RECENT DEVELOPMENTS CRIMINAL LAW AND
CRIMINAL PROCEDURE
Presenters
Brian Capitelli
CAPITELLI AND WICKER, NEW ORLEANS, LA
Honorable Jonathan Friedman
COMMISSIONER, CRIMINAL DISTRICT COURT, ORLEANS PARISH
Professor Cheney Joseph
LSU LAW SCHOOL
Louisiana Judicial College
October, 2014
2014 Legislative Session
Senate Bill 523
Chicken Boxing
Tony the Tiger
• The Louisiana
Legislature
• THEY’RE GRRRREAT!
Marihuana
HB 681
Heroin laws
Senate Bill 87
Gwen’s Law
La. C Cr. P. art 330.3
• Gwen's law- DV victim may have input in bond
setting. Named for Gwen Salley who was shot 2
days after her husband spent less than 24 hours
in jail.
• Requires a contradictory hearing prior to setting
bond on a felony DV charge. Must be held within
5 days exclusive of weekends and holidays. Upon
clear and convincing evidence, defendant can be
held without bond.
• Totally ignores “Riverside”.
Domestic Violence
ACT 194
• Domestic Abuse Agg.
Assault is now defined
as a crime of violence
• Second offense
domestic abuse battery
is now a felony
• Amends La C. Cr. P art
334.2
ACT 195
• Firearms prohibition
(enacts La R.S. 14:95.10
and La R.S. 46:2136.3)
• Proper Boykin required
• Similar to Brady Act
GOOD TIME ELIGIBILITY
• House Bill 1255 allows
violent offenders to
become parole eligible
after serving 75% of
their term (as opposed
to 85%)
Parole
ACT 52
Requires the committee
on parole to notify the
DA's office in writing at
least thirty days in
advance of a scheduled
parole hearing and allow
the DA's office to review
the record and present
testimony.
ACT 191
• Enacts 15:529.2. Intensive
Parole for habitual
offenders
• Allows for a six month
early release for multiple
offenders if Certain
criteria are met.
• So onerous that no one
will ever meet the
criteria...
ACT 95
• Code of Cr. Pro. art 559(A)
• Amends to require a contradictory hearing
when defendant files for a motion for new
trial.
DUI
ACT 280
Vehicular Homicide is added to
list of crimes of violence for
purposes of La. R.S. 14:2(B)
• This ACT codifies State v.
Oliphant 2013 La. Lexis 568
ACT 175
• Amends 14:98 to include
underlining charges of 14:32.1,
14:39.1 and 14:39.2.
• Convictions for any of these
charges are presumptive
enhancements for Dwi second,
etc.
Additional Legislative Changes
• Expungement Statute
Revamped
• Make expungements
more accessiblestandardized forms
• No longer requires
destruction of records
• Cleansing Period (if no
893 or 894)
• Contradictory Hearing
• ACT 289
• Allows enhanced
sentencing for drug
offenses committed in a
private residence
located in a drug-free
zone
2013/ 2014 jurisprudence
Louisiana Constitution Article I
Section II
• The right of each citizen
to keep and bear arms
is fundamental and
shall not be infringed.
Any restrictions on this
right shall be subject to
strict scrutiny
State v. Draughter
• Defendant moved to quash Bill of Information
stating that LA R.S. 14:95.1 is unconstitutional
in light of Louisiana Constitution
• District Court applied Strict Scrutiny and Court
finds that statute “as-is” is not narrowly
tailored as it applies to nearly all felony crimes
• Supreme Court ruled that 14:95.1 was
constitutional as applied to defendant on
probation
State v. J.M.
• Juvenile Court finds that La
R.S. 14:95.8 and 95(A)(1)
were found to be
unconstitutional as applied
to a juvenile who was found
in possession of a concealed
firearm
• Supreme Court reasoned
statutes withstand strict
scrutiny analysis because a
juvenile’s disposition makes
possession of a firearm
inherently dangerous
State v. Webb
2013-KK-1681
• Upholds La. R.S. 14:95E
• Marihuana Cigar found in
backpack and legal
handgun found on
floorboard
• Supreme Court finds that
“danger” associated with
“purchasing” drugs is
sufficient to prohibit drug
users from carrying a
weapon
State v. Eberhardt
2013-KK-2306
• Combined with State v.
Taylor and State v.
Stevens
• La. R.S. 14:95.1 survives
strict scrutiny
irrespective of La. State
Const. Art. I sec. 11
State v. Oliphant
113 So. 3d 165
• Vehicular Homicide is
considered a crime of
violence for purposes of
La. R.S. 14:2(B)
• Greensburg man resentenced in light of
ruling
State v. Sarrabea
• La. R.S. 14:100.13
• Requires proof of lawful
presence in the United
States to operate a
motor vehicle in
Louisiana
• Third Circuit holds law
unconstitutional
Pre-Arrest
Search and Seizure
Riley v. California c/w U.S. v. Wurie
• Officers may not search
the contents of a cell
phone incidental to
arrest.
