
    STATE of Louisiana v. Corey QUINN.
    No. 2013-KA-0726.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2014.
    
      Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, J. Bryant Clark, Jr., Assistant District Attorney of Orleans Parish, New Orleans, LA, for Appel-lanl/State of Louisiana.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

liThe State appeals the trial court’s judgment granting Corey Quinn’s motion to quash the bill of information. Based on the record before us, we find that the trial court abused its discretion and reverse its judgment.

STATEMENT OF CASE

Essentially, this appeal addresses the State’s ability to dismiss and reinstitute charges in the context of a defendant’s right to a speedy trial. In September of 2009. the defendant was arrested for the attempted murder of Damian Jackson. On November 17, 2010, in case number 492-310 “C”, the defendant, Corey Quinn, was formally charged with attempted second degree murder of Damian Jackson, in violation of La. R.S. 14:(27)30.1. On November 19, 2009, he was arraigned and pled not guilty. On January, 22, 2010, a motion hearing was continued by joint motion and the matter was re-set to March 2, 2010. At the March 2, 2010 hearing trial was set for May 4, 2010. On April 29, 2010, the defendant filed a motion to continue trial; trial was continued to July 13, 2010, and again to August 24, 2010. By joint motion, trial was again continued to November 9, 2010. On that date the State filed a motion to continue, which was granted and trial was re-set for December 9, 2010. On that date, prior to the beginning of trial, the trial court ^denied the State’s request for a continuance based upon the unavailability of a witness, the victim, Damian Jackson; the State entered a nolle prose-qui.

On December 10, 2010, the State reinsti-tuted prosecution under case number 502-583 “C”. Trial was re-set for March 23, 2011. Upon joint motion, the trial was again re-set until May 19, 2011. On May 19, 2011, trial was continued upon defendant’s motion. On July, 18, 2011, the State entered its second nolle prosequi, based upon the unavailability of a witness/ victim and reinstituted charges under case number 507-507 “C”. On August 24, 2011, the defendant filed a motion to quash the bill of information, which is the basis for this appeal. On September 2, 2011, the trial court granted the defendant’s motion to quash.

STATEMENT OF FACT

This is a pre-trial appeal, and the record contains no evidence of the underlying alleged crime. All relevant facts are stated in the statement of the case above and the discussion below.

DISCUSSION

In its sole assignment of error, the State asserts the trial court abused its discretion when it granted the defendant’s motion to quash the bill of information on September 2, 2011, relying upon a violation of the defendant’s constitutional right to a speedy trial under the due process clause of the U.S. Const. Amend. XIV and La. Const, art. 1 § 16.

We generally review a trial court’s ruling on a motion to quash under an abuse of discretion standard. See State v. Love, 2000-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Batiste, 2005-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251.

La.C.Cr.P. art. 691 grants Louisiana district attorneys the authority and discretion to dismiss criminal charges. Dismissal does not bar subsequent prosecution, except when 1) the defendant does not consent to the dismissal and the first witness has been sworn in at a trial on the merits, and 2) a city court conviction has been appealed to the district court for de novo review. La.C.Cr.P. art. 693. Also, La. C.Cr.P. art. 576 prohibits dismissal and reinstitution of charges in order to circumvent that time limitations upon prosecution found in La.C.Cr.P. art. 578. Batiste, 2005-1571, p. 5, 939 So.2d at 1249.

Louisiana jurisprudence has recognized that the State’s authority to dismiss and reinstitute charges may be overborne under the circumstances of any given case by a defendant’s constitutional right to a speedy trial. State v. Bias, 2006-1153, p. 3 (La.App. 4 Cir. 12/20/06), 947 So.2d 797, 799; See also State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080 (Recognizing the State’s right to nolle pro-sequi and reinstitute charges after being denied a continuance, where there was no shown attempt to circumvent statutory time limits and no speedy trial violation).

