Opinion
2012 KA 2126
2013-09-13
STATE OF LOUISIANA v. JOHN PEARSON BROOKS, JR.
Gwendolyn K. Brown Baton Rouge, Louisiana Attorney for Defendant/Appellant, John Pearson Brooks, Jr. Walter P. Reed District Attorney Lewis V. Murray, III Assistant District Attorney Franklinton, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge, Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court
In and for the Parish of Washington
State of Louisiana
Trial Court No. 11-CR8-114150
The Honorable William J. Crain, Judge Presiding
Gwendolyn K. Brown
Baton Rouge, Louisiana
Attorney for Defendant/Appellant,
John Pearson Brooks, Jr.
Walter P. Reed
District Attorney
Lewis V. Murray, III
Assistant District Attorney
Franklinton, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
Kathryn Landry
Special Appeals Counsel
Baton Rouge, Louisiana
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
DRAKE, J.
The defendant, John Pearson Brooks, Jr., was charged by bill of information with armed robbery (count one) and the use of a firearm in the commission of the armed robbery (count two), in violation of La. R.S. 14:64 and La. R.S. 14:64.3 (providing an additional penalty for the commission of the offense with a firearm). The court ordered a sanity commission. The trial court denied the defendant's motion to quash and found him competent to proceed to trial. The defendant withdrew his former not guilty plea and pled guilty as charged pursuant to State v. Crosby, 338 So.2d 584 (La. 1976), reserving the right to appeal the trial court's ruling on his motion to quash. The defendant was sentenced to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one, and to a consecutive term of five years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two. The defendant now appeals, assigning error to the trial court's denial of his motion to quash the bill of information and to the trial court's ruling on that motion prior to finding the defendant was competent to proceed. For the following reasons, we affirm the convictions and sentences.
Two co-defendants listed in the bill of information, John Phillips Brooks and Amber Lee Butler also pled guilty (the record is incomplete as to a third codefendant, Brian O'Neal Jenkins). Unrelated to this appeal, the defendant also pled guilty to offenses charged separately in two additional bills of information (simple burglary and conspiracy to commit possession or introduction of contraband into a penal institution).
STATEMENT OF FACTS
As the defendant pled guilty, the facts in this case were not developed. At the Boykin hearing, the State, the defendant, and the co-defendants stipulated to the existence of a factual basis and noted that discovery had been filed. According to the bill of information, on November 24, 2010, with the use of a firearm, the defendant and co-defendants committed armed robbery by intentionally taking property of value that was on the person of or within the immediate control of Bernaldo Santos and Gabriel Alonzo.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant notes that, in his motion to quash, he argued that the weapons used during the commission of the offense were not firearms as contemplated by La. R.S. 14:64.3. The defendant contends that the trial court erred in denying the motion on this basis. Relying on the definitions provided in La. R.S. 14:37.4(B), La. R.S. 40:1781(3) and La. Code Crim. P. art. 893.3(1), the defendant specifically argues that a BB gun would not be designated as a firearm because it does not fire pellets by use of a gunpowder explosion and instead uses air or gas propulsion.
The motion to quash is essentially a mechanism by which to raise pre-trial pleas or defenses, i.e., those matters which do not go to the merits of the charge. See La. Code Crim. P. arts. 531-34; State v. Beauchamp, 510 So.2d 22, 25 (La. App. 1st Cir.), writ denied, 512 So.2d 1176 (La. 1987). The general grounds upon which a motion to quash may be based are set forth in La. Code Crim. P. art. 532. These grounds, which are illustrative rather than exclusive, include the fact that the indictment fails to charge an offense that is punishable under a valid statute. See La. Code Crim. P. art. 532(1). When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court's discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a trial court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501, 504.
In the defendant's motion to quash and at the hearing, he argued that there is no support for the State's claim that a firearm was used in the commission of the offense. He further stated that the perpetrators claimed, during interviews after their arrests, that they used BB guns, which do not fire pellets by the use of a gunpowder explosion, and that a firearm is an instrument that discharges a bullet by the explosion of gunpowder. The State noted at the hearing that the trial court previously heard and denied the same argument on the motion to quash raised by co-defendant Butler. The State conceded that the defendants made statements indicating that, in the commission of the offense, they used a BB or pellet gun that looks like a "real" gun and that such a weapon was seized at the time of the arrests. The State also noted, however, the arrests occurred several months after the incident. The State further noted that the victims in this case indicated the perpetrators used a "handgun or handguns." In addition, the State argued that the statutes and code articles cited by the defendant were inapplicable. The trial court stated that its ruling would remain the same and noted that the legislature did not define firearm in the armed robbery enhancement statute. The trial court reasoned that the absence of a limiting definition shows the intent to cover a broader range of weapons, including a gun that discharges a bullet by use of air cartridges or gas cartridges.
