State v. Lathan

• Decision Date: 28 February 2007
• Docket Number: No. 41,855-KA.,41,855-KA.
• Citation: 953 So.2d 890
• Parties: STATE of Louisiana, Appellee v. Paul G. LATHAN, Jr., Appellant.
• Court: Court of Appeal of Louisiana — District of US

953 So.2d 890

STATE of Louisiana, Appellee v. Paul G. LATHAN, Jr., Appellant.

No. 41,855-KA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2007.

Louisiana Appellate Project, by Sherry Watters, New Orleans, for Appellant.

Robert W. Levy, District Attorney, Clifford R. Strider, III, Assistant District Attorney, for Appellee.

Before DREW, MOORE & SEXTON (Pro Tempore), JJ.

SEXTON, J.

Defendant, Paul G. Lathan, appeals his conviction and sentence for manslaughter. He was indicted for second degree murder, but the jury convicted him of the responsive verdict of manslaughter. The trial court sentenced Defendant to 27 years at hard labor with credit for time served. Defendant now appeals. For the reasons set forth below, Defendant's conviction and sentence are affirmed.

FACTS

Defendant approached his neighbor, Roy Jenkins, at his workplace and told him that he thought the victim, Ricky Lyons, had broken into his house. Mr. Jenkins confirmed that the victim probably had done it because he was known for doing things like that. Defendant responded that he was going to kill the victim the next time he saw him. Mr. Jenkins did not think Defendant was serious, so he did not repeat what Defendant had said to anyone.

The next day, a few minutes after 8:00 p.m. on the evening of July 9, 2003, Betty Crawford was taking her daughter home when she saw the victim, whom she knew, walking down Highway 146 outside the Ruston city limits. She dropped off her daughter and intended to come back to give the victim a ride. Ms. Crawford was waiting at the intersection of Highway 146 and South Chatham Spur as the victim walked toward her car. Before he could get there, however, a black Volvo driving down Highway 146 slammed on its brakes, swerving to a stop between the victim and Ms. Crawford's car. Ms. Crawford recognized the driver of the black Volvo as Defendant.

Ms. Crawford saw Defendant get out of the car with what she originally believed was a long stick, which she eventually realized was actually a "long gun." The victim had nothing in his hands, appearing to be unarmed. She rolled down her window so she could hear what they were saying, but she could only hear Defendant talking. Defendant said, "Where's my s* * *? You're gonna tell me where my s* * * is. You think I'm playing with you, don't you?" At that point, Defendant raised up the gun. Ms. Crawford drove away, and as she did so, she heard two shots fired.

Mr. Jenkins was in his kitchen when he heard the shots fired. He went out on his front porch to see what had happened and saw Defendant in his yard with a gun. Defendant walked to the corner of his house, bent over by a bush, walked back to his car and then drove away in his black Volvo. At the time, Mr. Jenkins could not see the victim's body because it was in the grass and surrounded by high weeds.

When paramedics arrived on the scene, the victim had an obvious gunshot wound to the head. Although the victim was breathing and had a pulse when treated by paramedics at the scene, he was later placed on life support at the hospital and eventually died. According to Dr. Frank Peretti, the forensic pathologist, it was a close contact gunshot wound just above the victim's right eyelid. Dr. Peretti testified that the muzzle of the gun was approximately one-half to three-fourths inches away from the victim at the time the gun was fired.

Investigators found two spent shells at the scene, which were later identified by a firearms expert as having been fired from the same weapon and as being of a caliber typically fired from a semi-automatic rifle. Although Defendant voluntarily gave a statement and showed investigators where he abandoned the weapon after the shooting, investigators were unable to find the weapon.

The grand jury returned a bill of indictment on August 25, 2003, charging Defendant with second-degree murder. The trial court denied Defendant's motion to quash filed October 24, 2005, the date this matter was set for trial. Defendant was tried by a jury commencing on October 25, 2005. The jury returned a responsive verdict of manslaughter on October 28, 2005. The trial judge ordered a pre-sentence investigation, and, after a sentencing hearing, sentenced Defendant to 27 years at hard labor with credit for time served. Defendant appeals both the conviction and the sentence.

