State v. Pleasant

Decision Date28 May 1986
Docket NumberNo. KA,KA
PartiesSTATE of Louisiana v. Clarence PLEASANT. 85-1354.
CourtCourt of Appeal of Louisiana — District of US

Donald T. Carmouche, Dist. Atty., Donaldsonville, Ralph Tureau, Asst. Dist. Atty., Gonzales, for State of Louisiana Plaintiff Appellee.

Alan J. Robert, Gonzales, for Clarence Pleasant Defendant Appellant.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

JOHN S. COVINGTON, Judge.

Clarence Pleasant (defendant) was indicted by the Ascension Parish grand jury for second degree murder, a violation of LSA-R.S. 14:30.1. After trial by jury, he was convicted as charged and sentenced to the mandatory term of life imprisonment at hard labor, without benefit of probation, parole or suspension of sentence. Defendant appealed, setting forth five assignments of error:

1. The trial court erred in denying him a speedy trial.

2. The trial court erred in permitting the state to introduce a gruesome photograph.

3. The trial court erred in permitting the state to introduce an inaccurate diagram.

4. The trial court erred in permitting the state to introduce a photograph on redirect examination.

5. The evidence is insufficient to support the verdict.

FACTS

Defendant was charged with the shooting death of Marie Carey, a woman with whom he had recently terminated a personal relationship. The incident occurred outside the Panama Club, a lounge located in Ascension Parish. Evidence established that a quarrel erupted between defendant and the victim inside the club, and the two adjourned outdoors to continue the discussion. Defendant grabbed the victim's purse and located a gun. Although defendant testified on his own behalf and claimed the weapon discharged accidentally, several disinterested observers testified that immediately before the shot was fired defendant stated he would kill the victim with her own weapon. The victim died as the result of a single gunshot to the left side of her chest.

Defendant immediately drove away from the scene. When law enforcement officers arrived, several eyewitnesses identified defendant by name as the perpetrator. He was located by the police and arrested approximately three hours later as he walked along the highway, having abandoned the vehicle at his residence. The gun was retrieved from the glove compartment of his car.

SPEEDY TRIAL

In assignment of error number one, defendant argues the trial court erred by denying his right to a speedy trial. 1

Defendant was arrested on the date of the incident, October 30, 1983, and remained incarcerated until December 5, 1983, when he was released on a bond of $25,000.00. On December 8, 1983, defendant filed a motion for a speedy trial. 2 Thereafter, on December 22, 1983, the grand jury returned a true bill, charging defendant with second degree murder. He was arraigned January 9, 1984, and entered a plea of not guilty. Defendant filed a motion to quash the indictment on May 7, 1985, the morning trial was to begin, urging that he was entitled to have the charges quashed because more than 180 days had elapsed since he filed his motion for a speedy trial, citing La.C.Cr.P. art. 701. After a hearing, the court denied his motion; and the trial began, concluding with the jury verdict on May 8, 1985.

Defendant contends the prosecution was untimely under the provisions of La.C.Cr.P. art. 701(D), and that the sanction to be imposed upon the state for noncompliance is the dismissal of the prosecution.

There are two separate and distinct bases for a defendant's right to a speedy trial: a statutory right granted by La.C.Cr.P. art. 701, and a constitutional right, embodied in the Sixth Amendment to the United States Constitution and Article 1, Section 16 of the Louisiana Constitution of 1974. They are not equivalent. See State v. Sosa, 446 So.2d 429 (La.App. 4th Cir.1984), writ denied, 450 So.2d 361 (La.1984), cert. denied, --- U.S. ----, 105 S.Ct. 209, 83 L.Ed.2d 140 (1984).

STATUTORY RIGHT

Prior to the 1981 amendment to La.C.Cr.P. art. 701, no statutory remedy existed for the violation of a defendant's right to a speedy trial. In State v. Reaves, 376 So.2d 136 (La.1979), the Louisiana Supreme Court concluded that a defendant who had not moved for a speedy trial had nonetheless been denied this right and sustained a trial court's ruling which quashed the prosecution. Thereafter, in 1981, the legislature amended article 701 to provide that the failure to try a defendant within specified time periods would result in his release without bail or discharge of the bond obligation if, after contradictory hearing, the state failed to prove just cause for the delay. La.C.Cr.P. art. 701(D).

Defendant acknowledges the existence of this legislatively created remedy, but argues that the provision requiring discharge of bond obligation or release without bail applies only to misdemeanor offenses. Citing State v. Reaves, supra, and State v. Cody, 446 So.2d 1278 (La.App. 2nd Cir.1984), he contends that the amendment has not created a remedy for denial of speedy trial for felony offenses, and thus the only possible remedy is dismissal of the prosecution. This argument is prompted by the literal wording of article 701, which reads as follows:

A. The state and the defendant have the right to a speedy trial.

B. The time period for filing a bill of information or indictment after arrest shall be as follows:

(1) When the defendant is continued in custody subsequent to an arrest, an indictment or information shall be filed within forty-five days of the arrest if the defendant is being held for a misdemeanor and within sixty days of the arrest if the defendant is being held for a felony.

