State v. Gladden
| Decision Date | 17 January 1972 |
| Docket Number | No. 51156,51156 |
| Citation | 260 La. 735,257 So.2d 388 |
| Parties | STATE of Louisiana v. Paul B. GLADDEN. |
| Court | Louisiana Supreme Court |
Barry F. Viosca, Allen C. Hope, Jr., Robert F. Fleming, Jr., New Orleans, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
By a bill of information filed on March 13, 1968 appellant was charged with the sale of a narcotic drug on November 3, 1967. La.R.S. 40:962. He was convicted and sentenced to serve twenty years at hard labor in the State Penitentiary. On this appeal he relies upon seven bills of exceptions for reversal of his conviction and sentence.
On January 28, 1970, prior to trial on February 26, 1970, appellant filed a motion to quash, alleging that he had been denied a speedy trial contrary to the Sixth and Fourteenth Amendments of the United States Constitution and in contravention of Article I, Section 9, of the Louisiana Constitution. After a hearing the motion was denied, and this bill of exceptions was reserved. In his per curiam to this bill, the trial judge explained that the prosecution was instituted on March 13, 1968, and defendant's trial began on February 26, 1970, within the two-year period allowed for the commencement of prosecutions by Article 578 of the Code of Criminal Procedure, viz.:
Except as otherwise provided in this Chapter, no trial shall be commenced:
(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.
The offense charged shall determine the applicable limitation. (Emphasis added.)
Clearly, under the circumstances of this case and the time allowed for commencing trial by the terms of Article 578 of the Code of Criminal Procedure, this trial was timely commenced within the two-year limitation prescribed for this offense. The time limitation does not commence, as defendant contends, from the date of incarceration. Instead, the two-year time limitation under this article is to be measured from the 'date of institution of prosecution,' which is the date when the indictment is returned or the bill of information is filed.
On the other hand, Article 572 of the Code fixes the maximum time within which a person may be prosecuted, tried or punished for this crime at six years. Since this crime was committed on November 3, 1967, this trial was also timely under Article 572.
The basis for the trial judge's ruling, however, does not necessarily answer the contention that the accused was denied his constitutional right to a speedy trial.
The right to a speedy trial is a fundamental right under both the Federal and State Constitutions. It is a right with its roots in the very foundations of America's English law heritage. Evidence of the early recognition of this right to speedy justice is found in the Assizes of Clarendon (1166). The principle is enunciated in Magna Carta (1215) in these words: 'We will sell to no man, we will not deny or defer to any man either justice or right.' Sir Edward Coke wrote about the right in his Institutes. Coke's work was a basic study of every colonial lawyer in America. The history of the right to a speedy trial, and its reception in this country, mark it as one of our basic constitutional rights, preserved in the constitutions of all the States and of the Nation. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
The constitutional right to a speedy trial has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American system: (1) to prevent undue and oppressive incarceration prior to trial; (2) to minimize anxiety and concern accompanying public accusation; and (3) to limit the possibilities that long delay will impair the ability of the accused to defend himself. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
This right cannot be infringed by legislative enactments granting prolonged and unnecessary delays for the institution of prosecution or for the commencement of trial. U.S.Const. Amend. 6; La.Const. art. 1, §§ 6 & 9; La.Code Crim.Proc. art. 701. However, enactments fixing time limitation for prosecutions to serve to establish legislative recognition of the time that body has in all probability found to be reasonable delays for prosecutions. La.Code Crim.Proc. Ch. 1 of Title XVII.
In State v. Frith, 194 La. 508, 194 So. 1 (1940), this Court recognized that a speedy trial is one conducted according to fixed rules, regulations and proceedings at law, free from vexations, capricious, and oppressive delay. In meeting these requirements the law does not exact impossibilities, or extra ordinary efforts, diligence, or exertion from the courts, or the representatives of the State; nor may the right to a speedy trial operate to deprive the State of a reasonable opportunity of fairly prosecuting criminals.
