author: HARRIS,. Judge. CATES, Presiding Judge

text:
    William O. ENGLISH v. STATE.
    1 Div. 585.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.
    Ian F. Gaston, Mobile, for appellant.

      William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS,. Judge.

Appellant was indicted for the offense of grand larceny. At arraignment, represented by retained counsel, a plea of not guilty was entered. Following this, appellant’s counsel entered into “plea bargaining” with the District Attorney’s staff. As a result of these negotiations the Assistant District Attorney, Mr. William G. Hughes, told appellant’s attorney that in exchange for a guilty plea, he would recommend to the court that appellant be sentenced to one year and a day in the penitentiary. Counsel for appellant communicated this proposition to him and he agreed to plead guilty.

On the day the case was set for trial appellant appeared in open court with retained counsel and withdrew his prior not guilty plea and entered a plea of guilty to grand larceny. In a face-to-face confrontation between the court and appellant the court fully explained his Boykin rights to him. The court determined that the guilty plea was intelligently and voluntarily made and he accepted the plea of guilty. Appellant’s counsel requested a pre-sentence report and the request was granted. The prosecutor for the state remained silent and did not apprise the trial court that he had entered into an agreement with appellant’s counsel that he would recommend a sentence of one year and a day in the penitentiary if appellant pleaded guilty to the offense. After reviewing the pre-sentence report which showed that appellant had previously been convicted of felonies in both federal and state courts, the court asked if there were any recommendations from the state and Mr. Hughes replied, “No, sir.” Appellant’s counsel then and there made known to the court that he and Mr. Hughes had entered into negotiations concerning a guilty plea and that Mr. Hughes told him he was going to recommend to the court that appellant receive a sentence of one year and a day in the penitentiary. Following this there were a number of statements made to the court by Mr. Hughes. We think it well to quote from the record to get a better understanding as to whether appellant’s guilty plea was induced by representatives from the District Attorney’s office.

“MR. HUGHES: Your Honor, in fairness to Mr. Friedlander, I did — at the last time that was going to be my recommendation, a year and a day, I believe it was, but I was under the impression that the Court was going to rule solely on the basis of this. I didn’t mean to mislead you that we had never talked about anything. It was my .
“THE COURT: You were under the impression of what?
“MR. HUGHES: I was going to recommend that but I was under the impression that the Court was going to base its decision strictly on the pre-sentence report.
jfc 5}c % 5{i 5j* ‡
“MR. HUGHES: Yes; I understand. I just didn’t want it to look like I was trying to put Mr. Friedlander in bad light.”

Thereupon the court sentenced the appellant to a term of seven years in the penitentiary. Counsel for appellant immediately said:

“Judge, based upon — before Your Honor finishes, based upon the plea’ bargaining I had with Mr. Hughes, I would ask the court to allow me to withdraw my plea of guilty and ask for the matter to be set down for trial.”
“THE COURT: I deny your motion.
“MR. FRIEDLANDER: I would like to give notice of appeal.
“THE COURT: All right; note the notice of appeal.”

Quoting further from the record:

“MR. FRIEDLANDER: Based upon the fact that the plea was entered, based upon my negotiations with Mr. Hughes and the fact that he was going to recommend a year and a day, and I thought the Court would go along with that.
“THE COURT: Well, as I have said, as I have tried to make it plain to Mr. Hughes, if he did not know it, the Court does not have to accept the recommendation by the — I do not know if Mr. Hughes knew the past record of the Defendant whenever he made that recommendation.
“MR. FRIEDLANDER: He did, Your Honor.
“MR. HUGHES: Your Honor, I think it was gone into, the man knew that he was not bound by anything I said, and I told Mr. Friedlander back when it was .
“THE COURT: Well, Gentlemen, I do not want to go further on it. I am going to set a bond of $10,000.00 on the appeal. Take the prisoner with you.”

On March 7, 1975, a hearing was held on a motion to reconsider the sentence or, in the alternative, to allow appellant to withdraw his plea of guilty. At this hearing many statements were made to the court by Mr. Hughes and counsel relative to the plea bargaining. Mr. Hughes told the court that he and the appellant’s counsel had talked in terms of a year and a day and that was going to be his recommendation at that time.

