State v. Lommasson

• Decision Date: 29 November 2011
• Docket Number: 11–KA–538.,Nos. 11–KA–536,s. 11–KA–536
• Citation: 81 So.3d 796
• Parties: STATE of Louisiana v. Teresa J. LOMMASSON.
• Court: Court of Appeal of Louisiana — District of US

81 So.3d 796

STATE of Louisiana

v.Teresa J. LOMMASSON.

Nos. 11–KA–536

11–KA–538.

Court of Appeal of Louisiana, Fifth Circuit.

Nov. 29, 2011.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

Panel composed of Judges WALTER J. ROTHSCHILD, JUDE G. GRAVOIS, and MARC E. JOHNSON.

JUDE G. GRAVOIS, Judge.

[5 Cir. 2] Defendant, Teresa Lommasson, entered guilty pleas to two counts of operating a motor vehicle while intoxicated, fourth offense. In entering these pleas, defendant reserved her right to appeal the trial judge's denial of her Motions to Quash. Hence on appeal, she argues her motions were improperly denied. For the reasons that follow, we affirm in part, reverse in part, and remand.

PROCEDURAL HISTORY

On December 1, 2004, the Jefferson Parish District Attorney filed a bill of information, in case number 04–7794, charging defendant with operating a motor vehicle while intoxicated (fourth offense), in violation of LSA–R.S. 14:98(E).¹ On May 18, 2005, the Jefferson Parish District Attorney filed another bill of [5 Cir. 3] information, in case number 05–3218, charging defendant with operating a motor vehicle while intoxicated (fourth offense), in violation of LSA–R.S. 14:98(E).²

In both cases, arraignment was set for May 26, 2005 and defendant failed to appear for arraignment. The trial court forfeited defendant's bond and issued an attachment for her arrest. Thereafter, on December 7, 2010, following arraignment in each case, defendant entered pleas of not guilty.

On January 28, 2011, defendant filed identical motions to quash the bill of information in both cases, alleging that the State had failed to commence trial within two years from the institution of prosecution. After a hearing on February 14, 2011, the trial court denied defendant's motions to quash the bills of information, at which time defendant entered guilty pleas pursuant to State v. Crosby, 338 So.2d 584 (La.1976).³

On that same day, defendant was sentenced to five-year concurrent sentences on each count, with all but sixty days suspended. Defendant was placed on active probation for three years, one year to be served under home incarceration, with ten hours of community service per month while on probation. Defendant was also fined $5,000 in case number 04–7794.⁴ The court also gave defendant credit for time served and imposed the sentences to run concurrently to each other and to those imposed for the misdemeanor charges.

These timely appeals followed and have been consolidated for review.

[5 Cir. 4] ASSIGNMENT OF ERROR—Failure to grant Motion to Quash

In her sole assignment of error, defendant contends that the trial court erred when it failed to grant her Motions to Quash, arguing that the trials in her cases were commenced untimely. She asserts that the State failed to demonstrate that the time limitation for bringing her to trial was interrupted. She contends that she did not leave the State of Louisiana to avoid being prosecuted and further that the State failed to exercise due diligence in discovering her whereabouts after only one attempt at personal service in May of 2005. Defendant contends that her roommate, Richard Sindik's, testimony that she lived with him from 2004 to 2008 and that she received letters from the State regarding her unemployment claim supports her argument that the State only made a cursory attempt at service. She concludes that the trial court's finding that she intentionally avoided prosecution was contrary to the evidence and testimony as reflected in the record.

The State responds that the limitation period was interrupted when defendant was unable to be served at the address she provided to the court and that her presence could not be obtained by legal process and/or because she was absent from her place of abode in attempt to avoid prosecution. Specifically, the State asserts that the subpoena in case number 04–7794 reflects that the deputy could not serve defendant because she was not at that address “per Richard Sindik.” The State submits that the trial court's denial of the motions to quash was amply supported by the record.

