text:
    Lorenzo GOLPHIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1848.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the denial of his motion to suppress based upon a purported violation of the prohibition against unreasonable searches and seizures contained within the Florida and United States constitutions. We affirm.

Appellant was standing with a group of about five men on a public sidewalk in front of an apartment building when uniformed Daytona Beach police officers approached. Although some of the individuals walked away as police approached, Appellant made no attempt to leave the area. One of the officers asked Appellant for his identification, which he voluntarily relinquished. Using the identification, the officer ran a computer check to determine whether Appellant had any outstanding warrants. While waiting for the results of the computer check, which took no more than a couple of minutes, Appellant told the officer that he had a history of arrests and that he probably had an “open warrant.” In fact, the computer check revealed that Appellant was the subject of an outstanding warrant, and he was arrested. A search incident to arrest resulted in the discovery of drugs and paraphernalia, which gave rise to the pending case.

The lower court found that the outstanding arrest warrant was discovered as a result of a “consensual encounter” and, therefore, denied Appellant’s motion to suppress the contraband. Appellant, citing Baez v. State, 814 So.2d 1149 (Fla. 4th DCA 2002), rev. granted, 835 So.2d 269 (Fla. Dec.5, 2002), contends that the court erred. We write to express our disagreement with the court’s holding in Baez.

In Baez, the court held that an otherwise “consensual encounter” becomes a “seizure” when an officer “retains” a person’s identification (after it was voluntarily surrendered to the officer) for a sufficient length of time to complete a warrants check. Id. at 1152-53. This holding appears to create a bright-line rule that pertains regardless of the circumstances. In announcing its decision, the Fourth District Court acknowledged contrary authority from the First and Second District Courts, which it dismissed as “dicta.” Moreover, it sought to factually distinguish decisions of the Florida Supreme Court and United States Supreme Court which we believe are controlling. For the reasons stated herein, we declare conflict with the Fourth District Court’s holding in Baez.

In Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), uniformed officers boarded a bus during a stopover and asked Bostick, a passenger, if they could see his identification and bus ticket, which he voluntarily surrendered. After noting that the names matched, the officers immediately returned the items to him. However, the officers continued to converse with Bostick explaining that they were narcotics agents in search of drugs. They requested that Bostick consent to a search of his luggage, and he agreed. The search revealed contraband resulting in Bostick’s arrest.

In rejecting the Florida Supreme Court’s application of a per se rule, the Court held that the appropriate test for determining whether a citizen encounter constitutes a Fourth Amendment seizure is “whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Id. at 437, 111 S.Ct. 2382 (quoting Michigan v. Chest-emut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). Under this analysis, said the Court, the encounter does not “trigger Fourth Amendment scrutiny [until] it loses its consensual nature.” Id. at 434, 111 S.Ct. 2382 (emphasis added). In other words, any consent given must not be the product of “intimidation or harassment” by police, as considered from the perspective of a reasonable person. Id. at 438, 111 S.Ct. 2382.

The court in Baez attempted to distinguish Bostick by noting that, in Bostick, the police immediately returned the identification after confirming that it matched the name on the bus ticket, which was the apparent purpose for which the police requested the identification. Conversely, in Baez, like the instant case, the police held the identification while they checked for warrants. We do not see why this minor factual distinction should lead to a different legal conclusion. Bostick tells us that the focus is on whether the police have communicated something that would intimidate a reasonable person into giving consent. Clearly, the request by police to see the citizen’s license (a fact common to Bostick, Baez and the instant case) does not implicate the Fourth Amendment. Absent any further conduct by police that causes the encounter to lose its “consensual nature,” whether police keep the license long enough to compare it to a bus ticket or for a few minutes to make a warrants check should not make a difference for Fourth Amendment purposes. The citizen would be free to withdraw his consent at any time by, for example, asking that his license be immediately returned, and the refusal to comply by police would certainly amount to a detention.

We have considered whether the mere retention of property (in this case a license) by police might be tantamount to a “seizure,” because the reasonable citizen might view the police conduct as a form of intimidation. If this were the case, however, then consent searches, such as that which was upheld in Bostick, could never pass Fourth Amendment scrutiny, because the mere retention "of the property for sufficient time to perform a search by consent would constitute a per se seizure. Rather, we think that when a citizen voluntarily relinquishes possession of his property to police, reasonably implicit in such consent is that the police will retain the property for the period of time reasonably needed to accomplish the police purpose or until the consent is withdrawn, whichever first occurs. Moreover, a reasonable person, free from the guilt of criminal conduct, who voluntarily turns his property over to police, should feel free to request its return if he desires to go about his business. See State v. Luckay, 697 So.2d 221 (Fla. 5th DCA 1997) (observing that a “reasonable person” is one who is not guilty of criminal conduct).

In sum, we believe Baez to be wrongly decided first, because it creates a per se rule, which the Supreme Court in Bostick rejected in favor of the “totality of the circumstances” test, and second, because it reaches what we believe to be the wrong conclusion when the proper test is applied. See People v. Cole, 256 Ill.App.3d 590, 194 Ill.Dec. 545, 627 N.E.2d 1187 (1994).

In applying the Bostick test to the instant case, we conclude that the trial court properly denied the motion. The police behavior in approaching the men obviously failed to communicate an intent to restrict the men. Indeed, some of the men walked away from the police without incident. There was no indication that police sought out Appellant or threatened him or intimidated him in any way. Appellant was fully cooperative and volunteered information about his arrest history. Finally, Appellant did not manifest any desire to leave, nor did he request that his identification be returned. The police communicated nothing, by word or act, to lead Appellant to reasonably conclude that he was not free to leave.

The trial judge found that Appellant consented to the encounter with police, and we concur that Appellant’s consent, when all circumstances are considered, was not the product of intimidation or harassment as viewed from the position of a reasonable person.

AFFIRMED.

PALMER, J., concurs.

GRIFFIN, J., concurs specially in result only, without opinion.

      . State v. Robinson, 740 So.2d 9 (Fla. 1st DCA 1999); State v. Chang, 668 So.2d 207 (Fla. 1st DCA 1996); State v. Arnold, 475 So.2d 301 (Fla. 2d DCA 1985).

      . Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Lightbourne v. State, 438 So.2d 380 (Fla.1983). Baez also relied upon several federal decisions. First, United States v. Jefferson, 906 F.2d 346 (8th Cir.1990), which is factually very different. There, the trooper refused a request by defendant to go to the bathroom, asked defendant to sit in the trooper’s car, and the trooper sat next to defendant in the trooper’s car. Second, United States v. Thompson, 712 F.2d 1356 (11th Cir.1983), which is distinguished on its facts and has questionable vitality in light of Bostick and United States v. De La Rosa, 922 F.2d 675 (11th Cir.1991). Finally, United States v. Jordan, 958 F.2d 1085 (D.C.Cir.1992), which is, we submit, contrary to the Supreme Court's holdings in Bostick and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

      . The first issue in deciding any “consensual encounter’’ case is whether the citizen gave actual consent, and, if so, the scope of the consent given. This is a factual question. Jones v. State, 658 So.2d 178 (Fla. 1st DCA 1995). Next, the court must determine whether the consent was the result of intimidation by police, which must be determined from the vantage point of a reasonable man, not based upon actual, subjective fears of the involved citizen. State v. Baldwin, 686 So.2d 682 (Fla. 1st DCA 1996).


source: Caselaw Access Project

author: PER CURIAM. HARRIS, C., Senior Judge,

license: Public Domain

text:
    Richard SCARBOROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3794.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Richard Scarborough, Raiford, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA, J., COBB, W., Senior Judge, concur.

HARRIS, C., Senior Judge, dissents with opinion.

HARRIS, C., Senior Judge,

dissenting.

Appellant was convicted of burglary of a conveyance and petit theft. He was sentenced to ten years as a habitual offender. In this 3.850 appeal, Appellant claims his attorney was ineffective in giving him incorrect advice when he was considering a plea offer. Appellant claims that he rejected the State’s offer of seven years only because his attorney told him that he could not be sentenced as a habitual offender in any event because the State had not served him with a written notice of intent to seek habitualization as required by section 775.084(3)(a)2, Florida Statutes (1999), which provides:

Written notice shall be served on the defendant and the defendant’s attorney a sufficient time prior to the entry of a plea or prior to the imposition of a sentence in order to allow the preparation of a submission on behalf of the defendant.

Appellant’s position is that his counsel construed this provision as requiring written notice of intent to habitualize prior to a plea offer and advised him accordingly.

Appellant alleged that because he relied on this advice, he rejected the opportunity to plead to a reduced habitual sentence, believing that the state had waived its opportunity to habitualize him by failing to timely serve the written notice and that he could not be prejudiced by going to trial. If defense counsel gave such advice, he may have been confused by the law in this district prior to Massey v. State, 589 So.2d 336 (Fla. 5th DCA 1991); approved, 609 So.2d 598 (Fla.1992). In Massey, for the first time, we held, based on the harmless error rule, that the statute’s requirement of written notice was inapplicable if the defendant had actual notice that the State would seek habitualization. Before Massey, however, the requirement of written notice was strictly enforced, even if no harm could be shown. See, e.g., Nunziata v. State, 561 So.2d 1330 (Fla. 5th DCA 1990). Even though the statute requires only that the written notice be given before the entry of a plea (and does not mention an offer of plea based on a reduced habitualized sentence), the question before us is not whether counsel’s advice, if given, was right or wrong; the claim herein of ineffective assistance of counsel assumes incorrect advice.

Clearly, if defendant turned down a favorable plea offer based on bad legal advice, he is entitled to relief. See Lertñs v. State, 751 So.2d 715 (Fla. 5th DCA 2000); Young v. State, 608 So.2d 111 (Fla. 5th DCA 1992). The issue on appeal then, since defendant was denied an evidentiary hearing, is whether the record establishes that the alleged incorrect advice was not given or that such advice was not relied upon by defendant. Since the record does not so indicate, I would remand for an evidentiary hearing to resolve this issue.

It is true that prior to trial but after the plea offer was rejected, the judge questioned the defendant concerning his knowledge of the State’s plea offer of seven years based on his status as a habitual offender and the defendant acknowledged that he was aware of the offer and that he had turned it down. But this is apples and oranges. This does not refute defendant’s allegation that he turned down the offer only because he was advised that by not timely serving the required notice, the State had waived its opportunity to seek habitual sentencing. It is also true that after his conviction, defendant was advised that the State was seeking habitualization and it is also true that defendant could not show that he did not qualify as a habitual offender. But again, neither of these facts refutes defendant’s allegation that at the time he rejected the plea offer, he was acting under his counsel’s erroneous advice that even if he went to trial and lost, the State would be unable to obtain habitual offender sentencing.

We should require an evidentiary hearing to permit Appellant to prove, if he can, that counsel misinformed him concerning the plea offer, that he would have accepted the offer but for the bad advise, and that acceptance would have resulted in a lesser sentence.


author: PER CURIAM.

text:
    Nakia Antoine LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2071.
    District Court of Appeal of Florida, Third District.
    March 7, 2003.
    Nakia A. Lee, in proper person.
    Charles J. Crist, Jr., Attorney General, Consuelo Maingot, Assistant Attorney General, for appellee.
    Before GODERICH and RAMIREZ, JJ., and NESBITT, Senior Judge.
   CONFESSION OF ERROR

PER CURIAM.

Nakia Antoine Lee appeals the summary denial of his motion to correct illegal sentence in which he alleged that he was entitled to credit for time served in a particular case. Based on the appellee State of Florida’s confession of error filed in this case, as well as our own independent review of the record, the trial court’s order is reversed and this cause is remanded with directions that Lee be granted fourteen months of credit for time served in case number 00-613.

Reversed and remanded.


text:
    Helen K. MONAHAN, Appellant, v. Elizabeth L. DAVIS, Mary Jo Miles, Patricia Taylor, Teresa McCullough, Betty Kish, individually and as Trustee of the Betty Kish Revocable Trust, B & L Services, Inc., a Florida Corporation, and Gregory Evans, Appellees.
    No. 4D00-1982.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Law Office of Barry A. Eisenson, Coconut Creek, for appellant.
    Gregg W. McClosky and David J. Pas-cuzzi of McClosky, D’Anna, Ioannou & Dieterle, LLP, Boca Raton, for appellee, Elizabeth L. Davis.
   ON MANDATE FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Affirmed. See Ryan v. De Gonzalez, 841 So.2d 510, 523-26 (Fla. 4th DCA 2003) (Gross, J., concurring specially).

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    M.P., a child, Petitioner, v. Janice GARDNER, Superintendent of the Palm Beach Juvenile Detention Center, Respondent.
    No. 4D03-346.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Carey Haughwout, Public Defender, and Daniel Marshall, Assistant Public Defender, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, M.P., a juvenile, filed an emergency petition for writ of habeas corpus seeking discharge from secure detention. Petitioner essentially argued that his detention was illegal because the trial court had failed to enter a written order with reasons for his secure detention, a departure from the risk assessment instrument (RAI) which qualified him for nonse-cure or home detention. After this court issued an order to show cause and received a State response, the State filed an amended response advising that the trial court subsequently entered an order of detention stating written reasons for petitioner’s secure detention. Petitioner now challenges the sufficiency of the order of detention.

