Opinion
No. 2013–KA–0431.
06-25-2014
STATE of Louisiana v. Tynisa COBB.
Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant. Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant.
Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee.
(Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS ).
Opinion
PAUL A. BONIN, Judge.
The district attorney appeals the trial judge's sustaining Tynisha Cobb's motion to quash and dismissing the felony theft charge against her. Ms. Cobb's written motion to quash filed in the trial court argued that the four-year time from commission of offense to institution of prosecution against her had expired. See La. R.S. 14:67 B; La.C.Cr.P. arts. 532(7), 572 A(2).
Here, in support of her argument, she relies upon the arresting officer's affidavit in support of the warrant for her arrest in order to ascertain the date of the offense as December 28, 2007. But the investigating officer's affidavit was not admitted into evidence during the hearing, and thus its contents, even though physically placed in the record, cannot be considered by us. See State v. Jackson, 11–1280, p. 11 (La.App. 4 Cir. 8/22/12), 99 So.3d 1019, 1026. See also Denoux v. Vessel Management Services, Inc., 07–2143, p. 6 (La.5/21/08), 983 So.2d 84, 88 (“Evidence not properly and officially offered and introduced cannot be considered, even if physically placed in the record.”).
The bill of information itself, however, alleges that Tynisha Cobb committed a felony theft on February 10, 2011. The defendant did not seek a bill of particulars, the district attorney did not amend the bill of information, and the trial judge did not order any amendment. See La.C.Cr.P. arts. 487 and 488. And the bill was filed on January 25, 2012, which date constitutes the institution of the prosecution in his matter. See La.C.Cr.P. art. 382 A.
Under these circumstances, we necessarily accept the facts as set forth in the bill of information as true. See State v. Schmolke, 12–0406, pp. 2–4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298–299. And we review a ruling on the motion to quash under the de novo standard, under which standard we afford no deference to the trial judge's legal conclusion. Id., 12–0406, p. 4, 108 So.3d at 299. Thus, on its face, the bill of information charges a crime which was committed within the limitation period, and the trial judge incorrectly sustained Ms. Cobb's motion to quash.
DECREE
The trial judge's ruling which sustained Tynisha Cobb's motion to quash, dismissed the charges against her, and discharged her is reversed. The matter is remanded to the trial court for further proceedings.
Because we reverse the trial judge's ruling, we need not consider the district attorney's arguments on appeal that the trial judge erred because the four-year limitation period had been extended under La.C.Cr.P. art. 573(1) or interrupted under La. C.Cr.P. arts. 575(1) or 579(1).
REVERSED AND REMANDED
JENKINS, J., dissents with reasons.
JENKINS, J., dissents with reasons.
Finding that the majority's opinion directly conflicts with this Court's recent opinion in State v. Reyer, 13–0135 (La.App. 4 Cir. 11/20/13), 129 So.3d 752, I respectfully dissent.
Contrary to the majority's opinion, I believe that the defendant has no obligation to prove when she is alleged to have committed a crime, or to file a bill of particulars to prove the alleged date. Rather, the law is well-settled that the defendant need only raise prescription as an issue; once raised, it is the State that has the burden of proving that the prosecution was timely initiated. Reyer, 13–0135, pp. 8–11, 129 So.3d at 757–759 (internal citation omitted). Moreover, in Reyer, this Court specifically rejected an apparent attempt by the State to rely upon an “arbitrarily selected” date in its bill of information for the purpose of avoiding prescription. Id., 13–0135, p. 4, 129 So.3d at 755, fn. 5. Thus, where the State offers no evidence to show why the date set forth in the bill of information is valid, the date selected must, in the very least, coincide with the information already contained in the trial court's record.
I find it also significant that the State never disputed the defense's contention that its prosecution was initiated more than four years from the date of the alleged offense, in violation of La.C.Cr.P. art. 572(A)(2). The State instead argued that the prosecution was timely because the four-year prescriptive period had been interrupted, in effect, conceding to the December 28, 2007 date of offense stated in the defendant's motion to quash.
Under the circumstances, I cannot join in the majority's opinion. For the reasons more fully discussed below, I would affirm the trial court's ruling granting the defendant's motion to quash.
Reyer, 13–0135, 129 So.3d 752.
Just days after the supplemental briefing was requested, the Louisiana Supreme Court denied the State's writ application in Reyer, thus making Reyer a final published decision of the Fourth Circuit. See State v. Reyer, 13–2951 (La.8/25/14), 147 So.3d 697.
13–0135 (La.App. 4 Cir. 11/20/13); 129 So.3d 752, writ denied 13–2951 (La.8/25/14); 147 So.3d 697.
In Reyer, supra, the defendant, a contractor, was charged by bill of information dated July 18, 2011, with committing theft in the amount of $1,500 or more on August 7, 2007. Reyer, 13–0135, p. 1, 129 So.3d at 753. The defendant filed a motion to quash the bill of information arguing that the prosecution should be dismissed as untimely pursuant to La.C.Cr.P. art. 572 because neither he nor anyone at his company did any work for the victim after July 10, 2007–a period of more than four years before the bill of information was filed. Id., 13–0135, pp. 1–2, 129 So.3d at 753. After comparing the bill of information to the information contained in the application for arrest warrant, the trial court ruled in favor of the defendant, and granted the motion to quash. Id., 13–0135, p. 2, 129 So.3d at 754. The State appealed. Id. On appeal, the defendant argued that the trial court's ruling should be affirmed because the “ ‘Bill of Information ... picks a random date for the theft of August 7, 2007 which conveniently fits, by several weeks, the four (4) year prescriptive period for the crime charged.’ ” Id., 13–0135, p. 4, 129 So.3d at 755.
This Court's review of the record revealed that the State never filed an opposition to the motion to quash and “no evidence was received, nor any offered” in connection with the motion to quash. Reyer, 13–0135, p. 2, 129 So.3d at 753–54. Nevertheless, in affirming the ruling of the trial court, this Court first examined the application for the arrest warrant and noted that the affidavit stated that the theft occurred on June 2, 2006 and/or July 10, 2007, when the defendant stopped working on the property. Reyer, 13–0135, p. 3–4, 129 So.3d at 754–55. Thus, calculating from the dates alleged in the affidavit of arrest, the theft would have necessarily occurred more than four years from the date the bill of information was filed. The bill of information itself, however, alleged that the theft occurred on August 7, 2007, less than four years from the date of the alleged theft. Id., 13–0135, 13–0135, p. 3, 129 So.3d at 754.
Applying the abuse of discretion standard, we affirmed the ruling of the trial court, concluding that the dates identified in the defendant's motion to quash coincided with “the date[s] cited in Mr. Reyer's arrest warrant affidavit and application prepared by the state. ” Id., 13–0135, p. 7, 129 So.3d at 757 (Emphasis in original). We further observed that “[n]othing in the record supports the 7 August 2007 date chosen by the [S]tate.” Id. We agreed with the defendant that the date chosen by the State appeared to have been “arbitrarily selected for the purpose of avoiding La.C.Cr.P. art 572A(2).” Id., 13–0135, p. 4, 129 So.3d at 755, fn. 5
In Reyer, we also specifically recognized the State's heavy burden of proving that the prosecution has not prescribed once the issue is raised by the defense as follows:
When a defendant has brought a motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit has occurred. [State v.] Brumfield, [11–1599] pp. 7–8 [ (La.App. 4 Cir. 11/29/12) ] 104 So.3d [701] at 706, citing State v. Rome, 93–1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286. The state is not required to allege facts showing that the time limitation has not expired, “but when the issue is raised, the state has the burden of proving the facts necessary to show that the prosecution was timely instituted.” Id., p. 13, 104 So.3d at 709 [boldface emphasis in original; emphasis supplied].
