Opinion
NO. 2017-K-0445
06-05-2017
STATE OF LOUISIANA v. KENNETH LANDRIEU
LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY OF ORLEANS PARISH DONNA R. ANDRIEU ASSISTANT DISTRICT ATTORNEYOF ORLEANS PARISH CHRISTOPHER J. PONOROFF ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH 619 South White Street New Orleans, Louisiana 70119 Counsel for State of Louisiana THOMAS M. CALOGERO 2955 Ridgelake, Ste 114 Metairie, Louisiana 70002 AND JUSTIN A. ZITLER 4819 Constance Street New Orleans, Louisiana 70119 Counsel for Defendant/Respondent
NOT DESIGNATED FOR PUBLICATION
ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 526-779, SECTION "G"
HONORABLE BYRON C. WILLIAMS, JUDGE JAMES F. MCKAY III CHIEF JUDGE (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins) LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY OF ORLEANS PARISH
DONNA R. ANDRIEU
ASSISTANT DISTRICT ATTORNEYOF ORLEANS PARISH
CHRISTOPHER J. PONOROFF
ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH
619 South White Street
New Orleans, Louisiana 70119
Counsel for State of Louisiana THOMAS M. CALOGERO
2955 Ridgelake, Ste 114
Metairie, Louisiana 70002
AND
JUSTIN A. ZITLER
4819 Constance Street
New Orleans, Louisiana 70119
Counsel for Defendant/Respondent
WRIT DENIED WITH REASONS
The state files this writ application seeking review of the trial court's May 4, 2017 ruling, granting defendant's motion to waive jury trial. For the reasons set forth below, the state's writ is denied. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On October 16, 2015, the state filed a bill of information charging defendant with aggravated assault with a firearm and impersonation of a peace officer, following an incident allegedly occurring on September 12, 2015. A jury trial was initially set for April 19, 2016. After a number of continuances, the trial was reset to July 12, 2016. Defendant filed a motion to waive trial by jury on July 11, 2016, which the trial court denied with written reasons on September 16, 2016. Defendant timely sought review in this Court, State v. Landrieu, 2016-K-1114 (La. App. 4 Cir. 11/30/16), and the Supreme Court, State v. Landrieu, 2017-0009 (La. 2/10/17), ___ So.3d ___, both of which denied writs.
The state later dismissed the impersonation of a peace officer charge.
On March 30, 2017, the state filed an amended bill of information reflecting that the offense occurred on September 10, 2015, which resulted in the case being re-allotted from Section "A" to Section "G." Defendant then filed a new motion to waive jury on April 28, 2017, which the court granted, setting the bench trial for June 12, 2017, while authorizing the state to file an opposition to the motion, which the state filed on May 2, 2017. At a hearing on May 4, 2017, the court affirmed its earlier ruling, allowing defendant to waive the jury. The state immediately noticed its intent to seek writs and requested a stay. The court denied the stay, and set a return date of May 31, 2017. The state's timely filed writ application followed. LAW AND ANALYSIS
As recognized by the Louisiana Supreme Court in State v. Bazile, 2012-2243, pp. 9-10 (La. 5/7/13), 144 So.3d 719, 728, "[t]here is no explicit right to a trial by judge under the federal constitution. Instead, the only right to a particular mode of trial explicitly secured for criminal defendants in the federal constitution is the right to trial by jury. See U.S. Const. art. III, § 2, cl. 3;10 and U.S. Const. amend. VI." (footnotes omitted).
La. Const. art. I, §17(A) was amended in 2010 to provide, in pertinent part:
Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable. (emphasis added).
In Bazile, the Court specified that the 45-day period applied to the initial trial setting regardless of any subsequent continuances. Id. at p. 20, 144 So.3d at 735. The Court further explained:
As this case shows, an initial trial setting may be continued again and again, which would turn a defendant's actual date of trial into a moving target. Since trial settings are often extended for a variety of reasons, there must exist a fixed point in time by which the timeliness of a defendant's jury waiver can be determined. If the term "trial date" is interpreted to mean a date which could be continued, this interpretation would conflict with the clear intention of the provision to prevent last minute jury trial waivers. Thus, we interpret
the term "trial date" in La. Const. art. I, § 17(a) to mean the initial trial setting. (footnote omitted).Bazile, 2012-2243, pp. 20-21, 144 So.3d at 735.
