State of Louisiana v. Damon Broussard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-677
STATE OF LOUISIANA
VERSUS
DAMON BROUSSARD
sa A A A
APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. CR 81971
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Van H. Kyzar, Judges.

REVERSED AND REMANDED.

Keith A. Stutes

District Attorney

Roger P. Hamilton, Jr.

Assistant District Attorney

Fifteenth Judicial District

P.O. Box 288

Crowley, LA 70527

Phone (337) 783-8831

COUNSEL FOR APPELLANT:
State of Louisiana

J. Kevin Stockstill

300 Stewart Street

Lafayette, LA 70501

Phone (337) 262-0203

COUNSEL FOR DEFENDANT/APPELLEE:
Damon Broussard

KYZAR, Judge.

The State of Louisiana appeals a trial court judgment granting a motion to
quash a bill of indictment charging the defendant, Damon Broussard, with one count
of indecent behavior with a juvenile and one count of molestation of a juvenile. For
the reasons set forth herein, we reverse the decision of the trial court and remand for
proceedings consistent herewith.

DISCUSSION OF THE RECORD

The defendant, Damon Broussard, was indicted by a grand jury on one count
of indecent behavior with a juvenile, in violation of La.R.S. 14:81, and one count of
molestation of a juvenile, in violation of La.R.S. 14:81.2. The indictment was filed
on February 19, 2014.' On March 27, 2014, the defendant filed a single pleading
containing multiple motions therein, as follows:

Motion for a Preliminary Hearing; Motion for Discovery of Material

Discoverable Under the Authority of Brady v. Maryland and Kyles v.

Whitley; Motion for Discovery of Records of Criminal Arrests and

Convictions of State’s Witnesses; Motion for Oyer of Warrants of

Arrest, Search, and Seizure and Affidavits; Motion for Production of

“Initial Reports” R.S. 44:3A(4); Motion for Discovery Pursuant to

Code of Criminal Procedure Articles 716, et seq.; Motion for State to

Disclose to Defendant Grants of Immunity, Plea Bargain, Agreement

or Consideration Granted to Any Witness or Prospective Witness of the

State; Motion to Suppress Evidence; and a Request for Notice Under

La. C.E. 404(b) and 412.2.

On March 28, 2014, the trial court signed an order setting a hearing date of
May 5, 2014, for six of the eight discovery motions filed by the defendant. The order
for hearing did not include the motion for a preliminary examination or the motion

to suppress. The minutes of the trial court for May 5, 2014, reflect that the hearing

on the discovery motions was continued to June 18, 2014. On June 18, 2014, the

' The defendant was separately indicted on another count of molestation of a juvenile that
was prosecuted simultaneously with common pleadings and hearings, although the cases were not
officially consolidated or joined. The same motion to quash granted by the trial court leading to
this appea! was granted therein and is the subject of a separate appeal with this court in State v.
Damon Broussard, 18-678.

minutes of the trial court and the transcript of the hearing reflect that counsel for the
defendant advised the trial court that the discovery motions set for hearing that date
had been satisfied by the State and that he reserved the right to file additional motions
after reviewing the provided discovery material.

The trial court minutes for June 18, 2014, further reflect that a pre-trial
conference set for that day was passed, and it was later set for July 23, 2014, but was
again passed and reset for October 15, 2014. On October 15, the pre-trial conference
was again passed and reset for November 19, 2014. On November 19, it was passed
and reset for March 23, 2015. On March 23, 2015, the pre-trial conference was
passed and reset for September 21, 2015. The trial court minutes for November 16,
2015, reflect that the trial of the matter was set for that day, but was continued on
motion of the State and reset for a status hearing on December 17, 2015, and trial
was set for January 25, 2016. Thereafter, neither the trial court minutes nor the
transcript of the proceedings reflect any hearings, appearances, or motions being
filed until April 2017.

