State Of Louisiana v. Laura Amanda Kozma

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 KA 0591

STATE OF LOUISIANA

VERSUS

LAURA AMANDA KOZMA

Judgment Rendered: MAY 2 8 2020

Appealed from the
22nd Judicial District Court
Parish of St. Tammany, State of Louisiana
Docket Number 587881

The Honorable Scott Gardner, Judge Presiding

Warren L. Montgomery Counsel for Appellant

District Attorney State of Louisiana
Matthew Caplan
Assistant District Attorney
Covington, Louisiana

Vincent F. Wynne, Jr. Counsel for Defendant/ Appellee

Jeremy D. Goux Laura Amanda Kozma

R. Gary Higgins, Jr.
Covington, Louisiana

BEFORE: WHIPPLE, C.J., GUIDRY AND BURRIS, 1 JJ

The Honorable William J. Burris is serving as judge pro tempore by special appointment
of the Louisiana Supreme Court.

BURRIS, J.

The State of Louisiana appeals the trial court' s January 17, 2019 ruling

granting the defendant' s motion to quash the bill of information based upon a

violation of the defendant' s right to a speedy trial. We reverse and remand for

further proceedings.

FACTS AND PROCEDURAL HISTORY

The defendant, Laura Amanda Kozma, was charged by bill of information

with theft over $ 1, 500 and money laundering. See La. R. S. 14: 67, 14: 230( B).

Specifically, the bill of information alleged that on or between October 19, 2012

and May 31, 2013, the defendant committed theft over $ 1, 500 by the

misappropriation or taking of property belonging to Belair Homeowner' s

Association ( BHOA). The bill of information further alleged that during the same

time period, the defendant committed
money laundering by conducting,

supervising, or facilitating a financial transaction involving proceeds known to be

derived from criminal activity, wherein the value of the funds was twenty thousand

dollars or more, but less than one hundred thousand dollars.

The record establishes the following procedural history relevant to our

consideration of whether the trial court correctly found a constitutional violation of

the defendant' s right to a speedy trial and quashed the bill of information:

April 24, 2017: The defendant was arrested.

May 5, 2017: The State filed the bill of information.

August 7, 2017: The defendant was arraigned.

August 15, 2017: The defendant filed a motion for bill of particulars, a
motion to suppress evidence, a motion to suppress confession, and a prayer
for oyer.

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The bill of information has a typewritten date of July 10, 2017, which is also reflected in
the record index, but a file stamp dated May 5, 2017. The trial judge referenced the July 10 date
at the hearing on the motion to quash and the May 5 date in his written reasons. The defendant
relies on the May 5 date in making her argument. We use the earlier file stamp date for our
consideration of the speedy trial issue.

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September 5, 2017: The pending motions and the trial date were continued
on motion of the State without objection.

October 2, 2017: The pending motions were continued on motion of the
defendant.'

October 6, 2017: The pending motions and the trial date were continued on
joint motion of the State and the defendant.

October 30, 2017: " Pursuant to bench conference," the trial court continued
the pending motions and the trial date without objection.

December 21, 2017: " Pursuant to bench conference," the trial court

deferred" the pending motions without objection.

January 24, 2418: " Pursuant to bench conference," the trial court continued
the pending motions without objection, and the trial date was continued on
joint motion of the State and the defendant.

April 23, 2018: " Pursuant to bench conference," the trial court set the
pending motions for June 1, 2018, and a trial date of August 6, 2018 without
objection.

June 1, 2018: " Pursuant to bench conference," the trial court continued the
pending motions without objection.

July 30, 2018: The pending motions were continued on motion of the
defendant, and the trial date was continued on joint motion of the State and
the defendant.

October 17, 2018: The pending motions and the trial date were continued
on motion of the State without objection.

November 26, 2018: The pending motions were continued " without date"
on motion of the defendant.

December 10, 2018: The trial date was continued on joint motion of the
State and the defendant.

