author: HUGHES, J.

text:
    STATE of Louisiana v. Channing R. GRAY
    NO. 2016-KK-0687
    Supreme Court of Louisiana.
    03/15/2017
    Rehearing Denied May 1, 2017

      LOUISIANA DEPARTMENT OF JUSTICE, Hon, Jeffrey Martin Landry, Attorney General, Colin Andrew Clark; BIENVILLE PARISH DISTRICT ' ATTORNEY’S OFFICE, Hon. Daniel W. Newell, District Attorney,. Benjamin J. Bleich, Teresa Culpepper, Carroll; for Applicant. ;
    Martha Rundell Crepshaw; . GOLD, WEEMS, BRUSER, ¡ SIXES & RUN-DELL, Joshua J. Dara, J,r.; Joseph H.L. Perez-Montes; for Respondent.
   HUGHES, J.

hWe are called upon to determiné, in this case, whether La. C.Cr.P."art. 576 may be applied to render timely the institution of a prosecution against the defendant for obstruction of justice, following the dismissal of a prosecution for murder. The trial court denied the defendant’s motion to quash the bill of information charging him with obstruction of justice; however, the appellate court granted the defendant’s writ application, granted the defendant’s motion to quash, and dismissed the bill of information. The appellate court concluded that the charge of obstruction of justice was not “based on the same facts” as the murder prosecution, contrary to the requirements of La. C.Cr.P. art. 576, and therefore was untimely filed. For the following reasons, we vacate the judgment of the appellate court and reinstate the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Derroceus Abney was murdered on or about February 10, 2007. His body was found on or about February 23, 2007 hidden in an inoperable freezer located in the yard of a Bienville Parish residence. Investigators determined that Mr. Abney’s body had been moved to the freezer immediately after his murder. Blood |2found on the freezer door was discovered to have been that of the victim, though a fingerprint in the blood was not that of the victim. Investigators deduced that, since the victim’s blood on the exterior of the freezer would have dried in five to fifteen minutes, the unknown person who left his fingerprint in the victim’s blood, before it dried, was likely involved in the victim’s murder and the concealment of the victim’s body.

Some six years later, the defendant’s fingerprints were entered into a national database, and the fingerprint found on the freezer in which Mr. Abney’s body was hidden was determined to be that of the defendant. The defendant was arrested on or about June 4, 2013.

A grand jury indicted the defendant with the first degree murder of Derroceus Abney on July 15, 2013, and the indictment was filed with the court on July 16, 2013. The indictment was later amended, on November 5, 2013, to reduce the charge to second degree murder. However, during the course of the trial court proceedings and prior to the 2015 trial date, it was discovered that crucial witnesses and evidence in the case could not be produced (including the freezer). As a result, on June 2, 2015, the State concurrently dismissed the murder prosecution and filed a bill of information charging the defendant with obstruction of justice, a violation of La. R.S. 14:130.1(A), alleging that the defendant “did tamper with evidence by intentionally distorting the results of a criminal investigation by causing or inducing the alteration, destruction, mutilation or concealment of any object with the specific intent to impair the object’s integrity or availability for use in any criminal proceeding.”

On June 18, 2015, the defendant filed a motion to quash the June 2, 2015 bill of information, contending the State failed to institute prosecution for obstruction of justice within six years, as required by La. C.Cr.P. art. 572(A) (“Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or ^punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed: ... Six years, for a felony necessarily punishable by imprisonment at hard labor.... ”). In opposition, since the obstruction of justice prosecution was brought within the six-month time period allowed by La. C.Cr.P. art. 576, though outside the period provided for in La. C.Cr.P. art. 572, the State contended that the obstruction of justice prosecution was timely prosecuted pursuant to La. C.Cr.P. art. 576 (“When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer....”) (emphasis added).

Following a July 13, 2015 hearing, the trial court found that the murder charge and the obstruction of justice charge were based on the same facts, as required by La. C.Cr.P. art. 576, and denied the motion to quash. The appellate court subsequently granted the defendant’s writ application, granted the defendant’s motion to quash, and dismissed the bill of information charging the defendant with obstruction of justice. State v. Gray, 50,456 (La.App. 2 Cir. 2/24/16), 190 So.3d 730. On application of the State, this court granted certiorari. State v. Gray, 16-0687 (La. 9/6/16), 205 So.3d 911.

LAW AND ANALYSIS

Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that |4finding represents an abuse of the trial court’s discretion. State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206. However, the trial court’s legal findings are subject to a de novo standard of review. State v. Hamdan, 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816; State v. Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504. This case presents both a question of law as to the proper interpretation of the meaning of the La. C.Cr.P. art. 576 phrase “based on the same facts” and a question as to the propriety of the trial court’s application of that provision to the facts and circumstances of the instant case.

This prosecution was first instituted by an indictment of the Bienville Parish Grand Jury, charging the defendant with first degree murder, in violation of La. R.S. 14:30, which upon conviction carries a sentence of death or life imprisonment. Because “[tjhere is no time limitation upon the institution of prosecution for any crime for which the punishment may be death or life imprisonment,” pursuant to La. C.Cr.P. art. 571, the institution of the prosecution for first degree murder was not subject to a time limitation and was timely filed.

Further, “[tjhe district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court....” La. C.Cr.P. art. 691. Dismissal by the district attorney of an indictment, or of a count of an indictment, discharges that particular indictment or count; the dismissal is not a bar to a subsequent prosecution unless a dismissal is entered without the defendant’s consent, after the first witness is sworn at the trial on the merits, or a dismissal is entered after a city court conviction has been appealed to the district court for a trial de novo. La. C.Cr.P. art. 693.