The sole basis of the motion to quash was the constitutional right to a speedy trial. The standard for analyzing a defendant’s claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The circumstances of each individual case will | determine the weight to be ascribed to the length of and the reason for the delay. Id. (citing State v. Reaves, 376 So.2d 136, 138 (La.1979)) (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192). “[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a -serious, complex conspiracy charge.” Reaves, supra at 138. In Barker, the court noted that the length of delay is a triggering mechanism, and the other three factors need not be addressed unless the court finds the length of delay to be presumptively oppressive given the circumstance of the case. State v. DeRouen, 96-0725, p. 3 (La.App. 4 Cir. 6/26/96), 678 So.2d 39, 40. In cases where the district attorney dismisses and reinstitutes charges, the Louisiana Supreme Court has repeatedly stated:

In those cases 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.

Batiste, 2005-1571, p. 5, 939 So.2d at 1249 (quoting Love, 2000-3347, p. 14, 847 So.2d at 1209). In cases where charges are reinstituted within the statutory periods of limitation, in order to merit relief the defendant must make a showing of specific prejudice to his defense. State v. Lee, 2011-0892, p. 2 (La.App. 4 Cir. 1/18/12), 80 So.3d 1292, 1293 (citing State v. King, 2010-2638 pp. 7-8 (La.5/6/11), 60 So.3d 615, 619-620).

Under Barker, the peculiar circumstances of each case determine the weight to be ascribed to the length of delay and the reason for delay. Love, 2000-3347, p. 16, 847 So.2d at 1210. These circumstances include the complexity of the case, the manner of proof, and the gravity of the alleged crime. Id. In this case, there is no question about statutory time limitations limiting further prosecution. The first | shill of information charging the defendant with attempted second degree murder was filed on November 17, 2009. The motion to quash was granted September 2, 2011, just under two years later. In State v. Payton, 2006-1202 (La.App. 4 Cir. 2/28/07), 954 So.2d 193, this Court found a seventeen month lapse between the filing of a bill of information charging possession of cocaine, a violation of La. R.S. 40:967, and the filing and granting of a motion to quash was not prejudicial. In Lee, this Court did not perform a complete Barker v. Wingo analysis, focusing instead on Lee’s failure to show specific prejudice. Lee, 2011-0892, pp. 2-3, 80 So.3d at 1293 (citing King, 2010-2638, 60 So.3d 615). Lee was originally charged with aggravated battery but the State dismissed that charge and recharged him with second degree murder. In Love, the Court found a twenty-two month delay in a possession with intent to distribute cocaine to be presumptively prejudicial. Love, 2000-3347, pp. 17-18, 847 So.2d at 1211. The Louisiana Supreme Court recently found a fifteen and a half month delay in prosecution of possession with intent to distribute marijuana was not presumptively prejudicial. State v. Mathews, 2013-0525 (La.11/15/13), 129 So.3d 1217.

Whether the length of the delay in this case invoked presumptive prejudice or not, analysis of the remaining factors shows that the record contains no evidence of said prejudice.

First, the reason for the delay was the absence of a key witness, who in the instant matter is also the victim. In Batiste, the Court determined that entering a nolle prossequi “because the victim was not present for trial and was wavering in her commitment to going forward with the case” was a legitimate reason and did not indicate the district attorney was flaunting his authority at the expense of the defendant. Batiste, 2005-1571, p. 6, 939 So.2d at 1249. Under these | ^circumstances, the Court found no violation of the right to a speedy trial. Id., 2005-1571, p. 8, 939 So.2d at 1251. The State had a legitimate reason for delay in this case.

Moreover, the record is void of any indication that the defendant moved for a speedy trial prior to filing his motion to quash. This failure inures against a finding that the defendant’s right to a speedy trial was violated. See Love, 2000-3347, p. 19, 847 So.2d at 1211-12 (trial court should weigh the frequency and force of the objections as opposed to attach significant weight to a purely pro forma objection).

