Opinion
NO. 2016-KA-0734
05-10-2017
STATE OF LOUISIANA v. ANTOINE D. ROACH
Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY, PARISH OF ORLEANS Donna Andrieu, Chief of Appeals ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS Donald G. Cassels, III ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS 619 South White Street New Orleans, LA 70119 COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470-8583 COUNSEL FOR APPELLEE, ANTOINE D. ROACH
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 512-887, SECTION "SECTION D"
Honorable Jerome M. Winsberg, Judge Pro Tempore Judge Terrel J. Broussard, Pro Tempore (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Terrel J. Broussard, Pro Tempore) Leon A. Cannizzaro, Jr.
DISTRICT ATTORNEY, PARISH OF ORLEANS
Donna Andrieu, Chief of Appeals
ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS
Donald G. Cassels, III
ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS
619 South White Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
P.O. Box 8583
Mandeville, LA 70470-8583
COUNSEL FOR APPELLEE, ANTOINE D. ROACH
MOTION TO SUPPLEMENT RECORD DENIED; JUDGMENT AFFIRMED
The State of Louisiana appeals a June 3, 2016 district court judgment, which granted defendant, Antoine Roach's motion to quash. For the following reasons, we hereby deny the State's motion to supplement the record and affirm the judgment of the district court.
PROCEDURAL HISTORY AND FACTS
First Prosecution (Case No. 502-598)
On November 28, 2010, a warrant was issued for the arrest of Antoine Roach ("Defendant") for theft of a motor vehicle, which allegedly occurred on November 26, 2010. The arrest warrant listed 7709 Oak Street, New Orleans, Louisiana, 70118 as Defendant's address. Defendant was arrested on December 8, 2010. The address Defendant provided at the time of his arrest was 2862 Law Street, New Orleans, Louisiana, 70117.
On December 10, 2010, Defendant was charged by bill of information with one count of theft in an amount greater than $1500.00, in violation of La. R.S. 14:17(B)(1); one count of illegal possession of stolen things, in violation of La. R.S. 14:69(B)(1); and one count of unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4.
Defendant appeared for arraignment on January 21, 2011, and pled not guilty to the charges. Defendant was thereafter released on bond. On the bond instrument, Defendant again listed 2862 Law Street as his address.
On April 8, 2011, the State entered a nolle prosequi in exchange for Defendant entering in a diversionary program. Second Prosecution (Case No. 512-887)
The diversionary program form is not contained in the record.
As will be discussed later herein, Court Notify, a web-based platform utilized by the Clerk of Criminal Court, allegedly documented the issuance of several subpoena and returns that were not included in the record for appeal. In the motion to supplement, the State requests the Court to construe the information contained in Court Notify as part of the record and supplement the record with print-outs of the electronically-documented subpoenas/returns. However, because these print-outs were not presented before the trial court, this Court cannot consider them in determining whether the district court erred in granting the motion to quash.
After Defendant was unsuccessful in the diversionary program, the State reinstituted the charge of unauthorized use of a motor vehicle on August 14, 2012. Arraignment was set for September 27, 2012. Defendant, however, was not notified of the hearing and did not appear for the arraignment.
The case was initially allotted to Section, "C," however, because the case involved reinstated charged, on August 23, 2012, it was transferred to Section "D," where the original prosecution was allotted.
On September 27, 2012, the district court reset the arraignment for October 16, 2012, and ordered the Clerk of Court to issue service to Defendant. A subpoena was issued to Defendant at 7709 Dale Street, New Orleans, Louisiana 70117. The return on the service, dated October 12, 2012, provided that the address listed on the subpoena "does not exist."
The screening action form, however, provided that Defendant's address was 7809 Oak Street.
When Defendant did not appear for the October 16, 2012 arraignment, the district court scheduled the matter for a status hearing on October 19, 2012. No return is located in the record.
Defendant did not appear for the status hearing and on October 19, 2014, the district court reset the arraignment for November 9, 2012, and ordered the Clerk to send notice to Defendant at 7709 Oak Street. The return receipt alerting Defendant of the November 9, 2012 hearing is not contained in the record.
On November 9, 2012, Defendant did not appear "because he was not served." The district court rescheduled the hearing for December 7, 2012, and ordered that Defendant be served at 7709 Oak Street. A return dated November 29, 2012, stated that the subpoena was "left in door."
Defendant did not appear for the December 7, 2012 arraignment and the matter was reset for January 21, 2013. No return appears in the record.
There was no further activity in the case until June 21, 2013, wherein the district court set an arraignment date of July 12, 2013, and ordered that Defendant be notified thereof at the Oak Street address. The docket master provides that court was cancelled on July 12, 2013, and the arraignment was reset on July 29, 2013.
Although the record provides that on December 7, 2012, the district court rescheduled the arraignment for January 21, 2013, there is no minute entry or docket master entry from the date. Proceedings recommenced in June of 2013 and the district court reset the matter and ordered Defendant to be served with notice.
The docket master does not provide that Defendant was ordered to appear at the July 29, 2013 arraignment.
Defendant was not served and on July 29, 2013, the district court rescheduled the case for August 6, 2013. A return dated August 1, 2013, indicated that Defendant could not be served because the "subject moved."
