Landry v. Hoepfner

• Decision Date: 03 June 1987
• Docket Number: No. 85-3784,85-3784
• Citation: 818 F.2d 1169
• Parties: Philip LANDRY, Petitioner-Appellant, v. Judge J. Robert HOEPFNER and William Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1169

818 F.2d 1169

55 USLW 2683

Philip LANDRY, Petitioner-Appellant, v. Judge J. Robert HOEPFNER and William Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees.

No. 85-3784.

United States Court of Appeals Fifth Circuit.

June 3, 1987.

Rehearing En Banc Granted July 9, 1987. ^*

Mark McTernan, McTernan, Parr & Rumage, New Orleans, La., for petitioner-appellant.

Elizabeth M. Gaudin, Asst. Dist. Atty., Research & Appeals, Dorothy A. Pendergast, Gretna, La., for respondents-appellees.

Appeal from the United States District Court For the Eastern District of Louisiana.

Before GARZA, WILLIAMS and GARWOOD, Circuit Judges.

GARZA, Circuit Judge:

In this habeas petition, Philip Landry seeks to challenge his 1984 conviction in the State of Louisiana for driving while intoxicated (DWI). He argues that he was denied his constitutional right to a trial by jury, that the trial judge failed to advise him of his right to trial by jury, and that Article I, Section 17 of the Louisiana Constitution and Article 779 of the Louisiana Code of Criminal Procedure are unconstitutional as applied to a defendant charged with DWI. Finding merit in his sixth amendment claim, we hold that the charge of DWI constitutes a "serious" offense under the United States Constitution and federal case law. Petitioner's conduct in driving on a public road in an intoxicated condition must be considered malum in se. Additionally the collateral consequences attendant upon conviction can be devasting to one's livelihood and reputation in the community. Therefore, a trial in front of a jury of his peers is mandated constitutionally, and we must reverse the conviction as violative of the sixth amendment as made applicable to the states through the fourteenth amendment.

While driving on a highway in Louisiana, Landry was stopped by a police officer who had observed that Landry's automobile kept swerving from lane to lane. The officer was suspicious that Landry was intoxicated, and asked him to take a field sobriety test. Landry refused to be tested. Consequently, he was arrested and charged with DWI and reckless driving. While at the police lockup, Landry was asked to submit to a breathalyzer test. Landry refused to be tested in this manner also. Landry later testified that he refused to be tested because he had consumed two alcoholic beverages, and that, although he was not drunk, he feared that the breathalyzer test would register positively.

At the bench trial, Landry acted in his own behalf, having waived his right to counsel. The First Parish Court for the Parish of Jefferson found Landry guilty of DWI pursuant to La.Rev.Stat.Ann. Sec. 14:98 (West 1984). As a first offender, Landry was sentenced to pay a fine of $300 and to serve six months in the Jefferson Parish Correctional Center. The execution of incarceration was suspended, and Landry was placed on two years active probation subject to certain conditions. The reckless driving charge was dismissed upon Landry being found guilty of DWI.

On December 5, 1984, after having retained counsel, Landry argued before the Fifth Circuit Court of Appeals for the State of Louisiana that he was constitutionally entitled to a jury at the trial. That court disagreed and, subsequently, Landry petitioned for certiorari to the Supreme Court of Louisiana. On March 15, 1985, Landry's writ application was denied without opinion. State v. Landry, 463 So.2d 761 (La.Ct.App. 5th Cir.), writ denied, 464 So.2d 1373 (La.1985).

On May 8, 1985, Landry filed a writ of habeas corpus with the United States District Court for the Eastern District of Louisiana. Once again, Landry asserted the unconstitutionality of the Louisiana statutes which provide for jury trials only if the penalty for an offense exceeds six months in jail and/or exceeds a $500 fine. The district court denied Landry's claim on the basis that DWI is not a "serious" offense. Landry's timely filing of appeal carries this constitutional question to our Court.