The defendant filed a motion to quash on April 5, 2017, alleging that he had
not been brought to trial within the two-year time limit from the institution of
prosecution. The minutes of court for May 1, 2017, reflect that the trial of the case,
scheduled for that day was continued on motion of the State. It further reflected the
filing of the defendant’s motion to quash and that the State was ordered to submit a
reply brief within two weeks. On August 31, 2017, the hearing on the motion to
quash was reset to September 25, 2017. Following the September 25 hearing, the
trial court denied the motion to quash, finding that the defendant’s Motion for

Preliminary Hearing and Motion to Suppress had never been disposed of, and thus,

continued to suspend the time limitation for commencing trial.’ The defendant
applied for writs to this court, and on February 16, 2018, we issued the following
writ ruling:

WRIT GRANTED AND MADE PEREMPTORY: The Defendant
seeks review of the trial court’s September 25, 2017 determination that
his Motion for Preliminary Hearing and Motion to Suppress were
unresolved preliminary pleas that suspended the running of prescription
under La.Code Crim.P. art. 580. The motions either became moot on
June 18, 2014, when defense counsel said the Defendant’s discovery
motions were satisfied and reserved his right to file additional motions
or were abandoned when defense counsel made no effort to have them
set for hearing for approximately three and a half years. Cf State v.
Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258; State v.
Washington, 98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673; State v.
Vernon, 16-692 (La.App. 4 Cir. 12/21/16), 207 So.3d 525, writ denied,
17-137 (La. 9/22/17), 227 So.3d 824. Accordingly, the trial court’s
ruling is vacated, and these matters are remanded for reopening of the
motion to quash hearing.

State v. Broussard, 17-1009 (La.App. 3 Cir. 2/16/18) (unpublished opinion).
Judge Savoie dissented, as follows:
Savoie, J. dissents. The Motion for Preliminary Hearing and Motion to
Suppress filed in March 2014 are preliminary pleas that suspended the
running of prescription under La.Code Crim.P. art. 580. Because the
motions were unresolved at the time the Motion to Quash was filed, |
find no error in the trial court’s September 25, 2017 ruling and would
deny the Defendant’s writ application. See State v. Dillon, 06-488
(La.App. 5 Cir. 11/28/06), 947 So.2d 86.
Id.
After the case was remanded to the trial court, the motion to quash was reset
for March 1, 2018. At a hearing held that date, the trial court granted the motion to
quash, relying on the writ decision of this court, from which the State sought review

by writ application to this court. On June 12, 2018, this court granted the State’s

writ application and remanded the case to the trial court with instructions to treat the

° The trial court granted the motion to quash as to several other trial court docket numbers,
which included charges of aggravated rape, molestation of a juvenile, and aggravated incest but
denied the motions in this docket number and in in the docket number leading to the appeal with
this court in Broussard, 18-678.

State’s notice of intent to file a writ application as a motion to appeal. State v.
Broussard, 18-262 (La.App. 3 Cir. 6/12/18) (unpublished opinion). Thereafter, the
State moved for an appeal, which was granted by the trial court on June 18, 2018.
On appeal, the State argues that the trial court erred in granting the motion to quash.
OPINION
Louisiana Code of Criminal Procedure Article 578(A) provides that:
[N]o trial shall be commenced nor any bail obligation be enforceable:

(1) In capital cases after three years from the date of institution
of the prosecution;

(2) In other felony cases after two years from the date of
institution of the prosecution; and

(3) In misdemeanor cases after one year from the date of
institution of the prosecution.

Louisiana Code of Criminal Procedure Article 580(A) (emphasis added) further
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 the
trial.

The supreme court has distinguished between a suspension of the limitation
on the commencement of trial and the interruption of the running of the time
limitation:

A motion to quash is the proper procedural vehicle for
challenging an untimely commencement of trial. See La.Code
Crim.Proc.Ann. arts. 532(7), 581; see also State v. Brown, 451 So.2d
1074, 1079 (La.1984); State v. Taylor, 439 So.2d 410 (La.1983); State
v. Walgamotte, 415 So.2d 205 (La.1982). When defendant has brought
an apparently meritorious motion to quash based on prescription, the
state bears a heavy burden to demonstrate either an interruption or a
suspension of the time limit such that prescription will not have tolled.
See State v. Brown, 451 So.2d 1074, 1079 (La.1984); State v. Taylor,
439 So.2d 410, 412 (La.1983); State v. Walgamotte, 415 So.2d 205
(La.1982). State v. Nations, 420 So.2d 967, 967 (La.1982); State v.
Driever, 347 So.2d 1132 (La.1977).