January 14, 2019: The defendant filed a motion to quash and, "[ p] ursuant to
bench conference," the trial court continued the matter.

January 17, 2019: The trial court granted the motion to quash based on
violation of the defendant' s right to a speedy trial.

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The minutes of the October 2, 2017 hearing were corrected to remove language
indicating the continuance was granted on motion of the defendant. However, the transcript
shows the defendant' s attorney was not present at the hearing and counsel who appeared on her
behalf requested that the court " pass these motions to Friday," because the State had provided
additional discovery that the defendant' s attorney had not yet reviewed. Where there is a
conflict between the transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.
2d 732, 734 ( La. 1983). Consequently, the continuance is attributed to the defendant.

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RIGHT TO A SPEEDY TRIAL

A defendant' s right to a speedy trial is guaranteed by both the federal and

state constitution. See U. S. Const. amends VI, XIV; La. Const. art. 1, § 16; see

also Klopfer v. State of North Carolina, 386 U.S. 213, 222- 23, 87 S. Ct. 988, 993,

18 L.Ed.2d 1 ( 1967); State v. Love, 00- 3347 ( La. 5/ 23/ 03), 847 So. 2d 1198, 1209.

Whether there has been a violation of a defendant' s right to a speedy trial requires

weighing the conduct of both the prosecutor and the defendant in light of the four

factors set forth in Barker v. Wingo, 407 U. S. 514, 530, 92 S. Ct. 2182, 2192, 33

L.Ed. 2d 101 ( 1972): ( 1) the length of the delay; ( 2) the reason for the delay; ( 3) the

defendant' s assertion of her right to a speedy trial; and ( 4) the prejudice to the

defendant. See Love, 847 So. 2d at 1210; State v. Bodley, 394 So. 2d 584, 594 ( La.

1981). None of these four factors are " either a necessary or sufficient condition to

the finding of a deprivation of the right of speedy trial." Barker, 92 S. Ct. at 2193.

Instead, they are related factors to be considered together " in a difficult and

sensitive balancing process." Id. However, the first factor is considered the

triggering mechanism" and if it is determined the delay is not presumptively

prejudicial, the remaining factors need not be considered. Love, 847 So. 2d at

1210. The Louisiana Supreme Court has explained:

T] he peculiar circumstances of the case determine the weight to be
ascribed to the length of the delay and the reason for the delay.
Something that is acceptable in one case, may not be acceptable in
another because the complexity of the case must be considered. The
manner of proof must also be considered, as must the gravity of the
alleged crime.

Love, 847 So. 2d at 1210 ( citations omitted).

In support of her motion to quash, the defendant argued her right to a speedy

trial arguably commenced in May 2013, when the Sheriff' s Office initiated its

investigation into the alleged crimes. She claimed that she was thereafter

subjected to public scorn, embarrassment, deprived of employment, curtailed in

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her associations, and endured extreme anxiety. She noted that once the Sheriff' s

Office closed its investigation, the case remained inactive and dormant until it was

referred to the Attorney General' s Office in 2016. She argued that at the very

latest, her right to a speedy trial commenced when she was arrested on April 24,

2017. She claimed that under either calculation, the length of time was significant

enough to be presumptively prejudicial and trigger inquiry into the remaining

Barker factors.

The defendant contended the sole reason for the delay was the State' s

inability or unwillingness to bring the matter to trial. The defendant referenced a

lack of evidence, including financial records and information from the BHOA,

noting the State repeatedly and candidly represented to the court that it was

unprepared to try the case. She further referenced one occasion where the state

sought a continuance based on its representation that a scheduled meeting with the

Louisiana Bureau of Investigation could result in a dismissal of the case; however,

the meeting resulted in a request for additional investigation. The defendant also

argued that Dr. Robert Miles, a former BHOA board member who died during the

delay, was always an active defender and supporter of the defendant when the

issues in this case arose and would have been a key witness at trial.

