# Opposition — Cole v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 449 U.S. 1076

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0248%3A2. Public record. Not legal advice.