State v. Love

• Decision Date: 23 May 2003
• Docket Number: No. 2000-K-3347.,2000-K-3347.
• Citation: 847 So.2d 1198
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana v. Byron C. LOVE.

847 So.2d 1198

STATE of Louisiana v. Byron C. LOVE.

No. 2000-K-3347.

Supreme Court of Louisiana.

May 23, 2003.

Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney, Valentin M. Solino, Juliet L. Clark, Assistant District Attorneys, Counsel for Applicant.

Charles Gary Wainwright, Counsel for Respondent.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Baton Rouge, Pauline F. Hardin, M. Richard Schroeder, Laurie White, New Orleans, Ellis Paul Adams, Jr., Martin K. Maley, Baton Rouge, Counsel for Amicus Curiae.

CALOGERO, Chief Justice.

We granted the State's application for certiorari in this criminal case to consider whether the court of appeal correctly found that the defendant's Sixth Amendment right to a speedy trial was violated by the district attorney's decision to respond to the trial court's denial of his motion for continuance by exercising his plenary power to enter a nolle prosequi, then by reinstituting the bill of information when the reason for requesting the continuance had been resolved. The court of appeal found that the trial court should have granted the defendant's motion to quash the bill of information, and thereupon vacated the defendant's conviction and sentence. Finding on the basis of the record as a whole that the defendant's Sixth Amendment right to a speedy trial was not violated by the district attorney's action in this case, we reverse the judgment of the Court of Appeal and reinstate the defendant's conviction and sentence.

Facts

Defendant was arrested by agents of the Alcohol, Tobacco, and Firearms ("ATF") Bureau Safe Home Task Force during an October 1, 1996, patrol at the Magnolia Housing Development in New Orleans. ATF agent Kevin Stamp testified at the pre-trial hearing that he and other members of the task force were patrolling the neighborhood when they noticed a large crowd gathered in a vacant lot across the street from a grocery store located at the intersection of Sixth and LaSalle Streets. When the agents began to disperse the crowd, Agent Stamp observed defendant discard a brown paper bag between a parked pick-up truck and a telephone pole, then rapidly walk away. As he detained the defendant, Agent Stamp asked Agent Janet Brown to retrieve the paper bag. Agent Stamp testified that Agent Brown then got "the only brown paper bag in the area between the parked pick-up truck and the telephone pole and observed it to contain, I believe[,] a clear piece of plastic containing numerous white rock-like objects." According to the testimony of Agent Stamp, Agent Brown also found a match box containing rock cocaine "right at the opened end of the paper bag, which she believed just possibly had fallen out of the bag due to it being so close." During a search incident to the defendant's arrest, Agent Stamp removed currency totaling $258 from the defendant's pockets.

Formal proceedings against the defendant were instituted by the State on December 11, 1996, when it filed a bill of information charging the defendant with possession of cocaine with intent to distribute. After his arrest, the defendant secured his release from jail and remained out on bond. The defendant was originally brought to trial just more than a year later, on January 15, 1998. However, that trial had to be continued when Agent Brown apparently suffered a mild heart attack in the courtroom during voir dire examination of the prospective jurors. The trial was reset for March 11, 1998, at which time the district attorney orally requested a continuance, asserting that "service was attempted on [Agent Brown] at the ATF office, but she was out sick at the present time." The district attorney asked for an opportunity to "be allowed to contact her and determine and get a definite date on which she will be at work so that we can set a definite trial date." The trial judge summarily denied the district attorney's oral motion for continuance.

The district attorney responded by entering a nolle prosequi in open court immediately following the trial judge's denial of his motion for continuance, as allowed by La.Code of Crim. Proc. art. 691, and stating on the record his intention to recharge the defendant, as allowed by La. Code of Crim. Proc. art. 693. The defendant objected to the district attorney's actions, stating that the district attorney had improperly forced a continuance of the trial date, an option that is not available to defendants. Defense counsel also specifically noted for the record that witnesses for the defense were present in court and prepared to testify both times the case had been set for trial.