4

An interruption of prescription occurs when the state is unable,
through no fault of its own, to try a defendant within the period
specified by statute, in this case two years. The Louisiana Code of
Criminal Procedure article 579(A)(2) provides in pertinent part that the
two-year period of limitation will be interrupted if the defendant
“cannot be tried because of insanity or because his presence for trial
cannot be obtained by legal process, or for any other cause beyond the
control of the state.” Once the cause of interruption disappears, the
two-year time limit begins anew. See La.Code Crim.Proc.Ann. art.
579(B). In contrast, the prescriptive period is merely suspended, until
the trial court rules on the filing of preliminary pleas. The relevant
period is simply not counted, and the running of the time limit resumes
when the motions are ruled on. Note, however, that “in no case shall
the state have less than one year after the ruling to commence the trial.”
La.Code Crim.Proc.Ann. art. 580.

State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286-87 (footnote omitted).

For purposes of art. 580, a preliminary plea is any pleading or motion

filed by the defense which has the effect of delaying trial. State v.

Cranmer, 306 So.2d 698, 700 (La.1975); State v. Elfert, 247 La. 1047,

175 So.2d 826, 828 (1965). These pleadings include properly filed

motions to quash, motions to suppress, or motions for a continuance, as

well as applications for discovery and bills of particulars. State v.

Brooks, 505 So.2d 714, 725 (La.1987); State v. Fabacher, 362 So.2d

$55, 556 (La.1978). Joint motions for a continuance fall under the same

rule. State v. Jones, 620 So.2d 341, 342 (La.App. 5th Cir.1993) (citing

State v. Simpson, 506 So.2d 837 (La.App. Ist Cir.1987), writ denied,

512 So.2d 433 (La.1987)); see also State v. Rome, 93-1221

(La.1/14/94), 630 So.2d 1284, 1288-89.
State v. Brooks, 02-792, p. 6 (La. 2/14/03), 838 So.2d 778, 782

The question before this court is whether the Motion to Suppress and the
Motion for Preliminary Hearing filed by the defendant, which had not been heard or
resolved by dismissal or ruling by the trial court at the time of the September 25,
2017 hearing on the motion to quash, suspended the tolling of the two-year limitation
for the commencement of trial. The State relies on State v. Dillon, 06-488 (La.App.
5 Cir. 11/28/06), 947 So.2d 86 (a case cited by Judge Savoie in his dissent to this
court’s writ ruling), for the proposition that when a defendant files a motion to quash

or other preliminary plea that has the effect of delaying trial, the running of the time

limitation is suspended until the trial court rules on the pleadings.

In Dillon, the defendant was charged by bill of information on August 20,
2004, with third offense driving while intoxicated. The defendant filed an “omnibus
pre-trial motion, including a Motion for Preliminary Examination and a Motion to
Suppress Confession, Identification, and Physical Evidence,” on July 25, 2005. Jd.
at 89. Subsequently, he filed a pro se Motion to Quash on November 2, 2005, which
was denied on March 28, 2006. In discussing the running of the period of limitations,
the appeilate court stated, “The record reflects that there were no rulings on said
motions. Therefore, the two-year time limitation for commencement of trial was
suspended and never resumed.” /d. at 89. As stated earlier, Dillon is cited by Judge
Savoie in his dissent to this court’s writ ruling. Because the defendant’s Motion for
Preliminary Hearing and Motion to Suppress were unresolved preliminary pleas that
suspended the running of the prescriptive period, Judge Savoie found no error in the
trial court’s original denial of the defendant’s motion to quash. Broussard, 17-1009
(Savoie, J., dissenting).