The undisputed facts in this case are that petitioner is charged with failure to appear for trial in two cases. At arraignment, the State requested that he be placed on home detention with electronic monitoring. The State submitted a RAI which, as corrected, totaled 11 points, qualifying him for nonsecure or home detention. The trial court heard unsworn statements from petitioner’s mother, who said that she never knew where petitioner was, that he had punched holes in the walls and otherwise vandalized her home, and had brought marijuana into her home, exposing her daughter to it. The trial court thereupon orally found petitioner to be a danger to himself and others, and ordered petitioner into secure detention. The trial court subsequently entered a written order of detention, which provided that based on the information provided by petitioner’s mother, as set forth in a transcript of the arraignment it attached, as well as petitioner’s failure to appear for trial previously, and the court’s personal observations of “the child, his attitude, his body movements, his demeanor, his manner, and his answers to the Court, ... the child is committed to secure detention.”

Petitioner argues that the order of detention does not satisfy the statutory requirements for departure from the RAI. We agree.

Habeas corpus is the proper remedy where a juvenile is being detained illegally in violation of the risk assessment requirements and the detention statute. See, e.g., A.S. v. Byrd, 111 So.2d 1171 (Fla. 4th DCA 2001). The power to place in detention those charged with or found to have committed a delinquent act is entirely statutory. See J.J. v. Fryer, 165 So.2d 260, 265 (Fla. 4th DCA 2000); S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996).

Section 985.213(2)(a), Florida Statutes (2002), provides, with certain exceptions not applicable in this case, that:

All determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child....

Section 985.213(1), Florida Statutes (2002), provides that all determinations and court orders regarding secure, nonsecure or home detention shall be based primarily upon findings that the child:

(a) Presents a substantial risk of not appearing at a subsequent hearing;
(b) Presents a substantial risk of inflicting bodily harm on others as evidenced by recent behavior;
(c) Presents a history of committing a property offense prior to adjudication, disposition, or placement;
(d) Has committed contempt of court ...; or
(e) Requests protection from imminent bodily harm.

The RAI prepared in this case did not present these criteria. Neither did the trial court make written findings on them.

Section 985.215(2), Florida Statutes (2002), provides that a child placed into any kind of detention may be continued in detention by the court upon certain conditions, and further provides in part:

Unless the child is detained under paragraph (d) or paragraph (e), the court shall utilize the results of the risk assessment performed by the juvenile probation officer and, based on the criteria in this subsection, shall determine the need for continued detention. A child placed into secure, nonsecure or home detention care may continue to be so detained by the court pursuant to this subsection. If the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state, in writing, clear and convincing reasons for such placement.

(emphasis supplied).

This last sentence has been called “the departure provision,” by this court in J.J., 765 So.2d at 264.

We find the reasons assigned by the trial court in its order of detention for ordering placement more restrictive than indicated by the results of the RAI neither clear nor convincing. We do not find that the reasons assigned by the court are weighty or important enough to warrant a variation from the RAI required by the statute. See id. at 266. The judge vaguely refers to the mother’s statements to him, but he does not specify what information from petitioner’s mother he finds to warrant secure detention. He does not describe in any detail the personal observations, attitude, body movements, demeanor, manner or answers of petitioner to which he is referring either. His attempt to incorporate by reference the evidence presented at the arraignment by attaching the transcript to his order should not overcome this deficiency in the order for lack of adequate written reasons. See J.J.

In addition to being unclear, the judge’s reasons are not convincing. The judge did not make a written finding that petitioner was a danger to himself or others, as he had orally found. Instead, he chose to rely on unsworn comments by the petitioner’s mother, and petitioner’s body language and attitude.

Petitioner’s failure to appear at another trial was not explained in the written order to sufficient degree either. Section 985.215(2)(I) contains specific provisions for detention based on failure to appear. It authorizes secure detention for a child detained on a judicial order for failure to appear and who has previously willfully failed to appear after proper notice for an adjudicatory hearing in the same case, regardless of the RAI. It authorizes secure detention for up to 72 hours in advance of the next scheduled court hearing. However, it is clear from the transcript and the trial court’s order of detention subsequently entered that the trial court was not relying on this subsection in ordering petitioner’s secure detention for longer than 72 hours in advance of the calendar call. The court did not make any written findings of willful failure to appear.

Accordingly, we grant the petition for writ of habeas corpus and order petitioner’s immediate release from secure detention, and his restoration to his detention status prior to the arraignment hearing.

No motions for rehearing will be entertained. Mandate shall issue simultaneously with this opinion.

STEVENSON, SHAHOOD and TAYLOR, JJ., concur.


author: /$/ Chet D. Traylor

text:
    In re Judge Monty DOGGETT.
    No. 2002-O-2998.
    Supreme Court of Louisiana.
    Dec. 19, 2002.
   ORDER

On recommendation of the Judiciary Commission of Louisiana, and considering the response thereto filed by Judge Monty Doggett,

IT IS ORDERED, ADJUDGED AND DECREED that Judge Monty Doggett, Judge of the Tenth Judicial District Court for the Parish of Natchitoches, State of Louisiana, be and he hereby is disqualified from exercising any judicial function during the pendency of further proceedings in this matter, pursuant to La. Const, art. V, § 25(C) and Supreme Court Rule XXIII, § 27.

This order shall be effective immediately-

/$/ Chet D. Traylor

Justice, Supreme Court of Louisiana


author: hPER CURIAM.

text:
    STATE of Louisiana in the Interest of R.C., et al., v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS.
    No. 2002-CK-3025.
    Supreme Court of Louisiana.
    Dec. 19, 2002.
   hPER CURIAM.

We have before us a motion to stay the ruling of the juvenile court requiring the Department of Public Safety and Corrections (the “Department”) to transfer five youths presently under the juvenile court’s jurisdiction from the Swanson Correctional Center for Youth Madison Parish Unit (historically known as “Tallulah”) to an alternate secure care facility under penalty of a $100-per-day fine. Regarding the Department’s appeal on the merits for which notice has been filed in the juvenile court, we grant the writ to consider the merits of the case, thus, we order the bypassing of the court of appeal. Although the only application currently before this court is a stay order, in the exercise of our supervisory jurisdiction we take this extraordinary step in the interest of expediency and because of the important public issues involved. See Perschall v. State, 96-0322, p. 2 (La.7/1/97), 697 So.2d 240, 243.

Upon learning that the juvenile court judge conducted no hearing at which evidence could be adduced before issuing his ex proprio motu ruling, and in lieu of ordering that any transcript and record of the proceedings below be lodged here, this court now vacates and sets aside the juvenile court’s ruling and remands the case to that court. The juvenile court is ordered to conduct an evidentiary hearing to elicit li>proof of the current conditions of confinement at the Tallulah facility for the five juveniles “under his jurisdiction,” and to determine anew whether these juveniles are being held under unconstitutional conditions. This hearing shall be conducted expeditiously, with preference and priority. In the interim, the voluntary agreement referenced in this court’s order of December 13, 2002, by which the Department temporarily moved the juveniles to an alternate confinement facility, is perpetuated until a resolution of the matter remanded is obtained in the juvenile court.

