STATE v. HONORE (2023)

Writ application granted. See per curiam.

Writ granted. “Cases shall be set for trial by the court on motion of the state, and may be set for trial on motion of the defendant.” La.C.Cr.P. art. 702. While a prosecutor's authority includes determining “whom, when, and how he shall prosecute[,]” as set forth in La.C.Cr.P. art. 61, that authority does not extend to controlling when the trial court sets the case for trial, once the motion to do so is made, pursuant to Art. 702. Instead, the trial court exercises its discretion in selecting the trial date.

“Where there is an exercise of discretion, there is a potential for abuse of that discretion, and that abuse must be subject to appellate review.” State v. Young, 96-0195, p. 1 (La. 10/15/96), 680 So.2d 1171, 1175 (Calogero, C.J., dissenting). See also State v. Watson, 2022-00719, p. 2 (La. 5/1/22), 338 So.3d 1169, 1170 (Crain, J., dissenting) (“Thus, once the charge is filed and the case is assigned, the trial judge controls the proceedings, subject to review for an abuse of discretion.”). Here, after careful review of the transcript of the hearing and the trial court's per curiam, we find the trial court abused its discretion in selecting a new trial date approximately 11 months away after this court remanded with instructions to set “a new trial date that will afford the defendants additional time to respond to the State's DNA and fingerprint evidence.” State v. Honore, et al., 2023-00461 (La. 4/4/23), 359 So.3d 15 (per curiam).

A court “has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.” La.C.Cr.P. art. 17. Additionally, “the interests of the victim's family in closure and of the defendants’ interests in a speedy trial must be weighed and balanced.” State v. Honore, et al., 2023-00461, p. 2, 359 So.3d at 15 (Weimer, C.J., concurring). A trial date should be selected “that assures that both the State and the defendants are adequately prepared to proceed with trial [and that] strikes the appropriate balance and averts potential errors which might, at a later date, require a reversal and retrial. The ultimate goal of a trial is a just result.” Ibid. Here, the record does not reflect that a careful weighing and balancing of those concerns with that goal in mind occurred. Instead, we find the selection of the March 2024 trial date is an abuse of discretion.

Therefore, we grant the State's application and vacate the trial court's ruling that set trial for March 18, 2024. After carefully weighing and balancing the considerations above, and after evaluating the competing scheduling considerations listed in the trial court's per curiam, we remand to the trial court with instructions to select a trial date in the year 2023.

REVERSED AND REMANDED

This matter began with a district court judgment excluding DNA evidence and denying a continuance for one of three defendants who were being tried together. The State sought supervisory writs, and this Court reversed the district court's ruling. State v. Honore, et al., 2023-0461 (La. 4/4/23), 359 So. 3d 15 (per curiam). We remanded for further proceedings and the setting of a new trial date “that [would] afford the defendants additional time to respond to the State's DNA and fingerprint evidence.” Id. As highlighted by the Chief Justice in his concurrence to our per curiam, “the interests of the victim's family in closure and of the [juvenile] defendants’ interests in a speedy trial must be weighed and balanced.” Id. at 15 (Weimer, C.J., concurring). On remand, the district court set a trial date approximately 11 months after the hearing, stating “[i]t took 11 months for the State to test DNA. I'm going to give you 11 months to test your DNA.”

I agree with the per curiam's finding that the district court abused its discretion. More specifically, however, I find the district court's actions to be arbitrary and border on retaliation. Appellate review is a “safeguard of justice,” and a litigant should never be punished for seeking review of a district court's ruling. Smith v. Bd. of Comm'rs of Port of New Orleans, 262 La. 96, 100, 262 So. 2d 383, 384 (1972). A trial judge should not retaliate or engage in vindictive behavior in response to a litigant seeking appellate review. Indeed, even the slight appearance of retaliation is improper and undermines trust and confidence in the judiciary.

Moreover, if retaliatory, the decision of the district court would implicate violations of the Louisiana Code of Judicial Conduct and could be cause for mandatory recusal. See La. C.C.P. art. 151 (A judge shall be recused if “[t]he judge is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an extent that the judge would be unable to conduct fair and impartial proceedings.”); La. Code of Jud. Conduct, Canons 1 (“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.”); 2(A) (“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.”), and 3(A)(4) (“A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice.”).

