State v. Brooks

• Citation: 210 So.3d 514
• Decision Date: 28 December 2016
• Docket Number: NO. 16–KA–345,16–KA–345
• Parties: STATE of Louisiana v. Rafael BROOKS
• Court: Court of Appeal of Louisiana (US)

210 So.3d 514

STATE of Louisiana
v.
Rafael BROOKS

NO. 16–KA–345

Court of Appeal of Louisiana, Fifth Circuit.

December 28, 2016

COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Joel T. Chaisson, II, Louis G. Authement

COUNSEL FOR DEFENDANT/APPELLEE, RAFAEL BROOKS, David S. Moyer

Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg

WINDHORST, J.

On November 9, 2015, the District Attorney for the Parish of St. Charles filed a bill of information charging defendant, Rafael Brooks, with one count of possession of heroin, on or about November 2, 2015, in violation of La. R.S. 40:967 C.¹ On December 8, 2015, defendant was arraigned and entered a plea of not guilty.² On January 28, 2016, the trial court heard co-defendant, Kevin Jago's motion to quash the bill of information, which defendant orally joined in the motion. It was argued that the bill of information should be quashed pursuant to application of the immunity statute set forth in La. R.S. 14:403.10 B. The trial court granted defendant's motion to quash the bill of information. This appeal by the State followed.³ For the reasons stated below, the trial court's judgment granting the motion to quash is reversed, the bill of information is reinstated, and the matter is remanded for further proceedings.

210 So.3d 517

FACTS AND PROCEDURAL HISTORY

In its sole assignment of error, the State argues the trial court erred in quashing the bill of information against defendant because the limited testimony presented at the motion to quash hearing did not establish sufficient evidence to support the application of La. R.S. 14:403.10 B.⁴

At the hearing on the motion to quash, Deputy Charles Warren with the St. Charles Sheriff's Office testified that on November 2, 2015, he responded to an anonymous call⁵ regarding two males "using drugs" or "passed out high on drugs" inside a red Nissan Altima located on Airline Highway in St. Rose.⁶ Upon arrival, Deputy Warren observed the vehicle running, and approached the driver's side door. He observed a white male in the driver's seat, later identified as co-defendant, Kevin Jago, and a black male in the passenger seat, later identified as defendant, and both men were unconscious and "slobbering on themselves." He knocked on the window, and when neither man responded, he opened the driver's door, which was unlocked. After opening the door, he spoke with Jago and touched his neck to check for a pulse when Jago "started coming around." Deputy Warren then looked over and saw a hypodermic needle in the defendant's right hand as he was "coming to."

Concerned for his own safety, Deputy Warren drew his weapon and ordered defendant to drop the needle and put his hands on the dashboard while he removed Jago from the vehicle. Defendant complied with Deputy Warren's orders, and after Jago was placed on the ground, defendant was removed from the vehicle and placed on the ground. Defendant understood Deputy Warren's commands to get on the ground and put his hands behind his back. Deputy Warren testified that at no point after the defendant "came to" did he lose consciousness or "slobber" again, nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. Defendant and Jago were arrested and placed in his vehicle.

Deputy Warren then conducted a search of the vehicle and recovered the hypodermic needle initially seen in defendant's hand, a metal container that had a brown substance in it, additional hypodermic needles on the driver's seat and in the driver's side door, a brown belt that was around defendant's left arm, and a belt-like object on the driver's seat. The hypodermic needles and the brown substance field-tested positive for heroin.

210 So.3d 518

Other officers arrived on the scene to assist and Deputy Warren informed his sergeant that the defendant was initially unconscious. His sergeant directed him to call emergency medical services ("EMS") "just to check on them." Once EMS arrived approximately an hour and a half later, defendant informed EMS that he "shot up heroin" 3 to 4 hours ago, it was approximately two "$5 bags of heroin." He further informed them that he did not need medical assistance, and he signed a refusal form.

Deputy Warren transported defendant and Jago to the Nelson Coleman Corrections Center. Defendant did not experience any medical problems that needed assistance on the way. Upon arrival, defendant was able to walk inside without assistance. The correctional facility's medical records showed that defendant was not treated for an overdose.

The trial court found that Deputy Warren's action of opening the door was due to his concern that defendant was experiencing a medical emergency, and therefore La. R.S. 14:403.10 B applied.⁷ The trial court did not make a specific finding that defendant experienced an overdose, and in fact, questioned whether experts were needed to determine if an overdose occurred. The trial court then had a lengthy discussion about the heroin/drug problem in the parish and "reluctantly" granted the motion to quash.

ANALYSIS AND DISCUSSION

A motion to quash is a procedural vehicle for challenging an indictment or a bill of information. La. C.Cr.P. arts. 531 –533. Such a motion must be in writing. State v. Dauzart , 07–15 (La.App. 5 Cir. 05/15/07), 960 So.2d 1079, 1084, writ denied , 07–1269 (La. 12/14/07), 970 So.2d 532 ; State v. Branch , 00–1668 (La.App. 5 Cir. 03/28/01), 784 So.2d 43 ; State v. Bentel , 00–0057 (La.App. 5 Cir. 09/27/00), 769 So.2d 1247.

Defendant did not file a written motion to quash. The transcript of the hearing on the motion to quash reflects that he orally joined in co-defendant Jago's written motion to quash. While the failure to file a written motion to quash or to specify the grounds upon which the motion to quash is based was previously considered reversible error, we find defendant's lack of a written motion to quash in this case is not reversible error since defendant orally jointed in his co-defendant's written motion to quash at the hearing. See State v. Billard , 03–319 (La.App. 5 Cir. 07/29/03), 852 So.2d 1069, 1074 n.3, writ denied (La. 02/06/04), 865 So.2d 739 ; State v. Donnaud , 04–624 (La.App. 5 Cir. 02/15/05), 896 So.2d 1151 ; Dauzart , 960 So.2d at 1083–84. Further, the State did not object to the lack of a written motion at the hearing, and it does not raise the lack of a written motion to quash as to defendant as error in this appeal.

This Court applies an abuse of discretion standard when reviewing a trial court's determination on a motion to quash. State v. Whitley , 14–737 (La.App. 5 Cir. 03/25/15), 169 So.3d 658, 661 ; State v. Lommasson , 11–536 (La.App. 5 Cir. 11/29/11), 81 So.3d 796, 799. The granting of a defendant's motion to quash the bill of information is a discretionary ruling by the trial court, and absent abuse, the ruling

210 So.3d 519

should not be disturbed by the appellate court. State v. Mendoza , 12–589 La.App. Cir. 3/13/13, 113 So.3d 288, 292 ; State v. Payton , 06–1202 (La.App. 4 Cir. 02/28/07), 954 So.2d 193, 195 (citing State v. Love , 00–3347 (La. 05/23/03), 847 So.2d 1198, 1208 ).

The motion to quash argued that the evidence was obtained while defendant was experiencing an overdose, and was in need of medical assistance. The bill of information which charged defendant with possession of heroin was, therefore, in violation of La. R.S. 14:403.10 B.

La. R.S. 14:403.10 B provides:

A person who experiences a drug-related overdose and is in need of medical assistance shall not be charged, prosecuted, or penalized for possession of a controlled dangerous substance under the Uniform Controlled Dangerous Substances Law if the evidence for possession of a controlled substance was obtained as a

...