text:
    In re Antoine Z. LAURENT.
    No. 2002-B-2163.
    Supreme Court of Louisiana.
    Jan. 14, 2003.
    Charles B. Plattsmier, Chief Disciplinary Counsel, James T. Daly, Deputy Disciplinary Counsel, Counsel for Applicant.
    Antoine Z. Laurent, Slidell, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This disciplinary proceeding arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Antoine Z. Laurent, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

Stipulated Facts

Respondent has a small legal practice consisting primarily of uncontested domestic matters and criminal misdemeanors. Due to the nature of his practice, respondent does not have a substantial amount of funds in his client trust account at most times, often failing to satisfy the minimum account balance required by his financial institution. As a result, respondent began keeping the legal fees he earned from completed personal injury cases he handled in his client trust account so as to avoid payment of bank penalties and service charges. Respondent routinely wrote checks on his client trust account to satisfy his office expenses (i.e., monthly bills, staff salaries) and personal debts. He also utilized the account to make monetary advances to clients and satisfy litigation expenses prior to the settlement of the respective clients’ cases.

pin the course of investigating an unrelated disciplinary complaint filed by one of respondent’s former clients, the ODC first became aware of respondent’s misuse of his trust account. Although the disciplinary complaint was ultimately dismissed, the ODC continued to investigate respondent’s financial transactions and requested additional information from respondent regarding his financial records. He did not respond, believing the request related to the disciplinary complaint which had already been dismissed. The ODC then issued a subpoena to respondent to compel his appearance and production of documents at a scheduled deposition. Respondent neglected to comply with the subpoena.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed one count of formal charges against respondent alleging violations of Rules 1.15 (commingling of client funds — failure to safekeep client property), 8.1(c) (failure to cooperate with the ODC in its investigation) and 8.4(g) (failure to cooperate with the ODC) of the Rules of Professional Conduct. Respondent filed an answer admitting he commingled client funds, but denied it was willful and to the detriment of his clients. Additionally, he denied that he failed to cooperate with the ODC.

Recommendation of the Hearing Committee

The parties stipulated to the facts and a hearing was conducted exclusively for the purpose of presenting mitigating evidence. Relying on the stipulations of facts and the documentary evidence, the hearing committee determined the ODC proved by Pelear and convincing evidence that respondent violated Rule 1.15 by commingling client funds and violated Rules 8.1(c) and 8.4(g) by failing to cooperate with the ODC in its disciplinary investigation.

In determining an appropriate sanction, the committee determined the baseline sanction for respondent’s misconduct under Standards 4.12 and 7.2 of the ABA’s Standards for Imposing Lawyer Sanctions was a suspension. The committee also relied on the case of In re: Estess, 98-2741 (La.1/8/99), 740 So.2d 93 (one year suspension, with nine months deferred, subject to a two year period of supervised probation with conditions imposed by consent on an attorney who kept a $190,000 legal fee in his trust account and began writing checks out of the account for his gambling and personal necessities, but did not convert any client funds to his own use).

As aggravating factors, it noted a pattern of misconduct and the obstruction of the disciplinary process through his failure to cooperate. In mitigation, it recognized lack of client harm, and respondent’s forthrightness and lack of prior disciplinary record. It declined to accept in mitigation respondent’s assertion that he engaged in commingling so as to prevent paying bank penalties or charges due to insufficient account balances, but did find respondent was truly remorseful for his actions and there was no evidence of an adverse impact on respondent’s clients.

Based on these findings, the committee recommended respondent be suspended from the practice of law for a period of six months, fully deferred, subject to a two year period of probation. As conditions to probation, the committee proposed that [¿respondent’s practice be reviewed and monitored by a certified public accountant who would periodically report on his findings. Additionally, it recommended respondent complete fifteen additional hours of continuing legal education in the area of client trust accounts.

The ODC filed an objection to the leniency of the proposed sanction.

Recommendation of the Disciplinary Board

The disciplinary board adopted the factual findings of the hearing committee as its own. It also concurred in the committee’s proposed sanction, finding a fully deferred six-month suspension subject to a two year probation is “generally appropriate.” However, rather than completing fifteen hours of continuing legal education related exclusively to the handling of client trust accounts, the board suggested it would be beneficial for respondent to fulfill some of these requirements by attending seminars related to small firm management, trust accounting and/or ethics.

The ODC filed a timely objection to the leniency of the disciplinary board’s proposed sanction. As a result, the court docketed the matter for briefing and argument in accordance with Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992). While we are not bound in any way by the findings and recommendations of the | shearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Respondent has stipulated to the facts. These facts establish that he has commingled his personal funds with client funds in violation of Rule 1.15 and failed to cooperate with the ODC, in violation of Rules 8.1(c) and 8.4(g). Accordingly, we now turn to a discussion of the appropriate sanction.

The purpose of disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain the appropriate standards of professional conduct, to preserve the integrity of the legal profession and to deter other lawyers from engaging in violations of the standards of the profession. In re: Vaughan, 00-1892 (La.10/27/00), 772 So.2d 87; In re: Lain, 00-0148 (La.5/26/00), 760 So.2d 1152. The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. In re: Redd, 95-1472 (La.9/15/95), 660 So.2d 839.

Commingling is a serious professional offense. In similar cases, this court has imposed sanctions ranging from a minimal period of actual suspension to a lengthy period of conditional probation. See In re: Estess, 98-2741 (La.1/8/99), 740 So.2d 93; In re: Crooks, 00-1359 (La.6/23/00), 762 So.2d 1077; In re: Hernandez, 00-1283 (La.10/6/00), 770 So.2d 330.

As aggravating factors, we recognize a pattern of misconduct and the obstruction of the disciplinary process through his failure to cooperate. In mitigation, we find lack of actual client harm, lack of prior disciplinary record and remorse.

Taken as a whole, the record suggests respondent’s misconduct resulted from improper practice management skills rather than any intentional or selfish motive. While this finding in no way excuses respondent’s action, it will serve to ameliorate | fithe harshness of the sanction. Under these circumstances, a fully deferred suspension is appropriate.

Accordingly, we will suspend respondent from the practice of law for a period of six months. The suspension will be fully deferred, subject to a two year period of probation with the following conditions:

1. Respondent shall maintain his trust account in accordance with the Rules of Professional Conduct;
2. Respondent shall make his operating and client trust account financial records subject to review by the ODC on a quarterly basis;
3. In addition to his ordinary requirement of fifteen hours of mandatory continuing legal education, respondent shall complete an addition fifteen hours of continuing legal education annually by attending the Louisiana State Bar Association’s Ethics School, a Solo Practitioners and Small Firms seminar, or other seminars which provide education in the area of the maintenance of client trust accounts and shall provide proof of attendance to the ODC.
4. Any violation of these conditions or other misconduct during the probationary period shall be grounds to make the deferred portion of the suspension executory and/or imposition of additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Antoine Z. Laurent be suspended from the practice of law in Louisiana for a period of six months. This suspension shall be deferred in full and respondent shall be placed on probation for a period of two years, subject to the conditions set forth in |7this opinion. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of the finality of this court’s judgment until paid.

      . According to respondent, , the Louisiana State Bar Association advised him the account was not subject to the IOLTA requirements due to the nominal amount held in escrow on a monthly basis. Presumably, respondent ordinarily maintains in his trust account an amount which would draw less than $50 per month in interest. See Paragraph 3 of the IOLTA Rules.

      . This was actually the second occasion the ODC had to issue a subpoena mandating respondent's cooperation. Previously, respondent had neglected to respond to the ODC's written requests that he file an answer to the original disciplinary complaint.

      .The hearing committee cited to Standard 4.12, which provides suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client. Additionally, the committee erroneously cited to Standard 7.12. It obviously intended to cite Standard 7.2, which states suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes serious or potentially serious injury to a client, the public, or the legal system.

      . The ODC urges us to impose an actual period of suspension, suggesting that an actual conversion may have taken place in this case, but that it was unable to make this determination because of respondent’s poor record keeping. However, the formal charges do not allege respondent failed to maintain proper financial records as required by Rule 1.15(a). In the absence of such allegations, we will not deal in speculation.


source: Caselaw Access Project

author: 11 VICTORY, J. It CALOGERO, Chief Justice,

license: Public Domain

text:
    STATE of Louisiana v. Dale P. BISHOP.
    No. 2001-K-2548.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Stephen T. Sylvester, Monroe, Counsel for Applicant.
    John W. Rambo, Monroe, Counsel for Respondent.
   11 VICTORY, J.