When Defendant did not appear on August 6, 2013, the district court reset the arraignment for August 19, 2013, and ordered that the District Attorney's Office "send an investigator" to locate Defendant. The district court also refused to issue an alias capias because Defendant was placed in the diversionary program. A return, dated August 7, 2013, issued to Oak Street stated that "subject moved."
On August 19, 2013, Defendant again failed to appear for the arraignment. At the arraignment hearing, the State called Warren Fitzgerald, a member of the Orleans Parish District Attorney's office investigative staff. He stated that on August 16, 2013, he attempted to serve Defendant at "his last known address of 12151 I-10 Service Road, Apartment Number 25." Fitzgerald testified that a woman, who was acquainted with Defendant, opened the door and advised him that Defendant was living "with another woman [at] an unknown address" on Magnolia Street near Washington Avenue. The woman indicated to Fitzgerald that she would notify Defendant. The district court reset the matter for September 9, 2013, and instructed the District Attorney to "find out where [Defendant] lives" and serve him. The district court also denied the State's request to issue an alias capias.
A subpoena was issued to Defendant at the Oak Street address. The return of September 3, 2013, provides that "subject moved."
On September 19, 2013, the district court rescheduled the arraignment for October 1, 2013. Service was again attempted at the Oak Street address on September 30, 2013. Defendant was not able to be served because he had moved.
On October 1, 2013, Defendant failed to appear. The State claimed at the hearing that one of its investigators, Mel Ryan, had made "domiciliary service to 2717 Magnolia Street." The prosecution noted that it was "not personal service as there is no bond in the record." The State also requested that the district court find probable cause apparently in an attempt to obtain an alias capias. However, the district court stated that it would not make a determination of probable cause from a police report.
The October 1, 2013 minute entry, however, provides that the arraignment was reset because Defendant was not served.
Arraignment was reset for October 9, 2013, and the district court ordered that Defendant be notified. Service was subsequently issued to the Oak Street address. The return receipt, dated October 3, 2013, provided that "subject moved."
On October 9, 2013, Defendant failed to appear and the district court reset the matter for October 22, 2013. The subpoena was again issued to Oak Street and the return, dated October 14, 2013, again provides that Defendant had moved from the listed address.
On October 22, 2013, Defendant did not appear for arraignment. At the hearing, the State represented that its investigator, Ryan, had attempted to serve Defendant at the "best address he had" and that Ryan dropped the "subpoena at the house, but no one answered." The State noted that when a defendant accepts placement in the diversionary program, he provides his most recent address and signs a waiver of prescription. The district court suggested that the State add "something about service of process" on the diversionary form. The State then claimed that "[p]art of the Diversion is for them ... to update their address." The district court issued an alias capias for Defendant's arrest and continued the matter without date.
As noted earlier, the diversionary program form alleging the setting of this obligation is not in the record.
There was no activity in the case until the matter came for pre-trial conference on April 14, 2015. The State argued that it had asked that Defendant be served at two addresses. The district court noted that there were in returns on the record. The State requested that Defendant be served at "2717 Idolay (written phonetically) Street, New Orleans, 70113" and 7709 Oak Street, New Orleans 70118." The district court reset the pre-trial conference for May 5, 2015.
As noted by the State in its brief, given the street number, it is likely that the State intended to serve Defendant at the Magnolia Street address.
The record provides that service was attempted twice at the Oak Street address on April 21, 2015. The returns indicated that "subject moved."
When Defendant did not appear for the pre-trial conference on May 5, 2015, the district court set the case for arraignment on May 12, 2015, and ordered that Defendant be served. There is no return receipt in the record.
Defendant failed to appear for the May 12, 2015 arraignment. The district court rescheduled the matter for June 12, 2015. Thereafter, service was issued to the Oak Street address. The return, dated May 13, 2015, provided that Defendant was no longer at the address.
On June 12, 2015, Defendant did not appear and the case was rescheduled to July 15, 2015. The district court ordered that Defendant be notified of the hearing date.
On July 15, 2015, Defendant failed to appear for arraignment. The district court again issued an alias capias and continued the matter without date. However, on July 17, 2015, the district court scheduled August 17, 2015, for arraignment.
Service was thereafter attempted at the Oak Street address, the Magnolia Street address, and 2862 Law Street, New Orleans, Louisiana, 70113. The returns, dated July 20, 2015, and July 21, 2015, respectively, for Oak Street and Magnolia Street provided that Defendant had moved. The July 21, 2015 return for the Law Street address provided that Defendant was "unknown at address."
There are two service returns for the Oak Street address.
On August 17, 2015, Defendant failed to appear for arraignment. The district court noted that the alias capias remained in effect and continued the matter without date.
Defendant was finally arrested pursuant to the alias capias on April 26, 2016. The following day, Defendant appeared before the district court for arraignment and pled not guilty. The district court set March 18, 2016, as the date for pre-trial hearings and Defendant was then released on his own recognizance. The bond listed Defendant's address as 2100 Pauger Street, New Orleans, Louisiana, 70117.
On May 5, 2016, Defendant filed various pre-trial motions, including a motion for inspection and photography of evidence, a motion for discovery, a motion for preliminary examination, and a motion to suppress. Defendant filed a motion to quash on May 17, 2016.