The majority opinion in our writ ruling, however, found differently. Citing
Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258; State v. Washington,
98-69 (La.App. 5 Cir. 1/26/99), 727 So.2d 673, and State v. Vernon, 16-692 (La.App.
4 Cir. 12/21/16), 207 So.3d 525, writ denied, 17-137 (La. 9/22/17), 227 So.3d 824,
the majority held that the defendant’s Motion for Preliminary Hearing and Motion
to Suppress either became moot or were abandoned. Broussard, 17-1009. During
the reopened motion to quash hearing and in its appellate brief, the State argued that
Williams and Washington were distinguishable from the instant case. During the
hearing, the State asserted that suppression was still a viable issue in the present case
and would likely be re-urged by the defendant. Additionally, it asserted that in order
for a motion to be considered abandoned, defense counsel had to specifically state

that it was abandoned. The State further argued:

6

MR. HAMILTON: Your Honor, but if defense counsel can just
file the motion and just let it go and, you know, say it’s abandoned, and
that’s what we choose to do, then they’re going to file motions, and then
they’ll pick and choose when they’re going to serve it.

So three and-a-half years pass, and let’s say it’s for trial, and we
set it for trial, and he finally says, “Hold on, I’ve got this motion to
suppress. I need to hear it before we go to trial.” They can’t have it
both ways.

THE COURT: I don’t disagree with you, but the Third Circuit
does, and I’m bound by - - I’m bound by their ruling. And I’ve looked
at it; I don’t see a way around it. I mean, I think what they’re directing
me to do is to grant the motion to quash on the remaining - - on the
remaining charges. So! grant the motion to quash.

In its appellate brief, the State argues the following in a further attempt to
distinguish Williams and Washington:

In Williams, the record did not reflect whether or not the trial judge
ruled on the motion to suppress statements. The record in Williams
reflected that the motion was moot because the state provided the
defendant with information. The defendant proceeded to trial without
objecting that the motion was outstanding. In the case at bar, the
defendant did not waive the motion until the motion to quash was filed.

The defendant waived his right to have the motion to suppress
considered by not alleging facts as required by La C Cr P Art 703 (E),
by indicating that he was satisfied with the state’s response to his
motion to suppress and by proceeding to trial without raising any issue
that he had an outstanding motion to suppress. State v. Washington,
98-69 (La App 5 Cir 1/26/99) 727 So2d 673. In the case at bar, the
defendant just passed the motion.'*! He did not act upon the other
motions nor did he accept the motion as satisfied. There are issues
relating to text messages that may be suppressable [sic]. The motion
went unresolved at the time the Motion to Quash was filed. Asa result,
the time limitation should be suspended until the Motion to suppress is
heard or the defendant formally waives the motion.

* The State asserts that the defendant’s Motion for Preliminary Hearing and Motion to
Suppress were passed on June 18, 2014. The transcript of the proceedings from that date does not
indicate that defense counsel stated that any matters were passed. The minutes, however, reveal
that defense counsel informed the trial court that the discovery motions were satisfied and the
remainder of the motions were passed. While we find no irreconcilable conflict, if there is a
conflict between the minutes and the transcript, “the transcript prevails.” State v. Wommack, 00-
137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797
So.2d 62.

It is clear from the State’s arguments in both instances that it is asking us to
reconsider the arguments and grounds previously considered in our writ ruling. This
court has held that great deference should be afforded to pre-trial decisions, although
this deference is not unbridled.

Although a defendant may seek review of a pretrial ruling even after a

pretrial supervisory writ application is denied, when the defendant does

not present any additional evidence on the issue after the pretrial ruling,

the issue can be rejected. State v. Hebert, 97-1742 (La.App. 3 Cir.

6/3/98), 716 So.2d 63, writ denied, 98-1813 (La. 11/13/98), 730 So.2d

455, cert. denied, 529 U.S. 1072, 120 S.Ct. 1685, 146 L.Ed.2d 492

(2000) (quoting State v. Magee, 93-643, p. 2 (La.App. 3 Cir. 10/5/94),

643 So.2d 497, 499). However, “[j]udicial efficiency demands that this

court accord great deference to its pre-trial decision unless it Is apparent

that the determination was patently erroneous and produced unjust

results.” Hebert, 716 So.2d at 68. Our review of the record reveals no

additional evidence for the defendant’s allegations of prosecutorial
misconduct which would support his pretrial motions.

