Opinion
NO. 2014 KA 1084
03-06-2015
STATE OF LOUISIANA v. STEVEN SMITH
WALTER P. REED DISTRICT ATTORNEY COVINGTON, LA JAMES ADAIR ASSISTANT DISTRICT ATTORNEY FRANKUNTON, LA AND KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA BERTHA M. HILLMAN THIBODAUX, LA ATTORNEY FOR DEFENDANT-APPELLANT STEVEN SMITH
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court in and for the Parish of Washington, Louisiana
Docket No. 01 CR8 83148
Honorable Hillary J. Crain, Judge
WALTER P. REED
DISTRICT ATTORNEY
COVINGTON, LA
JAMES ADAIR
ASSISTANT DISTRICT ATTORNEY
FRANKUNTON, LA
AND
KATHRYN LANDRY
SPECIAL APPEALS COUNSEL
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
BERTHA M. HILLMAN
THIBODAUX, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
STEVEN SMITH
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. PETTIGREW, J.
The defendant, Steven Smith, was charged by bill of information with driving while intoxicated (DWI), fourth offense, in violation of La. R.S. 14:98. The defendant pled not guilty. The district court granted the defendant's motion to quash one of the predicate offenses, but denied his motion to quash the billi of information based on untimely prosecution. The defendant withdrew his previous not guilty plea and pled guilty to DWI, third offense, reserving the right to appeal the district court's denial of his motion to quash the bill of information on the basis of untimely prosecution, pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). The district court sentenced the defendant to five years imprisonment at hard labor and suspended all but thirty days of the sentence, which it ordered he serve without the benefit of probation, parole, or suspension of sentence. The district court further imposed, upon the defendant's completion of thirty days and his release, five years supervised probation under general and special conditions, including imposition of a $2000.00 fine, 240 hours of community service, substance abuse evaluation and recommended treatment, payment of $250.00 to the indigent defender fund, and $100.00 to the judicial expense fund. The defendant appealed, challenging the district court's denial of his motion to quash the bill of information based on untimely prosecution. In an unpublished opinion, this Court vacated the district court's ruling on the motion to quash the bill of information, for lack of evidence, and remanded for a rehearing on the motion to quash. State v. Smith, 2013-1246 (La. App. 1 Cir. 3/11/14), 2014 WL 931252.
After a hearing on remand, the district court again denied the motion to quash. The defendant appeals, assigning error to the admission of the sheriff's return and to the district court's denial of his motion to quash. For the following reasons, we reverse the conviction and sentence and order the defendant discharged on this offense.
STATEMENT OF FACTS
Since the defendant stipulated that a factual basis existed for the instant offense and pled guilty, the facts of the offense were not developed. According to the bill of information, the instant offense occurred on October 13, 2001.
ASSIGNMENT OF ERROR NUMBER ONE
In assignment of error number one, the defendant contends that the sheriff's service return, showing an attempted service on him on May 4, 2004, for a court date on June 2, 2004, was improperly admitted at the hearing on remand. The defendant notes that the return was presented by the State as evidence to prove that service of a summons had been refused by the defendant's, father at the address on the bond document. The defendant also argues that it constituted improper hearsay, noting that the deputy who served the summons was not called to testify, and he did not have a prior opportunity to cross-examine the deputy. The defendant contends that the error was not harmless, noting that the State presented no other evidence that he had actual notice of the June 2, 2004 hearing.
The defendant's right to confront and cross-examine witnesses against him, found in the Sixth Amendment to the United States Constitution, is a fundamental right and applicable to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 LEd.2d 923 (1965). In addition, this right to confrontation is found in the Louisiana Constitution. See La. Const. art. I, § 16. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 LEd.2d 177 (2004), the lower court allowed a spouse's recorded statement to be used in lieu of live testimony because the defendant invoked the marital privilege. The Supreme Court granted certiorari to determine whether the State's use of the spouse's statement violated the Confrontation Clause. After reviewing the Clause's historical underpinnings, the Court held that it guarantees a defendant's right to confront those "who bear 'testimony'" against him. Crawford, 541 U.S. at 51, 124 S.Ct. at 1364. The Court further held that a witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54, 124 S.Ct. at 1365.
