Opinion
NO. 2018-KA-0560
09-26-2018
STATE OF LOUISIANA v. RASHAD ESTEM
Leon Cannizzaro, District Attorney Donna Andrieu, Chief of Appeals Scott G. Vincent, Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE 619 S. White Street New Orleans, LA 70119 COUNSEL FOR STATE OF LOUISIANA/APPELLANT Alexis Chernow ORLEANS PUBLIC DEFENDERS 2601 Tulane Avenue, Suite 700 New Orleans, LA 70119 COUNSEL FOR DEFENDANT/APPELLEE
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 529-976, SECTION "J"
Honorable Darryl A. Derbigny, Judge Judge Rosemary Ledet (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase) Leon Cannizzaro, District Attorney
Donna Andrieu, Chief of Appeals
Scott G. Vincent, Assistant District Attorney
ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE
619 S. White Street
New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA/APPELLANT Alexis Chernow
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue, Suite 700
New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLEE
REVERSED AND REMANDED
In this criminal appeal, the State of Louisiana seeks review of the district court's judgment quashing Count 1 of the bill of information. For the reasons that follow, we reverse and remand.
STATEMENT OF THE CASE
On July 19, 2016, the State filed a three-count bill of information, charging Mr. Estem in Count 1 with resisting a police officer with force or violence, a violation of La. R.S. 14:108.2. On November 15, 2016, Mr. Estem filed a motion for a bill of particulars. On December 12, 2016, the State furnished Mr. Estem with a bill of particulars, attaching a copy of the police reports associated with Mr. Estem's arrest.
Mr. Estem was also charged with battery of a police officer, a violation of La. R.S. 34.2, and simple assault, a violation of La. R.S. 38.
On December 13, 2016, Mr. Estem filed a motion to quash Count 1, arguing that the bill of particulars failed to provide him sufficient notice to prepare a defense and, in the alternative, that the factual allegations in the the bill of particulars were insufficient to support a finding that he committed the charged offense. On June 23, 2017, the State filed a response. On July 11, 2017, Mr. Estem filed a reply. On July 27, 2017, the district court quashed Count 1. This appeal followed.
DISCUSSION
One of the purposes of a bill of information or indictment is to provide the defendant with sufficient notice of the charge against him to enable him to prepare a defense. See La. Const. Art. I, § 13 (providing that "[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him"); State v. Comeaux, 408 So.2d 1099, 1106 (La. 1981) (observing that a bill of information or indictment "must contain all the elements of the crime intended to be charged in sufficient particularity to enable the defendant to prepare for trial, to allow the court to determine the propriety of the evidence which is submitted upon the trial, to impose the correct punishment on a verdict of guilty, and finally to afford the defendant protection from subsequent prosecutions for the same offense").
If a bill of information or indictment does not provide the defendant sufficient notice of the nature and cause of the charge against him, the defendant may request a bill of particulars. La. C.Cr.P. art. 484 (providing that "[t]he 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"). If a bill of particulars still does not provide the defendant sufficient notice of the nature and cause of the charge against him, the defendant may move to quash the bill of information or indictment. See La. C.Cr.P. art. 532(4) (providing that a motion to quash may be based on the ground that "[t]he district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court"). A defendant may also seek to quash a bill of information or indictment "[i]f it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it." La. C.Cr.P. art. 485; La. C.Cr.P. art. 532(5) (providing that a motion to quash may be based on the ground that "[a] bill of particulars has shown a ground for quashing the indictment under Article 485").
Before granting a motion to quash based on these grounds, however, a district court must give the State an opportunity to cure the defect. La. C.Cr.P. art. 485 (providing that "[i]f it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or 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") (emphasis added). A defect in a bill of particulars "will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be." La. C.Cr.P. art. 485.
To facilitate this process, the district court should first make an express finding that the bill of particulars is defective and identify with particularity the defect therein.
Article 485 expressly contemplates that the State be given an opportunity to cure a defective bill of particulars because "[w]hile the bill of particulars is intended to assure the defendant a full understanding of the charge in order that he might, in fairness, properly defend himself, it was never intended as a trap for the unwary district attorney." State v. Schrader, 518 So.2d 1024, 1030 (La. 1988) (quoting State v. Unzueta, 337 So.2d 1102, 1103-04 (La.1976) (observing that "[i]t is for this reason that Article 485 of the Code of Criminal Procedure permits the district attorney to cure a defect in a bill of particulars") (quotation marks omitted)); see also State v. Marcelin, 13-0893, p. 9 (La. App. 4 Cir. 12/18/13), 131 So.3d 427, 432-33 (observing that "[b]ills of particulars also allow district attorneys to cure defects in their bills of information, indictments, or previous bills of particulars" and that "[i]t would be inappropriate to circumvent this clarifying procedural mechanism and subsequently quash a bill of information for its lack of clarity). Thus, the State's opportunity to cure an identifiable defect in a bill of information or particulars is not a matter within the district court's discretion; rather, the State "is entitled to amend, prior to trial, not only the bill of information but its answer to the motion for a bill of particulars so as to reflect the truth." State v. Morales, 240 So. 2d 714, 717 (La. 1970).
In this case, although the district court implicitly found the bill of particulars to be defective, it did not identify with particularity any defect therein and did not give the State an opportunity to cure whatever defect may be present. The district court thus prematurely granted the motion to quash Count 1 of the bill of information.
Because we find that the district court prematurely granted the motion to quash, we do not reach the question of whether the bill of particulars was defective. --------
DECREE
For the foregoing reasons, the judgment of the district court is reversed; and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED