State v. PerretState v. Perret
Defendant, William S. “Corky” Perret, was charged in a single grand jury indictment with five counts of malfeasance in office (counts one through five) and one count of public intimidation, violations of
On August 15, 1988, defendant filed a motion to quash the indictment on the basis of improper venue as to each of the six counts in the indictment. Thereafter, on October 6, 1988, defendant filed two other motions to quash the indictment. In one of those October 6 motions, defendant claimed that the indictment contained disjunctive and alternative allegations and charges which violated his constitutional right under
At a hearing conducted on October 14, 1988, which addressed those motions, the district court quashed all counts of the indictment, except count one. Thereafter, on October 31, 1988, defendant filed another motion to quash, alleging the unconstitutionality of
Through the instant appeal (KA 89 0954), the state seeks review of the district court‘s rulings which resulted in the quashing of counts two through six. Defendant filed an application for supervisory writs (KW 89 0074) pertaining only to the denial of his October 31 motion to quash by which the district court refused to quash count one, the sole remaining count in the indictment. This Court consolidated the writ application1 and the state‘s appeal.
In its appeal, the state urges three assignments of error:
1. The district court erred by granting defendant‘s motion to quash count two of the indictment on the ground of double jeopardy.
2. The district court erred by consolidating counts three, four and five into one count, count three, on the ground that the conduct charged in each of the consolidated counts was part of the same transaction.
3. The district court erred by granting defendant‘s motion to quash the consolidated count three and count six on the ground of improper venue.
In his writ application, defendant urges two assignments of error:
1. The district court erred by denying defendant‘s motion to quash the indictment on the ground that the malfeasance in office statute (
2. The district court erred by denying defendant‘s motion to quash the indictment on the ground that the indictment, together with the state‘s answers to defendant‘s request for a bill of particulars, failed to charge a crime punishable under a valid statute.
The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. See
In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bills of particulars and determine, as a matter of law and from the face of the pleadings, whether or not a crime has been charged. State v. Perez, 464 So.2d at 739. While evidence may be adduced, such may not include a defense on the merits.2 Id. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. See Id. at 740 (citations omitted).
Malfeasance in office is committed when any public officer or public employee shall:
(1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
* * * * * *
Before a public officer or employee can be charged with malfeasance in office under
In charging counts one through five, the indictment (as amended) began with a charge that, in committing each of the charged offenses of malfeasance in office, defendant had refused and failed to perform duties lawfully required of him as a public officer (assistant secretary) of the Department of Wildlife and Fisheries and had instructed and permitted other public officers and employees of the Department under his authority to fail to perform “duties lawfully required.” The indictment then set forth additional allegations relating to counts one through five as follows:
(1) As to count one, that defendant, “knowing and having reason to believe” that Lawrence Verdin, captain of the M/V “Little Sarah” possessed undersize oysters in excess of that allowed by
(2) As to count two, that after having instructed Galloway and Champagne not to issue the citations to Verdin, defendant failed to instruct Agents Galloway and Champagne to confiscate the remaining oyster cargo aboard the M/V “Little Sarah” or to instruct the agents to take action to investigate the remaining oyster cargo so as to insure that unlawful amounts of undersize oysters were not being possessed illegally.
(3) As to counts three, four and five, that defendant unlawfully instructed Rocky Hinds, an officer of the Department of Wildlife and Fisheries, not to process for purposes of prosecution three citations for violation of the undersize oyster provisions of
Finally, in regard to the offense of public intimidation, the indictment charged in count six that, between September 10, 1987, and November 1, 1987, with the intent to influence the conduct of Rocky Hinds as a public officer or public employee, defendant committed public intimidation by threatening to transfer Hinds to another employment position at the Grande Terre Marine Lab of the Department, because of Hinds’ objections to defendant‘s decision not to file the three citations.
In the state‘s answers to defendant‘s motion for bill of particulars and motion for supplemental bill of particulars, the state alleges that the duties lawfully required of defendant are contained in (1)
The state also alleges in its answers to the requests for a bill of particulars that the duties lawfully required of Allen Galloway, Darryl Champagne and Rocky Hinds were those same duties lawfully required of defendant.