As will be discussed later herein, the record did not originally contain the complete motion to quash. The record was supplemented with the entire motion to quash on August 12, 2016.
On May 18, 2016, the district court granted a joint motion to continue the hearing and rescheduled the motion to quash for June 1, 2016. The State filed its opposition to the motion to quash on June 1, 2016, and the hearing was again continued to June 3, 2016.
The matter came before the district court on June 3, 2016, and the district court granted the motion to quash. At the hearing, the district court noted that Defendant's bond obligation terminated on April 8, 2011, when the State dismissed the charges. The district court stated that, as a result, the Defendant was under no obligation to assist the State "by giving them an address during this period." The district court suggested that the State "know where someone is" before charging him with a crime. The district court stated that "when the State chooses to charge someone at large, it does so at its own peril."
The State filed a motion to stay proceedings as well as a motion for appeal and designation of record. The district court granted the stay and gave the State until July 1, 2016, to seek an appeal. On July 1, 2016, an appeal status was set for July 29, 2016. The record was lodged in this Court on July 15, 2016. The same date, this Court set August 9, 201 6 as the appellant's briefing deadline and August 29, 2016, as the appellee's deadline.
On August 9, 2016, the State filed a motion to suspend the briefing schedule and supplement the record as it did not contain the motion to quash in its complete form. The following day, this Court granted the State's motion and ordered that the appellant's brief be filed within twenty days from the filing of the supplemental material. The Court received the motion to quash on August 12, 2016, and issued a notice of completion of record, which set September 6, 2016, as the appellant's deadline and September 26, 2016, as the appellee's deadline.
On September 6, 2016, the State filed another motion to suspend the briefing deadline and supplement, seeking to supplement the record with various transcripts and the record of the Criminal District Court for the Parish of Orleans under docket number 502-598 "D."
The motion requested that the record be supplemented with the following materials:
1. The transcript of the proceedings on August 6, 2013 under Case Number 512-887 "D"
2. The transcript of the proceedings on August 19, 2013 under Case Number 512-887 "D"
3. The transcript of the proceedings on October 1, 2013 under Case Number 512-887 "D"
4. The transcript of the proceedings on October 22, 2013 under Case Number 512-887 "D"
5. The transcript of the proceedings on April 14, 2015 under Case Number 512-887 "D";
6. The transcript of the proceedings on July 15, 2015 under Case Number 512-887 "D"
7. The District Court record under Case Number 502-598 "D";
8. The transcript of the proceedings on January 21, 2011 under Case Number 502-598 "D";
9. The transcript of the proceedings on February 16, 2011 under Case Number 502-598 "D"
10. The transcript of the proceedings on March 22, 2011 under Case Number 502-598 "D"
11. The transcript of the proceedings on April 8, 2011 under Case Number 502-598 "D."
On September 12, 2016, this Court granted the motion and ordered the State to take all steps necessary to supplement the record with the necessary transcripts and ordered the Clerk of the Criminal District Court for the Parish of Orleans to have the requested supplementation sent to this Court within twenty days of the order. The State obtained the transcripts and concluded its supplementation of the record on December 15, 2016.
The State provided the Court with the missing materials by three separate notices of compliance.
On December 20, 2016, this Court issued a notice of completion referencing the receipt of transcripts and setting January 17, 2017, as the appellant's brief deadline and February 3, 2017, as the appellee's deadline. The December 20, 2016 notice, however, did not mention the receipt of the "District Court record under Case Number 502-598." The State filed two motions for extension of time to file its brief to allow the Criminal District Court Clerk "to lodge the record under docket number 502-598 'D,'" which this Court granted.
In February 2, 2017, the State learned that the record under 502-598 "D" was in fact filed in this Court but had been lodged as an exhibit and was not physically contained in the duplicate record borrowed by the State. The same date, the State filed a notice to correct its mistaken representations to this Court that the record under 502-598 "D" had not been filed and a motion to incorporate the record under 502-598 "D" into the record on appeal.
The State filed its appeal brief on February 13, 2016. The same date, the State filed a motion to supplement the record with printouts of subpoenas and returns on service electronically documented on "Court Notify." Thereafter, Defendant filed his brief in this Court on February 23, 2017.
The facts underlying the instant offense are not relevant to the issue on review.
DISCUSSION
Prior to addressing the State's assignment of error, we will address the State's motion to supplement the record with printouts from "Court Notify," which documents the issuance of the subpoenas and service returns. The State argues that while the information contained in Court Notify is separately maintained in electronic format, such information should, like transcripts, nevertheless be construed to be part of the record of the trial court.
