State v. Ioveniti

238 So.3d 496

STATE of Louisiana

v.Robert IOVENITI

NO. 2017–KA–0823

Court of Appeal of Louisiana, Fourth Circuit.

FEBRUARY 7, 2018

Leon Cannizzaro, District Attorney, Donna Andrieu, Chief of Appeals, Kyle Daly,Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLANT/ STATE OF LOUISIANA

John Hall Thomas, 639 Loyola Avenue, Suite 1820, New Orleans, LA 70113, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )

Judge Rosemary Ledet

In this criminal appeal, the State seeks review of the district court's judgment granting the motion to quash filed by the defendant, Robert Ioveniti.¹ We affirm in part; reverse in part; and remand.

STATEMENT OF THE FACTS AND CASE

On August 4, 2013, Mr. Ioveniti returned to New Orleans, Louisiana from a cruise to Belize. While disembarking the cruise ship, a drug-sniffing canine alerted to Mr. Ioveniti's crotch. Customs officers searched Mr. Ioveniti's person and discovered 498 pills of Hydrocodone, 85 pills of Alprazolam, 9 pills of Clonazepam, 23 pills of Diazepam, 25 pills of Sildenafil, and 1.9 grams of marijuana.² As a result, New Orleans Police Department officers arrested Mr. Ioveniti for violating the Uniform Controlled Dangerous Substances Law, La. R.S. 40:961, et seq. (the "UCDSL").

On September 17, 2013, the State filed a bill of information charging Mr. Ioveniti as follows:

Count 1: Possession with the intent to distribute Hydrocodone, a felony violation of La. R.S. 40:967(A)(1) ;

Count 2: Possession with the intent to distribute Alprazolam (also known as "Xanax"), a felony violation of La. R.S. 40:969(A)(1) ;

Count 3: Possession of marijuana, a misdemeanor violation of La. R.S. 40:966(E)(1) ;³

Count 4: Possession of Clonazepam, a felony violation of La. R.S. 40:969(C)(2) ;

Count 5: Possession of Diazepam (also known as "Valium"), a felony violation of La. R.S. 40:969(C)(2) ;

Count 6: Possession of a Sildenafil (also known as "Viagra"), a felony violation of La. R.S. 40:1238.1.⁴

On February 11, 2014, Mr. Ioveniti moved to quash Counts 1, 2, and 6, alleging that he had valid prescriptions for Hydrocodone, Alprazolam, and Sildenafil. The State filed a written opposition, arguing that Mr. Ioveniti had produced no admissible evidence to support his motion. Following a hearing, the district court granted the motion and issued a written judgment. The State appealed.

On the State's prior appeal, this court reasoned as follows:

The record fails to show that a contradictory hearing was held on Mr. Ioveniti's motion to quash. La. C.Cr.P. art. 537 mandates that "[a]ll issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury." (emphasis added). Louisiana jurisprudence has previously held that La. C.Cr.P. art. 537 mandates a contradictory hearing on motions to quash. State in Interest of M.J. , 14-0622, p. 15, fn. 10 (La. App. 4 Cir. 2/4/15), 160 So.3d 1040, 1049 (noting trial court erred in failing to hold a hearing on the merits of a motion to quash); State v. Nguyen , 14-639, p. 17 (La. App. 3 Cir. 11/5/14), 150 So.3d 562, 572 (granting a motion to quash without a hearing was improper); State v. Sensat , 07-425, p. 4 (La. App. 3 Cir. 11/7/07), 969 So.2d 1274, 1276 (State was entitled to a contradictory hearing on motion to quash); State v. Stewart , 02-0196 (La. App. 3 Cir. 10/2/02), 827 So.2d 1277, 1281–82 ( art. 537 implicitly mandates a hearing); State v. Lowry , 00-107, p. 6 (La. App. 5 Cir. 6/27/00), 762 So.2d 1275, 1278 (citing art. 537 and remanding for hearing on motion to quash).

In this case, the trial court accepted the filing of Mr. Ioveniti's motion to quash as well as the State's brief in opposition to the motion. However, the October 9, 2015 proceeding does not constitute a contradictory hearing pursuant to La. C.Cr.P. art. 537. The State was not afforded an opportunity to address the merits or present argument

relating to Mr. Ioveniti's motion to quash. Thus, the record fails to show that a contradictory hearing was held on the merits of the motion to quash. For this reason, we find the trial court erred.

State v. Iovenitti , 15-1356, pp. 2-3 (La. App. 4 Cir. 4/20/16), 194 So.3d 1144, 1145–46 (" Iovenitti I "). We therefore "order[ed] that the case be remanded for a contradictory hearing on the motion to quash pursuant to La. C.Cr.P. art. 537." Id. , 15–1356 at p. 3, 194 So.3d at 1146.