The court asked Mr. Hughes if he made a recommendation to the court on the day sentence was imposed and he replied, “I think I just expressed to the court that we had discussed that and I had told Mr. Friedlander at one time that would be my recommendation. It was prior to the pre-sentence, though.” The court pressed Mr. Hughes for a direct answer and he stated, “I don’t believe I did judge. That is the only thing I can tell you.”

We quote further from the record:

“MR. HUGHES: Your Honor, my recollection of this is that originally Donnie and I talked about the matter. I told him that I thought the man should get a year and a day. I knew the man had a record. I didn’t know anything else about what other pre-sentence he might or might not have had.
“THE COURT: You knew he had a record or did you know his record ?
“MR. HUGHES: I knew — I knew— Judge, I think I knew his record.
“MR. FRIEDLANDER: He knew he had a bad record.
“MR. HUGHES: I knew he had a record. I told Donnie at that time that I thought he should get at least that.
“THE COURT: You knew all of the details of his record?
“MR. HUGHES: No, sir; I just — I knew he had some convictions, that is all, Judge.
“THE COURT: All right.
“MR. HUGHES: At that time, I told Donnie that, you know, I thought the man should get at least a year and a day, and that that probably would by my — I guess maybe I told him at that time that that would be my recommendation. However, we came in that day, the man entered a plea, Donnie asked for a pre-sentence. Now, I don’t know what the thing — the pre-sentence said. We came back before the Court for sentencing and I assume Your Honor saw the report. I don’t know what is in the report.
“THE COURT: You still have not seen the report?
“MR. HUGHES : No, sir. I still haven’t —you . . .
“THE COURT: You don’t know the record of this Defendant?
“MR. HUGHES: I know — I have his rap sheet, Judge, but I don’t know what else, if anything else, is in the report, is what I am saying. You have that knowledge that I do not.
“MR. FRIEDLANDER: Well, does the rap sheet show that he had served three or four times before ?
“MR. HUGHES: It — I . . .
“MR. FRIEDLANDER: It shows numerous convictions and we talked about it back then, myself and Mr. Hughes.
“MR. HUGHES: I just don’t want to mislead the Court .
“THE COURT: You are saying he did know the details of his record; is that right ?
“MR. FRIEDLANDER: Yes, sir; he knew the details.
“MR. HUGHES: I have his rap sheet, Judge. I don’t know anything else about the man .
“THE COURT: Well, I mean the rap sheet is his record; is it not ?
“MR. HUGHES: Yes, sir; but I mean I don’t know what all the Probation Officer goes into in a pre-sentence, if they go into the neighborhood or talk to people or whatever, I don’t know anything else about it.
“THE COURT: Well, what I asked you, did you know his record at the time you were recommending or talking about a year and a day?
“MR. HUGHES: Yes, sir; I knew what his actual rap sheet contained.”

Appellant testified at this hearing and so did Georgia Mae Fowler who was implicated in the same crime with appellant. Appellant testified that his attorney told him that he had discussed his case with Mr. Hughes and that Mr. Hughes told him he was going to recommend that he receive a sentence of one year and a day.

Georgia Mae Fowler testified that Mr. Friedlander was her attorney and that she was present when he related to appellant his agreement with Mr. Hughes. She further testified that Mr. Friedlander told her Mr. Hughes was going to recommend probation for her; that she got a five year sentence which was suspended and she was place on probation for five years.

In Blow v. State, 49 Ala.App. 623, 274 So.2d 652, Judge DeCarlo writing for a unanimous court held:

“The disposition of criminal cases by negotiated pleas of guilty (plea bargaining) resolves the overwhelming majority of criminal matters in this country every year. Many agree and others disapprove, but the result is inescapable that plea negotiations have been with us a long time and are used universally. This procedure has served the administration of criminal justice well, and any negotiations wherein two trained professionals submit their findings to a learned judge for his concurrence has a forthrightness and fairness deserving of enforcement.”

In United States v. Brown, 500 F.2d 375, the Court of Appeals, Fourth Circuit, held that when a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, the Supreme Court of the United States held that where the state failed to keep a commitment concerning a sentence recommendation on a guilty plea, the court would remand the case to the state court to decide whether the circumstances of the case required only that there be specific performance of the agreement on the guilty plea, or whether circumstances required that the defendant be granted an opportunity to withdraw his plea of guilty.

