Judge Max N. Tobias, Jr.

On 4 August 2015, the state, through the Grand Jury of St. Bernard Parish, returned an indictment against the defendant, Jarrod Gourgues ("Gourgues"), charging him with one count of perjury, a violation of La. R.S. 14:123; three counts of malfeasance in office, violations of La. R.S. 14:134; and one count of theft over $1,500.00, a violation of La. R.S.14:67 A.

Defense counsel filed a motion for a bill of particulars and an omnibus motion for discovery and motion for preservation of evidence. Further, defense counsel filed a motion for release of grand jury testimony and evidence on 2 October 2015, which was followed on 9 November 2015, by the defense with a motion to suppress grand jury testimony and quash counts one and four of the indictment. Defense counsel filed an unopposed motion to file grand jury testimony under seal on 12 November 2015, which the trial court granted on 16 November 2015. On 2 December 2015, the state filed its answer to the motions for discovery, inspection, and bill of particulars; its motion for discovery and other pretrial notices; and its memorandum in opposition to the defense motion to quash and motion to suppress. Defense counsel filed its memorandum in opposition to the state's reciprocal motion for discovery.

Arraignment was originally set for 18 November 2015, but was continued to 7 December 2015, by consent; the arraignment was finally held on 8 December 2015 whereat Gourgues entered pleas of not guilty to all five counts. The state subsequently filed its memorandum in opposition to the defense motion for bill of particulars on 14 December 2015. At a December 17, 2015 hearing, the trial court recused itself from the instant case to avoid the appearance of impropriety; the case was realloted to another judge. The defense counsel filed a supplemental and amended motion to suppress grand jury testimony and quash counts one and four of the state's indictment on 29 December 2015.

On 21 January 2016, defense counsel filed a motion and incorporated memorandum to quash the indictment due to the state's violations of grand jury secrecy pursuant to La. Const. art. V, § 34(A) and La. C.Cr.P. art. 434 A. Following a hearing, the trial court rendered a judgment on 25 May 2016, granting the motion to quash the indictment, and ordered that the motion to suppress grand jury testimony and quash counts one and four of the indictment were thus moot. This timely appeal by the state followed. La. C.Cr.P. art. 912 B(1).

I.

The facts relevant to the instant appeal are as follows. In 2015, the Louisiana Attorney General's Office began investigating St. Bernard Parish President, David Peralta. Soon thereafter, Gourgues was approached and interviewed concerning that investigation. Gourgues later provided testimony at a grand jury hearing related to the Peralta investigation. As a result of Gourgues' grand jury testimony, he became a subject of an investigation, and was subsequently indicted by the Grand Jury of St. Bernard Parish on one count of perjury, three counts of malfeasance in office, and one count of theft. He was arraigned and entered pleas of not guilty.

According to the record, the trial court issued a subpoena duces tecum to the St. Bernard Parish Government ("SBPG") on 17 June 2015, ordering that the custodian of records produce the following documents covering the period of 1 January 2012 through 1 June 2015:

(1) A copy of Jarrod Gourgues' personnel file, including but not limited to any cooperative endeavor agreements or memorandums of understanding between the St. Bernard Parish Sheriff's Office ("SBPSO") and SBPG as well as any certificates of completion for any governmental ethics courses and/or receipt of any policy manuals outlining employee code of conduct and prohibited transactions with that governmental entity, which was to include any official titles and job description/duties for same;

(2) copies of any time sheets, leave slips, or time clock logs including but not limited to actual or third party manual entries into any time keeping system for Gourgues;

(3) copies of Gourgues' fuel card logs for his assigned government vehicle including but not limited to any identifying numbers, all card transaction receipt dates, times and locations; and

(4) Gourgues' swipe card entry logs.