In this case, the State amended the first-degree murder charge against the defendant to second-degree murder and, thereafter, concurrently dismissed the second-degree murder charge and filed a new bill of information to charge the | ^defendant with obstruction of justice, based on the defendant’s participation in concealing the murder victim’s body. In so doing, the State relied on the application of La. C,Cr.P. art. 576 to provide for the timeliness of the new prosecution.

In granting the defendant’s motion to quash the bill of information, charging the defendant with obstruction of justice, the appellate court reasoned:

• ■ It is ... undisputed that the offense of obstruction of justice/tampering with evidence arose because of the murder. However, obstruction of justice is a separate and distinct offense, with different elements, from second degree murder. While the elements of the offense are not the controlling inquiry, additional facts (different from second degree murder) must be proven to convict the defendant of obstruction of justicé/tamper-ing with evidence. See State v. Powers, supra.
■ Additionally, as in State v. Powers, •supra, -the offense of second degree murder (the offense charged in the amended bill of indictment) had been completed when the facts giving rise to the obstruction charge arose. The testimony presented at the hearing established that the victim had been killed before 'his body was placed in the freezer. Therefore, the facts supporting the obstruction charge—the alleged removal of the freezer to hide or tamper with the fingerprint—necessarily occurred after the murder was committed and would require additional physical and testimonial evidence to prove. Under the reasoning set forth in State v. Powers, supra, the offense of obstruction of justice is not based on the same facts as the offense of second degree murder. Therefore, under Article 576, a new prosecution cannot be instituted. Accordingly, we find that the trial court erred in denying the defendant’s motion to quash. -

State v. Gray, 50,456 at pp. 9-10, 190 So.3d at 735-36 (footnotes omitted; emphasis added).

16The lone dissent to the State v. Gray decision reasoned, conversely, ■ as follows:

The majority reasons that the “removal of the freezer to hide or tamper with .the fingerprint” was unrelated in time and a different offense. In this case, a killing occurred and the body was moved from the scene into an abandoned and inoperable freezer. The effort to dispose of the body was unsuccessful as the freezer was found. The body and a fingerprint in the victim’s blood w[ere] recovered from the freezer. The fingerprint was evidence to connect someone to the murder. The investigation stalled as law enforcement had no match to the print. The fingerprint was not tampered with. Nor was the freezer removed—it apparently was lost.
* * *
The obstruction of justice offense was based upon and occurred simultaneously with the murder. The obstruction was the attempt to' dispose of the body. I would distinguish the case relied on by the majority, State v. Powers, and would affirm the trial court.

State v. Gray, 50,456 at pp. 1-2, 190 So.3d at 736-37 (dissent) (emphasis added). The appellate court dissent obviously concluded that the obstruction of justice charge arose out of the moving and hiding of the body of the murder victim, rather than the “the alleged removal of the freezer to hide or tamper with the fingerprint” as stated by the'majority opinion, and that the bloody fingerprint was germane to both the murder charge and the obstruction of justice charge, as potentially connecting the defendant with either crime.

Before this court, the parties dispute whether the obstruction of justice charge against the defendant is “based on the same facts” as the prior murder charge. The requirement that a subsequent prosecution under La. C,Cr.P. art. 576 be “based on the same facts” as the previously-dismissed charge is discussed in 1966 Official Revision Comment (a) to Article 576 as follows:

[yThe requirement that the second charge must be based on the same facts as the first, is of course manifestly essential but can lead to many difficult problems of interpretation. For example, any given set of facts can be the basis of a series of different charges. Thus, if the first charge relied upon to interrupt prescription was burglary, could the second charge, after a dismissal of the first, be theft of property taken as a part of the burglary, or vice versa? Both are based on some of the same facts but mot all of them. The only case found on the subject is State v. Murray, 222 La. 950, 64 So.2d 230 (1953), in which a delivery boy was charged with theft from his employer of $63.89 on August 20, 1951, this being made of four different items. In November, 1952, this information was nolle prosequied and a new information filed charging theft from the same employer of $47.94 on August 20 and 21, 1951. The difference in amount was due to the fact that proof of one of the items of the theft had been lost and hence it was omitted from the second charge. The court held that both charges were “based on the same facts” and that the second charge was not prescribed. The case suggests, although the point is not discussed, that if the second charge is based on some of the facts of the first charge, it need not be based on all of them. However, since in both charges the offense was the same (theft) and was against the same victim, the case must probably be restricted to that situation. It seems clear, however, that if a second charge involves additional facts, then it can not be said to be based on the same facts and the first charge does not interrupt prescription.

Little guidance exists in the jurisprudence as to the. meaning of the La. C.Cr.P. art. 576 phrase “based on the same facts.” The only case previously before this court, raising this issue with respect to Article 576, was, as indicated in the above-quoted comment, State v. Murray, 222 La. 950, 64 So.2d 230 (1953). In State v. Murray, 64 So.2d at 231, the factual scenario out of which the original and amended charges arose was set forth as follows:

The evidence produced by the State for the purpose of negativing prescription is uncontradicted. It discloses that appellee was employed by Mr. Peter Crifasi, proprietor of the ‘One Stop Market’ in Baton Rouge, as a delivery boy. On August 20th and 21st, 1951, he was instructed to make four deliveries of merchandise for which he was to receive cash approximating $63.89. His employer made out three invoices for each delivery to be made, the original white copy, which was to be given to the customer at the time of delivery, a yellow copy, which was to be returned by ap-pellee with the cash payment and a pink copy, which was retained by the store. Appellee allegedly was paid for each of the four deliveries of merchandise and appropriated the cash received to his own use. In order to conceal his peculation, he allegedly stole and destroyed the pink copies of the invoices which were kept in his employer’s place of business. The four customers to whom appellee made deliveries were | sEdward Orange Bowl, Humpty Dumpty, Toddle House and Italian Gardens.

