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Date: 09-14-2018

Case Style:

STATE OF LOUISIANA Vs. TIMREK ANDREWS

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Case Number: 2018-KA-0149

Judge: SANDRA CABRINA JENKINS

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Leon Cannizzaro, District Attorney
Donna Andrieu, Assistant District Attorney
Michael Danon, Assistant District Attorney

Defendant's Attorney: Thomas Ward Frampton

Description: On October 15, 2013, defendant, Timrek Andrews, was arrested following a
traffic stop by two New Orleans Police Department (“NOPD”) officers for a
damaged driver-side mirror on defendant’s vehicle. During the traffic stop, the
officers requested defendant exit and step to the rear of the vehicle for officer
safety. After defendant exited the vehicle, the officers observed defendant reach
into his front left pocket, remove a clear plastic baggie containing an off-white
powder substance, and place the baggie in his mouth. In an attempt to restrain
defendant, a struggle ensued between the officers and defendant. Once the officers



2

gained control of defendant, they placed him under arrest. Observing that
defendant had suffered injuries during the scuffle and believing that he had
ingested the plastic baggie containing the off-white powder substance, the officers
contacted Emergency Medical Services to transport defendant to University
Hospital for evaluation. Defendant was subsequently arrested and booked on a
felony charge of obstruction of justice, a violation of La. R.S. 14:130.1, and
misdemeanor charges of resisting an officer, a violation of sLa. R.S. 14:108, and
battery of a police officer (2 counts), a violation of La. R.S. 14:34.2.
On December 5, 2013, the State filed a bill of information in Orleans Parish
Municipal Court charging defendant with the three misdemeanor offenses.
Defendant was arraigned that same date and pled not guilty. The felony charge of
obstruction of justice was refused by the Orleans Parish District Attorney’s Office.
On May 20, 2014, the first trial setting in Municipal Court, a motion to
continue the trial was filed, and trial was rescheduled for August 14, 2014. The
record does not reflect which party requested the continuance. On August 14,
2014, the State was granted a continuance due to the failure of the victim to appear.
On November 13, 2014, the Orleans Parish Public Defender was appointed to
represent defendant; trial was rescheduled for February 10, 2015.
On February 10, 2015, defendant failed to appear for trial, an attachment
was issued, and defendant’s bond was forfeited. On March 4, 2015, the attachment
was recalled; defendant was found in contempt of court, assessed a fine of one
hundred dollars, and ordered to spend five nights in jail. On May 14, 2015, the


3

defense was granted a continuance of trial due to NOPD officers’ failure to appear.
On July 31, 2015, the defense sought another continuance, and trial was
rescheduled for August 25, 2015. On that date, the State sought a continuance, and
trial was rescheduled for September 29, 2015. After a subsequent status hearing,
trial was scheduled for December 10, 2015.
On October 30, 2015, the State filed a second bill of information charging
defendant in Orleans Parish Criminal District Court with one felony count of
obstruction of justice and the three misdemeanor charges pending against
defendant in Municipal Court.1 On November 13, 2015, defendant appeared for
arraignment in Criminal District Court and entered a plea of not guilty. On
December 10, 2015, the State nolle prosequied the charges pending against
defendant in Municipal Court.
On September 28, 2016, the first trial setting in Criminal District Court,
defendant failed to appear for trial; the trial court issued an alias capias. The
following day, defendant appeared before the trial court; the court found him in
contempt and imposed a fine; and the alias capias was recalled. Trial was
scheduled for November 29, 2016. On that date, the trial court granted the State a
continuance, over the defense’s objection. On January 17, 2017, the trial court
granted the defense a continuance, over the State’s objection. Three more trial
settings followed: March 21, 2017; May 22, 2017; and July 17, 2017. On each

1 The State concedes that the institution of the misdemeanor charges, by the second bill of information filed on October 30, 2015, were out of time pursuant to La. C.Cr.P. art. 572(A)(3), and, accordingly, the State does not seek relief as to those counts of the bill of information.


4

date, the trial court granted the State a continuance, over the defense’s objection.
Trial was then set for October 2, 2017. Prior to that trial setting, defense counsel
appeared without defendant for unscheduled activity on July 21, 2017. On that
date, the October 2, 2017 trial date was vacated, and trial was re-set for September
25, 2017.
On September 25, 2017, defendant filed a motion to quash for denial of
defendant’s constitutional right to a speedy trial. Defendant appeared in court that
day ready for trial, but the State moved for another continuance of the trial. The
trial court denied the State’s motion for a continuance and granted defendant’s
motion to quash. In granting the motion to quash, the trial court reasoned that the
four year delay since defendant was initially charged constituted a violation of his
right to a speedy trial. The State objected to the trial court’s ruling and noticed its
intent to appeal. On that same date, the State filed its motion for appeal and
designation of the record.
DISCUSSION
Motion to Dismiss the Appeal
Before considering the merits of the State’s appeal, we address the
defendant’s motion to dismiss the appeal as untimely. Defendant argues that the
State abandoned this appeal when the State failed to comply with its obligations as
the party moving for the appeal pursuant to La. C.Cr.P. arts. 915 and 915.1.
A motion for an appeal must be made no later than thirty days after the
rendition of the judgment or ruling from which the appeal is taken. La. C.Cr.P. art.


