State v. SkipperState v. Skipper
- Reporters:
- ,
- Before:
- Traylor
The state directly appeals a ruling of the trial court granting the defendant‘s motion to quash the bill of information charging the defendant with being a second felony drug offender and declaring unconstitutional
FACTS
On April 16, 2004, the state filed a bill of information charging the defendant, Glenn D. Skipper, with possession of between 28 and 200 grams of crack cocaine, in violation of
After a hearing held July 16, 2004, the trial court granted the defendant‘s motion, quashing the amended bill of information and declaring
... So, we have somebody that‘s charged with 28 to 200 grams of cocaine in the Bill of Information and you tell the jury before you try this factual question that he‘s previously been convicted of 28 to 200 grams, which seems to be violative of the Fifth Amendment Rights. I think the defendant‘s entitled to be able to come sit down there and let‘s try the facts in this case. And I think that this thing is unconstitutional, that it does give away the Fifth Amendment Right claim that the defendant has, and I‘m going to quash the bill of Information on that basis and let‘s see what the appellate courts do. But I‘m quashing it, I‘m quashing the statute on its enhancement provision.
...
I‘m not saying double jeopardy. I‘m saying it‘s that you‘re placing this man, you‘re making him give up his Fifth Amendment Rights and I just think, basically, Sixth Amendment Fair Trial, I don‘t think that can ever be a fair trial. In my opinion, how can you have a fair trial when you tell the jury, Hey, he‘s going to trial on 28 to 200 grams? And guess what, he was convicted of 28 to 200 grams sometime ago. How is that a fair trial?
I‘m quashing the statute.2
The state objected to both of the trial court‘s rulings and perfected a direct appeal to this Court pursuant to
LAW AND DISCUSSION
Legislation is the solemn expression of the legislative will; therefore, the interpretation of a statute involves primarily the search for the legislature‘s intent.
The interpretation of a statute begins with the language of the statute
A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), R.S. 40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the offender‘s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
B. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offеnder had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drug.
The language of the statute is clear.
The state contends that the defendant‘s prior conviction must be placed in the bill of information charging the second or subsequent drug-related offense and proved as a substantive element of the crime whenever the state intends to invoke the sentencing provisions of
Statutory History
A particularly helpful guide in ascertaining the intent of the legislature is the history of the statute in question and any related legislation. Theriot v. Midland Risk Ins. Co., 1995-2895 p. 4 (La.5/20/97), 694 So.2d 184, 186.
Pursuant to the codification of the laws of the State of Louisiana into the Louisiana Revised Statutes of 1950, the initial enactment and subsequent amendments of the Uniform Narcotic Drug Law became
Persons who are convicted as multiple felonious offenders under the provisions of R.S. 15:529.1 after having been found Guilty as Charged of a violation of this Sub-part shall if Guilty of a second felony be sentenced to imprisonment for a term of not less than fifteen years at hard labor; if Guilty of a third felony to a term of not less than Twenty years at hard labor; and if Guilty of a fourth or subsequent felony to a term of life imprisonment at hard labor. Persons who are found Guilty of the attempt to violate this Sub-part and who are multiple felonious offenders and first offenders who are found Guilty of the Crime of attempting to violate the provisions
of this Sub-part shall be sentenced to a term of imprisonment at hard labor of not less than five years. On second and subsequent convictions under this Sub-part, the punishment prescribed under the provisions of this Sub-part shall not be suspended or probated. No person sentenced under this section shall be eligible for parole. (Emphasis added)
Thus, as originally conceived, the enhancement of penalties for second or subsequent drug-related offenses described in the Uniform Narcotics Drug Law еxplicitly incorporated the provisions of the habitual offender statute,
An amendment two years later removed the language explicitly referencing the habitual offender statute. Instead, after stating the amended penalties for violation of the Uniform Narcotic Drug Law, Acts 1954, No. 682 provided only that, for second and subsequent convictions, “On second and subsequent convictions under this Sub-part, the punishment prescribed under the provisions of this Sub-part, shall not be suspended or probated. No person sentenced under this section shall be eligible for parole.” The 1956 amendment and re-enactment of former La. R.S. 40:981 removed the language regarding penalties for recidivist offenders from the penalty section entirely. See Acts 1956, No. 84.