State v. Perry, 12-298, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, 580, writ denied,
12-2657 (La. 5/24/13), 116 So.3d 659 (alteration in original).

In his appellate brief, the defendant asserts that the arguments raised by the
State have already been decided by this court and should not be revisited. Thus, the
defendant contends that the State’s claims should be denied. We conclude, however,
that this court’s prior writ ruling was patently erroneous and produced unjust results,
as reflected below.

Our majority opinion in the writ ruling relied upon Williams, Washington, and
Vernon as support for our finding that the defendant’s Motion for Preliminary
Hearing and Motion to Suppress “either became moot, on June 18, 2014, when
defense counsel said the defendant’s discovery motions were satisfied and reserved
his right to file additional motions or were abandoned when defense counsel made
no effort to have them set for hearing for approximately three and a half years.”

Broussard, 17-1009.

Having now had the benefit of a full appeal on this issue, we conclude that
our reliance on the cited caselaw was misplaced. The cases relied upon dealt with
two situations: First, with the defendant proceeding to trial after failing to request a
hearing for a particular motion previously filed and then claiming as error on appeal
the trial court’s failure to rule a particular way on the motion; and second, with the
defendant raising for the first time on appeal an issue raised in an undisposed of
motion in the trial court.

The Williams case is used as support for the position that the motion to
suppress was abandoned by the lapse of time or became moot by satisfaction of
discovery requests. That was not the rationale of the fifth circuit’s holding in
Williams:

First, we note that the record does not reflect whether or not the

trial judge ruled on the motion to suppress statements, which was based

on the state’s failure to notify defendant of any statements it intended

to use at [trial]. However, the record reflects that the motion was moot

because the state provided defendant with the information. Further,

defendant proceeded to trial without objecting that the motion was
outstanding. Thus, he waived all pending motions at the
commencement of trial. State v. Price, 96-680 (La.App. Sth Cir.

2/25/97), 690 So.2d 191, 196.

Williams, 714 So.2d at 263-64.

The court in Williams, which dealt with an appeal after conviction, held that
unresolved motion to suppress statements made by the defendant was abandoned
because the defendant proceeded to trial without first seeking a disposition of the
motion. As a further rationale for its holding, the court commented that the motion
was rendered moot by the defendant’s receipt of the statements from the State.
However, it 1s clear that the motion in that case was based upon the State’s failure
to produce the statements prior to trial; thus, it was not a true motion to suppress

evidence. That is an entirely different issue from the Motion to Suppress evidence

in the case at hand, and there is no evidence in this record showing otherwise.

9

Further, trial in this case has never commenced; thus the defendant’s motion is not
and has not been abandoned.

In Washington, the defendant again proceeded to trial without seeking the
disposition of his motion to suppress. He further stated, in open court prior to trial,
that he was satisfied with the State’s response to his motion to suppress. The fifth
circuit, in rejecting defendant’s argument on appeal that the trial court erred in failing
to consider his motion to suppress, stated:

We believe that defendant waived his right to have the motion to
suppress considered. First, defendant did not allege facts in his motion
to suppress as required by La.C.Cr.P. art. 703 E. Second, defendant
indicated at the hearing that he was satisfied with the state’s response
to his motion to suppress. Finally, defendant proceeded to trial without
raising any issue that he had an outstanding motion to suppress. State
v. Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d 258.
Accordingly, we find no merit to defendant's first assignment of error.

Washington, 727 So.2d at 676.