The printouts are attached as exhibits to the State's brief as follows:
2. Court Notify Printout for September 27, 2012
3. Court Notify Printout for October 16, 2012
4. Court Notify Printout for October 16, 2012 Reflecting Return on Service
5. Court Notify Printout for October 19, 2012
6. Court Notify Printout for November 9, 2012
7. Court Notify Printout for December 7, 2012
8. Court Notify Printout for December 7, 2012 Reflecting Return on Service
9. Court Notify Printout for January 21, 2013
10. Court Notify Printout for January 21, 2013 Reflecting Issuance of Subpoena
11. Court Notify Printout for January 21, 2013 Reflecting Return on Service
12. Court Notify Printout for July 29, 2013
13. Court Notify Printout for July 29, 2013 Reflecting Return on Service
14. Court Notify Printout for August 19, 2013
15. Court Notify Printout for August 19, 2013 Reflecting Issuance of Subpoena and Attempted Service
16. Court Notify Print-Out for April 14, 2015
17. Court Notify Print-Out for April 14, 2015 Reflecting Issuance of Subpoena and Attempted Service
18. Court Notify Printout for May 5, 2015 Reflecting Issuance of Subpoena
19. Court Notify Printout for May 5, 2015 Reflecting Notification History
20. Court Notify Printout for May 12, 2015
21. Court Notify Printout for May 12, 2015 Reflecting Issuance of Subpoena
22. Court Notify Printout for June 12, 2015
23. Court Notify Printout for June 12, 2015 Reflecting Issuance of Subpoenas
24. Exhibit 24 Court Notify Printout for August 17, 2015
25. Exhibit 25 Court Notify Printout for August 17, 2015 Reflecting Return on Service to Oak Street
26. Exhibit 26 Court Notify Printout for August 17, 2015 Reflecting Return on Service to Magnolia Street
The Court Notify documents that the State seeks to supplement, however, were not attached to the State's opposition to the motion to quash nor were they introduced at the hearing on the motion to quash. This Court in State v. Thomas, 2013-1370 (La. App. 4 Cir. 4/30/14), 139 So.3d 1042, refused to consider a return of service on appeal when it was not presented before the district court. The Court stated:
We first note that the State failed to introduce into evidence the return slip which it contends supports its argument that Mr. Thomas had notice of the February 2, 2007 hearing. As we are confined to the record, we cannot give consideration to the return slip. State v. McQuirter, 2012-0486, p. 1 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, 371.
This court recently faced the same issue in State v. Jordan, 2012-0930 (La. App. 4 Cir. 6/5/13), 118 So.3d 1235; writ denied, 2013-1628 (La.2/7/14), 131 So.3d 854. There, Mr. Jordan was charged with possession of heroin with intent to distribute and possession of a firearm by a convicted felon and was released on bond. The trial court granted Mr. Jordan's motion to quash based on prescription. The State appealed, arguing that
the return slip evidenced that the defendant was adequately notified and that prescription had been interrupted. However, the State failed to introduce that return slip into evidence at the trial court. The State in Jordan attempted to supplement the record with the return slip. In denying the State's motion to supplement the record and affirming the trial court's judgment granting the motion to quash, this court stated:Thomas, 2013-1370, p. 4-5, 139 So.3d at 1045-1046
The State's argument that the prescriptive period of La.C.Cr.P. article 578 was interrupted is based solely on an October 2008 return on service for defendant showing that notice of his arraignment date was left on his door at the address he listed on his bond. However, the State did not attach this document to a response to the defendant's motion to quash (the State did not file any written response) or introduce the return on service at the motion to quash hearing.... [W]e must deny the State's motion to supplement the record with this document because it was not presented to the trial court. See State v. McQuirter, 12-486, p. 1 (La.App. 4 Cir. 1/23/13), 108 So.3d 370, 371. See also State v. Johnson, 09-259, p. 10 (La.App. 4 Cir. 9/16/09), 22 So.3d 205, 212, ("an appellate court may not consider evidence which is outside the record.")
Our review of the record shows that the State did not carry its burden of proving an interruption to the time limitation of La. C.Cr.P. article 578 that is applicable in this case. Because the State did not commence trial within two years of the institution of prosecution, and did not prove an interruption of the prescriptive period, the trial court did not abuse its discretion in granting the defendant's motion to quash the bill of information. Jordan, 2012-0930, pp. 4-5; 118 So.3d at 1237-38.
Like in Thomas and Jordan, here, the State failed to offer the Court Notify documents into evidence at the hearing. The State also did not include them in its response to the motion to quash. As such, we find that these documents cannot be considered by this Court. Accordingly, we hereby deny the State's motion to supplement the record.
ASSIGNMENT OF ERROR NUMBER 1:
As its sole assignment of error, the State argues that the district court erred in granting Defendant's motion to quash. The State contends that the two-year limitation within which to commence trial was interrupted because the State exercised due diligence in discovering Defendant's whereabouts. The State claims that from August 14, 2012, through July 29, 2015, it repeatedly requested service to the Oak Street address, where Defendant had lived but at some unknown date later moved. The State argues that after learning Defendant had moved in August of 2013, the State affirmatively sought to serve Defendant at two addresses and "apparently succeeded" in serving him at the Magnolia Street address in September of 2013. The State argues that it continued to search for Defendant and returned the case to the docket whenever it discovered new addresses at which Defendant might be served. The State contends that while these efforts were unsuccessful, they were nevertheless diligent and sufficient to interrupt the time limitations period because his presence could not be obtained by legal process.
According to the arguments made by the State at the October 1, 2013 hearing, the State succeeded in effecting service at 2717 Magnolia Street presumably at some point in September of 2013. However, no return reflecting this domiciliary service is in the record. This issue will be addressed later herein.