Finally, and most importantly, the defendant showed no prejudice to his defense. As discussed above, in Lee, this Court forwent a complete Barker analysis because Lee failed to show specific prejudice. Lee, 2011-0892, pp. 2-8, 80 So.3d at 1293 (citing King, 2010-2638, 60 So.3d 615).

The first factor in Barker has been satisfied in this matter, and no further analysis under Barker is necessary. See DeRouen, 96-0725, at p. 3, 678 So.2d at 40. Nevertheless, considering the facts of this case and recent jurisprudence, we conclude that not only is the length of the delay within the spectrum of acceptability but there is no showing that the State was flaunting its authority at the expense of the defendant. Nor does the record reflect that the defendant asserted his right a speedy trial. Finally, the defendant has clearly failed to demonstrate any grounds to support the premise that that his defense of the charge against him has he has been prejudiced.

CONCLUSION

Based upon the record before this Court and the analysis above, we find that the trial court’s September 2, 2011 ruling granting the defendant’s motion to quash |7the bill of information, based upon a violation of the defendant’s constitutional right to a speedy trial under the due process clause of the U.S. Const. Amend. XIV and La. Const, art. 1 § 16, is reversed.

REVERSED.

LOMBARD, J., Dissents.

LOMBARD, J.,

Dissents.

| ,The issue before the court is whether the trial judge abused his discretion in granting the defendant’s motion to quash under the specific circumstances of this case. See State v. Love, 00-3347, pp. 14-15 (La.5/23/03), 847 So.2d 1198, 1209-10 (the right to a speedy trial is relatively vague and difficult to determine with precision and, therefore, must be analyzed in the particular context of the case).

The specific, relevant facts are as follows. After numerous continuances (during which time the defendant remained incarcerated), the State moved for yet another continuance on December 9.2010, after prospective jurors had already been sworn in. Outside the presence of the jury, the following colloquy took place:

STATE: Judge, at this time, the State would request a continuance on case number 492-310.
COURT: ... I believe this is at least the second time, minimal, that you requested a continuance. And I believe it was based on the fact that the Court was informed that the victim in this case indicated he wouldn’t be here and has not come and it’s even been discussed the possibility of issuing a material witness bond, which you haven’t requested as of yet. But there would have to be a showing that the victim in this case is truly unavailable. Just because he says he’s not coming, does not qualify, I wouldn’t think....
STATE: We would only put on the Record that I talked to the victim. He did indicate he was coming forward. And at this point, the jury’s up, and we don’t have a victim present.
COURT: Last time I believe we continued the case specifically for the victim to come forward.
INSTATE: We also have subpoenaed the victim. We had sent the investigator over yesterday to subpoena the victim at his residence on Spain Street. He was notified prior to today that we have a trial set, and he did indicate that he was not coming five minutes ago when I talked to him on the phone.
COURT: All right.
STATE: And we also indicated to him that we would issue an attachment for his arrest. He indicated he would pay the fine to get out of jail. I told him how much that it would be. He indicated that it was $250 to get out of jail. I told him that it was going to be much more than that. And at that point, he indicated he would just go to jail rather than come to court.
COURT: So basically, you’ve got someone who also turned victim in this case, someone who is down right defiant of your request?
STATE: Yes, sir.
COURT: Was he subpoenaed?
STATE: He was subpoenaed yesterday and we sent the investigator over there until we realized that he lied about his place of employment—
COURT: Last time, if I’m not mistaken, didn’t we continue because he was stuck at work or something?
DEFENSE COUNSEL: That’s correct.
STATE: He told me he couldn’t take off work. He told me yesterday of where he worked and the number. And I called and I spoke to his supervisor and he indicated he hadn’t worked there in two weeks.
DEFENSE COUNSEL: He’s been in jail for over seven months, Judge.
COURT: On this charge?
DEFENSE COUNSEL: Yes, Judge.
COURT: Has the victim ever shown?
DEFENSE COUNSEL: Never, Judge.
STATE: No, sir.
COURT: It’s the State’s position that they don’t get him in for motions, but that’s a respectable position. But let me say this to you, Gentlemen and Ladies: It’s no secret that in a case whenever a victim |sand defendant know each other, it kind of sort of spells a problem. So based on what you’ve told me [ADA], I can’t grant you a continuance.
STATE: Yes, Sir. At this time, the State would enter a nolle prosqui [sic] as to 492-310, and we reserve the right to re-institute it.