Reyer, 13–0135, p. 8, 129 So.3d at 757 (Emphasis in original). Because the State offered no evidence to prove the date of the crime or when the victim knew or should have known that a crime had been committed, we found that the trial court did not abuse its discretion in granting the motion to quash. Id., 13–0135, p. 12, 129 So.3d at 759.
Thus, based on Reyer, I must therefore disagree with the majority's conclusion that this Court may not rely on the dates set forth in the application for arrest warrant that is part of the trial court's record when there is information to suggest that (1) the trial court, itself, relied on that information in reaching its judgment, and (2) the State does not dispute those dates. I believe that to hold otherwise would impermissibly shift the burden to the defendant to show when the crime was allegedly committed in possible violation of a defendant's constitutional right against self-incrimination. U.S. Const., Amend. V; La. Const. Art. 1 Sec. 16.
To fully explain the reasons for my dissent, and why the rationale of Reyer, applies, I will begin by discussing the background and procedural history of this case.
BACKGROUND
This case stems from allegations that the defendant, Tynisa Cobb, stole $50,000 in grant money from Road Home assistance recipient, Ernest Horton, while employed by First American Title, the company responsible for processing and awarding Mr. Horton's Road Home grant. According to the application for arrest warrant, Mr. Horton applied for and was awarded a Road Home grant of over $100,000. The closing on the grant was scheduled to take place on December 23, 2007. Two weeks before the December closing, an unknown female contacted Mr. Horton and advised that there was a problem with the title to his property. Mr. Horton therefore agreed to surrender $10,000 of the grant money to resolve the problem. Two hours after the December closing, Mr. Horton was contacted by phone and advised that his file had been “pulled” and that his grant would be revoked unless he paid a fee of $50,000. Consequently, on December 28, 2007, Mr. Horton met the defendant at his bank where he authorized a cashier's check to be made payable to the defendant, Tynisa Cobb, in the amount of $50,000.
The Application for Arrest Warrant was prepared by Detective Mary Lathouwers of the New Orleans Police Department and dated February 16, 2011.
The application for arrest warrant further states that the defendant contacted Mr. Horton at a later unspecified date to advise that he was eligible for a second grant in the amount of $30,000 to elevate his property. This time she told him that an additional $5,000 fee would be required to process his claim. As a result, on October 24, 2008, while attending the closing for the elevation grant, Mr. Horton allegedly mentioned the $50,000 payment previously made to the defendant and questioned the necessity of paying the additional $5,000 fee that she had requested. An investigation by the United States Department of Housing and Urban Development–Office of the Inspector General (“HUD”) into Ms. Cobb's actions followed. HUD's investigation confirmed that Ms. Cobb had been employed by First American Title; that she had endorsed the $50,000 cashier's check; that no liens or other problems existed with regard to Mr. Horton's property; and that Ms. Cobb had used part of the funds received from Mr. Horton to purchase a Mercedes–Benz. Continued attempts by HUD to locate Ms. Cobb had reportedly been unsuccessful. The investigation was later forwarded to the Orleans Parish District Attorney's Office for additional investigation and prosecution.
PROCEDURAL HISTORY
Prosecution was initiated on January 25, 2012, when Tynisa Cobb was charged by bill of information with one count of theft in the amount of $1,500 or more, in violation of La. R.S. 14:67(B)(1). In response, Ms. Cobb filed a motion to quash the bill of information at the arraignment held on February 10, 2012. In the motion, Ms. Cobb alleged that the bill of information filed by the State was untimely under La.C.Cr.P. art 572(A)(2), because more than four years had elapsed between the alleged commission of the crime and the institution of the prosecution. Specifically, her motion alleged that the crime of theft was alleged to have occurred on December 28, 2007, but the prosecution was not instituted until January 25, 2012. The motion further alleged that Ms. Cobb at no time fled or did anything to avoid detection, which under La.C.Cr.P. art 575 would have extended the time by which the State had to initiate proceedings against her.
The motion to quash alleges that the defendant was charged with “the crime of theft over $500.00 in violation of La. R.S. 14:67(A),” while the motion to quash alleges a violation of theft over the amount of $1,500. This discrepancy is presumably attributed to the fact that at the time of the alleged offense, La. R.S. 14:67(B)(1) provided that theft in the amount of $500 or more was the highest grade of theft. Acts 2010, No. 585, § 1.
The trial court ordered the State to respond to the motion to quash no later than February 17, 2012, and set the matter for hearing on March 16, 2012. At the hearing, the defendant argued that the motion to quash should be considered unopposed because the State did not file its memorandum in opposition as ordered by the trial court and did not request additional time to file it. The defendant also objected to the State being given the opportunity to orally respond to the motion to quash in the absence of a written response.
Without directly ruling on the defendant's objection, the trial court gave the State an opportunity to respond. In response, the State admitted that it did not file an opposition or seek an extension of time to file one. Rather, the prosecutor claimed that the State was unable to respond with an opposition because the assistant district attorney responsible for screening the case had been out on sick leave.
Of significance, the State did not dispute the validity of the December 28, 2007 date set forth in the motion to quash. Instead, the State also argued that Cobb's motion to quash should be denied on the grounds that the four-year deadline set forth by La.C.Cr.P. 572(A)(2) had been interrupted because the defendant had been “fleeing from justice.” La.C.Cr.P. art. 575. In support of this position, the State requested permission to call Special Agent Sam Pickens as a witness; however, it is unclear from the record whether the State was prepared to call Agent Pickens as a witness that day or whether it was asking to call Agent Pickens as a witness at a later date or time. The State also made no attempt to argue that the prosecution was timely on the face of the bill of information which alleged that the theft took place in 2011. After admonishing the State for failing to comply with the court's order, and giving the State additional time to orally respond to the motion, the trial court granted the defendant's motion to quash. This timely appeal followed.
DISCUSSION
In its sole assignment of error, the State claims that the trial court abused its discretion when it granted Ms. Cobb's motion to quash based on La.C.Cr.P. art. 572(A)(2) which provides that no person shall be prosecuted for “a felony not necessarily punishable by imprisonment at hard labor” unless the prosecution is instituted within four years “after the offense has been committed.” In support of its position, the State argues that La.C.Cr.P. art 573(1) extended the time by which the State had to initiate prosecution against Ms. Cobb. The State secondarily argues that it was improperly denied the right to call Special Agent Sam Pickens as a witness and to put on evidence in opposition to the defendant's motion to quash. Again, the State did not contest the defendant's allegation that the crime is alleged to have occurred on December 28, 2007. It also did not argue that the trial court erred because the prosecution was timely on the face of the bill of information.