DISCUSSION

Defendant argues that the trial court erred in denying his motion to quash based upon the State's failure to bring the case to trial within two years of instituting proceedings. The State has two years from the institution of prosecution to commence trial for a non-capital felony. La. C. Cr. P. art. 578(A)(2); State v. Allen, 03-2815 (La.4/23/04), 871 So.2d 1097. In the context of this case, "institution of prosecution" occurred upon the finding of an indictment pursuant to La. C. Cr. P. art. 934(7). State v. Harris, 29,574 (La.App. 2d Cir.5/7/97), 694 So.2d 626, citing State v. Butler, 302 So.2d 585 (La.1974). A motion to quash is the proper procedural vehicle when a defendant alleges that the time limitation for the commencement of trial has expired. La. C. Cr. P. art. 532(7); State v. Harris, supra; State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284. When a defendant has brought an apparently meritorious motion to quash based upon prescription, the State bears a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended so that the time limitation has not yet expired. State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205, citing State v. Joseph, 93-2734 (La.6/3/94), 637 So.2d 1032; State v. Rome, supra; see also State v. Harris, supra.

The purpose of Article 578 is to enforce a defendant's right to a speedy trial and to prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time. State v. McDonald, 30,854 (La.App. 2d Cir.8/19/98), 718 So.2d 542, citing State v. Rome, supra; State v. Barley, 29,482 (La. App. 2d Cir.6/18/97), 698 So.2d 36. When a defendant files a preliminary plea, however, the two-year time period established by La. C. Cr. P. art. 579 is suspended. La. C. Cr. P. art. 580; State v. Harris, supra; State v. Evans, 627 So.2d 664 (La. App. 2d Cir.1993). A preliminary plea is any pleading or motion filed by the defense that delays trial, which includes motions to quash, motions to suppress, applications for discovery, bills of particulars and motions for continuances. State v. Allen, supra, citing State v. Brooks, 02-0792 (La.2/14/03), 838 So.2d 778; State v. Brooks, 505 So.2d 714 (La.1987), cert denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987); State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975); State v. Elfert, 247 La. 1047, 175 So.2d 826 (1965). The suspension lasts from the date the motion is filed until the date the trial court rules on the motion and that relevant time period is not counted towards the two-year time limitation. State v. Harris, supra, citing State v. Cranmer, supra. After the trial court rules on the motion, the State has either the remainder of the time limitations or a minimum period of one year from the date of ruling in which to commence trial, whichever time is longer. La. C. Cr. P. art. 580; State v. Jackson, 40,376 (La.App. 2d Cir.12/14/05), 916 So.2d 1274, writ denied, 06-0442 (La.9/22/06), 937 So.2d 376.

In the case sub judice, based on Defendant's August 25, 2003 indictment, the State had until August 24, 2005, to commence trial. Even so, the minutes indicate that Defendant filed a series of motions for continuance, the latest one being filed on February 28, 2005. As a preliminary pleading, the motion for continuance suspended the limitation period and the State had an additional year from the trial court's ruling on the motion to commence trial. Jury selection in the case began on October 25, 2005, which was well within the time limitation period. See La. C. Cr. P. art. 761. Accordingly, the trial court properly denied Defendant's motion to quash the indictment based upon prescription.

Defendant contends that his motions for continuance should not toll the prescription period because they were not in writing, as required by La. C. Cr. P. art. 707:

A motion for continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial. Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.

The requirement that a motion for continuance be made in writing can be waived under extenuating circumstances. State v. Overton, 337 So.2d 1058 (La.1976); State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747; see also, State v. Washington, 407 So.2d 1138 (La.1981). For this reason, the fifth and third circuits have held that an oral motion for continuance suspends the limitations period. State v. Watts, 99-57 (La.App. 5th Cir.5/19/99), 738 So.2d 628; State v. Fanguy, 94-143 (La. App. 3d Cir.10/5/94), 643 So.2d 860, writ denied, 94-2726 (La.4/21/95), 653 So.2d 563; State v. Jones, 620 So.2d 341 (La. App. 5th Cir.1993). We agree.

To allow Defendant to delay the trial with oral motions for continuance, but penalize the State for not commencing trial within two years because Defendant failed to make those motions in writing would only give Defendant the benefit of his own failure to comply with the rules. "To now allow the defendant to make use of his own oral motion to continue ... to allege a prejudicial delay in the start of trial is absurd. The defendant cannot now capitalize on his own request." State v. Fanguy, supra. The State commenced trial within one year of Defendant...