Opinion
NO. 2020-KA-0403
12-16-2020
STATE of Louisiana v. Calvin M. WILLIAMS Jr.
Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLANT Laura Bixby, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, Irena Zajickova, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR THE STATE OF LOUISIANA/APPELLANT
Laura Bixby, ORLEANS PUBLIC DEFENDERS, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
Judge Rosemary Ledet
This is a criminal case. The State seeks review of the district court's judgment granting Calvin Williams’ motion to quash. For the reasons that follow, we reverse and remand.
BACKGROUND
On December 20, 2018, the State filed a bill of information charging Mr. Williams with one count of aggravated battery. On the morning of trial, August 15, 2019, Mr. Williams moved to have video, allegedly of the battery, excluded. After the jury was selected but before the jury was sworn, the district court granted the motion. The State gave notice of its intent to seek supervisory writs and moved for a stay of the proceedings. The district court denied the stay and ordered that the trial proceed. In response, the State dismissed the case.
The next day, the State reinstituted the case. In response, Mr. Williams filed a motion to quash the prosecution, asserting the following three grounds: (1) that, through the dismissal and reinstitution, the State had flaunted its authority at Mr. Williams’ expense; (2) that the dismissal and reinstitution violated Mr. Williams’ right to procedural due process; and (3) that the dismissal and reinstitution violated the separation of powers. After briefing and argument, the district court quashed the prosecution—on a ground not articulated in the motion—as follows:
The Court obviously considered Louisiana Code of Criminal Procedure Article 532 of general grounds for Motion to Quash. The Court also considered Louisiana Code of Criminal Procedure Article 576 for filing of new charges upon
dismissal of prosecution. In the second subsection of that particular article the article expressly says, "That a new prosecution shall not be instituted under this article following a dismissal of the prosecution by the District Attorney unless the State [shows] that the dismissal was not for the purpose of avoiding a time limitation for commencement of trial established by Article 578."
* * *
[T]he sequence of events on the day of the trial [in] the previous case indicates that the State entered a dismissal in order to avoid the issue with respect to prescription or statutory limitations.
This appeal followed.
DISCUSSION
In its sole assignment or error, the State seeks review of the district court's judgment granting Mr. Williams’ motion to quash. In State v. Trepagnier, 14-0808, p. 5, n. 3 (La. App. 4 Cir. 11/19/14), 154 So.3d 670, 673, this court set forth the standard of review for a district court's ruling on a motion to quash as follows:
The standard of review that we apply in reviewing a district court's ruling on a motion to quash varies based on the types of issues presented. When solely legal issues are presented—such as in the present case involving a motion to quash under La. C.Cr.P. art. 535A(1) for failure to charge an offense punishable under a valid statute—we apply a de novo standard of review. State v. Olivia , 13-0496, pp. 2-3 (La. App. 4 Cir. 3/26/14), 137 So.3d 752, 754 ; State v. Schmolke , 12-0406, p. 4 (La. App. 4 Cir. 1/16/13), 108 So.3d 296, 299 ; see also State v. Hamdan , 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816 (noting that "[o]n appeal from the trial court's ruling on a motion to quash, the trial court's legal findings are subject to a de novo standard of review"). In contrast, when mixed issues of fact and law are presented—such as speedy trial violations and nolle prosequi dismissal—reinstitution cases—we apply an abuse of discretion standard. State v. Hall , 13-0453, pp. 11-12 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 39 (citing State v. Tran , 12-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673, n. 3 ) (explaining that "[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion"); State v. Love , 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 ("[b]ecause 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. ; see also State v. Kelly , 13-0715, p. 2, n. 2 (La. App. 4 Cir. 1/8/14), 133 So.3d 25, 27 ; State v. Williams , 14-0477, p. 6 (La. App. 4 Cir. 12/17/14), 156 So.3d 1285, 1288 (quoting Kelly , supra ).
