State v. Hayes

• Decision Date: 01 September 2011
• Docket Number: No. 2010–KA–1538.,2010–KA–1538.
• Citation: 75 So.3d 8
• Parties: STATE of Louisiana v. Alonzo HAYES.
• Court: Court of Appeal of Louisiana — District of US

75 So.3d 8

STATE of Louisiana

v.Alonzo HAYES.

No. 2010–KA–1538.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 1, 2011.

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.

Jee Park, James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee, Alonzo Hayes.

(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

[4 Cir. 1] For the third time, the district attorney filed a bill of information charging Alonzo Hayes, the defendant, with sexual battery of the minor, K.R. The district attorney dismissed the two previous filings when the trial court denied the prosecution's motions to continue the trial, but re-filed the bills of information the same day as the respective dismissals.

Mr. Hayes moved to quash the bill of information. In his motion he did not assert a claim that his constitutional or statutory rights to a speedy trial have been violated. See State v. Reaves, 376 So.2d 136 (La.1979); see also La.C.Cr.P. Art. 532(7). He also did not contend that the prosecution was attempting to avoid the time limitations for the commencement of trial. See La.C.Cr.P. Art. 576. Mr. Hayes argued that the prosecution is flaunting its authority, and that its exercise in this case of its dismissal and reinstitution power violates his due process rights as well as the constitutional separation of powers doctrine.

[4 Cir. 2] The prosecution argues that the district attorney enjoys plenary power to dismiss formal charges and—subject only to specific limitations which are not here applicable—to reinstitute the charges, that it is not flaunting its authority, and, most importantly, that Mr. Hayes has shown no prejudice to his defense.

The trial court, without any explanation, sustained the defense motion. The prosecution appealed. See La.C.Cr.P. Art. 912 B(1).

Because we find that Mr. Hayes has shown no prejudice to his defense on account of the conduct of the prosecutor, we conclude that the trial judge abused his discretion in sustaining the motion to quash, and we reverse the ruling. We explain below our decision in detail.

I

The district attorney filed the first bill of information charging Mr. Hayes with aggravated incest with K.R., a minor, on May 20, 2009. See La. R.S. 14:78.1. The prosecution later reduced the charge to sexual battery. See La. R.S. 14:43.1. Over the following year, trial was scheduled and continued for a variety of reasons. At the trial setting on May 18, 2010, the prosecutor reported to the trial judge that the home of the victim and her family had sustained severe fire damage rendering the home uninhabitable and that they had relocated to a shelter. The prosecutor further explained that it was the victim's last day of school and that the family was staying in a shelter and meeting with charitable organizations to obtain alternative housing. The prosecutor requested a forty-eight hour continuance. The trial judge denied a continuance. The prosecutor then dismissed the charge.

[4 Cir. 3] Later that same day, the district attorney reinstituted the charge against Mr. Hayes by filing a second bill of information. At the first and only trial setting on June 21, 2010, the prosecutor informed the trial judge that K.R., the minor victim, had recently recanted her accusation against Mr. Hayes. And that even more recently K.R., after a teary-eyed session with the district attorney's victim-witness counselor, told the prosecutor that the accusation was true. The prosecutor requested a brief continuance to further investigate. The trial judge denied a continuance and the prosecutor then dismissed the charge.

Later that same day, the district attorney reinstituted the charge against Mr. Hayes by filing a third bill of information. On July 8, 2010, Mr. Hayes filed the motion to quash.

In his motion Mr. Hayes principally complains that the district attorney's use of his dismissal and reinstitution power affords the prosecution the exclusive and unfair ability to circumvent the trial judge's denial of a continuance and to unilaterally effectively obtain a continuance. He argues from Wardius v. Oregon that the Due Process Clause of the Fourteenth Amendment “speak[s] to the balance of forces between the accused and his accuser.” Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). He declaims the “tactical disadvantage” to the defense from the imbalance arising from the ability of the prosecution to grant itself a continuance. Even more so, Mr. Hayes further argues, in the imbalanced advantage to the prosecution, the prosecutor displaces the trial judge and usurps the role of the trial judge, whose duty is “to so control the proceedings that justice is done.” [4 Cir. 4] La.C.Cr.P.[4 Cir. 4] Art. 17. Mr. Hayes emphasizes that it is the trial judge, not the prosecutor, who is entrusted with the grant or denial of a motion to continue a trial. See La.C.Cr.P. Art. 707, 712, and 713. The defendant contends that the prosecutor's displacement of the trial judge violates the separation of powers.¹

On July 22, 2010, after a hearing consisting of argument of counsel alone, the trial judge sustained the motion.