The defendant's motion to quash cites the same statutes and code articles previously noted as cited by the defendant herein on appeal. The defendant's motion to quash was simultaneously heard with the motion to quash filed by co-defendant John Phillips Brooks.
At a hearing on a motion to quash, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. See La. Code Crim. P. art. 531, et seq.; State v. Rembert, 312 So.2d 282, 284 (La. 1975); State v. Patterson, 301 So.2d 604 (La. 1974). In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 150, 255 So.2d 720, 722 (1971); State v. Masino, 214 La. 744, 749, 38 So.2d 622, 623 (1949). The question, then, is whether the indictment charges a valid offense. If it does not, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense that is punishable under a valid statute. State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401, 411, cert. denied, Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).
In State v. Rembert, the Louisiana Supreme Court reversed a trial court's judgment granting a motion to quash and held that "[t]he question of whether an instrumentality, as used in a crime, is in fact a dangerous weapon is ordinarily a question for determination at the trial on the merits, not at a motion to quash." Rembert, 312 So.2d at 284. In Rembert, the defendant was charged with aggravated battery. During a preliminary hearing, the trial court held that there was no probable cause to charge the defendant and ordered him to be released from bail. Rembert, 312 So.2d at 283 n. 1. In addition, the trial court quashed the bill of information, finding that "the aerosol container of mace spray used in the battery was not a 'dangerous weapon' within the meaning of the statute defining the crime charged." Rembert, 312 So.2d at 283. In reversing the trial court and remanding the case for further proceedings, the supreme sourt noted that a factual defense to the merits was at issue and that the trial court erred in sustaining the motion to quash on the basis of the factual evidence. Rembert, 312 So.2d at 284.
Similarly, in this case the bill of information alleges that the defendants used a gun or firearm in the commission of the instant offense. The defendant moved to quash, alleging that a firearm was not used in the commission of the offense. Thus, the defendant attempted to use the motion to assert his factual innocence of the charge in count two, and thereby failed to assert any valid grounds for the motion. See La. Code Crim. P. arts. 532 and 534. Accordingly, the trial court did not err or abuse its discretion in denying the defendant's motion to quash. Assignment of error number one is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant contends that the trial court erred by proceeding with the hearing on the motion to quash prior to resolving the competency issue. The defendant notes that on December 13, 2011, the trial court appointed a sanity commission on his behalf and stayed the matter pending a hearing. On May 21, 2012, the trial court denied the motion to quash without first resolving the competency issue. The defendant acknowledges that the trial court may have eliminated the need for a nunc pro tunc hearing by subsequently, also on May 21, 2012, proceeding with a competency hearing wherein it accepted into evidence physician reports finding the defendant competent.
When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed. La. Code Crim. P. art. 642. Thus, the trial court was required to conduct the competency hearing and resolve the issue of possible mental incapacity prior to taking up the motion to quash. See Beauchamp, 510 So.2d at 29. In this case, the trial court's ruling on the motion to quash occurred in the same proceeding wherein the trial court considered the same grounds to quash the bill of information as to a co-defendant listed on the bill. Thus, the trial court was merely reiterating its prior ruling in denying the motion as to the defendant herein. Further, as noted by the defendant on appeal, after denying the motion to quash, the trial court immediately accepted the physician reports finding the defendant competent and resolved the capacity issue. At any rate, since the defendant did not contemporaneously object to the proceeding occurring immediately before the sanity hearing, he waived objection to such an error. Beauchamp, 510 So.2d at 29. We further find that the defendant has not shown any prejudice and that any error in this regard was harmless beyond a reasonable doubt. See La. Code Crim. P. art. 921; State v. Charles, 450 So.2d 1287, 1291-92 (La. 1984); State v. Davis, 94-2332 (La. App. 1st Cir. 12/15/95), 666 So.2d 400, 402-03, writ denied, 96-127 (La. 4/19/96), 671 So.2d 925. Accordingly, we find no merit in the second assignment of error.
The parties stipulated that the doctors would testify according to their written reports.
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CONVICTIONS AND SENTENCES AFFIRMED.