State of Louisiana v. Troy Edward Delozier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KH 18-177

STATE OF LOUISIANA

VERSUS

TROY EDWARD DELOZIER

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SUPERVISORY WRIT FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 313,407
HONORABLE MARY L. DOGGETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.

WRIT GRANTED AND MADE PEREMPTORY, IN PART;
WRIT DENIED, IN PART.

Phillip Terrell, Jr.
District Attorney
Ninth Judicial District Court
P. O. Box 7358
Alexandria, LA 71306-0358
(318) 473-6650
COUNSEL FOR PLAINTIFF/RESPONDENT:
State of Louisiana

Troy Edward Delozier
Louisiana State Penitentiary
17544 Tunica Trace
Angola, LA 70712

SAUNDERS, Judge.

Troy Delozier’s convictions and sentences were affirmed on appeal. State v.

Delozier, 14-493 (La.App. 3 Cir. 11/12/14), 151 So.3d 173, writ denied as untimely

filed, 14-2649 (La. 10/23/15), 177 So.3d 708, reconsideration granted, timely filed,

denied on merits, 14-2649 (La. 4/8/16), 191 So.3d 578.

Relator filed an untitled pleading with the trial court, signed on September 18,

2017, requesting the production of documents. The untitled pleading does not

contain a file date stamp. The pleading requested the following documents and that

the trial court issue a mandamus to the clerk’s office, the court reporter, and the

District Attorney’s Office, as follows:

1. The trial court’s contemporaneous [transcribed] records required by

law of:

(A) Grand jury proceedings of indictment.

(B) All pre trial motions and proceedings.

(C) Criminal court trial proceedings, including jury pool, jury strike

sheet, and D.A. and defense counsel attendance of the Grand Jury trial,

ALL.

2. Any bill of particulars.

3. District Court minute entries.

4. Copy of all D.A. files.

5. Copy of all bench recordings between judge, D.A. and counsel for

Troy Delozier.

On February 8, 2018, the trial court granted Relator’s request insofar as the

request for the district court minutes pursuant to State ex rel. Simmons v. State, 93-

275, 94-2630, 94-2879 (La. 12/16/94), 647 So.2d 1094. The trial court noted the

record showed there was no bill of particulars filed in this case. The trial court

ordered the court reporter to provide Relator with a cost estimate of production of

the requested transcripts, noting that if there were any “bench recordings,” the

recordings would be encompassed within the trial transcript. Citing United States v.

Proctor & Gamble Co, 356 U.S. 677, 78 S.Ct. 983 (1958), the trial court denied the

grand jury transcript and all the other documents related to the grand jury

proceedings based on the need for grand jury secrecy. As for the District Attorney’s

files, the trial court noted that Relator must seek production of the copies from the

District Attorney’s Office.

Relator filed with this court a pleading entitled “Petitioner Moves for Writ of

Mandamus to be Enforced for the Production of Documents, Pursuant to La.C.Cr.P.

Art. 843, and La.R.S. 44:31, and La.R.S. 44:35,” on March 2, 2018, wherein he

desires this court to grant his requests for the production of documents pertaining to

his convictions and sentences.

Relator attached to this writ application a copy of a letter to the Rapides Parish

Clerk’s Office requesting copies of the entire court record. The letter contains a

filing date stamp of December 20, 2016.

Relator also attaches to this writ application a copy of a second letter to the

Rapides Parish Clerk’s Office requesting a copy of the entire court record and a form

letter to the District Attorney’s Office requesting all the District Attorney’s files in

his case pursuant to the public records law. These requests were signed and dated

on July 6, 2017, by Relator.

Further included with this writ application is a “Motion to Temporarily Set

Aside Supplement Post-Conviction Filing and Order for Extension of Time to File

Supplemental Post-Conviction.” This motion was signed by Relator on July 6, 2017,

but does not contain a file date stamp.

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Also included with this writ application is a letter dated July 28, 2017, from

this court advising Relator that his request for the court records must be made to the

district court clerk’s office as they are the custodian of the records requested, a letter

dated August 23, 2017, to the Rapides Parish Clerk’s Office checking on the status

of the request to extend filing date for the filing of a supplemental post-conviction

application, and the above February 18, 2018 order from the trial court.