We granted this writ application to consider whether the court of appeal erred in reversing defendant’s attempted second degree murder conviction by concluding that the state failed to prove the element of specific intent to kill. After reviewing the applicable law and viewing the evidence in the light most favorable to the state, we find that the evidence was sufficient to convince a rational trier of fact that all of the elements of the crime of attempted second degree murder had been proven beyond a reasonable doubt. We further find that the trial court’s erroneous jury instructions regarding an element of the offense was harmless error. Accordingly, we reverse the court of appeal’s judgment and reinstate the defendant’s conviction and sentence for attempted second degree murder.

Facts and Procedural History

After reviewing the record, we adopt the following statement of facts set forth by the court of appeal. On June 15, 1985, at approximately 6:00 a.m., the elderly victim, Raymond Eady, walked to a convenience store in West Monroe to purchase beer and then walked to a nearby vacant lot to drink it. Defendant, Dale Bishop, and 1 ¡.Kenneth Norris joined the victim and the victim shared his beer with the men. When they finished what was left of the victim’s beer, defendant left and obtained more alcohol for the men. After they consumed that portion, Norris left to get yet more beer but did not return immediately.

In defendant’s statement to police, he claimed that while Norris was gone, he and the victim had consensual sex. When Norris returned, defendant led him to some nearby bushes where the victim was sitting, still naked from their encounter. Norris began to laugh at the victim and the victim responded by insulting Norris or perhaps pushing him.

Before Norris could strike back, defendant instructed him to stand watch. Norris testified that defendant then proceeded to hit and kick the victim in the face and to cut him in the groin area with either a knife or a broken bottle. After a few minutes, Norris joined in the assault, hitting the victim several times in the head and cutting him once on the upper thigh. Norris further testified that the victim did not cry out or fight back during the beating because defendant threatened to kill him if he resisted.

Defendant and Norris left the wounded victim in the bushes and walked back to the steps where they waited for the next train. About an hour and a half later, three people, including Boyce Hawkins, walked by. Defendant told them several times to steer clear of the bushes warning them that there was a snake in the grass. Hawkins nonetheless walked up to the men and heard the victim moaning. Defendant and Norris then admitted that they had heard the moans for the last 30 minutes. Hawkins then approached the bushes, saw the victim, and called the police.

When officers arrived at the scene, they arrested defendant and Norris for public intoxication. While in custody, Norris gave three separate statements. In the first, he denied any knowledge of the beating; in the second statement, he admitted striking the victim; in his final statement, he accused defendant of inflicting the bulk of the victim’s injuries. Defendant gave two statements, first denying any involvement in the beating. Sergeant Jerry Powdrill and Captain Patrick testified that in his second interview, defendant admitted cutting the victim in the stomach and groin area with a broken beer bottle.

|3The state charged defendant with attempted second degree murder. At trial, in addition to the above evidence, the victim testified that he could not see much of what happened during the attack because his eyes were swollen shut from the beating. However, he did remembered seeing defendant wielding a knife. Linda Armstrong, an expert in serology, testified that she attempted to type blood found on defendant’s and Norris’s clothing. There was an insufficient quantity of blood on Norris’s clothing to analyze; however, the blood on defendant’s clothing was type AB, the same type as the victim’s.

Dr. Michael Landreneau treated the victim at the hospital. He testified that the victim had sustained severe trauma from blows to the head and chest, had been assaulted by a sharp object that lacerated his eyelids, ears, and scrotum, and that his penis was almost cut in half. There was blood in the victim’s left ear canal and rhinorrhea, fluid that bathes the brain, leaked from the victim’s nose. X-rays revealed that the victim’s nose had been broken so badly that the bones were nonexistent. Both of the victim’s jawbones had been broken in half. The victim’s right cheek bones were smashed and the left cheek bones were completely destroyed. The victim also suffered a basi-lar skull fracture and a “blowout” fracture on the left side of his face. The doctor testified that more than 70% of the bones in the victim’s face had been broken, however, he considered the facial injuries, in and of themselves, non-life-threatening. Nonetheless, the doctor testified that the cumulative effect of the injuries and their complications, compounded by the victim’s inebriated state and the delay in seeking medical attention, placed him in danger of losing his life.

After hearing the evidence, the jury convicted him as charged of attempted second degree murder. The court then sentenced him to 50 years imprisonment at hard labor. On December 5, 1985, defendant’s attorney filed a notice of appeal. Over the next 15 years, defendant filed several applications for post-conviction relief and eventually obtained a reinstatement of his appeal. The Second Circuit reversed the conviction finding insufficient evidence of intent to kill and instead entered a judgment of guilty to the lesser included offense of aggravated battery. State v. |4 Bishop, 34,637 (La.App. 2 Cir. 7/24/2001), 792 So.2d 886. We granted the state’s writ to consider this issue. State v. Bishop, 01-2548, 824 So.2d 1162 (La.8/30/02).

DISCUSSION

In the state’s application, it alleges that the appellate court erred when it reversed defendant’s conviction finding that the prosecution presented insufficient evidence to prove the element of intent.

“In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).

To sustain a conviction for attempted second degree murder, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. La. R.S. 14:27; 14:30.1. Although the statute for the completed crime of second degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires specific intent to kill. State v. Huizar, 414 So.2d 741 (La.1982). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So.2d 189 (La.1975); State v. Martin, 92-0811 (La.App. 5 Cir. 5/31/94), 638 So.2d 411.

In reversing defendant’s conviction for attempted second degree murder, the Second Circuit concluded that the evidence failed to show specific intent to kill, but only showed specific intent to inflict great bodily harm. We disagree. Viewing the evidence in a light most favorable to the prosecution, we conclude that the state certainly presented sufficient evidence to prove defendant possessed the requisite specific intent to kill.

|sAs discussed above, the evidence established that defendant and his companion brutally attacked the victim. The physician who treated the victim stated that most of the bones in the victim’s face had been broken during the beating and that it appeared that his attackers had attempted to castrate him. Defendant and Norris left the victim moaning in the bushes for over an hour and a half and actively discouraged passersby from discovering his presence by telling them to avoid the area because of a snake, clearly in attempt to hide him and prevent him from receiving medical treatment. Although neither defendant nor Norris ever resumed the attack as the victim lay wounded in the bushes, given the brutal and humiliating nature of the beating, the jurors could have rationally concluded that the assailants only wanted to prolong his suffering. Merely because he failed to accomplish his objective, does not mean that defendant did not have the specific intent to kill. Assuming they are properly instructed (see below), rational jurors “may infer, as a matter of fact, a specific intent to kill by reason of a specific intent to inflict great bodily harm.” Butler, 322 So.2d at 193. Accordingly, viewing the evidence in the light most favorable to the prosecution, we find that the state proved that defendant possessed the requisite specific intent to kill. See State v. Harris, 26,563 (La.App. 2 Cir. 9/21/94), 643 So.2d 779 (erroneous jury instruction harmless in light of overwhelming evidence that the defendant intended to kill the victim by repeatedly stabbing her in the chest, abdomen, neck, face and hands and leaving her for dead in the trunk of his car); State v. Latiolais, 453 So.2d 1266, 1269 (La.App. 3 Cir.1984), writ denied, 458 So.2d 125 (La.1984) (finding evidence sufficient to support attempted second degree murder verdict when defendant repeatedly stabbed the victim in the head and chest area (breaking his nose, puncturing a sinus and fracturing his skull) with a screwdriver, immediately blinding him in one eye and left him bleeding on the side of the road); State v. Williams, 670 So.2d 414 (La.App. 3 Cir.1996) (evidence sufficient to sustain attempted second degree murder conviction when defendant stabbed the victim several times collapsing his lung and broke several bottles over his head during a fight |6 between the two men); State v. Scoby, 536 So.2d 615, 621 (La.App. 1 Cir.1988), writ denied, 540 So.2d 339 (La.1989) (evidence that defendant stabbed the victim with a butcher knife while the victim was lying on the ground, pursued the victim as he attempted to flee, and that the victim suffered injuries requiring medical attention and a stay in the hospital was sufficient to support attempted second degree murder verdict); cf. State in Interest of Hickerson, 411 So.2d 585, 587 (La.App. 1 Cir.1982), writ denied, 413 So.2d 508 (La.1982) (holding evidence insufficient to prove specific intent to kill when defendant stabbed victim once in left shoulder). Thus, we reverse the court of appeal’s ruling which held that the state failed to prove the element of specific intent to kill necessary for an attempted second degree murder conviction.

There remains defendant’s assignment of error at the court of appeal that the trial court erroneously instructed the jury on the elements of attempted second degree murder and that such error requires reversal of defendant’s conviction. Defendant also contends in his response to the state’s writ application in this Court that the court of appeal’s decision to reduce his conviction to aggravated battery reflects its solution to the trial court’s erroneous jury instruction. In fact, the Second Circuit did not directly address this assignment of error, although it noted that the issue was closely related to questions raised about the sufficiency of the evidence. State v. Bishop, supra, 792 So.2d at 891 (“Considering that the jury was erroneously led to believe it did not have to find specific intent to kill, we find the alternative hypothesis — i.e., Bishop had a specific intent only to inflict great bodily harm — sufficiently reasonable to preclude a verdict of attempted second degree murder”).