From this record we learn that Gladden sold narcotics on the morning of November 3, 1967. According to the representation in the bill of exceptions, he was incarcerated in the Parish Prison (the Federal tier) on January 15, 1968. A bill of information was filed against Gladden on March 13, 1968. The bill of exceptions also represents that Gladden made a letter request on August 22, 1968 for a fair and speedy trial. There is, however, no attachment to support this allegation.
On September 13, 1968 Gladden was arraigned on six charges to which he pleaded Gladden was taken into custody by Federal Gladden was taken into dustody by Federal authorities for violation of parole under a prior Federal conviction. A writ of habeas corpus ad prosequendum was issued to the U. S. Marshal on January 6, 1969 to produce Gladden in court for trial on January 15, 1969. On January 10, 1969 Gladden's counsel withdrew. When the case was called for trial on January 15, 1969, Gladden was without counsel and it was necessary for the court to refix the case for trial and appoint counsel to represent the defendant.
On February 10, 1969, when the case was again set for trial, Gladden's counsel moved for and obtained a continuance. Fifteen days were granted for filing pleas, and Gladden was again remanded to the U. S. Marshal.
In March 1969 the State obtained a writ of habeas corpus ad prosequendum issued to the United States Marchal in New Orleans directing the production of Gladden in court on March 14, 1969. On March 13, 1969 the case was again refixed 'due to absence of the defendant who is presently held by the federal authorities,' the Federal Marshal informing the court that he was unable to comply due to a shortage of deputies at the time.
On May 5, 1969 habeas corpus ad prosequendum was again issued to the U. S. Marshal, returnable May 15, 1969. On May 15 Gladden failed to appear for trial, being in the custody of Federal authorities in the State of Missouri. The case was again refixed. On October 30, 1969 habeas was again issued for trial of defendant on November 12, 1969. On the appointed day a question arose concerning defense counsel's appointment, and the court confirmed the appointment of defense counsel and refixed the trial date on December 11, 1969. Because he was then in Federal custody defendant was again absent on December 11, 1969 when his case was called. Counsel for defendant moved for a continuance on January 15, 1970 in order to file special pleadings. The continuance was granted.
Special pleadings were filed by defense counsel on January 28, 1970 and fixed for hearing. These motions were heard and overruled on February 3, 1970. Trial commenced on February 26, 1970 and proceeded through February 27, 1970, at which time a guilty verdict was returned.
In our view, the State's prosecution of this cause was attended by delays, in large part, attributable either to Gladden's request for continuance or to the fact that he was in Federal custody and unavailable when the State was able to try him. There is no evidence that these delays were capricious or oppressive. Nowhere on this appeal has Gladden pointed to any prejudice which he suffered because of the delay in his trial, such as the loss of valuable witnesses. Cf. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). 1
As heretofore noted, Gladden was charged with six narcotic violations. Prior to trial he moved to consolidate these cases, alleging that all of these offenses resulted from one continuous transaction and should be joined in one count of a single indictment and tried together.
It is argued in support of the motion that there was only one defendant before the bar, only one narcotic agent involved and each of the six offenses occurred within a relatively short time--between October 25, 1967 and November 3, 1967.
The defense contention is predicated upon the proposition announced in Article 596 of the Code of Criminal Procedure that double jeopardy exists in the second trial when the charge in that trial is based on part of a continuous offense for which the defendant was in jeopardy in the first trial.
After a hearing on the motion it was denied and this bill was reserved.
In answer it is sufficient to say that defendant was prosecuted under only one of the six charges. The claim of double jeopardy is therefore premature. It will be time enough to urge this defense if and when the State should bring defendant to trial on one of the other charges.
Another argument presented to the trial court and advanced in this bill of exceptions relates to the defense contention that law enforcement officers violated defendant's rights when they did not arrest him after the first offense. If they had done so, it...
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