State v. Greathouse
| Decision Date | 16 April 2014 |
| Docket Number | No. 2013–KA–1295.,2013–KA–1295. |
| Citation | 140 So.3d 244 |
| Parties | STATE of Louisiana v. Trolynn A. GREATHOUSE. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Appellant.
Keith M. Pyburn, Jr., Lawrence Joseph Sorohan, II, Fisher and Phillips, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
The issue before the court is whether the state may commence trial against the accused, Trolynn A. Greathouse,1 who was charged on 23 May 2011 by bill of information with one count of armed robbery.2 The trial court quashed the bill of information. Finding that the appellate record on appeal is incomplete, we vacate the trial court judgment and remand the matter for further proceedings consistent with this opinion.
Following institution of the prosecution,3 Ms. Greathouse appeared on 7 June 2011 for her arraignment. She waived a reading of the bill of information and entered a plea of not guilty. On 10 June 2011, she filed omnibus motions for discovery, suppression of statements, evidence, and identification, and for preliminary exam. After the preliminary hearing on 15 July 2011, the trial court found probable cause and denied Ms. Greathouse's motion to suppress the identification.4 We believe the other motions were also disposed of on that day.5 Trial was set for 22 August 2011.
From 22 August 2011 through March 2012, counsel for Ms. Greathouse appeared in court on several occasions, sometimes with Ms. Greathouse and sometimes without her. The state and the court itself filed writs of (a) habeas corpus ad prosequendam and (b) habeas corpus ad testificandum (hereinafter referred to, regardless of which writ was issued, as “WRIT”) 6 for Ms. Greathouse for her next trial date for which her presence was required. The record before us, however, is incomplete and does not reflect whether a WRIT was issued for some of the dates. Nevertheless, Ms. Greathouse's name was placed on the jail list 7 for transport to court for those days set for trial and for other dates her presence was required. Ms. Greathouse requested one continuance early in the proceedings; the record, however, reveals that the state moved for several.
When Ms. Greathouse did not appear for trial on 7 November 7, 2011, the state requested a continuance, promising to issue a WRIT for her appearance in court for her next trial date of 23 January 2012. Once again her name was placed on the jail list for transport to court.
Sometime between 23 January 2012 and 23 March 2012, Ms. Greathouse became unrepresented by counsel; the record is unclear as to when her former counsel ceased representing her. However, as of 23 March 2012, she was represented by Keith M. Pyburn, Esq., who remains her attorney through this appeal. She appeared in court on 23 March 2012 for hearing and Mr. Pyburn enrolled; on 26 March 2012, Mr. Pyburn filed another omnibus motion for discovery similar to that filed on her behalf in 2011. A pretrial hearing was set for 4 April 2012 and the trial was reset for 25 June 2012. The court issued a WRIT for both 4 April 2012 and 25 June 2012 and her name was placed on the jail list for both dates.
Ms. Greathouse's counsel appeared on 4 April 2012 for a pretrial hearing, and trial was reset for 23 May 2012, changing it from 25 June 2012. The minute entry of 4 April 2012 does not indicate any consideration and/or ruling on the second omnibus motion.8 Her name was again placed on the jail list for 23 May 2012.
On 15 May 2012, the clerk's office received the state's motion and order for a continuance. Counsel for Ms. Greathouse appeared on 23 May 2012 without the accused. The matter was continued on the state's motion. The state promised to issue a WRIT for Ms. Greathouse. Trial was again continued, this time to 4 September 2012, and her name was placed on the jail list for that date.
On 4 September 2012, Ms. Greathouse appeared in court with her counsel. The trial court issued an order that she remain in the custody of the Orleans Parish Sheriff with a pretrial set for 7 September 2012. Once again her name was placed on the jail list. She appeared in court for the pretrial hearing as scheduled and trial was reset for 25 October 2012. Her name was placed on the jail list, and she was remanded to DOC's Louisiana Correctional Institute for Women at St. Gabriel, Louisiana (“LCIW”).
On 25 October 2012, defense counsel appeared in court without the accused. Another pretrial hearing was set for 31 October 2012, and Ms. Greathouse's name was placed on the jail list. However, on that date, defense counsel appeared in court without the defendant. The matter was set for another pretrial hearing, and the state promised to issue a WRIT for Ms. Greathouse. Trial was reset for 9 January 2013. Her name was placed on the jail list once again.