The court instructed the jury as follows: The defendant in this case is charged in the bill of information with attempted second degree murder of Raymond Eady on June 15,1985. Here is what the law has to say about attempt. Any person who having a specific intent to commit a crime does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose.... Second degree murder is the killing of a human being when the offender has a specific intent to kill or inflict great bodily harm.

|7The court repeated this instruction when asked by the jury to redefine each of the responsive verdicts. As stated above, attempted second degree murder requires specific intent to kill. Thus, defendant argues that the court read an erroneous jury instruction which led jurors to believe that they could convict defendant of attempted second degree murder based only on a finding that he possessed the specific . intent to inflict great bodily harm, and that such error is reversible error.

In State v. Hongo, we held that an erroneous jury instruction which, in violation of Louisiana law, improperly includes intent to inflict great bodily harm as an element of attempted second degree murder is subject to harmless error analysis. 96-2060 (La.12/02/97), 706 So.2d 419. We held that “an invalid instruction on the elements of an offense is harmless if the evidence is otherwise sufficient to support the jury’s verdict and the jury would have reached the same result if it had never heard the erroneous instruction.” Id. at 421. “The determination is based upon ‘whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’ ” Id. (Citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)).

In Hongo, where the jury was read the same erroneous jury instruction as is at issue in this case, we held that the error was harmless. There, Hongo entered the victim’s residence and shot her, and defendant argued that the victim was accidently shot. We held that, because there was no argument or evidence presented to the jury which would support a finding that the defendant had the intent only to inflict great bodily harm, and that, “given only the two versions that were presented, no reasonable jury could have concluded that defendant had the intent to only inflict great bodily harm.” Id. at 422.

This case is highly analogous to Hongo. Here, the defense of this case was not that defendant had simply intended to inflict great bodily harm, but that he did not act as a principal in a beating administered by Norris, or, that if he did so, he was too intoxicated to have formed a specific intent to kill (or to inflict great bodily harm). Accordingly, as in Hongo, “[t]here was no argument or evidence presented to the jury [¿which would support a finding that the defendant had the intent to only inflict great bodily harm.” 706 So.2d at 422. “Indeed, given only the two versions that were presented, no reasonable jury could have concluded that defendant had the intent to only inflict great bodily harm.” Id. Given Dr. Landreneau’s testimony that the victim “was severely beaten or had sustained severe trauma from blows about the head, the chest and in addition had been assaulted by some form of a sharp object that lacerated his eyes — his eye lids, his ears, his scrotum and .. near cut his penis in half’ and that while the severe facial fractures sustained by the victim were not necessarily life threatening by themselves, in combination with the cerebrospinal fluid leak caused by a basal skull fracture, together with generalized brain contusions the victim had also suffered, “they are all additive in effect and add to the probable outcome of death,” the guilty verdict was surely unattributable to the trial court’s erroneous jury charge and would have been the same if the jury had never heard the erroneous instruction.

Further, both the state and defense argued the case to the jury as if attempted murder required proof of a specific intent to kill or to inflict great bodily harm. Nevertheless, the state made clear to the jury that its evidence had proved that defendant had the specific intent to kill the victim when he crushed the bones of the victim’s face and nearly castrated him with either a knife or a broken piece of glass. At the end of the state’s closing argument, the prosecutor took the position that defendant and Norris “beat up this old man and left him there to die and their intent was for him to die so that they could get away, leave him there for dead, unconscious or dying, and it’s a clear attempted second degree murder.” On rebuttal, the state then underscored that view of the evidence:

Intent is inferred from the circumstances, the intent to inflict great bodily harm or death. And I submit it’s death. I won’t argue, I won’t insult you with great bodily harm, I’ll talk about death to you. That’s what this is. If you don’t find great bodily harm you’re not going to listen to me anyway, but you saw the pictures and you heard the doctor ... His intent is to let the old man die.

The state thus did not ask the jury to return a verdict of guilty as charged on any finding less than a specific intent to kill.

Thus, as in Hongo, we find that the trial court’s erroneous jury instruction on an element of attempted second degree murder was harmless error in light of the ^overwhelming evidence presented that defendant had the specific intent to kill the victim.

DECREE

For the reasons stated herein, the judgment of the court of appeal is reversed and defendant’s conviction and sentence for attempted second degree murder are reinstated.

REVERSED.

CALOGERO, C.J., dissents and assigns reasons.

It CALOGERO, Chief Justice,

dissenting.

This defendant had his appeal entertained at the court of appeal after having spent 15 years in the penitentiary. The court of appeal reversed his conviction for attempted second degree murder, finding insufficient evidence to support that conviction, and entered a judgment of guilty to the lesser included offense of aggravated battery, which carries a maximum penalty of ten years, less time than the defendant has already served. We have granted the State’s writ application, for good legal reason, and now find that the court of appeal improperly found that the evidence was insufficient to support the conviction for attempted second degree murder. With that finding, I am not in disagreement.

What bothers me is that the defendant made other assignments of error not addressed by the court of appeal related to the allegedly erroneous jury charge. On that point, the majority here decides that the jury charge was in fact erroneous, but finds, since jury charges are subject to a harmless error analysis, that this court may decide that the error was harmless. The majority then concludes that the jury charge was harmless in light of compelling evidence that supports the jury’s essential factual finding of guilt beyond a reasonable doubt.

[^Therefore, not only does the majority find that the court of appeal was wrong in finding insufficient evidence to support the defendant’s conviction of attempted second degree murder, but it finds compelling evidence that the defendant had specific intent to kill. In support of that conclusion, the majority concedes that both the State and defense counsel “argued the case to the jury as if attempted murder required proof of a specific intent to kill or to inflict great bodily harm.” Nevertheless, the majority attempts to convince that the jury understood that proof that the defendant had intent to kill was necessary and that the conviction was in fact based on such a finding, notwithstanding the fact that the jury charge was wrong, or minimally misleading, on the necessity of that proof. Further, the majority asserts that the State’s rebuttal argument accentuated the need for the jury to find a specific intent to kill. I find fault with that argument. I do not think that the prosecutor’s arguments at trial clarified that it was imperative for the jury to find specific intent to kill.

In all events, whether or not the jury instruction is wrong and correlatively whether or not the instruction was harmless in the context of this case are matters not yet addressed on appeal. I dissent from this opinion because I believe the proper procedure, after finding the court of appeal wrong on the sufficiency of the evidence issue, would be to remand the case to the court of appeal to entertain the remaining assignments of error, including the assertedly erroneous jury instruction that did not |atell the jury that it had to find an intent to kill and the attendant necessity of finding such error harmless.

      . As discussed below, the court read an erroneous jury instruction which could have led jurors to believe that they could convict defendant of attempted second degree murder based only on a finding that he possessed the specific intent to inflict great bodily harm. See State v. Huizar, 414 So.2d 741 (La.1982) (Attempted second degree murder requires the higher intent standard of specific intent to kill). Given that the Second Circuit concluded that based on the evidence presented, a rational juror could not have found.that defendant possessed the specific intent to kill, it pretermitted any inquiry into whether the erroneous instruction could have had any effect on the jury's verdict or whether it could be considered harmless. See State v. Hongo, 96-2060, p. 3 (La.12/2/97), 706 So.2d 419, 421 (error in giving jury charge which improperly included intent to inflict great bodily harm as element of attempted second degree murder is subject to harmless-error analysis). We will address this assignment of error in this opinion.

      . Defendant had type B blood ‘while Norris had type O.

      . Although not argued to the jury, a severe cut to the groin area can be fatal in and of itself.

      . In Hongo, the defendant testified that he and the victim were struggling over the gun when it accidently discharged twice. The State argued that the defendant entered the residence with the intent to kill the victim but failed to complete his plans.

      . The majority quotes the following excerpt from the State’s rebuttal argument:
      Intent is inferred from the circumstances, the intent to inflict great bodily harm or death. And I submit it’s death. I won’t argue, I won’t insult you with great bodily harm, I'll talk about death to you. That’s what this is. If you don’t find great bodily harm you’re not going to listen to me anyway, but you saw the pictures and you heard the doctor ... His intent is to let the old man die.

