State v. Jones

983 So.2d 95

STATE of Louisiana v. Ellery C. JONES.

No. 2007-K-1052.

Supreme Court of Louisiana.

June 3, 2008.

Christopher Albert Aberle, Mandeville, for applicant.

James D. Caldwell, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Gilbert Victor Andry, IV, Assistant District Attorney, for respondent.

VICTORY, J.

We granted this writ application to determine whether this defendant is guilty of attempted obstruction of justice for dropping a bag of marijuana out of his pocket to the ground in the presence of a police officer who was admonishing him for drinking beer too close to a high school football game. After reviewing the facts and the applicable law, we affirm the judgment of the court of appeal and find that defendant is guilty of attempted obstruction of justice in this case.

FACTS AND PROCEDURAL HISTORY

On October 22, 2004, Deputy Cody Portier, a trainee of the Plaquemines Parish Sheriff's Office, was assigned to work at a high school football game at the Fort Jackson field. Deputy Portier observed a group of people drinking beer in an area outside the field known as "the hill" and approached the group. Defendant, Ellery Jones, who was carrying a single beer and a six-pack, began to walk away from the officer. Several times, Deputy Portier directed defendant to stop, but defendant continued to walk toward his vehicle in the parking lot. He then opened the back door and put the beer inside his vehicle. Deputy Portier reached defendant and advised him of the parish ordinance which prohibits alcohol consumption within a certain distance of a school function. During this conversation, defendant reached in his pocket, removed a clear plastic bag containing vegetable matter, and dropped it to the ground in front of the officer. The bag was knotted and no vegetable matter spilled from the bag. Deputy Portier retrieved the bag and placed defendant under arrest for possession of marijuana. The deputy advised defendant of his Miranda rights, which defendant acknowledged he understood. When asked why he dropped the bag, defendant replied it was because he was on probation.¹ A search incident to arrest yielded a pack of rolling papers in defendant's pocket.

On February 5, 2005, the state charged defendant with one count of obstruction of justice, one count of possession of marijuana, and one count of possession of drug paraphernalia. On January 10, 2006, the state dismissed the two misdemeanor possession counts indicating that those charges would be re-filed under a separate case number, and proceeded to trial as to the felony charge of obstruction of justice. At trial, Deputy Portier testified on cross-examination as follows:

Q. Were you investigating Mr. Jones for possession of marijuana?

A. No, sir. Not until he went into his pocket and dropped it right there in front of me.

Q. At that point you started the investigation for possessing marijuana?

A. Yes, sir.

Q. You had no clue he possessed marijuana?

A. Your [sic] exactly right.

A six-person jury returned a verdict of guilty of attempted obstruction of justice. Defendant filed motions for post-verdict judgment of acquittal under La.C.Cr. P. 821² and for a new trial. On February 1, 2006, the trial judge granted defendant's motion for post-verdict judgment of acquittal and ordered defendant released. In granting defendant's motion, the trial court observed that the marijuana was not "evidence" until defendant removed it from his pocket and dropped it on the ground. The judge found that defendant did nothing more to the marijuana, such as stomp it into the ground or attempt to empty it from its bag and disperse it. The judge questioned the legitimacy of the obstruction of justice charge as it applied to the marijuana in this case:

I am concerned that ... I don't know how you can have attempted, and I am worried about that ... [b]ecause you have got to have a specific intent ... [I]n the light most favorable to the State, it seems to me there could be a very good argument here of double jeopardy, in that by doing the same thing, if that is all he had done without the obstruction, he would be guilty of possession of marijuana. He did nothing more and he is also guilty of obstruction of justice. And to me that's the conflict in my mind. So I am going to grant the judgment of post verdict of acquittal ... I just, in the eyes of justice feel, that if a man does nothing more than what he already did, possession of marijuana, I don't see how he committed another crime. And you can't commit two crimes at the same time.

The court of appeal reversed and determined that "the defendant by virtue of his guilty knowledge that he was possessing marijuana had the requisite knowledge that there was a potential criminal proceeding and arguably had the specific intent to affect that investigation or proceeding." State v. Jones, 06-0485 (La.App. 4 Cir. 11/21/06), 952 So.2d 705. Further, the court of appeal found that "[t]he statute does not clearly require that the police already be engaged in the relevant investigation or that the criminal proceeding has already commenced." Id. "The fact that his attempt to tamper with the evidence backfired does not mean he did not have the specific intent to commit obstruction of justice, and the act of moving the marijuana was from his pocket to the ground, and thus out of his physical possession, fits the element of movement of evidence, and thus was an act in furtherance of the crime." Id. The court of appeal vacated the decision of the trial court, reinstated the jury's verdict of guilty of attempted obstruction of justice, and remanded the case for further proceedings. We granted defendant's writ application. State v. Jones, 07-1052 (La.11/21/07), 967 So.2d 527.

DISCUSSION

Louisiana's obstruction of justice statute is found at La. R.S. 14:130.1, and provides in pertinent part:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:

(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal or addition of any object or substance either:

(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers; or

(b) At the location of storage, transfer, or place or review of any such evidence.

...

B. Whoever commits the crime of obstruction of justice shall be subject to the following penalties:

(1) When the obstruction of justice involves a criminal proceeding in which a sentence of death or life imprisonment may be imposed, the offender shall be fined not more than one hundred thousand dollars, imprisoned for not more than forty years at hard labor, or both.

(2) When the obstruction of justice involves a criminal proceeding in which a sentence of imprisonment necessarily at hard labor for any period less than a life sentence may be imposed, the offender may be fined not more than fifty thousand dollars, or imprisoned for not more than twenty years at hard labor, or both.

(3) When the obstruction of justice involves any other criminal proceeding, the offender shall be fined not more than ten thousand dollars, imprisoned for not more than five years, with or without hard labor, or both.

"Attempt" is defined in La. R.S. 14:27 as follows:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

* * *

C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.

* * *

The state charged defendant with violating La. R.S. 14:130.1(A)(1), alleging that he "moved" the bag of marijuana from his pocket to the ground at the location of an incident that he had good reason to believe would be the subject of an investigation, with the specific intent of distorting the results of a criminal investigation. The state claims he did this with the knowledge that moving the marijuana from his person "reasonably may" affect a potential, future criminal proceeding. Defendant claims that he could not have intended to distort the results of a criminal investigation because no investigation into his possession of drugs was being conducted at the time he dropped the marijuana. The only investigation underway was possession of alcohol at a school event. Further, he claims that instead of intending to distort the result of any investigation, he intended to prevent a criminal investigation from ever occurring in the first place. He argues that if the court of appeal's reasoning is followed, then anyone who commits any crime with the intent of not getting caught has violated the obstruction of justice statute.

We granted this writ to interpret the meaning of La. R.S. 14:130.1 in order to determine if defendant's actions in dropping the marijuana to the ground in the presence of the police constitute obstruction of justice or attempted obstruction of justice. This case comes at a time when obstruction of justice laws are being "used increasingly against drug offenders who, in some fashion, attempt to destroy or conceal their drugs when being pursued by the police." John F. Decker, The Varying Parameters of Obstruction of...