State v. Ruiz
| Decision Date | 11 April 2007 |
| Docket Number | No. 2006-KO-1755.,2006-KO-1755. |
| Citation | 955 So.2d 81 |
| Parties | STATE of Louisiana v. Gregory RUIZ. |
| Court | Louisiana Supreme Court |
This criminal case addresses the appropriate remedy in a post-verdict context for a violation of the rule we announced in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. In Skipper, we held that La. Rev.Stat. 40:982 is a sentencing enhancement provision that must be implemented after conviction and thus, because it is not a substantive element of the drug-related offense it seeks to enhance, must not be placed in the charging instrument of the second or subsequent drug-related offense and evidence of the prior offense may not be presented to the jury. Skipper, 04-2137 at p. 23, 906 So.2d at 415. Because the Skipper matter arose in a pre-trial procedural posture, it did not address the appropriate remedy in a post-verdict context, as in this case, where the prior offense was placed in the charging instrument and evidence thereof was presented to the jury determining whether the accused was guilty of the second or subsequent offense. For the following reasons we find that the rule we announced in Skipper applies retroactively to non-final convictions, that a Skipper error is not a structural error and is therefore subject to harmless error analysis, but where, as here, the defendant fails to file a motion to quash the bill containing allegations of his offender status pursuant to La.Rev.Stat. 40:982 or contemporaneously object to the presentation of evidence of his prior convictions, the defendant waives raising this error on appeal.
On July 11, 2002, the State filed a bill of information charging the defendant with distribution of cocaine in violation of La. Rev.Stat. 40:967 A(1), as a second offender and possession of cocaine in violation of La.Rev.Stat. 40:967 C, as a second offender. Defendant's first trial ended in a mistrial. At his second trial, defendant's prior convictions were placed squarely before the jury. The bill of information, which contained the fact of defendant's 1995 conviction for two counts of distribution of cocaine, was necessarily read to the jury. The State also called Jamie Legnon, a probation and parole specialist for the Louisiana Department of Corrections, who testified about defendant's prior convictions and her supervision of defendant while he was on parole for those convictions. The State presented this evidence for the purpose of proving defendant's status as a second offender. Moreover, the State referred to defendant's prior convictions in rebuttal closing argument without objection by defendant. Notably, defense counsel did not move to quash the bill of information, object to the "other crimes" evidence, or request the trial court to give an admonitory instruction to the jury that they were to consider defendant's prior convictions as evidence of only his offender status and not as evidence of his guilt on the charged crimes. The jury, by a vote of 10-2, found defendant guilty as charged.
The State filed an habitual offender bill under La.Rev.Stat. 15:529.1, charging defendant as a second offender. After finding defendant a second offender pursuant to La.Rev.Stat. 15:529.1 A(1)(a), the court sentenced him to five years at hard labor for possession of cocaine and to thirty years for distribution of cocaine. Defendant appealed his conviction, averring, inter alia, it was improper under Skipper for the bill of information to contain allegations that defendant had been convicted of prior drug offenses.
A unanimous panel of the appellate court found the convictions for a second offense under La.Rev.Stat. 40:982 should be reversed as convictions for non-crimes. The court further found the offenses under La.Rev.Stat. 40:967 severable from the "non-crimes" of second offense possession and second offense distribution and affirmed those convictions, while vacating the convictions for second offense possession and second offense distribution and the attendant sentences, including the adjudication and sentence under La.Rev.Stat. 15:529.1. State v. Ruiz, 06-0030 (La. Ct. App. 3 Cir. 5/24/06), 931 So.2d 472. Essentially, the court held that in a post-verdict context for a violation of our decision in Skipper, the court should treat the inclusion of charges as a second offender, pursuant to La.Rev.Stat. 40:982, in the charging instrument as a non-crime, severable from the substantive crime, and, after a harmless error review for the exposure to the jury of the defendant's criminal history, affirm the conviction for the substantive offense if the error was harmless.
We granted the defendant's writ application solely to address the appropriate remedy for a violation of Skipper, in the post-verdict context. State v. Ruiz, 06-1755 (La.12/15/06), 944 So.2d 1274.
Before we resolve the issue of the appropriate remedy for a Skipper violation in this post-verdict context, we must first address the State's argument that Skipper should not apply retroactively. The State relies upon State v. Beer, 252 La. 756, 214 So.2d 133 (1968), wherein this court, in deciding whether a United States Supreme Court decision should be applied retroactively to non-final convictions, applied the following criteria:
(a) the purpose to be served by the new standards;
(b) the extent of reliance by law enforcement authorities on the old standards;
(c) the effect on the administration of justice of a retroactive application of the new standards.
Beer, 252 La. at 764, 214 So.2d at 136, quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).1
The Beer court refused to retroactively apply the holding of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) () to trials begun before that decision was announced, finding a retroactive application of the new standard would work a hardship and injustice upon the people of Louisiana. Beer, 252 La. at 769, 214 So.2d at 138. The State contends retroactive application of our holding in Skipper would likewise have an unjust effect on the people of Louisiana, and should not be found retroactively applicable to those cases decided prior to the date of our Skipper decision, considering the extent of the reliance on the old standard and the effect on the administration of justice of a retroactive application of the new standard.
The court of appeal rejected the State's argument, finding the State's reliance upon Beer misplaced, because Beer belongs to the earlier Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and Stovall v. Denno, supra, line of jurisprudence. We agree. As this court observed in State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1294 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the United States Supreme Court began to move gradually away from Linkletter and toward the view that a new rule should be applied retroactively to all cases pending on direct review. The Supreme Court held "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final with no exception for cases in which the new rule constitutes a `clear break' with the past." Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). This court has followed Griffith and has applied new rules to cases pending on direct review or not yet final. Taylor, 606 So.2d at 1296.
The State attempts to distinguish Taylor and argues the Beer standard should be applied, as Taylor concerned a new rule of the United States Supreme Court regarding provisions of the United States Constitution. The State cites no authority for limiting the application of new rules to cases pending on direct review or not yet final to those concerning pronouncements by the Supreme Court regarding Constitutional guarantees. The issue in Taylor was not the retroactive application of new rules to a non-final conviction, but the issue of retroactivity to cases that were final, i.e., those in the posture of collateral review. This Court has followed Griffith v. Kentucky for some time and has applied new rules to cases pending on direct review or not yet final. State v. Sanders, 523 So.2d 209, 211 (La.1988); State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Nothing in our opinions has dictated that our jurisprudence correcting erroneous statutory construction should not apply retroactively to non-final convictions. Therefore, we find that our holding in Skipper applies retroactively to convictions still subject to direct review.
Having found that Skipper applies retroactively to non-final convictions, we now turn to the issue pretermitted in Skipper: the appropriate remedy in a post-verdict context for a Skipper error. The defendant avers that charging La.Rev. Stat. 40:982 as a substantive offense constitutes structural error, requiring per se reversal of the conviction, therefore the appellate court wrongly applied a harmless error analysis to the fact of the jury's exposure to defendant's criminal history. The defendant contends that our ruling in Skipper reflects this Court's view that a trial on the merits, where the defendant's prior conviction is placed in the charging instrument, constitutes a per se violation of a defendant's constitutional right to a fair trial. In support of this argument, defendant reasons that we affirmed the trial court's granting of the motion to quash the entire bill of information in Skipper, otherwise we would have only quashed the bill insofar as it erroneously referred to Skipper's previous...
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