State of Louisiana v. Desmond Joseph Senegal

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-1633

STATE OF LOUISIANA

VERSUS

DESMOND JOSEPH SENEGAL

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 103738
HONORABLE HERMAN C. CLAUSE, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir and Marc T. Amy, Judges.

CONVICTION AND SENTENCE VACATED; REMANDED.

Michael Harson, District Attorney
David Hutchins, Assistant District Attorney
Lafayette Parish
P.O. Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
3001 Old Minden Road
Bossier City, LA 71112-2426
(318) 232-5170
COUNSEL FOR DEFENDANT-APPELLANT:
Desmond Joseph Senegal

COOKS, Judge.

Defendant is before this court challenging his conviction and sentence for

possession of cocaine, second offense, in violation of La.R.S. 40:967 and 40:982. For

the reasons which follow, we vacate Defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On July 2, 2004, after 10:00 p.m., Officer Brian Gilbert, assigned to the

Lafayette street level narcotics unit, was patrolling in the vicinity of Sunnyside Street,

a high crime area. Officer Gilbert testified he saw Defendant, Desmond Joseph

Senegal, riding a bicycle with no headlight in the travel lane of a city street. Since

there is a statute which requires bicycles to have headlights after dark, Officer Gilbert

conducted a traffic stop. Upon speaking with Defendant, Officer Gilbert noticed he

was nervous and began shaking. According to Officer Gilbert, Defendant was

looking around, and the officer assumed he was looking for “a path of maybe an exit,

if he was going to run.”

A safety patdown search of Defendant was conducted by Officer Gilbert,

during which Officer Gilbert noticed the Defendant was chewing on something.

Officer Gilbert testified that it is common for street level drug dealers to consume

narcotics in an attempt to destroy evidence. Prior to the patdown, Defendant did not

want to talk or look at Officer Gilbert and this made Officer Gilbert believe that he

might be destroying evidence. Officer Gilbert handcuffed Defendant for his safety

and advised Defendant of his Miranda rights. He then asked Defendant to spit on the

ground, which he did voluntarily. Officer Gilbert testified he noticed some white

crumb residue in the saliva, so he took his business card and scraped it up off the

ground. A field test conducted on the substance indicated the presence of cocaine.

Officer Gilbert testified he then advised Defendant he was under arrest and he

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detained him in his car while he secured the evidence. After being advised of his

Miranda rights, Defendant stated that he had eaten two rocks of cocaine and that he

was out trying to take care of his family.

Defendant was charged by bill of information with possession of cocaine,

second offense, in violation of La.R.S. 40:967 and 40:982. Defendant waived his

right to a jury trial and a bench trial was held. The trial judge convicted Defendant

of the charged offense and ordered that a presentence investigation report be

completed. Defendant was subsequently sentenced to serve five years at hard labor

with credit for time served. Defendant is before this court challenging his conviction

and sentence. Specifically, he contends the evidence was insufficient to convict him;

that the evidence was illegally obtained; that his prior conviction should not have

been included in the bill of information; and finally, that his sentence is excessive.

I. Inclusion of Prior Conviction.

Defendant contends it was improper for the State to include his prior

conviction of distribution of counterfeit cocaine in the bill of information. Its

presence in the bill made the trier of fact aware of the prior offense during trial, and

Defendant contends the inclusion of the charge in the bill was improper pursuant to

the supreme court’s ruling in State v. Skipper, 04-2137 (La. 6/29/05), 906 So.2d 399.

In Skipper, the defendant filed a motion to quash the bill of information charging him

with a second drug offense under La.R.S. 40:982. The trial court granted the motion

to quash and the state appealed. The supreme court held:

[W]e hold that La. R.S. 40:982 should be treated as a sentencing
enhancement provision after conviction, like La. R.S. 15:529.1, and not
as a substantive element of the presently-charged offense. Specifically,
the allegations of the prior offense must not be placed in the charging
instrument of the second or subsequent drug-related offense nor may
evidence of the prior offense be presented to the jury determining the
defendant’s guilt or innocence in the trial of the second or subsequent
drug-related offense for the purpose of sentence enhancement under La.

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R.S. 40:982.

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 La. R.S. 40:982, are
hereby overruled.

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 La. R.S. 40:982 by placing the allegation of the prior offense
in the bill of information. The ruling of the trial court on the motion to
quash is AFFIRMED.

Id. at 416-17.1

In reaching its conclusion, the Skipper court found that La.R.S. 40:982 “does

not in and of itself define a crime.” Id. at 416. Defendant’s failure to file a motion

to quash contesting the inclusion of La.R.S. 40:982 in the bill does not preclude this

court from reviewing this issue. Comment (b) to La.Code Crim.P. art. 535 provides

that a motion to quash based on the grounds that the offense is not punishable under

a valid statute is “within the scope of appellate review without prior objection, under

Art. 920(2), since it is an error discoverable by a mere inspection of the pleadings and

proceedings and without the inspection of evidence.”