As a general matter, the State has two years from the institution of prosecution to commence a trial in a non-capital felony case. LSA–C.Cr.P. art. 578(A)(2). The Louisiana Supreme Court has explained that the “statutory periods of limitation ‘enforce the accused's right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite [5 Cir. 5] periods of time.’ ” State v. Romar, 07–2140, p. 3 (La.7/1/08), 985 So.2d 722, 725 ( per curiam ), quoting State v. Rome, 93–1221 (La.1/14/94), 630 So.2d 1284, 1286. The date of institution of prosecution is the date when the bill of information is filed. State v. Smith, 07–959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

Upon expiration of the time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct. LSA–C.Cr.P. art. 581. A motion to quash is the proper procedural vehicle for asserting an expiration of the time limitations. LSA–C.Cr.P. art. 532(7).

Once a defendant shows that the State has failed to commence trial within the time periods specified by the general rule governing time limitations for commencement of trial, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morris, 99–3235, p. 1 (La.2/18/00), 755 So.2d 205 ( per curiam ). To satisfy its burden in establishing that an interruption of the prescriptive period has occurred, the State must exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him. State v. Breaux, 05–358, p. 5 (La.App. 5 Cir. 12/27/05), 920 So.2d 274, 277 (citation omitted). The trial judge's denial of a motion to quash should not be reversed in the absence of a clear abuse of the trial court's discretion. State v. Love, 00–3347 (La.5/23/03), 847 So.2d 1198, 1208.

In her motions to quash, defendant argued that the time period for prosecuting her under LSA–C.Cr.P. art. 578 had expired. On its face, defendant's motions to quash appear meritorious. Although prosecution was timely instituted, trial was not commenced within the two-year period provided by [5 Cir. 6] LSA–C.Cr.P. art. 578(A)(2). Thus, the issue is whether the State has met its burden of proving an interruption or suspension of the time limitation.

LSA–C.Cr.P. art. 579 provides for the interruption of the time limitation for commencing trial, as follows:

A. The period of limitation established by Article 578 shall be interrupted if:

(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or

(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or

(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

At the hearing on the motions to quash the bills of information held prior to trial on February 14, 2011, defendant argued that the record reflected that only one attempt at service was made on May 6, 2005, and the State never attempted to serve defendant again. Defendant stated that a single attempt to make service does not meet the State's obligation that a defendant cannot be served and the ability to serve a defendant is outside the State's control.

The State submitted the service information in the court record in both cases and argued that the defendant was served at the address defendant gave, 634 Carrollton Avenue, in Metairie. It asserted that certified mail sent to the Carrollton Avenue address was ignored and the person at the address refused to sign for it. The State pointed out that defendant in the instant case claims that she actually lived at the address; however, the person with whom she lived said she did not live there.

[5 Cir. 7] Richard Sindik was the only witness to testify at the hearing. Mr. Sindik testified that he lived with defendant at 634 Carrollton Avenue in Metairie from 2004 to 2008, with two exceptions. Defendant was absent from the residence while in “rehab” in May of 2005 and also for a short period of time in 2005 due to Hurricane Katrina. Mr. Sindik testified that he did not recall speaking with a Sheriff's deputy prior to Hurricane Katrina, but that he would not have told the deputy that defendant no longer lived at the Carrollton Avenue address.

Mr. Sindik further testified that defendant received correspondence and unemployment checks from the State's unemployment office at the Carrollton Avenue address, and that defendant's identification card listed the Carrollton Avenue address as her place of residence. Documents were submitted to support this testimony.

On cross-examination, Mr. Sindik testified that he did not know why defendant would not accept certified mail sent to her at the Carrollton address. He also admitted that he was aware defendant had two DWI charges pending against her.

The trial court denied defendant's motions to quash, finding that the subpoena indicated that Mr. Sindik informed the deputy that defendant “was not at this address,” which was sufficient to convince the State to believe that defendant no longer resided there. The Court also found that the...