State v. Robertson
| Decision Date | 16 January 2008 |
| Docket Number | No. 2006-K-1537.,2006-K-1537. |
| Citation | 988 So.2d 166 |
| Parties | STATE of Louisiana v. Timothy E. ROBERTSON. |
| Court | Louisiana Supreme Court |
Charles C. Foti, Jr., Attorney General, James P. (Jay) Lemoine, District Attorney, J.D. White, Jr., Assistant District Attorney, for applicant.
Richard Emile deVargas, for respondent.
We granted writs in this case to determine the proper remedy, post-trial, for a Skipper1 violation. State v. Robertson, 06-1537 (La.9/28/2007), 964 So.2d 353.
On April 21, 2003, defendant pled guilty to a charge of Possession of a Controlled Dangerous Substance II, to wit: Methamphetamine, under Docket Number 39,730 in the 8th Judicial District Court, Winn Parish. Defendant was subsequently sentenced to five years in the Department of Corrections, with two years suspended, and five years active probation to commence after his release from incarceration. On February 28, 2004, defendant was released from incarceration, placed on both parole and probation status, and timely reported to his probation officer, Cole Gralapp.
On April 29, 2004, defendant notified Officer Gralapp of a new address in Grant Parish. On a visit to defendant's new residence on June 18, 2004, Officer Gralapp noticed a fan in defendant's bedroom window set in such a way as to blow air through the window to the outside. This raised suspicion in his mind that this could be a ventilation fan, commonly used in methamphetamine labs.
On June 29, 2004,2 Officer Gralapp was working in rural Grant Parish and decided to stop by defendant's residence for the purpose of administering a urine test. In route to defendant's residence, Officer Gralapp ran into Grant Parish Sheriff's Detective Todd Durham and asked the detective to accompany him because he did not feel safe going to defendant's residence alone.
Upon arriving at the residence, Officer Gralapp administered the urine test. While waiting the few minutes necessary for the results of the test, Officer Gralapp noticed a padlock on defendant's bedroom door which prompted him to ask Detective Durham to look around the bedroom for weapons, contraband, etc. In the bedroom Detective Durham found items consistent with the production of methamphetamine. Grant Parish Sheriff's Detective Brad Sudduth was then summoned due to his expertise and certification in the investigation of methamphetamine labs. Detective Sudduth concluded that all but one of the items necessary for the production of methamphetamine were present. Defendant was then placed under arrest.
Defendant was charged by amended Bill of Information on January 14, 2005, with creation or operation of a clandestine laboratory for the unlawful manufacture of methamphetamine, second offender status, in violation of La. R.S. 40:983(A)(3)3 and 40:982.4 Defendant filed a motion in limine and motions to suppress and quash, specifically objecting to his prior conviction being included in the Bill of Information.5 The trial court, applying the Third Circuit Court of Appeal's jurisprudence of the time, denied the motions after a hearing on February 10, 2005.
A unanimous jury returned a guilty verdict and defendant was sentenced to 25 years imprisonment at hard labor. After the trial court denied defendant's motion to reconsider the sentence, defendant appealed to the Third Circuit Court of Appeal contending that the evidence was insufficient to support the conviction, that the trial court erred in denying his motion to suppress, that the trial court erred in admitting evidence of other crimes, and that his motion to quash the indictment should have been granted.
While Robertson's appeal was still pending in the court of appeal, along with State v. Senegal, 05-1633 (La.App. 3 Cir. 5/24/06), 931 So.2d 450, reversed 06-1351 (La.9/28/2007), 965 So.2d 386 and State v. Ruiz, 06-30 (La.App. 3 Cir. 5/24/06), 931 So.2d 472; affirmed 06-1755 (La.4/11/07), 955 So.2d 81, rehearing denied (La.06/01/07), we issued our opinion in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. In Skipper we found an indictment that alleged a violation of La.Rev. Stat. 40:982 was properly quashed because that statute should be construed as a sentence enhancing statute for recidivist controlled substance law violators, and not as a substantive element of the drug-related offense which it seeks to enhance. Skipper, supra.
After our decision in Skipper, three panels of the Third Circuit Court of Appeal fashioned substantially different remedies for defendants who were convicted under prior jurisprudence and whose convictions and sentences were pending on appeal, namely State v. Senegal and State v. Robertson,6 and State v. Ruiz.7 We granted writs in all three cases. State v. Ruiz, 06-1755 (La.12/15/06), 944 So.2d 1274; State v. Senegal, 06-1351 (La.9/28/07), 965 So.2d 386; Robertson, 06-1537, 964 So.2d 353.
We heard oral arguments and issued an opinion in Ruiz, 06-1755, 955 So.2d 81, finding that (1) Skipper applies retroactively to cases pending on direct review or in the direct review pipeline at the time it was decided, (2) a Skipper error is not a structural defect in the proceedings exempt from harmless-error analysis, but "is a trial error, which may be qualitatively assessed in the context of the other evidence to determine whether admission [of the prior CDS conviction] was harmless beyond a reasonable doubt," Ruiz, 06-1755, p. 7-8, 955 So.2d 81, 86, and (3) a defendant waives the error by failing to raise it in a timely motion to quash and/or by failing to object at trial and to request an appropriate jury instruction from the court on the limited permissible use of the defendant's prior CDS conviction. Ruiz 06-1755, p. 11, 955 So.2d 81, 88. Finding the defendant in Ruiz failed to timely object, we pretermitted the issue of the appropriate remedy, post-trial, for a Skipper violation. Ruiz, 06-1755, p. 8, 955 So.2d 81, 86 ()
In Senegal, we summarily reversed the court of appeal, finding, as we did in Ruiz that the "defendant's failure to file a motion to quash ... waived the error on appeal." Senegal, 965 So.2d 386.
