Opposition — Cole v. Louisiana

No. 80-227

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

CHARLES COLE,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Petition for a Writ of Certiorari to

The Supreme Court of the

State of Louisiana

BRIEF ON BEHALF OF

THE STATE OF LOUISIANA

IN OPPOSITION

WILLIAM GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

BARBARA RUTLEDGE

ASSISTANT ATTORNEY GENERAL

STATE OF LOUISIANA

MARION FARMER

DISTRICT ATTORNEY

22ND JUDICIAL DISTRICT

STATE OF LOUISIANA

ABBOTT J. REEVES

ASSISTANT DISTRICT ATTORNEY

RESEARCH AND APPEALS

P.O. BOX 465

419 DERBIGNY STREET

GRETNA, LOUISIANA 70054

TELEPHONE: (504) 367-1212

Attorney of Record for

Respondent

SCOFIELDS® QUALITY PRINTERS. P. 0. BOX 59006. N. O.. LA. 70183 - 604/822-1611

QUESTIONS PRESENTED FOR REVIEW

I. Whether the death of the sole eyewitness (prior to

relator’s arraignment) to crime by relator, which

death was caused by the relator, constitutes preju-

dice to the relator. Barker vs. Wingo, 407 U.S. 514, 92

S.Ct. 2182, 33 L.Ed.2d 101 (1972).

II. Whether relator was denied his right to a speedy

trial. Sixth Amendment to United States Consti-

tution; Barker vs. Wingo, 407 U.S. 514, 92 S.Ct. 2182,

33 L.Ed.2d 101 (1972); U.S. vs. Marion, 404 U.S. 307,

313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971).

PARTIES

Relator Charles Cole, indicted for aggravated bat-

tery on Billy Ray Crain in violation of LSA-R.S. 14:34

and who has been subsequently charged with man-

f slaughter of the sole eyewitness to the aggravated bat-

tery, Johnny Fitzmorris, and Respondent State of

Louisiana were the only parties to this case in the

courts below.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........ i

PUM MEER ce UlS winch n GaN 0d codek's kc ccsdaucs i

TABLE OF CONTENTS ..............cccceceee iii

LIST OF AUTHORITIES ...............cc0c00e iv

ROEM BELOW «0. cen ckcccck cccbececevhcecece 1

STATEMENT OF THE CASE .................5. 2

REASONS FOR DENYING THE APPLICATION

PRIS WO 5 vs valeioteins cecdiva cual cbcsvclol 4

There Is No Prejudice To Relator Where

Death Of Witness Was Caused By The Re-

Eb nitad es cae PBie iii: Co eB lic chicdcus Oe iek. 4

Time Delays Justified .............c. ccc cc ceucs 4

Time Limitation Between Criminal Act And

Indictment Not A Factor Re: Speedy Trial ..... 5

The First And Only Assertion Of Right To

Speedy Trial Was Just Recently Asserted ...... 6

SAVIN sas 5 ROK. Uc uLAd reece od vcdccece 8

PUG VOCE occ cwidddecccetévececcccece Ss

' PREVIOUS PAGE WAS BLANK |

aoe

iv

LIST OF AUTHORITIES

Page

SIXTH AMENDMENT TO

Dis CRP LEAS PECOUE. Wie ibe Bhiee wiie dee Wd dere i,7

CSAS Cer. Art. CIMA) eek etek ede dee t eis 6

CSP, ER. GO dies ko cided dct beadee dé 6

CRA, BI cy oh iis ca ceils Cob Ge ERR i

RAKKER VS. WINGO, 407 U.S. 514, 92 S.Ct.

2182, 33 I..Ed.2d 101 (1972) ........eeeee- i,4,6,7

DILLINGHAM VS. U.S., 423 U.S. 64, 96 S.Ct.

303, 46 L.Ed.2d 205. (1978) ..ccccccccccccccees 5

HILL VS. WAINWRIGHT, 617 F.2d 375 (CAS,

ON ga Sa a See uebe 4,6

HOSKINS VS. WAINWRIGHT, 485 F.2d 1186

Cn: ee ee egy 6

PRINCE VS. ALABAMA, 507 F.2d 693 (CAS,

SOR ae i eas cnc ak wea A Keay Sink e 6

STATE VS. COLE, 384 So.2d 374 (La. 1980) ..... 1,3

STATE VS. HAMILTON, 369 So.2d 1299

i ROT ea ia aoc ks ie atins bambiibanac eas vn 6

U.S. VS. AVALOS, 541 F.2d 1100 (CAS, 1976) ..... 6

U.S. VS. DiFRANCISCO, 604 F.2d 769 (CA2,

1979) cert. granted, _._. U.S. ___,, 100

S.Ct. 1012, 62 L.Ed.2d 751 (1980) ............. 7

U.S. VS. HENRY, 615 F.2d 1223 (CA9, 1980) ...... 5

Vv

LIST OF AUTHORITIES (Continued)