We further cited Vernon as support for our position; however, that reliance
was also misplaced. In Vernon, the State argued before the trial court that the time
limit for institution of trial was interrupted per the provision of La.Code.Crim.P. art.
579. It was only on appeal that the State attempted to argue the suspension of the
time limitations for trial, as per the provisions of La.Code Crim.P. art. 580. The
fourth circuit held that the State abandoned that claim by its failure to argue such in
the trial court:

The State failed to assert, as a basis for its objection to the motion
to quash, that the preliminary pleas suspended the time limitations
period. In that the State failed to raise the issue of suspension, this
Court concludes that the State intended to argue its objections based
solely on La. C.Cr.P. art. 579. We find no reason to remand the case to
allow the State a “second bite at the apple” to argue new grounds for
denial of the motion to quash based on evidence which the State had
available to it prior to the trial court hearing. Under these circumstances
and in light of the trial court’s discretion when ruling on a motion to
quash, this Court will not consider the State’s suspension argument as
it is raised for the first time on appeal.

10

Vernon, 207 So.3d at 529.

Thus, the cases cited are not controlling in this particular case. Other cases
further reflect the correctness of this position, including State v. Wagster, 361 So.2d
849 (La.1978), cited by the courts in Williams and in Washington. In Wagster, the
supreme court reviewed a claim by the defendant on appeal concerning the denial of
a hearing on his motion to quash the jury venire filed prior to trial. Without a hearing,
the trial court denied the defendant’s motion to quash the petit jury venire. While
not questioning the ruling on the merits of the motion, the defendant argued on
appeal that he was denied a constitutional and statutory right when he was refused
the right to present evidence at a hearing on his motion. In rejecting the argument,
the supreme court stated as follows:

The defense motion was filed ten days before trial and no
subpoenas were requested on behalf of the defense. On the morning of

the trial defense counsel stated that subpoenas were not issued for

defense witnesses because he was unaware that the motion was set for

hearing on the day of trial. It should be observed parenthetically that it

is ordinarily incumbent upon the proponent of a motion to move for a

hearing date on that motion. Otherwise it may be considered that the

motion has been abandoned. The record does not show that an effort

was made to have a date set for a hearing.

Nevertheless, rather than delay the trial, the judge allowed
defense counsel to outline the evidence he intended to introduce. Then,
accepting this as proven, the trial judge denied the motion on its merits.

Insofar as the merits of the motion is concerned, no prejudice is claimed
and none occurred.

Id. at 856.

Thus, Wagster stands for the proposition that once a defendant proceeds to
trial without having demanded a resolution of his pending motions, the court will
consider those motions as having been abandoned. That again is not the case here.

This court in State v. Langley, 10-969, pp. 17-18 (La.App. 3 Cir. 4/6/11), 61
So.3d 747, writ denied, 11-1226 (La. 1/20/12), 78 So.3d 139, cert. denied, 568 U.S.

841, 133 S.Ct. 148 (2012), also recognized that it is the act of proceeding to trial

11

without obtaining a disposition of a pending motion that triggers the abandonment
of the motion and not the mere lapse of time during the pre-trial proceedings:

The filing by the defendant of the Motion To Recuse the District
Attorney was a preliminary plea which suspended the running of the
one-year limitation set forth in La.Code Crim.P. art. 578. State v.
Vincent, 02-1452 (La.App. 3 Cir. 4/2/03), 843 So.2d 1174; State v.
McDonald, 02-909 (La.App. 3 Cir. 2/5/03), 838 So.2d 128, writ denied,
03-807 (La.10/17/03), 855 So.2d 758. The trial court never ruled on
that motion, and it was never withdrawn by the defendant. Therefore,
the time limitation was suspended until the trial began on November 2,
2009, when both the state and the defense announced that they were
ready for trial, and the trial commenced. The defendant did not object
to or raise the issue of the pending Motion to Recuse District Attorney.
The motion was pending until the day the trial began, at which time it
was considered abandoned by the defendant. State v. Craig, 32,209
(La.App. 2 Cir. 8/18/99), 747 So.2d 604. His failure to object
constitutes a waiver of the objection. State v. Woodfox, 291 So.2d 388
(La.1974); State v. Jennings, 07-150 (La.App. 3 Cir. 5/30/07), 958
So.2d 144, writ denied, 07-1460 (La.1/7/08), 973 So.2d 731; State v.
Pratt, 32,302 (La.App. 3 Cir. 9/22/99), 748 So.2d 25.

