Opinion
NUMBER 2015 KA 1378
06-03-2016
STATE OF LOUISIANA v. EARL BOUDOIN
Warren Montgomery, D.A. Leigh Anne Wall, A.D.A. Franklinton, LA Attorneys for Appellant State of Louisiana Shannon Mese Covington, LA Attorney for Appellee Defendant - Earl Boudoin
NOT DESIGNATED FOR PUBLICATION
Appealed from the 22nd Judicial District Court In and for the Parish of Washington, Louisiana
Trial Court Number 10 CR1 109461 Honorable Reginald T. Badeaux, III, Judge Warren Montgomery, D.A.
Leigh Anne Wall, A.D.A.
Franklinton, LA Attorneys for Appellant
State of Louisiana Shannon Mese
Covington, LA Attorney for Appellee
Defendant - Earl Boudoin BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The defendant, Earl Boudoin, was charged by bill of information with home improvement fraud, a violation of La. R.S. 14:202.1. He pled not guilty and, following a jury trial, the jury became deadlocked, and the trial court declared a mistrial. Prior to commencement of the second trial, the State amended the bill of information. The defendant filed a motion to quash the bill of information, based on the amendment. The trial court granted the motion to quash. The State now appeals. We reverse the trial court's granting of the motion to quash the bill of information and remand for further proceedings.
PROCEDURAL HISTORY
The State filed the bill of information on July 28, 2010, charging the defendant with having committed home improvement fraud from January 4, 2010 to April 29, 2010. Trial commenced on January 8, 2014. With the jury unable to reach a verdict, the trial court declared a mistrial and reset the trial date for May 12, 2014. On December 3, 2014, following several continuances, defense counsel, who represented the defendant in the first trial as well, asked for a judge trial. According to the defense counsel, the charge in the original bill of information was a misdemeanor and, as such, the defendant was entitled to a bench trial. The prosecutor, who was the prosecutor in the first trial as well, amended the bill of information to indicate the victim had paid an amount greater than $1,000.00 for the home improvement. Following this amendment, the defendant filed a motion to quash the bill of information, alleging that the amendment prejudiced his ability to prepare a defense. The defendant further alleged that the amendment to the bill of information changed the misdemeanor he was originally charged with to a felony, and, as such, the State's commencement of new criminal proceedings was untimely. On December 4, 2014, following a brief hearing on the matter, the trial court agreed with the defendant and granted the motion to quash with prejudice. The State perfected this appeal pursuant to La. C.Cr.P. art. 912(B)(1) (the granting of a motion to quash a bill of information is an appealable final judgment).
ASSIGNMENT OF ERROR
In its sole assignment of error, the State argues the trial court erred in granting the motion to quash the bill of information. Specifically, the State contends that the amendment to the bill of information did not charge a new crime. Further, the State argues that it provided open-file discovery, and the defendant had full knowledge of the evidence and amount at issue.
In 2010, La. R.S. 14:202.1 provided, in pertinent part:
All references to La. R.S. 14:202.1 are to the 2010 version (prior to the 2014 amendment). --------
A. Home improvement fraud is committed when a person who has contracted to perform any home improvement, or who has subcontracted for the performance of any home improvement, hereinafter referred to as "contractor", knowingly engages in any of the following actions:
(1) The failure to perform any work during a forty-five-day period of time or longer after receiving payment.
(2) The use by a contractor, or by an agent or employee of a contractor, of any deception, false pretense, or false promise to cause any person to enter into a contract for home improvements.
* * *
D. Whoever commits the crime of home improvement fraud shall be fined not more than one thousand dollars and shall be imprisoned for not more than six months, when any of the following occur:
(1) The home improvement fraud is an act specified in Paragraph (A)(1) of this Section, and the person with whom the contract for the home improvement has been entered into has been paid an amount of less than three hundred dollars.
* * *
E. Whoever commits the crime of home improvement fraud shall be imprisoned, with or without hard labor, for not more than two years, and shall be fined not more than five thousand dollars, when any of the following occur:
(1) The home improvement fraud is an act specified in Paragraph (A)(1) of this Section, and the person with whom the contract for the home improvement has been entered into has been paid an amount of three hundred dollars or more, but less than five hundred dollars.
* * *
F. Whoever commits the crime of home improvement fraud shall be fined not more than twenty thousand dollars and shall be imprisoned, with or without hard labor, for not more than ten years, if the home improvement fraud is committed under any of the following circumstances:
(1) The home improvement fraud is an act specified in Paragraph (A)(1) of this Section, and the person with whom the contract for the home improvement has been entered into has been paid an amount of five hundred dollars or more.