On 1 July 2015, WWL-TV Channel 4 investigative reporter, David Hammer ("Hammer"), sent by email a public records request pursuant to the Louisiana Public Records Act, requesting that the SBPSO "provide any and all records documenting hours worked, including start times and end times for each shift, for Jarrod Gourgues from October 1, 2014 through June 30, 2015." On 2 July 2015, the trial court issued a subpoena duces tecum to the SBPSO ordering that the custodian of records produce the following documents covering the period of 1 October 2014 through 5 June 2015: (1) copies of any check stubs or direct deposit records for hours worked as well as any check stubs or direct deposit records of pay from details or the L.A.C.E. (Agency Compensated Local Enforcement) program, and (2) CAD (Computer Assisted Dispatch) sheets for Gourgues for his unit number, badge number and/or employee number.

On 3 August 2015 (a day before the subject indictment), Hammer broadcasted a special "Eyewitness Investigation" report concerning Gourgues' alleged misconduct and the fact that such conduct was the subject of a grand jury investigation; the report was also available to the public on WWL-TV's website. In the report, Hammer stated that the SBPSO provided WWL-TV with two grand jury subpoenas that showed that "the Attorney General [was] reviewing time sheets and sign-in and sign-out times for Gourgues, covering the six-month period when Gourgues was both the parish's Road Department superintendent and a part-time sergeant in the sheriff's office."

As a result of the revelations concerning the grand jury subpoenas in Hammer's report, the defense counsel filed a motion to quash the indictment due to the state's violations of grand jury secrecy pursuant to La. Const. art. V, § 34(A) and La. C.Cr.P. art. 434 A.

II.

In its sole assignment of error, the state contends that the trial court abused its discretion in granting Gourgues' motion to quash the indictment.

This court has held that a district court's decision to grant a motion to quash is discretionary and is reviewed with great deference to the trial court. State v. Barahona, 15-0979, p. 2 (La.App. 4 Cir. 3/23/16), 192 So.3d 191, 193, citing State v. Thomas, 13-0816, pp. 6-7 (La.App. 4 Cir. 3/19/14), 138 So.3d 92, 97, writ denied, 14-0807 (La. 11/14/14), 152 So.3d 878. As such, a Louisiana appellate court "generally review[s] trial court rulings on motions to quash under an abuse-of-discretion standard." State v. Brown, 15-1319, p. 7 (La. App. 4 Cir. 4/20/16), 193 So.3d 267, 271, citing State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 and State v. Batiste, 05-1571 (La. 10/17/06), 939 So.2d 1245.

La. Const. Art. V, § 34(A) states:

Additionally, La. C.Cr.P. art. 434 A, governing the secrecy of grand jury proceedings, provides in pertinent part:

La. C.Cr.P. art. 434.1 sets forth the exceptions to grand jury secrecy:

The basis for the state's argument is that the trial court relied "entirely" upon State v. Gutweiler, 06-2596 (La.4/8/08), 979 So.2d 469, and incorrectly applied the Public Records Act, La. R.S. 44:1, et seq.

In his motion to quash, Gourgues argued, in part, that the SBPSO unlawfully provided WWL-TV with the two subpoenas duces tecum issued by the trial court in connection with the grand jury investigation of Gourgues. He further alleged that although the subpoenas were sought under the Public Records Act, the grand jury secrecy requirements outlined in La. C.Cr.P. art. 434 trump the Public Records Act.1 In support of his motion to quash, Gourgues relied upon Gutweiler, supra; State v. Revere, 232 La. 184, 94 So.2d 25 (1957); and Hewitt v. Webster, 118 So.2d 688 (La. App. 2d Cir. 1960).

The state concedes that the SBPSO disclosed the subpoenas duces tecum to Hammer as part of a public records request, yet argues that the indictment should not have been quashed.

First, the state argues that the trial court relied solely upon Gutweiler. However, this is incorrect because a review of the trial court's reasons for judgment discloses that the trial court relied upon Gutweiler and Hewitt in connection with an argument which is not before this court. (See n.1, supra). A close review of the trial court's reasons for judgment reveals that the trial court relied upon Hewitt and the provisions of Articles 434 and 434.1 in finding that the state violated the grand jury secrecy requirement. As such, the state's argument on this point is without merit.