      . In the three-sentence argument quoted in footnote 1, the prosecutor did not clearly tell the jury that they had to find intent to kill in order to convict the defendant of attempted second degree murder. Rather, he simply argues, not so clearly, that the facts show that the defendant did have intent to kill.


author: LWEIMER, Justice. | VICTORY, J., TRAYLOR, J.,

text:
    STATE of Louisiana v. Antoine WATTS.
    No. 2000-KA-0602.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      G. Benjamin Cohen, Kris N. Finley, Joseph William Pohlmann Hecker, Alan G. Rome, Baton Rouge, Clive Adrian Stafford Smith, New Orleans, Counsel for Applicant.
    Richard P. Ieyoub, Attorney General, Scott M. Perrilloux, District Attorney, Donald J. Wall, Jr., Baton Rouge, Counsel for Respondent.
   LWEIMER, Justice.

The determinative issue in this appeal of a capital murder case is whether the trial court erred in denying defendant’s motion for new trial based on newly discovered evidence. Finding the matter warrants such relief, we reverse and remand for a new trial.

On September 3, 1997, defendant Antoine Watts was arrested for the August 29, 1997 murder of Cecilia Colona, a 75-year-old resident of Tangipahoa Parish. A grand jury indicted defendant for violation of LSA-R.S. 14:30, first degree murder, on the basis that the killing was committed during the course of an aggravated burglary, or during the course of an armed robbery, and that the victim was over the age of 65.

On October 8, 1997, defendant pled not guilty. The matter went to trial two years later. After trial by jury, defendant was found guilty as charged on September 23, 1999. The death penalty was imposed on September 24, 1999, and on January 13, 2000, defendant was sentenced to death.

FACTS AND PROCEDURAL HISTORY

On August 29, 1997, at approximately noon, Nat Colona arrived home to find the bottom half of the glass door to his house had been removed. The wooden door, | gwhich his wife usually left open behind the glass, was closed. Colona looked through the small window in the wooden door, and noticed that his wife’s rocking chair had been tipped over. He entered the house and found his wife’s slippers strewn about, and the sofa looked as if it had been kicked. He called out his wife’s name, but received no response. Colona grabbed the phone and called his office, as it was the first phone number that came to mind. He told the person who answered to call the police, which she did'; she also notified the Colonas’ son, Emile. In less than 10 minutes, Emile arrived at his parents’ house. When Emile and Nat began looking around, they entered the master bedroom where they found the deceased victim, Cecilia Colona.

Officer Mark Jones arrived on the scene next, and he kept a log of all persons entering and exiting the crime scene. He turned the case over to Detectives Dennis Pevey and Kevin Grob when they arrived shortly after him.

Jim Churchman of the Louisiana State Police Crime Laboratory examined the scene for physical evidence. He found a spent cartridge near the victim’s body and a bullet lodged in the bedroom wall. He collected gunpowder residue from the victim’s face and examined the bullet that had killed the victim, which he later determined to be a nine millimeter bullet. Churchman reasoned that the abrasion ring on the victim’s face indicated that the perpetrator shot the victim by placing the gun to her forehead and firing. Although Churchman found very little ransacking, the victim’s purse and its contents had been rifled; a set of car keys was in the victim’s hand.

Churchman photographed a shoe print, which he found on the kitchen floor. During the course of his investigation, Detective Pevey delivered the pictures of the shoe print to Officer Wayne Scivicque. Scivicque went to a local sporting goods store and determined that the footprint in the victim’s kitchen was from a Nike Air Max Tailwind II shoe.

On September 4, 1997, Detective Pevey received a tip that the defendant and Anthony Spears were involved in killing Cecilia Colona. The defendant had been taken into police custody the previous day on an unrelated burglary charge; after the tip, police also arrested Spears as a suspect in the Colona murder.

lain the early morning hours of September 5, 1997, defendant gave a statement. He told police that on the morning of the killing, Spears arrived at his house and the two of them entered the Colona residence together. The defendant stated that Spears pulled out a gun as the two of them entered the residence. The defendant went into the kitchen, while Spears went the other direction, farther into the house. The victim surprised defendant, and defendant told Spears that he wanted to leave; Spears wanted to stay and force the woman to take them to a bank. While the defendant waited at the back door, he heard a commotion in the bedroom and then a gunshot; defendant ran from the residence.

Subsequently, defendant gave another recorded statement to police, in which he mentioned only his participation in the killing. He again claimed that the victim surprised him. However, this time he stated that while he was telling her to move, the gun “just went off.” Defendant further stated that he did not know how the victim got'on the floor.

Detective Glenn Hauck, who was also working on the case, claimed defendant made a similar statement to him while the two were alone in a police car. Police had already determined that Nike Air Max shoes matching the print found in the victim’s kitchen had been stolen in a recent burglary of a store. Defendant had stolen the murder weapon a few days before the killing. Police obtained the murder weapon from Chuckie Gibson, who had bought it from Anthony Spears.

After the grand jury indictment for the first degree murder of Cecilia Colona, defendant filed various pretrial motions, including a motion to suppress. On November 20, 1998, the district court held a suppression hearing, and a hearing to determine the admissibility of “other crimes” evidence under State v. Prieur, 277 So.2d 126, 130 (La.1973). Although the court found the restrictive conditions of defendant’s confinement “bothersome,” the court ruled all statements admissible, finding that they were given freely and voluntarily. The court also found admissible evidence of two of defendant’s un-adjudi-cated burglaries, the one in which he took the murder weapon and the one in which he took the Nike Air Max shoes.

|40n August 18, 1999, defendant attempted to plead guilty to non-capital first degree murder. However, during the guilty plea colloquy, counsel informed the district court that despite his best efforts to convince defendant to plead, defendant had reservations and wished to stand trial. On September 14,1999, trial began.

At trial, the State introduced the evidence mentioned above. Crucial to the State’s case was the testimony of Anthony Spears, who admitted that he was originally a suspect in the murder investigation and that he was testifying pursuant to a plea agreement. Denying that he had ever been in the Colona residence, Spears claimed defendant confessed to him that he had killed the victim. However, Spears admitted to participating in a burglary with defendant, the one at the store where he and defendant each procured a pair of Nike Air Max shoes. Spears stated he pled guilty to simple burglary for that incident, as well as obstruction of justice and possession of cocaine, and that the district court sentenced him to terms totaling four years imprisonment at hard labor. While testifying at defendant’s trial, Spears repeatedly stated that he was telling the truth, as it was a requirement of his plea bargain.

For the defense, Charles “Boo” Chaney testified that Spears, and not the defendant, had confessed to him. Further, defendant testified consistently with his first taped statement, specifically, that he got no further than the victim’s kitchen when he heard Spears fire a shot. He further stated that he was coerced into the second recorded statement, and that he was never alone with Detective Hauck. Defendant’s wife testified that she was in the police car with defendant and Hauck at the time, according to Hauck, that defendant confessed. The jury evidently found defendant’s version of events unconvincing, as it found him guilty of first degree murder.

After the penalty phase of the trial, the jury determined defendant should be sentenced to death.

| RThe motion for new trial we now consider was filed when defendant obtained information about new evidence. Post trial, during a heated exchange, Spears stated to Steve Jackson, a security guard at an apartment complex, that he had “killed that old white lady.” A few days later, Spears met with Jackson and apologized for the exchange. When Jackson, a former sheriffs deputy, warned Spears about admitting that he had killed someone, Spears brushed off such warnings saying that he was not worried because he had already served time on charges related to the murder, and thus, in his view, double jeopardy barred his prosecution.

Defendant’s motion for new trial based on newly discovered evidence was summarily denied by the trial court. This court eventually remanded the matter for a hearing. At the April 18, 2001 hearing, the State argued that Spears’s statement was made during a heated argument. The State did not explain why Spears refused to recant when he met with Jackson a few days later.

The district court again denied the motion without reasons. Pursuant to an order by this court, the district court then filed written reasons for the denial on November 27, 2002. The court listed what it labeled as “findings of fact”:

1. Jackson was a neutral, independent, and unbiased witness who had no apparent motivation to lie.
2. The event occurred after trial and truly fits the legal description of “newly discovered evidence.”
3. If I were sitting as the “thirteenth juror” on the case I would believe that the statement was made.
4. The statement would not have persuaded me to change my vote of guilty or my vote for death, because it was merely the brash statement of a common street criminal who wished to elevate his reputation for violence in order to create fear and intimidation. This is especially true since he was obviously under the influence of drugs or alcohol at the time the alleged statements were made.
5.The evidence of the guilt of Watts was overwhelming at the trial, and no reasonable juror would be swayed by this “new” evidence, especially since the testimony of Charles Chaney was heard in full and considered by the jury. Personally, I do not doubt that the statement to Chaney was in fact made, but simply rejected by the jury as street talk bravado similar to the statement made to Jackson after the trial.
|fl6. Watts confessed to the crime in great detail on several occasions under circumstances which were voluntary and unsolicited. There was no evidence that any of the statements were coerced in any fashion or non-voluntary.

