RECENT DEVELOPMENTS CRIMINAL LAW AND CRIMINAL PROCEDURE Presenters Brian Capitelli

1. 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

2. 2014 Legislative Session

3. Senate Bill 523Chicken Boxing

4. Tony the Tiger • The Louisiana Legislature • THEY’RE GRRRREAT!

5. Marihuana HB 681

6. Heroin lawsSenate Bill 87

7. 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”.

8. 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

9. GOOD TIME ELIGIBILITY • House Bill 1255 allows violent offenders to become parole eligible after serving 75% of their term (as opposed to 85%)

10. 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...

11. ACT 95 • Code of Cr. Pro. art 559(A) •  Amends to require a contradictory hearing when defendant files for a motion for new trial.

12. 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.

13. Additional Legislative Changes • Expungement Statute Revamped • Make expungements more accessible- standardized 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

14. 2013/ 2014 jurisprudence

15. 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

16. 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

17. 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

18. State v. Webb2013-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

19. State v. Eberhardt2013-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

20. State v. Oliphant113 So. 3d 165 • Vehicular Homicide is considered a crime of violence for purposes of La. R.S. 14:2(B) • Greensburg man re-sentenced in light of ruling

21. 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

22. Pre-Arrest Search and Seizure

23. 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.

24. State v. Duhe (12-K-2677) • Officer’s reasonable suspicion of watching “Jesse” purchase sudafed justifies Terry Frisk and Protective Sweep of vehicle

25. 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.

26. Florida v. Jardines • Dog sniffing around curtilage of a home is a search for the purposes of the Fourth Amendment.

27. 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.

28. 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

29. Maryland v. King12-207 • Supreme Court approved collection of DNA samples from Arrested Suspects.

30. Trial Procedure

31. State v. Thomas2012-KP-1410 • Failure to file motion to quash on double jeopardy grounds is not sufficient under the circumstances to amount to ineffective assistance

32. 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

33. 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)

34. State v. Wilkins2013-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

35. State v. Altenberger2013-KK-2518 • Supreme Court found that timing of acts is not alone sufficient to deny admissibility of evidence under Prieur.

36. State v. Michael Lawrence • Supreme Court identifies factors that support sentence below mandatory minimum • Finding by clear and convincing evidence that this defendant is “exceptional” • Sentence must still be “the longest sentence which is not constitutionally excessive.”

37. 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.

38. State v Mathews, et al13-K-0525 • State filed bill of information against four defendants, then subsequently nolleprosses 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.

39. Sufficiency of Evidence • State v. Corey Oliphant (2013-K-2973) State v. Brandon Smith (2012-K-2358)

40. State v. Bazile2013 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”

41. Ortiz Jackson v. Louisiana

42. 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

43. Code of Criminal Procedure Art. 780

44. Sentencing • Miller v. Alabama 132 S. Ct. 2455 (2012) • State v. Tate 130 So. 3d 829 (2013)

45. Michael Skakel