U.S. VS. LANE, 561 F.2d 1075 (CA2, 1977) ........ 7

U.S. VS. McGRATH, 622 F.2d 36 (CA2, 1980) ..... 7

U.S. VS. MARION, 404 U.S. 307, 92 S.Ct. 455,

DRAG AOD CIOTEIS bas i's 0.0s Spans ede vvcice i,5

U.S. VS. VISPI, 545 F.2d 328 (CA2, 1976) ......... 6

No. 80-227

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CHARLES COLE,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Louisiana

BRIEF ON BEHALF OF

THE STATE OF LOUISIANA

IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of Louisiana is re-

ported as State vs. Cole, 384 So.2d 374 (La. 1980). The

text of the opinion is correctly set out in the relator’s

appendix to his application, page 24a.

_-

2

STATEMENT OF THE CASE

Charles Cole, relator herein, allegedly committed a

battery with a dangerous weapon, to wit: a baseball bat,

upon Billy Ray Crain, on September 9, 1975. The trial

court and Louisiana State Supreme Court denied his

Motion to Quash, rejecting relator’s claim of denial of

right to a speedy trial. Relator had advanced the argu-

ment that because Johnny Fitzmorris, the alleged sole

eyewitness to the alleged aggravated battery died prior

to arraignment, he was prejudiced. This same relator

has been charged (though not yet tried) for the man-

slaughter death of this same alleged eyewitness,

Johnny Fitzmorris. Fitzmorris died in May, 1979.

The chronology of pertinent events is as follows:

September 9, 1975 .. Relator committed

crime of aggravated

battery.

November 6, 1977 .. Relator (“picked up”)

investigated for crime

of aggravated battery.

February 21, 1978 .. Relator indicted for

aggravated battery.

May, 1979 ......... Eyewitness to aggra-

| vated battery killed.

PO BOTY we coed woe Relator indicted for

manslaughter of eye-

witness (separate

case).

July 31, 1979

Aug. 27, 1979.

Nov. 8, 1979

Nov. 12, 1979

Jan. 8, 1980

Jan. 14, 1980

Feb. 21, 1980

May 19, 1980

June 23, 1980

Aug. 15, 1980

3

Relator arraigned for

aggravated battery.

Trial continued at

request of relator.

Relator filed Motion to

Quash on grounds of

denial of speedy trial.

Trial continued at

request of relator.

Hearing on Motion

to Quash.

Trial continued

pending writ

application.

Writ granted in La.

Supreme Court.

La. Supreme Court

opinion, State vs. Cole,

384 So.2d 374 (1980)

affirming no denial of

speedy trial.

Rehearing denied by

La. Supreme Court.

Relator’s Application

for Writ to U.S.

Supreme Court.

">

4

REASONS FOR DENYING THE

APPLICATION FOR WRIT

There Is No Prejudice To Relator Where

Death Of Witness Was Caused By The Re-

lator.

The pertinent balanciig advanced by this Court in

Barker vs. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972) in the instant case is whether or not there

was a substantial prejudice to the accused by his loss

(caused by the death of) the alleged sole eyewitness,

Johnny Fitzmorris. Inasmuch as the Relator has been

charged with the killing of Johnny Fitzmorris (though

not yet tried), as revealed at the hearing on the Motion

to Quash, the Respondent, State of Louisiana, submits

the Relator cannot claim prejudice where Fitzmorris’

death is attributable to the Relator. Hill vs. Wainwright,

617 F.2d 375, 378 (CAS, 1980).

In the dialect it is called “chutzpah,” when the de-

fendant before the bar begs for mercy as an orphan

after being charged with killing his mother and father.

Time Delays Justified.

As to the time allegations of excessive limitations of

time regarding institution of prosecution and com-

mencement of trial, the State submits there is no ques-

tion in the instant case o: timely filing by the State. The

Relator simply raises the issue of the “length of time”

5

stated in the statutes. Yet he shows no prejudice by the

length of time involved. The only prejudice he alleges is

the death of the sole eyewitness which occurred, alleg-

edly, by his own hand.

Time Limitation Between Criminal Act And

Indictment Not A Factor Re: Speedy Trial.

The limitations herein are acts of grace by the State

Legislature. The Sixth Amendment right to a speedy

trial does not attach until the relator-defendant be-

comes an “accused.” United States vs. Marion, 404 U.S.

307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971);

Dillingham vs. United States, 423 U.S. 64, 65, 96 S.Ct. 303,

304, 46 L.Ed.2d 205 (1975).

Even considering the entire period (that is from in-

dictment to commencement of trial), there was no im-

permissible delay under the Barker standard. United States

vs. Henry, 615 F.2d 1223, 1233 (CA9, 1980).

