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STATE OF LOUISIANA                                                                *   NO. 2010-KA-1538
VERSUS                                                                            *
                                                                                      COURT OF APPEAL
ALONZO HAYES                                                                      *
                                                                                      FOURTH CIRCUIT
                                                                                  *
                                                                                      STATE OF LOUISIANA
                                                                                  *
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 497-776, SECTION “K”
Honorable Arthur Hunter, Judge
PAUL A. BONIN
JUDGE
(Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Paul A.
Bonin)
LOVE, J., CONCURS IN THE RESULT.
Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney
619 South White Street
New Orleans, LA 70119
COUNSEL FOR APPELLANT, STATE OF LOUISIANA
Jee Park
James Harper
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue
7th Floor
New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLEE, ALONZO HAYES
REVERSED AND REMANDED
SEPTEMBER 1, 2011




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.
1




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.
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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  (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.” LA.
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C.CR.P.  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”.
1 Mr. Hayes references La. Const. art. II, §2: “Except as otherwise provided by this constitution, no one of these
branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”    We
note en passant that the prosecutorial power under the Louisiana constitution, unlike the federal, is in the judicial
branch and not in the executive branch.   See LA. CONST. ART. V, §26.
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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
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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 LA.
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C.CR.P. 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 a tactic to gain time, or - as it has
been described2 - to grant himself a continuance of the trial, it is “not unreasonable
for the prosecutor to avail himself of all legitimate means to gain adequate time to
marshal the proof needed to properly present its case.”   State v. Alfred, 337 So. 2d
1049, 1056-1057 (La. 1976) (on rehearing).
Notwithstanding the extent of his discretionary prosecutorial authority in the
dismissal-reinstitution of formal charges, the district attorney may not, however,
flaunt  “his authority for reasons that show he wants to favor the State at the
expense of the defendant, such as putting the defendant at risk of losing witnesses”.
Love, 00-3347, p. 14, 847 So. 2d at 1209.   Accord, Bd. of Comm’rs of Orleans
Levee District v. Connick,  94-3161, p.  14,  654 So.  2d at  1081  (“The district
attorney, as long as he is not flagrantly violating the constitution by doing so, has
the right and duty to ferret out wrongdoers … and bring them before a tribunal
exercising criminal jurisdiction”). Dismissing a pending prosecution in the face of
a trial court‟s denial of the prosecutor‟s request for a continuance and then re-filing
the same charge to continue the prosecution after a brief pause, is flaunting the
“state‟s unique power and authority that the defense does not also possess.”   State
v. King, 10-2638, p. 6, 60 So. 3d at 618, citing to State v. Stephens, 00-2472, p. 1,
n.1 (La. 3/16/01), 782 So. 2d 562, 566 (Lemmon, J., dissenting).
2 See, e.g., State v. Batiste, 05-1571, p. 4                                                (La. 10/17/06), 939 So. 1245,1253 (Weimer, J., dissenting).
                                                                                            7