* * *
5) The person with whom the contract for home improvement is entered into is sixty years of age or older.
In his written motion to quash, the defendant asserted that the State, having amended the bill of information to provide for a felony offense, failed to commence criminal proceedings within four years, as required by La. C.Cr.P. art. 572. Thus, according to the defendant, he was prejudiced in the preparation of his defense in that he was unable to prepare a defense to the charge. In granting the motion to quash, the trial court noted that La. R.S. 14:202.1 provided for three different grades of offenses, one constituting a misdemeanor offense and the other two constituting relative felony offenses. According to the trial court:
And looking over the Bill of Information, as was originally filed without the amendment that was made yesterday, I mean it is just, anybody reading it would assume that it was a misdemeanor. And with the amendment yesterday alleging an amount greater than $1,000 it changed it to a felony, and I find that it is a substantive change that would require re-arraignment and normal delays, etc. It's like starting a new prosecution.
For the reasons that follow, we find the State timely instituted criminal proceedings and that the first trial was commenced in a timely fashion. We further find that following the declaration of a mistrial, the State sought to commence a second trial within the time allowable under the law. The State's amending of the bill of information by adding a dollar amount did not entail a substantive change to the bill under the facts presented herein and, as such, the trial court improperly granted the defendant's motion to quash.
The defendant was charged with committing home improvement fraud from January 4, 2010 to April 29, 2010. The State instituted criminal proceedings against the defendant by filing a felony bill of information on July 28, 2010. Louisiana Code of Criminal Procedure article 572 provides, in pertinent part:
A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
(1) Six years, for a felony necessarily punishable by imprisonment at hard labor.
(2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.
(3) Two years, for a misdemeanor punishable by a fine, or imprisonment, or both.
(4) Six months, for a misdemeanor punishable only by a fine or forfeiture.
Regardless of what Paragraph of La. R.S. 14:202.1 the defendant would be sentenced under (Paragraph D, E, or F), the State would have had either two years or four years to institute prosecution. See La. C.Cr.P. art. 572(2) and (3). The State instituted criminal proceedings within three months (and no later than seven months) of the alleged acts of fraud committed by the defendant. Accordingly, the State timely instituted prosecution against the defendant.
Louisiana Code of Criminal Procedure article 578 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.
While the charge brought against the defendant by the State was always a felony (discussed fully below), even assuming the charge could have been construed as a misdemeanor, the State timely commenced trial because the defendant's repeated motions to continue trial suspended the time limitations established by La. C.Cr.P. art. 578. As noted, the prosecution was instituted on July 28, 2010. Trial commenced on January 8, 2014. No failure to timely commence trial occurred herein when the trial did not commence either by July 28, 2011 under Article 578(A)(3) (based on a misdemeanor charge), or by July 28, 2012 under Article 578(A)(2) (based on a felony charge), because the defendant moved for a continuance of trial twelve times over a period of almost three years, from December 6, 2010 through October 9, 2013.
Louisiana Code of Criminal Procedure article 580(A) provides:
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.
For purposes of La. C.Cr.P. art. 580, a preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial. These pleadings include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars. Joint motions for a continuance fall under the same rule. State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam). Although La. C.Cr.P. art. 707 provides for a motion for continuance to be in writing, this rule may be disregarded whenever the circumstances arise unexpectedly and defense counsel has no opportunity to prepare a written motion. See State v. Penny, 486 So.2d 879, 887-88 (La. App. 1st Cir.), writ denied, 489 So.2d 245 (La. 1986).
The minutes of the record indicate that on the following dates, on motion of the defense, the trial court ordered the trial date to be continued: December 6, 2010; February 22, 2011; December 5, 2011; April 23, 2012; June 11, 2012; September 12, 2012; November 15, 2012; February 7, 2013; March 21, 2013; June 17, 2013; September 16, 2013; and October 9, 2013.
Accordingly, each time the trial court in the instant matter ruled on defense counsel's motion for continuance, the State had either the remainder of the time limitations under La. C.Cr.P. art. 578 or a minimum period of one year from the date of the ruling in which to commence trial, whichever time was longer. See State v. Lathan, 41,855 (La. App. 2nd Cir. 2/28/07), 953 So.2d 890, 894, writ denied, 2007-0805 (La. 3/28/08), 978 So.2d 297. See also State v. Cranmer, 306 So.2d 698, 700 (La. 1975); La. C.Cr.P. art. 580, Official Revision Comment (a).
