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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 38 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 23rd day of May, 2003, are as follows:

BY CALOGERO, C.J.: 2000-K- 3347 STATE OF LOUISIANA v. BYRON C. LOVE (Parish of Orleans) (Possession of Cocaine With Intent to Distribute) The decision of the court of appeal vacating the defendant's conviction and sentence is reversed. The conviction and sentence are reinstated. COURT OF APPEAL DECISION REVERSED; CONVICTION AND SENTENCE REINSTATED. KIMBALL, J., concurs and assigns reasons. JOHNSON, J., dissents and assigns reasons. WEIMER, J., concurs in part, dissents in part and assigns reasons.

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SUPREME COURT OF LOUISIANA No. 2000-K-3347 STATE OF LOUISIANA VERSUS BYRON C. LOVE ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS 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

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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

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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

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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 (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 (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

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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. 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 cocainefilled 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 (1997), which noted the
The defendant admits that his offer to stipulate is not reflected in the brief transcript of the January 15, 1998, mistrial. The Louisiana District Attorneys Association also filed an amicus curiae brief in support of the State's appeal. 5
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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. Concerning the propriety of the district attorney's action, the defendant asserts that the State's decision to "grant itself a continuance" by entering a nolle prosequi and reserving its right to recharge the defendant after the trial court denied its motion for continuance undermined the authority of the trial judge to run his court. For one thing, the defendant notes that the State failed to file a written motion for continuance at least seven days prior to the commencement of trial, as required by La. Code of Crim. Proc. arts. 707 and 709, then failed to seek review of the trial court's denial of its motion for continuance through the supervisory writ procedure. Instead, the State chose to avail itself of its plenary powers to enter a nolle prosequi, then recharge the defendant. The defendant argues that the State's use of those powers under the circumstances of this case was inappropriate. We note that the trial judge made two discretionary rulings in this case. First, the trial judge exercised his discretion to deny the State's motion for continuance. Second, the trial exercised his discretion to deny the defendant's motion to quash. The propriety of the trial court's decision to deny the motion for continuance is not before this court in this appeal. However, much of the defendant's arguments are designed primarily to show that the trial judge did not abuse his discretion when he denied the State's motion to continue. We agree with the defendant's arguments in this regard. The trial court's decision to deny the motion to continue is amply supported by the record, which demonstrates that the district attorney failed to meet the requirements for seeking a continuance set forth in La. Code of Crim. Proc. arts. 707 and 709. The record indicates that the district attorney failed to ascertain prior