At the contradictory hearing on remand, which took place on March 28, 2017, Mr. Ioveniti called no witnesses; instead, he offered the following exhibits:

• Defense Exhibit 1,⁵ consisting of:

• a one-page document purporting to be a copy of a prescription for Kodone (presumably, Hydrocodone ) and Viagra and a prescription for Valium and Xanax, both allegedly written for Mr. Ioveniti by an unidentified physician (the "Prescriptions");⁶ • a two-page document, entitled "Affidavit of Pharmacist Authenticating Records of Prescription Medications He Dispensed," purporting to have been signed by Raul Acevedo, allegedly a pharmacist with Free–Town Drug Store in Belize City, Belize, and purporting to authenticate the Prescriptions (the "Affidavit");⁷ and

• Defense Exhibit 2: a one-page document, undated, purporting to be a letter from Mr. Acevedo to the district court setting forth the circumstances under which Mr. Acevedo allegedly dispensed a four-month supply of Kodone to Mr. Ioveniti on August 1, 2013, pursuant to "a prescription issued by a doctor [that Mr. Ioveniti] saw at K.H.M.H.[,] our local public hospital (the "Letter").⁸

The State offered the following exhibits:

• State's Exhibit 1: a page from the Belize Drug Formulary and Therapeutics Manual, purporting to set forth the formal requirements of a prescription in Belize;⁹ and

• State's Exhibit 2: a World Health Organization publication, entitled "Management of Drugs at Health Center Level," purporting to set forth the formal requirements of prescriptions in foreign countries.¹⁰

At the conclusion of the hearing, the district court granted Mr. Ioveniti's motion, stating as follows:

The Court sees no difference in the information previously provided by the State [sic], that led to this Court's ruling on October 13, 2015. So, by that very nature the Court is ruling in the same manner in which it ruled on October 13, 2015.

The district court then read its previous written judgment into the record. Subsequently, the district court issued another written judgment, again granting the motion to quash. This appeal followed.

On January 11, 2018, this court, on its own motion, ordered the district court to "supplement the record on appeal with all exhibits entered into evidence at the March 28, 2017 hearing on Mr. Ioveniti's motion to quash." In response, the district court provided this court with copies of the following documents:

• the Affidavit, marked for identification as "Exhibit 'A,' 2 pages";¹¹

• two pages of hand-written invoices, marked for identification as "Exhibit 'B,' 2 pages";¹² and

• a one-page document, not marked for identification, purporting to be a prescription for "Hidrocodone," Xanax, and Valium.¹³

The district court provided no documents marked for identification as Defense Exhibits 1 or 2; nor did the district court provide either of the State's exhibits.

DISCUSSION

The existence of a valid prescription is an affirmative defense to prosecution for certain violations of the UCDSL. See La. R.S. 40:967(C) ; La. R.S. 40:968(C) ; La. R.S. 40:969(C) ; La. R.S. 40:970(C). The affirmative defense must be asserted before trial in a motion to quash. See La. R.S. 40:991(C) ; La. C.Cr.P. 532(10). The motion presents a mixed question of law and fact. See State v. Tran , 12-1219, p. 2, n. 3 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673. Thus, the motion requires a contradictory hearing. La. C.Cr.P. art. 537 ; Iovenit t i I , 15–1356 at pp. 2–3, 194 So.3d at 1146 (observing that " La. C.Cr.P. art. 537 mandates a contradictory hearing on motions to quash" and collecting cases).

At such a hearing, the defendant bears the burden of producing evidence sufficient to prove the factual allegation in his motion—the existence of a valid prescription. See La. R.S. 40:991 (providing that "[a]n individual who claims possession of a valid prescription for any controlled dangerous substance as a defense to a violation of the provisions of the [UCDSL] shall have the obligation to produce sufficient proof of a valid prescription to the appropriate prosecuting office."). The Code of Evidence is fully applicable at the hearing; and the defendant's evidence, to be considered, must be admissible. State v. Rainey , 14-0523, p. 5 (La. App. 4 Cir. 9/17/14), 150 So.3d 370, 373 (observing that "rulings on motions to quash based on La. Code Crim. Proc. art. 532(10), which require factual determinations by the trial court, also require application of the rules of evidence").

A district court's ruling on a motion to quash under La. C.Cr.P. art. 532(10) is reviewed under an abuse of discretion standard. State v. Rainey , 14-0523, p. 1 (La. App. 4 Cir. 9/17/14), 150 So.3d 370, 371 (citing State v. Tran , 12-1219, p. 2 (La. App. 4 Cir. 4/24/13), 115 So.3d 672, 673 ; State v. Williams , 12-0110, p. 2 (La. App. 4 Cir. 10/10/12), 101 So.3d 533, 534 ).

For the reasons separately assigned, a majority of the panel affirms as to Count 6; a majority of the panel reverses the judgment of the district court as to Counts 1 and 2 and remands.

DECREE

The judgment of the district court granting Mr. Ioveniti's motion to quash as to Count 6 is affirmed; the judgment of the district court granting Mr. Ioveniti's motion to quash as to Counts 1 and 2 is reversed; and the case is remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

LOMBARD, J., DISSENTS; LEDET, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS; BROWN, J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS

LOMBARD, J. DISSENTS WITH REASONS,

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