                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #021


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 8th day of May, 2019, are as follows:



PER CURIAM:


2018-K-0780       STATE OF LOUISIANA v. RANDY LEE TURNER (Parish of Terrebonne)

                  We granted the State’s application to resolve this disagreement
                  as to whether the crime of aggravated flight from an officer
                  requires proof that a defendant committed two different acts from
                  among those enumerated in La.R.S. 14:108.1(D), or whether proof
                  of the repeated commission of one of those enumerated acts
                  suffices. We find no real uncertainty in the meaning of “at least
                  two of the following acts” in La.R.S. 14:108.1(D). Instead, we
                  find that this language in its context plainly encompasses the
                  commission of one of the acts enumerated in that provision more
                  than once. Therefore, the district court did not err in
                  instructing the jury. Accordingly, we reverse the court of appeal
                  and reinstate defendant’s conviction and sentence. REVERSED

                  Retired Judge Marion Edwards appointed Justice ad hoc, sitting
                  for Justice Weimer, recused.

                  JOHNSON, C.J., dissents and assigns reasons.
05/08/19


                           SUPREME COURT OF LOUISIANA


                                        No. 2018-K-0780

                                  STATE OF LOUISIANA

                                            VERSUS

                                   RANDY LEE TURNER


           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                FIRST CIRCUIT, PARISH OF TERREBONNE



PER CURIAM *

         Defendant was found guilty as charged of aggravated flight from an officer,

La. R.S. 14:108.1. He was adjudicated a habitual offender based on the

commission of seven predicate felonies and sentenced to 40 years imprisonment at

hard labor. The court of appeal reversed the conviction and sentence. State v.

Turner, 17-1648 (La. App. 1 Cir. 4/11/18) (unpub’d). A majority of the panel

found the district court erred in instructing the jury, and in allowing the State to

argue, that the jury could find human life was endangered if the defendant

committed one of the acts enumerated in La. R.S. 14:108.1(D) more than once. See

Turner, 17-1648, p. 12 (“[U]nder the principle of lenity, we must interpret

Louisiana Revised Statutes 14:108.1(D) in the manner favorable to the defendant.

Accordingly, we find that the district court erred in granting the State’s motion and

in instructing the jury that it was sufficient to have a repeated enumerated act.”).

Judge Theriot, dissenting, disagreed with the majority’s interpretation of the

statute:


*
    Retired Judge Marion Edwards appointed as Justice ad hoc, sitting for Weimer, J., recused
      Allowing a defendant to commit any of the enumerated acts more than
      once without being deemed to have endangered human life would not
      serve the purpose of La. R.S. 108.1. The statute lists six acts; the
      violation of two of these acts would constitute circumstances wherein
      human life is endangered. La. R.S. 108.1(D)(1) considers an offender
      leaving the roadway or forcing another vehicle to leave the roadway.
      The legislature used the singular form of “vehicle” rather than its
      plural. Thus, it appears that forcing one vehicle from the roadway
      constitutes one “act” under the statute, and forcing a second vehicle
      off the roadway would constitute an additional “act.” Similarly,
      failing to obey a single stop sign or yield sign constitutes one “act,”
      but an offender who fails to obey multiple stop signs has committed
      multiple “acts” under the statute.

Turner, 17-1648, p. 2 (Theriot, J., dissenting). We granted the State’s application

to resolve this disagreement as to whether the crime of aggravated flight from an

officer requires proof that a defendant committed two different acts from among

those enumerated in La.R.S. 14:108.1(D), or whether proof of the repeated

commission of one of those enumerated acts suffices.

      The question presented is one of statutory interpretation, which begins “as

[it] must, with the language of the statute.” Bailey v. United States, 516 U.S. 137,

143, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). “Unequivocal provisions are not

subject to judicial construction and should be applied by giving words their

generally understood meaning.” State v. Oliphant, 12-1176, p. 5 (La. 3/19/13), 113

So.3d 165, 168; see also Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54,

112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (“In any event, canons of

construction are no more than rules of thumb to help courts determine the meaning

of legislation, and in interpreting a statute a court should always turn first to one,

cardinal canon before all others. We have stated time and again that courts must

presume that a legislature says in a statute what it means and means in a statute

what it says there. When the words of a statute are unambiguous, then, this first

canon is also the last: ‘judicial inquiry is complete.’” (citations omitted)).