As can be seen from the above list of the defendant's motions to continue trial, there was always a period of less than one year between the granting of continuances. The final continuance was granted on October 9, 2013. The State, thus, had at least until October 9, 2014 to commence trial. Since the defendant was tried on January 8, 2014, his trial was timely commenced. See State v. Marshall, 99-2884 (La. App. 1st Cir. 11/8/00), 808 So.2d 376, 378-80; State v. Simpson, 506 So.2d 837, 838 (La. App. 1st Cir.), writ denied, 512 So.2d 433 (La. 1987).
When the trial court ordered a mistrial on January 8, 2014, the State had at least until January 8, 2015 to commence the second trial. See La. C.Cr.P. art. 582. In State v. Brown, 451 So.2d 1074, 1080 (La. 1984), the supreme court interpreted Article 582 to mean that the one-year time period begins to run from the date when the order for a new trial "becomes final." See State v. Bennett, 610 So.2d 120, 121 (La. 1992). Herein, it appears from the minutes following some continuances that the second trial was scheduled to commence on December 1, 2014. For reasons unclear from the record, the trial did not commence on December, 1, 2014; however, before a trial could be commenced, the defendant's motion to quash was filed and granted on December 3 and 4, 2014, respectively. The deadlines for commencing the second trial never expired herein.
The defendant asserted in his motion to quash, and the trial court agreed, that the bill of information charged a misdemeanor. The defendant contended he was prejudiced in preparing his defense, and the trial court found that the State's amendment to the bill of information, adding a dollar amount, changed the misdemeanor to a felony and, therefore, constituted a substantive change to the bill. The defendant's assertions are baseless, and the trial court's findings are unsupported by the record. Throughout the entirety of the first trial over which the trial court presided, from voir dire to closing arguments, the defendant was made aware that what he was being charged with was a felony under La. R.S. 14:202.1. Accordingly, adding a dollar amount to the bill of information prior to the second trial did not constitute a substantive change.
In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. La. Const. Art. 1, § 13. The bill must inform the defendant the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. State v. Johnson, 93-0394 (La. 6/3/94), 637 So.2d 1033, 1034-35 (per curiam).
Louisiana Code of Criminal Procedure article 487(A) provides:
An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only,
or because of any miswriting, misspelling, or improper English, or because of the use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
If the defendant can show he has been prejudiced by the amendment to the charge against him, he is entitled to a continuance. See La. C.Cr.P. art. 489. It is incumbent upon the defendant to show in what respect his defense has been prejudiced by the amendment of the bill. State v. Brown, 338 So.2d 686, 687 (La. 1976); State v. Delandro, 2001-2514 (La. App. 1st Cir. 5/10/02), 818 So.2d 1011, 1015.
At the outset of this matter, the State filed a "FELONY BILL OF INFORMATION" (our emphasis), charging the defendant with the following:
COUNT 1
R.S. 14:202.1 HOME IMPROVEMENT FRAUD, by contracting to perform any home improvement, or who has subcontracted for the performance of any home improvement, who knowingly engages in any of the following actions; the failure to perform any work during a forty-five day period of time or longer after receiving payment, the use by a contractor, or by an agent or employee of a contractor, of any deception, false pretense, or false promise to cause any person to enter into a contact for home improvements, or the damaging of any property of any person, by a contractor, or by an agent or employee of a contractor, with the intent to induce that person to enter into a contract for home improvements.
During voir dire, the prosecutor, informed the prospective jurors, "[t]he way the statute is broken down is the defendant's charge is fraud over $1500, amount of damages, and that's an element I have to prove, and that the victim is over sixty." In her opening statement, the prosecutor informed the jurors that the victim, Jo Ann Brown, was 71-years-old now, so in 2010, she was four years younger. The prosecutor further explained that the defendant had quoted Brown a price of $63,000.00, and that Brown had paid the defendant a total of about $39,550.00. The prosecutor stated that Brown "wanted $20,000 of her money back."
At trial, licensed contractor Keith Adams testified that the defendant had not done about $40,000.00 worth of work to Brown's house, but only about $20,000.00 worth of work. Brown testified at trial that she was 75 years old. She testified the defendant estimated that the addition to her house would be about $70,000.00. She gave the defendant a check for $20,000.00, and then gave him weekly checks for about $2,500.00, for a total of $39,550.00. According to Brown, an inspector shut down the work the defendant was doing on her property because it was not "up to code," and Keith Adams finished the project.