The crime of theft in the amount of $1,500 or more—the offense Cobb was charged with violating—is a felony punishable by imprisonment with or without hard labor. See, La. R.S. 14:67(B)(1) ; State v. Aucoin, 457 So.2d 885, 886 (La.App. 3rd Cir.1984) (cited in Turner v. Dep't of Transp. & Dev., 01–2426, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 786, 790 ).
STANDARD OF REVIEW
The standard to be applied when reviewing a trial court's determination on a motion to quash depends on whether the motion involves a legal issue, a factual determination, or a combination of the two. State v. Hall, 13–0453, pp. 11–12 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39. Where the underlying motion to quash involves solely a legal issue, this Court applies a de novo standard of review. Id., 13–0453, p. 11, 127 So.3d at 39 (citing State v. Guillott, 12–0652, p. 4 (La.App. 4 Cir. 2/20/13), 155 So.3d 551 ; State v. Schmolke, 12–0406, pp. 2–4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298–99 ). On the other hand, where the motion to quash involves factual determinations or a mixed determination of facts and law, this Court applies an abuse of discretion standard. Hall, 13–0453, pp. 11–12, 127 So.3d at 39 (citing State v. M.C., 10–1107, p. 10 (La.App. 4 Cir. 2/18/11), 60 So.3d 1264, 1270 ; State v. Tran, 12–1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673, fn. 3 ; State v. Love, 00–3347, pp. 9–10 (La.5/23/03), 847 So.2d 1198, 1206 ).
The motion to quash filed by Ms. Cobb is based on allegations that the prosecution was untimely. When deciding a motion to quash based on prescription, a trial court is usually required to make factual determinations; therefore, in these instances we review the trial court's findings under the abuse of discretion standard. See, e.g., State v. Dillon, 11–0188, p. 4 (La.App. 4 Cir. 8/24/11), 72 So.3d 473, 475 ; Reyer, 13–0135, pp. 4–5, 129 So.3d at 755 ; State v. Major, 13–1139, pp. 3–4 (La.App. 4 Cir. 4/9/14), 140 So.3d 174. “Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion.” Love, 00–3347, pp. 9–10, 847 So.2d at 1206.
Applicability of La. R.S. 573(1)
With these precepts in mind, I now address the State's argument regarding the timeliness of the prosecution. The State does not dispute the defendant's allegations that the alleged theft or misappropriation in this case occurred on December 28, 2007—more than four years before the State filed its bill of information on January 25, 2012. Rather, the State argues that La.C.Cr.P art. 573(1) extended the time period for initiating the prosecution against Ms. Cobb. Article 573(1) provides that that the four-year time limitation set forth by Article 572(A)(2) does not begin to run where “[t]he offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith or has control thereof.”
According to the State, the four-year prescriptive period could not begin to run in this case until October 24, 2008, the date when Mr. Horton questioned the fees he had previously paid to Ms. Cobb. The States claims that this is because Ms. Cobb misappropriated the money under the guise of her office or employment as evidenced by the fact that (1) she worked for the company that processed Mr. Horton's Road Home paperwork and awarded his grant; (2) represented that the money was required to clear up title problems to the property; and (3) subsequent investigation revealed no liens on or other problems with the victim's property warranting the collection of the $50,000. It is therefore the State's position that it had four years from October 24, 2008, or until October 24, 2012, to institute prosecution against Cobb. As a result, the bill of information filed on January 25, 2012 should be deemed timely.
Despite the State's contentions, a review of the record reveals that the State failed to preserve this argument for appeal. The State does not dispute that it ignored the trial court's request to file a written response or opposition to the defendant's motion to quash. Therefore, if the issue had been preserved for this Court's review, that would necessarily have occurred during the March 16, 2014 hearing on the motion to quash. It did not. Instead, the sole argument asserted by the State at the hearing was that the four-year deadline to initiate prosecution had been interrupted under La. C.Cr.P. art 575(1) because of the defendant's alleged attempt to “flee from justice.” As a general rule, we do not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Stewart v. Livingston Parish Sch. Bd., 07–1881 (La.App. 1 Cir. 5/2/08), 991 So.2d 469, 474 ; See also, Graubarth v. French Market Corp., 07–0416, p. 5 (La.App. 4 Cir. 10/24/07), 970 So.2d 660, 664 ; Uniform Rules—Courts of Appeal, Rule 1–3. Because the State did not raise this as an issue before the trial court, this issue is not properly before us on review.
La.C.Cr.P. art. 575 provides in part:
The periods of limitation established by this chapter shall be interrupted when the defendant: (1) For the purpose of avoiding detection, apprehension or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state....
Nevertheless, even if this issue had been properly preserved for appeal, the trial court still would not have abused its discretion in failing to deny the motion to quash pursuant to La.C.Cr.P. art. 573(1). Although the State alleges that an Article 573(1) relationship existed between Ms. Cobb and Mr. Horton that would have interrupted prescription, I find that there is nothing in the record that establishes the nature of Ms. Cobb's employment with First American Title, her job title, the scope of her duties, or whether she had access to Mr. Cobb's records as a result of her position with the company. In fact, the record does not even confirm whether or not Ms. Cobb was still employed with First American Title at the time of the offense. Accordingly, this argument has no merit.
Admissibility of testimony and evidence
The State also argues that the trial court erred by not allowing Agent Sam Pickens to testify at the hearing on March 16, 2012. The State asserts that the trial court's reason for its refusal was the fact that no opposition was filed. According to the State, Agent Pickens' testimony would have helped it to establish that the defendant left the jurisdiction in order to evade justice, thereby interrupting the running of prescription as set forth in La.C.Cr.P. art. 575(1). For the reasons explained below, this argument is also meritless.
Once a defendant files a motion to quash contesting the timeliness of the State's prosecution for an offense, the State bears a heavy burden of proving that the prescriptive period has not tolled. State v. Brady, 13–0863, p. 7 (La.App. 4 Cir. 12/11/13), 131 So.3d 166, 171 (internal citations omitted). Louisiana Code of Criminal Procedure article 577 provides that the State “shall not be required to allege facts showing that the time limitation [for prosecution] has not expired, but when the issue is raised, the [S]tate has the burden of proving the facts necessary to show that the prosecution was timely instituted.” Because of this heavy burden imposed on the State, the trial court is ordinarily obligated to give the State time to respond to the motion to quash and satisfy its burden of proving its timeliness. See e.g., State v. Watts, 99–57, p. 3 (La.App. 5 Cir. 5/19/99), 738 So.2d 628, 629 (wherein trial court erred in denying State's request that defendant's oral motion to quash be submitted in writing and set for hearing on future date).
Cited with approval in State v. Bordenave, unpub., 13–1265, p. 2 (La.App. 4 Cir. 3/19/14), 2014 WL 1117973, (holding State should be given the opportunity “to prepare to meet its high burden of proof regarding the timeliness of the prosecution” where there was no evidence that the state was ever served with a copy of the motion). See also Major, 13–1139, p. 6, 140 So.3d 174.
