State of Louisiana v. David Neal Thomas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-968

STATE OF LOUISIANA

VERSUS

DAVID NEAL THOMAS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 7919-10
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

John Foster DeRosier
Fourteenth JDC District Attorney
Carla Sue Sigler
Karen C. McLellan
Assistant District Attorneys
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF-APPELLANT:
State of Louisiana

Sharon Renea Darville-Wilson
Attorney at Law
1827 Ryan Street
Lake Charles, LA 70601
(337) 433-6067
COUNSEL FOR DEFENDANT-APPELLEE:
David Neal Thomas

PICKETT, Judge.

FACTS

On January 6, 2010, the defendant, David Neal Thomas, was charged by

Grand Jury Indictment with one count of molestation of a juvenile, one count of

aggravated incest, and one count of sexual battery. Because this matter has not

gone to trial, no evidence has been presented to a trier of fact. According to the

grand jury indictment, the defendant was charged with the molestation of a

juvenile over whom he exercised control or supervision. He was also charged with

the aggravated incest and sexual battery of his biological daughter, M.D. (born July

30, 1993). According to the case report issued by the Louisiana State Police, the

defendant was a Calcasieu Parish Sheriff’s Deputy. The allegations were brought

by the victim’s mother. The victim’s mother claimed that on numerous occasions

the defendant had oral and vaginal sexual intercourse with their sixteen-year-old

daughter.

The defendant pled not guilty to the charges on February 8, 2010. Various

preliminary motions and trial fixings followed, including a Motion to Elect Judge

Trial filed by the defendant. The case was set for trial on March 29, 2012,

however, the defendant filed a Motion for Continuance, alleging defense counsel

was ill. The trial court granted the motion, which the state did not oppose, but

could not fix a trial date at that time. According to the minutes of January 2, 2013,

the state moved to fix the trial for April 9, 2013. That motion was granted by the

trial court. The minutes do not reflect that defense counsel was present on that

date.

Thereafter, on March 27, 2013, the state filed a motion to fix the defendant’s

trial for the following day, March 28, 2013 at 1:30 pm. The trial court signed the

order the day it was filed. At a hearing held later that day, the trial court continued

the trial from March 28, 2013 to the previously scheduled date of April 9, 2013.

Defense counsel objected to both the state’s motion to fix trial for March 28, 2013,

and the trial court’s continuing the trial on its own motion.

On April 9, 2013, the defendant filed a Motion to Quash based on the state’s

failure to commence trial within the time limitations required by La.Code Crim.P.

art. 578. A hearing was held on the motion that same date. The trial court granted

the Motion to Quash.

On May 14, 2013, the state filed a Motion and Order for Appeal. The state

is now before this court alleging four assignments of error regarding the trial

court’s grant of the defendant’s Motion to Quash.

ASSIGNMENTS OF ERROR

1) The trial court erred when it granted the defendant’s motion to
quash when it has previously granted the state’s motion to fix criminal
trial date.

2) The trial court erred in granting the defendant’s defective motion
to quash.

3) The trial court erred in ordering a hearing on the defendant’s
defective motion to quash in such haste that the state was left with
inadequate time to prepare to defend against it.

4) The trial court erred in issuing a ruling that does not specify the
exact dates of prescription and the date by which the state allegedly
should have tried this defendant.

DISCUSSION

We have thoroughly reviewed the record in this matter and find the trial

court erred in granting the defendant’s Motion to Quash as the prescriptive period

for prosecuting this matter has not expired.

2

In the matter before us, prosecution commenced on January 7, 2010. Code

of Criminal Procedure Article 578(2) provides that no trial shall be commenced

after two years from this date. On its face, therefore, prescription would run on

January 12, 2012.

There are, however, certain filings and events that can result in an

interruption or suspension of this two-year prescriptive period. Louisiana Code of

Criminal Procedure Article 580 provides:

When a defendant files a motion to quash or other preliminary plea,
the running of the periods of limitation established by Article 578
shall be suspended until the ruling of the court thereon; but in no
case shall the state have less than one year after the ruling to
commence trial.

(Emphasis added.)

On August 10, 2010, the defendant filed a Motion to Quash a search warrant

that pertained to the collection of blood from the defendant for DNA analysis. The

trial court issued a stay order as to the execution of the warrant and set the matter

for hearing on September 22, 2010.

A hearing was, in fact, held September 22, 2010. Arguments were heard

from both the state and the defendant as to whether there was a real necessity for

the collection of the blood sample sought by the state. Testimony was taken from

a crime lab employee. There was extensive discussion as to what information

could be gained, if any, from the CODIS system. At the conclusion of the hearing

the trial judge specifically said, “I’m going to quash Judge Canaday’s subpoena

until you can give me some information from CODIS.”

The record is silent as to whether any further steps have been taken

regarding this motion. The trial court has not ruled on this pending motion.

3

The filing of the Motion to Quash the search warrant was a preliminary plea

which suspended the running of the two-year prescription period set forth in

La.Code Crim.P. art. 578(2). The trial court has never ruled on that motion. It has

never been withdrawn by the defendant. Consequently, the time limitation has

been suspended and remains suspended at this time. There is no violation to the

defendant’s right to a speedy trial. The trial court’s ruling on the Motion to Quash

for failing to bring this matter to trial timely is reversed. The case is remanded for

trial.

REVERSED AND REMANDED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules−Courts of Appeal, Rule 2−16.3.

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