State of Louisiana Versus Richard Fultz

STATE OF LOUISIANA NO. 22-K-242 VERSUS FIFTH CIRCUIT RICHARD FULTZ COURT OF APPEAL

STATE OF LOUISIANA

June 07, 2022

Susan Buchholz First Deputy Clerk

IN RE RICHARD FULTZ

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE ELLEN SHIRER KOVACH, DIVISION "K", NUMBER 19-4009

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

WRIT GRANTED FOR A LIMITED PURPOSE

Relator-defendant, Richard Fultz, was charged by bill of information with attempted unauthorized entry of an inhabited dwelling in violation of La. R.S. 14:27 and La. R.S. 14:62.3. In this writ application, relator seeks review of the trial court’s granting of the State’s “Notice of Intent to Introduce Evidence Under La. C.E. art. 404(B).” Specifically, the trial judge ruled that evidence of an alleged 2015 guilty plea to unauthorized entry of an inhabited dwelling is admissible under La. C.E. art. 404(B).1

A review of the transcript from the March 31, 2022 hearing reflects that the state failed to offer, file, and introduce into evidence any evidence concerning the alleged 2015 guilty plea to support its notice of intent. Exhibits and attachments not properly and officially offered and admitted into evidence cannot be considered, even if physically filed into the trial court record. State v. Whitley, 14- 737 (La. App. 5 Cir. 03/25/15); 169 So.3d 658, 660 (citing Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88). Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Id.

Accordingly, we grant this writ for the limited purpose of remanding this matter to the trial court for reopening of the hearing on the state’s notice of intent to allow the state to properly offer, file, and introduce into evidence the documentation concerning the alleged 2015 guilty plea in support of its notice of

1 The state also sought to introduce evidence concerning a prior 2004 conviction for simple burglary. The trial judge denied the State’s notice of intent as to that conviction, and the state has not sought review of that ruling.

22-K-242

intent. State v. Young, 99-880 (La. App. 5 Cir. 01/12/00); 751 So.2d 364, 368; see also State v. Durning, 16-737 (La. App. 5 Cir. 1/17/17); (unpublished writ disposition), and State v. Pigott, 18-598 (La. App. 5 Cir. 1/24/19) (unpublished writ disposition).

Gretna, Louisiana, this 7th day of June, 2022.

FHW SMC JGG

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 06/07/2022 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-242 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable Ellen Shirer Kovach (DISTRICT JUDGE) Thomas J. Butler (Respondent) Zachary Orjuela (Relator)

MAILED James Moffett (Relator) Attorney at Law 848 2nd Street Gretna, LA 70053

• • Complete Items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. x • Attach this card to the back of the mailpiece, B. Received by (Printed Nsme) c. Date of Deliv«y or on the front if space permits. 1. Article Addressed to: o. Is delivery adcln!ss different from item 1? D Yes If YES, enter deUvllfY address below; 0 No James Moffett I Attomeyiat Law M8 2nd~.eet "' 70053 Gret.ria.:lA 22-K-24'2 06-07-22 3. Service Type 0 Priority Mall Expreed

11111111111111111111111111111111111 lll II III Ill a Adult S1gn111ure 0 ~ Slgnat\Q Restricted Dlllv8f)I ....Celttlled ~ F. c Registered Mall"' Mall Rea1rlcted

9590 9401 0083 51b! 4398 93 0 Certified Mall Restricted Dellv8f)I a Co4lect on DlllverY ~pt for

.2-Adicle~ from $li\'ict WW a Collect on Deliv.y Restrict..:I DellvM)I 0 Slgnatu111 Confirmlltlon"' a Insured Mall 0 Signature Confirmation 7C1b 2070 0000 0954 b793 0 lntured Mail Restricted DellvM)I aver Reetricted Deliv.y

PS Form 3811, April 2015 PSN 7530-02-000-9053 Domestic Retum Receipt • J