In this case, the record shows that the State was given ample opportunity to satisfy its heavy burden of proving that the prescriptive period had not tolled. After the defendant filed her motion to quash alleging that more than four years had passed since the she allegedly stole $50,000 from Road Home recipient, Ernest Horton, the State was given a week to respond in writing to the defendant's motion to quash and over a month to prepare for oral argument. Despite the trial court's order that the State respond in writing, the State neither filed an opposition nor requested an extension of time to do so.
The record further indicates that over the objection of defense counsel, the State was given an additional opportunity to respond to the motion's allegations of untimeliness at the hearing scheduled on March 16, 2014. Rather than attempt to submit evidence to show that the four-year prescriptive period had been interrupted or had tolled, the State instead, vaguely argued that the four-year prescriptive period had been interrupted because Ms. Cobb “was fleeing from justice.” The State further stated that it “[would] supplement this in writing.” There is nothing in the transcript to indicate that the State was in any way prepared to satisfy its burden of proving that Ms. Cobb had left the jurisdiction in order to evade justice under La.C.Cr.P. art. 575(1). Moreover, the assistant district attorneys admitted that they were not aware of the facts that would support this position. One of the ADAs explained that “there was some information unavailable to the State in regards to any possible defense to [the] Motion to Quash.” A second ADA, when trying to explain why this information was not obtained beforehand stated, “We were unable to make contact with the screener because he was in the hospital.”
Hereinafter, “ADA.”
The trial court later gave the State the opportunity to elaborate regarding its claim that the screener's medical condition affected the State's ability to reply to the motion to quash. In response, the ADA admitted that they had “not been completely on the ball with this,” and that their office had been unable to file anything in writing beforehand because “[t]here was information that was actually not available” to the ADAs assigned to the case. The ADA further responded:
And that, Your Honor, I believe is very germane in this instance in this case, because if we don't have that information, i.e., “Where is Miss Cobb to begin with?” [h]ow can we provide the Court with a proper response to begin with? We have an individual who is—and again, not to bring that in here—but
this is the individual who had the information as to why this case was even brought when it was brought. Why the Bill of Information was filed when it was? We don't have that information to begin with, Your Honor. The only issue right now, Your Honor, [is] we did not file our extension of time.
At that point, the trial court expressed its dissatisfaction the ADA's response, stating that the “duty to follow timelines set by the Court ... is an institutional responsibility” that “does not go to a particular individual within the office, it goes to the office.”
During the March 16th hearing, the State also advised the trial court that it wanted to “call Special Agent Sam Pickens to the stand at the hearing on the motion to quash.” Agent Pickens was identified in the NOPD report as having interviewed Ms. Cobb following her extradiction; however, as noted by the defendant, the State's mention of Agent Pickens's testimony was seemingly in the future tense, for a future hearing on defendant's motion to quash. I agree with defendant's assessment that the State's phrasing makes sense only if it was contemplating a future hearing and not the hearing that was already underway.
Assuming, however, that the officer was present and waiting to testify, it is significant that the court did not expressly disallow the officer's testimony. And although the court subsequently ruled on the motion without hearing any testimony, the State did not specifically object to not being allowed to call the officer, nor did the State offer to proffer the officer's testimony despite the court's invitation to allow the State to “complete [its] remarks” before the Court ruled. In fact, the State explicitly declined that invitation, declaring it “unnecessary.”
See, Murphy v. 1st Lake Properties, Inc., 12–649, p. 10 (La.App. 5 Cir. 5/23/13), 116 So.3d 964, 971–72, wherein the Court explained:
For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. Failure to contemporaneously object constitutes a waiver of the right to complain on appeal. Further, the reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. Willis v. Noble Drilling (US), Inc., 11–598 (La.App. 5 Cir. 11/13/12), 105 So.3d 828, 835–36. On appeal, an appellant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal.
See also, McLean v. Hunter, 495 So.2d 1298, 1305 (La.1986) (Explaining that purpose of a proffer is to preserve evidence excluded by the trial court so that the evidence is available for appellate review).
I lastly observe that there is little in the record to indicate that Ms. Cobb fled for the purpose of avoiding prosecution as required by Article 575(1). Although the application for the arrest warrant indicates that HUD had trouble locating Ms. Cobb, there is nothing to suggest that its failed attempts to locate her were the direct result of Ms. Cobb attempts to avoid detection or prosecution. There is also nothing in the record to explain why the police took so long to request a warrant for Ms. Cobb's arrest. In Brady, 13–0863, p. 8, 131 So.3d 166, 171–72, we recently held that the trial court did not abuse its discretion in granting a motion to quash where the sole evidence the State relied on to prove an interruption of prescription under La.C.Cr.P. art 575 was the investigator's affidavit stating that the defendant “fled the jurisdiction after he received monies from the alleged victims.” A defendant's mere absence from the State does not automatically make the defendant a fugitive from justice as contemplated by Article 575. See, State v. Stanton, 209 La. 457, 24 So.2d 819, 823–824 (1949) (cited in State v. Bobo, 03–2362, p. 6 (La.4/30/04), 872 So.2d 1052, 1056, fn. 3 ).
In concluding, I find it significant that in a case where the very matter at issue is the timeliness of the State's prosecution, the State's lackadaisical effort to, at minimum, timely seek an extension to file an opposition, present evidence, or to have a witness present to testify at the scheduled hearing on the motion to quash is inexcusable. Based on the foregoing, and for the reasons set forth in Reyer, I cannot say that the trial court abused its discretion in finding that the State failed to satisfy its heavy burden of proving that the four-year period for initiating the prosecution did not expire in this case.
I would therefore affirm the ruling of the trial court granting the defendant's motion to quash.
ON APPLICATION FOR REHEARING
(Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS ).
SANDRA CABRINA JENKINS, Judge.
Tynisa Cobb, the defendant/appellee, was charged by bill of information on January 25, 2012, with one count of theft in violation of La. R.S. 14:67(B)(1). In response, Ms. Cobb filed a motion to quash the bill of information on February 10, 2012, alleging that the bill of information was untimely under La.C.Cr.P. art. 572(A)(2). The trial court granted the motion, and the State appealed. This Court reversed the trial court's ruling sustaining defendant's motion and remanded the matter back to the trial court. Ms. Cobb now seeks a rehearing of our opinion herein.
Ms. Cobb asserts that State v. Reyer, 13–0135 (La.App. 4 Cir. 11/20/13), 129 So.3d 752, is substantially identical to this case, apart from the opposite conclusion being reached, however, the majority opinion failed to acknowledge it. Thus, averring that the interests of judicial economy and jurisprudential uniformity favor her position, Ms. Cobb requests a rehearing to address why Reyer does not control the outcome of her case. Upon receipt of Ms. Cobb's rehearing application, we directed an order to the parties to file supplemental briefs addressing two issues: (1) whether Reyer constitutes controlling circuit precedent in this matter, and (2) if so, whether Reyer was correctly decided.1
Pursuant to this Court's internal rules, the issue of whether Reyer should be overruled was submitted to the Court en banc. By a unanimous vote, the nine non-panel judges elected not to overrule Reyer. For the reasons stated in the dissenting opinion and for the reasons that follow, we grant defendant's application for rehearing, vacate our earlier decision, and reinstate and affirm the decision of the trial court.
