STATE of Louisiana v. John R. NEYREY
No. 57163
Supreme Court of Louisiana
May 17, 1976
On Rehearing October 6, 1976. Rehearing Denied November 5, 1976.
341 So.2d 319
SANDERS, Chief Justice. MARCUS, Justice.
William J. Guste, Jr., Atty. Gen., Kendall Vick, Barbara Rutledge, J. Wensles
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Parish of Jefferson, Metairie, for amicuscuriae.
SANDERS, Chief Justice.
On the strength of two affidavits filed by a former associate, alleging theft of $16,152.00, John R. Neyrey was arrested. The next day, March 17, 1972, Neyrey was released on bond. On March 23, 1972, because of a possible conflict of interest on the part of staff members, the District Attorney of Jefferson Parish by letter assigned “the complete handling of this matter to the Attorney General‘s Office . . . including the investigation of same and/or prosecution.”
On January 7, 1975, an Assistant Attorney General filed a bill of information charging Neyrey with the theft for which he had been arrested in 1972. Defendant filed a motion to quash the indictment, alleging that under Article 4, Section 8 of the Louisiana Constitution of 1974, the Attorney General had not followed the requirements for instituting prosecution and that he had been denied his right to a speedy trial. After a hearing, a trial court denied the motion, but stayed all proceedings, pending final disposition of an application for writs. On defendant‘s application, we granted supervisory writs, La., 325 So.2d 269 (1976).
This Court granted writs to consider Article 4, Section 8 of the 1974 Louisiana Constitution and its application to the procedures of this case. The pertinent part of that section provides:
“As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.”
Although the relator was arrested in 1972, the Attorney General‘s office filed no bill of information until 1975. At the time of relator‘s arrest, the Louisiana Constitution of 1921 outlined the powers of the Attorney General‘s office in Article 7, Section 56, as follows:
“The Attorney General and the assistants shall be learned in the law and shall have actually resided and practiced law, as duly licensed attorneys, in the State for at least five years preceding their election and appointment. They, or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law.” (Italics ours.)
In 1972, under the 1921 Constitution, the Attorney General clearly had general authority to institute and prosecute criminal proceedings. The Attorney General, however, filed the present bill of information after the 1974 Constitution became effective.
The relator asserts that under the new Constitution the Attorney General is authorized to institute criminal proceedings only under the conditions specified in Subsection (3) (a), which requires prior judicial authorization upon a showing of cause by the Attorney General. He argues, therefore,
On the other hand, the State argues that Sub-section (3) (a) prescribes the manner in which the Attorney General may institute criminal proceedings without the concurrence of the district attorney. The State reasons that filing a bill of information is within the ambit of the authority to “advise and assist.” Alternatively, the State maintains that if judicial authorization was required in this case, the defect in the bill of information was cured when the trial court issued an Order for Authorization to Proceed with Prosecution on the same day that it denied the relator‘s motion to quash.
In support of their arguments, both parties cite excerpts from the Proceedings of the Constitutional Convention. After a thorough reading of the debate on this Constitutional provision, we conclude that the Constitutional Convention did not specifically consider whether the Attorney General‘s office was authorized to institute a criminal proceeding upon the request of the district attorney without authorization by the trial court for cause.
However, when generally discussing the Attorney General‘s authority to institute a criminal prosecution under the new provision, the consensus was that this authority vested after he obtained a court order.1
Besides the change in terminology vesting the Attorney General with the authority to institute criminal prosecutions, it is also clear from the proceedings that the intent of the Constitutional Convention delegates was definitely to restrict the Attorney General‘s power to institute criminal proceedings.
When the new provision is analyzed in the light of the general intent, only one reasonable interpretation follows: the Attorney General can institute a criminal proceeding for cause only after authorization by the court. This conclusion is buttressed by the numerical classification of authority in the provision. The authority to advise and assist in the prosecution of a criminal case is separated in a numbered section from the third distinct authority, to institute, prosecute or intervene for cause when authorized by the court.
