State of Louisiana v. C.W. W.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-531

STATE OF LOUISIANA

VERSUS

C.W.W.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-367-07
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

David W. Burton
District Attorney
36th Judicial District
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

Richard F. Blankenship
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(318) 463-5578
Counsel for Appellee:
State of Louisiana

Mitchel M. Evans II
Attorney at Law
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
Counsel for Defendant/Appellant:
C.W.W.

DECUIR, Judge.

Defendant, C.W.W.1, was charged by bill of information filed on April 24,

2007, with the following: (1) attempted aggravated rape, in violation of La.R.S. 14:42

and La.R.S. 14:27; (2) molestation of a juvenile, in violation of La.R.S. 14:81.2; and

(3) theft of a thing having a value greater than $500.00, in violation of La.R.S. 14:67.

Defendant filed a Motion to Quash alleging the State had failed to bring him to trial

within the two years provided for by La.Code Crim.P. art. 578. The motion was

denied, and subsequently Defendant entered a guilty plea pursuant to both State v.

Crosby, 338 So.2d 584 (La.1976), and North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160 (1970), to the amended charge in count two of indecent behavior with a

juvenile, in violation of La.R.S. 14:81, and to theft of a thing having a value greater

than $500.00. The charge of attempted aggravated rape was dismissed. Defendant

was then sentenced to concurrent sentences of seven years at hard labor for indecent

behavior and ten years at hard labor for theft.

Defendant is now before this court asserting one assignment of error. Therein,

he contends the trial court erred in denying his Motion to Quash.

FACTS

Police reports indicate Defendant dragged A.T. through her home, choked her,

ripped her shirt and bra, inserted his fingers into her vagina, and bit her chest.

Defendant’s acts were interrupted by the arrival of A.T.’s boyfriend, J.G. Defendant

then fled in a vehicle belonging to A.T.’s parents.

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The Defendant’s initials are being used in accordance with La.R.S.
46:1844(W).

ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends the trial court erred in

denying his Motion to Quash. Defendant argues that both his statutory and

constitutional rights to speedy trial were violated. We will discuss the statutory and

constitutional issues separately.

STATUTORY RIGHT TO SPEEDY TRIAL

“As a general matter, the state has two years from the institution of prosecution

to begin trial of a non-capital felony. La.C.Cr.P. art. 578(A)(2).” State v. Romar, 07-

2140, p. 3 (La. 7/1/08), 985 So.2d 722, 725. In the case at bar, prosecution

commenced with the filing of the bill of information on April 24, 2007. The charged

offenses were non-capital felonies; thus, the State had until April 24, 2009, to bring

Defendant to trial. La.Code Crim.P. art. 578.

A motion to quash is the proper procedural vehicle for challenging an untimely

commencement of trial. See La.Code Crim.Proc. arts. 532(7), 581; see also State v.

Brown, 451 So.2d 1074 (La.1984); State v. Taylor, 439 So.2d 410 (La.1983); State

v. Walgamotte, 415 So.2d 205 (La.1982). When defendant has brought an apparently

meritorious motion to quash based on prescription, the state bears a heavy burden to

demonstrate either an interruption or a suspension of the time limit such that

prescription will not have tolled. See Brown, 451 So.2d 1079; State v. Taylor, 439

So.2d 410, 412 (La.1983); State v. Walgamotte, 415 So.2d 205 (La.1982); State v.

Nations, 420 So.2d 967 (La.1982); and State v. Driever, 347 So.2d 1132 (La.1977).

An interruption of prescription occurs when the state is unable,
through no fault of its own, to try a defendant within the period specified
by statute, in this case two years. The Louisiana Code of Criminal
Procedure article 579(A)(2) provides in pertinent part that the two-year
period of limitation will be interrupted if the defendant “cannot be tried
because of insanity or because his presence for trial cannot be obtained

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by legal process, or for any other cause beyond the control of the state.”
Once the cause of interruption disappears, the two-year time limit begins
anew. See La.Code Crim.Proc.Ann. art. 579(B). In contrast, the
prescriptive period is merely suspended, until the trial court rules on the
filing of preliminary pleas. The relevant period is simply not counted,
and the running of the time limit resumes when the motions are ruled on.
Note, however, that “in no case shall the state have less than one year
after the ruling to commence the trial.” La.Code Crim.Proc.Ann. art.
580.