In Reyer, this Court recognized that once a defendant files a motion to quash contesting the timeliness of the State's prosecution, he has no obligation to prove when the alleged crime was committed or to file a bill of particulars to prove the alleged date. Reyer, 13–0135, pp. 8–11, 129 So.3d at 757–59 (internal citation omitted). Rather, it is well-settled law that the defendant need only raise prescription as an issue and once raised, it is the State that has the burden of proving that the prosecution was initiated timely. Id. Thus, the Court held that in order for the State to satisfy this burden, specific facts must be put forth as unsupported assertions will not suffice. See Id., 13–0135, p. 4, 129 So.3d at 755, n. 5 (“No evidence in the record on appeal supports where the 7 August 2007 date came from except that it appears arbitrarily selected for the purpose of avoiding La. C.Cr.P. art. 572 A(2).”).
In light of Reyer, the question before us in the instant case is whether the trial court abused its discretion in finding that the State did not satisfy its burden of proving facts necessary to show that the prosecution was timely initiated. The record shows that the defendant properly raised the issue of the timeliness of the prosecution by filing a written motion to quash. The defendant alleged that the prosecution was not initiated within four years of the alleged commission of the crime and further alleged that the defendant had not done anything to avoid detection by the State so as to interrupt the tolling of the time period under La.C.Cr.P. art. 575. Once this issue was raised, the State had the burden of proving that the prosecution was initiated timely.
The record indicates that the State was given ample opportunity to satisfy its heavy burden. The trial court gave the State a week to respond in writing to the defendant's motion to quash and set the motion for hearing one month later. At no time did the State file a response to the motion to quash or request an extension of time to do so. At the hearing, rather than submit evidence to show that the four-year prescriptive period had been interrupted or had tolled, the State instead vaguely argued that the four-year prescriptive period had been interrupted because Ms. Cobb “was fleeing from justice.” The State did not offer any evidence to prove facts necessary to show that the prosecution was timely initiated.
Accordingly, finding that Reyer is controlling precedent, and for the reasons assigned in the dissenting opinion, we cannot say that the trial court abused its discretion in finding that the State failed to satisfy its heavy burden of proving that the prosecution was initiated timely. Defendant's application for rehearing is granted, our earlier decision herein is vacated, and the trial court's judgment of March 16, 2012 granting the motion to quash is reinstated and affirmed.
REHEARING GRANTED; VACATED; JUDGMENT AFFIRMED
BONIN, J., assigning reasons, concurs in the result on rehearing.
DYSART, J., concurs for the reasons assigned by J. BONIN.
BONIN, J., assigning reasons, concurs in the result on rehearing.
I concur in the result only to the extent that I am bound by the en banc disposition that State v. Reyer 1 was correctly decided and is thus binding precedent in this circuit. I, however, maintain my view that Reyer was wrongly decided and that now this case is its misguided progeny. By permitting a trial judge to accept evidence both contrary to the allegations of an indictment and beyond any modifications or clarifications produced by a bill of particulars, our decisions invade the exclusive province of the fact-finder at a trial on the merits. Under these decisions, at the pre-trial stage of a criminal prosecution the trial judge may substantively decide when the charged offense was committed and, based upon such determination, quash an indictment. This authority is unsupported in our statutory scheme and displaces our traditional notions of the appropriate functions of the prosecutor and the jury in making that determination. Until Reyer, the trial judge at the pre-trial stage could only determine whether the indictment was timely filed within the limitations period for the offense charged as alleged in the indictment and as modified by any bill of particulars; the trial judge had no authority to substantively decide on his own that the date the offense was actually committed.
Below I explain in detail what, I view, is the prosecutorial burden at a hearing on a motion to quash a bill of indictment filed prior to trial that asserts that the time limitation to institute prosecution has expired in that subset of cases in which (1) the indictment on its face alleges a date for the commission of the offense that falls within the applicable prescriptive period corresponding to the date of the filing of the indictment and (2) the prosecution has not filed a bill of particulars that alters the date alleged in the indictment itself.
We use bill of indictment generically to also include those prosecutions instituted by bill of information or affidavit. See La.C.Cr.P. art. 461.
I
I begin my explanation by acknowledging that the reasonings of the majority opinion on original hearing and of the Reyer opinion cannot be reconciled or distinguished. Both opinions treat the circumstance in which a bill of indictment alleges a date certain for the commission of the offense charged. In both opinions, the face of the bill of indictment reflected that the prosecution was instituted prior to the expiration of the prescriptive period. A bill of particulars was not furnished by the district attorney in either case. Both defendants' pre-trial motions to quash under La.C.Cr.P. arts. 532(7) and 572 A(2) were then granted by the trial judge. And, importantly, both opinions considered the effect of the failure of either party to introduce any evidence whatsoever during the hearing on the defendant's motion to quash.
The panels in these cases encountered procedurally-identical circumstances and handed down opinions legally-juxtaposed. In Reyer, the panel held that, when the timeliness of the institution of prosecution is raised by motion to quash, the prosecution bears “the burden of proving the facts necessary” to overcome such challenge. See 13–0135, p. 8; 129 So.3d at 757 (citing State v. Brumfield, 11–1599, p. 13 (La.App. 4 Cir. 11/29/12); 104 So.3d 701, 709 ) (emphasis omitted). In that case, the prosecution charged the defendant by bill of information with one count of theft in the amount of $1500 or more, a violation of La. R.S. 14:67 B, on July 18, 2011, claiming that the offense occurred on August 7, 2007. The defendant filed a motion to quash under La.C.Cr.P. art. 532(7), asserting that the latest possible date for the theft's occurrence was July 10, 2007 and thus the four-year prescriptive period for the institution of prosecution set forth in La.C.Cr.P. art. 572 A(2) had lapsed. The panel affirmed the trial judge's decision to grant that defendant's motion to quash, finding that the prosecution was required and failed to introduce evidence at the hearing to show that the prosecution was instituted timely. See Reyer, 13–0135, pp. 11–12; 129 So.3d at 759.
In our original opinion in this case, however, we applied the framework utilized in State v. Schmolke and State v. Byrd for the review of motions to quash. We accepted the facts set forth in the bill of information as true and reviewed the face of that bill to determine whether that prosecution had been instituted in a timely manner. See State v. Cobb, 13–0431, p. 2 (La.App. 4 Cir. 6/25/14); 161 So.3d 28, 40, 2014 WL 2892388. Here, the district attorney filed a bill of information on January 25, 2012, charging Ms. Cobb with felony theft allegedly committed on February 10, 2011. Ms. Cobb responded by filing a motion to quash that bill of information under La.C.Cr.P. art. 532(7). After our de novo review, we reversed the trial judge's decision to sustain that motion to quash and found that Ms. Cobb was timely charged on the face of the bill of information. The opinion also noted that Ms. Cobb relied upon a police officer's affidavit in support of her arrest warrant to establish that the offense was committed on December 28, 2007. That evidence, however, could not be considered on appeal as it was not admitted into evidence at the hearing on the motion to quash.