When the motion to quash involves solely a legal issue, the district court's decision is subject to a de novo standard of review. State v. Vernon, 2016-0692, p. 5 (La. App. 4 Cir. 12/21/16), 207 So.3d 525, 528 (citing State v. Olivia, 2013-0496, p. 2-3 (La. App. 4 Cir. 3/26/14), 137 So.3d 752, 754). "[W]hen mixed issues of fact and law are presented--like speedy trial violations—[an appellate court applies] an abuse of discretion standard." Id. (citing State v. Hall, 2013-0453, p. 11 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 39; State v. Tran, 2012-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3). "Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion." Id. (quoting State v. Love, 2000-3347, p. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206). The basis of Defendant's motion to quash is untimely prosecution. Motions to quash based on prescription typically require factual determinations, and thus, this Court will review the district court's findings under an abuse of discretion standard. See State v. Ramirez, 2007-652, p. 4 (La. App. 4 Cir. 1/9/08), 976 So.2d 204, 207 (reviewing a trial court's ruling on a motion to quash on grounds of prescription under an abuse of discretion standard).
La. C.Cr.P. art. 578 sets out the time limits on the commencement of trials depending upon the classification of the offense charged. It 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. [Emphasis added].
Unauthorized use of a motor vehicle is punishable by imprisonment with or without hard labor for not more than ten years; it is also a non-capital felony. La. R.S. 14:68.4; La. C.Cr.P. art. 933(3). Thus, as a general rule, trial for the instant offense must have commenced within two years of the institution of prosecution. La. C.Cr.P. art. 578(A)(2).
The State filed a bill of information, reinstituting the prosecution of the unauthorized use of motor vehicle charge against Defendant, on August 14, 2012, and thus Defendant should have been brought to trial no later than August 14, 2014.
Once it is established that the State has failed to commence trial within the time periods specified by La. C.Cr.P. art. 578, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 1999-3235, p. 1 (La. 2/18/00), 755 So.2d 205 (per curiam); State v. Joseph, 1993-2734, p. 1 (La. 6/3/94), 637 So.2d 1032; State v. Franklin, 2010-0792, p. 4 (La. App. 4 Cir. 4/6/11), 62 So.3d 817, 819; State v. Bell, 2002-2349, p. 9 (La. App. 4 Cir. 8/6/03), 854 So.2d 429, 434.
La. C.Cr.P. art. 579 governs the interruption of time limitations for commencing trial, and provides:
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 in the 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. [Emphasis added].
In order to meet the heavy burden of proof under La. C.Cr.P. art. 579(A)(2), the prosecution must show that it has "exercised due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure [his] presence for trial once the district attorney has found [him]." State v. Thomas, 2013-0816, pp. 5-6 (La. App. 4 Cir. 3/19/14), 138 So.3d 92, 96 (citing State v. Sorden, 2009-1416, pp. 13-14 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 189; State v. Estill, 614 So.2d 709, 710 (La.1993) (per curiam)). "This burden remains even where the prosecution has made numerous attempts at service and the defendant has moved out of the state's jurisdiction." Thomas, 2013-0816, p. 6, 138 So.3d at 96 (citing Sorden, 09-1416, p. 13, 45 So.3d at 189, State v. Chadbourne, 98-1998, p. 1 (La.1/8/99), 728 So.2d 832, 832 (per curiam); Estill, 614 So.2d at 710). Once the cause of the interruption ceases, the prescriptive period runs anew. La. C.Cr.P. art. 579(B).
During the hearing on the motion to quash, it was established that the State failed to bring Defendant to trial within two years of the institution of the prosecution against him. The burden then shifted to the State to establish some interruption of the prescriptive period. The State neither called a witness nor presented any evidence to establish the efforts it undertook to obtain Defendant's presence for trial at the hearing on the motion to quash. The State merely argued that several attempts to serve Defendant interrupted prescription.
In its opposition to the motion to quash, the State notes that it attempted to serve Defendant at four difference address: 7709 Dale Street; 7709 Oak Street; 2717 Magnolia Street; and 2862 Law Street. The motion also claims that Fitzgerald, an investigator for the State, testified as to his efforts to locate Defendant and the district court acted on this testimony to issue an alias capias.
The record provides that the last address Defendant provided to the State was 2862 Law Street when he was released on bond in January 2011. However, when the State reinitiated charges against Defendant in August of 2012, it consistently attempted to serve Defendant at 7709 Oak Street, the address listed on the 2010 arrest warrant.
In fact, according to the return receipts in the record, the State attempted to serve Defendant at 7709 Oak Street approximately twelve times. Service was initially attempted at 7709 Dale Street apparently due to a clerical error in October of 2012. Defendant's address was thereafter amended to 7709 Oak Street and on November 27, 2012, the sheriff left the subpoena at the door of the residence. A subpoena was issued again for the Oak Street address; however, a return dated August 1, 2013, demonstrated that the State was unable to effect service because Defendant had moved. After being advised Defendant no longer resided at the Oak Street address, the district court instructed the State to find Defendant. Nevertheless, service was again attempted at the Oak Street address on August 7, 2013. The State repeatedly attempted to serve Defendant at the Oak Street address through July 2015 despite that it was, or should have been, aware that Defendant had moved.
As discussed above, the sheriff's return indicated that the Dale Street address did not exist.