After the denial of his motion for new trial, defendant pursued the instant appeal.

DISCUSSION

In his most recent motion for a new trial, defendant asserted that Anthony Spears’s post-trial confession to Jackson that he, and not the defendant, killed the victim, entitles defendant to a new trial. We agree.

Grounds for seeking a new trial are set forth in LSA-C.Cr. P. art. 851. That article provides in pertinent part:

The court, on motion of the defendant, shall grant a new trial whenever:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

Thus, a new trial shall be granted based on Article 851(3) when: (1) new evidence was discovered after trial; (2) the new evidence is material; (3) the failure to discover the evidence was not due to a lack of diligence on the part of the defense; and, (4) had the evidence been introduced, the verdict or judgment of guilty probably would have been changed. See State v. Cavalier, 96-3052, 97-0103, p. 3 (La.10/31/97), 701 So.2d 949, 951; State v. Hammons, 597 So.2d 990, 994 (La.1992); State v. Knapper, 555 So.2d 1335, 1339 (La.1990).

In State v. Talbot, 408 So.2d 861, 885 (La.1980) (on rehearing), Justice Dennis explained:

|7The scope of the trial judge’s duty toward the motion for a new trial based upon the new evidence must be kept in mind. It was not for him to determine the guilt of [another alleged suspect] or the innocence of [the defendant]; it was not for him to weight the new evidence as though he were a jury, determining what is true and what is false. The judge’s duty was the very narrow one of ascertaining whether there was new material fit for a new jury’s judgment. If so, will honest minds, capable of dealing with evidence, probably reach a different conclusion, because of the new evidence, from that of the first jury? Do the new facts raise debatable issues? Will another jury, conscious of its oath and conscientiously obedient to it, probably reach a verdict contrary to the one that was reached on a record wholly different from the present, in view of evidence recently discovered and not adducible by the defense at the time of the original trial?

The test is objective in that the trial judge does not sit as the ultimate arbiter of the resolution of the case once the new evidence is considered, that is, the trial court does not weigh the evidence. The role of the trial court is to review the evidence constituting the State’s case, not to determine the sufficiency of the evidence, but to evaluate the effect of the newly discovered evidence. Hammons, 597 So.2d at 998.

As an initial matter in the instant case, the State concedes defendant has met the first three requirements of LSA-C.Cr.P. art. 851(3). Spears confessed to Jackson in the late summer or early fall of 2000, almost a year after defendant’s trial. Thus, the evidence was new and obviously defendant had no opportunity to discover the confession prior to trial, as the confession was made after the trial. Further, the confession is material to the case, as it involves the identity of the victim’s killer. Thus, the State’s sole contention is that the new evidence would not lead a new jury to reach a different conclusion.

At the hearing on defendant’s motion for new trial, Jackson explained that his brother and Spears’s mother had dated for several years, causing Jackson to consider himself “like an uncle” to Spears. Jackson, a former sheriffs deputy, testified that during the late summer or early fall of 2000, while working as a security guard at an apartment complex, he received word that Anthony Spears was involved in a heated | Rargument with three other people. Jackson told those arguing to leave the premises, and all but Spears complied. When Spears attempted to enter one of the apartment buildings, Jackson stopped him, and he began to curse. Jackson warned Spears that he would call the police, and Spears threatened to beat Jackson. Jackson told Spears not to “go that route” with him, but Spears lunged at Jackson nevertheless. Jackson hit Spears as he lunged and knocked him down. Spears then got up and said that he was going to get his gun and that “[w]hen I come back I’m gonna kill you like I killed that old white lady.” Jackson then called police, who were unable to apprehend Spears.

A few days later, Spears returned to the apartment complex and apologized to Jackson. Jackson brought up Spears’s statement regarding the killing, warning him about admitting such a matter. Nevertheless, Spears told Jackson that he was not worried because he had already served time on charges related to the murder; thus, in Ms view, double jeopardy barred his prosecution. Jackson further testified that on the night of the confrontation, Spears was acting “way out there” and that he probably would have made good on his threat to return with his gun had police not arrived. [7d] On cross examination, Jackson added that Spears had threatened to kill him the night before the confrontation described above, but admitted that Spears had not acted on his earlier threat.

The trial court found Jackson remarkably creditable, due in part, no doubt, to the fact that Jackson was a former deputy sheriff who considered himself “like an uncle” to Spears. The trial judge believed that Spears told Jackson he (Spears) would kill Jackson “like I killed that old white lady.” Thus, although the trial judge believed Jackson, the trial judge did not believe that Jackson was told the truth by Spears. The trial judge found Spears, an initial suspect in the murder investigation, to be untruthful.

When ruling on an Article 851(3) motion, a trial judge’s duty is not to weigh the new evidence as though he were a jury-deciding guilt or innocence or to determine 19what is true or false in light of the additional information. In other words, the trial judge is not to assess the newly discovered evidence as though he were a thirteenth juror. Under Talbot, 408 So.2d 861, the trial judge should not weigh the new evidence as if he or she were a jury deciding guilt or innocence (or in this case, whether or not to impose the death penalty) but should ascertain whether there is new material fit for a new jury’s judgment. The only issue is whether the result will probably be different.

Contrary to these principles, the trial judge in the instant case stated specifically that he was evaluating the new evidence as a thirteenth juror. Thus, the trial judge fell into legal error.

| ^Reviewing the new evidence by the proper standard, this court concludes the new evidence probably would have led a new jury to a different result, at least in the penalty phase of the proceedings.

In support of its position, the State argues that Spears made the admission in question during the course of a heated argument “to make himself seem even badder” and that the statement does not call into question defendant’s guilt. The State further claims that “the statement made by Anthony Spears amounts to nothing more than bragging.” Had Spears only made inculpatory remarks during the course of his heated encounter with Jackson, such argument might be persuasive. However, as mentioned above, Jackson testified that even once tempers had cooled, days after the heated confrontation, Spears did not deny killing the victim. Instead, Spears expressed his belief that he could not be prosecuted for his action. Accordingly, the circumstances do not support the State’s contention or the trial court’s factual finding that Spears’s statement was mere braggadocio.

Further evidence supports the defendant’s contention that Spears’s confession would have influenced the verdict. At trial, the State based a significant portion of its case on Spears’s testimony. Spears testified that on the night of the murder:

[Defendant] came to me. He told me that he needed to talk. I stepped outside. He told me that he shot a lady. An old lady. And he told me that he went to this house, demanded money. And lady say she didn’t have no money. So he tried to take her to the bank. And she say she didn’t know her bank number card. So took her in her room, put her on her knees and he shot her.

Spears also testified that initially defendant only admitted that he shot the victim because she had surprised him. He explained that defendant told him that he shot the victim because she had no money. Spears then testified that defendant gave him the murder weapon, which he sold to Chuckie Gibson. On cross examination, Spears claimed that before trial he and the District Attorney had talked “about just me coming and telling the truth. And he was telling me if I lie, that the deal is off.” Spears then said that he had never been to the victim’s house. Spears concluded his testimony by repeating that he was telling the truth, while reminding the jury that if he did not tell the truth, he would go to trial on the charges to which he had pled guilty.

lnDuring closing argument, the State placed great weight on Spears’s testimony, stating:

You know what else my daddy told me? An honest man cannot tell a lie. Now a liar every now and then will tell the truth. I’m not asking you to believe him. I’m asking you to consider whether or not you believe him. That’s your job. You listened to his testimony. And you decide if Anthony Spears is telling you the truth. I’ll tell you this, I made a deal with him. Made him sign this form. I made him discuss it with his lawyer. And if he doesn’t abide by this form, I can revoke his deal. And, you know, what’s the first thing I told him he’s got to do in his deal; answer any question put forth to you by any law enforcement officer. Not about this case. Not anything. . Anything at all. He has to tell the truth. Period. If he doesn’t tell the truth. No deal. That’s all I told him. That’s all I want.

The State also sought to discredit the testimony of Charles “Boo” Chaney. Chaney testified that on the night of the murder, he and Spears had attended a wedding reception. At the reception, Spears pulled his friend Chaney aside and admitted to him, through tears, that he had shot an old lady. Specifically, Spears stated that he “told her to get on her knees and look at him. And shot her in the face.” The prosecutor attempted to discredit Chaney’s claim during closing argument, stating:

Charles Chaney. Charles Boo Chaney, convicted murderer. Murderer. I didn’t call Charles Chaney. Wouldn’t call him. He’s trash. Don’t trust him. Don’t like him. Wouldn’t believe a word he said. He’s a convicted murderer. But you heard him, and you’re going to have to make that decision.

Spears’s confession to Jackson casts doubt on the above quoted testimony and argument submitted by the State. The person Spears confessed to after the trial, Jackson, had no particular interest in the case. Unlike Chaney, Jackson was neither a convicted felon nor someone who had a possible grudge against Spears. Instead, he is a former police officer.