      . Apparently, the juvenile court judge acted to declare the conditions of confinement at Tal-lulah unconstitutional after the Fourth Circuit Court of Appeal upheld this judge’s similar finding in a recent unrelated decision. See State in the Interest of S.D., 02-0672 (La.App. 4th Cir. 11/6/02), 832 So.2d 415:


author: /s/ Catherine D. Kimball

text:
    In re S.C.T.
    No. 2002-OB-3005.
    Supreme Court of Louisiana.
    Jan. 8, 2003.
   ORDER

Considering the Petition for Reinstatement to Active Status from Disability Inactive Status filed by respondent, and the response thereto filed by the Office of Disciplinary Counsel,

IT IS HEREBY ORDERED that the petition be and hereby is denied.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 22(G)(2), respondent may not reapply for transfer to active status until at least one year from the date of this order. In the event respondent reapplies after becoming eligible to do so, he shall produce competent evidence establishing that the alcohol and. drug problems that caused his disability have been resolved.

/s/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


author: | .PER CURIAM. | KIMBALL, Justice,

text:
    In re Susan L. DONNAN.
    No. 2001-B-3058.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   | .PER CURIAM.

This disciplinary matter arises from two counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Susan L. Donnan, an attorney licensed to practice law in the State of Louisiana, but currently ineligible to practice.

UNDERLYING FACTS

In October 1998, Emathious Robinson retained respondent to handle a personal injury claim arising out of her involvement in an automobile accident. Ms. Robinson thereafter had difficulty contacting respondent concerning the status of the matter. When Ms. Robinson was finally able to reach respondent in mid-March 1999, she learned that respondent had settled the personal injury claim for $6,840. Ms. Robinson stated in her complaint that after she inquired about the settlement check, respondent told her it would take “a long time” for the check to arrive “because it was coming from another state.”

By late April 1999, Ms. Robinson became concerned that she had heard nothing further from respondent about the settlement. Ms. Robinson contacted the insurer involved in the matter and was informed that the settlement check had already been | ¡.issued, and in fact, had been negotiated in late March 1999. In May 1999, Ms. Robinson filed a complaint against respondent with the ODC.

On June 2, 1999, the ODC forwarded a copy of the complaint to respondent at her office address. A receptionist signed for the certified mail the following day. In late June 1999, after receiving no reply to the complaint, the ODC learned that respondent was practicing law out of her home and no longer came into the office. Thereafter, the ODC issued a subpoena to respondent at her home address. "When the ODC’s investigator attempted service of the subpoena, he was informed by respondent’s daughter that respondent was hospitalized for treatment of depression.

Thereafter, in the course of its investigation, the ODC received a copy of the insurance company’s check settling Ms. Robinson’s personal injury claim. The endorsements of both respondent and Ms. Robinson appeared on the back of the check; however, Ms. Robinson denied that she endorsed the check. The check cleared the bank on which it was drawn on March 29, 1999. At the same time, the expenses incurred by Ms. Robinson for medical treatment following her accident were paid in full. On June 9, 1999, Ms. Robinson executed a release in favor of the insurer.

DISCIPLINARY PROCEEDINGS

After investigation, the ODC filed two counts of formal charges against respondent, alleging that her conduct in the Robinson matter violated the following provisions of the Rules of Professional Conduct: Rules 1.2 (scope of the representation), 1.4 (failure to communicate with a client), 1.7 (conflict of interest), 1.15 (safekeeping property of a client or third person), 1.16 (termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act, especially one that reflects adversely on the lawyer’s honesty, trustworthiness, or |afitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(g) (failure to cooperate with the ODC in its investigation).

The formal charges were served upon respondent by certified mail. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained within the formal charges were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). The ODC submitted documentary evidence to the hearing committee consisting of: (1) the complaint filed by Ms. Robinson; (2) a copy of the settlement check and the release; (3) a letter from Ms. Robinson’s treating physician acknowledging payment of the medical expenses; (4) a copy of the ODC’s letter transmitting the complaint to respondent and information relating to respondent’s absence from her office; and (5) copies of the investigatory subpoena and information relating to the ODC’s unsuccessful attempts at service of the subpoena. Respondent made no submission for the hearing committee’s consideration.

| ¿Hearing Committee Recommendation

The hearing committee found the ODC proved by clear and convincing evidence that respondent violated the professional rules as charged, and that respondent’s conduct violated duties owed to the legal system and the legal profession. The committee found no mitigating factors are present, with the possible exception of personal or emotional problems, but noted respondent’s prior disciplinary record as an aggravating factor. In light of these considerations, the committee recommended that respondent be suspended from the practice of law for three years.

Neither respondent nor the ODC objected to the hearing committee’s recommendation.

Disciplinary Board Recommendation

In its recommendation, the disciplinary board found that although the factual allegations of the formal charges had been deemed admitted, the “ODC bears the burden to prove a prima facie case by competent evidence and the Board is not relieved of its obligation to ensure that ODC’s burden of proof was satisfied.” After reviewing the record of this matter, the disciplinary board found that the ODC did not fully satisfy its burden of proving the formal charges against respondent. Applying this analysis, the board determined that the ODC satisfied its burden of showing respondent settled her client’s personal injury claim without consent (a violation of Rule 1.2 of the Rules of Professional Conduct); failed to keep her client reasonably informed about the status of her legal matter (a violation of Rule 1.4); failed to | [¡promptly notify her client of the receipt of settlement funds to which she was entitled and failed to promptly deliver these funds to her client (a violation of Rule 1.15); violated the Rules of Professional Conduct (a violation of Rule 8.4(a)); and failed to cooperate in the disciplinary investigation of the complaint filed by Ms. Robinson (a violation of Rules 8.1(c) and 8.4(g)). However, the board determined there is no evidence in the record to support a finding that respondent’s representation of Ms. Robinson was materially limited by respondent’s own interests (a violation of Rule 1.7); that respondent failed to properly terminate her representation of Ms. Robinson (a violation of Rule 1.16); that respondent committed a criminal act (a violation of Rule 8.4(b)); or that she engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (a violation of Rule 8.4(c)). With respect to Rules 8.4(b) and (c), the board noted Ms. Robinson’s claim that she did not endorse the settlement check; however, the board found there is nothing in the record to indicate who endorsed Ms. Robinson’s name to the check or under what conditions this endorsement was made.

The board found respondent knowingly and intentionally violated duties owed to her client, the legal system, and the profession. The board concluded, however, that there is no clear evidence in the record concerning the amount of actual or potential injury respondent’s misconduct caused. Documents in the record indicate that Ms. Robinson signed a full release of her claims against the insurer on June 9, 1999, a little more than two months after the settlement check was negotiated. Ms. Robinson does not deny that she signed this release. Likewise, there is nothing in the record to indicate the disposition of the funds represented by the check, or whether or not Ms. Robinson received any of the proceeds. While Ms. Robinson was denied monies rightfully belonging to her for a period of more than two months, there is no evidence that respondent converted these funds to her own use during that time.