Based on these allegations of fact, the prosecution in State v. Murray filed a bill of information charging the defendant with “theft of $63.89 from Peter Crifasi on or about August 20th, 1951,” which charge was thereafter dismissed and a new bill of information was filed charging the defendant with “theft of $47,94 from Crifasi on or about August 20th and 21st, 1951.” State v. Murray, 64 So.2d at 230.

The reason for dismissing the first bill of information and filing a second bill of information on a lesser charge was explained in State v. Murray as follows:

When the case was being prepared for trial under the original information charging theft of $63.89, it was discovered that one of the original white invoices—that delivered to Italian Gardens—had been lost or misplaced. Because of this, the district attorney elected to nolle prosequi the information and recharge appellee, alleging a theft of $47.94, which is the amount allegedly received by him on August 20th and 21st, 1951 from Edward Orange Bowl, Humpty Dumpty and Toddle House.

State v. Murray, 64 So.2d at 231 (emphasis added).

The Murray defense asserted that the second bill of information was not based on the same facts as the first because the amount allegedly stolen was reduced from $63.89 to $47.94, the date of the crime was changed from August 20, 1951 to August 20 and 21, 1951, and the second bill of information excluded the alleged theft of the funds received from Italian Gardens. State v. Murray, 64 So.2d at 231. Notwithstanding, the State v. Murray court held, “We think it clear that the second bill of information is founded on the identical act charged in the first. There was but one theft, i.e., that of the money collected by appellee for his employer from the four customers. The only changes that have been made are in the amount of the theft and the dates on which it occurred but the facts upon which the theft is based are the same.” State v. Murray, 64 So.2d at 232 (emphasis added).

|9In State v. Murray, the facts underlying the original theft prosecution against the defendant were not restricted to the one moment when the defendant absconded with the funds. In discussing the facts forming the basis of the original theft prosecution, the State v. Murray decision also included the facts related to the defendant’s employment, such as: the defendant had been entrusted with the tasks of delivering his employer’s goods to customers and collecting payment for the goods; the employer’s practice of utilizing triplicate invoices for each customer; and how the defendant attempted to conceal his theft of the payments by stealing and destroying his employer’s copy of the invoices for the transactions at issue. See State v. Murray, 64 So.2d at 231 (quoted hereinabove).

Further, although the facts and criminal charges involved in State v. Murray are different from those at issue in the instant case, the overarching pattern of events is virtually identical: the defendant committed a crime, which he attempted to conceal through further actions; in the ensuing prosecution, a bill of information was filed, but later dismissed when crucial evidence was lost; and a second bill of information was filed charging the defendant with a lesser offense based on the same facts.

In the instant case, the salient facts are that Derroeeus Abney was murdered, his body was concealed in an unused freezer, and an impression of the defendant’s fingerprint was left in the victim’s blood on the freezer door. All of these facts would have been relevant to either the prosecution for murder or the prosecution for obstruction of justice. With respect to the murder, evidence of concealment and attempt to avoid apprehension is relevant since it indicates consciousness of guilt, and therefore is one of the circumstances from which a jury may infer guilt. See State in Interest of T.E., 12-0517, p. 6 (La. 6/29/12), 91 So.3d 292, 295 (per curiam); State v. Davies, 350 So.2d 586, 588 (La. 1977). With respect to obstruction of justice, an element of the crime is that the defendant has “knowledge |inthat such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding.” See La. R.S. 14:130.1(A). Thus, the obstruction of justice charge arises out of the murder.

We reject the defendant’s assertion that only the facts set forth in the original bill of information may form the basis of a subsequent prosecution/ for purposes of La. C.Cr.P. art. 576’s requirements that the new prosecution be “for the same offense or for a lesser offense based on the same facts.” An indictment is only required to set forth essential facts, pursuant to La. C.Cr.P. art. 464 (“The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated(emphasis added). See La. C.Cr.P. art. 462 and 463 (“... The particulars of the offense may be added with a view to avoiding the necessity for a Inbill of particulars ....”) (emphasis added). See also State v. Griffin, 495 So.2d 1306, 1311 (La. 1986); State v. Gainey, 376 So.2d 1240, 1311 (La. 1979) (holding that the constitutional requirement of informing the defendant of the nature and cause of the charge against him is not to be read so restrictively as to mean he must be so informed by the indictment; the more reasonable rule is that when the indictment charging the defendant fails to set forth the detailed facts constituting the offense charged, his proper remedy is not a motion to quash, but a request for a bill of particulars in accordance with La. C.Cr.P. art. 484).

Article 576 states only that the new prosecution be “based on the same facts” as the dismissed prosecution; Article 576 does not require that the new prosecution must be based on the same essential facts as the dismissed prosecution. Where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. State v. Shaw, 06-2467, p. 15 (La. 11/27/07), 969 So.2d 1233, 1242 (citing La. R.S. 1:4; State v. Freeman, 411 So.2d 1068, 1073 (La. 1982)).

We find no ambiguity in the Article 576 phrase “based on the same facts.” The absence of language qualifying or restricting the term “facts” clearly indicates that “facts” is used in its broadest sense. Support for this conclusion can be found in State v. Powers, 344 So.2d 1049,1052 (La. 1977), which reviewed a complementary codal provision, La. C.Cr.P. art. 581, containing a phrase identical 112to that in Article 576, “based on the same facts.” In reviewing Article 581’s language, mandating that, after the time limit for holding a trial in a criminal prosecution has expired, the indictment must be dismissed and any further prosecution against the defendant for the same or a lesser offense “based on the same facts” is prohibited, the State v. Powers court- recognized that “the codal language envisions a rather broad interpretation.” State v. Powers, 344 So.2d at 1052.

