July 6, 2015
STATE OF LOUISIANA
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ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 522-458, SECTION " F" . HONORABLE ROBIN D. PITTMAN, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY, PARISH OF ORLEANS, KYLE C. DALY, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, New Orleans, Louisiana, Counsel for State of Louisiana.
JILL PASQUARELLA, ORLEANS PUBLIC DEFENDERS, New Orleans, Louisiana, Counsel for Defendant/Relator.
(Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paul A. Bonin, Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins)
JAMES F. MCKAY III, J.
[2015-0122 La.App. 4 Cir. 1] The defendant, Tyrone Brown, seeks supervisory review of the trial court's January 5, 2015 judgment, denying his motion to quash the indictment for improper allotment. For the reasons set forth below, we rescind the stay order previously rendered herein. We deny the writ in part, grant the writ in part, and remand the matter to the Orleans Parish Criminal District Court for further proceedings consistent with the views expressed herein.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
According to the arrest warrant in this matter, on September 19, 2014, the police received a call informing them that a ten-year old girl, R.G., disclosed that her mother's boyfriend, the defendant, touched and penetrated her vaginally on at least two occasions. After being advised of his constitutional rights, the defendant admitted to the abuse, stating that the incidents began approximately two years prior when R.G was eight years old. R.G. turned eight on August 9, 2012.
On November 19, 2014, the Orleans Parish Grand Jury charged the defendant by bill of indictment with six counts based on offenses that allegedly occurred between August 1, 2012, and September 19, 2014: two counts of aggravated rape; two counts of indecent behavior with a juvenile under the age of [2015-0122 La.App. 4 Cir. 2] seventeen with greater than two years difference between the age of the juvenile and that of the defendant; and two counts of sexual battery. On November 20, 2014, the defendant appeared for arraignment and entered a plea of not guilty to the charged offenses.
Based on the August 1, 2012 date (the date set forth in the indictment as the beginning date of the alleged criminal acts), the case was allotted to Section " F" . In the Orleans Parish Criminal District Court, cases are allotted to certain sections based on the date of the alleged offense. Pursuant to the court's allotment calendar, felony cases where the charged offense occurred on August 1, 2012, were allotted to Section " F" .
On January 5, 2015, the defendant filed a motion to quash the indictment for improper allotment, arguing that the State arbitrarily selected the August 1, 2012 date. The defendant claimed that there was no basis in fact for the State's selection of August 1, 2012, for two reasons: (i) R.G. was not yet eight years old on August 1, 2012; and (ii) August 1, 2012 was well over two years prior to the defendant's September 19, 2014 conversation with law enforcement.
Following oral argument, the trial court, on January 5, 2015, denied the motion to quash the indictment, finding that the defendant failed to show that the case was improperly allotted. The trial court also denied the defendant's request to stay the proceedings.
On February 4, 2015, the defendant filed a writ application with this Court, arguing that the trial court erred in denying his motion to quash the indictment and erred in denying the motion without first holding an evidentiary hearing. The defendant also requested that this Court issue a stay order, which we granted on [2015-0122 La.App. 4 Cir. 3] April 22, 2015. On May 4, 2015, this Court ordered that this case be presented for oral argument to the Court En Banc on May 26, 2015.
STANDARD OF REVIEW
Rulings on motions to quash that do not require factual determinations and present only questions of law, as in the case sub judice, are reviewed de novo. See State v. Hall, 2013-0453, p. 11 (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39. Trial court rulings on motions to quash which involve determinations of mixed questions of law and fact are reviewed under an abuse-of-discretion standard. See State v. Brown, 2014-0680, p.1 (La.App. 4 Cir. 2/4/15), 161 So.3d 99, 100. Here, the trial court's ruling on the motion to quash was based on a legal finding and is, therefore, subject to this Court's de novo review.
LAW AND ANALYSIS
In this writ application, the defendant raises two issues for our review. First,
the defendant asserts that the trial court erred in failing to hold an evidentiary hearing on his motion to quash the indictment for improper allotment. Second, the defendant asserts that the trial court erred as a matter of law in denying his motion to quash the indictment because of improper allotment.
1. Evidentiary hearing
We find no merit in the defendant's first claim that the trial court erred in failing to hold an evidentiary hearing on the motion to quash the indictment. A review of the record, including the transcript of the January 5, 2015 hearing, reveals that an evidentiary hearing was held. The trial judge specifically stated on the record that she considered the January 5, 2015 hearing to be the evidentiary hearing requested by the defendant. No objection was lodged, and oral argument [2015-0122 La.App. 4 Cir. 4] was presented. Thus, we find that the defendant was afforded an evidentiary hearing on the issue of improper allotment.