5

914.2 Once the motion for appeal is made, the trial court “shall” set the return date
seventy-five days from the date the motion for appeal is granted, unless the trial
court fixes a lesser period. La. C.Cr.P. art. 915(A). In addition, “[t]he party
moving for the appeal must forward notice that a motion for appeal has been made
to the appropriate appellate court within seven days of the date the motion is
made.” La. C.Cr.P. art. 915(B). Once the trial court signs an order of appeal
setting a return date, “[t]he trial court may grant one extension of the return date of
not more than thirty days,” but “[a]n extension may not be granted after the return
date has passed.” La. C.Cr.P. art. 915.1. Further, “[t]he extension may be granted
only upon proof presented by the moving party that additional time is necessary
due to extenuating circumstances beyond the control of the moving party and that,
without the extension, an unusual and undue hardship would be created.”3 Id.
The record of this case reflects that the State timely filed its motion for
appeal and designation of the record on the day of the trial court’s ruling granting
defendant’s motion to quash, September 25, 2017. That same date, the trial court
signed the order of appeal and set the return date for November 27, 2017. The
record does not reflect that the trial court or this Court granted any extension of the
return date. However, the appeal record was not lodged in this Court until
February 23, 2018, 151 days from the date the motion for appeal was granted.

2 At the time the motion is made, the party moving for the appeal shall also designate the record by requesting the transcript of the necessary portions of the proceeding, in light of the assignments of error urged. La. C.Cr.P. art. 914.1. 3 “Subsequent extensions may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in [La. C.Cr.P. art.] 919.” La. C.Cr.P. art. 915.1(B).


6

Defendant argues that the State’s failure to request an extension of the return
date and its failure to provide notice of the motion for appeal to this Court are
grounds for dismissal of the appeal, because the State had a mandatory obligation
as the party moving for the appeal to take affirmative steps to ensure that the
record of the appeal was timely lodged in this Court, pursuant to La. C.Cr.P. arts.
915 and 915.1.
This Court has previously addressed and rejected the same argument raised
by defendants moving to dismiss the State’s appeal as untimely and abandoned.
See State v. Noel, 13-1218, pp. 2-4 (La. App. 4 Cir. 10/1/14), 151 So.3d 706, 709
10; State v. Hall, 13-0453, pp. 4-9 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 34-38;
State v. Brooks, 13-0540, pp. 3-8 (La. App. 4 Cir. 9/18/13), 124 So.3d 1129, 1131
34. In each of those cases, the State timely moved for an appeal, and the trial court
timely granted the motion and set a return date; however, years passed before the
record of each case was lodged in this Court. In each case, this Court found that
once the State timely moved for an appeal and the trial court granted the motion,
the burden then fell upon the district court personnel, not the State, to prepare and
lodge the record for appeal. See Noel, 13-1218, pp. 2-4, 151 So.3d at 709-710.
“[T]here is no further action that must be taken by the State until the record is
lodged with the court of appeal.” Hall, 13-0453, p. 7, 127 So.3d at 36 (quoting
State v. Ross, 06-1328, p. 4 (La. App. 3/14/07), 955 So.2d 167, 170). Moreover,
“the failure of the trial court,” or court personnel “to perform their functions in


7

connection with the filing of a criminal appeal does not affect the validity of the
appeal.” Id.; see also, La. C.Cr.P. arts. 915(A) and (B), 915.1(B).
Applying the aforementioned principles and jurisprudence, we find no merit
to defendant’s argument that the State abandoned its appeal. The State timely
moved for this appeal and the trial court timely granted it. Thereafter, the district
court personnel bore responsibility to prepare and lodge the record for appeal; and
the State did not need to take further action until the record was lodged.
Accordingly, defendant’s motion to dismiss the State’s appeal is denied.4
Motion to Quash
In the first assignment of error, the State argues that the trial court abused its
discretion in granting the defendant’s motion to quash on constitutional grounds.
The State contends defendant’s constitutional right to a speedy trial was not
violated and his motion to quash was improperly granted.
“The granting of a defendant’s motion to quash the bill of information is a
discretionary ruling by the trial court which should not be disturbed by the
appellate court, absent an abuse of its discretion.” Noel, 13-1218, p. 4, 151 So.3d
at 710. The complementary role of trial courts and appellate courts demands that
deference be given to a trial court’s discretionary decision; thus, an appellate court
is allowed to reverse a trial court judgment on a motion to quash only if that

4 In response to defendant’s motion to dismiss, the State filed a motion to impose sanctions against defense counsel “for his lack of candor to the Court,” in reference to a statement within the motion to dismiss regarding communications between defense counsel and an Assistant District Attorney. The State’s motion for sanctions is denied.


