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State v. Nunez

Court of Appeals of Louisiana, Fourth Circuit

July 6, 2015

STATE OF LOUISIANA
v.
ERIK NUNEZ CONSOLIDATED WITH: STATE OF LOUISIANA
v.
BRANDON LICCIARDI

Editorial Note:

This pagination accurately reflects the pagination of the original published document, though the page numbers of this document may appear to be out of sequence.

ON APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 522-819, SECTION " I" . Honorable Karen K. Herman, Judge.

LEON A. CANNIZZARO, JR., District Attorney, SCOTT G. VINCENT, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, Louisiana, COUNSEL FOR RESPONDENT/ STATE OF LOUISIANA.

HERBERT V. LARSON, JR., SARA A. JOHNSON, THE LAW OFFICES OF HERBERT V. LARSON, JR., New Orleans, Louisiana, -AND- JEFFREY, L. SMITH, New Orleans, Louisiana, COUNSEL FOR RELATOR/ DEFENDANT, ERIK NUNEZ.

RALPH CAPITELLI, BRIAN J. CAPITELLI, CAPILTELLI & WICKER, New Orleans, Louisiana, COUNSEL FOR RELATOR/ DEFENDANT, BRANDON LICCIARDI.

(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).

OPINION

SANDRA CABRINA JENKINS, J.

Page 106

[2015-0164 La.App. 4 Cir. 1] Erik Nunez and Brandon Licciardi each seek review of the trial court's judgment denying his motion to quash allotment. Nunez and Licciardi are named as defendants in the same multi-count, multi-defendant bill of indictment allotted to Section " I" of Orleans Parish Criminal District Court. Nunez and Licciardi each filed a motion to quash allotment, to declare the current allotment system unconstitutional

Page 107

and to order re-allotment.[1] The trial court denied both motions to quash, on January 16, 2015 and April 22, 2015, respectively.

Upon de novo review of the trial court's judgments in light of our Louisiana jurisprudence, we find the trial court erred in denying the motions to quash allotment. For the reasons set forth below, we grant the writ in part and remand to the trial court for further proceedings consistent with this Court's ruling.

On a second issue raised solely by Nunez, we deny the writ. Nunez seeks review of the trial court's January 16, 2015 denial of his motion for bond reduction. Finding no abuse of discretion in the trial court's denial of the motion for bond reduction, we deny the writ on this issue.

[2015-0164 La.App. 4 Cir. 2] FACTS AND PROCEDURAL BACKGROUND

On December 12, 2014, the grand jury returned a nine-count indictment naming Erik Nunez, Brandon Licciardi, and Darren Sharper as defendants.[2] Erik Nunez is named as a defendant in three counts of the indictment, charging him with aggravated rape of D.D. on September 23, 2013; aggravated rape of J.W. on September 23, 2013; and obstruction of justice between September 23, 2013 and February 28, 2014. Brandon Licciardi is named as a defendant in four separate counts of the indictment, charging him with human trafficking of J.B. between July 1, 2012 and August 31, 2012; aggravated rape of M.B. on February 2, 2013; human trafficking of G.D. on August 31, 2013; and human trafficking of D.D. on September 23, 2013. Nunez and Licciardi are not co-defendants on any charge in the multi-count indictment. Upon the filing of the indictment, the case was allotted to Section " I" of Orleans Parish Criminal District Court.

On December 15, 2014, Nunez appeared for arraignment and entered a plea of not guilty to the three offenses charged against him.[3] The trial court set Nunez's bond at $2,500,000.[4] That same day, Nunez filed a motion to recuse, to re-allot, and to vacate the prior order fixing bail. In his motion, Nunez sought an order recusing the trial judge in Section " I" and ordering the Clerk of Court to randomly allot the case. The case was re-allotted to Section " D" for a hearing on the [2015-0164 La.App. 4 Cir. 3] motions. On December 22, 2014, the trial judge in Section " D" denied the motion to recuse and transferred the case back to Section " I."

On January 5, 2015, Nunez filed a motion to quash allotment, to declare the current system of allotment unconstitutional, a request for re-allotment, and motion to vacate the prior order fixing bail. In this motion, Nunez challenged the constitutionality of the procedure used by the Orleans Parish Criminal District Court for allotting multi-count, multi-defendant cases. Nunez argued that the current allotment procedure violated Louisiana District Court Rule 14.0 requiring random

Page 108

allotment and due process requirements set forth by Louisiana Supreme Court jurisprudence; and Nunez moved for his case to be randomly re-allotted. In addition, Nunez argued and moved for a bond reduction. The trial court set Nunez's motions for hearing.

On January 16, 2015, after hearing testimony and arguments, the trial court denied the motion to quash allotment, finding Nunez failed to present evidence that the State actually manipulated the allotment procedure in this case. The trial court also stated it did not find the allotment procedure used by the Orleans Parish Criminal District Court to be unconstitutional. After a separate hearing on Nunez's bond, the trial court also denied Nunez's motion for bond reduction. Subsequently, Nunez filed a timely application for supervisory writ seeking review of the trial court's January 16, 2015 judgment denying both motions.

On April 16, 2015, in consideration of Nunez's supervisory writ, this Court ordered oral arguments be heard on the issue of the allotment procedure used in Orleans Parish Criminal District Court. This Court also invited the Orleans Parish Criminal District Court en banc to provide a per curiam explaining the procedure for the random allotment of cases.