2. Improper allotment
The defendant asserts that the date range set forth in the indictment is unsupported by the State's own evidence. Specifically, in a recorded statement given on September 19, 2014, the defendant stated that the incident happened two years prior when the victim was eight years old. However, the defendant points out that the victim was still seven years old on the date the State selected, August 1, 2012; she did not turn eight until August 9, 2012. Further, the defendant submits that the August 1, 2012 date does not comport with the defendant's September 19, 2014 statement that the incident happened two years prior. In sum, the defendant argues that because the allotment of his case to Section " F" was determined by the State's arbitrary selection of August 1, 2012, as the date of the offense, his case was not allotted on a random basis as required by law.
The defendant relies on State v. Simpson, 551 So.2d 1303, 1304 (La. 1989), wherein the Supreme Court held that criminal cases must be allotted for trial " on a random or rotating basis or under some other procedure adopted by the court which does not vest the district attorney with power to choose the judge to whom a particular case is assigned." The defendant also relies on the Supreme Court's holding in State v. Cooper, 2010-2344, p. 10 (La. 11/16/10), 50 So.3d 115, 124, that " a rotation or allotment system is not acceptable if the event that triggers application of the system is dependent upon an action taken by the district attorney." While the defendant does not allege deliberate manipulation by the State in this case, he argues that the system in place nevertheless invites manipulation. The defendant notes that, pursuant to State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176, [2015-0122 La.App. 4 Cir. 5] the accused is entitled to enforcement of the court rule requiring random allotment without proving actual manipulation in his particular case.
In opposition to the defendant's motion to quash the indictment for improper allotment, the State argues that the current allotment system in the Orleans Parish Criminal District Court does not allow the district attorney's office to choose the judge. The State asserts that the event which triggers allotment is the occurrence of the alleged offense, not an action taken by the district attorney's office. The State maintains that no court in this state has ever found that allotment based on the date of the alleged offense violates due process.
Finally, the State argues that the August 1, 2012 date was not selected arbitrarily. The State submits that the evidence
indicated that the defendant began sexually abusing R.G. when she was eight years old, and because the victim turned eight in August 2012, August 1, 2012, was chosen as the beginning of the range of dates on which the offenses occurred.
Initially, it must be noted that the defendant's challenge of the allotment procedure is not a ground for quashing his indictment. It is true that his claim is based on his allegation that the date alleged in the indictment was chosen in order to steer the case to a particular judge. However, the State argued in the lower court that the date of an offense need not be alleged in a bill of information or the [2015-0122 La.App. 4 Cir. 6] indictment unless it is essential to the crime, and thus the date that the State alleged the crime occurred, even if not correct, is not a basis to quash the indictment. Indeed, La. C.Cr.P. art. 468 provides in pertinent part that " [i]f the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date . . . ."
The defendant is charged with two counts of aggravated rape of a child under the age of thirteen, two counts of indecent behavior with a juvenile under the age of seventeen with greater than two years difference between the age of the victim and the age of the defendant, and two counts of sexual battery. Whether the victim was seven or eight years old at the time the offense occurred has no impact on any of the charges. Thus, for the purposes of the motion to quash the indictment, the alleged " false" date of August 1, 2012, is not a basis to quash the indictment against the defendant, and the trial court properly denied the motion to quash the indictment. Accordingly, as to the motion to quash the indictment, we deny the writ in part.
The real issue before this Court is whether the allotment procedure used in this case violates the defendant's due process rights because the district attorney has the ability to determine to which judge a case is allotted by choosing the date on which the crime allegedly occurred. Normally, the date of an offense is a fixed date that is easily determined, and an allotment system using the fixed date is generally not subject to manipulation by the district attorney. In this case, however, the offenses spanned a period of time, and the dates of the offenses cannot be narrowed to a certain day. The defendant essentially argues that because [2015-0122 La.App. 4 Cir. 7] the date of the earliest offense charged in his indictment determines to what judge the case is allotted, the district attorney has the ability to charge in a manner that can potentially influence the allotment. Thus, the defendant submits that the allotment procedure thereby violates the holdings of a long line of jurisprudence that has struck down allotment procedures. We agree.
Louisiana District Court Uniform Rule 14.0 provides in pertinent part:
The clerk of court shall randomly allot all criminal cases, unless an exception is established by law or these Rules. The method of random allotment established
by each district court, or by each parish within a district, where applicable, is described in Appendix 14.0A....