8

finding represents a clear abuse of the trial court’s discretion. State v. Love, 00
3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206.
Louisiana jurisprudence recognizes two separate and distinct bases for a
defendant’s right to a speedy trial: a statutory right granted by La. C.Cr.P. art. 701
and a constitutional right guaranteed by the Sixth Amendment to the United States
Constitution and Article I, § 16 of the Louisiana Constitution. See State v. Sorden,
09-1416, p. 7 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 185 (citing State v. Powers,
344 So.2d 1049 (La. 1977)). The two are not equivalent; “the question of whether
a speedy trial violation is statutory or constitutional involves wholly separate
inquiries.” Sorden, 09-1416, p. 7, 45 So.3d at 186.
A defendant’s constitutional right to a speedy trial is a fundamental right
guaranteed by the Sixth Amendment and imposed on the states by the Due Process
Clause of the Fourteenth Amendment of the United States Constitution. Love, 00
3347, p.14, 847 So.2d at 1209 (citing Klopfer v. North Carolina, 386 U.S. 213,
223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)); see also, La. Const. Art. I, § 16. In
determining whether a defendant’s constitutional right to a speedy trial has been
violated, courts consider four factors: (1) the length of delay; (2) the reason for
delay; (3) the defendant’s assertion of his right to speedy trial; and (4) the
prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); see also, State v. Reaves, 376 So.2d
136 (La. 1979) (adopting Barker). None of the four Barker factors is “either a
necessary or sufficient condition to the finding of a deprivation of the right to a


9

speedy trial.” Love, 00-3347, p. 15, 847 So.2d at 1210. Rather, the factors are
related and must be considered together in light of the circumstances of each case.
Id.
The first factor, the length of the delay, is a “triggering mechanism” for
further inquiry into the other three Barker factors, which need not be addressed
unless the reviewing court finds the length of the delay to be presumptively
prejudicial. State v. Gaines, 08-0967, p. 3 (La. App. 4 Cir. 2/11/09), 5 So.3d 915,
917; State v. DeRouen, 96-0725, p. 3 (La. App. 4 Cir. 6/26/96), 678 So.2d 39, 40.
The weight ascribed to the length of the delay depends on the particular
circumstances of the case, such as the gravity of the charged crime and the
complexity of the case, because “the delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex conspiracy charge.”
Reaves, 376 So.2d at 138 (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192); see
Noel, 13-1218, p. 5, 151 So.3d at 710.
In the instant case, following defendant’s arrest on October 15, 2013, the
State filed the initial bill of information, charging three misdemeanors, on
December 5, 2013. Approximately twenty-three months later, on October 30,
2015, the State filed the second bill of information, charging the same three
misdemeanors and the felony charge of obstruction of justice. Subsequent to filing
the second bill of information, the State nolle prosequied the original bill of
information filed in Municipal Court. Twenty-three months later, on September
25, 2017, the trial court granted defendant’s motion to quash the second bill of


10

information. Notably, the State concedes for the first time on appeal that the time
limitation for prosecuting the three misdemeanors offenses expired prior to the
filing of the second bill of information; but the State never dismissed the expired
charges prior to the granting of the motion to quash.
Despite the nearly four-year delay between the filing of the initial bill of
information and the granting of the motion to quash, the State argues that the
length of delay in this case is not presumptively prejudicial. The State argues it
was within the four-year statutory prescriptive period to institute the felony charge,
pursuant to La. C.Cr.P. art. 572, and the two-year statutory prescriptive period to
commence trial on that charge, pursuant to La. C.Cr.P. art. 578. Moreover, the
State argues since it initially declined or dismissed the felony obstruction of justice
charge in the initial bill of information, the twenty-three month time differential
between the filing of the initial bill of information and the institution of that charge
by the second bill of information does not weigh upon defendant’s right to a
speedy trial.
It is undisputed that there was no violation of the statutory time limitation
for instituting prosecution and commencing trial for the felony charge, pursuant to
La. C.Cr.P. arts. 572 and 578.5 The issue in this case is whether defendant’s