      Aggravated flight from an officer is defined as follows:

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      Aggravated flight from an officer is the intentional refusal of a driver
      to bring a vehicle to a stop or of an operator to bring a watercraft to a
      stop, under circumstances wherein human life is endangered, knowing
      that he has been given a visual and audible signal to stop by a police
      officer when the officer has reasonable grounds to believe that the
      driver or operator has committed an offense. The signal shall be given
      by an emergency light and a siren on a vehicle marked as a police
      vehicle or marked police watercraft.

La. R.S. 14:108.1(C). In addition, the statute defines circumstances wherein human

life is endangered as follows:

      Circumstances wherein human life is endangered shall be any
      situation where the operator of the fleeing vehicle or watercraft
      commits at least two of the following acts:

      (1) Leaves the roadway or forces another vehicle to leave the
      roadway.

      (2) Collides with another vehicle or watercraft.

      (3) Exceeds the posted speed limit by at least twenty-five miles per
      hour.

      (4) Travels against the flow of traffic or in the case of watercraft,
      operates the watercraft in a careless manner in violation of R.S.
      34:851.4 or in a reckless manner in violation of R.S. 14:99.

      (5) Fails to obey a stop sign or a yield sign.

      (6) Fails to obey a traffic control signal device.

La. R.S. 14:108.1(D). This court has described Section D as providing “a specific

and seemingly exclusive definition of the aggravating factors which elevate the

crime from a misdemeanor to a felony. State v. Williams, 07-0931 (La. 2/26/08)

(per curiam), 978 So.2d 895.

      The principle of lenity “directs that a court construe a criminal statute in

favor of the most narrow application when there are serious doubts concerning a

meaning of a term.” State v. Ritchie, 590 So.2d 1139, 1149 n.6 (La. 1991); State v.

Boowell, 406 So.2d 213, 216 (La. 1981). Defendant here invokes lenity to argue

that any doubt as to whether the statute requires commission of two different types


                                          3
of acts, or the repeated commission of a single act, should be resolved in his favor.

However, the mere possibility of articulating a narrower construction does not by

itself make the rule of lenity applicable. Instead, that venerable rule is reserved for

cases where, “[a]fter ‘seiz[ing] every thing from which aid can be derived,’” the

court is “left with an ambiguous statute.” United States v. Bass, 404 U.S. 336, 347,

92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (quoting United States v. Fisher, 2

Cranch 358, 386, 2 L.Ed. 304 (1805)).

      “The general rule that ambiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity applies when the court is uncertain about the

statute’s meaning and is ‘not to be used in complete disregard of the purpose of the

legislature.’” State v. Brown, 03-2788, pp. 5–6 (La.7/6/04), 879 So.2d 1270, 1280

(quoting Perrin v. United States, 444 U.S. 37, 49 n.13, 100 S.Ct. 311, 317, 62

L.Ed.2d 199 (1979)). A court should not “blindly incant the rule of lenity to

‘destroy the spirit and force of the law which the legislature intended to and did

enact.’” Huddleston v. United States, 415 U.S. 814, 832, 94 S.Ct. 1262, 1272, 39

L.Ed.2d 782 (1974) (quoting American Tobacco Co. v. Werckmeister, 207 U.S.

284, 293, 28 S.Ct. 72, 52 L.Ed. 208 (1907)). In the present case, although

defendant has articulated a narrower construction, we find that the statute is

unambiguous, and therefore the rule of lenity does not apply.

      Defendant argues that “at least two of the following,” as it is commonly

used, denotes two different acts. In the context of the statute here, however, in

which the legislature provides aggravating acts that, when committed more than

once, can elevate the grade of the offense, there is no reason to interpret “at least

two of the following” as including the performance of different acts while

excluding the repeated performance of the same act. A dangerous act repeated may

be no less dangerous than a variety of dangerous acts. Therefore, we will not

                                          4
blindly incant the rule of lenity to unreasonably constrain the force of the law that

the legislature enacted.

      We find no real uncertainty in the meaning of “at least two of the following

acts” in La.R.S. 14:108.1(D). Instead, we find that this language in its context

plainly encompasses the commission of one of the acts enumerated in that

provision more than once. Therefore, the district court did not err in instructing the

jury. Accordingly, we reverse the court of appeal and reinstate defendant’s

conviction and sentence.

REVERSED




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05/08/19



                      SUPREME COURT OF LOUISIANA

                                  No. 2018-K-0780

                             STATE OF LOUISIANA

                                      VERSUS

                             RANDY LEE TURNER

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIRST CIRCUIT, PARISH OF TERREBONNE

JOHNSON, Chief Justice, dissents and assigns reasons.