The Defendant in the present case was convicted and awaiting sentencing when

the Skipper ruling was issued. Thus, we first address whether the decision should be

retroactively applied to Defendant.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508

U.S. 962, 113 S.Ct. 2935 (1993), the supreme court traced the evolution of United

States Supreme Court cases addressing the retroactivity of new rulings to cases final

1
In Skipper, the case was in a pretrial stage when the issue concerning the inclusion of the
prior offense in the bill of information was raised. The supreme court noted that it was not called
upon to discuss the applicability of a harmless error analysis or the “possible ameliorative effects
of a limiting instruction post-Green, to circumstances in which a prior offense was listed in the
charging instrument, read to the jury and of which evidence was presented at trial.” Id. at 416.

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at the time the new ruling was rendered as well as those that were pending on direct

review at the time the new ruling was issued.2 In doing so, the court discussed Justice

Harlan’s suggestion of a new test for retroactivity in Mackey v. United States, 401

U.S. 667, 91 S.Ct. 1160 (1971). The Taylor court explained:

Accordingly, he proposed a general principle whereby “all constitutional
errors not waived or harmless are correctable on habeas and by defining
such errors according to the law in effect when a conviction became
final.” [Mackey] Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under
this general principle, new rules would not be given retroactive effect on
collateral review, although they would be applied to cases pending on
direct review. However, Justice Harlan created two exceptions in which
he would give retroactive effect to new rules on collateral review. The
first exception involved new substantive due process rules — i.e., rules
placing certain kinds of primary, private individual conduct beyond the
power of the criminal lawmaking authority to proscribe. The second
exception referred to new rules which required observance of “those
procedures that . . . are implicit in the concept of ordered liberty” and
altered our understanding of the “bedrock procedural elements” of a fair
trial. . . .

In the next several years, the Court began to gradually move away
from Linkletter and toward the analysis suggested by Justice Harlan.
The Court began by adopting Justice Harlan’s view that a new rule
should be applied retroactively to all cases pending on direct review.
Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
(1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73
L.Ed.2d 202 (1982).

Id. at 1294.

The Supreme Court, in Griffith v. Kentucky, 479 U.S. 314, 327, 107 S.Ct. 708,

716 (1987), held “a new rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct review or not yet final,

with no exception for cases in which the new rulee constitutes a ‘clear break’ with the

past.”

The Taylor court also discussed pertinent Louisiana court rulings on

2
In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708 (1987), the Supreme Court defined
the finality of a conviction as “a case in which a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for
certiorari finally decided.” Id. at 712 (footnote 6).

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retroactivity:

Turning now to our state law decisions on retroactivity, we find
they have also recognized the principle that the constitution does not
prohibit nor require courts to give retroactive application to criminal law
decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases
decided after Linkletter reflect the confused state of the law under that
case.

....

Subsequently, our cases have followed Griffith v. Kentucky, supra, and
have applied new rules to cases pending on direct review or not yet
final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St.
Pierre, 515 So.2d 769 (La.1987). In fact, we recently applied the Cage
rule to a case pending on direct appeal at the time Cage was rendered.
State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).

Taylor, 606 So.2d at 1296.

See also State v. Naquin, 00-291 (La.9/29/00), 769 So.2d 1170 and State v.

Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293, wherein the courts, relying on

Griffith, 479 U.S. 314, applied a new ruling to a case pending on appeal.

In light of the foregoing jurisprudence, Skipper should be retroactively applied

to Defendant’s case. When Skipper was decided, Defendant had been tried and

convicted and was awaiting sentencing. Clearly, his conviction was not yet final and

the foregoing jurisprudence supports the retroactive application of Skipper to his

case.3 Thus, under Skipper it was error for the State to include the prior offense in the

bill of information.

Because Defendant was convicted pursuant to La.R.S. 40:982, which is not a

substantive criminal offense under Skipper, he was convicted of a non-existent crime.

Since possession of cocaine, second offense is a “non-crime,” the conviction and

sentence for a violation of La.R.S. 40:982 must be vacated. Further, we find a

3
It is unnecessary to decide in this case whether the ruling in Skipper should be
retroactively applied to a case in which the defendant’s conviction was final at the time the ruling
was issued.

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harmless error review under State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94,

is inapplicable.4

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are vacated.

Since Defendant was convicted of a non-existent crime there is no double jeopardy

bar to re-trial and we remand this case to the district court for further proceedings.

CONVICTION AND SENTENCE VACATED; REMANDED.

4
We also note that in our view the inclusion of a prior conviction can never be harmless
error. In State v. Prieur, 277 So.2d 126, 128 (La. 1973), the Louisiana Supreme Court
recognized the prejudicial effect of the introduction of prior convictions, stating:

The admissibility of other acts of misconduct involves substantial risk of
grave prejudice to a defendant. As to the prejudicial effect of evidence of other
crimes, Wigmore says:

‘* * * 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 Ed.).

This court in State v. Williams, 96-476 (La.App. 3 Cir. 4/30/97), 693 So.2d 870, 873, writ
denied, 97-1365 (La. 10/31/97), 703 So.2d 20, also stated its concerns with listing prior
convictions in a bill of information:

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. . . This statute, La.R.S. 40:982 . . . 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.

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