On 9 January 2013, defense counsel appeared for trial without the defendant. The matter was continued on the state's motion until 13 March 2013 and Ms. Greathouse's name was placed on the jail list. The state filed a motion and order for a WRIT with the clerk on 8 February 2013 and requested that a status hearing be set for 6 March 2013.
On 6 March 2013, Ms. Greathouse and her attorney appeared in court for the status hearing and trial was reconfirmed as set for 13 March 2013. On 13 March 2013, defense counsel appeared in court for trial. A new pretrial hearing was set for 9 April 2013. Once again Ms. Greathouse's name was placed on the jail list.
On 9 April 2013, defense counsel appeared in court without Ms. Greathouse for the pretrial hearing. Trial was reset for 20 June 2013. The defendant's name was placed on the jail list for that date.
On 28 May 2013, Ms. Greathouse filed a pro se motion for a speedy trial from LCIW, evidenced by a 22 May 2013 postmark on the envelope of transmittal. In the motion, she asserted that she had been in state custody since her arrest on 23 March 2011 on a probation revocation and had, therefore, been available to the court at all times since that date. She alleged that the postponements were the result of the state's failure to be prepared to proceed to trial, and invoked her right to a speedy trial under La. Const. Art. I, § 16.9 On 19 June 2013, the state filed with the clerk's office for a WRIT.
On 20 June 2013, Ms. Greathouse appeared in court for trial with her counsel. A pretrial hearing was set for 1 July 2013 and trial for 23 July 2013. However, the court was closed on 1 July 2013. A pretrial hearing was set for 11 July 2013. Her name was placed on the jail list once again.
Ms. Greathouse and her counsel were in court on 11 July 2013 for her pretrial. The matter was reset to July 23, 2013.
On 23 July 2013, the defendant and her counsel were present in court for trial. That day she filed a motion to quash; the court set a hearing date on the motion for 30 July 2013. On this latter date, defense counsel, without the accused, appeared in court for the hearing of the motion to quash on 30 July 2013. The court was not in session. The matter was reset for 31 July 2013. Ms. Greathouse's presence at the hearing was not required by the court.
On 31 July 2013, the trial court granted Ms. Greathouse's motion to quash the state's bill of information. The state noticed its intent to appeal; this timely appeal followed.
On appeal, the state assigns but one error: the trial court abused its discretion in granting the defendant's motion to quash the bill of information.
The state argues that the time period by which the state must commence trial had not elapsed at the point that Ms. Greathouse filed her motion to quash the bill of information. Acknowledging that its obligation is to exercise due diligence to secure the presence of the accused for trial under State v. Bobo, 03–2362, pp. 4–5 (La.4/30/04), 872 So.2d 1052, 1055–56, and being aware that the defendant was at all relevant times in its custody, the state cites La. C.C.P. art. 578 A(2),10 and agrees that it had two years under the statute to obtain the accused's presence by legal process and bring the matter to trial.
The state asserts that it exercised “more than reasonable due diligence” in trying to get Ms. Greathouse to court when, on 23 January 2012, both the state and the trial court filed a WRIT to secure her presence for trial on 14 March 2012. It argues that Ms. Greathouse was not brought to court for trial on 14 March 2012 and such was attributable to the state's inability to obtain her presence by legal process and represents a cause beyond the control of the state. Thus, the state asserts that the running of the time limitation for commencing trial was interrupted (as opposed to suspended) on 14 March 2012, and resumed when the appellee actually appeared in court on 23 March 2012. Under La.C.Cr.P. art. 579, the state argues that it had two additional years, or until 23 March 2014, in which to bring the matter to trial.
As noted above, the defense agrees that the state was required to try this matter within two years pursuant to La. C. Cr. P. art. 578 A(2), arguing first that the state waived any argument under La.C.Cr.P. art. 579, 11 because it failed to raise this issue before the trial court. Under Uniform Rules–Louisiana Courts of Appeal, Rule 1–3, and La.C.Cr.P. art. 920(1),12 issues not presented before the trial court are beyond the scope of appellate review, citing State v. Buckley, 02–1288, p. 3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193, 1197.
The defense points out that the state did not file a brief opposing the motion to quash in the trial court, and that the state's only oral argument at the hearing was that Ms. Greathouse's jury waiver constituted a suspending event under La.C.Cr.P. art. 580.13 During the 31 July 2013 hearing on the motion to quash, the state argued that Ms. Greathouse's waiver of a jury...
To continue reading
Request your trial