II

At the outset of our analysis we emphasize that the filing of a motion to quash is the appropriate procedural vehicle to raise the issue of the district attorney's abuse of his considerable authority to dismiss and reinstitute prosecutions. See La.C.Cr.P. Art. 531 (“All pleas or defenses raised before trial, other than mental incapacity to proceed, or pleas of ‘not guilty’ and of ‘not guilty and not guilty by reason of insanity,’ shall be urged by motion to quash.”). The motion to quash on the ground of prosecutorial abuse of its dismissal-reinstitution authority may be raised independently of a claim that the defendant's speedy trial rights have been violated.

The Louisiana Supreme Court has “recognized that the trial court possesses the inherent discretion to grant a motion to quash and to order a prosecution dismissed with prejudice after the state has used its broad prosecutorial discretion by dismissing and then reinstituting a prosecution to force a continuance of trial”. [4 Cir. 5] State v. King, 10–2638, p. 5 (La.5/6/11), 60 So.3d 615, 618 (per curiam). The trial court's discretion extends “even under circumstances in which prescription had not tolled or would not shortly thereafter toll as a matter of La.C.Cr.P. art. 578, or in which the Speedy Trial Clause of the Sixth Amendment would not also require that result.” Id. The Supreme Court cited to its earlier decision in State v. Love, 00–3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. Id.

This explicit recognition by the Louisiana Supreme Court of the availability of the motion to quash for this specific type of prosecutorial abuse—independent of any speedy trial violation—suggests that some of our decisions implying the contrary have lost their vitality. For example, we have “long required that a defendant challenging the State's dismissal and reinstitution of charges must show that his right to a speedy trial was thereby violated.” State v. Henderson, 00–0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. See also State v. Polk, 05–1118, p. 5 (La.App. 4 Cir. 5/31/06), 933 So.2d 838, 841 (“The State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case, such as this one, where doing so will not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578.”)

The district attorney's discretionary prosecutorial authority is vast. “Except as otherwise provided by this constitution, a district attorney, or his designated representative, shall have charge of every criminal prosecution by the state in his district”. La. Const. Art. V, § 26(B). “Under the Louisiana constitution it is the district attorney who is charged with the duty of seeking out potential criminals [4 Cir. 6] and bringing them to trial for their alleged wrongs.” Bd. of Comm'rs of Orleans Levee District v. Connick, 94–3161 (La.3/9/95), 654 So.2d 1073, 1080. “The constitutional role of the district attorney is incipient to the criminal process; his decision to file charges in a court of criminal jurisdiction is the event which incites a trial court's exercise of that jurisdiction.” Id.

“Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” La.C.Cr.P. Art. 61. A district attorney is not liable to anyone, including a crime victim, when he exercises his “broad discretionary power” not to institute a prosecution. Briede v. Orleans Parish Dist. Attorney's Office, 04–1773, p. 5 (La.App. 4 Cir. 6/22/05), 907 So.2d 790, 793. This is “because the decision to take any action to prosecute or not prosecute is within the district attorney?s constitutionally granted powers.” Id.

Once having instituted a prosecution, “[t]he district attorney has the power to dismiss [it] ... and in order to exercise that power it is not necessary that he obtain consent of the court.” La. C. Cr. P. Art. 691. “The entering of a nolle prosequi [dismissal] rests entirely within the discretion of the prosecuting attorney.” State v. Sykes, 364 So.2d 1293, 1297 (La.1978). The district attorney possesses “absolute discretion” to dismiss a prosecution. Id.

Generally, a timely instituted prosecution which is subsequently dismissed by the district attorney may be reinstituted by him at his discretion. See [4 Cir. 7] La.C.Cr.P.[4 Cir. 7] Art. 576. The exceptions to the general rule involve considerations of time limitations, id., none of which are of concern in this case. Here again, despite the use of his dismissal-reinstitution authority as...