[2015-0164 La.App. 4 Cir. 4] On April 22, 2015, Licciardi filed his motion to quash the indictment and/or strike the allotment system as unconstitutional and order re-allotment.[5] That same day, the trial court adopted the ruling and reasons assigned for denying Nunez's motion to quash allotment and denied Licciardi's motion to quash allotment.[6] On April 28, 2015, Licciardi filed his application for supervisory writ seeking review of the trial court's ruling denying his motion to quash allotment; he also filed a request for expedited consideration and consolidation with Nunez's writ for oral arguments on the issue of the allotment procedure in Orleans Parish Criminal District Court.

On May 26, 2015, this Court En Banc heard oral arguments in both applications for supervisory writs, solely regarding defendants' motions to quash allotment.

LAW AND ANALYSIS

Motion to Quash Allotment

The issue presented for this Court to review is whether the trial court erred in denying defendants' motions to quash allotment and in finding the current Orleans Parish Criminal District Court allotment procedure does not violate constitutional due process requirements. We review rulings on a motion to quash involving solely a question of law under a de novo standard of review. State v. Schmolke, 12-0406, p. 4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 299. The trial court's interpretation of a constitutional issue of law is also reviewed de novo. [2015-0164 La.App. 4 Cir. 5] State v. Jackson, 14-0655, p. 3 (La.App. 4 Cir. 11/26/14), 154 So.3d 722, 724; State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504.

In both motions to quash allotment, defendants argue that the current allotment procedure used in Orleans Parish Criminal

Page 109

District Court violates constitutional due process requirements because it is not random and it invites manipulation by the District Attorney. Defendants argue that the District Attorney had the ability to choose the oldest date of offense to allege in the indictment with prior knowledge of the section of court to which the case would be allotted. By allowing the District Attorney the ability to choose the allotment of a case to a certain section of court, defendants argue that the Orleans Parish Criminal District Court allotment procedure directly violates Louisiana District Court Rule 14.0, requiring the random allotment of all criminal cases, and Louisiana Supreme Court jurisprudence holding that due process requires a random allotment procedure " which does not vest the district attorney with power to choose the judge to whom a particular case is assigned." State v. Simpson, 551 So.2d 1303, 1304 (La. 1989); see State v. Payne, 556 So.2d 47 (La. 1990); State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176; State v. Rideau, 01-3146 (La. 2001), 802 So.2d 1280.

Pursuant to La. D.Ct. Rule 14.0, applicable to all Louisiana district courts, " [t]he clerk of court shall randomly allot all criminal cases, unless an exception is established by law or these Rules." La. D.Ct. Rule 14.0 further provides that the method of random allotment is established by each judicial district court, by en banc order, and is set forth in Appendix 14.0A. The method of allotment established by Orleans Parish Criminal District Court provides in pertinent part:

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 [2015-0164 La.App. 4 Cir. 6] 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.

La. D.Ct. Rule 14.0, Appendix 14.0A, (as amended effective April 4, 2014).

Defendants acknowledge that the method of allotment officially adopted by the Orleans Parish Criminal District Court and set forth in La. D.Ct. Rule 14.0, Appendix 14.0A, fulfills the requirement of random allotment. Defendants argue, however, that the allotment procedure actually used in Orleans Parish Criminal District Court violates the requirement of random allotment in La. D.Ct. Rule 14.0.

To establish how cases are allotted in Orleans Parish Criminal District Court, defense counsel called Keith Johnson, the office manager for the Clerk of Court's office, to testify at the hearing on Nunez's motion to quash allotment. Johnson testified that the Clerk's office receives a daily email from the Judicial Administrator's office informing him of the computer-generated allotment of a judge for first, second, and third class felony cases and a second judge allotted for fourth class cases. Johnson stated, " that is the day of the offense that those Judges are allotted for," and each day's allotment is recorded on a publicly available calendar that includes historical dates. Johnson explained that the allotment of cases is then determined by the date of the offense indicated in an indictment. When the Clerk's office receives a bill of indictment, Johnson looks at the date of the offense and refers to the publicly available calendar indicating which section of court has been allotted for that date. When asked how he allots an indictment

Page 110

charging multiple offenses, Johnson stated that he uses the " first day of the first offense," i.e., the oldest offense chronologically. Johnson stated that the procedure [2015-0164 La.App. 4 Cir. 7] using the oldest date of offense is " part of the Judicial Administrator's office," but he did not know if it was a published rule. When shown a copy of La. D.Ct. Rule 14.0 and Appendix 14.0A, Johnson acknowledged that the use of the oldest date of offense to allot cases was not part of the official local Rule.

Defendants argue that Johnson's testimony established that the allotment procedure is subject to manipulation, because the District Attorney has the ability to select the oldest date of offense in an indictment knowing that the selection of that date determines the allotment to a particular section of court, as reflected by the publicly available calendar listing the allotments for each historical date of offense. In this case, defendants point out that their multi-count, multi-defendant indictment was allotted to Section " I" based on the oldest date of offense alleged in only one count of the indictment, charging Licciardi with human trafficking from July 1, 2012 to August 31, 2012. Defendants then argue that there is no evidentiary significance to the starting date of July 1, 2012, or for that entire range of dates; [7] and, rather than not allege any date of offense,[8] the District Attorney chose this particular range of dates for its own purposes knowing which section of court would be allotted this case. Defendants argue the District Attorney was afforded the ability to manipulate the allotment of this case by the current Orleans Parish Criminal District Court allotment procedure; and any such allotment system that vests such power in the District Attorney violates due process requirements [2015-0164 La.App. 4 Cir. 8] and is " flatly prohibited by law" pursuant to the Louisiana Supreme Court's decision in State v. Simpson and its progeny.

In Simpson, the Louisiana Supreme Court held:

Due process of law requires fundamental fairness, i.e., a fair trial in a fair tribunal. To 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 or under some other procedure adopted by the court which does not vest the district ...

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