Today, we resolve the issue of what remedy is proper when a prior crime was made a part of the bill of information and the defendant timely objected.
In its first assignment of error, the State offers that the court of appeal erred by finding that any bill of information charging a count of La. R.S. 40:982 makes the entire charge a "non-crime" and must be quashed in toto. The court of appeal rejected the contention that the erroneous charge could be severed from the Bill of Information leaving the lesser included charge, and instead insisted that our jurisprudence mandates that the entire Bill of Information be quashed. Robertson, 931 So.2d at 527.
As we noted in Skipper, "we reject the contention that La. R.S. 40:982 is a substantive element of the drug-related offense which it seeks to enhance." Skipper, 906 So.2d at 415. Since the Bill of Information resulting in defendant's conviction included the faulty second offender language, he was convicted of a charge which included a non-crime. It is elementary that the defendant should not have been convicted of a crime which does not exist. Thus, under these circumstances, we find that defendant cannot be convicted of "Creation and Operation of a Clandestine Laboratory for The Unlawful Manufacture of CDS II, to-wit, Methamphetamine, Second Offender Status." We therefore affirm the court of appeal's decision to reverse that specific conviction.
The appellate court, in the instant case, found that since the state erroneously charged a non-crime in the Bill of Information, the entire bill should be quashed. They reasoned that since this Court in Skipper affirmed the quashing of the entire Bill of Information, and did not sever the past crime from the bill and quash merely that portion of it as we did in State v. Coody, 448 So.2d 100 (La.1984), then we "apparently agreed that both charges should be quashed." Robertson, supra at 527.
However, in Skipper we simply affirmed the trial court's remedy of quashing the entire Bill of Information in the pretrial stage. We did not suggest that it was the only remedy available in all stages of the proceeding. In fact, in footnote 23 of our opinion we specifically left the door open to the possibility that under some circumstances, particularly those outside of a pre-trial posture, a faulty bill of information could be found harmless error after trial, remedied by proper limiting instructions to the jury during trial:
Due to the pre-trial procedural posture of this case, we are not called upon here to discuss the applicability of a harmless error analysis under State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94, or the possible ameliorative effects of a limiting instruction post-Green, to circumstances in which a prior offense was listed in the charging instrument, read to the jury and of which evidence was presented at trial.
In the pretrial stage, Skipper authorizes the remedy of quashing the bill of information. However, the present case, like Ruiz and unlike Skipper, is not in the pretrial stage, but is instead in a post-trial posture. As we noted in Ruiz, such a posture mandates a different analysis. Ruiz, supra at 85.
Due to defendant's conviction of the non-crime charged, he was necessarily exposed to a conviction of La. R.S. 40:983, a lesser and included responsive offense.8 La.C.Cr.P. Art. 815 provides that in all cases not covered by La.C.Cr.P. Art. 814, the following verdicts are responsive:
(1) Guilty;
(2) Guilty of a lesser and included grade of...
To continue reading
Request your trial
-
Robinson v. Cain
... ... Procedural History Petitioner, Darren Robinson, is a state inmate incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. He was charged with possession of cocaine in excess of 200 grams but ... State v ... Robertson , 2006-1537, p. 9 (La.1/16/08), 988 So.2d 166, 172; State v ... Barbour , 2009-1258, p. 14 (La. App. 4 Cir. 3/24/10), 35 So.3d 1142, 1150, writ ... ...
-
State v. Moton
...beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06–1537 (La.1/16/08), 988 So.2d 166, 172. [2 Cir. 12] The issue of Moton's identity as the shooter and, indeed, his possession and use of a gun at the first in......
-
State v. Taylor
... ... 102, 163 L.Ed.2d 116 (2005) Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). An error is harmless if it can be said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. [5 Cir. 15] State v. Robertson, 20061537, p. 9 (La.1/16/08), 988 So.2d 166, 172, writ denied, 082301 (La.9/4/09), 17 So.3d 950; State v. Barbour, 20091258, p. 14 (La.App. 4 Cir. 3/24/10), 35 So.3d 1142, 1150, writ denied, 20100934 (La.11/19/10), 49 So.3d 396, cert. denied, Barbour v. Louisiana, U.S. , 131 S.Ct. 1477, 179 ... ...
-
State v. Higginbotham
...said beyond a reasonable doubt that the guilty verdict rendered in the case was surely unattributable to that error. State v. Robertson, 06–1537 (La.1/16/08), 988 So.2d 166. In State v. Johnson, supra, the Louisiana Supreme Court examined the erroneous admission of other crimes evidence by ......
-
The Louisiana 'Explanatory Exception': Faithfulness to Louisiana?s Hearsay Framework or Mere Storytime with the Prosecution?
...that of law academics, though questioning just how far this legitimation of narrative theory leads). 208. See, e.g. , State v. Robertson, 988 So. 2d 166, 172–73 (La. 2008); State v. Thornton, 979 So. 2d 486, 487 (La. 2008); State v. Love, 847 So. 2d 1198, 1204 (La. 2003); State v. Taylor, 8......