In State v. Powers the defendant was charged with murder, aggravated burglary, and conspiracy to commit aggravated burglary. There was no question that the murder charge had been timely instituted; however, the burglary charges were instituted after the dismissal of prior charges of aggravated robbery and conspiracy to commit aggravated robbery, on the defendant’s motion to quash. The robbery charges had been previously dismissed by the trial court because no trial was timely commenced within two years of the institution of the prosecution, pursuant to La. C.Cr.P. arts. 578(A)(2) and 581. The defendant contended, regarding the subsequently-filed burglary charges, that the new charges were “based on the same facts” as the prior robbery charges, and thus further prosecution on the new burglary charges was prohibited by Article 581. The trial court denied the defendant’s motion to quash the burglary charges on that basis, and the matter was subsequently reviewed by this court. In upholding the trial |13court ruling, this court reasoned that the aggravated burglary of the empty residence had taken place, and every element of the crime was complete, before Mr. Brumfield returned home; and that it was only upon Mr. Brumfield’s return that every element of the- offense of armed robbery took place. Therefore, the State v. Powers court concluded that the robbery charges and the' burglary charges 'were two separate crimes and were not “based on the same facts.” State v. Powers, 344 So.2d at 1052. •

In State v. Powers, 344 So.2d at 1052 n.6, this court determined that “the same facts” meant “the facts that the . state hoped to prove,” since, as a procedural matter, when such a pre-triaL motion to quash is under consideration, no facts have yet been proven against the defendant. Notably, there was no indication in State v. Powers that any of the facts related to the previously-dismissed armed robbery charges were necessary to prove the subsequent burglary charges. In contrast, in the instant case, the prosecution had hoped, with respect to the previously-dismissed murder charge, to prove that the defendant participated in the murder of the victim by means of the defendant’s fingerprint in the victim’s blood, as evidencing the defendant’s guilty knowledge associated with his participation in the concealment of the victim’s corpse in an attempt to avoid apprehension by law enforcement authorities (i.e., obstruction of justice); and, with respect to the obstruction of justice charge, the prosecution hoped to prove all of the facts they had hoped to prove in connection with the murder prosecution, except for the. defendant’s participation in the murder. Because all of the facts of the obstruction charge were subsumed within the facts of the murder charge, including the occurrence of the murder, though excepting the identity of the murderer, we conclude that the obstruction of justice charge was based on the same facts as the murder charge. This holding is in accordance with State v. Murray and La. C.Cr.P. art 576, Official Revision Comment (a), indicating that if the second |14charge is based on some of the facts of the first charge, it need not be based on all of them.

On this point, we note that the State v. Powers decision misquotes the La. C.Cr.P. art 576, Official Revision Comment (a), in stating the following: “The official revision comment to that article [Article 576] indicates that the ‘same facts’ language would prohibit a subsequent charge which is based on some of the same facts as the initial charge, even though it is not based on all of them.” See State v. Powers, 344 So.2d at 1051 (emphasis added). To the contrary, Revision Comment (a) to Article 576 actually states: “The [State v. Murray] court held that both charges were “based on the same facts” and that the second charge was not prescribed. The case suggests, although the point is not discussed, that if the second charge is based on some of the facts of the first charge, it need not be based on all of them.” (Emphasis added.) Thus, the redactors of Article 576 expressed the view that a second charge need not be based on all of the facts of the first charge, as long as it is based on some of the facts of the first charge. In this case, the second charge of obstruction of justice is based on all of the facts of the first charge of murder except the identity of the victim, since in order to prove the defendant was involved in the murder, the State would have had to prove his identity and his guilty knowledge through the fingerprint he left while obstructing justice by concealing the murder victim’s corpse.

. The defendant in this case further asserts that, as in State v. Powers, one of the crimes at issue (there, aggravated burglary; here, murder) was fully complete before actions constituting the other crime (there, armed robbery; here, obstruction of justice) commenced. Nevertheless, “determination of motions to quash in which the district attorney entered a nolle pros and later reinstituted charges should be decided on the basis of the facts and circumstances of the individual case.” State v. Love, 00-3347 at p. 14, 847 So.2d at 1209. Because we conclude here that the subsequent prosecution is based on the same facts as the previously-dismissed prosecution, whereas the same was not true in State v. Powers, we find State v. Powers distinguishable from the facts and circumstances of this case.

The instant defendant additionally argues that, because the time limit for institution of prosecution for the crime of obstruction of justice had accrued on February 10, 2013 (six years after the February 10, 2007 murder of Mr. Abney), before the prior prosecution for murder had been instituted by the filing of an indictment on July 16, 2013, La. C.Cr.P. art. 576 could not act to extend the time limit for institution of prosecution on the obstruction of justice charge. Notwithstanding, such an argument misconstrues the codal framework established in Title XVII, “Time Limitations,” which includes Chapter 1, “Limitations Upon Institution or Prosecution,” and Chapter 2, “Limitations Upon Trial,” containing the provisions discussed herein. Present in both Chapter 1 and Chapter 2, are articles setting forth the time limitations (articles 571, 571.1, 572, and 578) as well as articles governing the commencement, interruption, suspension, pleading of, and exceptions to the time limits (articles 573-77 and 579-83).

The enactment of such time limitations and concomitant matters “represents a legislative assessment of relative interests of the State and defendant in administering and receiving justice.” See State v. Stetson, 317 So.2d 172, 174 (La. 1975). Maintaining a time limitation plea is to recognize repose as in civil matters; it “amounts to an act of grace by the sovereign surrendering its right to prosecute, or as acts of amnesty declaring that the offender may cease to preserve his proof of innocence after the time limit has passed, or as a recognition by the State that time gradually wears out evidence of innocence.” State v. Stetson, 317 So.2d at 175. A further social motive justifying the existence of such provisions is that “they curb the power of the State to hold over a person’s head the threat of prosecution for a longer period of time.” Id.