Likewise, Spears’s admission is bolstered by the fact that it corroborates the defendant’s first recorded statement to police. In that statement, the defendant told police that on the morning of the killing, he and Anthony Spears went to the Colona | ^residence together; that as they entered the house, Spears pulled out a gun; that he went into the kitchen, while Spears went in the other direction, farther into the house; that when the victim surprised him, he wanted to leave, but Spears wanted to stay and force the woman to take them to a bank; and that while he waited at the back door, he heard a commotion in the bedroom, then a gunshot, and then he ran.

Spears’s admission also casts doubt on defendant’s second recorded statement to police, as well as Detective Hauck’s testimony that defendant admitted to the shooting while he and Hauck were riding unaccompanied in a police car, searching for evidence. In defendant’s second recorded statement, curiously, he did not know “how the victim got on her knees.” Such a lack of knowledge is more consistent with the events admitted to by Spears and with defendant’s first recorded admission to police than with any admission that he shot the victim. As to the unrecorded statement, a defense witness testified that she was in the police car with the defendant, another officer, and Detective Hauck, and that defendant did not make the comments which Hauck testified he had made.

Likewise, the physical evidence supports an inference that Spears and not defendant actually killed the victim. The shoe print was found in the kitchen, not the bedroom. Thus, if one concludes the print was defendant’s, his original recorded statement to police that he stayed in the kitchen is corroborated. Further, although defendant admitted to taking the murder weapon days before the shooting, he testified that he sold it to Spears before the day of the murder. Police obtained the murder weapon from a third party who bought the gun from Spears after the shooting.

Because Spears’s statement that he committed the murder is corroborated by the physical evidence related to the shoe print, by Chaney’s testimony, and by defendant’s first statement, it is also admissible evidence under LSA-C.E. art. 804(B)(3). Under this article, a statement tending to expose the declarant to hacriminal liability and to exculpate the accused is admissible when corroborating circumstances clearly indicate the trustworthiness of the statement. Hammons, 597 So.2d at 996.

Accordingly, Spears’s admission to Jackson that he “killed that old white lady” and his failure to deviate from the admission when confronted indicate that another jury presented with all of the evidence would probably have reached a different result, especially in the penalty phase of the trial, a matter to which the trial court gave only cursory consideration. See, Hammons, 597 So.2d at 998; Knapper, 555 So.2d at 1339.

The new evidence will also interject the issue of whether defendant or Spears was the triggerman, which remains a pertinent inquiry despite the fact that this court recently rejected the argument that a defendant who did not “pull the trigger” cannot be sentenced to death. See State v. Anthony, 98-0406, pp. 13-14 (La.4/11/00), 776 So.2d 376, 386 (the State is not required to show that defendant actually pulled the trigger.) The State’s burden is to prove that defendant acted in concert with his co-perpetrator, that defendant had the specific intent to kill, and that one of the aggravating elements enumerated in LSA-R.S. 14:30 was present. Id.

CONCLUSION

Appeal of the instant case presents this court with one meritorious argument. At trial, the State based a significant portion of its case on the testimony of Anthony Spears, the truthfulness of which has been made questionable by Spears’s later actions. After trial, Spears, an initial suspect, stated to Jackson, a former deputy sheriff, that he [Spears] had killed the victim. When given the chance to recant, Spears did not, stating he was protected by a double jeopardy bar to prosecution. 1 u Spears’s admission is bolstered by the fact that he sold the murder weapon soon after the killing; that the admission is consistent with the defendant’s first recorded statement to police; and that Spears had knowledge of the details of the killing that defendant denied having when he gave his second statement to police.

Accordingly, Spears’s admission to Jackson that he “killed that old white lady” and his failure to deviate from the admission when confronted indicate that another jury presented with all of the evidence would probably have reached a different result either in the guilt or the penalty phase of the new trial.

It is appropriate to be skeptical when newly discovered evidence is offered after a trial. Such evidence must be thoroughly and cautiously scrutinized. The finality of judgments is an important judicial and societal goal. Those who have been victimized and the families of those who have been victimized desire closure, especially in a brutal and senseless crime against an innocent victim. However, this newly discovered evidence puts at issue the degree of culpability and whether the death penalty is the appropriate sentence based on the newly discovered evidence. That determination must be made based on an evaluation of all of the evidence by a jury.

CONVICTION AND SENTENCE VACATED; CASE REMANDED FOR NEW TRIAL.

VICTORY and TRAYLOR, JJ., dissents and assigns reasons.

| VICTORY, J.,

dissenting.

I dissent from the majority’s reversal of defendant’s conviction and sentence and remand of the case for a new trial on the basis of “newly discovered evidence.” Not only does the evidence at issue not meet the requirements for a new trial under La.C.Cr.P. art. 851(3), it is not even admissible as a statement against interest under La. C. Evid. art. 804(B)(3).

Under La. C.Evid. Art. 804(B)(3), a statement against interest is admissible as an exception to the hearsay. Commentators have explained the reason for this exception as follows:

The trustworthiness that generally lies at the basis of this exception to the hearsay rule derives from the circumstance that rarely does a person knowingly lie to his disadvantage. It is a common sense observation that if at the time a statement is made a person believes that his patrimony or liberty is hurt by the facts asserted in such a statement, he generally will not make the statement unless he believes the facts asserted therein to be true.

George W. Pugh, Robert Force, Gerard A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence Law (West 2002). In this case, at the time Spears allegedly made the statement to Jackson that “I’m going to kill you just like I killed that old white lady,” he erroneously believed that he was in no danger of losing his liberty as a result of making the statement. Thus, all indices of trustworthiness are gone and the ^statement is not admissible as an exception to the hearsay rule.

Further, the legislators were careful to address the inherent dangers of “statements against interest” which exculpate the accused by strictly limiting their admissibility under Article 804(B)(3) as follows: “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” La. C. Evid. Art. 804(B)(3). Here, Spears’ statement is not admissible because corroborating circumstances do not “clearly indicate the trustworthiness of the statement.” La. C.Evid. art. 804(B)(3).

The majority reasons that the statement is admissible because it is “corroborated by the physical evidence related to the shoe print, by Chaney’s testimony, and by defendant’s first statement, ...” 835 So.2d at 452. In defendant’s first statement, he told the police that he stayed in the kitchen while Spears and Charles Chaney shot the victim elsewhere in the home. In fact, Chaney was arrested and questioned about this crime based on defendant’s first statement. However, defendant’s first statement was clearly rejected by the jury, who obviously believed defendant’s second recorded statement that he alone shot the victim and that he only named Spears and Chaney in the first statement because he felt that they had ratted him out. In addition, far from corroborating Spears’ statement to Jackson, the fact that defendant’s shoe print was found in the house, albeit in the kitchen, clearly places defendant at the scene of the crime. On the other hand, no physical evidence whatsoever linked Spears to the crime scene. The jury also heard that defendant also confessed on two separate occasions to Detective Kevin Glob and Officer Glenn Houck, telling each of them that he went into the home alone to burglarize the home, was surprised to find the victim home, led |sher into the bedroom and accidently shot her. Likewise, the jury rejected the statement of Chaney, a convicted murderer who was also shown to be biased against Spears because they both dated the mother of Spears’ child at the same time, that Spears admitted to him that he shot the victim. However, in spite of the fact that the jury, and the trial judge in his reasons for denying defendant’s motion for a new trial, clearly rejected defendant’s first statement and Chaney’s testimony, the majority finds these statements to be the “corroborating circumstances [which] clearly indicate the trustworthiness of the statement.” I strongly disagree.

Further, the statement is not grounds for a new trial under the “newly discovered evidence” provision of La.C.Cr.P. art. 851(3). In, State v. Jacobs, 99-991 (La.5/15/01), 803 So.2d 933, the defendant presented the defense at trial that he was not the triggerman and argued to the jury that the state’s evidence did not exclude the reasonable hypothesis that a third person was the murderer. After the defendant’s conviction, Davis (the owner of the getaway car) implicated a third person as the shooter. This Court held that “while Davis’ testimony possibly may have aided the defendant’s case it was not indispensable to the third party gunman defense, which was presented principally to challenge the sufficiency of the state’s evidence.” Further, the Court found that the evidence did not meet the criteria of Art. 851(3) because “[cjourts treat with great skepticism belated exculpatory evidence provided by co-defendants who have resolved their own cases after the defendant’s conviction.” “Generally such evidence is not a sufficient ground for granting a new trial.” “In the present case, the third party gunman theory was known, presented as evidence, and argued to the jury at defendant’s trial, and the defense knew that Davis could' have provided evidence on this issue.” Likewise, in this case, the theory that Spears was the killer was known, presented as evidence, and argued to the jury at defendant’s trial. Evidence that Spears was the killer was thus not “newly discovered evidence.”

| ¿Further, “[njewly discovered evidence affecting only a witness’s credibility ‘ordinarily will not support a motion for a new trial, because new evidence which is ‘merely cumulative or impeaching’ is not, according to the often-repeated statement of the courts’ an adequate basis for the grant of a new trial.” State v. Cavalier, 96-3052 (La.10/31/97), 701 So.2d 949 (citing Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 5, 1 L.Ed.2d 1, 5 (1956)).