Stripped of its nonessential language and paraphrased, the indictment can reasonably be read as stating the following:
Count one: Defendant committed malfeasance by instructing Galloway and Champagne not to issue citations to Captain Verdin of the M/V Little Sarah for possession of undersize oysters in violation of
Count two: Defendant committed malfeasance, after instructing Galloway and Champagne as alleged in count one, by failing to instruct them to confiscate the remaining oyster cargo aboard the M/V Little Sarah or to investigate the remaining oyster cargo.
Counts three, four and five: Defendant committed these three counts of malfeasance by instructing Rocky Hinds not to process for prosecution purposes three offense citations for violations of
Count six: Defendant committed public intimidation by threatening to transfer Rocky Hinds to the Department‘s Grande Terre Marine Lab with the intent to influence Hinds’ conduct as a public employee.
DOUBLE JEOPARDY
In its assignment of error number one, the state contends that the district court erred by granting defendant‘s motion to quash count two on the ground of double jeopardy. In its assignment of error number two, the state claims that the district court erred by consolidating counts three, four and five into a single consolidated count three, on the ground that the conduct charged in each of the consolidated counts was part of the same transaction. The state argues that the allegation in each of the counts constitutes a separate crime.
The federal and state constitutions both provide that no person shall twice be put in jeopardy of life or liberty for the same offense.
The record reflects that, in quashing count two, the district court stated the following:
I don‘t know if it‘s double jeopardy or duplicity but I just can‘t distinguish Count 1 from Count 2 I guess. And I don‘t think it‘s adequate to charge Mr. Perret with any violation under Count 2 as worded. So I think it‘s encompassed within Count 1 so I‘m going to strike Count 2.
Thereafter, in regard to its ruling consolidating counts three, four and five into one consolidated count three, the district court reasoned that under the facts alleged by the state there had been only one instruction from defendant to Hinds not to process all three offense citations referred to in counts three, four and five. Thus, the court concluded there could be but one act of malfeasance as a result of that one instruction.
We conclude that, even assuming arguendo that count two charged a crime under
The state‘s assignments one and two are without merit.
VENUE
In its assignment of error number three, the state contends that the district court erred by granting defendant‘s motion to quash the consolidated count three and count six on the ground of improper venue.
Proper venue is the parish in which the offense or an element of the offense occurred.
Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.
At the October 14, 1988 hearing, the state and defendant stipulated, as to count one, that defendant was in Jefferson Parish and Galloway and Champagne were in Terrebonne Parish; as to consolidated count three, it was stipulated that the instructions to dismiss the offense citations occurred orally in East Baton Rouge Parish and that there were also communications for Hinds to bring a memorandum with him and go see defendant in Baton Rouge. The state and defendant unsuccessfully attempted to enter into a stipulation pertinent to the venue for count six, whereupon defendant presented the testimony of Rocky Hinds.4
The only evidence presented by the state at the October 14 hearing was a memorandum dated October 12, 1987 from Hinds to Captain Roy Chauvin of the Department‘s Enforcement Division. In the memorandum Hinds advised Chauvin that “higher authorities” had asked that the three offense citations not be processed. The memorandum also specifically stated that all of these offense citations involved the harvest of undersize oysters in Bay Junop.
We take judicial notice that Bay Junop is within the territorial boundaries of Terrebonne Parish, a fact of which judicial cognizance may be taken. Compare
We now turn to count six, charging public intimidation. The evidence introduced at the October 14 hearing showed that the only communication of the alleged threat occurred in East Baton Rouge; on the basis of that evidence, we find that the state did not prove venue for the charge existed in Terrebonne Parish. Accordingly, the state‘s assignment three has merit only to the extent that the district court erroneously quashed consolidated count three; in all other respects, the assignment lacks merit.
UNCONSTITUTIONALITY OF LSA-R.S. 14:134
In his assignment of error number one, defendant contends that the district court erred by denying his motion to quash the indictment on the ground that
The constitutional guarantee that an accused shall be informed of the nature and cause of the accusation against him requires that penal statutes describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.