Nonetheless, a sheriff's return, when received by the Clerk of Court, shall form part of the record and shall be considered prima facie correct. La. C.Cr.P. art. 736(A); State v. Smith, 2007-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 836. Prima facie evidence is defined in Black's Law Dictionary, 579 (7th ed. 1999), as "[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced." Article 736, which is expressly addressed to the subpoenaing of witnesses, has been applied to a defendant's notice of trial. See State v. Mills, 390 So.2d 874, 877 (La. 1980). In State v. Ledener, 253 La. 915, 221 So.2d. 47 (1969), Summit Fidelity and Surety Company asserted a claim against the State requesting that a bond forfeiture be set aside. The surety argued that the returns of the sheriff and of his deputies showing the required services are not sufficient, and that it is necessary that the process servers be called to testify thereto. The Louisiana Supreme Court disagreed with this argument, citing in part State v. Myers, 221 La, 173, 59 So.2d 111 (1952), wherein the Court found that the requirement of proof of service was satisfied by the recitation in the sheriff's return. Ledener, 221 So.2d at 49; see also State v. Patterson, 2002-879 (La. App. 3 Cir. 2/5/03), 838 So.2d 872, 875-76 (wherein the Third Circuit Court of Appeal found that the trial judge's reading of the sheriff's return into the record was proper evidence that notice was given to defendant).
The courts in Ledener and Patterson also considered La. C.C.P. art 1292.
Based on the foregoing, we find that the Crawford case on which the defendant relies is not controlling because in this case, the sheriff's return is part of the record and was properly admitted by the district court on remand. Accordingly, assignment of error number one lacks merit,
We note that although the defendant seems to concede otherwise in his brief on appeal, based on our review of the evidence, the return of service apparently was not signed by the sheriff in this case and the address on the return is "55129 Hwy 1074," while the address on the defendant's bond document is "55131 Hwy 1074." Finally, the return does not give the defendant notice of a June 2, 2004 court date, but instead orders the defendant to appear on June 14, 2004. After the evidence was admitted, the defense presented the testimony of the defendant's father who confirmed that service was attempted at his residence (at 55131), that he refused as indicated in the return, and he informed the deputy that the defendant lived behind him in a mobile home.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant argues that the district court erred on remand in finding that he had actual notice of a hearing on June 2, 2004. The defendant contends that the sheriff's return and the testimony of his father, Michael Smith, established that there was no notice at all. The defendant further contends that the deputy went to the wrong house, as he attempted to serve the defendant at his father's house. The defendant notes that while his father testified that he refused service and told the deputy that the defendant lived in a mobile home behind the house on the same property, there was nothing in the record to show that the deputy went to the defendant's mobile home to attempt service. Thus, the defendant argues that there was no interruption of the time limitation, and that at the time of his 2010 arrest, the time limitations for prosecution had lapsed. The defendant further argues that even assuming he had actual notice of the June 2,: 2004 hearing, the time limitation still lapsed, noting that he was incarcerated in 2006 and 2008 in Washington Parish, and that his whereabouts were, therefore, Known during that time period.
After the ruling at issue, denying the motion to quash, the defendant stated in open court that he was in jail in 2006 and 2008 for failure to pay child support and asked why he was not attached during those periods of incarceration. As noted by the State on appeal, the record does not establish the defendant's specific time period(s) of incarceration.
When a district court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the district court's discretion. See State v. Odom, 2002-2698 (La. App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a district court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094 (La. 7/6/00), 766 So.2d 501, 504.
Louisiana Code of Criminal Procedure article 578(A)(2) provides that trial of noncapital felonies must be held within two years from the date of the institution of the prosecution. "Institution of prosecution" includes the finding of an indictment, or, as in this case, the filing of a bill of information, or affidavit, which is designed to serve as the basis of a trial. See La. C.Cr.P. art. 934(7); State v. Cotton, 2001-1781 (La. App. 1 Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La. 12/13/02), 831 So.2d 982. A motion to quash is the proper vehicle to assert that the'time limitation for the commencement of trial has expired. La. C.Cr.P. art. 532(7). Upon expiration of this time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. See La. C.Cr.P. art. 581. When a defendant has brought an apparently meritorious motion to quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or a suspension of time such that prescription will not have tolled. State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286; State v. Haney, 442 So.2d 696, 697-98 (La. App. 1 Cir. 1983).
Louisiana Code of Criminal Procedure article 579, prior to amendment by 2013 La. Acts No. 6, § 1, provided:
A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, With the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.
Louisiana Code of Criminal Procedure article 580, concerning the suspension of the time limitation, states that when a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the State have less than one year after the ruling to commence the trial. The prescriptive period is merely suspended until the district court rules on the filing of preliminary pleas; the relevant period is not counted, and the running of the time limit resumes when the court rules on the motions. A preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial, including properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. State v. Brooks, 20C2-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam).