In implementing these principles, the legislature obviously enacted La. C.Cr.P. art. 576 with the recognition that the State has the power, as set forth in La. C.Cr.P. arts. 691 and 693, generally, to dismiss and reinstitute prosecutions, in its discretion, because of circumstances such as that encountered herein and in State v. Murray (i.e., the loss or unavailability of crucial evidence), for the purpose of charging a lesser offense or lesser grade of an offense; the limit, inter alia, placed on that power by Article 576, as to a subsequent prosecution for a lesser offense, is that the crime charged be “based on the same facts.” The “same facts” restriction serves to give the defendant notice, via the dismissed prosecution, that he continues to be subject to prosecution arising out of the facts forming the basis of the first prosecution.

CONCLUSION

For the stated reasons, we conclude that the appellate court’s ruling in this case was premised on the erroneous assumption that the basis of the obstruction charge was “the alleged removal of the freezer to hide or tamper with the fingerprint” and, therefore, the appellate court decision that, because “the offense of obstruction of justice is not based on the same facts as the offense of second degree murder,” “under Article 576, a new prosecution cannot be instituted” was likewise erroneous. See State v. Gray, 50,456 at p. 10, 190 So.3d at 736. We |17further conclude that the trial court correctly interpreted and applied Article 576 to this case, in ruling that from “reading the statute and ... from the testimony presented today ... I think it’s the same facts” and in denying the defendant’s motion to quash.

DECREE

Accordingly, we vacate the judgment of appellate :court, granting the defendant’s motion to quash and dismissing the bill of information charging the defendant with obstruction of justice, and reinstate the trial Court judgment, denying the defendant’s motion to quash.

APPELLATE COURT JUDGMENT VACATED; DISTRICT COURT JUDGMENT REINSTATED.

       Judge James T. Genovese, assigned as Justice Ad Hoc, sitting for Knoll, J. for oral argument. He now sits as an- elected Justice at the time this opinion is rendered.

      . Article 576 provides:
      When i a criminal prosecution is timely instituted in a court of proper jurisdiction and. the prosecution is dismissed by the district attorney with the defendant’s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
      A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.
      (Emphasis added.)

      . In brief to this court, the State maintained: "[T]here has never been an allegation on behalf of the State that the Defendant moved the freezer in order to hide or tamper with the fingerprint evidence." Instead, the State argues that the defendant's fingerprint in the victim’s blood "tends to show both the Defeh-dant's involvement in the murder of Mr. Ab-ney and the Defendant's obstruction of justice by moving the body from the place where the murder of Mr. Abney occurred.” We note that, in brief to the appellate court, the State argued, consistently, that the obstruction of justice charge was "based on the same facts as the original indictment; i.e., the murder of Mr. Abney, the body being moved to the freezer and the defendant's fingerprint in Mr. Ab-ney’s blood on the freezer."

      . During the July 13, 2015 hearing on the motion to quash, Bienville Parish Sheriff's Department ("BPSD”) Deputy Chris Davis testified that the BPSD investigation into Mr. Abney’s murder revealed that: Mr. Abney’s death was caused by two bullet wounds to his forehead; the freezer where Mr. Abney's body was concealed was found leaning against a storage building with the door toward the wall of the building; the bloody fingerprint, later determined to be that of the defendant, was found on the outside of the freezer;, the fingerprint showed a downward motion on the freezer door, close to the handle; the configuration of the bloody marks on the freezer door led the BPSD to conclude “the door was open, handprint was on the door and it was pushed down ... in a closing motion”; and it would have taken between five to fifteen minutes for Mr. Abney’s blood to have dried on the outside of the freezer, placing the defendant on the scene no later than that five to fifteen minute interval.

      . "In this Title [XIII. Indictment and Information] the terms enumerated shall have the designated meanings: ... 'Indictment' includes affidavit and information, unless it is the clear intent to restrict that word to the finding of a grand jury.” La. C.Cr.P. art. 461.

      . See also La. C.Cr.P. art. 465 providing, in pertinent part:
      A. The following forms of charging offenses may be used, but any other forms authorized by this title may also be used:
      * * *
      31, First Degree Murder—A.B. committed first degree murder of C.D.
      32, Second Degree Murder—A.B. committed second degree murder of C.D.
      B. The indictment, in addition to the necessary averments of the appropriate specific form hereinbefore set forth, may also include a statement of additional facts pertaining to the offense charged. If this is done it shall not affect the sufficiency of the specific indictment form authorized by this article. [Emphasis added.]

      . Article 581 provides:
      Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
      If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts. [Emphasis added.]
      The limitations established in the chapter referenced in Article 581 (Chapter 2. Limitations Upon Trial) are provided in Article 578 ("Except as otherwise provided in this Chapter, no 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...”), as modified by the provisions relative to interruption and/or suspension and/or the effect given to a new trial, as set forth in Articles 579, 580, 582, and 583.

      . However, the murder prosecution was maintained because it was subject to a time limit of three years for commencement of trial after institution of prosecution, under La. C.Cr.P. art. 578(A)(1), and three years had not yet elapsed.

      . The State v. Powers court conceded that the murder, the robbery, and the burglary charges all arose out of "a single incident,” but concluded that the burglary charges arose from distinct facts from the robbery and murder charges. These crimes occurred in May of 1973, when “a group of people” illegally entered the home of Baton Rouge attorney, H. Alva Brumfield, to commit- a burglary.. Mr. Brumfield was not home when the burglary occurred, but before the perpetrators left the premises Mr. Brumfield returned, and the perpetrators then committed armed robbery of Mr. Brumfield and murdered him.