In 1970, the legislature amended and reenacted the Uniform Narcotic Drug Law, now designated as the Uniform Controlled Dangerous Substances Law, and added a specific sеction for the enhancement of penalties for those persons convicted of second or subsequent drug-related offenses, which is materially similar to the statute as it now exists.8 Amendments in 19729 and 197310 resulted in the statute‘s present form, now designated as
Louisiana Supreme Court Cases
We turn now to a review of the jurisprudential interpretation of
At the crux of this rift is the tension between two constitutional safeguards. On the one hand, an accused is entitled to be informed of the nature of the charges against him. See
The Code of Criminal Procedure implements these constitutional safeguards in
the indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
If it is necessary to allege a prior conviction in an indictment, it is sufficient to allege the name or nature of the offense and the fact, date, and court of the conviction.
An indictment shall not contain an allegation of a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.
On the other hand, an aсcused is also constitutionally entitled to a fair trial, one in which he enjoys the presumption of innocence and during which he may choose to remain silent, and his past crimes cannot generally be used against him. See
In discussing, and overruling, an earlier case which had expressed the view that a prior offense should not be placed in the charging instrument, the Court reаsoned as follows:
The court in the cited case said that the defendant was offered an opportunity to show, if he had been convicted previously or not at the time, that the court took official cognizance of that fact. The court further said that the accused was not prejudiced. On the contrary; but that, if it had been alleged in the indictment or information that he had been convicted as a previous date, such allegation would have been prejudicial to the defense before the jury, as it would appear that he was charged with having committed a prior offense.
Where a defendant claims the right to have the crime for which it is sought to convict him fully set forth in the act of accusation, his right to have a full statement cannot be denied to him on the ground that the state treats him with special leniency, and withholds a charge apprehending a charge of prior conviction, for the reason that it may prejudice him before the jury. If the averment is еssential, it should be made a ground in the affidavit.
We are of opinion that it is essential; that the first conviction must be alleged. It enters into and makes part of the last offense. It is an aggravation which gives rise to an increase of the punishment. In matter of increasing the punishment it is an essential.
The defendant has the right to know why it is that the punishment is increased, and that knowledge should be conveyed to him before sentence by properly charging him with the fact that he has been previously convicted. In other words, it becomes a part of the second offense. It is the basis of the sentence for increasing the punishment.
...
We hold that the previous charge must be charged before sentence and passed upon after having heard the proof of the previous crime charged and after it has been made to appear that the previous charge is one which can be considered as effective against the defendant in holding that he has aggravated his second оffense because of his having committed the first.
The act describing the criminal offense at issue in Compagno provided that selling liquor to minors was punishable by the penalty of a fine of between $50 to $500 and imprisonment in the parish jail or parish prison for not more than two years, or both. See Section 6 of Act 179 of 1908. The additional penalty of being “permanently deprived thereafter of the privilege
Compagno was relied upon as authority in State v. Bouzigard, 286 So.2d 633 (La.1973). In Bouzigard, the defendant was charged by bill of information with possession of marijuana, a misdemeanor, and a violation of
This Court set aside the sentence. The Court found the amended bill of information did not comply with the technical requirements of
Bouzigard noted several provisions in our criminal code, similar to the penalties for possession of marijuana, which provide for enhanced penalties for repeat offenders.13 Citing the Official Revision Comment to
Bouzigard differentiated between criminal statutes which contain provisions within themselves for enhanced sentences for repeat offenders and the general sentencing enhancement provisions of the habitual offender law,
It should be noted that prosecution under R.S. 40:966 and comparable statutes which provide for enhanced penalties for repeat violators is unlike prosecution under the Habitual Offender Law, R.S. 15:529.1 which concerns itself with prior unrelated felonies. Under that statute if the District Attorney chooses to exercise his discretion and charge a defendant with being a habitual offender, he must file a bill of information under R.S. 15:529.1 only after conviction or sentence. There the prior felony or felonies for which a defendant has been convicted, from {sic; form} no element of the most recently committed offense, and as provided by the second paragraph of Article 483, La.C.Cr.Pr.
`... the indictment shall not contain an allegation оf a prior conviction of the defendant unless such allegation is necessary to fully charge the offense.’
A few years after Bouzigard, this Court was presented with a question involving
On appeal, Murray complained that the trial court erred in refusing to quash the bill of information charging him as a multiple offender under
This Court ultimately held that the district attorney is accorded wide discretion in determining when and how he shall prosecute. When more than one provision of the law may apply, this Court held that the district attorney has the discretion to elect which of the provisions to invoke. Murray, 357 So.2d at 1124.