IfiThe board found the record does not contain enough information to determine that any mitigating factors are present in this matter. With respect to aggravating factors, the board added respondent’s bad faith obstruction of the disciplinary proceedings to the hearing committee’s finding of a prior disciplinary record.

In light of these considerations, the ABA’s Standards for Imposing Lawyer Sanctions, and the prior jurisprudence, the board found that the three-year suspension recommended by the committee is too harsh. Nevertheless, the board suggested that the suspension should be of a sufficient length to require respondent to apply for reinstatement. Based on this reasoning, the board recommended that respondent be suspended from the practice of law for two years. The board also recommended that respondent be ordered to provide Ms. Robinson with an accounting of the settlement received in her legal matter and that she be paid any restitution due her. Finally, the board recommended that respondent be assessed with all costs and expenses of these proceedings, with legal interest to commence running thirty days from the date of finality of the court’s judgment until paid.

Neither respondent nor the ODC objected to the recommendation of the disciplinary board.

I DISCUSSION

Analysis of Supreme Court Rule XIX, § 11(E)(3)

Prior to addressing the merits of this case, we must discuss the proper interpretation of Supreme Court Rule XIX, § 11(E)(3), known colloquially as the “deemed admitted rule.” That rule provides that in a case where the respondent fails to file a timely answer to the formal charges, “the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence.” The instant case falls squarely within that rule, as it is undisputed that respondent did not answer the formal charges. Nonetheless, the disciplinary board imposed an additional requirement on the ODC, mandating that it prove “a prima facie case by competent evidence.”

We hold that the “deemed admitted” rule must be applied as it is 'written. That rule states in unambiguous terms that if the respondent attorney does not timely answer formal charges of misconduct, the “factual allegations contained within the formal charges” shall be deemed admitted and proven by clear and convincing evidence. Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In other words, mere allegations of a rule violation, without specific factual allegations or supporting evidence, is insufficient to prove misconduct by the requisite “clear and convincing” standard.

| Determination of Rule Violations

Applying these precepts to the instant case, we now turn to an examination of the formal charges and other evidence submitted by the ODC to determine whether there is a sufficient basis under the deemed admitted facts and other evidence to support a finding that respondent has violated the professional rules as charged.

The two counts of formal charges filed by the ODC against respondent are as follows:

Count I
On or about October 4, 1998, Emathious Kashara Robinson retained your services in her personal injury case. Thereafter, you failed to return Ms. Robinson’s telephone calls and you failed to keep her advised as to the status of her case. On or about March 22, 1999, you settled her claim with Reinsurance Company of America for the sum of $6,840.00, without her knowledge or permission. You caused Ms. Robinson’s endorsement to be forged onto the check issued in payment of the claim. On March 29, 1999, you negotiated the check and retained the proceeds for your own use and benefit.
You settled the claim without the knowledge or permission of your client, failed to account for or disburse client funds, failed to respond to your client’s requests for information, and failed to act with due diligence in completing the representation. Your conduct violated Rules 1.2(a), 1.4, 1.7(b), 1.15(b), 1.16(a)(2)(d), and 8.4(a)(b)(c) of the Rules of Professional Conduct.
Count II
A copy of the complaint that is the subject of Count I, supra, was served on you at your primary registration address on June 3, 1999. You failed, neglected, or refused to submit a response to the complaint. An investigatory subpoena was issued to compel you [sic] appearance before Disciplinary Counsel to answer the complaint filed by Ms. Robinson. After due and diligent efforts and numerous attempts at your home and office, the subpoena was returned unserved. You failed to cooperate in a disciplinary investigation in violation of Rules 8.1(c) and 8.4(g) of the Rules of Professional Conduct.

lflThe ODC introduced the following documentary evidence in support of the formal charges: (1) Ms. Robinson’s complaint; (2) a copy of the settlement check issued by the insurer and the release signed by Ms. Robinson; (3) a letter from Ms. Robinson’s treating physician acknowledging payment of the medical expenses; (4) a copy of the ODC’s letter transmitting the complaint to respondent and information relating to respondent’s absence from her office; and (5) copies of the investigatory subpoena and information relating to the ODC’s unsuccessful attempts at service of the subpoena.

In total, the rule violations alleged by the ODC are Rules 1.2(a), 1.4, 1.7(b), 1.15(b), 1.16(a)(2)(d), 8.1(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(g). We will address each of these rules separately.

Rule 1.2(a) relates to the client’s control over the scope of representation. The deemed admitted facts establish respondent settled her client’s personal injury claim without her client’s knowledge or consent. In light of these facts, the ODC has proven a violation of this rule.

Rule 1.4 relates to the attorney’s duty to communicate with his or her client. The deemed admitted facts establish respondent failed to return her client’s telephone calls and failed to keep her advised of the status of her legal matter. These facts establish a violation of Rule 1.4.

Rule 1.7(b) prohibits a lawyer from representing a client if the representation of the client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interests, unless the lawyer reasonably believes the representation will not be affected and the client consents after consultation. There is nothing in the deemed admitted facts or in the evidence submitted by the ODC which would suggest any conflict of interest on the part of respondent in connection with the representation of Ms. Robinson. The mere | mconclusory statement that respondent violated this rule, without supporting factual allegations or other evidence, is insufficient to establish a violation of the rule. Therefore, no violation of Rule 1.7(b) has been established.

Rule 1.15(b) mandates the lawyer to notify a client or third party that the lawyer has received funds in which the client or third party has an interest. It further mandates the lawyer to promptly deliver the funds to the client or third party and render an accounting if requested. The deemed admitted facts indicate respondent failed to promptly notify her client of her receipt of funds belonging to the client and failed to deliver these funds to the client. These facts establish a violation of Rule 1.15(b).

Rule 1.16(a)(2)(d) requires the lawyer to withdraw from representation if the lawyer’s mental or physical condition impairs the lawyer’s ability to represent the client. There is nothing in the deemed admitted facts or other evidence which would indicate respondent suffers from a physical or mental condition that impairs her representation of her client. The mere conclu-sory statement that respondent violated this rule, without supporting factual allegations or other evidence, is insufficient to establish a violation of the rule. Therefore, no violation of Rule 1.16(a)(2)(d) has been established.

Rules 8.1(c) and 8.4(g) provide that it is professional misconduct for a lawyer to fail to cooperate with the ODC. The deemed admitted facts indicate respondent refused to comply with the ODC’s requests for information or to its subpoena. These facts establish violations of Rules 8.1(c) and 8.4(g).

lnRule 8.4(a) provides that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct. In light of the professional rule violations already established, a violation of this rule has been proven.