The court went on to say:

“ * * * The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining,’ is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U.S. 742, 751-752, 90 S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747 (1970).
This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
its ‡ ‡ %
We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendations did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration. The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resen-tenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.”

Our holding today is not to be construed as binding the trial court to the agreement struck between the prosecutor and defense counsel. What we do hold is that if the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused, the accused must be afforded the opportunity to withdraw his guilty plea on motion promptly made, as was done in this case.

See Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29.

For the failure of the trial, court to grant appellant’s motion to withdraw his guilty plea this case is reversed and remanded for further proceeding not inconsistent with this opinion.

Reversed and remanded.

TYSON, DeCARLO, and BOOKOUT, JJ., concur.

'CATES, -P. J., concurs specially.

CATES, Presiding Judge

(concurring specially).

I think that the next to the last paragraph of Judge Harris’s opinion puts the trial judge in the position of having no discretion in sentencing where counsel for the parties have attempted to agree. See Aaron v. State, 43 Ala.App. 450, 192 So.2d 456.

However, I vote to reverse but solely because the prosecuting and defense attorneys failed to put their agreement in writing. See Rule 14, Rules of Practice in Circuit * * * Courts, Sup.Ct. Rule 20 and Rule 47, ARAP.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    In re William O. ENGLISH v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1557.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for petitioner, the State.
   SHORES, Justice.

The denial of writ in this case shall not be construed to mean that this court approves or disapproves all of the statements contained in the opinion of the Court of Criminal Appeals, 56 Ala.App. 704, 325 So.2d 211.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX, and JONES, JJ., concur.


author: TYSON, Judge.

text:
    Tommy Lee GROSS, alias v. STATE.
    6 Div. 902.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Rehearing Denied Nov. 18, 1975.
    P. Wayne Thorn, Birmingham, for appellant.

      William J. Baxley, Atty. Gen., and David L. Weathers, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of Alta Pearl Self by taking $325.00 from her person. The jury found the appellant guilty as charged and fixed punishment at fifteen years imprisonment. The trial court then sentenced the appellant in accordance with this verdict.

Mrs. Alta Pearl Self testified that she was sixty-two years of age and was employed at the Pic ’N Poke in the Robin-wood section of Jefferson County as a clerk. She testified that on July 17, 1974, she was to work the shift from 6 :00 in the morning until 4:00 in the afternoon, at which time she was to be relieved by someone else. She testified that out in front of the store were some gasoline pumps, and that inside the store were soft drink machines, a candy counter, and an ice cream bar. She testified that shortly before 3:00 in the afternoon, she saw two black males come into the store. She stated that one of them had a beard and a little goatee, and that he asked for some ice cream, then paid fifteen cents for it. She testified that the two men were driving a “I960 old blue Chevrolet,” and because they had lingered at the gasoline pumps without buying gas, she wrote down the tag number. She stated it was a Walker County tag, No. 64-19538. She testified that they drove away, but about five or ten minutes later they returned with a third man and bought thirty-eight cents worth of gasoline. She testified that the appellant, Tommy Lee Gross came into the store, accompanied on this occasion by Hayes Joseph Tooson. She testified that the two men went back to a rack where the cookies and cakes were kept, that a little girl came into the store, bought some cookies, and as she left the store, Tooson approached her, stuck a gun in her face and stated, “This is a stick-up, give me the money.” She testified that while Tooson held the pistol on her, the appellant went to the cash register, reached in, and took all the money. She said that when she checked up that night she was approximately $350.00 short. She testified that as soon as the two men left she telephoned the owner of the store, Mr. C. L. Crane, who came down about 4:00 in the afternoon, and they notified the police right away.

On cross-examination, she testified that she looked at photographs of several men which were brought to her by police officers, that she immediately recognized the appellant and Tooson, that this was on Wednesday, July 17, 1974, and the next Tuesday, she immediately recognized the appellant at a police lineup at the Tarrant City Jail.