The State opposed the motion, arguing prosecution was instituted in May

2017; therefore, the case was pending less than the two-year time limitation for

institution of prosecution established by Louisiana Code of Criminal Procedure

article 578. The State argued the delay did not violate the defendant' s right to a

speedy trial, reasoning that " white collar" crimes in particular took longer to

resolve, noting this case involved thousands of pages of discovery. The State also

explained that during the course of the case the defendant raised defenses not

addressed in the initial investigation. The State represented that it was actively

seeking financial information relative to the case. Further, the State noted it filed a

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Prieur4 notice indicating its intent to introduce evidence of prior convictions and

was in the process of obtaining additional information from both the FBI and the

State of Arkansas. The State additionally pointed out that during the pendency of

the case, there had been both defense and joint continuances.

In its written reasons for granting the motion to quash, the trial court found

the defendant established all of the Barker factors. The trial court stated that at all

trial settings the State admitted its investigation was incomplete and as recently as

January 14, 2019, represented it was still not ready for trial. The trial court

explained that although the minutes might reflect the defendant moved for or

joined in requests for continuances, all of the continuances were caused by the

State' s failure to obtain evidence to support the charges. The trial court noted that

counsel for the BHOA indicated that many of the requested documents were no

longer available due to the passage of time, and that during the delay, a BHOA

member who would have testified for the defense had died.

The right to a speedy trial attaches when an individual becomes an accused,

whether by formal indictment or bill of information or by arrest and actual

restraint. State v. Odom, 03- 1772 ( La. App. 1 Cir. 4/ 2/ 04), 878 So. 2d 582, 593,

writ denied, 04- 1105 ( La. 10/ 8/ 04), 883 So. 2d 1026. Therefore, the defendant' s

right to a speedy trial attached when the bill of information was filed, not, as the

defendant argued, when the investigation began. See United States v. Loud Hawk,

474 U. S. 302, 312, 106 S. Ct. 648, 654, 88 L.Ed.2d 640 ( 1986) ( recognizing the

right to a speedy trial guaranteed by the Sixth Amendment does not limit the

length of a pre -indictment criminal investigation though that investigation may

cause stress, discomfort, or a disruption to normal life). Thus, the delay between

institution of prosecution and trial was less than two years. Given the specific

crimes charged, we do not find a delay of this length was presumptively

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See State v. Prieur, 277 So. 2d 126 ( La. 1973).

on

prejudicial, particularly where the defendant conceded she was released from

custody immediately following her arrest and the record does not indicate she was

thereafter incarcerated. However, we find it appropriate to consider the remaining

Barker factors reviewed by the trial court in reaching its decision. Cf.State v. Bell,

13- 0117 ( La. 9/ 27/ 13), 122 So. 3d 1007; Love, 847 So. 2d at 1210.

The second factor is the reason for the delay. The record reflects the

defendant' s case was repeatedly continued; however, the delays were not solely

attributable to the State. Rather, four continuances were ordered by the trial court

without motion of the parties or pursuant to a bench conference. Six continuances

were ordered upon motion of the defendant alone or by joint motion of the

defendant and the State. The record shows no objection by the defendant to the

continuances ordered without a motion or to those ordered on motion of the State.

Further, the record shows no indication the defendant actively sought a hearing or

ruling on the outstanding motions. In fact, on November 26, 2018, the motions

were continued without date at the defendant' s request.

In considering the third factor, the assertion of her speedy trial right, the

Barker balancing test allows a court to weigh the frequency and force of the

objections as opposed to attaching significant weight to a purely pro forma

objection. Barker, 92 S. Ct. at 2191. A defendant' s failure to assert the right does

not constitute a waiver, but will make it difficult to prove she was denied a speedy

trial. See Barker, 92 S. Ct. at 2193. The record before us reflects the defendant

made no formal speedy trial claim before filing her motion to quash. Considering

this, her assertion by means of the motion to quash is not entitled to significant

weight. See Barker, 92 S. Ct. at 2194- 95; Love, 847 So. 2d at 1212.

