Opinion
No. 2015–KK–1193.
10-30-2015
STATE of Louisiana v. Bobby JAMES.
Opinion
[ 1] Writ denied.
JOHNSON, C.J., would grant and assigns reasons.
Defendant was indicted for second degree murder and armed robbery on April 8, 2013. On October 10, 2014, he filed a motion for speedy trial. In accordance with La.C.Cr.P. art. 702(D), the state had until February 9, 2015, to commence trial or the defendant would be released without bail. The defendant appeared on that date and announced he was ready for trial. However, the state indicated that its witnesses, who were law enforcement officers, had not been subpoenaed because of a problem with the court's electronic notification system. Therefore, the state sought a continuance. The defendant objected and noted that the state could have eschewed the electronic system and instead requested the court to issue instanter subpoenas. The trial court agreed but granted the state a one-day continuance. The next day, the state again asked for a continuance on the basis of the malfunctioning electronic system. Notably, the defense witnesses were present after being issued instanter subpoenas.
The trial court denied the state's request for another continuance on February 10, 2015, so the state, as is unfortunately customary in Orleans Parish, afforded itself a continuance by entering an order of nolle prosequi, and re-indicting defendant two days later. This perennial practice of the Orleans Parish District Attorney has been the subject of many writ applications to this Court. In State v. Love, 00–3347 (La.5/23/03), 847 So.2d 1198, this Court considered [ 2] whether a defendant's constitutional right to a speedy trial was violated after the state used its authority under La.C.Cr.P. arts. 691 and 693 to quash and reinstitute proceedings because the state's witness was unavailable. This Court applied the factors outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to find defendant in Love was not denied his constitutional right to a speedy trial. Specifically, this Court found the 22–month delay in that case was presumptively prejudicial but the delay was prompted by legitimate reasons, defendant never asserted his right to a speedy trial, and defendant failed to show that he suffered sufficient prejudice to merit quashing the prosecution.
The court revisited the issue in State v. Batiste, 05–1571 (La.10/17/06), 939 So.2d 1245. This Court stated that it granted the application in Batiste “intend[ing] to look at the court's inherent power to manage its docket, see La.C.Cr.P. art. 17, along with the district attorney's right to control the criminal prosecutions instituted in his district, see La.C.Cr.P. art. 61.” Batiste, 05–1571, pp. 4–5, 939 So.2d at 1249. This Court found, however, “that we need not reach this issue because there was a legitimate reason for the State to enter the nolle prosequi that was not based upon a struggle between the powers of the court and the prosecution or for the purpose of avoiding the time limitation for commencement of trial established by Article 578.” Id., 05–1571, p. 5, 939 So.2d at 1249. This Court also applied the Barker v. Wingo factors and found the defendant in Batiste was not denied his constitutional right to a speedy trial.
The only check on the prosecutor's authority under current jurisprudence is to grant the motion to quash, a drastic remedy this Court has understandably been reluctant to see used. See, e.g., State v. Bell, 13–0117 (La.9/27/13), 122 So.3d 1007 (per curiam) (reversing trial court's grant of motion to quash).
The trial court in the present case declined to quash the prosecution on March 6, 2015. Instead, in accordance with La.C.Cr.P. art. 701(D)(2), the trial [ 3] court ordered that defendant be released without bail. As to defendant's speedy trial motion, defendant received the remedy to which he was statutorily entitled, i.e. release without bail. It is true that the trial court order denying the motion to quash grants the defendant's release under La.C.Cr.P. art. 701, but that appears to be an empty remedy in this case since the State requested the bond on a pending simple criminal damage to property charge be increased, based on the existence of the reinstituted second degree murder charge, to a sum defendant could not afford. Defendant therefore was re-incarcerated.
While a harsh remedy, because of the abuses in this case, I would grant the motion to quash.
WEIMER, J., dissenting.
[ 1] Disappointingly, the State's tactic in this judicial district of dismissal and then re-indictment has continued since concern was expressed over a decade ago. See State v. Love, 00–3347 (La.5/23/03), 847 So.2d 1198, 1213–16 (Weimer, J., concurring in part and dissenting in part).
Colloquially known as “the State granting itself a continuance” through a
I would grant and docket to address the continued use of this tactic.
HUGHES, J., concurs.
I concur in the denial of the writ, noting that defendant received appropriate relief when the trial court removed his bond obligation pursuant to Code of Criminal Procedure article 701(D).
CRICHTON, J., would grant and assigns reasons.
I would grant this application to consider the merits of the defendant's case. While I respect the discretionary authority of the district attorney to dismiss and reinstitute indictments (La.C.Cr.P.arts.61, 576, 691), I do not condone its abuse or its persistent and unabated use in Orleans Parish. Under certain circumstances, the dismissal and reinstitution of an indictment has the effect of circumventing a trial court's ruling denying the district attorney a continuance. This, in turn, interferes with the trial court's inherent authority to control its docket (La.C.Cr.P. art. 17), and renders meaningless a trial court's decision to deny a continuance. The district attorney's authority to dismiss and reinstitute indictments is therefore in tension with the district court's inherent authority over the docket, and I would grant and docket this case to address this tension. See State v. Love, 00–3347 (La.5/23/03), 847 So.2d 1198.
nolle prosequi.