In making his constitutional challenge, defendant limits his challenge to the first paragraph of
Malfeasance in office is committed when any public officer or public employee shall: (1) Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.
* * * * * *
In construing the words of the challenged statutory provisions, we note that Webster‘s Third New International Dictionary (1968) defines “lawful,” “lawfully,” and “unlawful” as follows: (1) “Lawful” means “constituted, authorized, or established by law: rightful.” (2) “Lawfully” means “in a lawful manner.” (3) “Unlawful” means “not lawful: contrary to or prohibited by law: not authorized or justified by law: not permitted or warranted by law.” In our view, the words of the statute, when given a genuine construction according to their fair import, taken in their usual sense in connection with the context and with reference to the purpose of
Accordingly, we hold that the conduct proscribed by the challenged statutory provisions is unambiguous; thus the provisions are not unconstitutionally vague. We are not persuaded by defendant‘s argument that the decisions in State v. Perez, 464 So.2d 737 (La.1985), and State v. Passman, 391 So.2d 1140 (La.1980) are “evidence” of vagueness.6 Neither Perez nor Passman addressed the issue of the constitutionality of
It is unnecessary for us to reach the issues of unlawful creation of a crime or improper delegation of legislative authority because, even if we refer to the administrative regulations promulgated by the Commission and
La.R.S. 37:1431 , et seq., we find no provisions delineating affirmative duties required of defendant to administer fair and accurate testing procedures. In absence of any express requirement of him in his official capacity, he cannot be charged with refusing or failing to perform a “duty lawfully required of him.” Hence, even accepting all facts alleged in the indictment as true, Passman cannot lawfullybe charged with the criminal offense of malfeasance in office.
391 So.2d at 1144 (emphasis added). In Perez, the defendants (a district attorney and a district court judge) were indicted for malfeasance in office and conspiracy to commit malfeasance. In answers to a bill of particulars, the state informed defendant Perez that he allegedly violated the affirmative duties in
Before a public official can be charged with malfeasance in office, there must be a statute or provision of the law which delineates an affirmative duty upon the official. State v. Passman, 391 So.2d 1140 (La.1980). The duty must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.
In reference to the defendants’ oaths of office, the court concluded that both defendants had a mandatory duty to conform to the standard of conduct required by the oath in
We are clearly bound by our Supreme Court‘s expressions in Perez and Passman. See State v. Hudnall, 444 So.2d 644, 646 (La.App. 3rd Cir.1983), writ denied, 446 So.2d 315 (La.1984). In any event, our holding that the challenged portions of
This assignment, therefore, lacks merit.
FAILURE TO CHARGE OFFENSE PUNISHABLE UNDER A VALID STATUTE
In his assignment number two, defendant contends that the district court erred by denying defendant‘s motion to quash the indictment on the ground that the state‘s answers to defendant‘s request for a bill of particulars failed to charge a crime punishable under a valid statute. More specifically, defendant asserts that the indictment and the state‘s answers do not disclose an express affirmative duty which defendant “refused and failed” to perform. We disagree.
Count one of the indictment charged that defendant, in his capacity as assistant secretary of the Office of Coastal and Marine Resources of the Department of Wildlife and Fisheries, “refused and failed” to perform duties lawfully required of him by instructing Allen Galloway and Darryl Champagne not to issue offense citations to Lawrence Verdin for possession of oysters in violation of
In the state‘s written responses to defendant‘s motions for bill of particulars, the state disclosed that defendant‘s express affirmative duties were contained in his oath of office and various statutes. Pursuant to the oath of office, defendant bore an express affirmative duty not to interfere with the execution of the provisions of
This assignment lacks merit.
For the foregoing reasons, the trial court‘s ruling quashing counts two and six, and consolidating counts three, four and five, is affirmed; the ruling quashing consolidated count three is reversed, and the matter is remanded for further proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.
Notes
In our view, the term “duty” as used in the statute would include any duty imposed by any state law (whether the law is in our constitution or statutes) or by administrative regulations having the force and effect of law.
We further note that the official reporter‘s comment pertaining to