Appendix 14.0A, with respect to the Orleans Parish Criminal District Court, provides in pertinent part:
1. The Clerk will assign daily, randomly, and by allotment among the Sections having felony jurisdiction all felony indictments, bills of information charging felony offenses and appeals from Municipal Court and Traffic Courts and other pleadings shall be allotted among Sections A through L and the Magistrate Section. This allotment shall be conducted by the Clerk and shall be open to the public. The District Attorney shall be notified of the allotment. A computer generated random allotment system be and is hereby implemented by the Clerk's Office for all cases filed with the Clerk of the Orleans Parish Criminal District Court....
Cases interpreting allotment procedures have uniformly held that a defendant has a due process right to a fair trial and a fair tribunal. In Simpson, the Supreme Court stated: " [t]o meet due process requirements, capital and other felony cases must be allotted for trial to the various divisions of the court, or to judges assigned criminal court duty, on a random or rotating basis [footnote omitted] or under some other procedure adopted by the court which does not vest [2015-0122 La.App. 4 Cir. 8] the district attorney with power to choose the judge to whom a particular case is assigned." Simpson, 551 So.2d at 1304. In Simpson, the Court struck down the allotment procedures of the 15th Judicial District Court (" JDC" ) because the district attorney chose the judge to whom the case was to be allotted. In State v. Payne, 556 So.2d 47 (La. 1990), the Supreme Court found the allotment procedure of the 21st JDC violated the defendant's due process rights because the district attorney had the power to choose the presiding judge by making motions for certain trial dates. Likewise, in Reed, the Supreme Court found the allotment procedure of the 19th JDC, which allotted cases to " the next judge up" and eliminated a judge once he or she was allotted a case, violated the court rule that required random allotment and " invited" manipulation by the district attorney. Id. 95-0648, at p. 1, 653 So.2d at 1176. The Court in Reed stated: " Relator is entitled to enforcement of the court rule without proving actual manipulation in his particular case." Reed, 653 So.2d at 1176 (emphasis supplied). In State v. Rideau, 2001-3146 (La. 11/29/01), 802 So.2d 1280, the Supreme Court, in a per curiam opinion, found that the procedures used by the 14th JDC violated the principles of Simpson because the district attorney had the ability by process of elimination to determine who would be the final judge in the pool to be allotted a capital case and had the power to assign a case number in capital cases when indictments were returned.
The defendant's case in Cooper, involved an attack on a complicated allotment scheme used for three years to combine the allotment practices of the three parishes that comprise the 15th JDC. The scheme temporarily divided the judges of each parish into " tracks" and then allotted cases to the judges within those tracks by the date of filing in one parish and by the date of the offense in the other two parishes. The Court evaluated the temporary allotment procedures of the [2015-0122 La.App. 4 Cir. 9] 15th JDC, finding that they violated neither District Court Uniform Rule 14.0 nor the defendant's constitutional due process or equal protection rights.
With respect to the challenge of the district court's rule, the Court in Cooper acknowledged the holding in Simpson that the proper allotment of a case implicates due process concerns where the district attorney's action could determine to which judge a case is allotted. However, the Court found that the allotment scheme did not violate Rule 14.0 because in two parishes the cases were allotted based upon the date of the offense, and in the third parish, where allotment was based upon the date of the filing of the bill of information or indictment, the case was still randomly allotted by computer on that date. The Court stated: " Our inquiry here is not to determine whether the district judges selected the 'best' or 'easiest' method of allotting criminal cases. Our focus here is only on whether the 2010 Plan which was adopted violates the law." Cooper, 2010-2344 at p. 13, 50 So.3d at 126.
In State v. Broussard, 2003-1340 (La. 6/26/03), 852 So.2d 978, the Supreme Court upheld the amended allotment procedure employed by the 15th JDC, finding that because only one judge had been allotted a capital case before the defendant's case was allotted, his allotment, made by a computer selecting from the remaining ten judges, remained random and complied with Simpson and Rideau. The Broussard Court determined that because the district attorney had no direct role in the allotment procedure " and because respondent has shown no actual prejudice to [2015-0122 La.App. 4 Cir. 10] his due process rights, we find no basis for ordering reallotment of the present case." Broussard, 2003-1340, at p.1, 852 So.2d at 979. From the Court's ruling in Broussard, it appears that the prejudice requirement applies only where there is no allegation that the district attorney could manipulate the allotment.
