Opinion
NO. 2011-KA-0770 NO. 2011-KA-0771
03-07-2012
STATE OF LOUISIANA v. CARMEN SNOW STATE OF LOUISIANA v. GINGER P. LARKIN
John F. Rowley, District Attorney Walker H. Drake, Jr., Assistant District Attorney 34th Judicial District, Parish of St. Bernard P. O. Box 947 Chalmette, LA 70044-0947 COUNSEL FOR PLAINTIFF/APPELLEE Bobby Ray T. Malbrough New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT, CARMEN SNOW Juan C. Labadie Gretna, LA 70053
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NOS. 318-749 C/W 318-752, DIVISION "B"
Honorable Manuel A. Fernandez, Judge
Charles R. Jones
Chief Judge
(Court composed of Chief Judge Charles R. Jones, Judge Max N. Tobias, Jr., Judge
Joy Cossich Lobrano)
John F. Rowley, District Attorney
Walker H. Drake, Jr., Assistant District Attorney
34th Judicial District, Parish of St. Bernard
P. O. Box 947
Chalmette, LA 70044-0947
COUNSEL FOR PLAINTIFF/APPELLEE
Bobby Ray T. Malbrough
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT, CARMEN SNOW
Juan C. Labadie
Gretna, LA 70053
COUNSEL FOR DEFENDANT/APPELLANT, GINGER LARKIN
AFFIRMED
The Appellants, Carmen Snow and Ginger Larkin, appeal the denial of their motion to quash by the district court based on the failure of the prosecution to try their case within two years. Finding that the district court did not err, we affirm the judgment of the district court.
In September of 2006, Snow and Larkin were charged with possession of a firearm while in possession of cocaine, and possession of cocaine. Snow was also charged with resisting an officer. Additionally, Larkin was charged with an expired license plate, and possession of drug paraphernalia. Both defendants pled not guilty to the charges. On November 27, 2006, a motions hearing had been set, but Snow failed to appear although her counsel was present. Larkin was present, but her counsel did not appear. On January 29, 2007, the State could not proceed because the needed witness was not in court, and it moved for a continuance. The motions hearing was rescheduled for March 12, 2007, and trial was scheduled for April 10, 2007. On March 12, 2007, the State filed a motion to continue the motions hearing until the trial date on April 10, 2007. On that date, the hearing was reset to April 23, 2007, and the trial was set for June 26, 2007. On April 23, 2007, the State did not have its witnesses, and it moved for a continuance. The district court denied the continuance, and the State entered a nolle prosequi. On July 23, 2007, the State re-instituted the charges against Snow and Larkin. Below, we will be discussing the procedural history of the cases of Snow and Larkin separately, from November 2007 to October 2009.
The Docket Master notes that the trial was scheduled to be on or about April 10-12, 2007.
The Docket Master notes that the trial was scheduled to be on or about June 26-28, 2007.
The State filed bills of information charging Snow with: possession of cocaine; possession of a firearm while in possession of cocaine; and resisting an officer. The State failed to send a notice regarding the refiling of the charges to Snow; therefore on November 5, 2007, Snow did not appear for arraignment of the charges filed against her. The district court issued a bench warrant against Snow for her failure to appear. On March 26, 2009, Snow appeared because of the bench warrant and pled not guilty to the charges. Snow was given notice of the upcoming court appearance. On April 22, 2009, Snow filed a pretrial motion for discovery, motion to suppress, and motion to continue. The hearing for these motions was set for June 1, 2009, and trial was also scheduled for July 28, 2009. On May 15, 2009, Snow filed a motion to continue, and the hearing on the motions was continued from June 1, 2009 to July 13, 2009, and the trial was continued from July 28, 2009 to October 6, 2009. The State sought to produce Deputy Christopher Comeaux as a witness at the motions hearing; however, the deputy failed to appear on the date of the hearing and an instanter subpoena was issued on behalf of the State. On August 17, 2009, the motion hearing was held, and the district court subsequently found probable cause and denied the motion to suppress the evidence.
The Docket Master notes that the trial was scheduled to be on or around July 28-30, 2009.
The Docket Master notes that the trial was scheduled to be on or around October 6-8, 2009.