Rule 8.4(b) provides it is professional misconduct for a lawyer to commit a criminal act, especially one that reflects on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. Rule 8.4(e) provides it is professional misconduct for the lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. The deemed admitted facts establish that respondent caused her client’s endorsement to be forged on the settlement check and that respondent negotiated the check and retained the proceeds for her own use and benefit. Although there is no allegation that respondent was ever criminally charged for her actions, these facts are sufficient to establish a criminal act that reflects on respondent’s honesty, trustworthiness, or fitness as a lawyer. Likewise, the act of forgery necessarily involves elements of dishonesty, fraud, deceit, or misrepresentation. These facts support a finding that respondent violated Rules 8.4(b) and 8.4(c).

Discipline to Be Imposed

Having found violations of the Rules of Professional Conduct, we now turn to a determination of an appropriate sanction for this misconduct. 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; Louisiana State Bar Ass’n v. Levy, 400 So.2d 1855 (La.1981). 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; Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Respondent’s conduct is serious in nature. Her actions involve failure to communicate with her client, settlement of her Ghent’s personal injury claim without the Ghent’s knowledge or consent, her forgery of the client’s endorsement on the settlement check, and her conversion of the settlement funds over a two-month period of time.

In Louisiana State Bar Ass’n v. Hin-richs, 486 So.2d 116 (La.1986), we set forth guidelines for imposing discipline in cases involving conversion of client funds:

In a typical case of disbarment for violation of DR 9-102 [now Rule 1.15], one or more of the following elements are usually present: the lawyer acts in bad faith and intends a result inconsistent with his client’s interest; the lawyer commits forgery or other fraudulent acts in connection with the violation; the magnitude or the duration of the deprivation is extensive; the magnitude of the damage or risk of damage, expense and inconvenience caused the client is great; the lawyer either fails to make full restitution or does so tardily after extended pressure of disciplinary or legal proceedings.
A three year suspension from practice typically results in cases involving similar but less aggravated factors. In such cases the lawyer is guilty of at least a high degree of negligence in causing his client’s funds to be withdrawn or retained in violation of the disciplinary rule. He usually does not commit other fraudulent acts in connection therewith. The attorney usually benefits from the infraction but, in contrast with disbarment cases, the client may not be greatly harmed or exposed to great risk of harm. The attorney fully reimburses or pays his client the funds due without the necessity of extensive disciplinary or legal proceedings.
A suspension from practice of eighteen months or two years will typically result where the facts are appropriate for a three-year suspension, except that there are significant mitigating circumstances; or where the facts are appropriate for a one-year suspension, except that there are significant aggravating circumstances.
|1SA suspension from practice of one year or less will typically result where the negligence in withdrawing or retaining client funds is not gross or of a high degree. No other fraudulent acts are committed in connection with the violation of the disciplinary rule. There is no serious harm or threat of harm to the client. Full restitution is made promptly, usually before any legal proceeding or disciplinary complaint is made. Hinrichs, 486 So.2d at 122-123 (citations omitted).

The deemed admitted facts in this case establish that respondent caused her client’s name to be forged on a settlement check and that she retained the proceeds for her own use, which would suggest the case would fall under the higher end of the disciplinary range. However, the lack of any significant client harm in this case militates against imposing a substantial sanction. As earlier stated, the record establishes that approximately two months after the issuance of the settlement check, respondent’s client executed a release in favor of the insurance company, in which she acknowledged receipt of the $6,840 settlement. This document indicates respondent’s client at least tacitly ratified the settlement of the case and agreed that she received all monies due under the settlement. The record is further devoid of any evidence that during the two-month period of the conversion, respondent obtained any benefit from her infraction.

Thus, despite respondent’s forgery of the settlement check and resulting conversion of the funds, the lack of any significant client harm caused by the conversion, combined with the failure of the ODC to produce any evidence that respondent ben-efitted from the conversion, convinces us that this case does not fall in the most severe portion of the Hinrichs range, i.e., disbarment or a three-year suspension. However, respondent’s forgery prevents the case from falling in the lowest part of the Hinrichs range, i.e., a suspension of one year or less. Considering |14all these circumstances, we conclude a two-year suspension from the practice of law is the appropriate sanction for respondent’s misconduct.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that Susan L. Donnan be suspended from the practice of law in Louisiana for a period of two years. 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.

KIMBALL, J., dissents and assigns reasons.

JOHNSON, J., concurs in result.

| KIMBALL, Justice,

dissenting.

I disagree with the majority’s application of Supreme Court Rule XIX, § 11(E)(3) (the “deemed admitted rule”) under the facts of this case. I do not dispute that the deemed admitted rule serves a function in those cases where the attorney receives notice of the charges and nevertheless does not respond. However, applying the rule to cases where the attorney has not received actual notice of the charges leads to inequitable results.

That inequity is readily demonstrated under the facts of the instant case. Although the ODC made domiciliary service of a subpoena on respondent, its investigator learned at that time that respondent was not at her domicile and was in fact being hospitalized for treatment of severe depression. After receiving this information from its investigator, the ODC made no discernable effort to investigate respondent’s mental state, nor did it pursue the question of whether a transfer to disability inactive status might be appropriate. Instead, it simply proceeded to file formal charges against her. When respondent did not file a timely answer, the ODC then deemed all the allegations in the formal charges as admitted, including the serious allegation that respondent engaged in the criminal act of forgery.

A review of the documentary evidence submitted by the ODC fails to support the sweeping factual allegations which have been deemed admitted. As one member of the disciplinary board observed, this record is in a “woeful state.” At best, the | yODC’s documentary evidence suggests that respondent failed to keep her client reasonably informed about the status of her legal matter; the evidence supporting the remaining charges is inconclusive and falls well short of satisfying the ODC’s clear and convincing burden of proof. Based on this evidence, a short suspension of six months or less would be appropriate for respondent’s negligent misconduct.

For these reasons, I would not deem the facts admitted under the circumstances presented in this case. Accordingly, I respectfully dissent.

      . Respondent has been ineligible to practice since September 3, 1999 for failure to pay bar dues and failure to comply with the mandatory continuing legal education requirements.

      . Respondent had not consulted Ms. Robinson prior to negotiating the settlement, but Ms. Robinson apparently was not dissatisfied with the amount of the settlement.

      . The receipt indicates respondent’s daughter signed for the certified mail.

