State of Louisiana v. Marlin James Jenkins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-815

STATE OF LOUISIANA

VERSUS

MARLIN JAMES JENKINS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12173-10
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
and Phyllis M. Keaty, Judges.

AFFIRMED.

Sharon Renea Darville-Wilson
Attorney at Law
1827 Ryan Street
Lake Charles, La 70601
(337) 433-6067
COUNSEL FOR DEFENDANT APPELLEE:
M. J. J.

Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLANT:
State of Louisiana

Brent A. Hawkins
ADA 14th JDC
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLANT:
State of Louisiana

SAUNDERS, Judge.

This case deals with whether an individual charged with multiple felonies

that were subsequently nolle prossed was entitled to expungement of his arrest

record under La.R.S. 44:9(B). The trial court granted the individual’s motion for

expungement. The State appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

Linda Moore died by homicide on or about January 15, 2010. On March 4,

2010, Marlin James Jenkins (Jenkins) was charged by bill of indictment by the

Calcasieu Parish grand jury with three counts of aggravated rape and one count of

second degree murder. On April 30, 2010, Jenkins waived a reading of the bill of

information, entered a plea of not guilty, and requested a trial by jury. On May 23,

2011, the State nolle prossed the aggravated rape and second degree murder

charges because the DNA found in Moore did not match Jenkins’ DNA.

On August 16, 2011, Jenkins filed a motion for expungement. A hearing on

the matter was held on September 28, 2011. Over the State’s objection, the trial

court granted Jenkins’ motion. The State filed a writ application with this court

wherein we denied the writ because the trial court’s expungement ruling was a

final, appealable civil judgment. Thereafter, the State filed this appeal citing a

single assignment of error.

DISCUSSION OF THE MERITS:

In its sole assignment of error, the State contends that the trial court erred in

granting Jenkins’ motion for expungement of his felony arrest record when he

remains a prime suspect in a second degree murder case. We find no merit to this

contention.

This assignment of error raises the issue of whether the trial court was

legally correct in its interpretation and application of La.R.S. 44:9(B). As such, it

raises a question of law. Questions of law are reviewed de novo to determine

whether the lower court was legally correct. A Fuselier Bonding Serv., Inc. v.

Perez, 10-1416 (La.App. 3 Cir. 4/6/11), 62 So.3d 296.

Louisiana Revised Statutes 44:9(B) states:

(1) Any person who has been arrested for the violation of a felony
offense or who has been arrested for a violation of R.S. 14:34.2, R.S.
14:34.3, or R.S. 14:37 may make a written motion to the district court
for the parish in which he was arrested for the expungement of the
arrest record if:

(a) The district attorney declines to prosecute, or the
prosecution has been instituted, and such proceedings
have been finally disposed of by acquittal, dismissal, or
sustaining a motion to quash; and

(b) The record of arrest and prosecution for the offense is
without substantial probative value as a prior act for any
subsequent prosecution.

(2) If, after a contradictory hearing with the district attorney and the
arresting law enforcement agency, the court finds that the mover is
entitled to the relief sought for the above reasons, it shall order all law
enforcement agencies to expunge the record of the same in accordance
herewith. However, nothing in this Paragraph shall limit or impede the
authority under law to consider prior arrests or convictions in pursuing
prosecution under multiple offender provisions or impede the
investigation of any law enforcement official seeking to ascertain or
confirm the qualifications of any person for any privilege or license
authorized by law.

In this case, Jenkins was arrested for felony offenses, aggravated rape and

second degree murder. Based on the DNA evidence excluding Jenkins, the district

attorney’s office dismissed all charges against Jenkins, stating:

So we are [nolle prossing] the second-degree murder and the
three counts of aggravated rape. But what I’d like to make sure, so
that there’s nothing missing within the Court’s records or the sheriff’s
records, is that all matters [Jenkins] was arrested under, which was
first-degree murder, aggravated rape, second-degree robbery,
aggravated rape, aggravated rape and another second-degree
aggravated rape, that they show those should all be dismissed or
rejected.

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As such, it is clear that Jenkins was arrested for numerous felonies, and the

district attorney eventually dismissed the charges for those felonies. Thus,

according to the clear and explicit language of La.R.S. 44:9(B), Jenkins’ arrest

record is ripe for expungement, and the clear statutory language, i.e., the use of

“shall,” mandates the trial court’s actions.

The State’s argument against allowing Jenkins’ arrest record to be expunged

is that he remains the prime suspect in the still open investigation of the homicide

of Linda Moore. According to the State, an additional caveat exists that the arrest

record must be without substantial probative value as a prior act for any subsequent

prosecution, and should Jenkins be arrested again for the murder of Moore, his

prior arrest would be highly probative evidence.

We find no merit to this argument. Any subsequent arrest and prosecution

of Jenkins would not be hindered by this expungement. Further, the trial court

limited the expungement to exclude investigatory reports and notes held by law

enforcement.

Given the above, we find no error by the trial court. Accordingly, we affirm

the trial court’s judgment.

CONCLUSION:

The State raised a single assignment of error, the trial court erred in granting

Marlin James Jenkins’ motion for expungement of his felony arrest record when he

remains a prime suspect in a second degree murder case. We find no merit to this

assignment of error. All costs of these proceedings are to be paid by the State in

the amount of $___.__.

AFFIRMED.

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