Relator does not challenge the trial court’s ruling on his request for the grand

jury transcripts and related materials. Accordingly, we will not address this issue.

Relator also contends in his writ application that he was granted an extension

of the time limitation to file a supplement to the post-conviction relief application

(“PCR”). He filed a “Motion to Temporarily Set Aside Supplemental Post-

Conviction Filing and Order for Extension of Time to File Supplemental Post-

Conviction” seeking an extension of time to supplement his PCR because he does

not have his trial transcript. Relator complains, however, that the trial court never

responded to the motion seeking an extension of time to supplement his PCR. In

response to an information request to the trial court, on January 24, 2019, the trial

court sent this court a copy of its docket listing, which does not reflect a pleading

titled as or similarly to “Motion to Temporarily Set Aside Supplemental Post-

Conviction Filing and Order for Extension of Time to File Supplemental Post-

Conviction”, nor does it reflect that anything was filed in July or August of 2017.

With Relator’s September 14, 2017 untitled pleading, Relator apparently

supplied the trial court with the above-referenced letters and requests for the records

from both the Rapides Parish Clerk’s Office and the District Attorney’s Office.

Relator requested that the trial court issue an order of mandamus to the clerk of court,

the court reporter, and to the District Attorney’s Office to supply him with copies of

the requested records or copies at a reduced rate.
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In State v. McKnight, 98-2258, p. 1 (La.App. 1 Cir. 12/3/98), 742 So.2d 894,

895-96, the first circuit discussed the procedure for filing a public records request or

seeking records under La.Code Crim.P. art. 822, as follows:

A “person” who wants to examine public records must make the request
to the custodian of the records. See La. R.S. 44:31 & 44:32. An
individual in custody after sentence following felony conviction who
has exhausted his appellate remedies is permitted access to public
records if the request is limited to grounds upon which the individual
could file for postconviction relief under La.Code Crim. P. art. 930.3.
La. R.S. 44:31.1. Section 31.1 does not prevent an inmate from seeking
records simply because the three-year time limitation for the filing of
postconviction relief has passed. State ex rel. Leonard v. State, 96-1889
(La.6/13/97), 695 So.2d 1325. See La.Code Crim. P. art. 930.8. If a
request for public records is denied by the custodian, before seeking
relief from this court, the person must first institute civil proceedings
for a writ of mandamus at the trial court level. See La. R.S. 44:35(A).
Should the person prevail, he should be prepared to pay the regular
service fees for copies of the documents. See State ex rel. Nash v. State,
604 So.2d 1054 (La.App. 1st Cir.1992). After the trial court issues a
ruling in the civil proceeding, the person may seek a civil appeal of the
trial court’s action, if he desires. See La. R.S. 44:35(C).

If the inmate is not proceeding under the Public Records Law and
instead desires to seek a free copy of a district attorney’s file, he should
file a motion for production of the documents in the criminal
proceeding, and he must demonstrate a particularized need. For the
inmate requesting documents in anticipation of a collateral attack on his
conviction, he cannot make a showing of particularized need absent a
properly filed application for postconviction relief which sets out
specific claims of constitutional errors requiring the requested
documentation for support. State ex rel. Bernard v. Criminal District
Court Section “J”, 94-2247 (La.4/28/95), 653 So.2d 1174. Under
La.Code Crim. P. art. 822(B) (added by 1997 La. Acts No. 1321, § 1),
“if at any time after sentence is imposed, the defendant seeks the
production of all or any portion of the district attorney’s file in a
criminal proceeding, the request for production shall be presented by
written motion, which shall be tried contradictorily with the district
attorney.” Article 822 does not apply to requests for records under the
Public Records Law, and it does not establish a separate procedure by
which an inmate can secure documents from the district attorney. The
purpose of this portion of article 822 is to prevent district courts from
ordering the production of portions of the district attorney’s file without
the district attorney first receiving notification of the motion. Under
article 822, a contradictory hearing would not be necessary if the court
merely denies the request.