      . Supreme Court Rule XIX, § 11(E)(3) provides:
      The respondent shall file a written answer with the Board and serve a copy on disciplinary counsel within twenty (20) days after service of the formal charges, unless the time is extended by the chair of the hearing committee. In the event Respondent fails to answer within the prescribed time, or the time as extended, the factual allegations contained within the formal charges shall be deemed admitted and proven by clear and convincing evidence. Disciplinary Counsel shall file a motion with the chair of the hearing committee to which the matter is assigned requesting that the factual allegations be deemed proven with proof of service of the formal charges upon the respondent. The order signed by the hearing committee chair shall be served upon respondent as provided by Section 13(b). Within twenty (20) days of the mailing of the order of the hearing committee chair deeming the factual allegations contained in the formal charges proven, the respondent may move the hearing committee chair to recall the order thus issued upon demonstration of good cause why imposition of the order would be improper or would result in a miscarriage of justice. [Emphasis added]

      . The committee referred to admonitions issued December 22, 1994 and March 30, 1995 for failure to cooperate with the ODC in a disciplinary investigation.

      . The disciplinary board did not cite any authority from this court in support of its position, but relied on three prior board decisions, In re: Bishop, 90-DB-027; In re: Crittenden, 94-DB-001; and In re: Elloie, 94-DB-016. It is noteworthy that these three matters were decided prior to a 1995 amendment to Supreme Court Rule XIX, § 11(E)(3) that added the language "and proven by clear and convincing evidence” to the second sentence of the rule.

      . 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 (Standard 4.12); when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client (Standard 4.42); and when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system (Standard 7.2).

      . The board cited In re: Moore, 00-2616 (La. 10/19/00), 769 So.2d 1180 (fully deferred six-month suspension imposed by consent for attorney’s failure to timely deliver funds owed to a third-party medical provider); In re: Cannizzaro, 00-0413 (La.3/17/00), 758 So.2d 780 (ten-month suspension imposed by consent for attorney's failure to promptly disburse funds to a third-party medical provider and adequately communicate with a client in an unrelated matter); and In re: Kennedy, 95-1455 (La. 1/12/96), 666 So.2d 284 (one year and one day suspension imposed for attorney's lack of diligence, failure to communicate with a client, failure to promptly disburse funds entrusted by the client, failure to account for and refund unearned fees, commingling and conversion of client funds, and failure to cooperate with the ODC). However, the board acknowledged that respondent's conduct is not as egregious as Kennedy because there is no evidence she commingled or converted client funds, and that a sanction similar to Moore and Cannizzaro would be more appropriate.

      . The sole mention of respondent's medical condition is a memo from the ODC’s investigator regarding the attempted service on respondent. The investigator states that he was told by respondent's daughter that she was "currently hospitalized at Greenwell Springs Hospital for severe depression and was currently on medication for that condition.” Even assuming this unsworn statement was sufficient to show respondent suffered from depression, it obviously falls far short of establishing a violation of Rule 1.16 by clear and convincing evidence.

      . The ODC was obviously aware of respondent's mental state, as it charged respondent with violating the Rules of Professional Conduct because she suffered from a physical or mental condition that impaired her representation of her client.

      . For example, the record does not indicate the circumstances under which the settlement check was endorsed. There is also nothing in the record to indicate what happened to the settlement funds represented by the check, other than that Ms. Robinson's medical provider was promptly paid, in full, and that Ms. Robinson signed a full release of her claims against the insurer. By signing the release, we can only assume that Ms. Robinson approved the settlement and received her share of the settlement funds. This suggests that there was ultimately little or no harm to the client or any third party caused by respondent’s misconduct.


author: I .PER CURIAM.

text:
    STATE of Louisiana v. Norman JEFFERSON.
    No. 2002-K-1038.
    Supreme Court of Louisiana.
    Jan. 10, 2003.
   I .PER CURIAM.

Writ granted; habitual offender adjudication vacated; underlying guilty plea vacated; case remanded. The “waiver of rights” form signed by the defendant indicates that all parties initially agreed that the district court would impose a three-year sentence of imprisonment at hard labor. Further, the court of appeal reports that defense counsel stated during habitual offender proceedings that “the understanding was that defendant would receive the same three-year sentence.” State v. Jefferson, 01-1139 at 3-4, 815 So.2d 120 at 122. Even assuming, as did the court of appeal, that the state did not promise the defendant any specific sentence, id., 01-1139 at 7, 815 So.2d at 124, the waiver of rights form and counsel’s stated “understanding” indicate that the defendant was operating under the reasonable belief that a three-year sentence would be imposed. However, sentencing statutes in effect at the time of the offense, R.S. 40:967(B)(4)(b), 1989 La. Acts 482 and R.S. 15:529.1, render both the defendant’s underlying sentence and his sentence as an habitual offender illegally lenient. Accordingly, we vacate the defendant’s | {¡guilty plea, reverse his conviction, restore his pre-trial status, and remand the case to afford the defendant the opportunity to plead anew and proceed to trial if he chooses to plead not guilty. See State v. Scott, 93-0401 (La.3/16/95), 651 So.2d 1344; State v. Manchester, 545 So.2d 528, 529 (La.1989).


author: | .PER CURIAM.

text:
    STATE of Louisiana v. Irvin BROOKS.
    No. 2001-K-0785.
    Supreme Court of Louisiana.
    Jan. 14, 2003.
    Rehearing Denied March 21, 2003.

      Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gretna, Frank A. Brindisi, Thomas J. Butler, for Applicant.
    Frederick Kroenke, Jr., Baton Rouge, for Respondent.
   | .PER CURIAM.

We granted the state’s application to review the decision of the court of appeal reversing respondent’s convictions and sentences on three counts of distribution of cocaine in violation of La.R.S. 40:967 (A), on grounds that the trial court erred by permitting the jury to view videotapes of the drug transactions during deliberations. State v. Brooks, 00-0953, pp. 6-9 (la.App. 5th Cir.1/30/01), 777 So.2d 643, 646-48. For the reasons that follow, we reverse and remand this case to the court of appeal.

The circumstances leading to respondent’s arrest are undisputed. In 1996, the Jefferson Parish Sheriffs Office conducted an undercover narcotics operation on the east bank of Jefferson Parish. On three separate occasions officers purchased crack cocaine from the respondent. All three transactions were recorded with a hidden video camera. These tapes, which contained audible statements of respondent and the undercover agent, were properly introduced into evidence and viewed by the jury during trial. They were played again in open court for jurors, in response to their mid-deliberation request. At various times as jurors viewed the exhibits, “the videotapes were stopped at the foreperson’s request.” Brooks, 0(fj09532 at 6, 777 So.2d at 647. The court of appeal concluded on original hearing that “allowing the jury to view and listen to the tapes during deliberations was the same as having testimony repeated to the jury, which is expressly prohibited by LSA C.Cr.P. art. 793.” Id., 00-0963 at 8-9, 777 So.2d at 648. On the state’s application for rehearing, the court of appeal went further and stated that “[t]he viewing of the videotape during the deliberations constituted testimony repeated to the jury, and is thus prohibited by the express provisions of La.C.Cr.P. art. 793”. State v. Brooks, 00-0953, p. 1 (La.App. 5th Cir.2/28/01), 781 So.2d at 1266 (on reh’g)(emphasis added).

