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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 38 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinion handed down on the 3rd day of June, 2008, is as follows:

BY VICTORY, J.: 2007-K- 1052 STATE OF LOUISIANA v. ELLERY C. JONES (Parish of Plaquemines)(Attempted Obstruction of Justice) For the reasons stated herein, the judgment of the court of appeal is affirmed. AFFIRMED. CALOGERO, C.J., dissents and assigns reasons. JOHNSON, J., dissents.

03/06/08

SUPREME COURT OF LOUISIANA
No. 07-K-1052 STATE OF LOUISIANA VERSUS ELLERY C. JONES ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF PLAQUEMINES 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,
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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

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The record reveals that defendant was on probation for Distribution of Cocaine.

La. C.Cr.P. art. 821(B) provides: "A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty." 2

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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

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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.

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"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
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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 Justice in American Criminal Law, 65 La. L. Rev. 49, 51-52 (2004). However, other state courts are virtually unanimous in concluding that where a defendant merely drops, throws down, or abandons drugs in the presence of police officers, this conduct does not constitute evidence tampering or obstruction of justice. See e.g., In re Juvenile, 151 N.H. 14, 846 A.2d 1207 (4/30/04) (throwing cigarettes to ground in presence of police officer does not constitute evidence tampering because the minor defendant did nothing to alter, destroy, or prevent the evidence's availability to the police); In re M.F., 315 Ill. App.3d 641, 734 N.E.2d 171 (Ill. App. 2 Dist. 8/2/00) (throwing drugs off a roof top in presence of police officer does not constitute "concealment" sufficient to support obstruction of justice charge); Com. v. Delgado, 544 Pa. 591, 679 A.2d 223 (1996) (throwing down drugs while being chased on foot by police did not constitute the destruction or concealment of evidence as contemplated by obstruction statute); State v. Fuqua, 303 N.J.Super.40, 696 A.2d 44 (N.J. Super. A.D. 1997) (hiding cocaine in socks before being searched by police did not constitute obstruction because, in order to avoid prohibition against self-incrimination, the obstruction statute was "sensibly construed to refer to evidence of a completed criminal act, not a current possessory crime"); State v. Sharpless, 314 N.J.Super. 440, 715 A.2d 333 (N.J. Super. A.D. 1998) (person who possesses drugs may not be found guilty of tampering with evidence simply because he discards or hides the drugs upon the approach of a police officer); State v. Patton, 898 S.W.2d 732 (Tenn. Crim. App. 1994) (affirming dismissal of indictment charging defendant with evidence tampering that alleged the defendant tossed aside a bag of marijuana while being pursued by police officers); Hollingsworth v. State, 15 S.W.3d 586 (Tex. App.-Austin 2000) (reversing defendant's conviction of evidence tampering when the
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defendant, who was carrying cocaine in his mouth and spit it out, exposed it to the view of the police); Boice v. State, 560 So.2d 1383 (Fla. App. 2. Dist. 1990) (defendant's tossing bag of crack cocaine away from his person while in presence of arresting officers amounted merely to abandoning the evidence and was not concealment sufficient to support conviction for evidence tampering); People v. Vargas, 179 Misc. 2d 236, 684 N.Y.S.2d 848, 849 (N.Y. City Crim. Ct. 1998) (throwing a marijuana cigarette down a sewer in presence of police officer insufficient to support conviction); People v. Simon, 145 Misc. 2d 518, 547 N.Y.S.2d 199 (N.Y. City Crim. Ct. 1989) (breaking a glass pipe containing cocaine in presence of police officer insufficient to support conviction); Vigue v. State, 987 P.2d 204 (Alaska App. 1999) (dropping crack cocaine to ground in presence of police officer did not constitute "suppression, concealment, or removal" of the evidence sufficient to support obstruction conviction). It has only been in cases where the defendant did something to impair the evidence's integrity, veracity, or availability at trial that courts have found defendants guilty of obstruction of justice. People v. Brake, 336 Ill. App. 464, 783 N.E.2d 1084, 1086-87 (Ill. App. 2 Dist. 2003) (swallowing drugs sufficient to support conviction); State v. Mendez, 345 N.J.Super. 498, 785 A.2d 945 (N.J. Super. A.D. 2001) (holding plastic bag containing cocaine out the window of a moving car constituted obstruction of justice because it caused the evidence to become unavailable as evidence); Com. v. Morales, 477 Pa. Super. 491, 669 A.2d 1003 (Pa. Super. 1996) (swallowing contraband while being apprehended by police constituted obstruction of justice); State v. Jennings, 666 So. 2d 131 (Fla. 1995) (swallowing rocks of cocaine in presence of police, which rocks were never recovered, constituted obstruction of justice); Com. v. Govens, 429 Pa. Super. 464, 632 A.2d 1316 (Pa. Super. 1993) (flushing drugs down toilet while police knocked at door constituted

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obstruction of justice).3 However, the jurisprudence from these state courts deals with the particular wording of their obstruction laws. These laws, most based on the Model Penal Code, generally criminalize the "concealment," "suppression," or "removal" of evidence, done with an intent to impair its veracity or availability in a criminal investigation or proceeding. However, the Louisiana statute is broader, as it includes within the definition of "tampering with evidence" the "intentional alteration, movement, removal, or addition" of any object or substance "at the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation." The term "movement" goes beyond anything proscribed by other states' laws as it does not necessarily connote an action that will impair an object's veracity or availability at trial. In fact, in this case, the "movement" actually enhanced the state's ability to use the evidence at trial. Thus, it is in light of this seeming incongruity that we must interpret this statute. The rule of statutory construction of criminal statutes is as follows:
Under federal law, Congress has proscribed a variety of obstruction of justice offenses in 18 U.S.C.

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