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State v. Alexcee

Court of Appeals of Louisiana, Fourth Circuit

December 26, 2018

STATE OF LOUISIANA
v.
KERIANA M. ALEXCEE

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 533-997, SECTION "H" Honorable Camille Buras, Judge.

          Leon Cannizzaro District Attorney Donna Andrieu Irena Zajickova Assistant District Attorney ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, COUNSEL FOR PLAINTIFF/APPELLANT.

          Sarah Chervinsky NFC LAW, L.L.C., COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase.

          Tiffany G. Chase Judge.

         The State of Louisiana (hereinafter "the State") appeals the trial court's granting of the motion to quash the bill of information filed by the defendant, Keriana Alexcee (hereinafter "Ms. Alexcee"). Ms. Alexcee was charged with malfeasance in office, a violation of La. R.S. 14:134. The State also appeals the trial court's granting of a motion to suppress statements given by Ms. Alexcee in the course of an investigation by the Orleans Parish Sheriff's Office (hereinafter "OPSO"). The State lists two assignments of error for review. After consideration of the record before this Court and the applicable law, we find the trial court did not err in granting the motion to quash and pretermit discussion of the motion to suppress. For the reasons that follow, we affirm the ruling of the trial court quashing the bill of information.

         RELEVANT FACTS AND PROCEDURAL HISTORY

         Ms. Alexcee was a recruit in the employ of the OPSO. On October 17, 2016, she was assigned to work on a specialty tier of the Orleans Parish Prison (hereinafter "OPP"). A 15-year-old juvenile inmate was housed in a cell in the tier on which Ms. Alexcee was assigned and committed suicide by hanging. An investigation into the incident was conducted by Lieutenant Joseph Catalanatto (hereinafter "Lt. Catalanatto") of the OPSO. Lt. Catalanatto initially interviewed Ms. Alexcee, on the night of the incident. At the conclusion of the interview she was suspended and sent home.

         As the investigation continued, Lt. Catalanatto determined that Ms. Alexcee may have violated certain policies of the OPSO. She was later called in for a second interview. At some point during the second interview, Lt. Catalanatto felt his questions were seeking to elicit potentially incriminating responses from Ms. Alexcee so he stopped and advised her of her constitutional rights. Ms. Alexcee invoked her rights and declined to answer any further questions. The investigation concluded in December of 2017. Four months later, in April of 2017, Ms. Alexcee was arrested. The State filed a bill of information alleging she "committed malfeasance in office."

         On October 6, 2017, Ms. Alexcee filed a motion for a bill of particulars requesting the State to provide: (1) the subsections of La. R.S. 14:134 that were allegedly violated; (2) the lawfully required affirmative duty that was allegedly violated; and (3) how Ms. Alexcee's actions constituted a violation of said affirmative duty. The State's initial bill of particulars erroneously identified the applicable provisions of the malfeasance statute as 14:153(A)(1) and (2). The State further requested a continuance pending the Louisiana Supreme Court's review of a recent malfeasance case from this Court. An amended bill of particulars followed on February 7, 2018, stating Ms. Alexcee was being charged with a violation of La. 14:134(A)(1) and (2) and that the affirmative duties she violated were La. Const. Art. X Sec. 30, La. R.S. 14:93, and La. R.S. 15:704.[1]

         On March 15, 2018, Ms. Alexcee filed a motion to quash pursuant to La. C.Cr.P. arts. 532(4) and 532(5). The State filed a second amended bill of particulars on the morning of the hearing, amending the bill of information to a violation of La. R.S. 14:134(A)(1) and alleging that Ms. Alexcee failed to perform a duty lawfully required of her, when she intentionally left her assigned post, pursuant to the consent judgment in Jones, et al. v. Gusman, et al., EDLA 12-00859 (hereinafter "the Consent Decree").[2]

         More specifically, the State cited to paragraph (d) under the "Safety and Supervision" sub-heading of the Consent Decree which states that the OPSO shall:

Continue to ensure that correctional officers conduct appropriate rounds at least once during every 30-minute period, at irregular times, inside each general population housing unit and at least once during every 15-minute period of special management prisoners, or more often if necessary. All security rounds shall be documented on forms or logs that do not contain pre-printed rounding times.[3]

         The State contended that the second amended bill of particulars rendered the motion to quash moot. Ms. Alexcee disputed this contention arguing the Consent Decree failed to serve as the requisite affirmative duty of law as it imposed a duty on the OPSO rather than Ms. Alexcee individually. The matter was taken under advisement and the trial court ultimately granted the motion to quash. This appeal followed.

         DISCUSSION

         Although the State assigns two assignments of errors for review, we pretermit discussion of the second, regarding the motion to suppress, as our disposition on the motion to quash renders the assignment moot.

         A motion to quash is appropriate whenever "[a] bill of particulars has shown a ground for quashing the indictment under Article 485." La. C.Cr.P. art. 532(5). When it appears from the bill of information and bill(s) of particulars that the defendant did not commit the offense charged then a motion to quash is properly granted unless the defect is cured. La. C.Cr.P. art. 485. We review a trial court's judgment on a motion to quash de novo, accepting the facts as alleged in the bill of information and bill of particulars as true. State v. Ferguson, 2014-1305, p. 6 (La.App. 4 Cir. 9/2/15), 176 So.3d 449, 454 (citing State v. Ancalade, 2014-0379, p.10 (La.App. 4 Cir. 1/14/15), 158 So.3d 891, 897).

         In its second amended response to Ms. Alexcee's motion for a bill of particulars, the State alleges she violated La. R.S. 14:134(A)(1) which provides:

A. Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such ...

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