The  flaunting  of  the  prosecutor‟s  authority  to  favor  the  state  at  the
defendant‟s expense must be evident.  See State v. Love, 00-3347, p. 14, 847 So. 2d
at 1209.   When, for example, the record indicates that a dismissal was entered
because the victim was not present for trial and was wavering in her commitment
to  going  forward  with  the  prosecution,  the  district  attorney  in  dismissing-
reinstituting the charges is not evidently flaunting his authority.    See State v.
Batiste, 05-1571, p. 6 (La. 10/17/06), 939 So. 2d 1245, 1249.
But  the  flaunting  of  the  prosecutor‟s  authority  is  merely  a  gateway
consideration to granting a motion to quash on these grounds.   The granting of a
motion to quash on the ground of prosecutorial abuse of its authority is dismissal
with prejudice.  State v. King, 10-2638, p. 5, 60 So. 3d at 618.  The enforcement of
this  protection  that  the  defendant  is  not  significantly  disadvantaged  by  the
prosecution‟s abuse of its unilateral authority, just as with enforcement of the
constitutional right to a speedy trial, “leads to the unsatisfactorily severe remedy of
dismissal of the indictment when the right has been deprived. This is indeed a
serious consequence because it means that a defendant who may be guilty of a
serious crime will go free, without having been tried.” Barker v. Wingo, 407 U.S.
514, 522 (1972).                                                                          “Such a remedy is more serious than an exclusionary rule or a
reversal for a new trial, but it is the only possible remedy.” Id.    Overzealous
application of the remedy of dismissal with prejudice is no virtue. Id., n. 16.
Because of the severe remedy, a trial court may not quash the formal charges
and dismiss them with prejudice when the prosecution‟s abusive exercise of its
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authority simply disrupts a trial court‟s conduct of the proceedings or challenges
the court‟s authority to manage its docket, but does not significantly disadvantage
the defense at any forthcoming trial.   See State v. King, 10-2638, p. 6, 60 So. 3d at
619.   Thus, a finding of the prosecution‟s abusively exercising its authority is
necessary but not sufficient to the sustaining of a motion to quash.
The defendant must show that the district attorney‟s abusive exercise of its
power actually violates the defendant‟s constitutional right to a fair trial.              “An
accused is entitled to confront and cross-examine the witnesses against him, to
compel the attendance of witnesses, to present a defense, and to testify on his own
behalf.”   LA. CONST.   ART. I, § 16 (emphasis added).   Paralleling the burden in a
claim of a violation of a constitutional right to a speedy trial, the Louisiana
Supreme Court requires the defendant “to make a showing of specific prejudice to
his defense.”  State v. King, 10-2638, p. 8, 60 So. 3d at 620, citing to State v. Love,
supra, and Barker v. Wingo, supra.   Notably, the Supreme Court has not adopted
the suggestion of JUSTICE WEIMER that if the reinstitution of the formal charges
occurs within seven days of the dismissal, “the State should have the burden to
establish the defendant was not prejudiced.” See State v. Love, 00-3347, p. 1, 847
So. 2d at 1215 (Weimer, J., concurring in part and dissenting in part); see also
State v. Batiste,                                                                          05-1571, p.  1-2,  939 So.  2d at  1253.    Thus, we conclude, a
prosecutor‟s evident, flagrant, objectionable, and ill-motived “flaunting” is not in
itself specific prejudice to the defense at a forthcoming trial.   In order to sustain a
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motion to quash, the resulting specific prejudice to his right to a fair trial must be
shown by the defendant.
III
As we previously noted, the trial judge made no specific findings at the time
he sustained the motion to quash.   Because the complementary role of the trial
court and our intermediate appellate court demands that deference be given to a
trial court‟s discretionary decision, we review a trial court‟s ruling under an abuse-
of-discretion standard.   See State v. Love, 00-3347, pp. 9-10, 847 So. 2d at 1206-
1207. In a case involving the use or abuse of the dismissal-reinstitution authority of
the prosecutor, each case is to be decided on the facts and circumstances of the
individual case.   Id, p. 14, at 1209; State v. Batiste, 05-1571, p. 5, 939 So. 2d at
1249.
We assume that the trial judge found that the prosecution was flaunting its
authority and granting itself a second continuance despite his rulings that the
prosecution  was  not  entitled  to  continuances.    The  prosecutor‟s  use  of  his
dismissal-reinstitution authority twice on the day of trial and re-filing the same day
is more “egregious” than the prosecutor‟s conduct in Love and is more akin to the
prosecutor‟s conduct in Alfred, supra. See State v. Love, 00-3347, p. 10, 847 So. 2d
at 1207.    On the other hand, the prosecution compares the justification of its more
recent dismissal-reinstitution with that of the prosecution in Batiste, where an
absent and reluctant witness necessitated a dismissal to avoid an approaching trial
date. See State v. Batiste, 05-1571, p. 6, 939 So. 2d at 1249.   To which argument
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the defense responds by distinguishing that in our case the reluctant witness was
not absent (she was physically present in the district attorney‟s office) and that,
unlike Batiste, here the second dismissal followed upon a second denial of the
prosecution‟s request for a continuance of the trial.
A  case-specific  resolution  by  a  trial  judge  of  these  fact-intensive
countervailing considerations may be entitled to our deference under an abuse-of-
discretion standard.   But we have no need to so decide because we find that the
trial judge abused his discretion if he found, as he would have been required to
find,  that  Mr.  Hayes  has  shown  specific  prejudice  to  his  defense  at  any
forthcoming trial.   A trial court necessarily abuses its discretion if its ruling is
based on an erroneous view of the law.   See, e.g., Cooter & Gell v. Hartmarx
Corp.,  496 U.S.  384,  405  (1990); United States v. Taylor,  487 U.S.  326,  336
(1988) (noting that discretionary choices are not left to a court‟s inclination, but to
its judgment, which is guided by sound legal principles).   Thus, if a trial court in
exercising its discretion bases its ruling upon an erroneous view or application of
the law, its ruling is not entitled to our deference.
IV
We have carefully examined Mr. Hayes‟ motion to quash.   He makes no
claim to a specific prejudice to his defense at any forthcoming trial.   The prejudice
he identifies in his motion is the self-evident inequity of one party‟s ability to
avoid trial without authorization of the court. The implication is that the defense
would have prevailed at trial because the prosecution was unprepared, and it would
11