On July 23, 2007, the State filed bills of information charging Larkin with: possession of cocaine; possession of drug paraphernalia; possession of a firearm while in possession of cocaine; aggravated flight from a police o0000000fficer; expiration of a license plate; and resisting an officer. On November 5, 2007, Larkin pled not guilty, and a motions hearing was set for January 7, 2008. The State sought to produce Deputy Jessie Tarver as a witness at the motions hearing. On that date the deputy was not there to testify; he was on medical leave. On February 12, 2008, Larkin filed a motion for discovery, a motion to suppress, and a motion for a preliminary hearing. On a joint motion, the motions hearing was set for March 3, 2008, and trial for April 8, 2008; Larkin was provided notice for the upcoming scheduled court dates. On March 3, 2008, a hearing on the motions was held, and the district court found probable cause and denied the motion to suppress the evidence. Larkin sought review in this Court, which denied the writ. State v. Larkin, 2008-0561, unpub. (La. App. 4 Cir. 5/28/08).
The Docket Master notes that the trial was scheduled to be on or around April 8-10. 2008.
On April 8, 2008, Larkin moved for a stay, which was denied. Furthermore, on a defense motion, with Larkin waiving rights to speedy trial and to prescription, the trial was continued to September 9, 2008. On September 9, 2008, on a defense motion (with Larkin waiving rights to speedy trial and to prescription), trial was continued to December 2, 2008. The December 3, 2008, entry indicates that on December 2, 2008, Larkin was absent and a bench warrant was issued by the district court. On August 28, 2009, Larkin was arrested on the warrant and appeared in court; trial was set for October 6, 2009.
The Docket Master notes that the trial was scheduled to be on or around September 9-11, 2008.
The Docket Master notes that the trial was scheduled to be on or around December 2-4, 2008.
From October 2009, the settings and continuances in the cases of Snow and Larkin coincide. On a motion by the defense, the trial was continued from October 6, 2009 to May 18, 2010; from May 18, 2010 to August 10, 2010 on a joint motion, with the defense waiving their right to speedy trial and prescription. From August 10, 2010 to November 16, 2010, trial was continued again on the State's motion; and finally from November 16, 2010 to January 25, 2011, on a defense motion. On November 15, 2010, Snow and Larkin filed a motion to quash alleging that the State had failed to bring the case to trial within two years as set forth in La. C.Cr.P. arts. 578, et seq. On December 14, 2010, on a joint motion, the hearing on the motion to quash was continued until the trial date without prejudice.
The Docket Master notes that the trial was scheduled to be on or around May 18-20, 2010.
The Docket Master notes that the trial was scheduled to be on or around August 10-12, 2010.
The Docket Master notes that the trial was scheduled to be on or around November 16-18, 2010.
The Docket Master notes that the trial was scheduled to be on or around January 25-27, 2011.
On January 25, 2011, the district court consolidated the case of Snow with Larkin's case to address the motion to quash, which it denied. The State amended the bills of Snow and Larkin to include a charge of attempted possession of cocaine, and both Appellants pled guilty under State v. Crosby, 338 So.2d 584 (La. 1976). The State dismissed all the other charges. Snow and Larkin waived all delays, and the court sentenced both Appellants to one year at hard labor, which was deferred; they were placed on one year of active probation. Snow and Larkin filed this timely motion of appeal as to the denial of the motion to quash.
Snow and Larkin appealed the district court's denial of their motions to quash. The Appellants filed a motion to consolidate their appeal, and this Court granted the motion. This timely appeal followed.
A review of the record shows that there are no errors patent.
The sole assignment of error raised by Snow and Larkin is that the district court erred by denying their motions to quash when the State failed to take them to trial within two years of the re-filing of the bills of information. The Appellants note that the State had to commence trial by July 23, 2009, because the charges were re-instituted against them on July 23, 2007. They claim that the two-year time period elapsed long ago; therefore, the State had the heavy burden of demonstrating that there was an interruption or a suspension of the time within which the State could commence trial.
In Snow's motion and memorandum to quash, she argued that the charges were re-filed in response to a federal complaint for violating her civil rights being served on the sheriff. Snow claimed that she had never received notice, and there is no proof of service in the record. Snow noted that after forty-seven months the Appellants had still not gone to trial. Snow argued that the State had repeatedly set the hearing on the motions, but it could not produce the deputy to testify. Therefore, it took a long time for the court to be able to rule, and the case should not be suspended during the time that the State continued to reset the hearing. In Larkin's motion and memorandum to quash and memorandum, she argues that she made court appearances, and she has still not gone to trial. Thus, she asserts the State did not carry its heavy burden.
