State v. PerkinsState v. Perkins
On January 17, 1977 Roger D. Perkins was charged by bill of information with distribution of dilaudid, a violation of
Assignment of Error No. 1
In this assignment, the defense argues that the trial judge was in еrror to deny a motion to quash the information on the ground of a speedy trial violation.
The record indicates that the offense with which the defendant was charged occurred on July 10, 1976. Perkins was arrested while in jail on an unrelated charge, but formal proceedings were not instituted until January 17, 1977 and defendant was not arraigned until March 15, 1977. The case was originally assigned to Section I of the Nineteenth Judicial District but was reassigned to Section V to assure a fair аllocation of cases to each section of court. On May 11, 1977 defendant was ordered to appear and name counsel on May 25; when defendant failed to appear, a bench warrant was issued and his bond wаs doubled. The warrant was later recalled in August and defendant was ordered to appear and name counsel on September 12, 1977.
On the appointed date, the defendant appeared without counsel and movеd the court to appoint an attorney to represent him. After examining the defendant, the trial judge determined that he was not indigent2 and ordered him to return in two weeks with retained counsel. Perkins failed to appear on Seрtember 26 and the judge again issued a bench warrant. However, on October 13, 1977 Norman Erschler was entered as counsel of record for the defendant and the trial was set for December 5, 1977. On November 17, 1977 the defense filed a motion to quash which the trial judge denied four days later. The defendant failed to appear for trial on December 5 and a third bench warrant was issued. However, the warrant was recalled on the following day and trial was reset for February 23, 1978.
On February 23 the trial judge reassigned the date for trial which was later held on May 16, 1978. Although the minute entries for February 23 indicate that the judge took this action on his own motion, the record contains a defense motion for continuance which alleged that the defendant was undergoing treatment at Greenwell Springs Hospital and would therefore be unavailable for the February trial date.
The right to a speedy trial is guaranteed by the
In the present case, twenty-one months elapsed between the date of the alleged crime and the date of trial. Five months passed between the arrest in August, 1976 and the institution of prosecution in January, 1977. An additional delay was occasioned by the transfer of the case between different sections of court. Nevertheless, the defendant substantially contributed to subsequent delays by failing to appear in court at designated times. Although Perkins has alleged that he was unable to attend court on May 25, 1977 because he was in jail in Lafayette on unrelated charges, his failure to appear in Baton Rouge was not promрted by the prosecuting authorities of that jurisdiction and therefore is not chargeable to them. Perkins’ explanation of his failure to appear on September 26, 1977 is equally unavailing. The defendant alleges that he believеd that he would be jailed if he appeared without retained counsel on that date, but the record does not indicate any reference by the trial judge to this possibility. In any case, Perkins also failed to appear for trial on December 5, 1977 after his parents had retained an attorney for him. The final continuance of trial from February 23 to May 16 was apparently granted upon a defense motion, even though the minute entries indicate that thе judge acted on his own motion. The record as a whole demonstrates that a substantial part of the delay was caused by the defendant and that his assertion of the right to speedy trial came when the bulk of the delay had already elapsed.
Moreover, there seems little possibility that the delay prejudiced Perkins. The defendant made bond on the night of his arrest and was never in jail on this charge before trial; certainly his ability to aid in the preparаtion of his defense was not impaired by extended incarceration. Although Perkins claimed at the hearing on the motion to quash that he was unaware of the nature of the charge against him until September, 1977, his ignorance is unjustified in light of the formal charge filed against him eight months earlier. Moreover, the defense allegation that the delay prevented Perkins from establishing an alibi is belied by the defendant‘s admission that he never consulted with his family to ascertain his actions on the day in question until over a year after he was arrested. The defense therefore has failed to demonstrate any prejudice to the defendant occasioned by the delay. In light of these considerations, thе trial judge was correct to deny the motion to quash.
This assignment is without merit.
Assignment of Error No. 2
By this assignment the defense alleges that the trial judge was in error in failing to declare a mistrial after the prosecutor, in closing argument, commented on defendant‘s silence.
At trial the State relied on the testimony of John Cornwell, a trooper with the Louisiana State Police who was working undercover during July, 1976. Cornwell testified that he and a confidential informant parked in the lot next to Romano‘s Supermarkеt on North Boulevard in Baton Rouge. The defendant then approached the car and sold Cornwell two dilaudid tablets after a brief conversation. During cross-examination, the defense attorney made Cornwell admit that he did nоt remember many details of the transaction or of several others which took place during the same period. Anticipating an attack on the agent‘s version of the events in question, the district attorney summarized Cornwell‘s testimony and then added:
“He‘s not confused. I could care less whether he remembers other cases he made or may, did not—he said he didn‘t make any. He said that—inaudible. We have no evidence to refute that. You have to take his word as truth unless you have a reason not to because just as this defendant before this trial started enjoyed the presumption of innocence, so does anybody that takes that witness
stand enjoys a presumption that they do not perjure themselves. This is the same presumption of innocence. The party who claims this witness is either making up a case on this guy or forgetful of facts involving this case and other cases, the person who questions that has an oрportunity to get up there and show this man perjured himself. Until that is done, he enjoys the presumption that what he said is true.”
Although the defense immediately requested a mistrial, the court agreed only to admonish the jury.
References made in closing argument that the State‘s case stands unrebutted or uncontroverted have frequently been upheld by this cоurt, see State v. Sims, 346 So.2d 664 (La.1977); State v. Reed, 284 So.2d 574 (La.1973); State v. Cryer, 262 La. 575, 263 So.2d 895 (1972). However, a statement that the State‘s theory of the case remains unassailed encompasses the entire case presented by the defense and does not focus on the defendant‘s failure to take the stand. On the other hand, the remarks made in the instant case refer specifically to the defendant‘s silence. It is obvious that “the person who ... has an opportunity to get up there and show this man (Cornwell) perjured himself” can refer only to the defendant; only he and Trooper Cornwell were able to testify concerning the events at Romano‘s Supermarket, since, as Cornwell testified, the confidential informant had disappeared. When the defendant is the only person who can dispute the testimony, a reference to the testimony as uncontroverted focuses the jury‘s attention on the defendant‘s failure to testify, see United States v. Buege, 578 F.2d 187 (7th Cir. 1978). For these reasons it is clear that the prosecution violated the prohibition embodied in
This assignment has merit.
For the reasons assigned, the conviction and sentence are reversed and the case is remanded tо the district court for further proceedings consistent with the views expressed herein.
SUMMERS, C. J., dissents.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
In the present case, I consider that the jury more than likely received the argument of the prosecutor аs pointing up a problem in proving inconsequential specifics, rather than as one suggesting that they should conclude defendant was guilty of distribution of dilaudid because otherwise he would have taken the stand in his own defense. See State v. Smith, supra. Accordingly, I respectfully dissent.