Here, in contrast to Broussard, the defendant maintains that the district attorney could manipulate the allotment by choosing a date from a range of dates in which the offenses allegedly occurred, thus, the allotment system is flawed. We find merit in this assertion. After our de novo review of the record, we find that the Orleans Parish Criminal District Court allotment system violates the principles of due process set forth in Simpson because under the circumstances presented in the defendant's case, the district attorney had the ability to choose the date of the offense, which dictates the section of court to which the case is allotted. Accordingly, the defendant is entitled to re-allotment of his case.
For the foregoing reasons, we rescind the stay order previously rendered herein. We deny the writ in part, affirming the trial court's denial of the defendant's motion to quash the indictment. We grant the writ in part, finding that the allotment procedure employed in this case violates the defendant's due process rights because the system invites manipulation by the district attorney's office. As such, we remand the matter to the Orleans Parish Criminal District Court for the adoption of allotment procedures that comport with the jurisprudence discussed above, and for the re-allotment of the defendant's case in accordance with such proper allotment procedures.
STAY ORDER RESCINDED; WRIT DENIED IN PART, GRANTED IN PART, AND REMANDED.
Madeleine M. Landrieu, J., CONCURS WITH REASONS
I agree with the majority that the allotment process in the instant case violated the defendant's right to due process. I write separately to note that the Louisiana Supreme Court jurisprudence distinguishes between a defendant who challenges the allotment process prior to trial and one who challenges the allotment of his case on appeal, post-conviction. A defendant challenging a process of random allotment prior to trial need not prove actual prejudice but need only establish that the prosecuting authority has the ability to influence the allotment process. See, e.g.: State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176 ( per curiam ); State v. Payne, 556 So.2d 47 (La.1990); State v. Simpson, 551 So.2d 1303 (La.1989) ( per curiam ). See also, State v. Huls, 95-0541 (La.App. 1 Cir. 5/29/96), 676 So.2d 160.
[2015-0122 La.App. 4 Cir. 1] BONIN,
J., DISSENTS AND ASSIGNS REASONS.
I respectfully dissent.
The discrete legal issue presented for our review is whether the defendant must show actual prejudice to his due process rights when, as here, he virtually stipulates at the contradictory hearing that the district attorney did not engage in misconduct nor attempt to manipulate the allotment system. In my view, under these circumstances as a matter of law, Mr. Brown is not entitled to any relief, including the reallotment of his case because he has not shown any actual prejudice.
The holding in State v. Simpson is not applicable to these circumstances because there the parties stipulated that the judges were " chosen by the district attorney's office." 551 So.2d 1303, 1304, n.1 (La. 1989) (on rehearing) (per curiam). Here, the judges apparently adopted a sufficiently random allotment [2015-0122 La.App. 4 Cir. 2] system based upon a date-of-offense determination, not unlike that employed in Lafayette and Vermilion Parishes. See State v. Cooper, 10-2344, p. 10 (La. 11/16/10), 50 So.3d 115, 124. Thus, in the run-of-the-mill cases there is virtually no appreciable threat that the district attorney is " judge-shopping."  See State v. Neisler, 633 So.2d 1224, 1233 (La. 1994) (holding, inter alia, that " rules should be adopted by the Orleans Parish Criminal District Court to implement an orderly system of allotment of bail matters so as to prevent the appearance of favoritism or judge-shopping by either the state or the defendant" ).
In the absence of a motion to recuse the trial judge under La. C.Cr.P. art. 673, we operate on the premise that this trial judge will " hold the balance nice, clear and true between the State and the accused," Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.Rep. 236 (1927), and that Mr. Brown will receive a fair trial before a fair tribunal. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Because Mr. Brown virtually stipulated that the district attorney did not select the trial judge and did not attempt to manipulate the random allotment by artificially
selecting a specific date to obtain a particular trial judge, he has failed to carry the burden of showing " actual prejudice to his due process rights." State v. Broussard, 03-1340, p. 2 (La. 6/26/03), 852 So.2d 978, 979 (per curiam) (deciding, " because the district attorney's office had no direct role in the allotment procedure in violation of Simpson and Rideau, and because respondent has shown no actual prejudice to his due process rights, we find no basis for ordering reallotment of the present case" ).
Accordingly, I would deny any relief to Mr. Brown.
[2015-0122 La.App. 4 Cir. 1]
LOBRANO, J., DISSENTS IN PART, CONCURS IN PART, AND ASSIGNS REASONS.
I respectfully dissent in part and concur in part. I would stay this proceeding to allow the Louisiana Supreme Court the opportunity to address a limited systemic problem in the allotment procedure employed in Orleans Parish Criminal District Court that I find does not rise to the level of an individual due process violation on the part of the defendant, Tyrone Brown, but nonetheless undermines the public's confidence in the criminal justice system.