The Murray opinion noted that the bill of information had not charged the distribution offense as a second offense. Without further analysis, the Court stated, “[h]ence, the prior offense could not be used to enhance the penalty under La. R.S. 40:982.” Murray, 357 So.2d at 1124. The citations of authority which followed this statement were cases in which the criminal statutes at issue had their own enhancement provisions within the statutes themselves and for which a second or subsequent offense determined the grade of the offense and type of trial to which the criminal defendant was entitled. See State v. Keys, 328 So.2d 154 (La.1976) (possession of marijuana, second offense);14State v. Bass, 254 La. 83, 222 So.2d 865 (1969) (DWI); State v. Gerald, 250 La. 759, 199 So.2d 536 (1967) (same).
In State v. Pounds, 359 So.2d 150 (La.1978), decided the same year as Murray, a defendant found guilty of being a convicted felon in possession of a weapon, a violation of
Without the statement in the bill of information relative to prior offenses the accused could not know whether he would stand trial for a misdemeanor or felony; whether the prior convictions were under the same statute; and whether the prior convictions were too remote in time to warrant the enhanced penalty provided for in the statute. All of this is required to inform the accused or {sic; of} the “nature and cause of the accusation against him” and to satisfy the constitutional mandates to that effect. Id.
Finally, in State v. Green, 493 So.2d 588 (La.1986), this Court was again presented with the constitutional issues of due process and a fair trial for a criminal defendant and the defendant‘s right to be informed of the nature and cause of the charge against him. Green was convicted by a jury of third offense theft, a violation of
In reviewing the case, the Court found the Supreme Court‘s determination in Spencer v. Texas16 to be instructive. In Spencer, the Supreme Court found that the recidivist procedure described therein satisfied constitutional due process concerns, where the procedure allowed evidence of a defendant‘s prior crimes to be admitted for punishment enhancement during the guilt determination trial with an instruction to the jury as to the limited purpose of the prior crimes evidence. Spencer, 385 U.S. at 582, 87 S.Ct. at 652-653.17
Thus, the Court concluded in Green that when a state statute authorizes the prosecutor, in a single proceeding, to offer both evidence of the defendant‘s guilt of the primary charge and evidence of his prior criminal record of crimes of a similar nature to enhance his punishment, due process considerations require the trial judge to give a limiting instruction to the jury that the prior convictions cannot be considered in the determination of guilt or innocence on the primary offense charged. Green, 493 So.2d at 592. Because no limiting instruction was given to the jury which decided Green‘s guilt, this Court reversed his conviction and remanded for further proceedings.
With the background of the aforementioned Louisiana Supreme Court cases in mind, we now turn to the appellate court decisions which have manifested the divergence of interpretation of
Louisiana Appellate Cases
First Circuit
The first appellate case to consider the issue presented here was State v. Rodriguez, 572 So.2d 358 (La.App. 1 Cir.1990), writ denied, 576 So.2d 46 (La.1991). In
The appellate court vacated the sentence and remanded, finding that “to obtain a multiple offender conviction under La. R.S. 40:982 for a violation of the Uniform Controlled Substances Law, the allegation that the underlying offense is a second or subsequent offense must be contained in the formal charge instituting criminal prosecution of the underlying offense.” Rodriguez, 572 So.2d at 360. In formulating this holding, the appellate court relied upon Bouzigard, Keys, and Murray.18
Third Circuit19
A trio of cases in the Third Circuit hold that prior convictions must be contained in the bill of information of the primary offense in order to enhance sentencing under
Livings was not constitutionally deprived of his right to due process by the inclusion in the bill of information of facts concerning his prior convictions. The reading of the bill of information to the jury, the introduction into evidence of the records of the prior convictions, and the stipulation to the jury that the prior crimes had occurred did not deprive Livings of his constitutional rights because the trial judge gave limiting instructions as required in Green, 493 So.2d 588. Livings, 95-251 p. 9, 664 So.2d at 735.
After Livings, the Third Circuit considered State v. Franklin, 96-1346 (La.App. 3 Cir. 4/16/97), 693 So.2d 219, writ denied, 97-2129 (La.3/13/98), 712 So.2d 867. In Franklin, the appellate court affirmed the defendant‘s conviction for possession of cocaine with intent to distribute, second offense, and conspiracy to possess cocaine with the intent to distribute. Although Franklin argued that
In State v. Williams, 96-476 (La.App. 3 Cir. 4/30/97), 693 So.2d 870, writ denied, 97-1365 (La.10/31/97), 703 So.2d 20, a case decided by the Third Circuit two weeks after Franklin, a different panel of judges expressed dissatisfaction with the circuit‘s prior analysis of the proper implementation of
In our view, a prior conviction that is not an element of the substantive offense should not be alleged in a bill of information. It offends the notion of a fair trial. It is naive to think that its prejudicial impact is somehow vitiated by a limiting jury instruction. The Louisiana Supreme Court recognized the danger of introduction of other convictions or acts of misconduct in State v. Prieur, 277 So.2d 126, 128 (La.1973):
“* * * the natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge. * * *” 1 Wigmore, Evidence § 194 (3rd Edition).