Herein, the defendant was charged with a noncapital felony, thus trial was required to commence within two years of the date of the institution of the prosecution. The bill of information was filed on November 20, 2001, and the defendant's Boykin hearing and guilty plea took place on March 20, 2013. More than eleven years elapsed from the filing date of the original charging instrument to the date of the guilty plea. Thus, the State had the burden of showing an interruption or suspension of time such that prescription would not have tolled. The defendant filed a motion to quash based on untimely prosecution on November 18, 2010, and filed modified motions on the same basis on February 3, 2011 and May 3, 2012. The hearing on the motion to quash took place on April 4, 2011, and the district court took the matter under advisement. The district court denied the motion to quash on April 25, 2011, and again stated that the motion was denied at the Boykin hearing on March 20, 2013.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed,2d 274 (1969).
A suspension of time began on January 24, 2002, two months and four days after the institution of prosecution, when the defendant filed motions to suppress his confession and evidence, and for a Prieur hearing. On February 14, 2002, the defendant filed a "motion to quash and to suppress evidence of prior offense," also causing a suspension of time. On May 7, 2002, the district court granted the motion to quash as to a June 2001 predicate offense. The record reflects that the defendant failed to appear on May 20, 2002, although he was given actual notice to appear at the arraignment This failed appearance resulted in an interruption of the time limitation period. The motions to suppress and the motion for a Prieur hearing were ordered dismissed on April 15, 2003, however the minute entry does not indicate whether the defendant was present at the hearing. The record reflects that the defendant failed to appear again on June 2, 2004. We note that the record is devoid, even after remand, of proof of service or actual notice to appear on June 2, 2004, although in the original appeal, the defendant conceded that an interruption took place on that date.
State v. Prieur, 277 So.2d 126 (La. 1973).
On motion of the State, the district court ordered an attachment and bond forfeiture. On September 15, 2010, after the defendant's arrest on the open attachment issued on June 2, 2004, the district court denied the defendant's motion for a bond reduction. The district court granted continuances requested by the defendant on November 16, 2010 and February 4, 2011. On April 25, 2011, the district court denied the defendant's motion to quash based on untimely prosecution. The district court noted that the defendant failed to appear in May 2002; that service was attempted in June 2004, at an address provided by the defendant; that the defendant's father refused service; that an attachment and bond forfeiture was ordered on motion of the State; and that the defendant was arrested on the attachment in July 2010. The district court concluded that the two-year time period was interrupted from the defendant's June 2004 failed appearance until the defendant's arrest in 2010. The district court also noted that there were pending motions that served as suspensions of the time limitation.
In remanding the case for a reopened hearing after the defendant's initial appeal, this court noted the absence in the record of any motions that were pending at the time of the district court's ruling, or of documentation that the defendant was personally served with notice to appear on June 2, 2004. While noting that the defendant conceded on appeal that when an interruption took place as a result of his failure to appear on June 2, the time limitation had not yet elapsed, this court further noted that the record was devoid of any evidence that the defendant subsequently was served, such that the time limitation would not have elapsed. We remanded the case for the district court to receive, at the reopened hearing, testimony and/or documentary evidence relevant to the defendant's argument that the time limitation for the commencement of trial has expired.
On remand for a reopened hearing on the issue, the State noted that the defendant was picked up on an attachment in December 2003, and reintroduced the bond document to show the defendant bonaed out on January 15, 2004, and had notice to appear at the next trial date. The State also introduced a service return that was supported by testimony presented by the sole witness, Michael. Smith, the defendant's father. The return of service along with the defendant's father's testimony showed that on May 4, 2004, service that would have, given-notice.of:a June. 14, 2004 trial date was attempted at the address provided by the defendant when he posted bond, and his father refused service. However, there is no minute entry in the record showing that the defendant failed to appear on June 14, 2004, in again denying the motion to quash on remand, the district court did not give specific reasons, but noted its consideration of the exhibits on remand and the entire record.
In the instant appeal the State cites La. C.Cr.P. art. 579(A)(2) and notes the record shows that unsuccessful attempts wete made to serve the defendant In June 2004.
Specifically, the State argues that it was unable to secure the defendant's presence for trial for reasons outside the control of the State.
In summary, the record, including the evidence presented on remand, reveals the following timeline:
• On November 20, 2001, the State filed the bill of information instituting prosecution.