5La. C.Cr.P. art. 572 provides in pertinent part: A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed: (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor. (3) Two years, for a misdemeanor punishable by a fine, or imprisonment, or both. La. C.Cr.P. art. 578 provides in pertinent part:


11

constitutional right to a speedy trial was violated even though there was no
violation of the statutory time limitation.
Most cases discussing a defendant’s constitutional right to a speedy trial
measure the length of delay as the time between the filing of the bill of information
and the granting of the motion to quash. Gaines, 08-0967, p. 4, 5 So.3d at 918
(collecting cases). In addition, the Louisiana Supreme Court has held that any time
period during which the defendant is not under arrest or held to answer a criminal
charge should not be used in calculating a constitutional speedy trial delay. State
v. Matthews, 13-0525, pp. 3-4 (La. 11/15/13), 129 So.3d 1217, 1219 (finding the
seventeen-month period during which defendants were not under arrest or charged
did not weigh upon defendants right to a speedy trial). In State v. Smith, 16-0393,
pp. 5-6 (La. App. 4 Cir. 11/23/16), 204 So.3d 1035, 1038, applying the Matthews
method of calculation, this Court found that a twenty-five month delay on a charge
of possession of heroin arguably constituted a presumptively prejudicial delay that
triggered the consideration of the remaining Barker factors.6 In State v. Noel,
supra, this Court found that a nineteen-month delay from the filing of the bill of

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable: (2) In other felony cases after two years from the date of institution of prosecution; and (3) In misdemeanor cases after one year from the date of institution of prosecution. Thus, as the State now concedes, the time to prosecute the three misdemeanor charges expired prior to the filing of the second bill of information, on October 30, 2015, more than two years after the offenses were allegedly committed. The State was within the time limitations to institute prosecution and commence trial for the felony charge. 6 Upon review of the three remaining Barker factors, this Court found that defendant should have been afforded an opportunity, as requested, to present evidence on the issue of whether his constitutional right to a speedy trial was violated. Smith, 16-0939, p. 8, 204 So.3d at 1039. Consequently, this Court vacated the trial court’s judgment granting defendant’s motion to quash and remanded for an evidentiary hearing on the constitutional speedy trial issue.


12

information charging simple burglary of an outdoor shed was sufficiently great to
trigger an analysis of the three remaining Barker factors. In State v. Harris, 03
0524, p. 6 (La. App. 4 Cir. 9/10/03), 857 So.2d 16, 19, this Court found the twenty
four month period from the filing of the first bill of information charging
possession of heroin to the granting of the motion to quash, excluding periods of
interruption, was a presumptively prejudicial delay.
In consideration of the particular circumstances of this case, we find that the
length of delay is presumptively prejudicial. From our review of the factual basis
for these charges, we find the alleged offenses more akin to “ordinary street crime”
rather than “a serious, complex conspiracy charge.” See Reaves, 376 So.2d at 138;
see also Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n. 1
(1992) (“Depending on the nature of the charges, the lower courts have generally
found post-accusation delay ‘presumptively prejudicial’ at least as it approaches
one year.”). In addition, although defendant was not charged with the felony
offense until approximately twenty-three months prior to the granting of the
motion to quash, defendant was held to answer the three misdemeanors, charged in
both bills of information, for nearly four years. Even excluding the time period
between the filing of the initial and second bill of information, we find the twenty
three month time delay to be presumptively prejudicial, thereby triggering
consideration of the three remaining Barker factors.
Turning to the second factor, the reason for the delay, we review the record
to determine which party is primarily responsible for the delay in commencing


13

trial. Upon review of the entire length of delay since the filing of the initial bill of
information,7 the record reflects five continuances of trial in Municipal Court and
five continuances of trial in Criminal District Court. While in Criminal District
Court, the State sought and was granted continuances on November 29, 2016;
March 21, 2017; May 22, 2017; and July 17, 2017. The reasons for these
continuances are not noted in the record. But, on each of those dates, defendant
appeared ready for trial and objected to the continuance. Finally, on September 25,
2017, the State sought a fifth continuance of trial, stating that it was ready for trial
in another matter, “an older case”, and “we have a new ADA on [this] case.”
The State argues that defendant is “equally culpable” for the delays in
commencing trial. In support, the State points to defendant’s failure to appear for
the first trial setting on September 28, 2016, to a continuance sought and granted to
defense on January 17, 2017, and to a discovery motion filed by defense on July
11, 2017. In response, defendant acknowledges responsibility for his failure to
appear on September 28, 2016, for which he was found in contempt and fined the
following day when he appeared in court. Defendant also acknowledges brief
delays for motion hearings. Defendant argues, however, that the State was
primarily responsible for the four year delay in this case. Moreover, defendant
contends that the State used the continuances as a dilatory tactic to prompt

7 The docket minutes from Municipal Court reflect five continuances of trial on the three misdemeanors charged in the initial bill of information. Of the five continuances, one was granted to the State, two were granted to the defense, and two are not attributed to either party. We note, however, one of the continuances granted to defense states “NO NOPD.” Given the factual basis for the charges, the NOPD officers presumably would be witnesses for the State.


