SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF
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. 
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.
AND PROCEDURAL HISTORY
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. 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.
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.
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.
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. . .
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
trial court denied defendant's motion to quash without
elaboration. However, the court ordered the state to
supplement its expert notice.
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.However, a district
attorney's exercise of this power cannot impinge on the
accused's right to a speedy trial 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).
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
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.
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