The court of appeal’s effort to bring the present case within the letter of La.C.Cr.P. art. 793 was misguided. The statute generally prohibits “access to any written evidence” for its verbal content and prohibits the repeating of testimony to jurors during deliberations. However, in the present case, the audible portions of the videotape recorded not the testimony of the defendant or the undercover agent who made the transactions, but the res gestae statements made by the parties as the offense occurred. See La.C.Ev. art. 801 (D)(4)(excluding from hearsay definition things said and done “through the instructive, impulsive and spontaneous words and acts of the participants ... which are necessary incidents of the criminal act, or Isimmediate concomitants of it, or form in conjunction with it one continuous transaction.”); see also former R.S. 15:447 (“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants.... ”).

Thus, under the plain language of La.C.Cr.P. art. 793, a videotape/audiotape recording of a crime as it occurs is neither written evidence nor testimony. See State v. Adams, 550 So.2d 595, 599 (La.1989) (“The general reason for the prohibition is a fear that jurors might give undue weight to the limited portion of the verbal testimony thus brought into the room with them.”)(internal quotation marks and citation omitted)(emphasis added). Nor is the tape a recorded confession or inculpatory statement made by the defendant after the commission of a crime for purposes of this Court’s longstanding jurisprudential rule preventing a jury from reviewing a defendant’s post-offense statement during deliberations. See Adams, 550 So.2d at 598-99 (conviction for first degree murder reversed because jury reviewed audio tape and transcript of defendant’s confession during deliberations); State v. Freetime, 308 So.2d 487, 490 (La.l974)(permitting jurors to have access to written confession, after they retired to deliberate, for sole purpose of rereading its verbal content, constituted reversible error).

Our decision in State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, is therefore controlling. In Davis, we stated:

A videotape, which is like a photograph, is neither testimony nor written evidence and is not excluded by La. C.Cr.P. art. 793. A photograph is a reproduction of a physical object or scene. It is not “written” evidence of “testimony” within the meaning of La. C.Cr.P. art. 793, which prohibits the use of written material during deliberations. Hence, a jury’s request to see a videotape after it retired to deliberate ... is not an abuse of the court’s statutory discretion. See State v. Overton, 337 So.2d 1058 (La.1976).
Id. 92-1623 at 23, 637 So.2d at 1025.

I/The court of appeal distinguished Davis from the present case because the videotape reviewed by the jury here included an audio rendering of the dealings between the undercover officer and respondent during the drug transactions while the tape in Davis was only a visual depiction of the incident shot from a remote video surveillance camera (capturing the defendant’s confrontation and murder of the victim during the course of an armed robbery) and did not contain any audio component. State v. Brooks, 00-0953, p. 1, 781 So.2d 1266 (on reh’g).

However, this distinction rests on the court of appeal’s erroneous view expressed on rehearing that the statements made on the videotape amounted to testimony for purposes of art. 793. Subject to the explicit restrictions imposed by that statute, and by our jurisprudential rule precluding the use of a defendant’s confession in any form in the course of jury deliberations, a trial court has sound discretion in permitting the jury’s review of properly-admitted evidentiary exhibits during its deliberations, including audiotapes and videotapes. United States v. Cruz-Paulino, 61 F.3d 986, 997 (1st Cir. 1995); United States v. Hofer, 995 F.2d 746, 748 (7th Cir.1993); United States v. Scaife, 749 F.2d 338, 347 (6th Cir.1984).

We therefore resist any expansion of La.C.Cr.P. art. 793 beyond the plain meaning of its words by treating a videotape contained audible portions of res ges-tae statements as “testimony,” or as the functional equivalent of testimony, an alternative suggested by the court of appeal on original hearing in the present case. In Overton, which we cited as authority for our holding in Davis, the two photographs viewed by the jury during deliberations depicted “bruises on [the victim’s] face and bruises, lacerations and bandages on the lower parts of her arms,” and were therefore “relevant to corroborate and strengthen the victim’s testimony that her assailants beat her with a pistol....” Overton, 337 So.2d at | ¡4064-65. In Davis, the videotape of the crime as it happened corroborated the testimony of the surviving eyewitness on the scene. In both cases, it was possible to treat the exhibits as the “functional equivalent” of testimony given in open court for purposes of art. 793, yet in each case this Court had no difficulty in determining that the statute did not preclude the jury’s review of the highly relevant evidentiary exhibits during its deliberations because photographs of a victim’s injuries and videotapes of crimes as they happen are neither testimony nor written evidence within the literal compass of art. 793. The verbal content of the videotape in the present case does not compel a different result, because words are the equivalent of acts when spoken under the immediate pressure of events. La.C.E. art. 801(D)(4). Finally, we would be particularly hesitant to adopt the court of appeal’s holding in a case in which, as the supplemental transcript of the jury’s viewing of the three videotapes reveals, the jury foreperson asked the state to pause each videotape and then to proceed slowly frame by frame, as if the tape were a series .of still photographs. This procedure clearly indicates that jurors viewed each tape primarily for its visual and not verbal content.

Accordingly, the trial court did not err in allowing the jury to view videotapes properly admitted into evidence during their deliberations. We therefore reverse the decision below and remand this case to the court of appeal for consideration of respondent’s remaining assignments of error pretermitted on original appeal.

JUDGEMENT REVERSED; CASE REMANDED TO COURT OF APPEAL.

JOHNSON, J., dissents.

      . Because appellate counsel did not represent the defendant at trial, he was unable to answer directly the state's argument that the defense waived any complaint under La. C.Cr.P. art. 793 because the trial transcript did not reflect any objection by defense counsel to the court’s replaying of the videotape twice at the request of the jury during deliberations. The most that appellate counsel can state in this regard is that the trial transcript does not reflect one way or another whether the defendant and counsel were present at the time the court replayed the tape. The court of appeal put aside the controversy over whether the defense objected contemporaneously because the record in any event did not reflect an explicit agreement by the state and defense to waive the rule in La.C.Cr.P. art. 793. The court of appeal thus deemed the issue properly preserved for review. Brooks, 00-0953, p. 6 (orig.h’ng), 777 So.2d 643 at 647; see State v. Adams, 550 So.2d 595, 599 (La. 1989) ("Just as a party may knowingly and voluntarily waive his constitutional rights ... parties may agree to waive a statutory provision such as La.Code Crim.P. art. 793. Such an agreement must be in clear express language' and must be reflected in the record.”) (citation omitted).

      . The two other circuit court of appeal opinions in which reversible error was found when the jury, during deliberations, viewed a videotape of the defendant and a confidential informant during a drug transaction, State v. Broussard, 598 So.2d 1302 (La.App. 3d Cir. 1992), and listened to a taped conversation between an undercover officer and the defendant, State v. Lewis, 590 So.2d 1266 (La.App. 1st Cir.1991), were both issued before this Court’s decision in Davis, supra, and therefore represent superceded law.