not prevail if the prosecution was prepared with its witnesses and its evidence.  The
further implication is that an unprepared defendant is sometimes forced to trial by
the court and is convicted on that account.   But in neither of these situations is
there a specific prejudice to this defendant at his upcoming trial.
We have also carefully examined the contradictory hearing on the motion to
quash.   During the arguments the prosecutor noted that he had heard no allegation
from the defense that it had been prejudiced in any way.   Defense counsel urged
that the very inequity of the procedural options available to the parties was the
prejudice.  This same argument was echoed in Mr. Hayes‟ brief to this court.
After this matter was submitted, the Louisiana Supreme Court decided State
v. King, supra.   We invited the parties to submit supplemental briefs to address the
applicability of the King decision.   Mr. Hayes responded that he was specifically
prejudiced in two ways.    The first is his continued pretrial detention and the
second, he repeats, is the prosecution‟s tactical advantage of avoiding trial when he
was prepared with his witnesses for trial.
We reject the argument that Mr. Hayes‟s continued pretrial detention is
prejudicing his defense.   Of course, oppressive lengthy pretrial incarceration is
disadvantageous to an accused awaiting trial.   See Barker v. Wingo, 407 U.S. at
532.   And the prevention of just such lengthy incarceration is one of the objectives
of ensuring speedy trials, especially and primarily through enforcement of statutory
protections. See United States v. Marion, 404 U.S 307, 322 (1971).   Mr. Hayes
concedes - indeed, affirmatively argues - that none of his speedy trial rights have
12




yet been implicated.  That alone suggests that Mr. Hayes‟ pretrial incarceration has
not been oppressively lengthy to cause prejudice to his defense which would result
in  dismissal  with  prejudice.    For  example,  exceeding  the  periods  of  pretrial
detention authorized by La. C.CR.P. ART. 701 D(2), which are the earliest triggers
for a speedy trial claim, at best only entitles a defendant to release from custody
and not to dismissal with prejudice.   See LA. C.CR.P. ART. 701 D(2).   See also
State v. Campechano, 06-1329, p. 4 (La. App. 4 Cir. 4/4/07), 956 So. 2d 673, 674-
675.   When a trial judge does find that the only prejudice from the prosecution‟s
tactics is undue continued pretrial incarceration, he ought to first consider a remedy
less drastic and more commensurate with the harm, such as reducing the amount of
bail.  See LA. C.CR.P. ART. 342.  See also State v. Thomas, 10-528, p. 15 (La. App.
4 Cir. 7/15/10), 54 So. 3d 1 (Bonin, J., concurring).
But in evaluating even speedy trial violations, courts recognize that the most
serious kind of prejudice is not pretrial detention, but rather “the possibility that the
defense will be impaired.” See Barker v. Wingo, 407 U.S. at 532.   And this is the
exact sort of prejudice which the defendant must show to obtain the remedy of
dismissal with prejudice. Yet Mr. Hayes has not alleged, much less shown, how his
defense  has  been  impaired,  which  leads  us  to  address  Mr.  Hayes‟  second
contention of prejudice: the prosecution‟s tactical advantage in avoiding trial when
Mr. Hayes‟ witnesses were present.
His second contention merely focuses on or emphasizes the prosecution‟s
flaunting of its authority to escape a trial setting disadvantageous to it.   The focus,
13




however, of specific prejudice to the defendant is at a later trial.   Here, Mr. Hayes
filed his motion to quash as soon as the formal charges were reinstituted.   He was
not confronted with a trial setting at which he was unable to produce any witness.
He was not confronted with a denial of a request for a continuance due to the
absence of his witness.   These are the kinds of conditions under which a defendant
could show specific prejudice that his defense has been significantly disadvantaged
at a forthcoming trial. See State v. King, 10-2638, p. 6, 60 So. 3d at 619.
Mr. Hayes has not shown, as he is required to show, specific prejudice to his
defense from the prosecution‟s use of its dismissal-reinstitution authority. Because
in this case at this point in time the trial judge could not have found such specific
prejudice which would justify a dismissal with prejudice, granting the motion to
quash was an abuse of discretion and we accordingly reverse the ruling.
DECREE
The ruling of the trial court sustaining the motion to quash filed by Alonzo
Hayes  is  reversed.    The  matter  is  remanded  to  the  trial  court  for  further
proceedings.
REVERSED AND REMANDED
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