An indictment was filed on February 21, 1978 charg-

ing the defendant with aggravated battery. Trial was

originally set for August 27, 1979. The defendant

moved for a continuance of the trial date. Trial was re-

set for September 10, 1979. Defense counsel again ask-

ed for a continuance and trial was again re-set for

November 12, 1979. The defendant asked for a third

continuance and trial was again re-set for January 14,

1980.

6

The First And Only Assertion Of Right To

Speedy Trial Was Just Recently Asserted.

The crime charged falls under the limitations upon

trial under Louisiana C.Cr.P. Art. 578, subparagraph

(2) which allows for commencement of trial no later

than two years after the institution of prosecution.

However, the defendant's filing of a Motion to Quash

suspended the period of limitation established by

C.Cr.P. Art. 578, and the State has an additional year

from the date of the ruling of the trial court to com-

mence trial. LSA-C.Cr.P. Art. 580; State vs. Hamilton, 369

So.2d 1299 (1979).

Of course when the first three factors of the Barker

balancing test are heavily weighed against the State,

the defendant does not have to demonstrate prejudice.

United States vs. Avalos, 541 F.2d 1100, * 116 (CAS, 1976);

Prince vs. Alabama, 507 F.2d 693, 706-07 (CAS, 1975);

Hoskins vs. Wainwright, 485 F.2d 1186, 1192 (CAS, 1973)

(on rehearing). This is not such a case, however, as the

lion’s share of the trial delay should be credited to the

Relator. Hill vs. Wainwright, 617 F.2d 378, 379 (CAS,

1980).

Rather than “repeatedly and energetically” assert-

ing his rights, as in United States vs. Vispi, 545 F.2d 328,

334 (CA2, 1976), Relator waited until immediately be-

fore trial to file his Motion to Dismiss on speedy trial

grounds. This is not strongly indicative of a desire to

7

expedite process. Lnited States vs. McGrath, 622 F.2d 36,

41 (CA2, 1980).

Specifically, the factors to be considered as to

whether or not there has been a denial of a constitu-

tional right to a speedy trial include: (1) length of de-

lay; (2) reasons for delay; (3) resulting prejudice to re-

lator; and, (4) defendant’s assertion of his right to

speedy trial.

The delay here was lengthy — some 18 months

elapsed from indictment to first setting for trial — but

is nevertheless considerably shorter than that of other

cases in which no Sixth Amendment violation has been

found. See, e.g., Barker vs. Wingo, supra, 407 U.S. at 533,

92 S.Ct. at 2193 (“well over five years”); United States vs.

DiFrancesco, 604 F.2d 769, 776 (CA2, 1979) cert. grant-

ed, U.S. —... 100 §.Ct.. 1012, 62 L.Ed.2d 781

(1980), (“about 30 months”); United States vs. Lane, 561

F.2d 1075 (CA2, 1977) (approximately 58 months).

An indictment was returned February 21, 1978.

Arraignment was held in July, 1979. In view of the fail-

ure of the defendant to assert his right and in the

absence of any showing of prejudice, the State submits

there is no merit to defendant-relator’s application.

Barker vs. Wingo, 407 U.S. 514 at 525 (1972) specific-

ally sets forth the United States Supreme Court obser-

vation in this regard:

8

“*** The demand-waiver doctrine provides

that a defendant waives any consideration of

his right to speedy trial for any period prior to

which he has not demanded a trial.”

In any event, where the Motion to Quash was first

filed on November 8, 1979, the relator himself had

waited some 21 months before seeking to expedite the

prosecution.

CONCLUSION

Relator did not assert his right to speedy trial until

November 8, 1979. Relator failed to demonstrate actual

prejudice, that was attributable to the State. Balancing

all of the relevant factors, the State submits that there

has not been any denial of right to speedy trial that the

United States Constitution guarantees the relator, and

the application for writ should be denied.

WILLIAM GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

BARBARA RUTLEDGE

ASSISTANT ATTORNEY

GENERAL

STATE OF LOUISIANA

MARION FARMER

DISTRICT ATTORNEY

22ND JUDICIAL DISTRICT

STATE OF LOUISIANA

ABBOTT J. REEVES

ASSISTANT DISTRICT

ATTORNEY

RESEARCH AND APPEALS

P.O. BOX 465

419 DERBIGNY STREET

GRETNa, LOUISIANA 70054

TELEPHONE: (504) 367-1212

Attorney of Record for

Respondent

PROOF OF SERVICE

I hereby certify that three copies of the foregoing

have been sent to Garland R. Rolling, Esq., Attorney

for Relator, 319 Metairie Road, P.O. Box 9250, Met-

airie, Louisiana 70055, by placing in the United States

mail, postage prepaid this ___ day of November, 1980.

= -

ABBOTT J. REEVES