The filing of the Motion To Recuse District Attorney suspended

the running of the prescription. It remained suspended as it was neither

withdrawn by the defendant nor ruled upon by the court before the trial

commenced. Even if defense counsel’s arguments at the September 17,

2009 hearing amount to a waiver or withdrawal of the Motion to Recuse

the District Attorney, the suspension of prescription from February

2005 until September 2009 makes the November 2009 trial date timely.

There is no violation of the defendant’s right to a speedy trial.

Id. at 760.

The case at hand does not involve any overt pre-trial act or declaration of the
defendant to waive either his Motion to Suppress or Motion for Preliminary Hearing
prior to the hearing on September 25, 2017. It further does not involve the
abandonment of the motion by proceeding to trial, as this case has not yet been tried.
While the defendant may have waived his previously filed motions for discovery, he
never formally waived on the record his Motion to Suppress or his Motion for

Preliminary Hearing. Indeed, the transcript of the June 18, 2014 hearing reflects no

mention of either motion. The order of March 28, 2014, setting the particular

12

discovery motions for this hearing, ultimately held on June 18, 2014, specifically

included only the following:

“Motion for Discovery of Material Discoverable under Authority of

Brady v. Maryland and Whitley; Motion for Discovery of Records of

Criminal Arrests and Convictions of State’s Witnesses under Authority

of Brady v. Maryland; Motion for Oyer of Warrants of Arrest, Search

and Seizure and Affidavits; Motion for Discovery Pursuant to Code of

Criminal Procedure Articles 716, et seq.; Motion for State to Disclose

to Defendant Grants of Immunity, Plea Bargain, Agreement or

Consideration Granted to any Witness or Prospective Witness of this

State; Motion for Production of ‘Initial Reports’ R.S. 44:3A(4).”
There is no mention of the Motion to Suppress or the Motion for Preliminary Hearing
in this order.’ The trial court minutes for June 18, 2014, state that counsel for the
defendant informed the trial court during the hearing that “the discovery motions
have been satisfied with the remainder being passed.” (Emphasis added.) The
transcript for the same date is consistent with the trial court minutes that it was in
fact the discovery motions that were being addressed exclusively, where defendant’s
counsel stated the following:

We had filed various motions. I’ve spoken with Ms. Boustany, and she

has made a copy of the discovery for us. So I just wanted to indicate

for the record that it looks like our discovery motions are satisfied,

however, I'd like to reserve my right to file any additional motions

based on our review of the discovery.

Thus, we find that that neither the Motion to Suppress nor the Motion for
Preliminary Hearing were formally waived or withdrawn in open court by the
defendant until the initial hearing on the Motion to Quash. According to the plain

language of La.Code Crim.P. art. 580, a formal waiver does not occur unless the

request is made to the trial court and a ruling recognizing the dismissal thereof is

‘ Although the March 28, 2016 trial court order setting the motions for hearing did not
include the Motion to Suppress nor the Motion for Preliminary Hearing, the trial court minutes of
May 5, 2014 and June 18, 2014, list these motions as being under consideration.

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rendered.’ Further, any pending motion has not been abandoned as the case is still
pending trial.

Our jurisprudence is clear that a defendant can waive any pending motions
during the proceedings themselves by acquiescence, such as by failing to object in
open court, after the State announces, prior to trial, that no motions are pending and
then proceeds to trial. This was the case in State v. Lambert, 98-730 (La.App. 4 Cir.
11/17/99), 749 So.2d 739, writ denied, 00-1346 (La. 1/26/01), 781 So.2d 1258.
However, in the case sub judice, this matter has not yet proceeded to trial. More
importantly, Lambert stands for the proposition that the State is under no duty
whatsoever to ensure that any defense motion is heard.