State v. Rome, 93-1221, p. 4 (La. 1/14/94), 630 So.2d 1284, 1287 (footnote omitted).

In this case, the trial of this matter was reset for August 17, 2009, which was

outside the two-year time period to commence trial. The State argues that Defendant

did not object to the State’s motions to refix the trial date and, therefore, may not now

complain about this issue and assert there was no basis for the resetting of trial.

La.Code Crim.P. art. 841. We find no cases involving the statutory right to speedy

trial in which a court has held that by failing to object to the setting of a trial outside

the two-year time limitation, a defendant acquiesced in the setting.

Accordingly, we must determine if there was a suspension or interruption of

the prescriptive period in the case at bar.

The State has asserted that J.G.’s military service made him unavailable during

a portion of the two-year time period and that this served as an interruption of the

time in which the State had to commence trial. The record reflects the following with

regard to J.G.’s location and availability:

11/30/07 - 6/26/08 - “A School” in Great Lakes, Illinois.

7/14/08 - 11/11/08 - “C School” in Norfolk, Virginia.

1/4/09 - 6/26/09 - Deployed to the Persian Gulf.

6/29/09 - 9/14/09 - “C School” in San Diego, California.

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Defendant asserts that a subpoena ad testificandum could have been issued for

the presence of J.G. Such a subpoena is governed by La.Code Crim.P. art. 741, et

seq., which deal with subpoenas to obtain witnesses from other states. J.G. was

serving in the military. Federal law provides that members of the United States Navy

may refuse out-of-state service of process by mail and by process server. 32 C.F.R.

§ 720.20. Moreover, 32 C.F.R. § 720.21, which governs service of process and

subpoenas to members or civilian employees of the United States Navy, classifies

persons serving overseas as unavailable. Therefore, J.G. was beyond the subpoena

power of the trial court and unavailable while he was in the Persian Gulf.

The State argues the matter is distinguishable from State v. Driever, 347 So.2d

1132 (La.1977), where the court found that the State could not rely on the indefinite

unavailability of a witness to interrupt the prescriptive period. We agree. In this

case, the State knew when J.G. would be available, set the trial date accordingly, and

proceeded to prepare for trial.

Accordingly, we find the prescriptive period was interrupted while J.G. was

shipboard in the Persian Gulf from January 4 through June 26, 2009. Thus, the State

had two years from the date J.G. became available to commence trial. La.Code

Crim.P. art. 579(B). The Motion to Quash was filed prior to the running of the time

limitation and was, therefore, properly denied.

CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

We will now address Defendant’s constitutional right to speedy trial.

The constitutional right to a speedy trial is imposed upon the states by
the Due Process Clause of the Fourteenth Amendment. Klopfer v. North
Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967).
The underlying purpose of this constitutional right is to protect a
defendant’s interest in preventing pretrial incarceration, limiting
possible impairment of his defense, and minimizing his anxiety and

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concern. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33
L.Ed.2d 101 (1972). The Supreme Court has set forth the following four
factors for courts to consider in determining whether a defendant’s right
to a speedy trial has been violated: (1) the length of the delay; (2) the
reasons for the delay; (3) the accused’s assertion of his right to speedy
trial; and (4) the prejudice to the accused resulting from the delay. Id.
at 531-532, 92 S.Ct. at 2192-93; see also State v. Reaves, 376 So.2d 136
(La.1979) (adopting Barker factors). The specific circumstances of a
case will determine the weight to be ascribed to the length of and reason
for the delay because “the delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex conspiracy
charge.” Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92
S.Ct. at 2192).

State v. Batiste, 05-1571, pp. 6-7 (La. 10/17/06), 939 So. 2d 1245, 1250.

The Length of the Delay

The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial, the
length of the delay that will provoke such an inquiry is necessarily
dependent upon the peculiar circumstances of the case. To take but one
example, the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge.

Barker, 407 U.S. at 530-31, 92 S.Ct. 2191 (footnote omitted).

The time between the filing of the bill of information and the Motion to Quash

was approximately twenty-eight months. In State v. Larkins, 97-2898 (La.App. 4 Cir.