This statute, La. R.S. 40:982, is independent of the crimes of possession of cocaine and conspiracy to possess cocaine with intent to distribute. It is a sentencing mechanism. Sentencing is not a jury function; it is a judge function. The jury has no business hearing evidence of the conviction of another crime for the purpose of enhancing a defendant‘s sentence because it has nothing to do with what sentence will be imposed.
The risk that the defendant is being convicted for the possession of cocaine and conspiracy to possess cocaine with intent to distribute because he has previously been convicted of these crimes is too great for the jury to become of {sic} aware of these latter convictions in a bill of information when that bill of information refers to a statute other than those which refer to the substantive offenses.
* * *
Thus, this panel has serious reservations about the use of La. R.S. 40:982 as a substantive offense, its use in a bill of information, and its communication to the jury. These reservations are, however and unfortunately, unavailing to the defendant in this case. The Louisiana Supreme Court has apparently approved of such a recidivist procedure in State v. Green, 493 So.2d 588 (La.1986). Our circuit gave approval to this procedure and this very statute in State v. Livings, 95-251 (La. App. 3 Cir. 11/15/95); 664 So.2d 729, writ denied, 95-2906 (La.2/28/96); 668 So.2d 367. More recently, in State v. Franklin, 96-1346 (La.App. 3 Cir. 4/16/97); 693 So.2d 219, our circuit cited State v. Green and State v. Livings with approval. The defendant in State v. Franklin is a co-defendant of the defendant, Williams, in this case. Thus, we feel we are intellectually constrained to follow these cases, although we think they are wrong in their analysis and result. This is a subject to which the legislature should address its attention or which the Louisiana Supreme Court should revisit.
The Fifth Circuit considered the issue in State v. Wells, 01-1276 (La.App. 5 Cir. 3/26/02), 815 So.2d 1063. In Wells, the defendant was charged by bill of information with possession with intent to distribute cocaine, in violation of
On appeal, Wells argued that the trial court erred in sentencing him as a second offender because there was no evidence in the record of a prior offense which he had committed. The Fifth Circuit agreed. “With no evidence to support the allegation that the defendant was a second offender, the trial court clearly erred in sentencing the defendant as a second offender under
Wells also argued that placing the allegation of another crime in the bill of information was prejudicial error, as well as allowing this allegation to be presented to the jury. Wells claimed he could not obtain a fair trial under these circumstances. The appellate court noted that the issue of how
After reviewing this long line of jurisprudence, we reach a different result from that of our First and Third Circuit brethren. We find that the state Supreme Court cases, which are cited and relied on for holding that allegations of prior convictions, under
La. R.S. 40:982 , must be placed in the bill of information and presented to the jury, are fundamentally distinguishable from the instant case and do not mandate that procedure in this case. All those cases, Bouzigard, Keys, Pounds and Green, involved offenses where the first offense is a misdemeanor and the charge of a second or subsequent offense, prescribed within the same statute as the original offense, raises the grade of the offense and its procedural requirements as well as its prescribed consequences to a felony. Clearly in those cases, as it has been held, the defendant must be put on notice from the first stages of the prosecution in the charging document of the full nature of the offense. As cited and relied on,La.C.Cr.P. art. 483 is applicable to those situations and requires that allegations of a prior conviction of the defendant be presented in the charging document because it is “necessary to fully charge the offense.”However, we find that those considerations are not applicable here, where the initial charge is a felony. The multiple drug offender provision,
La. R.S. 40:982 , is a completely separate statute, and the allegations of a multiple offense do not effect the grade of the offense, the trial procedure or the consequences except to allow enhancement of the sentence, which is strictly a function of the trial judge in Louisiana. Additionally, we do not have the rational basis or compellingstаte interest in this case, as was relied on by the United States Supreme Court in Spencer, because sentencing is not within the province of the jury in Louisiana. Habitual offender laws enacted by our Legislature can still be enforced, like La. R.S. 15:529.1 , without presenting the allegations of the prior convictions to the jury before a determination of guilt for the instant offense is made.Moreover, weighing against the one-stage recidivist procedure is the well settled recognition of the prejudicial effect of admitting other crimes evidence before the jury, where it is not otherwise admissible, made even worse by placing it in the official charging document. We allow it in certain situations where the probative value outweighs the prejudicial effect, for example, to prove knowledge, intent or system. And, it is allowed for compelling reasons, like in Bouzigard, to fully charge the offense before trial, and, in Texas, where the jury has the authority to effect sentencing.[20] But none of those reasons are apрlicable to the case before us.