Accordingly, for relator to seek review of the district attorney’s
refusal to provide documents, he must first institute civil proceedings
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at the trial court level for a writ of mandamus against the district
attorney.

In State v. Leopaul, 97-563 (La.App. 3 Cir. 6/17/97), 698 So.2d 9 (alteration

in original), wherein the relator sought court records free of charge, this court held:

In denying Relator’s application, we apply the principles set forth in
State ex rel. Bernard v. Criminal District Court, 94-2247 (La. 4/28/95);
653 So.2d 1174 and La.Code Crim.P. art. 914.1. A showing of a
particularized need to obtain documents free of charge requires a
defendant to show that a denial of his requested documents will deprive
him of an “adequate opportunity to present [his] claims fairly.” State
ex rel. Bernard v. Criminal District Court, 653 So.2d at 1175 and cases
cited therein. To meet this initial requirement, Relator must set forth the
claims he intends to raise in his writ of review and show the requested
documentation is necessary for a full and adequate review of the
assigned errors. Relator has failed to make this initial showing. For this
reason, we deny his application.

In the current case, in brief to this court, Relator asserts that La.Code Crim.P.

arts. 843 and 930.3 provide that he is entitled to a free copy of the trial transcript

plus the entire court record. He claims that he has repeatedly requested his free

copies but was continuously denied.

Louisiana Code of Criminal Procedure Article 843 requires the clerk or court

stenographer to record “all of the proceedings, including the examination of

prospective jurors, the testimony of witnesses, statements, rulings, orders, and

charges by the court, and objections, questions, statements, and arguments of

counsel,” in felony cases. Louisiana Code of Criminal Procedure Article 930.3

contains the grounds upon which post-conviction relief can be sought.1

1
Article 930.3 states:

If the petitioner is in custody after sentence for conviction for an offense, relief shall be
granted only on the following grounds:

(1) The conviction was obtained in violation of the constitution of the United States or the
state of Louisiana;

(2) The court exceeded its jurisdiction;

(3) The conviction or sentence subjected him to double jeopardy;

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We find that Articles 843 and 930.3 do not support Relator’s assertion that

he is entitled to a free copy of his trial transcript and the court record. As noted

above, the trial court ordered the court reporter to provide Relator with a cost

estimate of production of the requested transcripts. Relator does not state whether

he received the information regarding cost.

As noted above, this court in Leopaul, 698 So.2d at p. 9, stated a relator “must

set forth the claims he intends to raise in his writ of review and show the requested

documentation is necessary for a full and adequate review of the assigned errors.”

We find that Relator’s September 18, 2017 request for documents did not show a

particularized need for the trial transcript. Relator stated only that he needed a copy

of the trial transcript and court records to adequately present his post-conviction

claims; he did not specify what claims.

In brief to this court, Relator does not appear to request the District Attorney’s

file free of charge. In response to the September 18, 2017 request for documents,

Relator indicated that he supplied the trial court with a copy of the public records

request he sent to the District Attorney’s Office. He requested that the trial court

issue a mandamus to the District Attorney’s Office to supply him with a copy of the

file free of charge or at a reduced rate. In its February 2018 ruling, the trial court

stated only “that file(s) is not contained in the Clerk of Court’s office, but rather the

(4) The limitations on the institution of prosecution had expired;

(5) The statute creating the offense for which he was convicted and sentenced is
unconstitutional; or

(6) The conviction or sentence constitute the ex post facto application of law in violation
of the constitution of the United States or the state of Louisiana.

(7) The results of DNA testing performed pursuant to an application granted under Article
926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime
for which he was convicted.

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District Attorney’s office. Defendant should make such request to that particular

office.” As noted above in State v. McKnight, 742 So.2d at 895:

If a request for public records is denied by the custodian, before seeking
relief from this court, the person must first institute civil proceedings
for a writ of mandamus at the trial court level. See La. R.S. 44:35(A).
Should the person prevail, he should be prepared to pay the regular
service fees for copies of the documents. See State ex rel. Nash v. State,
604 So.2d 1054 (La.App. 1st Cir.1992). After the trial court issues a
ruling in the civil proceeding, the person may seek a civil appeal of the
trial court’s action, if he desires. See La. R.S. 44:35(C).