See 12–0406, p. 3 (La.App. 4 Cir. 1/16/13); 108 So.3d 296, 298.
See 96–2302, p. 18 (La.3/13/98); 708 So.2d 401, 411.
Thus, in determining which decision should be prospectively applied, a question of law must be answered: Does the district attorney bear any further evidentiary burden to “show that the prosecution was timely instituted” under La.C.Cr.P. art. 577 when a defendant files a pre-trial motion to quash under La.C.Cr.P. art. 532(7) and the bill of indictment charging that defendant is not facially prescribed?
II
In order to answer that question, I set forth the general rules governing review of motions to quash. I then apply those precepts to the facts of this case, showing again that the trial judge erred in granting Ms. Cobb's motion to quash under La.C.Cr.P. art. 532(7).
A
“A motion to quash is ... a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge.”Byrd, 96–2302, p. 18; 708 So.2d at 411. See also La.C.Cr.P. art. 531. “All issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury.” La.C.Cr.P. art. 537. “A motion to quash shall ... specify distinctly the grounds on which it is based. The court shall hear no objection based on grounds not stated in the motion.” La.C.Cr.P. art. 536. “The matter of factual guilt or innocence ... is ... not raised by the motion to quash.” State v. Advanced Recycling, Inc., 02–1889, p. 9 (La.4/14/04); 870 So.2d 984, 989 (quotations omitted). “A trial judge is simply not authorized to decide a defendant's guilt or innocence in pre[-]trial summary proceedings.” State v. Marcelin, 13–0893, p. 8 (La.App. 4 Cir. 12/18/13); 131 So.3d 427, 432. Thus, “[a]n attack on the merits of the [district attorney]'s case is not properly raised by a motion to quash.” State v. Marcal, 388 So.2d 656, 660 (La.1980).
The grounds upon which a motion to quash may be based are not limited to those statutorily-enumerated; rather, La.C.Cr.P. arts. 532 –534 provide an illustrative, non-exclusive list. See State v. Tanner, 425 So.2d 760, 762 (La.1983) ; State v. Franklin, 13–0488, pp. 4–5 (La.App. 4 Cir. 10/9/13); 126 So.3d 663, 667. One such statutorily-provided ground upon which a motion to quash a bill of indictment may be asserted is when “[t]he time limitation for the institution of prosecution ... has expired.” La.C.Cr.P. art. 532(7). Article 572 of the Code of Criminal Procedure sets forth prescriptive periods for the institution of prosecutions which vary depending on the offense with which the defendant is charged.
When a defendant moves prior to trial to quash a bill of indictment under La.C.Cr.P. art. 532(7), the trial judge, in ruling on the motion, “must accept as true the facts contained in the bill[ ] of information ... and determine as a matter of law and from the face of the pleadings ... whether a crime has been charged....” Byrd, 96–2302, p. 18; 708 So.2d at 411. See also State v. Guillot, 12–0652, p. 3 (La.App. 4 Cir. 2/20/13); 155 So.3d 551, 553. Thus, in order to properly determine the merits of a defendant's pre-trial motion to quash under La.C.Cr.P. art. 532(7), a trial judge is required to solely examine the face of the bill of indictment to ensure that the district attorney has instituted prosecution timely under La.C.Cr.P. art. 572 A(2). See Schmolke, 12–0406, p. 3; 108 So.3d at 299 (citing Advanced Recycling, 02–1889, pp. 9–10; 870 So.2d at 989 ) (“[T]he inquiry is whether any conceivable set of the facts as alleged in the bill of information ... if ‘found credible by the trier of fact’ can support a conviction.”). See also La.C.Cr.P. art. 464 (“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”).
A district judge may not exceed this limited scope of review. The introduction and consideration of evidence at a hearing on a motion to quash under La.C.Cr.P. art. 532(7), however, necessitates that the trial judge rule on the merits of the prosecution's case as to the date of the offense at issue. The trial judge during this limited pre-trial hearing is not permitted to make those determinations though as he has not yet assumed the role of “fact-finder” at trial.
Furthermore, this limited evidentiary scope is proper due to the great discretion granted district attorneys in their pursuit of prosecution within their districts. See Marcelin, 13–0893, p. 8; 131 So.3d at 432 (quoting La.C.Cr.P. art. 61) (“Our judicial system places the ‘control of every criminal prosecution instituted or pending in his district’ in the district attorney, and allows for the district attorney to decide ‘whom, when, and how he shall prosecute.’ ”). The burden imposed upon the district attorney in Reyer runs in contravention to these principles and permits the judiciary a significantly more active role in the pre-trial determination of when offenses occurred and whether prosecution is timely.
Thus, if the bill of indictment is not facially prescribed, the trial judge must permit the prosecution to continue as the district attorney has facially charged a crime for which it is the district attorney's burden at trial to prove that the defendant committed beyond a reasonable doubt. If instead the date listed on a bill of information falls outside of the relevant prescriptive period, the district attorney must “show that the prosecution was timely instituted,” La.C.Cr.P. art. 577, and “bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled.” State v. Rome, 630 So.2d 1284, 1286 (La.1994).
A trial judge's ruling on a motion to quash a facially timely bill of indictment under La.C.Cr.P. art. 532(7) is solely a question of law. See Schmolke, 12–0406, p. 2; 108 So.3d at 298. See, e.g., Rome, 630 So.2d 1284. As such, we review the merits of a trial judge's ruling on this question of law de novo. See Schmolke, 12–0406, p. 1; 108 So.3d at 298.
B
As previously stated, in conducting a de novo review of the trial judge's decision to grant Ms. Cobb's motion to quash, a reviewing court should first determine the relevant prescriptive period for the institution of prosecution in this case. Ms. Cobb was charged by bill of information with committing theft, a violation of La. R.S. 14:67 B and a felony not necessarily punishable by imprisonment at hard labor. Prosecution for that offense must be instituted within four years of the commission of that offense. See La.C.Cr.P. art. 572 A(2). We next examine the bill of information to determine whether the bill is facially prescribed. The bill of information in this case was filed on January 25, 2012, charging Ms. Cobb with committing felony theft on February 10, 2011. This bill is not prescribed on its face as prosecution was instituted within the first year of the date that the offense was allegedly committed. Thus, this panel initially found that the trial judge erred as a matter of law in granting Ms. Cobb's pre-trial motion to quash this bill of information on the ground that the prosecution was not timely instituted.
III
Undoubtedly the review framework set forth in our original opinion as compared to that in Reyer results in less pre-trial judicial oversight of the district attorney's discretion as to how and when to prosecute defendants. A defendant, however, is not without remedy should he perceive that his prosecution has been untimely instituted. First, a defendant should, prior to trial, move to request that a bill of particulars be filed by the district attorney, specifically urging that the date of the commission of the offense be corrected or included. See La.C.Cr.P. art. 484. Second, rather than utilizing a pre-trial motion to quash, a defendant may wait and urge that the prosecution is untimely instituted at any time during trial, see La.C.Cr.P. art. 535 cmt.(b)(4), or, following trial, a defendant may urge this defense as part of a motion in arrest of judgment.See La.C.Cr.P. art. 859(7). I elaborate further on these alternatives below.