(2) When the defendant is not continued in custody subsequent to arrest, an indictment or information shall be filed within ninety days of the arrest if the defendant is booked with a misdemeanor and one hundred fifty days of the arrest if the defendant is booked with a felony.

Failure to institute prosecution as provided in Subparagraph (1) shall result in release of the defendant if, after contradictory hearing with the district attorney, just cause for the failure is not shown. If just cause is shown, the court shall reconsider bail for the defendant. Failure to institute prosecution as provided in Subparagraph (2) shall result in the release of the bail obligation if, after contradictory hearing with the district attorney, just cause for the delay is not shown.

C. Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.

D. After the filing of a motion for a speedy trial by the defendant, the time period for commencement of trial shall be as follows:

(1) The trial of a defendant charged with a felony shall commence within one hundred twenty days if he is continued in custody and within one hundred eighty days if he is not continued in custody.

(2) The trial of a defendant charged with a misdemeanor shall commence within thirty days if he is continued in custody and within sixty days if he is not continued in custody. Failure to commence trial within the time periods provided above shall result in the release of the defendant without bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown.

E. "Just cause" as used in this Article shall include any grounds beyond the control of the State or the Court.

In State v. Cody, supra, the Second Circuit was concerned with paragraph C, the time limits for arraignment. That court noted the absence of a remedy for violation of the provision and found, therefore, that Reaves, the controlling law prior to the 1981 amendments, required dismissal of the charges.

In contrast, it is obvious by the terms of 701(D) that the legislature, by the 1981 amendments, intended to provide some remedy less than dismissal of the charges for violation of a speedy trial right. Technically, the problem defendant notes with the amended article is one of form, not of substance. Had the second sentence of sub-section (D)(2) been placed in a separate paragraph, the statutory remedy would obviously apply to both felony and misdemeanor charges. The question, then, is whether the literal wording of 701(D) should be liberally or strictly construed.

We find that La.C.Cr.P. art. 701 is a remedial, rather than a penal statute. Remedial and penal statutes are distinguishable in terms of the nature of the evil sought to be remedied by the legislation. A statute is penal if it undertakes to redress a wrong to the public and remedial if it undertakes to remedy a wrong to an individual. State v. Boniface, 369 So.2d 115 (La.1979). The legislature intended by this article to protect individuals from lengthy pre-trial delays by requiring, as the alternative, the release of the accused or discharge of his bond obligation pending trial, unless just cause for the delay is shown. No wrong to the general public is addressed.

Thus, as a remedial statute, article 701 must be liberally construed; that is, in a manner which would make it applicable in more situations than would be the case under a strict construction. See State v. Boniface, supra, citing at 117, 3 Sutherland, Statutory Construction, Sec. 60.01 at 29 (4th ed. Sands, 1974). Liberally construed, the pertinent provisions herein would apply to felony offenses as well as misdemeanor charges.

We find, therefore, that defendant, released under a bond of $25,000.00, was statutorily entitled only to the cancellation of his bond obligation and not to the dismissal of charges against him. Defendant did not move for the discharge of his bond obligation; thus, it remained in effect until trial.

CONSTITUTIONAL RIGHT

The constitutional right to a speedy trial is not dependent upon a motion but attaches when an individual becomes an accused, either by formal indictment or bill of...

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18 cases
  • State v. Victor, 15–KA–339.
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 26, 2016
    ...an accused, either by formal indictment or bill of information, or by arrest and actual restraint. State v. Pleasant, 195 So.3d 177 489 So.2d 1005, 1009 (La.App. 1st Cir.1986), writ denied, 493 So.2d 1218 (La.1986). Claims for speedy trial violations are evaluated under the four-factor test......
  • State v. Otkins-Victor, 15–KA–340.
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 26, 2016
    ...individual becomes an accused, either by formal indictment or bill of information, or by arrest and actual restraint. State v. Pleasant, 489 So.2d 1005, 1010 (La.App. 1st Cir.1986), writ denied, 493 So.2d 1218 (La.1986). Claims for speedy trial violations are evaluated under the four-factor......
  • State v. Napoleon
    • United States
    • Court of Appeal of Louisiana — District of US
    • May 16, 2013
    ...becomes an accused, either by formal indictment or bill of information, or by arrest and actual restraint. State v. Pleasant, 489 So.2d 1005, 1009 (La.App. 1 Cir.1986), writ denied,493 So.2d 1218 (La.1986). Claims for speedy trial violations are evaluated under the four-factor test set fort......
  • State v. Video Joe, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • March 28, 1991
    ...understanding testimony if they are a reasonable visual demonstration of the events which the witnesses are relating. State v. Pleasant, 489 So.2d 1005 (La.App.1st Cir.), writ denied, 493 So.2d 1218 (La.1986). The trial court's ruling on the admissibility of a diagram will not be disturbed ......
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