As noted by the State, the record does show that in addition to Oak Street, the State also attempted to serve Defendant at other addresses. After learning Defendant no longer lived on Oak Street, the State employed investigators to locate Defendant's proper address. Fitzgerald testified on August 13, 2013, that he tried to serve Defendant at 12515 I-10 Service Road address but was unsuccessful. Ryan testified on October 22, 2015, that he tried to effect service at the "best address" he had for Defendant. The service returns also provide that on July 21, 2015, the State attempted to serve Defendant at 2717 Magnolia Street and 2862 Law Street.
It is unclear from the record how the State obtained the I-10 Service Road address for Defendant.
As noted earlier, in attempting to serve Defendant at this address, Fitzgerald discovered that Defendant may be living on Magnolia Street. The district court again advised the State to locate Defendant. However, the sheriff attempted to serve Defendant at the Oak Street address on September 3, 2013, and September 30, 2013.
The October 22, 2013 transcript does not provide to which address the investigator refers.
These efforts, however, do not necessarily reflect that the State exercised the requisite due diligence in locating Defendant. The prosecution "has an affirmative duty to provide proof" sufficient to show that the running of the prescriptive period to commence trial was interrupted. State v. Peters, 2010-0939, p. 8 (La. App. 4 Cir. 11/17/10), 52 So.3d 233, 238. Here, the State had access to the bonding papers, wherein Defendant listed Law Street as his address. However, the State did not attempt to serve Defendant at that address until July of 2015, approximately a year after the time to commence trial expired. Instead, the subpoena was issued to Oak Street. After the State learned Defendant may reside on Magnolia Street, the State continued to serve the Oak Street address. The only documented attempt to serve Defendant at the Magnolia Street address occurred in July of 2015, approximately two years after the State discovered that Defendant did not live at the Oak Street address and about one year after the prescriptive period to bring Defendant to trial expired. Thus, we find that the State's failure to bring Defendant to trial within two years from the date it reinstituted charges was not because his presence could not be obtained by legal process nor due to events beyond its control.
Defendant states in his brief that service was attempted on August 17, 2015; however, August 17, 2015, was the date of the hearing. The sheriff attempted to serve Defendant on July 21, 2015.
As noted herein, although the State claimed at the October 1, 2013 hearing that domiciliary service was made at Magnolia Street, no related return appears in the record. On April 14, 2015, the State also requested that he be served at Magnolia Street. However, the record only provides that subpoenas were issued to the Oak Street address.
See State v. Devito, 391 So.2d 813, 816 (La. 1980) ("The state has failed to carry its heavy burden of showing that it was unable to act or prevented from acting to obtain defendant's presence for trial after it received notice that defendant was incarcerated in New Jersey and susceptible to extradition. The delays and problems encountered by the state in extradition, or those caused by its own mismanagement, cannot be charged to the defendant. The court system cannot excuse itself from affording an accused a trial within the delay required by law, simply by relying on internal operating procedures which result in non-compliance with the statutory mandate").
In State v. Carcamo, 2003-589, p. 3 (La. App. 5 Cir. 10/28/03), 860 So.2d 220, 221, several unsuccessful attempts at service had been made to the defendant's last known address prior to the arraignment. At some point, the sheriff learned that the defendant had moved to an address in Virginia. The state then attempted to serve the defendant by certified mail, but the letter was returned for "a better address." The Louisiana Fifth Circuit Court of Appeal upheld the district court's decision to quash the bill of information. The Court found the prosecution "untimely" and that no diligent effort had been made to subpoena the defendant. Id. 2003-589, p. 7, 860 So.2d at 225. In reaching this conclusion, it noted while multiple attempts of service were made; only one attempt was made after learning of the defendant's possible whereabouts.
It is important to note that in Carcamo the State did not argue that the prescriptive period was interrupted under La. C.Cr.P. art. 579(A)(2) in its brief. The State argued the time limit was interrupted when the defendant fled to avoid prosecution under La. C.Cr.P. art. 579(A)(1). Nevertheless, the Carcamo Court addressed interruption of the time period to commence trial when the defendant's presence cannot be obtained by legal process or for any other cause that is beyond the control of the State.
Similarly, in the present case, although the State attempted to serve Defendant on numerous occasions, after it discovered that Defendant may reside at Magnolia Street, it only tried to effect service at that address once. Also, the record shows that the sheriff attempted to serve at the Law Street address only once despite that Defendant had notified the prosecution of this address in the earlier proceedings. Accordingly, like the prosecution in Carcamo, the State has failed to demonstrate that it employed due diligence with regard to locating Defendant.
But see n. 38.
In State v. Breaux, 05-358, p. 6 (La. App. 5 Cir. 12/27/05), 920 So.2d 274, 277-278, the Fifth Circuit found that the state met its burden of proving an interruption occurred where the state attempted to serve the defendant at three difference addresses. However, we find that Breaux can be distinguished from the present case because the defendant in Breaux had a duty to notify the court of change of address as he was arrested and released prior to the arraignment. Id. 2005-358, pp. 3-6, 920 So.2d at 276, 277.