14

defendant to accept a plea, which the State offered on three occasions;8 defendant,
however, insisted on his right to a speedy trial rather than accept a plea.
From our review of the record, we find the majority of the multiple delays in
commencing trial are attributable to the State. After two years of delays in
Municipal Court, the State filed the second bill of information on October 30,
2015, and did not seek to commence trial until nearly one year later. Although
defendant did not appear on the first trial date in September 2016, defendant
appeared ready for trial on each of the five subsequent trial dates when the State
sought continuances. Additionally, the record reflects two times when the State
offered to dismiss the felony charge in exchange for defendant entering a guilty
plea to misdemeanor charges, for which the time limitation to prosecute had long
expired.9 Moreover, upon review of the consolidated writ application in this case,
we note the State only obtained a search warrant for evidence in support of the
felony charge of obstruction of justice after the trial court granted the motion to
quash.10 Thus, it appears from the record that the State’s interest in securing a
8 In its brief, the State notes that in mid-September 2015, the State “tendered a plea offer to defendant to plead guilty to avoid restitution, however that was denied.” One month later, the State filed the second bill of information charging the felony obstruction of justice and the three expired misdemeanors. On October 6, 2016, at a pre-trial hearing, the record reflects that the State tendered a misdemeanor plea offer. On September 25, 2017, after defense filed the motion to quash and the State requested a fifth continuance, the State entered on the record an offer to dismiss the felony charge in exchange for defendant pleading guilty to amended misdemeanor charges of simple battery with a sentence of six months probation. 9 Notably, the State concedes for the first time on appeal that the time limitation for prosecuting the three misdemeanors offenses expired prior to the filing of the second bill of information; but the State never dismissed the expired charges. 10 The State filed an application for a search warrant for defendant’s medical records on March 16, 2018. The application for search warrant seeks for the first time the medical records of defendant from the date of his arrest on October 15, 2013. The affidavit states the arresting officers witnessed defendant ingest a clear baggie containing an off-white powder substance; subsequent to his arrest, defendant was transported to the hospital for medical treatment; and, according to the affidavit, “[r]esults of TOX were positive for cannabinoids and opiates.” Although the arresting officers could testify regarding defendant’s actions prior to his arrest, the


15

guilty plea surpassed its interest in preparing this case for trial or providing
defendant with a speedy trial. Given the lack of reasonably diligent efforts to bring
defendant to trial, we find the State fails to establish a justifiable reason for a
twenty-four month delay, much less a four year delay.
The third Barker factor concerns defendant’s assertion of his right to a
speedy trial. The record reflects that defendant did not file a motion for a speedy
trial at any time prior to filing the motion to quash. However, defendant objected
to each of the four trial continuances sought and granted to the State prior to filing
the motion to quash. In Barker, the Court rejected a bright line rule that defendant
must assert his right to speedy trial lest it be waived; instead, the Court
implemented a balancing test, “in which the conduct of both the prosecution and
the defendant are weighed.” 407 U.S. at 529-30, 92 S.Ct. at 2191-92. “While the
‘failure to assert the right will make it difficult for a defendant to prove that he was
denied a speedy trial’, it is not dispositive as ‘defendant’s assertion of or failure to
assert his right is one of the factors to be considered.’” Noel, 13-1218, pp. 7-8, 151
So.3d at 712 (quoting Barker, 407 U.S. at 528, 531-32, 92 S.Ct. at 2192).
In Reaves, the Louisiana Supreme Court found the failure of defendant to
move for a speedy trial prior to his motion to quash did not weigh heavily under
the facts of the case. 376 So.2d at 139. Defendant was charged with a simple
misdemeanor possession of marijuana charge and he filed his motion to quash after

medical records would provide scientific evidence that defendant had ingested illegal substances ostensibly for the purpose of tampering with evidence to distort the results of a criminal investigation, i.e., obstructing justice. See La. R.S. 14:130.1(A)(1).