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to the trial date whether his witness would be available. Nevertheless, no one ever challenged the district attorney's assertion that Agent Brown was ill; in fact, her illness was apparent when she had an apparent heart attack during voir dire on the original trial date. The trial court's second ruling was the denial of the motion to quash filed by the defendant, who based his written motion solely on his claim that his Sixth Amendment right to a speedy trial had been denied by the State's actions. The defendant's assertion that the trial court abused his discretion when he denied his motion to quash because his speedy trial rights had been violated is the only issue before this court in this case. The defendant challenges the district attorney's decision to nolle pros, then reinstitute charges, as part and parcel of his speedy trial claim. As the defendant notes, this court has previously approved actions similar to the district attorney's actions in this case. Under procedural circumstances strikingly similar to those presented by the instant case, admittedly with three justices dissenting, this court rejected a defendant's claim in State v. Alfred, 337 So. 2d 1049 (La. 1976) (on rehearing), that the district attorney had misused his powers to enter a nolle prosequi, then reinstitute charges, stating as follows: The per curiam of the trial judge assigned additional reasons which apparently influenced his action [to grant a motion to quash]. While recognizing the District Attorney's right to nolle prosse, he said that "the district attorney should not be allowed to abridge a defendant's right to a speedy trial by means of constant nolle prosequies and reindictments." However, this reason overlooks the fact that until the defense filed its speedy trial motion on April 3, 1975 and the trial judge first denied a continuance to the State on May 22, 1975, all delays were acknowledged to be for good cause, and a substantial segment of that delay was due to continuances granted by the court for the defendant's benefit and because juries were unavailable. Until that time, the defendant had recorded no objection. In addition, the trial judge recognized the absence of the State witnesses. Under these circumstances the court's refusal to grant more time compelled the
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District Attorney to avail himself of the authority he undoubtedly possessed to nolle prosse and again present the case to the grand jury for reindictment. It may be that he gained time by this tactic, but a recognition of this fact does not detract from the realization that a prosecution for a double murder was involved, and it was not unreasonable for the prosecutor to avail himself of all legitimate means to gain adequate time to marshal the proof need to properly present its case. That was his responsibility. To do less would not serve the State's interest. His plenary power in this regard is not subject to question, and, under those circumstance, he is entitled to the presumption that he exercised this power for a proper and lawful purpose in keeping with his duty as a public official. La. R.S. 15:432. In summary , there were a number of reasons for the delay; Time was needed for the defense to file pleadings, to accommodate the trial date to the availability of a jury panel in a crowded docket, to enable the district attorney to further investigate the case, and to compel the attendance of absent witnesses. None of these delays were extraordinary or capricious; none were deliberate on the part of the District Attorney, designed to hamper the defense; none were due to negligence on the part of the court, the prosecutor or other charged with the responsibility of providing a speedy trial; all were legitimate and recognized grounds for continuances. In some cases delays are demanded by the nature of the situations presented. No hard and fast time limit can be fixed for all cases; each must be decided on its own facts and circumstances. Id. at 1056-57 (emphasis added). Despite the above language in Alfred, the defendant and amicus assert that a different result is appropriate in this case. The defendant sets forth three arguments to support that assertion. First, the defendant observes that this court was severely split in Alfred, and that the dissenters, in language authored by Justice Tate, expressed great concern about the district attorney's actions. The defendant suggests, therefore, that this court should reconsider its position in Alfred and adopt the view of the dissenters in that case. Second, the defendant notes that Alfred involved a first-degree murder prosecution, a more serious offense than the one with which the defendant is charged in this case. The defendant suggests that, because his offense was less egregious, a lesser standard is necessary to support the quashing of his indictment. Third, the defendant suggests that the trial judge in Alfred failed to properly
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understand the requirements set forth in Barker, and quashed the indictment despite the fact that the delay was not lengthy and the defendant had failed to show that his defense had been compromised. Amicus adds a fourth argument to this list, asserting that La. Code of Crim. Proc. art. 691 was never intended to allow reinstitution of charges if the district attorney has entered a nolle prosequi with the specific intent to avoid a scheduled trial date. Concerning the defendant's arguments, we acknowledge that this court was split in Alfred and that the charges against the Alfred defendant were more serious than the charges in the instant case. However, we believe that those distinctions do not necessarily demand another result. Rather, we believe that two other significant distinctions between the instant case and Alfred are more important to the determination of the issue before the court here. First, we note that, in Alfred, the trial judge had granted the motion to quash the first degree murder indictment and this court's decision reversed that ruling. Because a trial judge has the right to control his docket, this court's opinion was designed to explain its reasons for reversing the trial court's ruling on a discretionary call. In fact, one of the reasons the court was sharply divided in Alfred was the expression of the dissenters that the trial court had properly held that the defendant has been denied a speedy trial. Id. at 1058. Conversely, the trial court in this case denied the motion to quash, and the court of appeal reversed that ruling. Thus, this court has been asked to determine whether the court of appeal correctly reversed a discretionary ruling of the trial judge. Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion. In the instant case, our review of

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the record convinces us that the trial judge did not abuse his discretion when he denied the defendant's motion to quash. One reason we believe that the trial court did not abuse his discretion when he denied the motion to quash in this case is the second significant distinction between this case and Alfred. The district attorney's actions in the Alfred case were clearly more egregious than the actions of the district attorney in the instant case. In Alfred, the court noted that the State had been granted a number of pre-trial continuances, and the defendant had asserted his right to a speedy trial during the initial proceedings. Id. at 1051. Thereafter, the trial court had twice denied motions to continue filed by the State, and the State had twice entered a nolle prosequi, followed by the reinstitution of charges. Id. The defendant eventually filed a petition for habeas corpus, then a motion to quash the third indictment; the trial court granted that motion. Id. Justice Tate's dissent noted that "the defendant was denied a speedy trial despite repeated requests therefor," then stated his conviction that the "state cannot evade the constitutional requirement of a speedy trial by nolle prossing the charge each time it is denied a continuance, and then re-indicting." Id. at 1053. As further explained below, the defendant in this case did not make "repeated requests" for a speedy trial. Moreover, the State entered a nolle prosequi only once. Given the fact that a majority of this court in Alfred ruled for the State, finding that the trial court had abused its discretion in granting the motion to quash, despite the fact the district attorney's actions were more egregious than in this case, the trial court's denial of the motion to quash here is entitled to much more deference. A trial judge has a responsibility to control the district court over which he presides. La. Code of Crim. Proc. art. 17 ["A court . . . has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and

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expeditious manner and to so control the proceedings that justice is done."] That responsibility frequently includes the exercise of discretion when deciding whether to grant or deny a motion to quash, and the duty to make reasonable rulings that protect the rights of defendants, without placing unnecessary limits on the State's ability to prosecute cases. The defendant asserts in this case that the district attorney's actions frustrated the trial judge's right to run his court because the judge's denial of the State's motion for continuance was made moot when the district attorney entered a nolle prosequi, then immediately announced his intention to recharge the defendant, meaning that the district attorney "trumped" the trial judge's denial of the motion for continuance, and thereby usurped the court's authority to conduct the proceedings in an orderly and expeditious manner. In essence, the defendant asserts that the trial court's decision to deny his motion to quash was inconsistent with his previous decision to deny the State's motion for continuance. However, the trial court in this case disagreed with the defendant's assertions to that effect. At the hearing on the motion to quash the reinstituted bill of information, the defendant made the same argument before the trial judge, meaning that the trial judge had an opportunity to evaluate the defendant's assertions that the district attorney's actions impermissibly frustrated his denial of the continuance. Nonetheless, the trial judge denied the motion to quash, apparently because he was unimpressed with the defendant's argument that the district attorney's action was unwarranted. The defendant now makes the somewhat illogical argument in this court--and we find it unconvincing--that the best way to protect the authority of the trial court is to reverse his more recent discretionary ruling denying the motion to quash, in order to preserve his prior discretionary ruling denying the motion for continuance. At this point, it bears mentioning again that the ruling before the court