As previously discussed, defendant effectively waived his right

to a hearing on his motion to suppress. Defendant filed a motion to

suppress the statement on 18 February 1997. On 21] March 1997, when

the case was called for hearing on the motions, the State represented

that no motions were pending. Defense counsel assented to this

statement by his silence, and the trial court moved on with the case.

There is no indication that defendant ever raised the motion to suppress

the statements again. Accordingly, defendant abandoned his motion to

suppress the statement. There was no error by the trial court in failing

to conduct a hearing on the motion to suppress under these

circumstances, and the State was under no duty to ensure that

defendant’s motion was heard.
Id. at 756.

In State v. Lavy, 13-1025 (La.App. 1 Cir. 3/11/14), 142 So.3d 1000, writ
denied, 14-644 (La. 10/31/14), 152 So.3d 150, the first circuit considered an
unresolved motion to view the crime scene, which was made by the defendant during
trial. Therein, the court stated:

The motion to view the crime scene was abandoned. It is

ordinarily incumbent upon the proponent of a motion to move for a
hearing date on that motion. Otherwise, it may be considered that the

* The minutes of trial court do reflect that counsel for the defendant moved to dismiss the
Motion to Suppress and the Motion for a Preliminary Hearing on September 25, 2017, on the date
the Motion to Quash was first denied. There is, however, only an oral order from the trial court
dismissing the Motion for a Preliminary Hearing in the transcript of the hearing, but no formal
ruling of the court dismissing the Motion to Suppress.

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motion has been abandoned. State v. Wagster, 361 So.2d 849, 856

(La.1978); State v. Carter, 96-0337, p. 7 (La.App. Ist Cir.1 1/8/96), 684

So.2d 432, 437.

Id. at 1009.

Thus, the abandonment of a pending pre-trial motion is triggered by the
commencement and/or conclusion of trial or the entering of a guilty plea by the
defendant.

We have found no decision by any court of this state that supports the
proposition that a defendant can file a motion to suppress, or other preliminary plea,
wait until after the two-year delay for trial, and then file a motion to quash for failure
to timely try the case, using his own failure to seek resolution of his prior motion as
an abandonment of the motion. To allow such would be to arm every defendant in
a criminal proceeding with an arsenal of land mines in the form of multiple
unresolved motions, frivolous or not, to gain the dismissal of charges on technical
grounds, and thus, thwarting the justice process.

It further begs the question of when abandonment actually occurs if the mere
lapse of time, absent a ruling on the pre-trial motion, constitutes legal abandonment
or waiver of the motion or other preliminary plea. Do we set some arbitrary
“reasonable time” within which to resolve a pending motion, and thereafter, declare
that the defendant waived the motion, even if the trial has not yet commenced? We
think not. As the caselaw clearly reflects, it is only the commencement of trial, prior
to either the trial court’s ruling on the motion on its merits or the trial court’s ruling
accepting a declaration of abandonment, waiver, or withdrawal of the motion by the
defendant, that triggers recommencement of the running of the time limitations set
forth in La.Code Crim.P. art. 580.

What is controlling here is the clear language of La.Code Crim.P. art. 580.

The plain letter of the law provides for the suspension of the period in which to

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commence trial until the trial court ru/es on the motions in question. In this case,
there was no ruling on the Motion to Suppress evidence and no hearing on the
Motion for Preliminary Hearing, both of which were filed by the defendant on March
27, 2014. These motions were still pending, at least up to the time of the original
hearing on the Motion to Quash on September 25, 2017. But for the erroneous
granting of the motion to quash at the March 1, 2018 hearing, the suspension of the
two-year trial limitation continues until the motions, including this Motion to Quash,
are disposed of by a final ruling of the trial court or former withdrawal by the
defendant and dismissal by ruling of the trial court, at which time the time period for
trial shall recommence. To the extent that our writ ruling reflects otherwise, such
was in error. Accordingly, the granting of the motion to quash is reversed, and the
matter remanded for further proceedings.
DISPOSITION

For the reasons set forth herein, the order of the trial court granting the motion

to quash the indictment of the defendant, Damon Broussard, is reversed, and this

matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

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