The State alternatively argues that even if the proper procedures for instituting suit were not followed in filing the bill of information, this defect was cured when the trial court authorized the Attorney General to proceed with the prosecution. In support of this argument, the State cites Louisiana Code of Criminal Procedure Article 487, which provides for the correction of a bill of information by amendment. Article 487 provides:
“An indictment that charges an offense in accordance with the provisions of this Title shall not be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling, or improper English, or because of any use of any sign, symbol, figure, or abbreviation, or because any similar defect, imperfection, omission, or uncertainty exists therein. The court may at any time cause the indictment to be amended in respect to any such formal defect, imperfection, omission, or uncertainty.
“Before the trial begins the court may order an indictment amended with respect to a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.”
This article is inapplicable to the present case. As the Assistant Attorney General
For the reasons assigned, the district court judgment denying the relator‘s motion to quash is reversed, the motion to quash is sustained, and the defendant is discharged from custody under the present bill of information.
DIXON, J., dissents being of the opinion the procedure here followed constituted compliance with the constitutional provision, and with the full consent of the district attorney.
DENNIS, J., dissents and assigns reasons.
STATE of Louisiana v. John R. NEYREY
No. 57163
Supreme Court of Louisiana
May 17, 1976
341 So.2d 319
DENNIS, Justice (dissenting).
I respectfully dissent.
STATE of Louisiana v. John R. NEYREY
No. 57163
Supreme Court of Louisiana
On Rehearing October 6, 1976
341 So.2d 319
ON REHEARING
MARCUS, Justice.
We granted a rehearing in this case to reconsider whether the Louisiana Constitution of 1974 permits the attorney general to institute a criminal prosecution upon the written request of a district attorney.
John R. Neyrey was arrested on March 16, 1972, after a former business associate executed two affidavits alleging that he committed theft of $16,052.68. He was released from jail on a $5,000 bond the following day. On March 23, 1972, because of possible conflict of interest on the part of his staff members, an assistant district attorney of Jefferson Parish wrote a letter to the attorney general‘s office requesting that it assume complete control over the investigation and/or prosecution of the charges against defendant.1
On January 7, 1975, an assistant attorney general filed a bill of information charging Neyrey with the theft for which he had been arrested in 1972. Defendant filed a motion to quash the information, on the grounds that: (1) the Louisiana Constitution of 1974 (which became effective January 1, 1975) requires the attorney general to obtain judicial authorization, for cause, before instituting a criminal prosecution; and (2) he had been deprived of his constitutional right to a speedy trial. The trial judge denied the motion to quash, and we granted defendant‘s application for certiorari.
I.
Lack of Court Authorization
The Louisiana Constitution of 1974 limits the attorney general‘s authority, which was plenary under the 1921 constitution,2 to institute,
As necessary for the assertion or protection of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.
. . . . . On original hearing, we sustained defendant‘s motion to quash, holding that the assistant attorney general was required to obtain court authorization for cause, in accordance with
On reconsideration, we are of the opinion that
Defendant, however, urging that
Denial of Right to a Speedy Trial
The bill of information charging defendant with theft alleges that the offense was committed between January 29-July 30, 1971. The theft of an amount exceeding $500 is a felony that is not necessarily punishable by imprisonment at hard labor.
Notwithstanding the fact that prosecution and trial are not barred by the applicable prescriptive periods, defendant contends in his motion to quash that his right to a speedy trial under the federal and state constitutions was violated by the roughly thirty-four month delay between his arrest on March 16, 1972 and the institution of prosecution on January 7, 1975.
The right to a speedy trial is a fundamental right guaranteed by both the federal and state constitutions. We have recognized that this right attaches when a defendant becomes an accused, which, in this case, occurred on the date of his arrest. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Stetson, 317 So.2d 172 (La.1975). In determining whether this constitutional right has been violated, no fixed time period governs; rather, the conduct of both the prosecution and the defense are weighed in light of several factors: the length of the delay; the reason for the delay; the defendant‘s assertions of his rights; and the actual prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.3d 101 (1972); State v. Bullock, 311 So.2d 242 (La.1975).