The State contends that, because "the record does not reflect that the State dismissed and reinstituted the charges [sic ] to avoid the time limitations set forth in the Louisiana Code of Criminal Procedure," the district court abused its discretion in granting Mr. Williams’ motion to quash on that ground. We agree. In Louisiana, "[d]istrict attorneys are imbued with vast authority over criminal prosecutions—they alone determine whom, when, and how they shall prosecute and may dismiss an indictment or a count in an indictment at their discretion without leave of court." State v. Reimonenq , 19-0367, p. 4 (La. 10/22/19), 286 So.3d 412, 415 (citing LA. CONST. Art. V, § 26 (B); La. C.Cr. P. art. 61 ). That authority, however, is not unlimited. One limitation is codified by La. C.Cr.P. art. 576, which provides as follows:
Notably, the State does not contend that the district court abused its discretion by quashing the prosecution on a ground not articulated in Mr. Williams’ motion. In such a situation, this court has observed as follows:
Ordinarily, a judgment granting a motion to quash based on a ground not urged in the motion is subject to reversal. La. C.Cr.P. art. 536 (providing that a motion to quash "shall be in writing," that it must "specify distinctly the grounds on which it is based," and that a district court "shall hear no objection based on grounds not stated in the motion"); see also State v. DeGeorge , 90-159 (La. App. 4 Cir. 1990), 572 So.2d 696, 697 (reversing a judgment granting a motion to quash based on a ground not stated in the motion). When, as in this case, however, the State fails to object to the district court's judgment on that basis and fails to assign as error and brief the issue on appeal, the State is deemed to have "waived any claim it may have [had] that the trial court could not consider" the ground not raised in the motion to quash. State v. Mathews , 12-0182, p. 10 (La. App. 4 Cir. 2/6/13), 109 So.3d 984, 991, rev'd on other grounds , 13-0525 (La. 11/15/13), 129 So.3d 1217.
State v. Wells , 18-0765, p. 3, n. 2 (La. App. 4 Cir. 12/19/18), 262 So.3d 294, 297. In this case, the State not only failed to object to the district court's ruling on the basis that it had quashed the prosecution on a ground not articulated in the motion but also concedes—incorrectly—on appeal that the motion to quash "argue[d] that the State dismissed the case to circumvent the statutory time limitations to bring the defendant to trial." Accordingly, we review the merits of the district court's judgment granting Mr. Williams’ motion to quash.
Article V, Section 26(B) of the Louisiana Constitution provides, in relevant part, that "a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. Article 61 of the Louisiana Code of Criminal Procedure provides, in relevant part, that a district attorney "has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." Additionally, Article La. C.Cr.P. art. 691 provides, in relevant part, that a district attorney "has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court."
When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant's consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.
The record reflects that this prosecution was originally instituted on December 20, 2018. Pursuant to La. C.Cr.P. art. 578, because Mr. Williams is charged with a non-capital felony, the State had two years—or until December 20, 2020—to bring him to trial. The dismissal of the original prosecution occurred more than a year before the expiration of that two-year period, and the State reinstituted the prosecution the following day. At that time, the case was once again in trial posture. Thus, the record does not support the district court's finding that the State dismissed and reinstituted this prosecution for the purpose of avoiding the time limitation set forth in La. C.Cr.P. art. 578 ; and the district court abused its discretion in granting Mr. Williams’ motion to quash on that ground.
Indeed, the State had more than two years to bring Mr. Williams to trial. The record reflects that on January 11, 2019, Mr. Williams filed motions for discovery, a preliminary examination, and suppression of various of types of evidence. The effect of those motions was to suspend the two-year limitation on the commencement of trial until the district court ruled on them or they were withrdrawn. See La. C.Cr.P. art. 580 (providing 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"); State v. Allen , 03-2815, pp. 8-9 (La. 4/23/04), 871 So.2d 1097, 1102 (observing that "[f]or purposes of Article 580, a preliminary plea is any pleading or motion filed by the defense that has the effect of delaying trial" and that "[s]uch pleadings, we have found, include properly filed motions to quash, motions to suppress, or motions for a continuance, as well as applications for discovery and bills of particulars") (internal citations omitted).