      . We note the motion to quash in State v. Love was filed after the State dismissed an initial prosecution charging the defendant with possession of cocaine with intent to distribute; the State then filed a new bill of information that charged the defendant with the same crime, within the delay allowed by La. C.Cr.P. art. 576. Therefore, the issue presented in the instant case was not presented in State v. Love, since the new prosecution was on the "same offense,” not merely "based on the same facts”; nor was there a violation of La. C.Cr.P. art. 578's two-year limit for commencement of trial (the defendant entered a best-interest guilty plea approximately twenty-two months after institution of the prosecution). Rather, the issue in State v. Love was whether the defendant's constitutional right to a speedy trial had been violated. In the case now before the court, no allegation of a violation of the constitutional right to a speedy trial has been raised.

      . See State v. Adkisson, 602 So.2d 718, 719 (La. 1992) (expressly referring to Article 573 as a "time limitation exception”).


source: Caselaw Access Project

author: PER CURIAM JOHNSON, Chief Justice,

license: Public Domain

text:
    Gerald CASTILLE v. ST. MARTIN PARISH SCHOOL BOARD
    No. 2016-C-1028
    Supreme Court of Louisiana.
    03/15/2017
    Rehearing Denied May 1, 2017
    BOYER, HEBERT, ABELS & AN-GELLE, LLC, Mark David Boyer, Mar-yanna Broussard Haynes, Denham Springs, for Applicant.

      G. KARL BERNARD & ASSOCIATES, G. Karl Bernard, New Orleans, for Respondent.
   PER CURIAM

UWe granted certiorari in this matter to consider whether the court of appeal erred in awarding plaintiff damages for bad faith breach of contract. For the reasons that follow, we find the court of appeal erred in awarding bad faith damages and therefore reverse this portion of the court of appeal’s judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Gerald Castille, was employed as a school bus driver for the St. Martin Parish School Board (“School Board”) beginning in 1977. During his first few years, plaintiff drove two bus routes known as the “Levee Route” and the “Portage Route.” According to plaintiff, these routes were undesirable as they “required the assigned bus driver to travel very long distances while trying to maintain a safe and orderly bus populated with children from families that were known to have little or no respect for the bus operators. ...”

In 1980, plaintiff was assigned to the “Highway 31 Route.” Although this route was initially considered undesirable, plaintiff asserts it changed over time and became more desirable as the route became less populated. While driving that route for nearly thirty years, plaintiff claimed to have developed relationships with the students and their parents, noting the route gave him “a sense of purpose and dignity.”

I sin the spring of 2008, the costs of diesel fuel began to rise, and the School Board was forced to take steps to save money by redrawing and reassigning bus routes. The School Board set up a transportation committee made up of volunteer bus drivers. This committee was charged with redrawing the bus routes to cut down on “dead miles” and fuel costs. During the reconfiguration period, the School Board gave bus drivers the opportunity to provide input at meetings, but plaintiff never attended a meeting.

The School Board’s transportation committee reconfigured the existing routes and assigned them to bus drivers based on the route that was closest to each driver’s home. Driver seniority was not considered in assigning routes.

Prior to the start of the 2008-2009 school year, the bus drivers received their new route assignments. The School Board assigned plaintiff a combined “Levee-Portage Route,” two of his old routes, with no change in his salary, health benefits, or retirement. Plaintiff objected to this new route, but claims the bus manager told him to try the route for a few weeks and come back if he was still unhappy because the routes were “not set in stone” and adjustments could be made. After two weeks, plaintiff requested to be returned to the Highway 31 route, but was told to deal with the current situation.

Plaintiff gave the new route “a shot,” but found it to be as bad as it was thirty years ago, with overcrowded buses and disciplinary problems among the children. He alerted his supervisors to the problems, but claim they took no action. According |ato plaintiff, he began experiencing anxiety and depression problems during this time. His problems continued until 2011, when a more desirable vacant route became available.

Plaintiff filed the instant suit against the School Board. In his petition, plaintiff alleged the School Board violated La. R.S. 17:493.1 in assigning the bus routes in 2008. Among other causes of action, the petition alleged the School Board’s actions “were done in bad faith and constitute breaches of Defendant’s implied duty to perform their contractual obligations in good faith.” Plaintiff also alleged detrimental reliance, based on alleged assurances by his supervisors that the route would be changed if he did not like it, and sought non-pecuniary damages.

The case proceeded to a bench trial. At the conclusion of trial, the district court concluded the School Board violated La. R.S.17:493.1. The district court dismissed plaintiffs contract, detrimental reliance, and non-pecuniary damage claims, reasoning ^plaintiff’s exclusive remedy for any work-related injury was grounded in workers’ compensation. However, the district court awarded plaintiff damages in the form of “full pay for any loss of salary or time sustained by reason of the action of the [School Board] in violation of La. R.S. 17:493.1,” as well as reimbursement “for any increase in non passenger miles per day per year from 2008 to 2011 attributable to the consolidated or reassigned route in 2008 over the previous route.... ”

Plaintiff appealed. The court of appeal affirmed in part and reversed in part. Castille v. St. Martin Parish School Bd., 15-997 (La.App. 3 Cir. 4/27/16), 190 So.3d 1225.

In its opinion, the court of appeal found the district court committed legal error in rejecting plaintiffs contractual claims. The court of appeal reasoned that under the jurisprudence, the relationship between the School Board and a tenured employee such as plaintiff was a contractual relationship. It determined the. district court’s finding that the School Board violated plaintiffs tenure rights under La. R.S. 17:493.1 was inconsistent with the district court’s rejection of plaintiffs contractual claims. Accordingly, the court of appeal turned to a de novo review of the record.

