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State v. Reimonenq

Supreme Court of Louisiana

October 22, 2019



          Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, appointed as Justice pro tempore, sitting for the vacancy in the First District.

          Retired Judge Michael Kirby appointed Justice ad hoc, sitting for Clark, J.

          GENOVESE, J. [1]

         This case involves the authority of the district attorney to dismiss and reinstitute criminal prosecutions. We granted writs to determine whether fundamental fairness and due process prohibit the state from dismissing and reinstituting criminal charges in order to circumvent the normal order of criminal proceedings. Specifically, the district attorney in this case dismissed and reinstituted charges against defendant in response to two adverse rulings in the trial court. The state refiled charges without ever challenging the rulings in the appellate court, and defendant subsequently filed various motions in limine and a motion to quash, which the trial court denied. Because the actions of the state in this matter so undermine the authority of the trial court that it offends bedrock principles of fundamental fairness and due process, we reverse.


         On December 2, 2016, an Orleans Parish grand jury indicted defendant, Fred Reimonenq, on the charges of first degree rape, attempted first degree rape, and sexual battery of a victim under the age of 13. Trial was scheduled to begin on September 25, 2018. On the Sunday before this trial date, the state presented defense counsel with a curriculum vitae-but apparently nothing further-from Anne Troy, Ph.D., a sexual assault nurse examiner, who it intended to call as an expert witness at trial.[2] On the morning of trial, the state provided defense counsel with formal notice of its intent to use Dr. Troy's testimony. Defendant filed a motion in limine to exclude any expert testimony that had not been properly noticed under La.C.Cr.P. art. 719, including Dr. Troy's testimony.

         The trial court granted the defense's motion in limine and excluded Dr. Troy's testimony based on two findings. First, it found that the notice itself was deficient "in that it, inter alia, it doesn't provide a list, a material list upon which the conclusions of the expert witness are based . . . ." The state then attempted to verbally supplement its notice, informing the court that "[t]he evidence upon which the expert's opinion is going to be based has previously been provided to [d]efense counsel." The court disallowed any attempt at supplementation based upon its second finding that there was "a timing issue" that still made the late notice "prejudicial to the [d]efense and [did] not afford the [d]efense the opportunity to conduct whatever defensive positions it might otherwise be able to take had it had more time . . . ." The state noted its intent to apply for supervisory writs, but did not do so, and, instead, opted to enter a nolle prosequi.[3]

         Two days later, on September 27, 2018, the state filed a new indictment on the same charges. On October 18, 2018, defendant appeared for arraignment and orally moved to adopt all previous filings and motions from the original case, and trial was set for December 3, 2018. On November 27, 2018, the state filed its supplemental notice pursuant to La.C.Cr.P. art. 719 with respect to Dr. Troy's testimony. On the morning of trial, defense counsel filed a supplemental motion in limine regarding Dr. Troy's testimony and a related motion to quash.

         In argument on the motion to quash, defense counsel noted that the state's decision to dismiss and reinstitute criminal charges is a power that defendant does not have. He urged that this Court's precedent bars the state from flaunting its power by essentially granting itself a continuance in a way that substantially prejudices defendant's right to a fair trial. Defense counsel further proposed that the state's supplemental notice was still defective because it was filed only six days before the new trial date, and he could not procure an expert in that brief period of time. Defense counsel described the resulting prejudice as follows:

Further, the defendant is substantially prejudiced because on the day of his trial, when he was ready to go forward, he was prepared to go forward with the State having no expert because they had [not] noticed an expert. Therefore, now, we are in a case where the State is trying to get an expert at the last minute again. . . .
They had 42 days at one point, they had 67 days at another point, and they simply waited until six days beforehand. . . .

         The state responded that defendant had failed to describe in any way how the "presentation of his defense has been significantly disadvantaged from September until today." Rather, the state urged that the more apt issue to address was the one presented by the motion in limine: whether the supplemental notice was sufficient to meet the requirements of La.C.Cr.P. art. 719. The defense replied that the prejudice was in the denial of defendant's right to a jury trial on the original trial date, which occurred when the state abused the process by entering a nolle prosequi in the face of an unfavorable evidentiary ruling.

         The trial court denied defendant's motion to quash without elaboration. However, the court ordered the state to supplement its expert notice.


         District attorneys are imbued with vast authority over criminal prosecutions- they alone determine whom, when, and how they shall prosecute and may dismiss an indictment or a count in an indictment at their discretion without leave of court. See La. Const. art. V, § 26(B); La.C.Cr. P. art. 61. Indeed, they alone determine whether to dismiss a case. State v. Sykes, 364 So.2d 1293, 1297 (La. 1978). A dismissal is generally not a bar to a subsequent prosecution for the same offense.[4]However, a district attorney's exercise of this power cannot impinge on the accused's right to a speedy trial[5] because that right is "'fundamental' and is imposed by the Due Process Clause of the Fourteenth Amendment on the States." Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972).

         This Court has primarily explored the limits of the district attorney's ability to dismiss and reinstitute criminal charges through the speedy trial lens, or more generally, the delay caused when a district attorney dismisses charges in response to a denied request for a continuance. See State v. King, 10-2638, (La. 5/6/11), 60 So.3d 615, (per curiam); State v. Batiste, 05-1571, (La. 10/17/06), 939 So.2d 1245; State v. Love, 00-3347, (La. 5/23/03), 847 So.2d 1198. In Love, the state entered an order of nolle prosequi when the state's witness suffered a heart attack during voir dire, and the trial court denied the state's request for a continuance. This Court held that: (1) the unavailability of a state witness was a legitimate reason for delaying trial under the Speedy Trial Clause; (2) the record supported the trial court's decision to deny the state's motion for continuance based on the unavailability of the state's witness for valid medical reasons; (3) the trial court acted within its discretion in denying defendant's motion to quash; (4) a 22-month delay in prosecuting defendant was presumptively prejudicial; but, (5) defendant's right to a speedy trial was not violated. Under the circumstances presented in Love, this Court found that "the State did not seek to gain an unfair advantage over the defendant." Love, 00-3347, p. 12, 847 So.2d at 1208.

         In Batiste, the state entered an order of nolle prosequi because the victim was not present for trial and was unsure whether she wanted to go forward with her testimony, and then reinstituted the charge a month later. Defendant complained that he suffered a speedy trial violation. Under the circumstances presented in Batiste, this Court found that "there was a legitimate reason for the nolle prosequi in this case," and "the record reveals no intentional delay on the State's part for the purpose of gaining a tactical advantage." Batiste, 05-1571, p. 6-7, 939 So.2d at 1249-50. Thus, the Batiste court found there was "no indication the district attorney was flaunting his authority at the expense of the defendant . . . ." Id., 05-1571, pp. 5-6, 939 So.2d at 1249.

         In King, the state entered an order of nolle prosequi after a bank failed to comply with its subpoena for records, and the trial court denied its request for a continuance. The state later reinstituted the charges. Quoting from State v. Love, this Court found as follows: "In situations 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 ...

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