A
“In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” La. Const. art. 1, § 13. If a defendant perceives that a bill of indictment is constitutionally deficient due to the improper listing or omission of the date of the offense, the proper procedural mechanism with which to urge its correction or inclusion is through a request for a bill of particulars. See La.C.Cr.P. art. 484 (“The court, on its own motion or on motion of the defendant, may require the district attorney to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant.”). See also La.C.Cr.P. art. 484 cmt.(a) (noting Article 484 is drafted in conformity with the constitutional requirement set forth in La. Const. art. I, § 13); Marcelin, 13–0893, p. 9; 131 So.3d at 432–33 (“It would be inappropriate to circumvent this clarifying procedural mechanism and subsequently quash a bill of information for its lack of clarity.”).
“Properly used, [a bill of particulars] should inform the defendant with particularity of all of the essential facts relied upon to prove the crime charged.... It is then that the defendant will know the scope of his criminal activity so as to properly defend himself....” State v. Rogers, 375 So.2d 1304, 1313 (La.1979) (on rehearing). See also State v. Brooks, 13–0540, p. 22 (La.App. 4 Cir. 9/18/13); 124 So.3d 1129, 1142 ; La.C.Cr.P. art. 484 cmt. (b). “The purpose is to avoid surprise at trial, guide the court in regulating the admission of evidence and provide a basis for a claim of double jeopardy. Since the defendant is presumed innocent he cannot be assumed to know anything about the charges against him.” Gail Dalton Schlosser, La. Prac.Crim. Trial Prac. § 14:6. The bill of particulars, however, “cannot be employed in a fishing expedition for a recital of the details of the [district attorney]'s evidence, nor used as a device to harass [the district attorney] by demands for nonessential details.” La.C.Cr.P. art. 484 cmt.(a).
“The extent to which a bill of particulars must be granted is determined by the nature and complexity of the case.” Schlosser, supra. See also Rogers, 375 So.2d at 1313. “There is no exact formula which can be applied to every charge to determine in a particular case whether a defendant has all of the information to which he is constitutionally entitled.” State v. Atkins, 360 So.2d 1341, 1344 (La.1978). And a trial judge has “discretion in determining what the [prosecution] must disclose pursuant to a bill of particulars and that discretion will not be disturbed on appeal absent clear abuse.” Schlosser, supra.
“In providing information in response to a bill of particulars ..., the [district attorney] may be forced to release facts which reveal what its evidence will prove at trial.... [T]o the extent that information is properly elicited to give defendant notice of the nature and cause of the charge against him, the [prosecution] is required to respond to a bill of particulars even though the answers will disclose particular facts which the [district attorney] intends to establish through evidence.” State v. Miller, 319 So.2d 339, 343 (La.1975).
The time and date of an offense “is one of the particulars which may be stated in the indictment or furnished in a bill of particulars.” La.C.Cr.P. art. 468 cmt.(b). Generally, “[t]he date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense. If the date or time is not essential to the offense, an indictment shall not be held insufficient....” La.C.Cr.P. art. 468.
Defenses claimed by a defendant can also alter the content of the information required to be included in a bill of particulars. See, e.g., State v. Johnson, 333 So.2d 223, 225 (La.1976) (noting that a defendant claiming self-defense is entitled to information possessed by the district attorney regarding dangerous weapons found on or near the deceased). The general rule that date and time are not essential elements of an offense “may not operate to deprive a defendant of the opportunity to present a defense.” State v. Gerard, 627 So.2d 174, 176 (La.1993) (quotations omitted). While date is not usually an essential element of an offense, the date of the commission of an offense can become extremely important—thus requiring its inclusion in a bill of particulars—if the defendant puts forth two specific defenses. First, a defendant may assert an alibi defense. See, e.g., State v. LaPorte, 436 So.2d 681 (La.App. 4th Cir.1983) ; Gerard, 627 So.2d at 176 (“Even when they are not essential elements of an offense, time and date may become of the essence when the defendant presents an alibi defense to the offense charged, or is in some other way prejudiced by the date set forth in the indictment.”) (quotations omitted). Second, the defendant, as Ms. Cobb has in this case, may claim that the prescriptive period for the institution of prosecution has expired. These defenses place the date of the commission of the offense squarely at issue and to deny a defendant access to such information would effectively deprive the defendant of the ability to assert those defenses.
The inclusion of, alteration of, or refusal to change a date on a bill of particulars by the district attorney can be extremely important even if the bill of indictment is not immediately quashed because during the subsequent trial the district attorney “is limited in [his] proof to the facts recited in the bill of particulars.” State v. Huguet, 369 So.2d 1331, 1334 (La.1979). See also State v. Heymann, 256 La. 18, 235 So.2d 78, 79 (1970). “[T]he bill of particulars furnished ... operate[s] to limit the scope of proof on the trial by restricting the introduction of evidence to the proof of those facts set out in the bill of particulars.” La.C.Cr.P. art. 485 cmt.(a). Thus, if a defendant could not have committed the offense on the date alleged in the bills of indictment and particulars, then the district attorney should not be able to convict the defendant as any other evidence of acts occurring at another date should be excluded from trial.
If the district attorney responds to the defendant's motion by amending the date supplied in the bill of indictment such that the prosecution is now untimely instituted, the defendant should then file a motion to quash under La.C.Cr.P. art. 532(5), claiming that “a bill of particulars has shown a ground for quashing the indictment under Article 485.” A motion to quash under La.C.Cr.P. arts. 532(5) and 485 mandates that a prior motion requesting a bill of particulars under Article 484 be filed and for that bill of particulars to show a ground for granting the motion to quash. See Marcelin, 13–0893, p. 9; 131 So.3d at 432. Article 485 provides in relevant part: “If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, ... that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured.”La.C.Cr.P. art. 485. The expiration of the prescriptive period for the institution of prosecution under La.C.Cr.P. art. 532(7), as previously discussed, is one such ground.
A trial judge, considering a motion to quash under Article 532(5) for failure to timely institute prosecution, performs a functionally identical review as to those under Article 532(7) when determining whether the bill of indictment is timely filed. As such, the judge must accept as true the facts contained in the bills of indictment and particulars and determine as a matter of law and from the face of those documents whether a crime has been charged and whether prosecution has been timely instituted. See Byrd, 96–2302, p. 18; 708 So.2d at 411 ; Schmolke, 12–0406, p. 3; 108 So.3d at 298. See also State v. Gerstenberger, 260 La. 145, 255 So.2d 720, 722 (1971) (noting that such motion “must be disposed of as a matter of law on the face of the information and the bill of particulars”). A trial judge in making this determination may not consider factual defenses going to the merits of the offense charged. See Schmolke, 12–0406, p. 2; 108 So.3d at 298. See also Marcelin, 13–0893, p. 1; 131 So.3d at 429. “This scope of review is essential for a trial judge's proper determination on a motion to quash under La.C.Cr.P. art. 532(5), and emphasizes the important role that bills of particulars play in allowing judges to review whether the offense charged was committed by the defendant or whether there is another ground for quashing the bill of information.” Id., 13–0893, p. 6; 131 So.3d at 431. A trial judge's determination when reviewing a motion to quash under La.C.Cr.P. art. 532(5) that a bill of information is facially prescribed is solely a question of law. See Schmolke, 12–0406, p. 4; 108 So.3d at 299. We review the merits of that ruling de novo. See id., 12–0406, p. 1; 108 So.3d at 298.