The following day, before the defendant was released, the State reinstituted prosecution under case number 502-583 “C.” The defendant was again arraigned and trial was set for March 23, 2011, but on that date (March 23, 2011), the trial was continued by joint motion until May 19, 2011. Once again, on May 19, 2011, it was continued by defense motion until July 18, 2011. On that date, according to the docket masters, the defendant appeared for trial but the State entered its second nolle prosequi based on unavailability of the witness, and reinstituted charges under Case No. 507-507 “C.” Accordingly, in August 2011, after being incarcerated for over twenty-three months, the defendant filed the motion to quash at issue in this appeal. The State maintained that its actions were statutorily and constitutionally valid, insisting that this court determined in Larce, that neither “the defendant’s statutory nor his constitutional rights were violated based on the State’s dismissal and re-institution on the same exact issue, was an issue of whether or not the State was using the nol-pros [sic] and reinstitution as a continuance.” The following colloquy then took place:

COURT: So let me ask you this question: Was the person in continuous custody in the case that you’re holding in your hand?
STATE: State versus Larce, Judge?
COURT: Was the person in continuous custody?
STATE: I don’t have that information.
|4COURT: You don’t think that’s a relevant fact?

The trial judge then observed (in response to the State’s assertion that neither the continued absence of a witness nor the defendant’s continued custody was a consideration sanctioned by this court or the Louisiana Supreme Court), “[s]omewhere in that case law, they have to take into consideration whether a person is in custody continuously and a person who was out of bond.”

Finally, the trial judge then ruled on the motion to quash in the following context:

STATE: And given the fact that [defense counsel] is the individual who brought the motion to quash, we argue that [defense counsel] to [sic] supply the Court with some law stating that if a person is in continuous custody — As I stated previously, there’s other remedies for [defense counsel], if his client has been continuously in custody on [sic] the time. There’s several things that defense counsel could’ve done in that situation other than try to argue the merits of something that’s gone to the Fourth Circuit and the Supreme Court many times and they rule consistently the same way.
COURT: All right. We’re going to give them another chance to rule. Motion to quash granted.

Thus, it is clear from the hearing transcripts that the issue before the trial court (and, thus, this court on appeal) is not simply whether the State has the generic right to dismiss and re-institute charges. Rather, the trial judge was concerned with two issues: (1) whether the State, although acting within statutory parameters, was misusing its authority to nolle prose-qui and reinstitute proceedings to create its own continuance where it was unable to go forward with the prosecution because the victim adamantly refused to appear as a witness; and (2) ^whether the defendant’s continued custody should be considered a factor in determining whether or not to grant a motion to quash.

According to the U.S. Supreme Court, the purpose of the federal constitutional right to a speedy trial is “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved charges.” U.S. v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982) [emphasis added]. Therefore, when the motion to quash is based upon the district attorney entering a nolle prosequi and later reinstituting charges and it is evident that the district attorney is “flaunting his authority” at the expense of the defendant, the motion should be granted. State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249.

As pointed out by the majority, one of the factors for consideration in determining whether a defendant’s right to a speedy trial has been violated is the prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 531-532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Louisiana, this “[prejudice to the defendant should be analyzed in light of the following three interests that the right to speedy trial was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired.” State v. Love, 00-3347 at 19-20, 847 So.2d at 1212 [emphasis added]. Further, because the determination of 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 is within the trial court’s discretionary authority, absent an abuse of | ^discretion the trial judge’s decision should’ not be disturbed on appeal. See State v. Love, 00-3347, p. 11, 847 So.2d at 1207.