The final Barker factor to be considered is the prejudice to the defendant

resulting from the delay. The assessment of prejudice involves weighing the

defendant' s interests to prevent oppressive pretrial incarceration, to minimize the

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anxiety and concern of the accused, and to limit the possibility the defense will be

impaired. Barker, 92 S. Ct. at 2193. Impairment of a defendant' s ability to prepare

her case is the most serious form of prejudice normally experienced by an accused

whose trial is delayed because the inability of a defendant to adequately prepare

her case skews the fairness of the entire system. See Barker, 92 S. Ct. at 2193. The

stigma of being charged with the crime, without a showing the delay impaired

defense against the charges, does not establish prejudice. See State v. Batiste, 05-

1571 ( La. 10/ 17/ 06), 939 So. 2d 1245, 1250- 51.

The defendant argued to the trial court that she had been " severely

prejudiced by the State' s unreasonably long delay." She claimed she endured

continued anxiety and stress following her arrest, and though she was not

incarcerated, " remained subject to the significant restrictions of [her] bond." She

also contended a " key witness" had died, referring to Dr. Robert Miles, a BHOA

member when the crime was allegedly committed. The defendant argued in her

memorandum that Dr. Miles " was known to be an outspoken defender and

supporter of [the defendant] as it relates to these allegations and charges pending

before [ the] Court. For these reasons, Dr. Miles' testimony would have been a

crucial and compelling part of [the defendant' s] defense." Further, she argued that

crucial, exculpatory financial records" were lost during the delay.

The record before us reflects no violation of the defendant' s constitutional

right to a speedy trial. The defendant was subjected to a delay of less than twenty-

one months, during which time she was not incarcerated. Although she claims all

of the delays were due to the State' s unpreparedness, she did not object to the

continuances and even joined in some of the requests. Further, she did not move

for a speedy trial before filing her motion to quash. See Bell, 122 So. 3d at 1007.

The defendant claimed she was prejudiced by the death of a witness and the loss of

evidence; however, she has not provided specific details regarding the expected

testimony of the witness or the lost evidence. See State v. Dyer, 06- 0619 ( La.

7/ 11/ 06), 933 So. 2d 788, 792 ( per curiam), cert. denied sub nom., Thomas v.

Louisiana, 549 U. S. 1122, 127 S. Ct. 945, 166 L.Ed.2d 722 ( 2007) ( where despite

the defendants' claim that two important witnesses were lost, one of whom they

claimed had died, the Court found the defendants failed to show specific prejudice

from the delay absent details as to why those witnesses were material). We

observe too that the delays in the present case do not necessarily inure solely to the

detriment of the defendant because " time can tilt the case against either side ...

and] one cannot generally be sure which [ side] it has prejudiced more severely."

See Id. (quoting Doggett v. United States, 505 U. S. 647, 655, 112 S. Ct. 2686,

2693, 120 L.Ed.2d 520 ( 1992)).

Considering the foregoing, the trial court' s January 17, 2019 ruling granting

the motion to quash is reversed and this matter is remanded for further

proceedings.

REVERSED AND REMANDED.

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 KA 0591

STATE OF LOUISIANA

VERSUS

LAURA AMANDA KOZMA

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J., dissenting.

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. State v. Love, 00- 3347,

pp. 9- 10 ( La. 5/ 23/ 03), 847 So. 2d 1198, 1206. However, a trial court' s legal

findings are subject to a de novo standard of review. See State v. Smith, 99- 0606,

p. 3 ( La. 7/ 6/ 00), 766 So. 2d 501, 504.

A defendant' s Sixth Amendment 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. State of N.C., 386 U.S.

213, 222, 87 S. Ct. 988, 993, 18 L.Ed.2d 1 ( 1967). See also La. Const. art. 1, § 16.