Because the State filed no opposition and made no argument at the hearing on the motion to quash, the Appellants attempt to discount any possible arguments of the State and the reasons articulated by the district court in denying the motion to quash. The Appellants claim that the State cannot argue that the two-year time period was interrupted when Snow failed to appear for arraignment on the re-instituted charges because La. C.Cr.P. art. 579 (A) (3) allows for interruption if a defendant fails to appear pursuant to "actual notice, proof of which appears in the record."
Snow avers that she never received notice of the arraignment; there is no actual notice in the record. Snow argues that the re-institution of the charges by the State was in retaliation for her filing a federal complaint alleging civil rights violations by the police officers; Snow had no pending charges when she filed her complaints in federal court (contrary to the district court's conclusions). Snow asserts that she was not a "fugitive from justice", as the district court concluded, because she had moved after the initial charges had been nolle prosequied, and she was under no obligation to update her address when the bond as to the initial charges should have been cancelled. As such, the district court set a new bond for Snow on the re-instituted charges. Snow further claims that there is nothing in the record to indicate that she left her usual abode to avoid detection or prosecution, and the State did not file an opposition to the motions to quash in which it could have made its arguments relating to her failure to appear until March 2009, when she became aware of an arrest warrant. The State did not allege that it had used due diligence to discover Snow's whereabouts, and the district court did not address that issue. If the State did not establish an interruption, then her motion to quash should have been granted. In addition, Snow argues that she did not waive prescription. The only entry in the record relates to an attorney standing in as her counsel on May 18, 2010 (a date far beyond the two year period), after a joint motion for a continuance, which she argues does not interrupt prescription.
Snow points to an error in the district court's reasons indicating that counsel for Snow moved for a continuance on August 10, 2010, when the Docket Master shows that the trial was
Larkin also claims that the State took no action to set her case for trial. Larkin asserts that she made appearances after the July 23, 2007 re-filing of the charges (including two additional charges); however, during that time, the State requested no fewer than five continuances, either independently or jointly with the defense: on August 13, 2007; January 8, 2008; December 3, 2008; May 18, 2010; August 10, 2010; November 16, 2010; and December 14, 2010. Forty-one months elapsed between July 23, 2007, and January 25, 2011. Larkin argues that the State took no action to find Snow or to set the cases for trial, and the State and the court flaunted authority and made Snow and Larkin appear in court and incur legal expenses as retaliation. Larkin avers that she never waived prescription, and was always present in court when she received notice, but the State failed to produce the witnesses to go to trial.
The State argues that it re-instituted the charges within the time limitation of La. C.Cr.P. art. 578 (A) (2) and within six months of entering a nolle prosequi in the original cases. The State concedes that service was not made on Snow until March 26, 2009, the date that she was arraigned. The State notes that on April 22, 2009, months prior to the tolling of the time limitation, Snow appeared and filed pretrial motions including a motion to continue that suspended the running of the two-year time limitation until the district court's ruling on the motions on August 17, 2009. Trial was continued to July 28, 2009, and then on May 15, 2009, a defense motion to continue was granted. After a motions hearing was continued, the district court found probable cause and denied the motion to suppress on August 17, 2009.
Actually, the bench warrant was the reason that Snow was there in court.
The State further argues that when Larkin and Snow filed motions to quash on November 15, 2010, and then moved to continue that hearing to January 25, 2011, the running of the time period was suspended during that time. The State continued on the motion of the State on that date. claims that the time limitation was suspended from April 22, 2009 to August 17, 2009 (when Snow's pretrial motions were pending), and from November 15, 2010 to January 25, 2011 (when her motion to quash was pending, and that 71 days had lapsed according to the State). However, the State relies on the language of La. C.Cr.P. art. 580, which provides that the State in no case shall have less than one year from the ruling to commence trial. The State contends that it had until January 25, 2012, to commence the trials.
In its ruling, the district court focused on the Appellants' filing of pretrial motions that suspended the running of the time period, including the motions to quash. The court also believed that Snow was a fugitive from justice, which the State did not establish.