      Defendant was convicted of aggravated flight from an officer, which is

defined as “the intentional refusal of a driver to bring a vehicle to a stop ... under

circumstances wherein human life is endangered, knowing that he has been given

a visual and audible signal to stop by a police officer[.]” La. R.S. 14:108.1(C)

(emphasis added). Subsection D of the statute defines circumstances wherein

human life is endangered by outlining an exclusive list of acts committed by the

driver, two of which are required to find human life is endangered:

      Circumstances wherein human life is endangered shall be any situation
      where the operator of the fleeing vehicle or watercraft commits at least
      two of the following acts:

      (1) Leaves the roadway or forces another vehicle to leave the roadway.

      (2) Collides with another vehicle or watercraft.

      (3) Exceeds the posted speed limit by at least twenty-five miles per
      hour.

      (4) Travels against the flow of traffic[.]

      (5) Fails to obey a stop sign or a yield sign.

      (6) Fails to obey a traffic control signal device.

La. R.S. 14:108.1(D). In this case, it is undisputed that defendant did not commit

separate enumerated acts. Instead, defendant was convicted because the state
                                           1
argued, and the district court instructed the jury, that it was sufficient if defendant

committed one of the enumerated acts twice. I agree with the court of appeal that the

district court erred in this regard and therefore defendant’s conviction was properly

reversed.

      Louisiana criminal statutes must be “given a genuine construction, according

to the fair import of their words, taken in their usual sense, in connection with the

context, and with reference to the purpose of the provision.” La. R.S. 14:3; State v.

Muschkat, 96-2922 (La. 3/4/98), 706 So. 2d 429, 432. In my view, a natural reading

of the statute suggests that the language “at least two of the following acts” means

two of the separate, enumerated acts within subsection D must to be committed.

Although this court has not previously addressed this issue directly, our opinion in

State v. Williams, 07-0931 (La. 2/26/08), 978 So. 2d 895, supports the position that

two separate enumerated acts are required. In Williams, the defendant was charged

in the 24th Judicial District Court with aggravated flight from an officer, and charged

in the Second Parish Court, Jefferson Parish, with a variety of traffic offenses arising

from the same incident. Defendant filed a Motion to Quash the pending prosecution

for aggravated flight asserting a double jeopardy argument on the grounds that he

would be subjected to trial for the same conduct for which he had been previously

convicted in the Second Parish Court. The district court denied the motion, and

defendant entered a plea of guilty while reserving his right to appeal the adverse

ruling. On review, the court of appeal conceded that the police report supported a

finding that the defendant had forced several vehicles off the road, but found that the

state could not satisfy the statute’s requirement of “at least” two aggravating acts

without violating double jeopardy protections, as defendant had already been

convicted for the underlying conduct of speeding. State v. Williams, 06-1898 (La.

App. 5 Cir. 2/27/07)(unpub’d). This court reinstated defendant’s conviction and

                                           2
sentence, observing that the police report contained information indicating that the

defendant had backed away from officers and nearly collided with a patrol unit,

thereby traveling against the flow of traffic in violation of La. R.S. 14:108.1(D)(4),

and forced other vehicles off the road in violation of La. R.S. 14:108.1(D)(1). State

v. Williams, 07-0931 (La. 2/26/08), 978 So. 2d 895. By finding that the police report

contained information supporting the violation of two separate acts (namely

traveling against the flow of traffic and forcing other vehicles off the roadway) as

opposed to addressing it in the context of forcing multiple vehicles off the roadway

(i.e. “at least two”), this court’s opinion in Williams supports a finding that two

separate enumerated acts are required.

      Moreover, contrary to the majority, I find the principle of lenity should apply

here. The principle of lenity “directs that a court construe a criminal statute in favor

of the most narrow application when there are serious doubts concerning a meaning

of a term.” State v. Ritchie, 590 So. 2d 1139, 1149 n.6 (La. 1991); State v. Boowell,

406 So. 2d 213, 216 (La. 1981). Indeed, criminal statutes are strictly and narrowly

construed with any ambiguity resolved in favor of the accused. State v. Carr, 99-

2209 (La. 5/26/00), 761 So. 2d 1271, 1274 (citing State v. Becnel, 93-2536 (La.

5/31/96), 674 So. 2d 959, 960); State v. Piazza, 596 So. 2d 817, 820 (La. 1992).

Thus, even if the meaning of the language in La. R.S. 14:108.1(D) is deemed unclear

or ambiguous, this court should apply a narrow application in favor of the defendant.

      For these reasons, I must respectfully dissent.




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