16

only three and one-half months of delay. But, the Court found that after four
continuances of the trial date, “defendant finally realized that the new trial setting
was probably illusory in light of the prior course of the proceedings”; thus, “[h]is
only avenue at that point, and the trial judge agreed, was to file a motion to quash.”
Id.
Similarly, in this case, there is a pattern of delay and continuances by the
State. Although the State argued for a short continuance to October 2, 2017, the
State had two-months notice of the September 25, 2017 trial date. We also note
the State does not refute defense counsel’s argument that he was informed five
days prior to the September 25 trial date that the State was ready to proceed. But,
anticipating that the State may seek another continuance, defense counsel also
prepared a motion to quash to be filed in the event that the State sought to delay
trial again. In consideration of the history of this case and defendant’s numerous
objections to continuing the trial date, we do not weigh heavily the defendant’s
failure to file a motion for speedy trial prior to filing the motion to quash.
Turning to the fourth and final Barker factor, we must assess the prejudice to
defendant caused by the delay. Prejudice should be assessed particularly in light of
three interests that the right to speedy trial was designed to protect: to prevent
oppressive pretrial incarceration; to minimize anxiety and concern of the accused;
and to limit the possibility that the defense will be impaired. Barker, 407 U.S. at
532-33, 92 S.Ct. at 2193. The Barker Court noted that “even if an accused is not
incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and


17

by living under a cloud of anxiety, suspicion, and often hostility.” Id. The Court
also stated that the impairment of a defendant’s ability to prepare his defense is the
most serious form of prejudice, because it “skews the fairness of the entire
system.” Id. As discussed further by the Court in Doggett, “the impairment of
one’s defense is the most difficult form of speedy trial prejudice to prove because
time’s erosion of exculpatory evidence and testimony ‘can rarely be shown.’” 505
U.S. at 655, 112 S.Ct. at 2692-93. “Thus, we generally have to recognize that
excessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify.” Id. The Court concluded that
“affirmative proof of particularized prejudice is not essential to every speedy trial
claim;” the defendant’s degree of proof of prejudice varies inversely with the
State’s culpability for the delay. Doggett, 505 U.S. at 655-57, 112 S.Ct. at 2692
93.
As discussed previously, we find the State primarily responsible for the
delays in bringing defendant to trial. In addition to the delays, we note the State’s
official negligence in filing the second bill of information charging defendant with
three misdemeanor offenses for which the time limitation to prosecute had expired.
While there is no basis to find that the State acted in bad faith by failing to dismiss
those expired charges, such official negligence does present a “threat to the
fairness of the accused’s trial.” Doggett, 505 U.S. at 657, 112 S.Ct. at 2693.
Further, defendant asserts that in addition to the cloud of anxiety and
suspicion related to the four years of criminal charges pending against him, he has


18

suffered actual prejudice in the impairment of his defense. Specifically, defendant
asserts that the State disclosed at an earlier trial setting that all NOPD audio
recordings from eyewitnesses taken contemporaneous to defendant’s arrest had
been lost. In addition, defense counsel spoke with two defense eyewitnesses
whose recollections of the events surrounding defendant’s arrest in 2013 had faded
to a point that they may not be reliable. Finally, defense investigators have been
unable to locate a third potential witness who had left Orleans Parish.
As to the fourth factor, the State argues that defense counsel raised the
constitutional speedy trial violation by a motion to quash as a “deliberate tactic”
that would “actually cause Defendant more prejudice to his legal rights.” The
State does not address the defendant’s assertions of actual prejudice from the loss
of evidence and potential loss of eyewitness testimony. The State’s failure to
address defendant’s assertion of actual prejudice does not weigh in its favor.
Upon a careful consideration of the Barker factors as they apply to the
particular circumstances of this case, we find no abuse of discretion in the trial
court’s decision to grant defendant’s motion to quash based on a violation of his
constitutional right to a speedy trial. The State’s persistent neglect in concluding
this criminal prosecution indicates a feeble interest in bringing defendant to justice.
To condone prolonged and unjustifiable delays in this case would both penalize
defendant for the State’s fault and “simply encourage the government to gamble
with the interests of criminal suspects assigned a low prosecutorial priority.”
Doggett, 505 U.S. at 657, 112 S.Ct. at 2693.


19

Motion to Continue
In the second assignment of error, the State argues that the trial court abused
its discretion in denying the State’s oral motion to continue the motion to quash to
allow for a response and a contradictory hearing.
“The trial court is vested with considerable discretion in ruling on a motion
for continuance, and the reviewing court will not disturb the trial court’s ruling
absent a clear abuse of discretion.” State v. German, 12-1293, p. 24 (La. App. 4
Cir. 1/22/14), 133 So.3d 179, 197. “To demonstrate that the trial court erred in
denying a continuance, a showing of specific prejudice is generally required.”
State v. Brown, 12-0626, p. 16 (La. App. 4 Cir. 4/10/13), 115 So.3d 564, 575.
First, the State contends that it is entitled to a hearing on defendant’s motion
to quash and time in which to prepare. In support, the State first cites the statutory
procedures relative to motions to quash within La. C.Cr.P. art. 535.11 However, as
noted by the State, defendant did not file this motion to quash based on any
grounds provided by La. C.Cr.P. art. 535; rather, defendant filed this motion to
quash to assert his fundamental, constitutional right to a speedy trial. While
Louisiana jurisprudence recognizes a motion to quash as “an all embracive plea”
by which a defendant may assert a constitutional speedy trial claim, our