Wells, 01-1276 p. 16-18, 815 So.2d at 1071-1072. So finding, the Fifth Circuit concluded:
Thus, we find that, since allegations of prior drug convictions under
La. R.S. 40:982 are relevant only to sentencing enhancement where, as here, the Defendant is already charged with a felony, it should be treated as a sentencing enhancement provision, likeLa. R.S. 15:529.1 , and not as a substantive element of the charged offense. The right granted by the Legislature inLa. R.S. 40:982 , to enhance the sentence of one convicted of a drug offense where he has a prior drug conviction, does not carry with it the right to put that information before the jury prior to a determination of guilt. LikeLa. R.S. 15:529.1 ,La. R.S. 40:982 is contained in a separate statute, applicable to numerous different offenses, and not within the individual criminal statutes as it is, for example, for theft and operating a vehicle while intoxicated. Also, like 529.1, it does not change the grade of the offense.* * *
La. R.S. 40:982 is simply a sentencing enhancement provision and does not create a substantive element of the offense with whiсh the Defendant was charged.
Wells, 01-1276 p. 19-20, 815 So.2d at 1073.
Because the prior conviction of the defendant in Wells was included in the bill of information and read to the jury, the appellate court found this error under its analysis. The Fifth Circuit found this error was exacerbated by the fact that no evidence of the prior offense was presented by the state. Wells, 01-1276 p. 20, 815 So.2d at 1073. However, the court of appeal found that the introduction of evidence of other crimes in Wells’ trial was subject to a harmless error review under State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. Id. Finding that the error complained of did not appear beyond a reasonable doubt to contribute to the verdict, the court found the error to be harmless. Wells, 01-1276 p. 20, 815 So.2d at 1074.
Second Circuit
The Second Circuit was, thus, presented with a choice of interpretations of
Fourth Circuit
Prior to the instant case, which was appealed directly to this Court, the issue of the proper method of implementation of
Analysis
After consideration of the constitutional provisions at issue, and our previous decisions cited as authority by the appellate courts, we hold that
Our decision today is buttressed by the fact that the criminal statutes at issue in the Louisiana Supreme Court cases relied upon by the appellate courts involve criminal enhancement provisions fundamentally distinguishable from
We find, however, that Murray was wrongly decided and must be reversed insofar as it has been cited as authority for the proper implementation of
Unlike criminal statutes which contаin their own enhancement provisions for multiple violations of the same criminal act,
In Louisiana, sentencing is strictly a function performed by the trial judge. See
CONCLUSION
For the foregoing reasons, we hold that
State v. Murray, 357 So.2d 1121 (La. 1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied
DECREE
GRANTING OF MOTION TO QUASH BILL OF INFORMATION AFFIRMED; RULING FINDING LA. R.S. 40:982 TO BE UNCONSTITUTIONAL IS REVERSED.
Notes
(D) Appellate Jurisdiction. In addition to other appeals рrovided by this constitution, a case shall be appealable to the supreme court if (1) a law of ordinance has been declared unconstitutional....
Acts 1970, No. 457 enacted La. R.S. 40:977, which provided:
(a) Any person convicted of any offense under this subpart, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under subsection 971(b)(1) or subsection 971(b)(2) of this Title, and if it is the offender‘s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
(b) For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offender had at any time been convicted of an offense or offenses under this subpart relating to the unlawful use, possession, production, manufacture, distribution or dispensation of any narcotic drugs, marihuana, depressant, stimulant, or hallucinogenic drugs.
At that time,
§ 95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon. See Acts 1975, No. 492 § 2.
Only two Fourth Circuit cases were found in the annotations to
In State v. Echols, 99-2226 (La.App. 4 Cir. 10/4/00), 774 So.2d 993, writ denied, 00-3058 (La.10/5/01), 798 So.2d 962, the Fourth Circuit rеviewed Echols’ guilty plea to a multiple offender bill of information charging him as a third felony offender. Although the trial court had not advised Echols pursuant to