Based on its de novo review, the court of appeal determined the School Board breached its contract with plaintiff by assigning the new routes without regard to plaintiffs seniority. The court also found plaintiff had a claim for detrimental reliance based on the School Board’s failure to adjust the routes despite assurances the new routes were “not set in stone.”

In reviewing damages, the court of appeal found the district court erred in concluding plaintiffs exclusive remedy for any work-related injury was in workers’ compensation. The court of appeal reasoned that while plaintiffs tort damages (which had already been held to be prescribed) were barred by the exclusivity provision of the workers’ compensation law, his contractual and detrimental reliance | ^claims were outside of the scope of workers’ compensation. Therefore, finding legal error in the district court’s conclusions, the court of appeal turned to a de novo review of damages.

The court of appeal rejected plaintiffs claim for non-pecuniary damages, finding the employer-employee contract between the School board and plaintiff was not intended to gratify a non-pecuniary interest for purposes of La. Civ. Code art. 1998. However, the court of appeal determined the School Board’s breach of the contract was in bad faith and it was therefore liable for all damages, foreseeable or not, that are a direct consequence of its failure to perform pursuant to La. Civ. Code art. 1997. Accordingly, the court found the School Board was liable to plaintiff for the acceleration of his episodes of anxiety and depression caused by its actions. The court set the amount of this damage at $75,000.

Upon the School Board’s application, we granted certiorari. The primary issue which prompted our grant of certiorari was the court of appeal’s determination that the School Board acted in bad faith in failing to give effect to plaintiffs seniority rights.

DISCUSSION

Plaintiffs action is premised on the School Board’s violation of his rights under La. R.S. 17:493.1, which provides, in pertinent part:

A. (l)(a) Whenever a school bus operator is needed to drive a new route or a route vacated by a previous operator, the school bus operator who is tenured and has acquired the greatest seniority shall be offered the opportunity to and may change from driving his route to the vacant route before another operator is selected, [emphasis added].

Nothing in this statute expressly states a cause of action for violation of a driver’s tenure rights. However, the jurisprudence has recognized tenure laws are 16read into and form a part of the tenured employee’s contract with his or her employer. For example, in Pizzolato v. State Through Bd. of Elementary and Secondary Educ., 452 So.2d 264, 268 (La. App. 1 Cir.1984), the court of appeal explained the provisions of teacher tenure laws are read into employment contracts:

Secondly, the provisions of the Teacher Tenure Law are read into any such contracts and form a part thereof. See State ex rel. Nobles v. Bienville Parish School Board, 198 La. 688, 4 So.2d 649 (1941). To hold that the defendant could escape the provisions of the Tenure Law by contracting for a reduction in compensation at a future time would render the Teacher Tenure Law meaningless and permit the demotion of teachers in derogation of the provisions of that statr ute.

In the instant case, it is undisputed plaintiff had attained a tenured position. Additionally, the evidence clearly indicates the School Board did not take plaintiffs seniority into account when it reassigned the bus routes. Therefore, we agree with the court of appeal that the School Board breached its implied contractual obligations.

We now turn to consideration of whether the School Board’s breach was in bad faith, thereby making it liable “for all the damages, foreseeable or not, that are a direct consequence of [its] failure to perform.” La. Civ. Code art. 1997.

Official revision comment (b) to La. Civ. Code art. 1997 indicates “[a]n obligor is in bad faith if he intentionally and maliciously fails to perform his obligations.” The jurisprudence has consistently held that bad faith as used in the context of La. Civ. Code art. 1997 “generally implies actual or constructive fraud or a refusal to fulfill contractual obligations, not an honest mistake as to actual rights or duties.” Dorsett v. Johnson, 34,500 at p. 5 (La. App. 2 Cir. 5/9/01), 786 So.2d 897, writ denied, 01-1706 (La. 9/28/01), 798 So.2d 115. See also Delaney v. Whitney Nat’l Bank, 96-2144 (La. App. 4th Cir. 11/12/97), 703 So.2d 709, writ denied, 98-0123 (La. 3/20/98), 715 So.2d 1211; Adams v. First Nat’l Bank of Commerce, 93-2346, 94-0486 La.App. 4 Cir. 9/29/94), 644 So.2d 219, writ denied, 94-3053 (La. 2/3/95), 649 So.2d 411.

Courts have recognized bad faith is “more than mere bad judgment or negligence; it implies the conscious doing of a wrong for dishonest or morally questionable motives.” Benton v. Clay, 48,245 at p. 8 (La. App. 2 Cir. 8/7/13), 123 So.3d 212, 219. See also Bond v. Broadway, 607 So.2d 865 (La. App. 2d Cir.1992), writ denied, 612 So.2d 88 (La.1993); Weysham v. Harney, 518 So.2d 1059 (La.App, 4th Cir.1987), writ denied, 521 So.2d 1172 (La.1988).

In the instant case, the motivating factor advanced by the School Board for changing the routes was the increased cost of diesel fuel. Herbert Thibodeaux, the bus manager for the School Board, testified he was asked to formulate a plan to reduce the costs of fuel. To do so, he tried to reduce “dead miles,” which are the distance a bus driver travels between his last passenger drop off and the location where the driver parks his or her bus. He testified that in making the new assignments, he did not take the driver’s seniority into account, explaining seniority would only be considered if it was “feasible.” Mr. Thibo-deaux’s testimony was generally supported by Ann Thomassee, another bus driver and a member of the committee that redrew the routes. Both Mr. Thibodeaux and Ms. Thomassee indicated plaintiff was invited to participate in the process of redrawing the routes, but declined to do so.