In Landis v. Moreau, 00-1157, pp. 5-6 (La. 2/21/01), 779 So.2d 691, 695

(alteration in original), the supreme court noted:

Furthermore, in Lemmon v. Connick, 590 So.2d 574 (La.1991),
this court held that post-conviction relief is not “criminal litigation”
within the meaning of the Public Records Act and ordered the district
attorney to “produce records in its possession and not otherwise
privileged.” Neither party to the instant litigation challenges the holding
of Lemmon. However, plaintiff originally requested “all documents and
other tangible items concerning the investigation, arrest, and
prosecution of Craig [and co-defendants] . . . , including, without
limitation, any and all records, documents, reports, analysis, notes,
memoranda, audio and visual tapes, photographs, and charts.”
Therefore, it is essential that we review the law surrounding the
provision of documents to criminal defendants since our holding in
Lemmon.

First, this court has limited the number of documents an inmate
can receive cost-free as of right. See State ex rel. Simmons v. State,
93-0275 (La.12/16/94), 647 So.2d 1094. Secondly, this court has
articulated a rule requiring that an inmate must have already filed an
application requiring documentation for its support before he may seek
cost-free copies. State ex rel. Bernard v. Criminal District Court, 94-
2247 (La.4/28/95), 653 So.2d 1174. This rule prevents the state from
having to “underwrite an inmate’s efforts to overturn his conviction and
sentence by providing him generally with documents ‘to comb the
record for error.’” Id. (citations omitted). Thirdly, we have held that
custodians of records must supply inmates with cost estimates for
reproduction at their cost of documents without regard to the rule of
Bernard. See, e.g., State ex rel. Gray v. State, 97-0447 (La.9/5/97), 699
So.2d 74; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. This
rule allows an inmate to “comb the record for errors,” provided he can
pay for the privilege. Additionally, this court has refused to allow wide
ranging discovery in post-conviction proceedings, while finding that
post-conviction procedures are “unique, hybrid, and have both civil and
criminal legal characteristics.” State ex rel. Tassin v. Whitley, 602 So.2d
721 (La.1992).
7

Regarding Relator’s request for a copy of the District Attorney’s file, the

record before this court indicates Relator provided the trial court with documentation

showing he had asked the District Attorney’s Office to advise him of the cost for the

public records including copying, postage, and handling fees. In his September 14,

2017 request, Relator asked the trial court to issue an order of mandamus to the

District Attorney’s Office to supply him with the requested information. Considering

the above jurisprudence, we direct the trial court to order the District Attorney’s

Office to provide Relator with an estimate of the costs of reproducing the public

records Relator has requested and to which Relator is entitled.

WRIT GRANTED AND MADE PEREMPTORY, IN PART; WRIT DENIED,
IN PART: The trial court is directed to order the District Attorney’s Office to
provide Relator with an estimate of the costs of reproducing the public records,
pursuant to La.R.S. 44:1, et seq., that Relator requested and to which Relator is
entitled.

Relator asserts the trial court failed to rule on his “Motion to Temporarily Set
Aside Supplemental Post-Conviction Filing and Order for Extension of Time to File
Supplemental Post-Conviction.” Information obtained from the Rapides Parish
Clerk of Court indicates Relator’s motion was not received by their office.
Accordingly, Relator’s application is denied with respect to the “Motion to
Temporarily Set Aside Supplemental Post-Conviction Filing and Order for
Extension of Time to File Supplemental Post-Conviction.” Relator may submit his
pleading to the trial court for filing and consideration.

Finally, as for Relator’s requests for free copies of the trial transcript and the
court records in his case, Relator did not show that a denial of his requested
documents would deprive him of an adequate opportunity to present his claims
fairly. Therefore, Relator failed to establish particularized need for free copies of
the trial transcript and court records. In this respect, Relator’s writ application is
denied.

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