Accordingly, we reverse the district court's judgment and remand to the district court. Additionally, because Mr. Williams’ motion to quash asserts three additional grounds—the flaunting of authority, the violation of due process, and the violation of the separation of powers—that the district court failed to address, we reserve Mr. Williams’ right to re-urge those grounds on remand.
DECREE
For the foregoing reasons, the district court's judgment granting Mr. Williams’ motion to quash is reversed; and the case is remanded.
REVERSED AND REMANDED
Love, J., dissents and assigns reasons
LOVE, J., DISSENTS AND ASSIGNS REASONS
I respectfully dissent from the majority's decision to reverse the trial court's granting of the motion to quash. I find a closer examination of the events leading to the trial court's decision to grant the motion to quash is required.
The majority notes that on the day of trial, before the jury was sworn in, Mr. Williams filed a motion in limine to exclude video tape evidence, which the trial court granted. Mr. Williams filed a motion in limine to exclude a video that the State desired to play for jurors due to a lack of authentication. The State was not going to call as a witness Ms. Brittany White ("Ms. White"), the person who recorded the video. The trial court, after the jury was selected but not yet sworn, granted defendant's motion, thereby preventing the State from offering the video into evidence absent testimony from the person who recorded the video. At no point during the hearing, did the State indicate that Ms. White was unavailable to testify at trial. The State simply had not prepared to call Ms. White as a witness and therefore had not arranged for her to appear at trial. The State then noticed its intent to seek supervisory review. However, when the trial court informed the State that it would not stay the trial while the State sought supervisory review, the State entered a nolle prosequi , dismissing the charge against Mr. Williams. The next day, the State reinstituted prosecution against Mr. Williams.
According to the hearing transcript, the State believed it could authenticate the video evidence through other witnesses, none of which were responsible for having recorded the video.
After the State dismissed the charge against Mr. Williams, the trial court noted the following on the record:
...[Y]ou've indicated that it is the State's prerogative to enter into a dismissal. I'll note that...there have been times when the state has lost certain rights as a result of using this particular procedural tactic in order to avoid a particular ruling of the trial court.
There are some remedies, and some consequences for using this particular tactic, and obviously at this point given the state has entered into a dismissal of the case then all of these motions are rendered moot as well as this court's ruling.
Quashal is appropriate when the record suggests that the State "dismissed the charge and reinstituted prosecution to obtain a tactical advantage over the defendant." State v. King , 11-2638 (La. 5/6/11), 60 So.3d 615, 618. Moreover, granting of a motion to quash is appropriate when the State dismissed and reinstituted prosecution "for reasons that show [the prosecutor] wants to favor the State at the expense of the defendant." State v. Love , 00-3347 (La. 5/23/03), 847 So.2d 1198, 1209.
As noted above, the State in preparation for trial did not arrange to call Ms. White as a witness. Additionally, the State did not indicate at any point during the hearing and prior to dismissing the charge against Mr. Williams that Ms. White was unavailable. Only now in brief to this Court does the State suggest that Ms. White was unavailable. Moreover, the State expressly notes in its brief that the trial court's ruling precluded the introduction of a key piece of evidence and therefore "significantly altered the State's trial strategy."
The "trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion." State v. Tran , 12-1219, 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." Love , 00-3347, p. 9-10, 847 So.3d at 1206.
The State did not represent to the trial court, as it suggests now, that Ms. White was unavailable. Rather, it is a more likely scenario that the State either did not believe Ms. White's authentication testimony was necessary for the video evidence to be admissible or the State simply overlooked the issue in preparation for trial. In any event, the State concedes to this Court that the ruling significantly altered its trial strategy. I find the State's dismissal and reinstitution of prosecution demonstrates a desire to evade the trial court's ruling. Therefore, I find the State's actions are a flaunting of its authority at Mr. Williams’ expense. The trial court emphasized this point on the record, noting that the State has a history of employing this procedural tactic to avoid adverse rulings—a procedural tactic that the defendant does not have. For these reasons, I find the facts and circumstances of this case demands that we give deference to the trial court's discretionary decision to grant Mr. Williams’ motion to quash the bill of information. Accordingly, I would affirm the trial court's ruling.