I agree with the majority that the allotment procedure employed in this case does " invite manipulation" by the district attorney's office. However, I part ways with the majority in that I find that the allotment procedure did not violate this defendant's individual due process rights because the defendant failed to show " actual manipulation" by the district attorney's office and thus failed to establish actual prejudice. Therefore, I agree with the dissent of Judge Bonin that, based on a due process analysis, the defendant should be denied relief. Nonetheless, I find that the allotment procedure presently employed in Orleans Parish Criminal [2015-0122 La.App. 4 Cir. 2] District Court creates an appearance of impropriety and favoritism in certain types of criminal cases. Based on the paramount importance of maintaining public confidence and integrity in the judiciary, legal profession and criminal justice system, I would stay this proceeding to allow the Louisiana Supreme Court to address this issue.
The Louisiana Supreme Court, not the courts of appeal, has the sole authority to provide guidance to the lower courts to administratively address local allotment systems. Article II, Sections 1, 2 and Article V, Sections 1, 5(A) of the Louisiana Constitution " explicitly and implicitly establish in the Supreme Court a centralized authority to supervise the judicial system, not only in legal interpretation and adjudication, but also in the manner the lower courts conduct their affairs procedurally and administratively." Twenty-First Judicial District Court v. State, 548 So.2d 1208, 1209(La. 1989); see also State v. Neisler, 93-1942 (La. 2/28/94), 633 So.2d 1224, 1233(Dennis, J., concurring in part, dissenting in part (agreeing that while " the trial courts should be encouraged to adopt local rules to govern themselves administratively and procedurally, ultimately the source of authority for the correction of individual abuses of discretion lies in the supervisory jurisdiction of this [supreme] court and the appeals courts and, for the correction of systemic problems, in this [supreme] court alone by its administrative, procedural and inherent judicial rule-making power." )) La. Const. Art. V., Section 5(A) grants the Supreme Court general supervisory jurisdiction over all other courts, including administrative control over the lower courts and provides that the Supreme Court " may establish procedural and administrative rules not in conflict with law ..." Twenty-First Judicial District Court, 548 So.2d at 1209.
Thus, I find that the Louisiana Supreme Court is the ultimate source of [2015-0122 La.App. 4 Cir. 3] authority for the correction of a systemic problem in an allotment system that does not rise to the level of a due process violation, but adversely affects the judiciary. In Neisler , the Louisiana Supreme Court provided guidance to the lower court and addressed a systemic problem in the allotment procedure regarding bail matters employed in Orleans Parish Criminal District Court in the following manner:
While we find such a local rule is needed, we decline at this point to interfere with this matter of judicial administration committed to the sound discretion of the Orleans Parish Criminal District Court. Instead, we find this gap in the rules one that the criminal district court itself must resolve. For guidance purposes, we note that the criminal district court should, as a matter of internal procedure, adopt rules for the orderly handling of such preliminary bail matters. Stated otherwise, the criminal district court should implement some sort of random allocation system designed to prevent " judge-shopping" and the appearance of favoritism.
Neisler, 633 So.2d at 1232.
Court allotment systems that " invite manipulation" or which appear to give any party a " favored position" do not inspire public confidence in the criminal justice system. The Louisiana Code of Judicial Conduct for judges, the Louisiana State Bar Association's Rules of Professional Conduct for attorneys, and various statutory laws address the need to maintain public confidence in the judiciary, legal profession, and criminal justice system and to avoid even the appearance of impropriety or favoritism that would undermine public confidence in the integrity and impartiality of the judiciary.
[2015-0122 La.App. 4 Cir. 4] In most criminal cases involving criminal behavior occurring at or during a definite period of time, the allotment procedure currently employed in Orleans Parish Criminal District Court is not problematic or amenable to " judge-shopping." However, under the specific facts of this particular case, where the offenses are alleged to have spanned a period of time and the dates of the offenses cannot be determined with certainty, the allotment procedure may be susceptible to manipulation, contrary to the spirit of random allotment and to the ethical, professional, and statutory requirements set in place to maintain the public confidence in the criminal justice system. Additionally, legal challenges based on this allotment procedure are likely to occur in future cases where the offenses charged may span over a period of time. Thus, while I find no individual due process violation in this case but a systemic problem in a lower court's procedure, I would stay this matter to allow the Louisiana Supreme Court an opportunity to provide guidance to the lower court to administratively correct the local allotment procedure so as to remove even the specter of allotment manipulation and " judge-shopping."