The essence of Landry's challenge is that the authority of District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), mandates that a defendant charged in a Louisiana court with DWI is entitled to a trial by jury. Landry contemplates that the Sixth and Fourteenth Amendments to the United States Constitution guarantee a trial by jury in this case. The sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed...." U.S. Const. Amend. VI. Article III guarantees that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed...." U.S. Const. art. III, Sec. 2, cl. 3.

Clearly, the right to a trial by jury does not extend to every criminal proceeding. In a plurality opinion in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Supreme Court established a bright-line threshold test for the right to a trial by jury. The Baldwin Court stated that only "serious" offenses require jury trials, while "petty" ¹ offenses can be tried to the bench. The Court determined that "no offense can be deemed 'petty' for purposes of the right to trial by jury where imprisonment for more than six months is authorized." Id. at 69, 90 S.Ct. at 1888. Moreover, "a possible six-month penalty is short enough to permit classification of the offense as 'petty'...." Id. Louisiana's maximum penalty for a first-time DWI offender is a fine of up to $500 and/or a sentence of not more than six months. La.Rev.Stat.Ann. Sec. 14:98 (West 1984). It would seem to follow, therefore, that because the State's DWI statutory penalty prescribes a sentence of six months or less, Baldwin would dictate that a trial by jury is not a constitutional requirement. However, Landry relies on Colts and other cases to illustrate that the Supreme Court has recognized certain offenses which need not prescribe sentences in excess of six months in order to be considered "serious," and therefore require a jury determination.

In Colts, the defendant was charged with reckless operation of a motor vehicle in the District of Columbia. 282 U.S. at 70, 51 S.Ct. at 52. District of Columbia law provided for a jury trial if the possible fine exceeded $300 and/or imprisonment exceeded ninety days. The reckless driving statute in that jurisdiction prescribed a maximum penalty of thirty days imprisonment or a $100 fine. The Supreme Court reversed the trial court's denial of a trial by jury, holding that the offense of reckless driving was, by its nature, a "serious" crime. Id. at 73, 51 S.Ct. at 53. Accordingly, the defendant was constitutionally entitled to a trial by jury, notwithstanding the limited duration of possible incarceration:

Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. The offense here charged is not merely malum prohibitum, but in its very nature, is malum in se. It was an indictable offense at common law[.]

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* * *

An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly "as to endanger property and individuals" is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense. If the act of the respondent described in the information had culminated in the death of a human being, respondent would have been subject to indictment for some degree of felonious homicide. [citations omitted]. Such an act properly cannot be described otherwise than as a grave offense--a crime within the meaning of the third article of the Constitution--and as such within the constitutional guarantee of trial by jury.

Id. at 73-74, 51 S.Ct. at 53.

Landry contends that the offense of DWI is, by its nature, a malum in se or "serious" crime. He states that a DWI offender is subject not only to a jail term and a fine, but also to public opprobrium, serious economic repercussions, and possible suspension of his driver's license. Therefore, the bright-line rule enunciated in Baldwin is not apposite in this case due to the grave nature of the offense.

Contrary to Landry's assertions, the State claims that DWI has never been recognized by the Supreme Court or this Court as a "serious" crime requiring a jury trial. Article I, section 17, of the Louisiana Constitution provides for trial by jury in all cases in which the punishment may be confinement in prison for more than six months. La. Const. art. I, Sec. 17. Louisiana Code of Criminal Procedure Article 779 states that a person charged with a misdemeanor in which the punishment may be a fine in excess of $500 or imprisonment for more than six months shall be tried by a jury of six persons, but that a person charged with any other misdemeanor shall be tried by the court without a jury. La.Code Crim.Proc.Ann. art. 779. The State argues that because a person convicted for the first time of driving while intoxicated may be fined not more than $500 and imprisoned for not more than six months, the charge was properly tried to the court without a jury under Louisiana Law.

In further support of its position the State relies upon Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Duncan Court stressed that the penalty authorized for a particular crime is of major relevance in determining whether it is "serious." Id. at 159, 88 S.Ct. at 1453. Further, the Court ruled that an offense imposing a penalty of up to six months imprisonment does not require a jury trial if it otherwise qualifies as a...