The State filed a new bill of information against the defendant on June 26, 1998, some four months after entering the nolle prosequi. When he was arraigned on the new bill on August 19, 1998, the defendant filed a motion to quash the bill, asserting that his Sixth Amendment right to a speedy trial had been violated by the State. At a September 1, 1998, hearing on the motion to quash, the defendant asserted that he had been prejudiced by the district attorney's action because three of the four defense witnesses who had been present the other two times the case was set for trial were no longer available. Those witnesses had allegedly been at the grocery store across the street from the vacant lot where the crowd was gathered when the ATF task force arrived on the night the defendant was arrested. According to defense counsel, the testimony of those witnesses would have directly contradicted Agent Stamp's testimony that the defendant had thrown a paper bag on the ground shortly before his arrest. The only remaining witness was described by defense counsel as "ill-kempt, dressed in a t-shirt and blue jeans and dirty scruffed-up tennis shoes with a criminal record." Noting that he would have been inclined to grant the motion to quash had the defendant lost all four of his witnesses, the trial judge denied the motion to quash and advised defense counsel concerning his remaining witness "to dress him up if you think that is necessary for the jury."

On October 14, 1998, defendant entered a "best interest" plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), specifically noting that his decision to enter that plea had been influenced by his inability, despite great effort, to locate the missing witnesses. The defendant then appealed, setting forth the trial court's denial of his motion to quash as his sole assignment of error. After analyzing the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), for determining whether a defendant's right to a speedy trial had been violated, in the light of Louisiana jurisprudence on that issue, the court of appeal found that the 21-month delay between the filing of the original bill of information and the denial of the defendant's motion to quash was presumptively prejudicial, and had violated the defendant's right to a speedy trial. Expressing particular concern about the district attorney's actions in this case, the court of appeal vacated the defendant's conviction and sentence, and ordered the defendant released.

District Attorney's Actions

The gravamen of the defendant's claim that his right to a speedy trial was violated in this case is his argument that the district attorney improperly responded to the district court's denial of his motion for continuance, based on Agent Brown's unavailability for trial on March 11, 1998, by entering a nolle prosequi, while immediately stating his intention to reinstitute the charges, and doing so just four months thereafter. In fact, the defendant asserts that the district attorney's action was both unnecessary and improper. The district attorney's action was unnecessary, the defendant claims, because he had offered to stipulate to Agent Brown's testimony, obviating the State's need for the availability of Agent Brown.¹ The district attorney's action was improper, the defendant asserts, because the district attorney misused his authority by entering a nolle prosequi, and reinstituting charges, powers clearly granted the district attorney by La Code of Civ. Proc. arts. 691 and 693, respectively. Specifically, the defendant asserts that the district attorney was improperly allowed to grant himself a continuance that had been denied by the trial court. The defendant is joined in this assertion by the Louisiana Association of Criminal Defense Lawyers, which filed an amicus curiae brief in this court.²

Concerning the necessity of Agent Brown's testimony, we note that a witness's absence is clearly considered a valid reason for delaying trial under the Speedy Trial Clause, as interpreted by Barker, 407 U.S. at 531, 92 S.Ct. 2182. Moreover, we believe that the State had a valid reason for rejecting the defendant's offer to stipulate to Agent Brown's testimony because of his not unreasonable assumption that only the effective live testimony of Agent Brown would have been sufficient to connect the cocaine-filled match box with the rock cocaine in the paper bag. That live testimony would clearly have bolstered the State's case on one of the critical elements of the charge, the defendant's intent to distribute. In fact, the State noted the need for Agent Brown's live testimony "so the jury could judge her credibility; because its her word at that point against five other people ... that is why the State would not stipulate at that time." Thus, the State gave legitimate reasons for rejecting the defendant's offer to stipulate. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), which noted the fact that the announcement of a stipulation on an ingredient of a natural sequence otherwise presented by live testimony may cause jurors to "well wonder what they are being kept from knowing." Id. at 189, 117 S.Ct. 644.

Concerning the propriety of the district attorney's action, the defendant asserts that...