For the foregoing reasons, I agree with the majority decision to reverse and remand with instruction to select a trial date in the year 2023.

Two wrongs don't make a right. I dissented when the April 3, 2023 trial setting was continued. The DNA evidence did not justify that continuance. If it did not justify this court's continuance, it does not justify the lengthy delay by the trial judge in resetting the trial date. Thus, I concur in finding an abuse of discretion in not setting the trial of this matter in calendar year 2023.

The DNA testing appears to be the primary rationale for the trial judge's lengthy delay for the new trial date. Otherwise, she had every justification for her action. When setting the March 18, 2024 trial, in response to our order continuing the April 3, 2023 trial, the trial judge stated, “It took 11 months for the State to test DNA. I'm going to give you 11 months to test your DNA.” Of course, by this court granting a continuance, we had already usurped the trial judge's authority to manage her docket, putting her between the proverbial “rock and a hard place.” How many one month blocks of time are available on one of the busiest criminal dockets in the state?

As recognized in the per curiam, the trial judge controls her docket, not the district attorney. When a case gets moved, other cases are impacted. The criminal dockets in Orleans Parish are backed up nearly to the point of breaking. Judges must be aggressive and steadfast in setting cases for trial, and cases must be timely tried to bring those dockets into balance.

At a pre-trial conference on June 3, 2022, after the defendants were indicted on April 28, 2022, the trial judge initially set this high interest criminal case for trial. The fact it was a “first setting” is completely immaterial, and should never be a reason for parties to expect a continuance. In what was obviously a priority case for this trial judge, the parties were given ten months to prepare for trial. A full month was set aside to try the case. 1500 prospective jurors were summoned. Those are extraordinary efforts by this trial judge to see that this important case was timely tried. Then, one month before trial, the state was apparently not ready for trial. Thus, the maneuvering to obtain a continuance.

This is just one case on a very busy court docket; moving it has a ripple effect. Defendants and victims in other cases are affected when cases are moved. The trial judge is best positioned to make such judgment calls.

Here, the loudest voice complaining about the subject trial setting is the one who requested the continuance, the district attorney. He joined the defendants in asking for a continuance, then did not like the one he got. Had he been ready for trial initially, he would not have had to join with the defendants in seeking a continuance. From the record before us, the trial court astutely recognized this fact, faulting the district attorney for waiting passively and not pressing for the DNA results. The following excerpt from the March 27, 2023 hearing when the trial judge denied a continuance is revealing:

They're asking for a continuance based on DNA evidence, and I've heard nothing from the State to say that they tried to rush and get this DNA earlier. Mr. Boggs filed that Motion back in June or July to preserve. That's the only thing he asked, was for it to be preserved. It's there. None of you all asked for it to be tested. Let me be very clear. So the fault that this DNA has not been tested by you all [defense], the Report was given later by you all [district attorney]. It's everybody's fault here.

I cannot blame the defendants for this delay. A last minute continuance request is the rule in most high stakes criminal cases, and a recurring defense strategy. Granting one, however, is exceptional. Having the district attorney join the request is nearly unheard of. But, that is what this trial judge faced. There was nothing exceptional to warrant interference with the trial judge's previous carefully selected trial date. The delay in obtaining the DNA test results was induced by the state's inaction, and avoidable. The joint motion for continuance does not allow the state to avoid responsibility for its failure to go to trial on April 3, 2022.

While I continue to believe the trial judge is entitled to control her docket, my consistent view is the DNA testing did not require a continuance of the previous trial date and does not justify the extended delay for the new trial date. Ordering even more time to do that merely compounds the error created when the April 3, 2023 trial was continued. A trial date beyond the end of this calendar year is an abuse of discretion. I concur.

When instructions are issued by this Court on remand, the abuse of discretion standard necessarily evaluates a trial court's ability to thread the needle between carrying out those instructions while still maintaining control of its docket. In my twenty years as a trial court judge I learned to make decisions and move on notwithstanding the potential for reversal from higher courts that had a differing view of the law and facts. Despite sustaining the occasional rebuke, in my time on this Court I have come to appreciate that the judiciary operates as a whole to ensure the efficient and procedurally sound adjudication of civil disputes and criminal prosecutions.

Crichton, J., additionally concurs and assigns reasons. Crain, J., concurs and assigns reasons. Griffin, J., concurs and assigns reasons.