As previously stated, if the date listed on a bill of information falls outside of the relevant prescriptive period, the district attorney must “show that the prosecution was timely instituted,” La.C.Cr.P. art. 577, and “bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled.” Rome, 630 So.2d at 1286. In order to meet its heavy burden, the district attorney is required to introduce evidence and set forth facts in its response to and at the hearing on the defendant's motion to quash sufficient to show that the prosecution was instituted timely through either an interruption, suspension, or extension of the prescriptive period. See State v. Brady, 13–0863, pp. 7–8 (La.App. 4 Cir. 12/11/13); 131 So.3d 166, 171 (noting that the district attorney failed to prove that the prescriptive period was interrupted pursuant to La.C.Cr.P. art. 575 ); State v. Adkisson, 602 So.2d 718, 719 (La.1992) (per curiam) (noting that the district attorney bears the burden to prove through the proper introduction of evidence that the prescriptive period was suspended pursuant to La.C.Cr.P. art. 573 ); State v. Roach, 10–0991, pp. 6–8 (La.App. 1 Cir. 12/22/10); 68 So.3d 558, 562–63 (requiring the district attorney to prove that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set forth in La.C.Cr.P. art. 578 in order to access the six month extension for reinstitution of prosecution under La.C.Cr.P. art. 576 ). See also La.C.Cr.P. arts. 573 –573.1 (suspension); 575 (interruption); 576 (extension).
Whether a prescriptive period for the institution of prosecution was interrupted, extended, or suspended is a mixed question of law and fact, requiring a trial judge to make credibility determinations as to the facts alleged by the district attorney and the defendant and then apply those facts to exceptions to prescriptive periods. “In reviewing rulings on motions to quash where there are mixed questions of fact as well as law, ... a trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion.” State v. Tran, 12–1219, p. 2 (La.App. 4 Cir. 4/24/13); 115 So.3d 672, 673 n. 3. See also Marcelin, 13–0893, p. 6; 131 So.3d at 431 n. 2 (applying an abuse of discretion standard of review to rulings on motions to quash under La.C.Cr.P. art. 532(10) and based on Sixth Amendment speedy trial rights); State v. Love, 00–3347, pp. 910 (La.5/23/03); 847 So.2d 1198, 1206 (“Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion.”).
B
Regardless of whether a defendant requests that the district attorney file a bill of particulars, a defendant may also choose to wait to claim that the prescriptive period for the institution of their prosecution was expired. Filing a motion to quash pre-trial is not the only means by which to claim the lapse of a prescriptive period for timely institution of prosecution. Waiting to assert this claim may, in fact, be the best practice when faced with a facially timely bill of indictment as this defense may only be raised once before the trial court. See La.C.Cr.P. arts. 577 ; 859(7). If this defense was not previously urged by a pre-trial motion to quash, a defendant could assert this claim during trial or after the conclusion of trial but prior to sentencing. Depending on when this claim is made, a different procedural vehicle need be utilized.
First, a defendant may assert that the prosecution was untimely instituted during trial. It is important to note that “[i]f [prescription is] raised during the trial, a hearing thereon may be deferred until the end of the trial.” La.C.Cr.P. art. 577. Second, a defendant may file a motion in arrest of judgment following trial but before sentencing, claiming that “the prosecution was not timely instituted, if [such claim was] not previously urged.” See La.C.Cr.P. arts. 859(7) ; 861.
By utilizing either of these methods, a defendant can gain access to and use as evidence in support of their motion the entirety of the district attorney's evidence introduced at trial. See State v. Bazile, 12–2243, p. 10 (La.5/7/13); 144 So.3d 719, 733 (quoting State v. Hunter, 250 La. 295, 195 So.2d 273, 275 (1967) (noting that a defendant need not understand the strength of the district attorney's case and that, other than complying with the rules of pre-trial discovery, the district attorney is under “no legal obligation to ‘furnish to the defendant the details of the evidence with which it expects to prove its case’ ”). This allows for the trial judge to review all of the prosecution's evidence regarding the timeliness of the commission of this offense when ruling.
IV
Finally, we examine evidentiary issues arising from the consideration of a motion to quash under La.C.Cr.P. art. 532(5, 7). Generally, “[e]vidence may be adduced in a motion to quash and at the subsequent hearing on the matter.” Marcelin, 13–0893, p. 5; 131 So.3d at 431. This “evidence is limited to procedural matters,” Byrd, 96–2302, p. 18; 708 So.2d at 411, and “must not be to support a defense on the merits.” Marcelin, 13–0893, p. 5; 131 So.3d at 431.
The evidence that may be introduced in support of a motion to quash, whether attached to the motion itself or at the hearing, however, varies by the grounds asserted. In Gerstenberger, the Supreme Court has held that, while evidence may be introduced in consideration of some motions to quash, motions to quash claiming defects in the bill of indictment do “not allege a ground which admits of any proof of fact.” 255 So.2d at 722. See also State v. Turnbo, 07–270, p. 6 (La.App. 3 Cir. 10/3/07); 966 So.2d 1220, 1224. The trial court's inability to review evidence when determining the merits of these motions to quash primarily stems from the previously-discussed review framework which calls for examination of the face of the bills of indictment and particulars alone. Therefore, trial courts err by allowing evidence to be heard in their consideration of this specific motion to quash. See Gerstenberger, 255 So.2d at 722.
In the hearings on the motions to quash in both Reyer and Cobb, no evidence was introduced into the record by the prosecution or the defendants. On appeal, however, both defendants sought consideration of certain evidence that they claimed to substantiate their claims that the prescriptive period for instituting prosecution had expired. Regardless of permissibility of the introduction of evidence at these hearings, to be considered on appeal, evidence must be properly introduced at a hearing or made part of the record prior to appeal. See State v. Jackson, 11–1280, p. 11 (La.App. 4 Cir. 8/22/12); 99 So.3d 1019, 1026 ; Miller v. Crescent City Health Care Ctr., 08–1347, pp. 7–11 (La.App. 4 Cir. 5/28/09); 24 So.3d 891, 898–901 (Tobias, J., concurring in part and dissenting in part) (collecting cases); Denoux v. Vessel Mgmt. Serv., Inc., 07–2143, p. 6 (La.5/21/08); 983 So.2d 84, 88. Attachments to briefs are not part of the appellate record and should not be considered on appeal. Again, however, the introduction of evidence is inappropriate to substantiate this particular motion to quash. CONCLUSION
Our decision today is a mistake. A trial judge at the pre-trial stage of a criminal prosecution does not properly have authority to decide untethered to the indictment and a bill of particulars when an offense was committed in order to quash the indictment. But, because by en banc vote such is permitted by our circuit precedent, I am concurring when I really am dissenting.
DYSART, J., concurs for the reasons assigned by J. BONIN.