State v. Burrell

189 So. 3d 481, 2016 La. App. LEXIS 402, 2016 WL 805368
Louisiana Court of Appeal·Decided March 2, 2016·No. No. 50,461-KW·Published·Cited by 2 cases

Opinion

LOLLEY, J.

| tThis criminal matter arises from the First Judicial District Court, Caddo Parish, Louisiana, .wherein LaKetcia D. Bur-rell was charged by bill of information with [482] one count felony theft, pursuant to La. R.S. 14:67. Burrell filed a motion to quash the bill of information, arguing the .time limitation for institution of prosecution had expired, pursuant to La. C. Cr. P. art. 572. After a .contradictory hearing, the trial court denied Burrell’s motion to quash. Burrell sought supervisory review. This court granted the writ and placed the matter on the appeal docket for consideration. For the following reasons, the judgment of the trial court is vacated and thé bill of information is dismissed.

FACTS

On January 13, 2008, LaKetcia Burrell attempted to issue a bad check at Walmart (“the Walmart offense”). Two weeks later, on January 28, 2008, Burrell allegedly committed credit card fraud at the Regions Bank, HealthPlex Drive branch, Shreveport, Louisiana (“the Regions offense”). These two offenses are in ho way connected to each other:

On March 14, 2008, a bill of information was filed on Burrell in connection with the Walmart offense. On that same day, Officer Frank Edmondson, III, of the Shreveport Police Department attempted to contact Burrell by phone in order to investigate a report of theft from Regions Bank, alleging Burrell stole $6,343.00 through a fraudulent transaction. Officer Edmondson spoke to Burrell three days later, and she explained that she did not have, a ride to the police station, but would call • back once she was able |2to come in. On April 4, 2008, Off. Edmondson called again, got no answer, and suspended the case until Burrell was available for interview.

On July 9, 2008, Burrell pled guilty to the Walmart offense. She was sentenced to six'months’ probation, and execution of sentence was deferred. Lieutenant Randy Coke, Burrell’s probation supervisor, testified that Burrell reported to the probation office in July and August of 2008, but failed to complete the requirements of her probation in connection with the Walmart offense. She further failed to appear for the execution of sentence on September 24, 2008, which was deferred until December. Burrell failed to appear in December, and the execution of sentence was again deferred. On February 13, 2009, Burrell did not appear for execution of sentence and a bench warrant was issued for her arrest.

On July 16, 2008, Off. Edmondson attempted to follow up with Burrell for the Regions offense, and reported that the phone number he previously used to contact her was now unreachable. Officer Edmondson’s supervisor reviewed a comparison of Burrell’s Louisiana State Identification Card and photos from the Regions Bank security camera, and instructed Off. Edmondson to pursue a warrant, for Bur-rell’s arrest. On July 21, 2008, a warrant for bank fraud was issued for Burrell. After the warrant was, issued, no further efforts were made by the state in regard to locating Burrell for the Regions offense.

No action was taken in either the Wal-mart offense or the Regions offense until July 13, 2014, when Burréll was arrested.1 On August 28, |s2014, the state filed a bill of information in connection with the Regions offense charging Burrell with felony theft, a violation of La. R.S. 14:67. On March 3, 2015, Burrell filed a motion to quash the bill of information claiming the time limitation for institution of prosecution for this offense had prescribed pursuant to La. C. Cr. P. art 572. A contradictory hearing was held, and the trial court [483] denied Burrell’s motion. Burrell sought supervisory review of the trial court’s ruling. This court granted the writ, placing it on the appeal docket for consideration.

DISCUSSION

In this appeal, Burrell asserts several assignments of error, most relating to the trial court’s denial of her motion to quash the bill of information. She argues that the state provided no .evidence that she: intentionally avoided capture; had knowledge of the warrants; left the state or her usual place of abode; and, could not be located prior to'2014 by diligent effort. Burrell also argues that the trial court based its judgment on irrelevant hearsay evidence concerning missed court dates in the Walmart offense.

The state argues that Burrell’s failure to report to probation and hearings in connection with an unrelated misdemeanor offense is evidence, in and of itself, of Bur-rell’s knowledge of the arrest warrants for the Regions offense and intentional avoidance of capture and prosecution. The state alleges that Burrell did not become “locatable” until the July 2014 arrest, and it is the state’s position that Burrell “absconded” probation. This record does not support the state’s assertions.

UTypically, appellate courts apply an abuse of discretion standard in reviewing a trial court’s ruling on a motion to quash. State v. Lester, 49,787 (La.App.2d Cir.05/20/15), 165 So.3d 1181; citing State v. Love, 2000-3347 (La.05/23/03), 847 So.2d 1198. The trial court’s decision on a motion to quash should not be reversed in the absence of a clear abuse of the trial court’s discretion. State v. Love, supra.

Burrell’s motion to quash is based on La. C. Cr. P. art. 532(7), which allows for a motion when the “time limitation for the institution of prosecution or for the commencement of trial has expired.” When a. defendant has brought an apparently meritorious motion to quash based upon prescription, the state hears a heavy burden to demonstrate that the time limitation period has been interrupted or that it has been suspended so that the time limitation has ..not yet expired. State v. Rome, 1993-1221 (La.01/14/94), 630 So.2d 1284; State v. Barnett, 50,213 (La.App.2d Cir.08/12/15), 174 So.3d 748.

The district attorney has “entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” State v. Jackson, 41,179 (La.App.2d Cir.06/28/06), 935 So.2d 319. The Louisiana Code of Criminal Procedure puts limitations on the time period in which the district attorney can choose to prosecute. La. C. Cr. P. art. 572. The Louisiana-Supreme Court has- explained the importance for setting such limitations on the- institution of prosecution in State v. Stetson, 317 So.2d 172, 174-5 (La.1975):

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State v. Burrell, 189 So. 3d 481, 2016 La. App. LEXIS 402, 2016 WL 805368 (La. Ct. App. 2016).

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