In accord with the 2010 amendment to the Constitution, La. C.Cr.P. art. 780 was amended by Acts 2013, No. 343, and now provides:
The earlier version of the code article provided in pertinent part that "[t]he defendant shall exercise this right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial." See former La. C.Cr.P. art. 780(B). --------
A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.
B. The defendant shall exercise his right to waive trial by jury in accordance with Article I, Section 17 of the Constitution of Louisiana. The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant's counsel unless the defendant has waived his right to counsel. (emphasis added).
C. With the consent of the district attorney the defendant may waive trial by jury within forty-five days prior to the commencement of trial.
D. A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant.
In State v. Chinn, 2011-2043, p. 6 (La. 2/10/12), 92 So.3d 324, 328 (citing Radiofone, Inc. v. City of New Orleans, 93-0962, p. 7 (La. 1/14/94), 630 So.2d 694, 698), which the Bazile Court looked to in its analysis, the Louisiana Supreme Court explained that "the role of the court in construing a constitutional provision is to ascertain and give effect to the intent of the people who adopted the provision." The Court further determined that the intent of voters in approving the 2010 amendment was as follows:
The clear intention of the redactors of La. Const. art. I, § 17(A) was to prevent last minute waivers by criminal defendants of the right
to a jury trial. Consistent with that intent, La. Const. art. I, § 17(A) was enacted to limit the time period in which a criminal defendant charged with a non-capital offense may exercise his or her constitutional right to waive a jury trial. However, the constitutional provision was not enacted to deprive a defendant of the right to waive a jury trial entirely , nor was it enacted to allow the fixing of trial dates in such a manner as to deprive a defendant of the opportunity to knowingly and intelligently waive the right to a trial by jury. (emphasis added).Chinn, 2011-2043, p. 9, 92 So.3d at 330.
Under a technical reading of Bazile, a defendant must enter his waiver forty-five days before the initial trial date. The Supreme Court in Chinn, however, allowed a jury trial waiver to be made forty-three days prior to trial. In Chinn, the waiver was made on the same day the trial setting was made, and defense counsel agreed to the trial date only with the caveat that the defendant be allowed to make a jury trial waiver at that time. Further, the state admitted at the status conference at which the trial date was set that it had deliberately requested an initial trial setting forty-three days away in order to force the defendant into a jury trial. Upon review, the Supreme Court reinstated the trial court's grant of the defendant's jury trial waiver, reasoning that allowing the State to request a trial date less than forty-five days away in order to force the defendant into a jury trial renders meaningless the defendant's constitutional right to waive a jury trial.
In the present case, the state acknowledges that it amended the bill of information with respect to the alleged date of the offense, which led to a re-allotment of defendant's case to a different section of court. The state argues, with regard to the forty-five day rule, that the case does not begin anew when it is transferred to a different section of court. We disagree. Amending the bill of information to change the date of the offense is not merely a clerical correction. Rather, it changes the whole aspect of the bill information. The reality of the situation is that because of the re-allotment, defendant's trial will be presided over by a different judge. Under those altered circumstances, defendant should be given the opportunity to knowingly and intelligently waive his right to a jury trial. Moreover, the record reflects that after the re-allotment, trial was initially set in Section "G" for June 12, 2017. Defendant filed his motion to waive jury trial on April 28, 2017, forty-five days in advance of that trial setting.
Under these facts, we find this case to be distinguishable from Bazile. As previously stated, the Court in Bazile recognized that "[i]f the term 'trial date' is interpreted to mean a date which could be continued, this interpretation would conflict with the clear intention of the provision to prevent last minute jury trial waivers." Bazile, 2012-2243, p. 20, 144 So.3d at 735. In the present case, however, the June 12, 2017 trial date was set in Section "G" due to a re-allotment, not as a result of a continuance. Furthermore, defendant's motion to waive jury trial was filed forty-five days prior to that setting. Considering these unique circumstances, we do not find that the granting of defendant's jury trial waiver conflicts with the purpose and intent of the 2010 amendment to La. Const. art. I, §17(A). CONCLUSION
Based on the factual circumstances presented here, and for the foregoing reasons, we find that defendant's waiver was validly entered. Accordingly, the state's writ application is denied.
WRIT DENIED WITH REASONS