This evidence indicates the School Board’s decision to redraw the routes was based on the legitimate goal of saving money on fuel costs by making the bus routes more efficient. While it might be debated whether the School Board actually achieved this objective, we conclude the evidence establishes the School Board’s decision to ignore drivers’ seniority in assigning routes was at most a product of negligence or bad judgment. Nothing in the record indicates the School Board’s decision arose from conscious desire to cause harm to plaintiff, nor was it based on lsany dishonest or morally questionable motives.

Because we find the School Board did not breach its contract with plaintiff in bad faith, there is no basis for court of appeal’s award of contractual damages of $75,000 to plaintiff for the acceleration of his episodes of anxiety and depression. Accordingly, this portion of the court of appeal’s judgment must be reversed.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed insofar as it renders judgment in favor of Gerald Castille against the St. Martin Parish School Board in the additional amount of $75,000. In all other respects, the judgment of the court of appeal is affirmed.

JOHNSON, Chief Justice, dissents in part and assigns reasons.

HUGHES, Justice, dissents for the reasons assigned by Chief Justice Johnson.

GENOVESE, Justice, dissents.

JOHNSON, Chief Justice,

dissents in part and assigns reasons.

hi respectfully dissent from the majority’s decision to reverse the award of damages to Mr. Castille. While the majority correctly determines that the School Board breached its contractual obligations to Mr. Castille, the majority errs in finding this breach was not in bad faith.

La. R.S. 17:493.1 provides that “whenever a school bus operator is needed to drive a new route or a route vacated by a previous operator, the school bus operator who is tenured and has acquired the greatest seniority shall be offered the opportunity to and may change from driving his route to the vacant route before another operator is selected.” Despite this mandatory provision, the School Board made a purposeful decision not to take driver’s seniority into account, unless it was “feasible.” The majority find this decision was “at most a product of negligence or bad judgment,” noting the School Board’s decision to redraw the routes was “based on the legitimate goal of saving money on fuel costs by making the bus routes more efficient.” However, in my view, the clear language of this statute does not allow for noncompliance simply because that noncompliance, is based, an alleged noble purpose, such as saving money. As aptly noted by the court of appeal:

The School Board rejected Mr. Castille’s tenure and seniority rights in the face of statutory authority, its own local rules, and its well-established School Board policy. In fact, after its venture into ignoring school bus drivers’ tenure and seniority rights in assigning routes, the School Board reverted to. its previous policy of filling vacant and' new routes pursuant to tenure and seniority. When Mr., Castille’ attempted to exert his rights, he was told to cease complaining or face disciplinary action. Despite all of the professed good reasoning for taking this action, it was not. an honest mistake. It was a specific refusal by the School Board to fulfill its contractual obligations. If one were to consider the fact that ignoring tenure and seniority rights allowed the Transportation Committee to favor a less-senior.driver over a more-senior driver by the simple act of placing the route’s beginning point closer to the less-senior driver’s home, its action in that regard constituted a nonfulfillment of an obligation for sinister or morally-questionable motives. To reach any other conclusion would render the school bus drivers’ tenure and seniority rights of no moment. A school board could act toward a tenured employee in any way it wished, and the only penalty would be the payment of salary and benefits. If the tenured employee was to continue working, as most would have to do, a school board would be able to violate the law with impunity. This case is a prime example of. that very situation.

Castille v. St. Martin Parish School Bd., 15-997 (La.App. 3 Cir. 4/27/16), 190 So.3d 1225 1238-39.

It is undisputed that Mr. Castille had attained a tenured position and the School Board did not take his seniority into account when it reassigned the bus routes, despite the mandate of the statute. Further, it is undisputed the School purposefully chose to ignore the statute for the stated purpose of saving money on diesel fuel. I agree with the court of appeal that the School Board’s action in breaching its contractual obligation was not simply an honest mistake. The School Board intentionally and willfully rejected the requirement imposed by the statute. Thus, I find the School Board’s intentional and deliberate breach of contract to be in bad faith. For these reasons, I would affirm the court of appeal’s award of $75,000 in damages to Mr. Castille for breach of contract.

Hughes, J., dissents for the reasons assigned by Johnson,' C.J.

      . The School Board’s bus supervisor, Hebert Thibodeaux, later testified that "dead miles” are the distance a bus driver travels between his last passenger drop off and the location where the driver parks his or her bus. In other words, these were the miles a bus driver drives without a child on the bus.

      . Plaintiff admitted he was paid for a five-hour work day on the newly-assigned route, but only worked three hours.

      . Plaintiff first began to experience panic attacks in 1987, while driving the Highway 31 Route. He was diagnosed as suffering from anxiety and depression. Plaintiff underwent medical treatment and claims his condition did not affect his work in any way until his route was changed.

      . La. R.S. 17:493.1 provides, in pertinent part:
      A. (l)(a) Whenever a school bus operator is needed to drive a new route or a route vacated by a previous operator, the school bus operator who is tenured and has acquired the greatest seniority shall be offered the opportunity to and may change from driving his route to the vacant route before another operator is selected.
      (b)If the tenured bus operator with the greatest seniority chooses not to change to the vacant route, the route shall then be offered in order of seniority to a school bus operator who has acquired tenure.
      (c) If no tenured operator chooses to change. to the vacant route, the route shall then be offered to a full-time probationary bus operator.
      (d) If no regular bus operator, tenured or probationary, chooses to change to the vacant route, then a substitute bus operator shall be selected for the position from a list of approved substitute school bus operators.

      .Plaintiff also alleged a cause of action in tort. Prior to trial, the School Board filed an exception of prescription as to plaintiff’s tort claims. The district court maintained this exception, and this judgment is now final.