In my view, the jury clearly convicted defendant of first degree murder and sentenced him to death because he confessed to the police on three separate occasions that he alone committed this crime. Further, in his second recorded statement to the police, he admitted that he only named Spears and Chaney as being involved in the crime because he felt they had ratted him out. In my view, the majority mistakenly orders a new trial based on evidence that is neither “newly discovered,” nor even admissible.

For all of the reasons, I respectfully dissent.

TRAYLOR, J.,

dissenting.

I dissent from the majority for the reasons assigned by Justice Victory.

      . See n. 2, infra.

      . Apparently, Spears had not been sentenced prior to defendant’s trial, because the prosecutor stated in closing argument that the plea bargain could be rescinded if Spears did not tell the truth. See discussion, infra. At the time of defendant’s trial, Spears was incarcerated, but he testified he was due to be released immediately following the trial.

      .Defendant’s first motion for new trial concerned alleged communication between the alternate juror and the 12 members of the jury after the guilt-phase verdict. In light of our disposition of the case, it is unnecessary to address the disposition of that motion.

      . We note that although the trial court denied defendant’s motion to suppress the confessions, the court found some circumstances of defendant's being held for interrogation to be "unusual” and "very bothersome.” As to the length of interrogation, defendant testified at the hearing on the motion to suppress that he accompanied police to the station for questioning on September 3, 1997, at around 11:00 a.m. Police placed him in a small room and began questioning him, not allowing him to leave until after he made a taped statement on September 5 at 1:55 a.m. After defendant’s first statement, police transported him to the Tangipahoa Parish Prison, where he arrived at 6:26 p.m. on September 5, 1997.
      When setting out his grievances, defendant mentioned only that police did not let him call anyone or talk with anyone. Nevertheless, defendant signed several waiver of rights forms, and the chief of police, as well as at least one detective, testified that defendant gave his statement freely and voluntarily, and was not coerced.

      . These concepts concerning the scope of the trial court's duty toward the motion for new trial based on newly discovered evidence have withstood the test of time, having been stated, almost verbatim, by United States Supreme Court Justice Felix Frankfurter over 70 years ago. See Felix Frankfurter, The Case of Sacco and Vanzetti: a critical analysis for lawyers and layman, 103 (1927). Although the concepts are time-honored, the question of whether the new facts raise debatable issues cannot be considered in isolation; rather, the question must be considered in light of the Article 851(3) provision that the new facts would probably have changed the result reached by the first jury.

      . The State’s evidence at trial is considered because if the evidence of guilt contains significant contradictions and discrepancies, newly discovered evidence of relatively minor importance might be sufficient to create a reasonable doubt. Hammons, 597 So.2d at 998.

      . Additionally, the trial court noted defendant confessed a number of times. However, defendant was held incommunicado for a day and a half, a situation the trial judge referred to as "unusual” and "very bothersome” at a prior proceeding. Also, Spears, an initial suspect, had the gun after the crime; this fact is equally as significant as the fact that defendant procured the gun in a burglary a few days prior to the murder.

      . It is appropriate for the trial court to act as a juror for other grounds related to a motion for new trial, but not if newly discovered evidence is the ground on which the motion is based. The State conceded this point at oral argument. Trial courts are to use the thirteenth-juror standard when the asserted ground in the motion for new trial is not newly discovered evidence, but is another ground stated in Article 851, such as a verdict being contrary to .the law and the evidence or the court being of the opinion that the ends of justice would best be served by granting a new trial. See State v. King, 96-1303, p. 4 (La.App. 3 Cir. 4/2/97), 692 So.2d 1296, 1299.
      A trial judge who sits as a thirteenth juror is asking what the jury has actually done. Was the verdict contrary to the law? Was the verdict contrary to the evidence? Does the verdict fall short of serving the best interests of justice? This inquiry focuses on the result in that if the answer to one or more of these questions is "yes,” then the result should not stand.
      Compare a trial judge who determines an Article 851(3) motion for new trial based on newly discovered evidence: the judge is asking what the effect of the newly discovered evidence will be. The question is hypothetical: if a new jury hears the case with the newly discovered evidence included, will the verdict be different from that of the first jury? Confining the question to the exact wording of the statute — "if the evidence had been introduced at the trial ... would [it] probably have changed the verdict or judgment of guilty[?]” — is conceptually challenging, at best. The difficulty lies in the fact that the newly discovered evidence, such as the evidence we encounter in the instant case, is likely to change the whole dynamics of the trial; the new trial will be different from the previous trial. Thus, it is easier to conceptualize the task of making this determination by considering the question in terms of two juries, such as the jurisprudence has done consistently since this court paraphrased Justice Frankfurter's statement of the inquiry in Talbot. See State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931; State v. Bright, 98-0398, p. 26 (La.4/11/00), 776 So.2d 1134, 1149; State v. Prudholm, 446 So.2d 729, 735-736 (La.1984).

      . The trial court’s evaluation of the newly discovered evidence becomes more complicated in a death penalty case in which the jury determines not only guilt but also the penalty, which must be imposed by a unanimous verdict. See LSA-R.S. 14:30, Reporter’s Comment. Although the cases decided under the statutory provision mention probably changing the verdict of guilty, in a case such as the instant one, not only the guilt but also the death penalty may be changed. Succinctly stated, the determination is whether the new evidence probably interjects an element of reasonable doubt either as to the guilt phase or as to the penalty phase of the trial. Thus, the court must determine if the new jury will probably find defendant not guilty, guilty as charged but not subject to the death penalty, or guilty of a lesser charge.

      . "In reviewing questions of law, appellate courts usually follow an approach that is brutally simple or simply brutal (depending on whether the process is being evaluated by the trial judge or an observer less intimately concerned). The appellate courts merely ask themselves whether they agree with the trial judge’s resolution of the legal issue. If not, they reverse.” Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 646 (1971). But see, Talbot, 408 So.2d at 885, where Justice Dennis, on rehearing, observed that although there is no appellate review of a trial court’s granting or refusal to grant a new trial, except for error of law, an abuse of the trial court’s discretion on the ground of newly discovered evidence has been regarded as presenting a question of law. However, Justice Dennis followed the statement with the caveat that great weight must be attached to the exercise of the trial judge's discretion, which should not be disturbed on review if reasonable men could differ as to the propriety of the trial court’s action.

      . Chaney testified that he had been convicted of, inter alia, manslaughter.

      . The State urged the proposition that Chaney's testimony concerning Spears’s confession to him was prompted by the fact that the mother of Spears’s child was Chaney’s former girlfriend. Chaney denied any animosity toward Spears for that reason, stating both men had been intimate with her during the same time period. Further, we note that in the trial court's per curium, the judge stated he believed Chaney’s testimony that Spears had told Chaney he [Spears] was the killer. Although the trial court dismissed Spears’s statement to Chaney as street talk bravado, Chaney stated Spears was in tears when he made the statement.

      . It was Spears who related the detail of the victim being on her knees when she was shot.

      . We note Spears admitted he was also involved in the burglary with the defendant in which shoes were stolen.

      . Further, the State did not make a hearsay objection at the hearing, but admitted that the statement by Spears to Jackson is relevant and satisfies the first three requirements of newly discovered evidence. See Cavalier, 97-0103 at 3, 701 So.2d at 951.

      . Under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), the death penalty does not violate the Eighth Amendment in the case of a defendant who participates in a felony, which results in murder, if the defendant's participation is "major” and "the defendant has a mental element of reckless indifference.” Tison, 481 U.S. at 157-158, 107 S.Ct. at 1688. But see State v. Sonnier, 380 So.2d 1, 8 (La.1979), in which this court held that defendant’s "minor” participation in the murders was a sufficient mitigating circumstance to bar imposition of the death penalty. Further, even more recent than this court's decision in Anthony was the acknowledgment by this court in State v. Louviere, 2000-2085 (La.9/4/02), 833 So.2d 885, 899, n. 15, that the issue of moral culpability remains one of the significant issues in capital sentencing. In Atkins v. Virginia, 536 U.S. 304, 312-13, 122 S.Ct. 2242, 2247, 153 L.Ed.2d 335 (2002), the United States Supreme Court noted that for purposes of imposing the death penalty, a defendant's criminal culpability must be limited by the extent of his participation in the crime; his punishment must be tailored to his personal responsibility and moral guilt.