Although the delay in prosecuting this case was considerable, the state asserts that it was caused by several resignations and reassignments within the attorney general‘s office. Defendant does not show that the delay was due to any bad faith effort on the part of the state to hamper his defense. Additionally, there is no evidence that defendant, during the period between his arrest and his filing of the information asserted a demand for prompt disposition of the allegations of theft that occasioned his arrest.5
Finally, we find any claim of prejudice to be minimal. While Neyrey was prejudiced to some extent by living for over thirty-five months under a cloud of suspicion and anxiety, he spent only one night in jail, as he was released on bail the day after his arrest. Moreover, defendant does not demonstrate any prejudice to his case resulting from the delay, making no showing, or even alleging, that any of his witnesses are now unavailable or that his defense has been otherwise impaired.
After a consideration of these factors, we do not find that defendant‘s constitutional right to a speedy trial has been violated. Accordingly, we conclude that the trial judge properly denied the motion to quash the information.
For the reasons assigned, our decree on original hearing is vacated and set aside. The ruling of the trial judge denying the motion to quash the information is affirmed; and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.
SANDERS, C.J., concurs with written reasons.
APPENDIX TO THE OPINION OF THE COURT
DISTRICT ATTORNEY‘S OFFICE
24TH JUDICIAL DISTRICT OF LOUISIANA
PARISH OF JEFFERSON
FRANK H. LANGRIDGE DISTRICT ATTORNEY
WAVERLY A. HENNING
JOHN M. MAMOULIDES
THOMAS P. McGEE
SAMUEL W. ETHRIDGE
JAMES M. LOCKHART, JR.
WILLIAM J. WHITE, JR.
CLARENCE E. McMANUS
GORDON K. KONRAD
MARION F. EDWARDS
JACK A. GRANT
RONALD P. LOUMIET
ROBERT B. EVANS, JR.
ASSISTANT DISTRICT ATTORNEYS
Gretna, Louisiana
March 23, 1972
Mr. Mac Achee
Special Counsel, Office of The Attorney General
State of Louisiana
Gretna, Louisiana
Re: State of Louisiana vs. John R. Neyrey
Dear Mr. Achee:
Charges have recently been filed against the above captioned person, a resident of Jefferson Parish who at one time was a personal client of mine, as well as a client of Mr. James Lockhart, Assistant District Attorney, at the time the charges were made by another member of his firm.
Because of the previous attorney-client relationship above stated and more particularly, since the charges that have been filed arise out of a business venture in which Mr. Lockhart was a participant, I am assigning the complete handling of this matter to the Attorney General‘s Office through you, including the investigation of same and/or prosecution.
I am further, by copy of this letter, assigning Mr. Hubie Badeaux as special investigator in this matter for your use and do hereby direct that he report his findings to you and to proceed as per your instructions.
Sincerely,
(s) John M. Mamoulides
John M. Mamoulides
Assistant District Attorney
JMM/trf
cc: Mr. Jack Yelverton Chief, Criminal Division Attorney General‘s Office Baton Rouge, Louisiana
Mr. Louis LaCour Attorney for Defendant 711 American Bank Building New Orleans, Louisiana 70130
Mr. Hubie Badeaux
Mr. James Lockhart
SANDERS, Chief Justice (concurring).
I think a contrary interpretation of the constitutional language is supportable. Nonetheless, the opinion on rehearing is plausible and reaches a better result for the administration of justice. Hence, I concur.
Notes
Article VII, § 56 of the 1921 constitution provided as follows:
The Attorney General and the assistants shall be learned in the law and shall have actually resided and practiced law, as duly licensed attorneys, in the State for at least five years preceding their election and appointment. They, or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law.
In case of a vacancy in the office of Attorney General, the First Assistant Attorney General shall perform the duties of the Attorney General until his successor shall have been duly elected and qualified. (Emphasis added.)
Article 572 provides in pertinent part:
No person shall be prosecuted, tried, or punished for an offense not punishable by death 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;
. . . . .