Nonetheless, pertinent parts of the Supreme Court's reasoning in Gutweiler support the trial court's rationale for quashing the indictment. In Gutweiler, the state provided a transcript of a witness' grand jury testimony to its chief forensic arson expert witness, Dr. DeHaan, so that he would be able to offer an opinion to the grand jury as to the cause and origin of the underlying incident in that case (an alleged arson). Id., p. 3, 979 So.2d at 472-73. The assistant district attorney had not applied for or obtained the trial court's authorization to release the transcript to Dr. DeHaan. Id., p. 3, 979 So.2d at 473. Dr. DeHaan later testified before the grand jury, which resulted in the grand jury's return of an indictment against the defendant. Id. The trial court found that Dr. DeHaan's status as an expert witness did not qualify him as an individual with a right of access to confidential information concerning grand jury proceedings as outlined in Article 434. Id., p. 4, 979 So.2d at 473. For that reason, the trial court found that the prosecution's release of the transcript to Dr. DeHaan violated the constitutional and statutory mandate of grand jury secrecy and quashed the indictment. Id., p. 23, 979 So.2d at 484.

The state appealed, and the appellate courts affirmed the trial court's ruling, accepting the trial court's rationale. Id., p. 7, 979 So.2d at 475. The Supreme Court also affirmed the trial court and court of appeal's rulings, reasoning that "[t]he clear purpose of La. C.Cr.P. art. 434 is to mandate the secrecy of witness testimony and all other matters occurring at a convening of the grand jury." Id., p. 10, 979 So.2d at 477. The Court further reasoned:

Gutweiler, pp. 14, 18, 979 So.2d at 479, 481.

The trial court in the case at bar relied upon Revere as support for its ruling, as did the Supreme Court in Gutweiler. Gutweiler, p. 13, 979 So.2d at 478. In Revere, the Court was presented with a grand jury secrecy violation: the presence of an unauthorized person in the grand jury room. Revere, 232 La. at 187, 94 So.2d at 27. The trial court quashed the ensuing indictment as a result of the violation, and the Supreme Court upheld that ruling. Id., 232 La. at 208, 94 So.2d at 34. The Court reviewed the function of the grand jury and reasoned in pertinent part:

Revere, 232 La. at 194-95, 94 So.2d at 29-30.

While Gutweiler and Revere focused on the purpose of Article 434 and the function of the grand jury, in Hewitt v. Webster, the Second Circuit specifically addressed the issue of "whether the returns on the subpoenas issued for the appearance of witnesses before the grand jury are public records, or [were the subpoenas] such public records, as are within the contemplation of the Public Records Act and, therefore, subject to inspection." Hewitt, 118 So.2d at 689.

In Hewitt, the plaintiffs sought to have subpoena returns for witnesses to appear before a grand jury declared public records that would be subject to their inspection pursuant to the Public Records Act. On appeal, the court ruled that the subpoenas were not public records under the provisions of the Public Records Act, and were not subject to public inspection. Id., 118 So.2d at 688. As part of its analysis, the court recognized that "the definition of public records, as contained in the statute, is very broad and apparently all-inclusive, as is readily ascertainable by a mere reading of Section 1." Id., 118 So.2d at 689.

The Hewitt court stated:

Id., 118 So.2d at 690.

Section 1 of the Public Records Act (La. R.S. 44:1) states in pertinent part:

La. R.S. 44:1 A(2)(a).

Section 3 of the Public Records Act (La. R.S. 44:3) currently provides:

La. R.S. 44:3 A(1).

The Hewitt court held that the "Public Records Act is a general statute," whereas "special and particular statutes of sections of the Code of Criminal Procedure, pertaining to grand juries, are special laws as contradistinguished from general laws in that they pertain to and encompass a special and particular subject, namely, grand juries." Hewitt, 118 So.2d at 690. The court relied upon the general rule that "where there is apparent conflict between a general law and a special law on the same subject, the latter must prevail in the particular matter to which it applies." Id.

The court further reasoned:

Hewitt, 118 So.2d at 693-94.