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here is the district court's denial of the motion to quash, not its denial of the motion for continuance. Ultimately, the trial court's two rulings were not inconsistent. The defendant's arguments notwithstanding, the trial court's denial of the State's motion for continuance was not tantamount to a finding that the State was lying about the absence of its witness for valid medical reasons. Rather, the trial court recognized that the district attorney had not bothered to comply with the formal requirements for seeking a continuance. On the other hand, the trial court denied the motion to quash because it found that, while the State wanted to maximize its case by presenting the testimony of Agent Brown, the State did not seek to gain an unfair advantage over the defendant. The trial judge did not perceive that the district attorney's actions sufficiently disrupted his docket to justify granting the motion to quash; that decision falls within the trial court's discretion under La. Code of Crim. Proc. art. 16. When a trial judge exercises his discretion to deny a motion to quash, he presumably acts appropriately, based on his appreciation of the statutory and procedural rules giving him the right to run his court. When, as in this case, a trial judge denies a motion to quash, that decision should not be reversed in the absence of a clear abuse of the trial court's discretion. Moreover, nothing in the record of this case indicates that the trial court's actions can be attributed to his belief that he was constrained by this court's Alfred decision to deny the motion to quash. In fact, Orleans Parish Criminal Court judges have often in the past decade granted motions to quash in cases like the present one, where the district attorney had nolle prossed, then reinstituted charges. See State v. Carter, 2002-1279 (La. App. 4 Cir. 1/29/03), 2003 WL 257386; State v. Larce, 2001-1992 (La. App. 4 Cir. 1/23/02), 807 So. 2d 1080; State v. Henderson, 2000-0511 (La. App. 4 Cir. 12/13/00), 775 So. 2d 1138;

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State v. Gray, 98-0347 (La. App. 4 Cir. 10/21/98), 766 So. 2d 550; State v. Pham, 97K-0459 (La. App. 4 cir. 3/26/97), 692 So. 2d 11; State v. DeRouen, 96-0725 (La. App. 4 Cir. 6/26/96), 678 So. 2d 39; State v. Esteen, 95-1079 (La. App. 4 Cir. 4/3/96), 672 So. 2d 1098, writ denied, 96-0979 (La. 9/27/96), 679 So. 2d 1359; State v. Firshing, 624 So. 2d 921 (La. App. 4 Cir. 1993), writ denied, 93-2621 (La. 2/25/94), 632 So. 2d 760; State v. Leban, 611 So. 2d 165 (La. App. 4 Cir. 1993). These cases indicate that the judges of the Criminal District Court understand that a trial judge has the authority to grant a motion to quash when the circumstances of the individual case warrant such an action. Moreover, close review of the above cases indicates that the judges of the Fourth Circuit Court of Appeal do not feel constrained by Alfred, as none of the above cases cite to Alfred. In fact, in the two most recent cases from that appellate court--Carter and Larce, the court has reversed trial court judgments granting motions to quash, purely on the basis of the plenary authority to nolle pros and reinstitute charges, given to the district attorney by La. Code of Crim. Proc. art. 576 and 578. Prior to those two cases, the appellate court sometimes reversed trial court rulings granting motions to quash in cases involving a nolle pros and reinstitution, finding that the trial court abused its discretion in finding that the defendant's right to speedy trial had been violated. See Gray, Pham, and DeRouen. At other times, the court of appeal has affirmed trial court rulings granting motions to quash in similar circumstances, as in Henderson, Firshing, Esteen, and Leban. This court has been asked to review only two of the above cases--Firshing and Esteen. In both cases, this court denied applications to review appellate court judgment affirming trial court judgments granting motions to quash. Id. The upshot of all of these cases is that Louisiana courts understand that determination of motions to quash in which the

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district attorney entered a nolle pros and later reinstituted charges should be decided on the basis of the facts and circumstances of the individual case. Thus, neither Alfred nor this decision should be read by Louisiana courts to constrain a trial court's discretion to grant a motion to quash in appropriate circumstances. In situations where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation. In this case, we do no not believe any such palpable abuse is evident that would allow the court of appeal to vacate the defendant's conviction on that basis.

Sixth Amendment Right to Speedy Trial A defendant's right to a speedy trial is a fundamental right imposed on the states by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). See also La. Const. (1974) art. 1,

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