State v. Jago

• Citation: 209 So.3d 1078
• Decision Date: 28 December 2016
• Docket Number: NO. 16–KA–346,16–KA–346
• Parties: STATE of Louisiana v. Kevin JAGO
• Court: Court of Appeal of Louisiana (US)

209 So.3d 1078

STATE of Louisiana

v.Kevin JAGO

NO. 16–KA–346

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, KEVIN JAGO, Maria M. Chaisson

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, Kevin Jago, with 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. On December 21, 2015, defendant filed a motion to quash the bill of information, wherein he argued the bill should be quashed pursuant to application of the immunity statute set forth in La. R.S. 14:403.10 B. On January 28, 2016, the trial court granted defendant's motion to quash the bill of information. This appeal by the State followed.² 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.

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.³

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 call⁴ regarding two males "using drugs" or "passed out high on drugs" inside a red Nissan Altima located on Airline Highway in St. Rose.⁵ 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 defendant, and a black male in the passenger seat, later identified as co-defendant, Rafael Brooks, 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 defendant and touched his neck to check for a pulse when defendant "started coming around." Deputy Warren then looked over and saw a hypodermic needle in Brooks' right hand as he was "coming to."

Concerned for his own safety, Deputy Warren drew his weapon and ordered Brooks to drop the needle and put his hands on the dashboard while he removed defendant from the vehicle. Defendant understood and complied with Deputy Warren's commands to get on the ground and put his hands behind his back. After defendant was placed on the ground, Brooks was removed from the vehicle and placed on the ground. 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 Brooks were arrested and placed in his vehicle.

Deputy Warren then conducted a search of the vehicle and recovered the hypodermic needle initially seen in Brooks' 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 Brooks' left arm, and a belt-like object on the driver's seat. The hypodermic needles and the brown substance field-tested positive for heroin.

Other officers arrived on the scene to assist and Deputy Warren informed his sergeant that 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 injected approximately "$40 of heroin 3 to 4 hours ago." He further informed them that he did not need medical assistance, and he signed a refusal form.

Deputy Warren transported defendant and Brooks 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 subsequently treated for withdrawal, not 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.⁶ 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. 5/15/07), 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. 09/26/00, 769 So.2d 1247.

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 should not be disturbed by the appellate court. State v. Mendoza , 12–589 (La.App. 5 Cir. 03/13/13), 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 ).

Defendant filed a motion to quash the bill of information wherein he 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 result of the overdose and the need for medical assistance.

The statute does not define "overdose" and there is no jurisprudence interpreting this statute.

The starting point in the interpretation of any statute is the language of the statute itself. State v. Shaw , 06–2467 (La. 11/27/07), 969 So.2d 1233, 1242 (citing State v. Johnson , 03–2993 (La. 10/19/04), 884 So.2d 568, 575 ; Theriot v. Midland Risk Insurance Company , 95–2895 (La. 05/20/97), 694 So.2d 184, 186 ). A criminal statute must be given a genuine construction consistent with the plain meaning of the language in light of its context and with reference to the purpose of the provision. La. R.S. 14:3. Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. La. R.S. 1:3. A criminal statute should be interpreted so as to be in harmony with and to preserve and effectuate the manifest intent of the legislature and an interpretation should be avoided which would operate to defeat the object and purpose of the statute. Shaw , 969 So.2d at 1242. Thus, where the words of a statute are clear and free from ambiguity, they are not to be disregarded under the pretext of pursuing their spirit. La. R.S. 1:4.

Application of La. R.S. 14:403.10 B

As written, La. R.S. 14:403.10 B establishes a three-prong test for determining whether the immunity it establishes applies. The person in possession of the controlled dangerous substance must be experiencing an "overdose"; the person must be in need of medical assistance; and the evidence of the controlled dangerous substance must have been obtained as a result of the overdose and the need for medical assistance. This statute does not define "overdose," and there is no jurisprudence interpreting this statute.

First, the record of the hearing on the motion to quash does not support a finding that the defendant was in need of medical assistance. Deputy Warren testified that after rousting the defendant, at no point did he again lose consciousness or "slobber," nor did Deputy Warren believe that the defendant was experiencing an overdose, or that he was in need of medical assistance. His sergeant had an EMS unit called "just to check on them." The defendant informed EMS that he injected approximately "$40 of heroin 3 to 4 hours ago." The defendant informed them that he did not need medical assistance, and he signed a refusal form. The correctional facility's medical records showed that defendant was not treated for an overdose. No expert testimony was offered to the contrary. We therefore conclude that the record does not support a finding that the defendant was in need of medical assistance, and that this requirement of La. R.S. 14:403.10 B has not been met.

We next consider whether the defendant experienced an "overdose" as intended by the statute. "Overdose" is defined by the Merriam–Webster Dictionary as "too great a dose (as of a therapeutic agent); also : a lethal or toxic amount (as of a drug)." "Toxic," is uniformly defined by the Merriam–Webster Dictionary and by other dictionaries and internet sources as poisonous, deadly, and capable of causing death or serious injury.

For purposes unrelated to La. R.S. 14:403.10 B, La. R.S....