We find a conflict between the provisions of the Public Records Act and the provisions of La. C.Cr.P. arts. 434 and 434.1. On one hand, La. R.S. 44:1 suggests that the SBPSO was required to produce the two subpoenas duces tecum to Hammer based upon his request. On the other hand, the provisions of Articles 434 and 434.1 require "persons having confidential access to information concerning grand jury proceedings" and/or "persons to whom the disclosure of information and documents provided to a grand jury is made" (the SBPSO) must "keep secret all other matters directly connected with a meeting of the grand jury," and "not engage in further disclosure of the material." Simply stated, because the SBPSO had confidential access to the subpoenas duces tecum, it was required to keep secret the subpoenas themselves as well as the information contained therein.

Notwithstanding the absence of bad faith, the SBPSO violated the provisions of Articles 434 and 434.1 by providing Hammer with the subpoenas. The state argues that subpoenas are not secret documents, but "simply documents issued by the criminal justice system ordering a party to provide documents to the grand jury." However, this argument is misplaced because the subpoenas formed the basis of Hammer's WWL-TV report, which revealed the existence of an ongoing grand jury investigation focused on Gourgues. If the SBPSO would not have provided the subpoenas to Hammer, such information would not have been revealed to the public.

Considering the function and purpose of the grand jury and history of the strong public policy in favor of maintaining the secrecy of grand jury proceedings as discussed in Gutweiler, we do not find that the subpoenas duces tecum qualified as meaningless paperwork and hence subject to disclosure. As the Hewitt court held, "where there is apparent conflict between a general law (the Public Records Act) and a special law (the Code of Criminal Procedure) on the same subject, the special law must prevail. Hewitt, 118 So.2d at 690.

For these reasons, we hold that the state violated grand jury secrecy when the SBPSO provided the subpoenas duces tecum to Hammer. We reject the state's argument that it should not be punished for the SBPSO's action because a sheriff's office is an agency of the state, similar to the offices of the attorney general, district attorneys, and police departments.2

We reach the same result even if we were to conclude that no conflict exists between the Public Records Act and the provisions of the Code of Criminal Procedure. That is, La. R.S. 44:3 exempts from disclosure documents such as the subpoenas duces tecum in this case, which were captioned "In Re Grand Jury Investigation." Based upon that caption alone, it is evident that the subpoenas contained information "pertaining to a criminal litigation, which could have been reasonably anticipated," and the SBPSO should not have released the documents to Hammer.

Finally, the state argues that even if it violated grand jury secrecy, in order for the indictment to have been quashed, Gourgues was required to show that the grand jury was actually prejudiced by the WWL-TV report. In support of this argument, the state cites an excerpt of the Supreme Court's reasoning in Gutweiler, wherein the Court recognized that "[w]e require demonstrable prejudice to quash an indictment on the ground that it was based on illegal evidence because to permit such a challenge would allow the accused in every case to `insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury' resulting in `interminable delay but add[ing] nothing to the assurance of a fair trial.'" Gutweiler, pp. 16-17, 979 So.2d at 480-81, citing State v. Walker, 567 So.2d 581, 584 (La. 1990). However, the state's reliance on this excerpt is misguided.

A full appreciation of the Court's reasoning in Gutweiler reveals that "demonstrable prejudice" is required to quash an indictment when the motion is based on illegal evidence, but when the motion to quash an indictment is based on a violation of grand jury secrecy, a defendant is not required to show prejudice:

Gutweiler, pp. 16-17, 979 So.2d at 480-81.

The trial court highlighted in its written reasons for judgment:

Because of the "firmly and well-established jurisprudence" concerning the secrecy of grand jury proceedings and all matters related to those proceedings; the holdings in Revere and Gutweiler stating that a defendant is not required to show actual prejudice in order to have an indictment quashed for the state's violation of grand jury secrecy; the fact that Hammer's report aired on the day before the grand jury returned an indictment against Gourgues; and that a trial court's decision to quash an indictment is a discretionary one, we do not find that the trial court abused that discretion in quashing the 4 August 2015 indictment against Gourgues.3

III.

Accordingly, the trial court's ruling granting Gourgues' motion to quash the indictment is affirmed.

AFFIRMED.