During the trial, prior to the prosecutor resting, the following discussion took place between the trial court and the prosecutor regarding jury charges:
The Court: Now as far as the proposed jury instructions go, I want the record to reflect that both counsel and myself have already gone over the proposed jury instructions. Are there any objections from either side as far as the proposed jury instructions?
The prosecutor: The only, I guess it's not really an objection, but correction I would request, on page three, I don't think there were any statements that were introduced. The voluntarily statements can come out. In the definition of the charge, I would ask at the part where you say, "thus in order to convict" that in section three, I think the accurate description of that element is the victim was 60 years of age or older, or the amount was over $1500. And everywhere that crime is discussed, there are four or five other places, I would ask that that little phrase, "or the amount was over $1500".
The Court: That motion is granted. I have already instructed my staff attorney to make those corrections upon the proposed jury instructions.
In her closing argument, the prosecutor stated:
The defendant is charged with the statute -- it's kind of a mouthful. But it is home improvement fraud where the victim is 60 years or older, or the amount of the fraud is greater than $1500.
So if you find that there was a fraud committed on Mrs. Jo Ann of any amount and she's over 60, then that's sufficient, or if you find that there was a fraud committed and the amount of money that was taken from her from fraud is over $1500, that means he's guilty as charged.
In her rebuttal closing argument, the prosecutor stated: "If he defrauded her and she is over 60 in any amount, he's guilty as charged. If he defrauded her and she's under 60 and the amount of the fraud was $1,500 or more, he's guilty as charged. This man is guilty as charged." In instructions to the jury, following closing arguments, the trial court stated that the defendant "is charged with committing home improvement fraud where the victim is 60 years of age or older, or the amount paid is over $1500."
Based on the foregoing, it is clear the defendant was charged with, and prosecuted under, Paragraph F of La. R.S. 14:202.1(2010), which provided in pertinent part:
Whoever commits the crime of home improvement fraud shall be fined not more than twenty thousand dollars and shall be imprisoned, with or without hard labor, for not more than ten years, if the home improvement fraud is committed under any of the following circumstances:
(1) The home improvement fraud is an act specified in Paragraph (A)(1) of this Section, and the person with whom the contract for the home improvement has been entered into has been paid an amount of five hundred dollars or more.
Moreover, this felony sentencing provision of up to ten years imprisonment with or without hard labor was applicable when the home improvement fraud was committed upon a victim who was sixty years of age or older. See La. R.S. 14:202.1(F)(5)(2010). In other words, the age of the victim alone was sufficient to trigger that portion of the statute that resulted in felony conviction, regardless of the amount of money at issue. The age of the victim (Brown) in this case was repeated throughout the first trial, and the jurors were specifically instructed that Brown's age alone, without any contractual amount having to be proven, would satisfy the elements of home improvement fraud (assuming actual fraud under Paragraph A had been proved). It is noteworthy that the only portion of La. R.S. 14:202.1 where the victim's age was an element of the offense was in Paragraph F, under which a conviction was a felony.
Shortly before the second trial was to commence, the bill of information was amended. On December 3, 2014, the prosecutor added the following words to the end of the crime listed in the bill of information: ", with an amount greater than $1,000.00." This amendment to the bill did not charge a new offense or add a new crime, but merely clarified the crime charged. The defendant suffered no prejudice from the amendment and, as such, he cannot claim he lacked notice of the crime with which he was charged. Because the crime with which the defendant was specifically charged had been made abundantly clear throughout his first trial, there exists no genuine claim that he was surprised or unable to defend against the charge against him. See Delandro, 818 So.2d at 1016-17. Moreover, even had the amendment to the bill effected a substantive change, the amendment would have been timely and proper because it was made before the second trial commenced. A prosecutor may make substantive amendments to a bill of information before trial begins. See La. C.Cr.P. art. 487(A). Thus, the amendment was timely irrespective of its classification as one of substance or of form. See State v. Roy, 496 So.2d 583, 588 (La. App. 1st Cir. 1986), writ denied, 501 So.2d 228 (La. 1987).
The trial court erred in finding that the amendment to the bill of information prejudiced the defendant and/or resulted in an untimely prosecution by the State was an abuse of discretion. Moreover, the trial court's grant of the defendant's motion to quash was an abuse of discretion. See State v. Odom, 2002-2698 (La. App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. Accordingly, the granting of the defendant's motion to quash the bill of information is hereby reversed. The matter is remanded to the trial court for further proceedings.
GRANT OF MOTION TO QUASH REVERSED; REMANDED FOR FURTHER PROCEEDINGS.