• On January 24, 2002, the defendant filed motions to suppress confession and evidence, and a motion for a Prieur hearing, causing a suspension of the time limitation.
• On February 14, 2002, the defendant filed a motion to quash and to suppress evidence of at least one predicate offense, causing another suspension,
• On May 7, 2002, the district court granted the motion to quash a predicate offense. However, the other motions were still pending,
• On May 20, 2002, the defendant failed to appear despite actual notice at the arraignment. Thus, the time limitation was interrupted at this time.
• On April 15, 2003, the district court dismissed the pending motion to suppress and- motion for. a Prieur hearing. The minute entry does not indicate that the defendant was present.
• On January 15, 2004, the defendant bonded out after previously having been picked up on an attachment and the bond document included notice to appear for the new trial date on March 10, 2004 (there is no minute entry regarding
this trial date) Thus, the cause for the interruption no longer existed anc the. time limitation began to run anew, giving the. State until January 15, 2006, to commence trial,
• On May 4, 2004, service was attempted to order the defendant to, appear for a June 14, 2004 trial, date, and the defendant's father refused service (though there is no minute entry to show a failed appearance, for the June, 14, 2004 trial date).
• On June 2, 2004. the defendant failed to appear (though there is still no proof of service or actual notice to appear for this date, the defendant conceded that an interruption took place on this date). On motion of the State, the district court ordered an attachment and bond forfeiture.
• On September 15, 2010, after the defendant was arrested on the 2004 open attachment, the district court denied the defendant's motion for bond reduction.
• On November 16, 2010, the district court granted the defendant's, motion to continue the trial until January 31, 2011.
• On November 18, 2010, the defendant filed a motion to quash based on untimely prosecution.
• On February 4, 2011. the district court granted the defendant's motion to continue the trial until April 25, 2011.
• On April 25, 2011, the district court, denied the motion to quash based oh untimely prosecution.
• On September 2, 2011, the district court granted the defendant's motion to continue the trial until December 2, 2011.
• On December 2, 2011, the district court granted the defendant's motion to continue the trial until February 6, 2012.
• On February 10, 2012, the district court granted the State's motion to continue the trial until April 23, 2012. The defendant was present and received actual notice in court,
• On April 23, 2012, the defendant failed to appear. On motion of the State, the district court ordered an attachment and bond forfeiture.
• On May 3, 2012, the defendant filed his final motion to quash based on untimely prosecution.
• On March 20, 2013, the district court denied the motion to quash based on untimely prosecution and accepted the defendant's guilty piea.
As noted, the district court initially indicated that the time limitation was interrupted from the defendants June 2, 2004 failed appearance, until his arrest in 2010. Nonetheless, the record remains devoid of any evidence of an attempt to serve the defendant after 2004. Further, there are no minute entries between June 2, 2004 and September 15, 2010.
In State v. Taylor, 439 So.2d 410 (La. 1983), the State, first, attempted service of a notice of arraignment, on a DWI defendant, at the address written on the traffic citation issued at the time of the offense. When this attempted service was returned showing there was no such address, service was attempted at the address shown on the defendant's bond. However, the. office attempting service testified that an unidentified man at the apartment complex told him that he did not think that the defendant lived there, so the return was endorsed "unable to locate" and filed in the record. This officer testified that he made one more unsuccessful attempt at that address, but he could not recall the date, and the return on this attempt was not reflected in the record therein. An arrest warrant was issued when the defendant failed to appear for arraignment. The defendant subsequently moved to a new residence, notifying his probation officer, but not the court handling the DWI charge; he also failed to notify the court of his later move out of state. While the State argued that the defendant's actions made his presence unobtainable and evidenced the intent to avoid prosecution, the Supreme Court held that the State had not made a "due and diligent effort to subpoena the defendant." The Court concluded that there was insufficient evidence of any intent to elude the authorities. Taylor, 439 So.2d at 414. The Court found that there was no interruption in the time period, and the charge had to be dismissed.