The majority asserts, however, that this defendant is not prejudiced because in Batiste, the Louisiana Supreme Court found held that the absence of a victim is a legitimate reason for the State to nolle prosequi. The Court, however, reversed the judgment granting the motion to quash under the “specific facts presented” and those facts are easily distinguishable from the ones in the instant appeal: (1) the defendant was not incarcerated during the twenty month delay; (2) the motion to quash was granted in Batiste after the State entered a nolle prosequi and reinsti-tuted charges once, not twice as in this case; and (3) the State entered a nolle prosequi “because the victim was not present for trial and was unsure whether she wanted to go forward with her testimony.” Batiste, 2005-1571, p. 8, 939 So.2d at 1251. Notably, although the victim in Batiste may have been reluctant, she had not (as has Mr. Jackson in this case) adamantly refused to come to court for previous trial settings or informed the State that she would go to jail rather than appear as a witness.

Therefore, under the specific circumstances of this case — where there appears to be no reasonable or foreseeable possibility of a trial actually taking place — the State’s decision to repeatedly re-institute proceedings merely to maintain the defendant’s incarceration status denies the defendant not only a fair trial but any trial at all. Such action surely constitutes a “flaunting” of the prosecutor’s authority, particularly in light of the fact that the statutory period has not expired and the trial judge’s decision to quash at this juncture in the proceedings is not prejudicial to the State. Clearly, if and when the complaining witness decides to comply with the State subpoena and to appear as a witness or |7the State ascertains it can go to trial without the witness, the State can re-institute the case and go forward with its prosecution of this defendant. The pretrial incarceration of the defendant without any trial foreseeable is clearly punitive and, because the defendant has not yet been convicted of a crime, oppressive. Thus, the trial judge did not abuse his discretion in granting the motion to quash.

Accordingly, I respectfully dissent. 
      
      . We note that the defendant remained incarcerated throughout the above trial court proceedings until September 2, 2011, when the trial court granted his motion to quash. Furthermore, the State's sole witness/victim, Damian Jackson has consistently failed to appear for any of the above court proceedings.
     
      
      . Because defense counsel never filed a speedy trial motion, the state speedy trial statute is not at issue. It was determined at the motion hearing on September 2, 2011, that the defendant had been in continual custody for more than twenty-three months and a trial date had been set nine times.
     
      
      . The issue in State v. Larce, 2001-1992 (La.App. 4 Cir. 1/23/02), 807 So.2d 1080 was whether the State was within its authority to nolle prosequi a case, reserving the right to reinstate charges, when its motion for a continuance was denied and the court explicitly confined its holding to cases where the defendant’s statutory or constitutional rights to a speedy trial were not at issue. Thus, Larce was inapplicable to the situation before the trial court.
     
      
      . This appears to be a correct assumption. As noted by the Louisiana Supreme Court recently in State v. Mathews, 2013-0525, p. 2 (La.11/15/2013), 129 So.3d 1217, the U.S. Supreme Court stated in U.S. v. Loud Hawk, 474 U.S. 302, 312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) "[Ujnder the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.” Thus, it follows that when the converse is true — the defendant is incarcerated — such incarceration is appropriately considered within the context of a constitutional speedy trial claim.
     
      
      . Upon defense counsel's request that the dismissal be with prejudice, the trial judge inferred he did not have the authority to dismiss with prejudice. Although such a remedy is drastic and rarely appropriate, the trial court does have such authority. State v. King, 2010-2638, p. 6 (La.5/6/11), 60 So.3d 615, 618.
     
      
      . Inexplicably, although acknowledging that a twenty-two month delay was found presumptively prejudicial in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the majority cites two cases wherein shorter time periods were found not to be presumptively prejudicial and concludes that the record shows no evidence of "said prejudice.”
     