d
1081, 1081 (citing United States v. Newman, 849 F.2d 156, 161 (5th
Cir.1988)); see also, Michigan v. Harvey, 494 U.S. 344, 348, 110
S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990) (“The essence of
[defendant‟s] right [to assistance of counsel for his defense] . . . is the
opportunity for a defendant to consult with an attorney and to have
him investigate the case and prepare a defense for trial.”). It follows,
therefore, “ „[t]here is no Brady violation where a defendant knew or
should have known the essential facts permitting him to take
advantage of any exculpatory information, or where the evidence is
available from another source, because in such cases there is really
nothing for the government to disclose.‟ ” State v. Hobley, 98-2460,
p. 25 n. 10 (La.12/15/99), 752 So.2d 771, 786 (quoting Coe v. Bell,
161 F.3d 320, 344 (6th Cir.1998)), cert. denied, 531 U.S. 839, 121
S.Ct. 102, 148 L.Ed.2d 61 (2000). As the United States Fifth Circuit
Court of Appeal has noted:

Regardless of whether the request was specific or
general, and regardless of whether the evidence was
material or even exculpatory, when information is fully
available to a defendant at the time of trial and his only
reason for not obtaining and presenting the evidence to
the Court is his lack of reasonable diligence, the
defendant has no Brady claim.

The constitutional requirement of due process
mandates that the defendant have a right to a fair trial.
The prosecutor‟s duty not to suppress material
information favorable to defendant flows from his office
as representative of the Government‟s interest in and due
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process obligation to justice. Truth, justice, and the
American way do not, however, require the Government
to discover and develop the defendant‟s entire
defense. . . . In no way can information known and
available to the defendant be said to have been
suppressed by the Government.

United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980) (citations
omitted).

State v. Harper, 10-356, pp. 8-12 (La. 11/30/10), 53 So.3d 1263, 1269-71

(alterations in original).

After our review of the record, we find that the State is correct in observing

that Defendant clearly knew about the depositions before trial and also was able to

alert the jury to the various witnesses‟ prior inconsistent statements in said

depositions. Thus, there is no true “Brady issue” in this case, and this assignment

lacks merit.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, Defendant argues that the trial court erred

by allowing the State to introduce “other crimes evidence.” State witness, Andrus,

a co-conspirator, testified that after the vehicles were damaged, Defendant hit her

in the neck. She also stated that she suffered a disk injury. Defendant now claims

he should have received pretrial notice pursuant to State v. Prieur, 277 So.2d 126

(La.1973), and its codification in La.Code Evid. art. 1104.

As the State observes, Defendant failed to object at trial. Therefore the issue

has not been preserved for review pursuant to “the contemporaneous objection

rule” codified in La.Code Crim.P. art. 841. As the issue was not preserved, we will

not consider this assignment of error.

DECREE:

Defendant‟s convictions are affirmed. However, his sentences are vacated,

and the case is remanded for resentencing. We note that if the trial court imposes
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sentences which include probation and payment of restitution as a condition

thereof, it must specify the amount of restitution to be paid to each victim and

specify the manner in which the restitution is to be paid pursuant to La.Code

Crim.P. art. 895.1. Further, we note that a payment plan may be determined by the

trial court or formulated by Probation and Parole and approved by the trial court.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED FOR RESENTENCING.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules– Courts of Appeal, Rule 2–16.3.

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