State v. MaloneState v. Malone
We grant this application, reviewing and reversing applicant‘s misdemeanor conviction under a Crosby plea by which appliсant reserved his right to seek review of the trial court‘s denying his motion to quash the charge against him on the grounds that he was not tried by the state within one year after a bench warrant issued.
Applicant was arrested for DWI in November 1989. When he and his attorney of reсord failed to appear at applicant‘s trial date, March 16, 1990, a bench warrant issued to interrupt the one-year time limitation.
Applicant‘s motion to quash, filed January 27, 1992, was heard on May 22, 1992. The only witness from the Marshal‘s Office was Deputy Marshal Menefee who testified what the records of the office reflected about Applicаnt‘s bench warrant. Chief Deputy Leon Williford of the City Marshal‘s office attempted to telephone applicant at Applicant‘s correct number (797-9585) on March 21, 1990.
In response to that telephone call, answered by someone other than аpplicant, another deputy marshal (Isaac Brass) went to 10312 Cortez street in Shreveport, “a new address [for applicant that was] noted on the arrest warrant by another deputy in our [marshal‘s] office,” where Brass left “a card,” according to Menefee. Menefee explained on re-direct examination that “on average on a DWI failure to appear,” the marshal‘s office would attempt to make “in the neighborhood of four contacts ... [phone conversations and] ... рersonal contacts.” He acknowledged the records did not indicate that there were any efforts made to contact applicant after the two attempts mentioned above in March 1990.
Williford and Brass did not testify. The only other testimony at the hearing came from applicant. His testimony is to this effect:
When he was arrested for DWI in November 1989, applicant‘s drivers license showed his address on Corinne Circle in Shreveport, where he owned that property, but at that time he was residing at 10312 Cortez Cirсle in Shreveport with his wife and children. After living on Corinne he resided “two blocks over at the townhouses,” which he said was “1031 Monet or something.” In July 1991 he and his family moved from Cortez to an address on Ellerbe Circle where they were living when the motion to quash was heard in 1992. His telephone number was “always in the phone book.” We note that his name, address and number (797-9585) are listed in the 1992-93 telephone directory. Applicant testified he has “always had” his currently-listed phone number for “ten years, something like that” and that he had lived in the same рart of town where its not been changed when he moved. “[I]t stays the same the same[.] [E]very time I changed addresses the phone number remained the same.”
Applicant agreed that he “had notice from the Marshal‘s office that there were bench warrants” for him, but was not asked when he learned this. Our emphаsis. Without objection from the State, applicant testified he received a copy of a letter his attorney of record wrote to Judge Kelly, the City Judge, dated May 23, 1990, about bench warrants that were issued for him and another client of the attorney. A copy of this letter was introduced without objection by the State. The letter complains of the issuance of the bench warrant and asks the judge to request “the Clerk to recall the bench warrants, reinstate the bonds and set these cases for trial.” The record does not show whether Judge Kelly received the letter.
Applicant said he “understood that the matter was to be placed back on the docket for trial,” but learned in December 1991 that the bench warrant was still outstanding when he went to renew his drivеr‘s license. He then telephoned “City Hall” to confirm that.
From the transcript of the hearing, we conclude that the city marshal‘s office, with any reasonable effort, could have found and arrested applicant on the bench warrant after Marсh 31, 1990. The city marshal had applicant‘s correct telephone number and address noted on its records. He had an attorney of record who apparently had asked that applicant‘s bench warrant be recalled and his case fixed fоr trial. The State did not refute his testimony that he was residing at the Cortez street address until July 1991 with his wife and two children. The city marshal‘s office showed only that its efforts to contact applicant ended on or before March 31, 1990, with first the telephone call and then thе “card.” The applicant was aware that a bench warrant had issued in March 1990, but before December 1991, he thought or “understood” his case would be “placed back on the docket for trial.”
The bench warrant of March 16, 1990, was the “cause” that interrupted the
The period of limitation in
In Taylor, supra, the court observed the defendant did not notify the court of two different changes of address, but this singular fact, standing аlone, was not sufficient proof of an intent to elude authorities. There, the court held the state failed to prove that the defendant was not amenable to service even though the state made at least two attempts to serve him.
In Nations, the court held that the state failed to establish that the defendant absented himself from his usual place of abode to avoid prosecution even though defendant had twice changed apartments and could not be served at his given residence. The holding wаs founded on the finding that defendant had notified his bonding company of each change of address, had filed a change of address form with the post office, and had maintained a correct listing of his name, number and address with the telephone company. Nations was a DWI misdemeanor case.
In another DWI case, the defendant changed residences before service was attempted. Service was later attempted at his first address and then at the changed address. A bench warrant issued and notice of bond forfeiture was ordered sеrved on defendant‘s surety. The court held that the state failed to meet its heavy burden of showing legal cause sufficient to interrupt the time for commencement of trial because the state failed to follow up on the notice to the surety for almоst two years. State v. Guidry, 395 So.2d 764 (La.1981).
Each case, of course, must stand on its own facts. Here the State did not make any effort after March 1990 to contact applicant or his attorney. The telephone contact at applicant‘s correct number had produced some information that applicant lived on Cortez street. A deputy marshal went there. The record does not suggest that the deputy thought the residence was vacant or abandoned. He left a “card” at
The State has not shown that applicant was attempting to avoid detection and service at either of the two addresses given them, at one of which no service whatsoever was attempted. The State showed only two attempts to contact applicant in March 1990, while the State‘s witness said, “on the average,” the state made in the neighborhood of four attempts to contact a defendant on a DWI charge.
CONCLUSION
“Indifference” by a criminal defendant who has an attоrney of record, whose correct number is listed in the telephone directory, and who does not otherwise attempt to avoid detection and service at given addresses, is not sufficient to prevent the
DECREE
The ruling complained of and applicаnt‘s conviction are reversed. The motion to quash is sustained by this court.
VICTORY, J., dissents with written reasons.
VICTORY, Judge, dissenting.
All of the cases cited in the majority opinion were decided prior to the 1984 Legislative amendment adding subsection A(3) to
In my view, the cause of the interruption under
The defendant claims his attorney wrote Judge Kelly in May 1990 explaining their non-appearance at trial over two months earlier, but failed to prove (1) the lettеr was actually sent to, or received by, Judge Kelly; (2) the District Attorney and the marshall were sent copies of the letter; (3) the bench warrant was recalled; (4) the defendant‘s correct address was given in the letter, or (5) the letter was filed into the record. Thе trial judge apparently did not believe a letter had been sent to Judge Kelly because he stated: “It‘s clear to me that some efforts should have been made in this case by either the defendant or the defendant‘s attorney to have this matter plаced back on the docket, or to have the warrant executed or recalled.”
Merely because the marshall‘s office was orally directed to the Cortez Street address where no personal contact was made with the defendant or his family, does not mean the state knew that the defendant lived on Cortez at that time. At arrest, the defendant provided the state with his old address on Corinne Circle, although he testified he was living on Cortez at the time. The defendant testified he had lived at three
I would deny the writ.