• Digital information on a
cell phone may only be
seized pursuant to a
warrant.
State v. Duhe (12-K-2677)
• Officer’s reasonable
suspicion of watching
“Jesse” purchase
sudafed justifies Terry
Frisk and Protective
Sweep of vehicle
Missouri v. McNeely
-McNeely refused to submit to a breathalyzer test after failing a field sobriety test.
-After refusal, Missouri police have the lab technician draw blood anyway.
-Test determined defendant’s BAC was .154.
-Defendant now moves to suppress the blood test results claiming they were
obtained in violation of his 4th amendment rights.
-Supreme Court held that even though BAC dissipates over time leading to a
destruction of evidence, this does not create a per se rule of exigent
circumstances to relinquish warrant requirement where officer has probable cause
that driver is intoxicated.
-Exigent Circumstances justifying warrantless blood draw will be handled on a case
by case basis. Officers should still attempt to secure a warrant in these
circumstances.
Florida v. Jardines
• Dog sniffing around
curtilage of a home is a
search for the purposes
of the Fourth
Amendment.
State v. Carter(13-KK-1952)
• Untested CI sufficient
for reasonable suspicion
when tipster stayed in
touch with police even
though information was
partially incorrect.
State v. Marshall (14-KK-0369)
• Police Officer stops
individual for state and
municipal charges- elect
not to arrest but
subsequent search is
found constitutional
Maryland v. King
12-207
• Supreme Court
approved collection of
DNA samples from
Arrested Suspects.
Trial Procedure
State v. Thomas
2012-KP-1410
• Failure to file motion to quash on double
jeopardy grounds is not sufficient under the
circumstances to amount to ineffective
assistance
State v. Ross
13-K-0175
• Supreme Court finds
that GJ testimony can
be used to impeach a
recalcitrant witness
without violating the
secrecy rules of the GJ
Tyler v. Burl Cain
• Supreme Court granted
writs and remanded
case to determine
which Bible passages
were read aloud in the
jury room, but subject
to constraints in La.
Code of Evidence art.
606 (B)
State v. Wilkins
2013-KK-2539
• LA R.S. 14:20 (justifiable
homicide)
• Subsection D which
precludes jury
instruction on duty to
escape or retreat only
applies to those “not
engaged in unlawful
activity” under
Subsection C
State v. Altenberger
2013-KK-2518
• Supreme Court found
that timing of acts is not
alone sufficient to deny
admissibility of
evidence under Prieur.
State v. Michael Lawrence
• Supreme Court identifies factors that support
sentence below mandatory minimum
1) Finding by clear and convincing evidence that
this defendant is “exceptional”
2) Sentence must still be “the longest sentence
which is not constitutionally excessive.”
State v. Gilmore
• First Circuit remands manslaughter sentence
of 1 day as too lenient in spite of the fact that
the sentencing range is 0 to 40.
State v Mathews, et al
13-K-0525
• State filed bill of information against four
defendants, then subsequently nolle prosses
case.
• After 17 months (within the prescriptive period),
State reinstitutes charges.
• Trial Court quashes bill finding that the
defendant’s right to speedy trial were violated.
• Supreme Court reverses since defendants were
not under arrest or held to answer the criminal
charges.
Sufficiency of Evidence
• State v. Corey Oliphant
(2013-K-2973)
State v. Brandon Smith
(2012-K-2358)
State v. Bazile
2013 WL 1880395
•
The trial court granted the defendant’s “Motion to Declare Constitutional
Amendment Unconstitutional” on the basis that Provision of La. Const. art. I, §
17(A) violated the Sixth and Fourteenth Amendments of the U.S. Constitution
•
Bazile argued that he could not make a “knowing and intelligent waiver” without
full discovery or being able to view potential jurors
•
No Constitutional Right to waive the jury
•
Waiver is “knowing and intelligent” when defendant understands his rights does
not relate to “strategy”
•
“trial date” for purposes of La. Const. art. I, § 17(a) is “the initial trial setting”
Ortiz Jackson v. Louisiana
Back Strikes, Batson, and Challenges
Smithkline Corp. v. Abbott Lab., 2014 WL 211807
• State v. Patterson
(La. App. 4 Cir/ 04/25/12)
-Defense Counsel sought
to back strike juror from
first panel after first
panel was concluded
-Error was not harmless in
light of several factors
• State v. Grant
(La. App. 2 Cir. 9/20/12)
-body language is a race
neutral reason for
purposes of Batson
State v. Mattire
(La. App. 1 Cir. 09/21/12)
-no cause for friends of
the Judge
Code of Criminal Procedure Art. 780
Sentencing
• Miller v. Alabama
132 S. Ct. 2455 (2012)
• State v. Tate
130 So. 3d 829 (2013)
Michael Skakel