Herein, on remand, while the State presented evioence to show an attempt to serve the defendant on May 4, 2004 (to give notice of a June 14, 2004 trial date for which there is no minute entry to show a fa;iure to appear), the record was not supplemented with proof to show the defendant had actual notice to appear on June 2, 2004. In its brief in the instant appeai, the State cited State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722, 726-27, wherein the Louisiana Supreme Court, pursuant to La. C.Cr.P. art. 579(A)(3), found that the period of limitation did not begin to run anew until the defendant was arrested on an open attachment and appeared in court. In that regard, the Court therein noted that the defendant received actual notice in court to appear for trial on April 18, 1998; the defendant failed to appear, and the State prompted the district court to issue an attachment for his arrest. Notwithstanding that the defendant conceded, in the original appeai herein, that an interruption took place on June 2, 2004, La. C.Cr.P. art. 579(A)(3) specifically requires proof in the record of actual notice. Unlike the facts presented in Romar, in the instant case there is no proof in the record of actual notice to appear on the date the attachment was issued. Moreover, the record contains no proof of any attempt thereafter to locate the defendant in order to meet the due diligence requirements of La. C.Cr.P. art. 579(A)(1) and (2). Therefore, the record is devoid of any evidence of a suspension or continuing interruption that would have prevented the two-year period from elapsing on January 15, 2006, long before April 25, 2011, when the district court denied the motion to quash based on untimely prosecution.
The State bears the burden of proving that the time limitation of La. C.Cr.P. art. 579(A)(2) has been interrupted or suspended such that the two-year limitation did not elapse. That burden requires the State to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Chadbourne, 98-1998 (La. 1/8/99), 728 So.2d 832 (per curiam). Moreover, in order for the State to meet its burden, the record must "clearly" establish that the purpose of the defendant's absence is to avoid detection, apprehension, or prosecution. Taylor, 439 So.2d at 414. Accordingly, the State did not meet its burden of proving under La. C.Cr.P, art. 579(A)(1) and (2) that the defendant's presence could not be obtained within the applicable time period by legal process or for any other reason beyond its control.
Therefore, the district court abused its discretion by denying the motion to quash. Because the defendant's motion to quash is meritorious and should have been granted by the district court, we hereby reverse his conviction and sentence, and the defendant is ordered discharged on this offense. See La. C.Cr.P. art. 581. CONVICTION AND SENTENCE REVERSED; DEFENDANT ORDERED DISCHARGED. Welch, J., dissenting.
I respectfully disagree with the majority's conclusion that the trial court abused its discretion in denying the motion to quash. Under La. Code Crim. P. art. 579(A)(1) & (A)(2), to satisfy its burden in establishing that an interruption or suspension of the prescriptive period has occurred, the State "must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him." State v. Chadbourne, 98-1998 (La. 1/8/99), 728 So.2d 832, 832 (per curiam). However, the Louisiana Supreme Court in State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722, 726, firmly held that "La. Code Crim. P. art. 579(A)(3) does not impose on the State the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice."
Much of the delay in the commencement of trial can be attributed to the defendant's pretrial motions, failure to appear, and requests for continuances, and the trial court's many continuances that were not attributed to the State. The record does not reveal an intentional delay on the State's part for the purpose of gaining a tactical advantage. The trial court initially indicated that the time limitation was interrupted from the defendant's June 2, 2004 failed appearance until his arrest in 2010. The defendant conceded that an interruption took place when he failed to appear on June 2, 2004. The State then took the necessary steps to secure the presence of the defendant by prompting the trial court on June 2, 2004, to issue an attachment for his arrest. Louisiana law affords the State the discretion to keep the attachment open as a trip wire against the day when a defendant again comes to the attention of the authorities. A warrant for arrest "remains in effect until executed," and Louisiana no longer requires an accounting to the judge who issues a warrant of the reasons why it has not been promptly executed. La. Code Crim. P. art. 205; Romar, 985 So.2d at 727. Herein, the defendant was arrested on the attachment in July of 2010, and the State would have had until July of 2012 to commence trial On February 10, 2012, the defendant was present in court when the trial court granted the State's motion to continue the trial until April 23, 2012, and received actual notice to appear on April 23, 2012. However, the defendant failed to appear on April 23, 2012, and the court again ordered an attachment and bond forfeiture on motion of the State. Thus, another interruption occurred on April 23, 2012, and in accordance with La. Code Crim. P. art. 579(B), the two year period of limitation commenced to run anew from the date the cause of this interruption no longer existed. Therefore the period of limitation could not have lapsed by the date the defendant filed his final motion to quash based on untimely prosecution on May 3, 2012, or by March 23, 2013, when the trial court denied the motion and accepted the defendant's guilty plea in the instant case.
For these reasons, I find that the state did not violate the time constraint imposed by statutory law. Because the trial court did not abuse its discretion in denying the motion to quash, I would affirm the defendant's conviction and sentence.
The defendant's constitutional right to a speedy trial was not invoked or raised herein.