State v. Falcone
| Decision Date | 07 April 1980 |
| Docket Number | No. 65300,65300 |
| Citation | 383 So.2d 1243 |
| Parties | STATE of Louisiana v. Gregory FALCONE et al. |
| Court | Louisiana Supreme Court |
Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, Edwin Marger, Atlanta, Ga., for defendants-appellants.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research and Appeals Div., for plaintiff-appellee.
The principal issue presented by this appeal is whether the prosecution of defendants in the instant case is barred, and should have been dismissed before trial, by their prior conviction of possession of marijuana with intent to distribute and conspiracy to possess marijuana with intent to distribute in another parish. Defendants' pre-trial motion to quash the indictment on the basis of double jeopardy was denied. Defendants were then tried and convicted of possession of marijuana with intent to distribute.
On February 22, 1977 defendants Steven Lukefahr, Gregory Falcone, and Joseph Trotta were arrested for possession of marijuana with intent to distribute, a violation of R.S. 40:966(A)(1). A total of seven persons were arrested on that date in three different parishes relating to a single marijuana distribution operation. On May 16, 1977 a bill of information was filed in Livingston Parish charging the three defendants and others with possession of marijuana with intent to distribute.1 On November 9, 1977 defendants herein entered pleas of guilty to an amended bill of information charging them with possession of marijuana with intent to distribute and conspiracy to possess with intent to distribute. Meanwhile, on September 17, 1977 defendants had been charged in these proceedings in Washington Parish, with possession of marijuana with intent to distribute. On March 7, 1978 defendants were tried in Washington Parish and found guilty as charged. Defendant Lukefahr was sentenced to eight years at hard labor and defendants Falcone and Trotta each to six years at hard labor. Each defendant was also fined $15,000. Defendants now appeal the Washington Parish convictions relying on sixteen assignments of error grouped into nine arguments. Because we find merit in their argument concerning double jeopardy, we reverse the convictions and sentences.
Before trial defendant filed a motion to quash the indictments in this Washington Parish prosecution on the ground that their convictions in Livingston Parish of possession of marijuana with intent to distribute bar their prosecution in Washington Parish for the present offense. Defendants argue that their convictions in Livingston Parish were for one continuous course of conduct which involved the simultaneous possession throughout two parishes of parcels of an original single source import shipment of marijuana and that, therefore, the prosecution in Washington Parish placed them in jeopardy a second time for conduct which had constituted part of that for which already convicted in Livingston Parish.
At the hearing on the motion to quash officers involved in the investigation testified that in the middle of April of 1976 a "loose" surveillance began on three farms located in Livingston, Washington, and Tangipahoa Parishes for suspected drug smuggling activities. Because of increased activity on and between the farms on February 21, 1977 the surveillance was increased shortly before midnight. In the early morning hours of February 22 officers observed a blue refrigerated van leave the Livingston Parish farm and drive to the farm in Washington Parish. At the Washington Parish farm, officers observed a brown pickup which had been seen on the Livingston Parish property, and an eighteen wheel truck. Five individuals were observed moving constantly between the three vehicles, apparently loading and/or unloading what appeared to be marijuana. The blue van then left the farm and proceeded on Highway 16. The eighteen wheeler and the brown pickup driven by defendant Lukefahr, and with Falcone and Trotta as passengers, followed shortly thereafter. The blue van was stopped by officers and searched, with officers discovering 3800 pounds of marijuana.2 The brown pickup was also stopped. Officers found 9.1 pounds of marijuana in the back of the open vehicle. Defendants were then arrested. Shortly after the arrests, officers obtained a warrant to search the Livingston Parish farm where they found approximately 32,000 pounds of marijuana. The Washington Parish and Livingston Parish prosecutions were thereafter instituted.
After hearing testimony on the motion to quash in this Washington Parish prosecution, the trial court found that although there had been an attempt to show that the marijuana discovered in Washington Parish was once a part of the larger quantity found in Livingston Parish, there was no evidence of this and concluded that the Washington Parish marijuana came from a source unknown. The court concluded, however, that even if the marijuana in Washington Parish was once part of the marijuana in Livingston, once it was separated and carried into Washington Parish, possession if it was a complete offense chargeable separately as such.
Article I § 15 of the Louisiana Constitution of 1974 and the Fifth and Fourteenth Amendments of the United States Constitution prohibit placing a person in jeopardy twice for the same offense. "Double jeopardy" in Louisiana is defined in La.Code Cr.Pr. art. 596 as follows:
"Double jeopardy exists in a second trial only when the charge in that trial is:
(1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial. " (Emphasis provided)
The Official Revision Comment to La.Code Cr.Pr. art. 596 explains the need for the inclusion of subpart 2 in the article:
The state's answers to the defendants' motion for a bill of particulars filed in Livingston Parish on July 19, 1977 also indicates that a continuous offense in both Livingston and Washington Parishes was the basis for the charge and that the Livingston prosecution encompassed the marijuana possessed by defendants in both parishes. To defendants' request for the names of the persons who observed defendants commit the charged offense, the state named officers who observed defendants "Lukefahr (David?) and Stout" and responded that as to "all other defendants (presumably referring to, among others, Steven Lukefahr and his two co-defendants herein)," "they will be tied into the case through the overall scheme which had to do with Washington Parish farms, Tangipahoa farms, and Livingston Parish farms." In response to defendants' question as to whether any physical evidence was seized from defendants, the state answered that evidence was seized in both Livingston and Washington Parishes. Additionally when asked what the exact quantities were that were seized, the state's answer included the substantial amounts of marijuana that were...
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