11 Specifically, the State cites La. C.Cr.P. art. 535(B), which provides, “[a] motion to quash on the ground that the time limitation for commencement of trial has expired may be filed at any time before commencement of trial.” This provision applies to the assertion of the statutory right to speedy trial pursuant to La. C.Cr.P. art. 701. The State also cites La. C.Cr.P. art. 535(E), which provides, “[t]he court may, in order to avoid a continuance, defer a hearing on a motion to quash until the end of trial.” The State contends that the language of the provision intends for a hearing to be held on the motion to quash. However, in this case, defendant did not file the motion to quash based on any grounds provided in La. C.Cr.P. art. 535(A); and, pursuant to subsection (C), “[a] motion to quash on grounds other than those stated in Paragraphs A and B of this Article shall be filed in accordance with Article 521 [time for filing of pretrial motions].”


20

jurisprudence does not hold that the same statutory procedures must be followed
for filing a motion to quash based on constitutional grounds. See Reaves, 376
So.2d at 137-38; State v. Lang, 464 So.2d 776 (La. App 4th Cir. 1985); see also
Sorden, 09-1416, p. 7, 45 So.3d at 185-86 (discussing the distinction between
constitutional and statutory speedy trial claims).
Next, the State relies on this Court’s recent decision in State v. Williams, 17
0239 (La. App. 4 Cir. 9/6/17), __ So.3d __, unpub., 2017 WL 3887457, to argue
that it is an abuse of discretion for the trial court to grant a motion to quash without
affording the State a reasonable opportunity to prepare an opposition. Here again,
however, the motion to quash at issue in Williams, and each of the cases cited
therein, was based on the grounds that the statutory prescriptive period for
prosecution or commencement of trial had expired. When a defendant files an
apparently meritorious motion to quash based on prescription, the State bears a
heavy burden of proving facts necessary to show that prescription was interrupted
or suspended. State v. Joseph, 93-2734 (La. 6/3/94), 637 So.2d 1032; see La.
C.Cr.P. art. 577. Consequently, in consideration that a motion to quash based on
statutory grounds of prescription places the burden on the State to prove facts
necessary to show that the prosecution was instituted timely, this Court has found
it to be an abuse of discretion for a trial court to deny the State time to respond and
prepare to meet its high burden of proof. Williams, supra; State v. Bryant, 14-0653
(La. App. 4 Cir. 12/10/14), not reported, 2014 WL 6989388. By contrast, a motion
to quash raising a constitutional speedy trial claim places the burden on the


21

defendant to establish facts showing that his constitutional right to a speedy trial
has been violated. See State v. Dillon, 11-0188, p. 7 (La. App. 4 Cir. 8/24/11), 72
So.3d 473, 478 (remanding to allow State an opportunity to carry its burden to
rebut defendant’s prescriptive claim and to allow defendant an opportunity to
establish his constitutional speedy trial claim); State v. Smith, 16-0393, p. 8 (La.
App. 4 Cir. 11/23/16), 204 So.3d 1035, 1039 (remanding for a hearing to allow
defendant to present evidence in support of his constitutional speedy trial claim);
see also State v. Scott, 06-1610, p. 5 (La. App. 4 Cir. 4/25/07), 958 So.2d 725, 729
(“defendant challenging the State’s nolle prosequi and reinstitution of charges has
the burden of showing a violation of his constitutional right to a speedy trial.”).
Accordingly, we find the holding in Williams inapplicable in this case.
Finally, the State asserts that the trial court’s denial of its motion to continue
the motion to quash violated the State’s “fundamental right” to procedural due
process, notice, and reasonable opportunity to be heard. Thus, the State posits that
it is guaranteed the same constitutional right of due process as guaranteed to the
criminal defendant by the Fourteenth Amendment to the United States Constitution
and Article 1, §2 of the Louisiana Constitution. This argument has no merit.
Procedural due process as guaranteed by the United States Constitution and
Louisiana Constitution protects a person from the deprivation of life, liberty, or
property [through state action] without due process of law, notice, and opportunity
to be heard.


