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State v. Broussard

Court of Appeals of Louisiana, Third Circuit

March 13, 2019

STATE OF LOUISIANA
v.
DAMON BROUSSARD

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. CR 81971 HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

          Keith A. Stutes District Attorney Roger P. Hamilton, Jr. Assistant District Attorney COUNSEL FOR APPELLANT: State of Louisiana

          J. Kevin Stockstill COUNSEL FOR DEFENDANT/APPELLEE: Damon Broussard

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE

         The State of Louisiana appeals a trial court judgment granting a motion to quash a bill of indictment charging the defendant, Damon Broussard, with one count of indecent behavior with a juvenile and one count of molestation of a juvenile. For the reasons set forth herein, we reverse the decision of the trial court and remand for proceedings consistent herewith.

         DISCUSSION OF THE RECORD

         The defendant, Damon Broussard, was indicted by a grand jury on one count of indecent behavior with a juvenile, in violation of La.R.S. 14:81, and one count of molestation of a juvenile, in violation of La.R.S. 14:81.2. The indictment was filed on February 19, 2014.[1] On March 27, 2014, the defendant filed a single pleading containing multiple motions therein, as follows:

Motion for a Preliminary Hearing; Motion for Discovery of Material Discoverable Under the Authority of Brady v. Maryland and Kyles v. Whitley, Motion for Discovery of Records of Criminal Arrests and Convictions of State's Witnesses; Motion for Oyer of Warrants of Arrest, Search, and Seizure and Affidavits; Motion for Production of "Initial Reports" R.S. 44:3A(4); Motion for Discovery Pursuant to Code of Criminal Procedure Articles 716, et seq.; Motion for State to Disclose to Defendant Grants of Immunity, Plea Bargain, Agreement or Consideration Granted to Any Witness or Prospective Witness of the State; Motion to Suppress Evidence; and a Request for Notice Under La. C.E. 404(b) and 412.2.

         On March 28, 2014, the trial court signed an order setting a hearing date of May 5, 2014, for six of the eight discovery motions filed by the defendant. The order for hearing did not include the motion for a preliminary examination or the motion to suppress. The minutes of the trial court for May 5, 2014, reflect that the hearing on the discovery motions was continued to June 18, 2014. On June 18, 2014, the minutes of the trial court and the transcript of the hearing reflect that counsel for the defendant advised the trial court that the discovery motions set for hearing that date had been satisfied by the State and that he reserved the right to file additional motions after reviewing the provided discovery material.

         The trial court minutes for June 18, 2014, further reflect that a pre-trial conference set for that day was passed, and it was later set for July 23, 2014, but was again passed and reset for October 15, 2014. On October 15, the pre-trial conference was again passed and reset for November 19, 2014. On November 19, it was passed and reset for March 23, 2015. On March 23, 2015, the pre-trial conference was passed and reset for September 21, 2015. The trial court minutes for November 16, 2015, reflect that the trial of the matter was set for that day, but was continued on motion of the State and reset for a status hearing on December 17, 2015, and trial was set for January 25, 2016. Thereafter, neither the trial court minutes nor the transcript of the proceedings reflect any hearings, appearances, or motions being filed until April 2017.

         The defendant filed a motion to quash on April 5, 2017, alleging that he had not been brought to trial within the two-year time limit from the institution of prosecution. The minutes of court for May 1, 2017, reflect that the trial of the case, scheduled for that day was continued on motion of the State. It further reflected the filing of the defendant's motion to quash and that the State was ordered to submit a reply brief within two weeks. On August 31, 2017, the hearing on the motion to quash was reset to September 25, 2017. Following the September 25 hearing, the trial court denied the motion to quash, finding that the defendant's Motion for Preliminary Hearing and Motion to Suppress had never been disposed of, and thus, continued to suspend the time limitation for commencing trial.[2] The defendant applied for writs to this court, and on February 16, 2018, we issued the following writ ruling:

WRIT GRANTED AND MADE PEREMPTORY: The Defendant seeks review of the trial court's September 25, 2017 determination that his Motion for Preliminary Hearing and Motion to Suppress were unresolved preliminary pleas that suspended the running of prescription under La.Code Crim.P. art. 580. The motions either became moot on June 18, 2014, when defense counsel said the Defendant's discovery motions were satisfied and reserved his right to file additional motions or were abandoned when defense counsel made no effort to have them set for hearing for approximately three and a half years. Cf. State v. Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258; State v. Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673; State v. Vernon, 16-692 (La.App. 4 Cir. 12/21/16), 207 So.3d 525, writ denied, 17-137 (La. 9/22/17), 227 So.3d 824. Accordingly, the trial court's ruling is vacated, and these matters are remanded for reopening of the motion to quash hearing.

State v. Broussard, 17-1009 (La.App. 3 Cir. 2/16/18) (unpublished opinion).

          Judge Savoie dissented, as follows:

The Motion for Preliminary Hearing and Motion to Suppress filed in March 2014 are preliminary pleas that suspended the running of prescription under La.Code Crim.P. art. 580. Because the motions were unresolved at the time the Motion to Quash was filed, I find no error in the trial court's September 25, 2017 ruling and would deny the Defendant's writ application. See State v. Dillon, 06-488 (La.App. 5 Cir. 11/28/06), 947 So.2d 86.

Id.

         After the case was remanded to the trial court, the motion to quash was reset for March 1, 2018. At a hearing held that date, the trial court granted the motion to quash, relying on the writ decision of this court, from which the State sought review by writ application to this court. On June 12, 2018, this court granted the State's writ application and remanded the case to the trial court with instructions to treat the State's notice of intent to file a writ application as a motion to appeal. State v. Broussard, 18-262 (La.App. 3 Cir. 6/12/18) (unpublished opinion). Thereafter, the State moved for an appeal, which was granted by the trial court on June 18, 2018. On appeal, the State argues that the trial court erred in granting the motion to quash.

         OPINION

         Louisiana Code of Criminal Procedure Article 578(A) provides that: [N]o 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.

         Louisiana Code of Criminal Procedure Article 580(A) (emphasis added) further provides:

When 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 supreme court has distinguished between a suspension of the limitation on the commencement of trial and the interruption of the running of the time limitation:

A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. See La.Code Crim.Proc.Ann. arts. 532(7), 581; see also State v. Brown,451 So.2d 1074, 1079 (La.1984); State v. Taylor,439 So.2d 410 (La.1983); State v. Walgamotte,415 So.2d 205 (La. 1982). When defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. See State v. Brown,451 So.2d 1074, 1079 (La.1984); State v. Taylor,439 So.2d 410, 412 ...

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