Additionally, the State has not shown that Defendant had an obligation to update the court with a new address. Because the State dismissed the charges in the original case, Defendant was not out on bond and thus he had no bail obligation to notify the State of a change of address. See State v. Handy, 2015-0802, p. 4 (La. App. 4 Cir. 12/30/15), 184 So.3d 812, 815; State v. Flemings, 2013-1383, p. 5 (La. App. 4 Cir. 7/2/14), 146 So.3d 646, 648; La. C.Cr.P. art. 322. At the October 22, 2013 hearing, the State asserted that when a defendant participates in a diversionary program, he must update his address, however, the State did not argue on appeal that Defendant had an ongoing duty to advise the State of his current address. Additionally, the diversionary form, allegedly setting forth Defendant's obligation, is not contained in the record.
Based on the foregoing and considering the heavy burden on the State to establish the grounds for interruption, we do not find that the trial court abused its discretion in finding that the State failed to exercise due diligence in discovering the whereabouts of Defendant such that it would interrupt the time limitation for commencement of trial under La. C.Cr.P. art. 579(A)(2). The State's argument in this regard lacks merit.
The State also argues that the time period to bring Defendant to trial was interrupted because Defendant "arguably" failed to appear despite actual notice under La. C.Cr.P. art. 579(A)(3). The State notes that at the October 3, 2013 hearing, the district attorney represented to the district court that one of its investigators "made domiciliary" service on the Magnolia Street address. The State argues that considering that attorneys are officers of a court who owe a duty of candor to the trial court, pursuant to that duty of candor, the district attorney's representation could only be made after conferring with the investigator, and that the phrase "domiciliary service" is a term of art, the significance of which the district attorney must be presumed to have understood, this Court has basis to find that the State carried its burden of establishing an interruption under La. C.Cr.P. art. 579(A)(3).
At the outset, it is important to note that the basis for the State's opposition to the motion to quash was that Defendant's "presence could not be obtained by legal process and that the State exercised due diligence in attempting to discover his whereabouts." Appellate courts generally will not consider a new basis for an objection raised for the first time on appeal. State v. Vernon, 2016-0692 (La. App. 4 Cir. 12/21/16), 207 So.3d 525, 529 (citing State v. Butler, 2012-2359, p. 4 (La. 5/17/13), 117 So.3d 87, 89. Thus, we do not find that the State preserved this issue for review. However, even assuming that the issue is properly before the Court, the State cannot meet its burden of proof that Defendant actually received notice of the hearing and then failed to appear.
La. C.Cr.P. art. 579(A)(3) operates to interrupt the time limitation to commence trial when the defendant "fails to appear at any proceeding pursuant to actual notice, proof of which appears of record."
La. C.Cr.P. art. 735 allows service of a subpoena by domiciliary service. Proper domiciliary service requires that the sheriff leave the subpoena at the "dwelling house or usual abode of the witness with a person of suitable age and discretion residing therein as a member of the domiciliary establishment of the witness." La. C.Cr.P. art. 735(A).
This Court in State v. Dillon, 2011-0188, p. 4 (La. App. 4 Cir. 8/24/11), 72 So. 3d 473, 476, noted that there is "no express provision of our procedural law specifically regarding service on a defendant of notice of his arraignment." However, because the notice of arraignment "expressly command[ed] or order[ed] [the defendant] to appear at a time and place specified," and therefore "closely resemble[d] the form for a subpoena of a witness, the Dillon Court "extend[ed] the application of the procedural requirements for proper service of a subpoena to the proper service of notice of arraignment in those limited cases where the defendant is not in custody and not released on a bail undertaking." Id. 2011-0188, at p. 4-5, 72 So. 3d at 476. Defendant in the present case was likewise not in custody nor under a bail obligation.
La. C.Cr.P. art. 735 provides for types of service and states, in part:
A. Unless otherwise directed by the state or defendant, subpoenas shall be served by domiciliary service, personal service, or United States mail as provided in Paragraph B. Personal service is made when the sheriff tenders the subpoena to the witness. Domiciliary service is made when the sheriff leaves the subpoena at the dwelling house or usual abode of the witness with a person of suitable age and discretion residing therein as a member of the domiciliary establishment of the witness.--------
B. (1) The criminal sheriff for the parish of Orleans and all other sheriffs throughout the state may serve all subpoenas directed to him to be served by mailing the said subpoenas in the United States Post Office, by either certified mail, return receipt requested, or first class mail to the addressee at the address listed on the subpoena.
(2) Service by first class mail shall include a request that the enclosed return form be signed by the addressee and mailed to the sheriff. If a signed return is not received by the sheriff, the subpoena shall be served by domiciliary or personal service as provided in Paragraph A.
(3) Service by mail shall be considered personal service if the certified return receipt or the return form is signed by the addressee. Service by mail shall be considered domiciliary service if the certified return receipt or the return form is signed by anyone other than the addressee.
Here, there is no service return or testimony demonstrating this domiciliary service actually occurred in the record. In fact, the State conceded in its brief that the investigator that alleged made domiciliary service "never testified regarding such service" and that "no related return on service appears in the record." The State also admitted that upon whom the subpoena was served and "what, if any, representation such person may have made regarding [Defendant's] residential status" at the Magnolia Street address is "not a matter of record." Additionally, the minute entry of October 1, 2013, provides that "Defendant was not served." Moreover, arguments of counsel are not sufficient to establish proof that Defendant received actual notice.