2/18/98), 707 So.2d 1331, writ denied, 98-659 (La. 4/24/98), 717 So.2d 1179, the

fourth circuit held that a twenty-six month delay and a twenty-one month delay were

presumptively prejudicial, triggering an analysis of the other three Barker factors. In

State v. Love, 00-3347 (La. 5/23/03), 847 So.2d 1198, the court found a twenty-two

month delay was presumptively prejudicial.

The Reason for the Delay

Closely related to length of delay is the reason the government
assigns to justify the delay. . . . [D]ifferent weights should be assigned
to different reasons. A deliberate attempt to delay the trial in order to

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hamper the defense should be weighted heavily against the government.
A more neutral reason such as negligence or overcrowded courts should
be weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the
government rather than with the defendant. Finally, a valid reason, such
as a missing witness, should serve to justify appropriate delay.

Barker, 407 U.S. at 531, 92 S.Ct. 2191 (footnote omitted).

The State reset this matter for trial several times. The reason given for the

resetting at the hearing on the Motion to Quash was that J.G. was not available to

testify. Additionally, results of a DNA analysis were not provided to Defendant until

June 15, 2009, Defendant was interested in those results, and admitted he could not

cross-examine undeveloped forensic evidence. Furthermore, in brief to this court,

Defendant asserts he could not have filed a motion for speedy trial as DNA evidence

that could have been outcome determinative had not been completed, so neither he

nor the State was prepared to proceed to trial.

In this case, Defendant acquiesced in the delay. Further, he was not interested

in proceeding to trial, as he was concerned about the results of a DNA analysis and

the results were not sent to Defendant until June 15, 2009.

Assertion of the Right to Speedy Trial

We have already discussed the third factor, the defendant’s
responsibility to assert his right. Whether and how a defendant asserts
his right is closely related to the other factors we have mentioned. The
strength of his efforts will be affected by the length of the delay, to some
extent by the reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he experiences.
The more serious the deprivation, the more likely a defendant is to
complain. The defendant’s assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right. We emphasize that a failure to
assert the right will make it difficult for a defendant to prove that he was
denied a speedy trial.

Barker, 407 U.S. at 531-32, 92 S.Ct. 2192-93 (footnotes omitted).

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Although the Defendant sent correspondence to the trial court complaining that

his trial had been continued, he never asserted his right to speedy trial prior to the

filing of the Motion to Quash.

Prejudice as a Result of the Delay

A fourth factor is prejudice to the defendant. Prejudice, of course,
should be assessed in the light of the interests of defendants which the
speedy trial right was designed to protect. This Court has identified
three such interests: (i) to prevent oppressive pretrial incarceration; (ii)
to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired. Of these, the most serious
is the last, because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. If witnesses die or
disappear during a delay, the prejudice is obvious. There is also
prejudice if defense witnesses are unable to recall accurately events of
the distant past. Loss of memory, however, is not always reflected in the
record because what has been forgotten can rarely be shown.

We have discussed previously the societal disadvantages of
lengthy pretrial incarceration, but obviously the disadvantages for the
accused who cannot obtain his release are even more serious. The time
spent in jail awaiting trial has a detrimental impact on the individual. It
often means loss of a job; it disrupts family life; and it enforces idleness.
Most jails offer little or no recreational or rehabilitative programs. The
time spent in jail is simply dead time. Moreover, if a defendant is
locked up, he is hindered in his ability to gather evidence, contact
witnesses, or otherwise prepare his defense. Imposing those
consequences on anyone who has not yet been convicted is serious. It
is especially unfortunate to impose them on those persons who are
ultimately found to be innocent. Finally, even if an accused is not
incarcerated prior to trial, he is still disadvantaged by restraints on his
liberty and by living under a cloud of anxiety, suspicion, and often
hostility.

Barker, 407 U.S. 532-33, 92 S.Ct. 2193 (footnotes omitted).

Defendant asserts he was prejudiced by the delay because his mother and step-

father, who were to be character witnesses for him and were to pay for experts who

would testify regarding his defense, died before his trial was held.

Defendant filed his notice of defense on January 18, 2008. The first trial fixing

was for February 19, 2008. The record indicates Defendant’s mother died on

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February 22, 2008, and his step-father died on February 29, 2008. If experts were to

be hired to prepare for trial, they were not hired prior to the first trial fixing and the

deaths of Defendant’s mother and step-father.

After reviewing the Barker factors, we find the trial court did not err in denying

Defendant’s Motion to Quash on constitutional grounds.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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