22

We find no merit to any of the State’s arguments. Further, we note that the
State has failed to argue that it suffered any specific prejudice from the trial court’s
denial of a continuance. Thus, we find no abuse of discretion in the trial court’s
denial of the State’s oral motion to continue the motion to quash.
Defendant’s Writ Application
In the consolidated writ application, defendant seeks review of the
Magistrate Commissioner’s denial of defendant’s petition to quash a search
warrant and for sanctions against the State. For the following reasons, we deny the
writ.
On March 16, 2018, while the State’s appeal of the trial court’s ruling
granting defendant’s motion to quash was pending in this Court, the State
submitted to the Magistrate Commissioner an application for a search warrant to
obtain defendant’s medical records from Interim LSU Public Hospital for the date
of his arrest in October 2013. The Magistrate Commissioner signed the search
warrant authorizing the State to search for and obtain defendant’s medical records.
After learning that the State had obtained and executed the search warrant, defense
counsel filed a “Petition” in Magistrate Court seeking sanctions against the State
and the quashal of the search warrant.
At a hearing before the Magistrate Commissioner on April 3, 2018, defense
counsel argued that the search warrant for defendant’s medical records was
improperly obtained pursuant to La. R.S. 13: 3715.1. In its consideration of
defendant’s petition, the Commissioner noted that the State has the power to


23

continue a criminal investigation while the motion to quash is on appeal and the
Commissioner is authorized to sign a search warrant in an open criminal
investigation. Ultimately, however, the Commissioner denied defendant’s petition
based on a lack of jurisdiction to grant the relief sought by defendant in a criminal
case currently on appeal.
Defendant timely filed the instant writ of the Commissioner’s ruling. On
this Court’s own motion, defendant’s writ was consolidated with the State’s
pending appeal.
First, we agree that the Commissioner was without jurisdiction to rule on a
pleading in a criminal case on appeal. Upon the entering of the order of appeal in
the criminal case, the Criminal District Court and its ancillary Magistrate Court
were divested of jurisdiction. See La. C.Cr.P. art. 916; La. R.S. 13:1336; 13:1347;
see also, La. C.Cr.P. art. 913.
In addition, we find no merit in defendant’s substantive argument.
Defendant contends that the State was required to obtain defendant’s medical
records in accordance with La. R.S. 13:3715.1. We disagree.
In State v. Skinner, 2008-2522 (La. 5/5/09), 10 So.3d 1212, the Louisiana
Supreme Court was presented with the issue of the proper procedure by which the
State could obtain a defendant’s medical records. The Louisiana Supreme Court
found as follows:
Considering the federal jurisprudence and Louisiana's constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly


24

drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen [v. Roe, 429 U.S. 589, 97 S.Ct. 869 (1977)], which balanced the individual's privacy interest against the state's reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens' medical and pharmacy records for criminal investigative purposes. Because we find a warrant was required for an investigative search of the defendant's prescription and medical records, the trial court erred in finding the remedy was for the State to comply with requirements of La.Code Crim Proc. art. 66 and La Rev. Stat. 13:3715.1, which the State had admittedly failed to comply with in obtaining the defendant's prescription and medical records, in order for these records to be admissible at trial. The trial court's ruling essentially permits the State to re-subpoena the prescription and medical records, allowing the State to introduce them at trial if the State has followed all the procedural requirements of La.Rev.Stat. 13:3715.1 and/or La.Code Crim. Proc. art. 66 in procuring these records a second time. However, because we find the Fourth Amendment and La. Const. art. I, § 5 require a search warrant before a search of prescription and medical records for criminal investigative purposes is permitted, the State cannot cure its warrantless search and seizure of the records by a second subpoena of these records. A search warrant for property where one has a reasonable expectation of privacy may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. La. Const. art. I, § 5; La Code Crim. Proc. art. 162. The procedural requirements of La.Rev.Stat. 13:3715.1 simply and clearly do not suffice to comply with the constitutional requirements of probable cause supported by a sworn affidavit for the issuance of a search warrant. Thus, it is irrelevant whether or not the State complied with the requirements of La.Rev.Stat. 13:3715.1, and any subsequent compliance with its procedural requirements is insufficient to permit the introduction of evidence that was illegally searched and seized. This evidence must be suppressed.

Skinner, 2008-2522, pp. 10-11, 10 So. 3d at 1218 (emphasis added).
Based on the foregoing, we find no error in the Commissioner’s ruling
denying defendant’s petition to quash the search warrant and for sanctions.
Defendant’s writ is denied.

Outcome: For the foregoing reasons, defendant’s motion to dismiss the appeal is
denied; the State’s motion for sanctions is denied; the trial court’s judgment
granting defendant’s motion to quash on the grounds of a constitutional speedy
trial violation is affirmed; and defendant’s writ is denied.

Plaintiff's Experts:

Defendant's Experts:

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