      . We note that courts generally treat with “great skepticism'' belated exculpatory evidence provided by co-defendants who have resolved their own cases after the defendant's conviction. Such evidence is usually not sufficient to warrant a new trial. State v. Jacobs, 99-0991, p. 18 (La.5/15/01), 803 So.2d 933, 947. For discussion of after-trial statement, see, State v. Mince, 97-2947 (La.5/29/98), 714 So.2d 684. However, in the instant case, the statement by Spears was not only exculpatory of the defendant but was also against Spears's criminal interest, a fact that makes the usual "great skepticism” inappropriate.

      . In fact, Spears and defendant were arrested based on Chaney’s unsolicited tip to the police that Spears and defendant had murdered the victim.


author: JjPER CURIAM. | TVICTORY, J.,

text:
    In re Joslyn Renee ALEX.
    No. 2002-B-1289.
    Supreme Court of Louisiana.
    Jan. 14, 2003.

      Charles B. Plattsmier, Chief Disciplinary Counsel, G. Fred Ours, Deputy Disciplinary Counsel, Counsel for Applicant.
    Joslyn R. Alex, Breaux Bridge, Counsel for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS

JjPER CURIAM.

This attorney disciplinary proceeding arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Joslyn Renee Alex, an attorney licensed to practice law in the State of Louisiana.

UNDERLYING FACTS

The facts are essentially undisputed. Adam Mercier retained respondent to represent him in connection with a personal injury matter. Respondent settled the case and disbursed the settlement funds to Mr. Mercier. At the time, respondent had withheld a portion of the settlement to pay for medical services rendered to her client by Dr. John Daigle and Dr. Raul Reyes. However, respondent neglected to disburse these payments to the two medical providers.

Over the course of the next three years, Dr. Daigle made numerous requests to respondent for payment. During this time, respondent had permitted her client trust account to fall below the amount held in escrow for the medical payments. Finally, on December 3, 1999, respondent provided full restitution to Drs. Daigle and Reyes.

On January 7, 2000, Dr. Daigle filed a complaint with the ODC, asserting respondent failed to timely reimburse him for medical services rendered to her clients for which she guaranteed payment. During the course of the ODC’s investigation into the complaint, respondent produced financial records relative to her client trust and |?firm operating accounts. At that time, the ODC discovered, during the period of September 26, 1996 through February 29, 2000, respondent had engaged in an ongoing pattern of financial and fiduciary mismanagement. Specifically, her records indicated respondent had commingled client funds with her personal funds, as well as paid operating and personal expenses out of her trust account. The records further showed respondent frequently had negative balances in her trust account. Moreover, the mismanagement of her financial records barred an accurate segregation of the funds owed to her clients and third parties.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed two counts of formal charges against respondent. The first count related to the Merrier matter, and the second pertained to the mismanagement of respondent’s financial accounts and records. The formal charges alleged violations of the following provisions of the Rules of Professional Conduct: Rules 1.3 (incompetence), 1.4 (failure to communicate), 1.15 (commingling and conversion of client funds), 1.16 (failure to protect client interests upon termination of representation), 8.4(a) (violating or attempting to violate the professional rules), 8.4(b) (commission of a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer) and 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation).

Respondent filed an answer to the formal charges conceding she erroneously failed to timely pay Mr. Mercier’s health care providers. Respondent denied the remaining charges relative to the mismanagement of her financial accounts and records.

13Recommendation of the Hearing Committee

After a formal hearing, the hearing committee determined the ODC proved the allegations of professional misconduct by clear and convincing evidence. The committee recognized there was no evidence of intentional misconduct on the part of respondent, and her gross negligence did not result in actual injury. However, it found her actions inexcusable and rejected respondent’s defense that she was a sole practitioner lacking any professional mentoring in the area of financial management.

As to the issue of sanctions, the committee recognized in mitigation respondent’s lack of prior disciplinary record, absence of a selfish or dishonest motive, cooperation with the ODC in the disciplinary proceeding, efforts to rectify her misconduct, remorse and good character and reputation. No aggravating factors were cited.

Based on its findings, the committee proposed a thirteen month suspension, fully deferred, subject to a thirteen month period of probation subject to conditions.

The ODC filed an objection to the committee’s recommendation insofar as it concluded the totally deferred thirteen month suspension should be subject to a twenty four month period of probation, rather than for a period of thirteen months. Moreover, it proposed as an additional condition to probation that a probation monitor and certified public accountant, jointly selected by respondent and the probation monitor, be appointed to review and report on respondent’s maintenance of her trust account |4at semi-annual intervals during her probationary period. Respondent concurred in the ODC’s objection.

Recommendation of the Disciplinary Board

The disciplinary board adopted the factual findings of the hearing committee in all respects. Like the committee, the board found respondent negligently failed to timely pay third party medical providers, commingled and converted client-funds, and mismanaged her client trust and office operating accounts.

Addressing the issue of sanctions, the committee relied on Standard 4.12 of the ABA’s Standards for Imposing Lawyer Sanctions, which provides suspension is generally appropriate when a lawyer knows or should know that he or she is dealing improperly with client property and causes injury or potential injury to a client. It also relied on jurisprudence from this court. Upon consideration of these factors, the board recommended that respondent be suspended from the practice of law for a period of thirteen months, fully deferred, subject to a two year period of probation. In addition to the probation factors cited by the committee, the board accepted the parties’ condition that a probation monitor and certified public accountant be appointed to semi-annually review and report on respondent’s maintenance of her trust account during the probationary period.

Neither respondent nor the ODC filed an objection in this court to the recommendation of the disciplinary board. However, pursuant to Supreme Court Rule XIX, § 11(G)(1)(a), we docketed the matter for briefing and argument to address the appropriateness of the board’s proposed sanction.

J^DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992). While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

The record supports a finding of professional misconduct. It is undisputed respondent failed to timely provide payment to two health care providers and commingled and converted client and third party funds over a period of approximately several months through her gross mismanagement of her financial affairs relative to her law practice.

Having found evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

| fiA review of the record indicates respondent’s misconduct, while unintentional, caused actual harm to the third party medical providers by delaying the disbursement of funds owed to them. Additionally, her mismanagement of client and third party funds created a strong potential for harm. The baseline sanction for this misconduct is unquestionably a suspension.

However, in assessing a sanction, we find that significant mitigating factors are present. Respondent has no prior disciplinary record and her conduct did not result from a selfish or dishonest motive. She cooperated with the ODC in the disciplinary proceedings and made efforts to rectify her misconduct. Respondent has also demonstrated remorse and shown evidence of good character and reputation.

Under these circumstances, we conclude a fully deferred suspension, subject to a period of probation is appropriate under the facts. This sanction is consistent with jurisprudence from this court. See In re: Moore, 00-2616 (La.10/13/00), 769 So.2d 1180 (attorney who failed to timely remit funds owed to a third party health care provider suspended six months, fully deferred, subject to a two year period of probation); In re: Dittmer, 99-1653 (La.9/3/99), 743 So.2d 195 (attorney who failed to remit funds to third party health care provider suspended for six months, fully deferred, subject to a one year probationary period). Such a sanction will provide respondent the opportunity and supervision to establish proper accounting and internal office procedures, while also safeguarding the public and deterring other attorneys from engaging in similar misconduct.

Accordingly, we adopt the recommendation of the disciplinary board that respondent be suspended from the practice of law for a period of thirteen months, fully deferred, subject to a two year period of probation.

|7DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that Joslyn Renee Alex be suspended from the practice of law for a period of thirteen months. This suspension shall be fully deferred, and respondent shall be placed on supervised probation for a period of two years subject to the conditions recommended by the disciplinary board. Any violation of the conditions of probation or any other misconduct during the probationary period may be grounds for making the deferred portion of the suspension executory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

VICTORY, J., dissents and assigns reasons.

| TVICTORY, J.,

dissenting,

In my view, failing to pay two medical bills for three years, after repeated demands for payment, warrants a harsher sanction than that imposed by the majority.

      . The amount owed to Dr. Daigle was $1,449. The amount owed to Dr. Reyes was $1,168.

      .The hearing committee recommended the following conditions to probation:
      1. Respondent shall refrain from violating any professional rules;
      2. Respondent shall remain current with all obligations, including Louisiana State Bar Association dues, disciplinary assessments and all continuing legal education requirements;
      3. Respondent shall attend a Louisiana State Bar Association ethics school, conference or seminar;
      4. A probation monitor should be appointed to periodically monitor respondent's client trust account, as well as her compliance with all other conditions; and
      5. Respondent shall pay all costs of these proceedings.