Because there is no proof that service was effected, the State has not established that Defendant had actual notice of the arraignment date such that it would interrupt the two-year period to bring Defendant to trial. See State v. Kelly, 2013-0715, pp. 5-9 (La. App. 4 Cir. 1/8/14), 133 So.3d 25, 28-31 (the defendant's failure to appear for her arraignment did not interrupt the time period to commence a trial, even though a minute entry indicated that the state introduced evidence of a subpoena and a certified mail receipt reflected that notice was sent by mail, because there was no proof the subpoena was actually delivered or received and thus no evidence conclusively proving that the defendant received notice of her arraignment); State v. Andres, 2011-1341, p. 6 (La. App. 4 Cir. 9/19/12), 100 So.3d 953, 957 (the defendant's presence in court on date to which his case was continued did not establish actual notice of next setting of his case for statutory speedy trial purposes, where no direct evidence of notice appeared in record and defendant maintained that he did not receive notice); State v. McCord, 1998-2924, p. 3 (La. App. 4 Cir. 2/3/99), 727 So.2d 1262, 1264 (rejecting the state's contention that the defendant's failure to appear for arraignment interrupted prescription under La. C.Cr.P. art. 579(A)(3) where there was no evidence that the defendant was actually notified of hearing date). Accordingly, the State's argument in this respect lacks merit.
The State also argues that because Defendant filed various preliminary pleas, i.e. the motion for inspection, motion for discovery, motion to suppress, and motion for preliminary examination on May 5, 2016, upon which the district court never ruled; the time limitation to prosecute Defendant has been suspended.
La. C.Cr.P. art. 580(A) provides that "[w]hen 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 State acknowledges that it did not argue the suspension of the limitation on commencement of trial at the district court level and that this Court has declined to consider arguments the first time on appeal. See Vernon, 2016-0692, pp. 7-8, 207 So.3d at 529 (refusing to consider the state's suspension argument under La. C.Cr.P. art. 580 when it's objection to the motion to quash was based only on the interruption of time limitations period under La. C.Cr.P. art. 579).
The State argues, however, that the contemporaneous objection rule, set forth in La. C.Cr.P. art. 841(A), should not apply nor preclude the State from advancing this argument. The State notes that La. C.Cr.P. art. 841(B) provides that the "requirement of an objection shall not apply to the court's ruling on any written motion." The State also claims the purposes of the contemporaneous rule are not implicated here. See Vernon, 2016-0692, p. 8, 207 So.3d at 529 (stating that contemporaneous objection rule serves two purposes: first, it puts the trial judge on notice of an alleged irregularity so that he may cure the problem; and second, it prevents a party from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection).
Even if the State is not precluded from advancing the suspension argument on appeal, the preliminary pleas were filed after the running of the two-year limitation of La. C.Cr.P. art. 578(A)(2). Defendant filed the preliminary motions on May 5, 2016, and the time to bring Defendant to trial expired on August 14, 2014, two years after the State filed a bill of information reinstituting charges against Defendant on August 14, 2012.
The State argues that the effect of filing the preliminary pleas suspended the limitation of La. C.Cr.P. art. 578(A)(2) until the district court's ruling thereon (which has not occurred) and "confers on the State not less than one year from the date" of district court's ruling to bring the case to trial even if the case would have otherwise prescribed. The State cites State v. Rome, 1993-1221, (La. 1/14/94), 630 So.2d 1284, 1287, to support this contention, which stated:
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, in this case two years. The Louisiana Code of Criminal Procedure article 579(A)(2) provides in pertinent part that the two-year period of limitation will be interrupted if 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." Once the cause of interruption disappears, the two-year time limit begins anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the prescriptive period is merely suspended, until the trial court rules on the filing of preliminary pleas. The relevant period is simply not counted, and the running of the time limit resumes when the motions are ruled on. Note, however, that "in no case shall the state have less than one year after the ruling to commence the trial." La.Code Crim.Proc.Ann. art. 580[(A)]. [Emphasis added].
The State thus suggests that it has a year after the district court has ruled on the preliminary motions to bring Defendant to trial even though time limitation to do so has prescribed. However, as noted by Defendant, the State takes the quoted portion of La. C.Cr.P. art. 580 out of context. La. C.Cr.P. art. 580(A) states that when a defendant files preliminary pleas "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." (emphasis added).
The one-year period afforded the State following a district court's ruling applies where the prescriptive period has been suspended. If the time limitation to commence trial has already expired, like in the present case, the prescriptive period is no longer running and cannot be suspended. See State v. Creel, 525 So.2d 734, 736 (La. 1 Cir. App. 1988) (finding that motions filed in August and September of 1987 and the continuance of the hearing on the motions did not suspend the prescriptive period when the time limitation for trial had already expired on March 11, 1987). Because the time period to bring Defendant to trial ended on August 14, 2014, the preliminary motions filed by Defendant after that date did not suspend the prescriptive period. La. C.Cr.P. art. 580's provision affording the State a year after the district court rules on the motions does not operate to revive the limitation period after it expires. As such, the State's argument in this regard lacks merit.
For the above stated reasons, we deny the motion to supplement the record and affirm the district court's ruling, which granted Mr. Roach's motion to quash.