The State notes that Larkin filed pretrial motions on February 12, 2008, and those motions suspended the running of the time limitation until the district court's ruling on March 8, 2008. However, when Larkin sought review by supervisory writ application numbered 2008-K-0561, the suspension of time continued until this Court denied the writ on May 28, 2008. On April 8, 2008, Larkin moved for a continuance to September 9, 2008, and on that date Larkin moved to continue the trial, and it was set for December 2-4, 2008 (with notices given). On December 2, 2008, Larkin did not appear, and the State argues that Larkin's failure to appear long before the tolling of the time period triggered an interruption in the running of the time, and the two-year period ran anew from August 28, 2009, when Larkin next appeared in court (until August 28, 2011, if no interruptions or suspensions). Larkin moved to continue the October 6, 2009 trial date, and it was reset to May 18-20, 2010. When Larkin filed a motion to quash on November 15, 2010, the time period was suspended until the district court's denial of the motion on January 25, 2011. The State argues that La. C.Cr.P. art. 580 provides that "in no case shall the state have less than one year after the ruling to commence the trial." Therefore, it had until January 25, 2012 to commence trial.
The district court, at the January 25, 2011 hearing on the motions to quash, denied the Appellants motions. The district court provided its reasons, stating in part:
I want to particularly note, relative to defendant Carmen Snow, she was a fugitive from justice from November 5, 2007 to March 26, 2009. She was a fugitive from justice when she filed a Federal suit alleging police brutality. She was present enough to be able to file a Federal suit, but not to respond to the charges.
The case was continued on October 6, 2009 by John Finckbeiner. And then it was continued on May 18, 2009 by attorney Dan Robin. And it was continued again on August 10, 2010 by Mr. Malbrough. It was set on November 16, 2010, and continued because of a Motion to Quash, which was another defense continuance. The matter was continued finally on November 14, 2010, and that was a joint continuance.... [O]n May 18th Mr. Finchbeiner continued that case. He waived speedy trial and prescription. Mr. Malbrough continued it on August 10th, and there is no notation of a waiver.
With respect to defendant Larkin, the matter was continued on joint motion on February 12, 2008. On April 8, 2008, defense continuance, Mr. Labadie waived prescription and speedy trial. The defendant, Ms. Larkin, was absent and a fugitive from justice from December 2, 2008 until August 25, 2009.
Trial was, again, continued by the defense, Mr. Labadie, on October 6, 2009. There is no notation of a waiver on that date.
On May 18, 2010, it was continued by the defense again with a waiver of prescription and speedy trial. On August 10, 2010, it was continued by the State. On August 16th, 2010, it was continued because of the
Motion to Quash that was filed and continued, again, on joint motion to December 14, 2010.
In light of those facts, I do find that there has been significant interruption, such as to suspend the running of prescription against the bringing of this matter to trial. Particularly and clearly when the defendant is a fugitive from justice, although they were availing themselves their right to litigate the police brutality claims in Federal Court, but were unavailable for the prosecution against them.
Mr. Finckbeiner's name is spelled two different ways in the transcript.
There are three Louisiana Code of Criminal Procedure articles that are applicable to the instant matter: Articles 578 - 580.
La. C.Cr.P. art. 578, entitled General Rules, provides:
A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
B. The offense charged shall determine the applicable limitation.
The State had two years from the date it re-filed the charges against Snow and Larkin on July 23, 2007, to commence trial unless some action suspended or interrupted that time period. La. C.Cr.P. art. 579, entitled Interruption of time limitation, provides:
Neither Snow nor Larkin allege a violation of her constitutional right to a speedy trial under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972).
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.
La. C.Cr.P. art. 580 entitled Suspension of time limitations, prior to its amendment by La. Acts 2010, No. 744, § 1, provided:
La. C.Cr.P. art. 580 after the 2010 amendment (that does not impact this issue) provides:
A. 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.
B. The periods of limitation established by Article 578 shall also be suspended if the court grants a continuance in accordance with the provisions of Paragraph B of Article 709.
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.
A defendant may raise the issue of the expiration of the time limitation for commencement of trial by means of a motion to quash. See La. C.Cr.P. art. 532 (A)(7). As noted in the articles quoted above, the time limitation is subject to suspension and/or interruption. The appellate courts generally review trial court rulings on motions to quash under an abuse-of-discretion standard. State v. Dillon, 2011-0188, p. 4 (La. App. 4 Cir. 8/24/11), 72 So.3d 473, 475; State v. Love, 2000-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206.
Once the original two-year period for the institution of prosecution has lapsed and a defendant moves to quash the charges due to a violation of La.C.Cr.P. art. 578 (A)(2), the State bears a heavy burden of justifying any delay. State v. Odom, 2006-0975, p. 4 (La. 11/3/06), 941 So.2d 24, 26. The State must demonstrate either an interruption or a suspension of the time limit so that prescription did not toll. "An interruption of prescription occurs when the state is unable, through no fault of its own, to try a defendant within the period specified by statute." State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1287. Preliminary pleas that suspend the running of the prescriptive period under La.C.Cr.P. art. 580 include motions to suppress evidence, motions for preliminary hearing, and defense motions for continuance. State v. Brazile, 2006-1611, p. 3 (La. App. 4 Cir. 5/30/07), 960 So.2d 333, 335, writ denied, 2007-1339 (La. 1/7/08), 973 So.2d 733. Joint motions for continuance constitute preliminary pleas under art. 580. Id. Such preliminary pleas suspend the running of prescription until ruled upon, after which the State has no less than one year, or the balance of the prescription period, whichever is longer, to bring the case to trial. State v. Fish, 2005-1929, pp. 1-3 (La. 4/17/06), 926 So.2d 493, 494-95.
Here, in the matter sub judice, although the State had the burden of proof, it did not file an opposition to the motion to quash. And, at the hearing the State expressed its interest to submit a response on the record. As previously stated, the charges against Snow and Larkin were re-filed on July 23, 2007; and it is now the beginning of 2012, and no trial has been held. The two-year time period would have elapsed years ago unless there had been suspensions or interruptions of the running of the time period. The State's arguments relating to pretrial motions that suspended the running of the time limitation support the judgment of the district court. Although the court was convinced that Snow was "a fugitive from justice" who was using the judicial system to file a federal suit even though she could not be served with notice of trial, that was not the basis for the court's judgment. The district court focused on the pretrial motions, especially the motions to continue and the motion to quash, that suspended the time limitation within which to institute prosecution.
The State provided no proof to the district court of actual notice to Snow, who failed to appear for re-arraignment, or of its due diligence in trying to locate an updated address for Snow. Snow had been charged by a bill of information on July 23, 2007, with three charges, and she was out on bond as of November 5, 2007. The State did not present proof of notice. However, the record indicates that after appearing in March 2009, she filed a pretrial motion for discovery, motion to suppress, and motion to continue on April 22, 2009, and the State persuasively argues that the filing of these motions suspended the running of time until the court ruled on them on August 17, 2009. The dates for the pretrial motions hearing and the trial were June 1, 2009 and July 28, 2009, respectively. On May 15, 2009, Snow filed a motion to continue, and the motions hearing and the trial were reset to July 13, 2009 and October 6, 2009, respectively. On November 15, 2010, Snow filed a motion to quash, which suspended the running of the time until January 25, 2011, when the court denied the motion. We find that pursuant to art. 580, the State had one year from the January 25, 2011 ruling to commence trial.
The Docket Master notes that the trial was scheduled to be on or around October 6-8, 2009.
The State notes that on February 12, 2008, Larkin filed pretrial motions, including a motion for discovery, a motion to suppress, and a motion for a preliminary examination. The district court denied the motion to suppress on March 3, 2008. On October 6, 2009, Larkin filed a motion to continue, and the trial was reset to May 18, 2010. The State persuasively argues that those preliminary motions suspended the running of the two-year time period until the district court ruled on them as provided in part by La. C. Cr. P. art 580. Furthermore, the State relies on art. 580, which provides that the State shall not have less than one year from those ruling dates to commence trial. Additionally, Larkin failed to appear for trial on December 2, 2008, and a bench warrant was issued on December 3, 2008. That failure to appear interrupted the time limitation, which would then run anew. From December 3, 2008 to when Larkin was arrested on August 28, 2009 and the bench warrant was recalled, the two-year period started anew, under art. 579 and would have ended on August 28, 2011. Of course, each of the Appellants filed a motion to quash on November 15, 2010, which suspended the running of the time period for each until the district court denied the motions on January 25, 2011.
The Docket Master notes that the trial was scheduled to be on or around May 18-20, 2010.
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We find that under La. C.Cr.P. art. 580, the State had at least one year from January 25, 2011, or until January 25, 2012, to take the Appellants to trial. The record shows that the district court properly denied the motions to quash. Thus, the Appellants assignment of error has no merit.
DECREE
For the foregoing reasons, the denial of the motion to quash by the district court is affirmed, and the conviction and sentence of Carmen Snow and Ginger Larkin are affirmed.
AFFIRMED