The underlying purpose of this constitutional right is to protect a defendant' s

interest in preventing oppressive pretrial incarceration, minimizing anxiety and

concern, and limiting the possibility that the defense will be impaired. Barker, 407

U. S. at 532, 92 S. Ct. at 2193. The United States Supreme Court identified four

factors to determine whether a particular defendant had been deprived of his right

to a speedy trial, namely: ( 1) the length of delay; ( 2) the reason for the delay; ( 3 )

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the defendant' s assertion of his right; and ( 4) prejudice to the defendant. Barker,

407 U. S. at 530, 92 S. Ct. at 2192. The Louisiana Supreme Court has explained:

The first of the Barker factors, the length of the delay, is a threshold
requirement for courts reviewing speedy trial claims. This factor
serves as a " triggering mechanism." Unless the delay in a given case
is " presumptively prejudicial," further inquiry into the other Barker
factors is unnecessary. However, when a court finds that the delay
was " presumptively prejudicial," the court must then consider the
other three factors. [ Citations omitted.]

Love, 847 So. 2d at 1210.

Under the rules established in Barker, none of the factors are regarded " as

either a necessary or sufficient condition to the finding of a deprivation of the right

of speedy trial." Barker, 407 U. S. at 533, 92 S. Ct. at 2193. Instead, they are

related factors that must be considered together with other relevant factors " in a

difficult and sensitive balancing process." Id.

Until there is some delay that is presumptively prejudicial, it is not necessary

to inquire into the remaining factors of the balancing test. See Barker, 407 U. S. at

530, 92 S. Ct. at 2192; Mathews, 13- 0525 at p. 2, 129 So. 3d at 1218; Love, 00-

3347 at p. 16, 847 So. 2d at 1210; State v. Huy The Dao, 16- 1076, p. 4 ( La. App.

1st Cir. 6/ 2/ 17), 222 So. 3d 992, 994. The trial court, in its reasons, found that this

Barker factor was met, I do not disagree with that finding.

With respect to the second Barker factor, the reason for delay, the trial court

made clear that the delay was clearly attributable to the State. Prior to the filing of

the motion to quash in this case, there were twelve dates on which continuances

were ordered. Despite the fact that the defendant, through her attorney, moved for

or joined in some of the continuances, the trial court found that at all times, the

continuances were caused by the state' s failure to obtain evidence to support the

charges. The trial court took pains to note that, " at no time has any prosecutor been

in a position to represent that the case investigation was complete. Thus, at no time

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has the state maintained that it had tendered all discovery to which the defendant

was entitled."

As to the third Barker factor, the assertion of her speedy trial right, I note

that the Barker balancing test allows a court to weigh the frequency and force of

he objections as opposed to attaching significant weight to a purely pro forma

objection. Barker, 407 U. S. at 529, 92 S. Ct. 2191. The trial court gave significant

weight to the defendant' s efforts to move this matter forward, including seeking a

subpoena duces tecum to acquire the necessary evidence to move this matter to

trial. The trial court found that this factor was met, and the record before us

supports that finding.

Regarding the final Barker factor, actual prejudice to the accused, as noted

by the trial court in its reasons:

Exhibits introduced at the hearing on Defendant' s
Motion to Quash showed that Defendant sought a
subpoena duces tecum to be issued to the BHOA for
records evidencing the charges. After the BHOA failed
to fully comply with the subpoena, Counsel for the
Defendant followed up with a letter. In response, a letter
from Trey Lape, counsel for BHOA, clearly and

concisely established that many of the documents
requested were no longer available, due to the passage of
time. Furthermore, the State did not contest the fact that a
witness, who was a Board Member of the Association
would have testified at trial on Defendant' s behalf.
During the delays occasioned by the State, that witness
has died.

The trial court' s finding that the actual prejudice factor under Barker was met is

fully supported by the record.

On the record before us, I cannot say that the trial court abused its discretion

in granting the defendant' s motion to quash based on a violation of the defendant' s

constitutional right to a speedy trial. Therefore, I respectfully dissent from the

majority' s opinion in this matter.

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