The State presented the testimony of one Steve Hill, who testified that he formerly lived in Walker County, Alabama, but had moved to Birmingham' in the spring of 1974, and lived at 3820 Thirty-Fifth Avenue, North, in Jefferson County. He testified that between 2:00 and 3:00 in the afternoon, he was driving in the Robinwood section, near Airport Hills, in Jefferson County, when he stopped and picked up three black males who were hitch-hikers. He testified that he was driving his 1960 blue Chevrolet, and that it had a Walker County license tag, No. 64-19538. He testified that a few minutes later the three men put a pistol on him and told him to get into the trunk of the car. He stated that he was in the trunk of the car until about 8:00 that night when the men stopped the car, told him they were leaving the car unlocked, but for him to stay in the trunk until dark. He testified that he got out of the trunk about 8:00 that night and walked to a place where he could telephone the police. He testified that he was in the Zion City section, near Inglenook, in Jefferson County, Alabama. He testified that he was unable to identify any of the three men that he had picked up, but that he could hear them talking, that he heard the car stop two or three times while he was in the trunk, and that he heard some discussion about money.

The appellant’s motion to exclude the State’s evidence was overruled.

The appellant, Tommy Lee Gross, took the stand and testified that he had one prior burglary and grand larceny conviction for which he had received one year’s probation. He testified that he had been at work on July 17, 1974, but that he had misplaced the slip to prove that he had been working for a construction company on July 17, 1974. He stated that he had sent this pay slip to his mother and it had been misplaced. He testified that he had ridden with one James Hooper to Livingston, Alabama, about that time in order that Hooper might take his son to visit relatives. He denied having any connection with Hayes Joseph Tooson other than knowing who he was, and that they lived in different parts of town.

I

Mr. Justice Harwood, then Har-wood, P. J., of the former Court of Appeals, in Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied 250 Ala. 421, 34 So.2d 859, observed :

“. . . Thomas v. State, 91 Ala. 34, 9 So. 81, 82, contains an excellent discussion by Justice McClellan of the offense of robbery. Therein he defines robbery to be ‘a felonious taking of goods from the person of another, or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the stealing.’ In Hardis v. State, 28 Ala.App. 524, 189 So. 216, 217, in discussing the offense of robbery Judge Samford wrote: ‘As defined by our decisions, robbery is an offense against both person and property, and is briefly defined as the felonious taking of money or goods of value from the person of another, or in his presence, by violence or by putting him in fear. Parks v. State, 21 Ala.App. 177, 106 So. 218.’ ”

We are of the opinion that the State here presented a prima facie case of robbery, which, when tested by the appellant’s motion to exclude, was properly submitted to the trial jury. Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Moore v. State, 48 Ala.App. 719, 267 So.2d 509; Clay v. State, 52 Ala.App. 272, 291 So.2d 364.

II

A conflict in the testimony between the appellant’s alibi and that of the State presented a question for the jury. McColston v. State, 20 Ala.App. 591, 104 So. 347; Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914, and cases cited therein.

The trial court properly overruled the appellant’s motions.

We have carefully examined this record and find no error therein. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.


author: EMBRY, Justice.

text:
    In re Tommy Lee GROSS v. STATE. Ex parte Tommy Lee Gross.
    SC 1584.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    P. Wayne Thorn, Birmingham, for petitioner.
    No appearance for the State.
   EMBRY, Justice.

Petition of Tommy Lee Gross for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Gross v. State, 56 Ala.App. 709, 325 So.2d 216.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: BOOKOUT, Judge.

text:
    James E. HANES, alias v. STATE.
    3 Div. 388.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Rehearing Denied Nov. 12, 1975.
    John W. Davis, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with Intent to Murder. Sentence : 15 years imprisonment.

On the night of July 7, 1973 the appellant, James Hanes was at Looney’s Skating Rink in Montgomery. He had been watching fourteen year old Donna Lynn Cannon skating with some of her friends. He asked a boy to tell her he would give her $20 to go to his apartment with him. She told the boy to tell Hanes she would not go. A few minutes later she skated by Hanes and told him she was going to tell her father. Hanes immediately left, got a gun and went to Donna Cannon’s neighborhood. He hid in some bushes until she returned to a neighbor’s home with her friends. He then shot through the kitchen window, hitting her in the head. She survived the wound after having surgery and being confined for a lengthy period in the hospital.

In Hanes’ statement to the investigating officers, he admitted the above facts. He stated that he had been watching Donna Cannon for several months and he described her as a “pretty young black haired girl.” He apparently did not even know her name. He said he shot her as he was mad because he thought she had called the police. After several witnesses had testified for the state, Hanes withdrew his plea of not guilty and entered a plea of guilty.

The state agreed to nol pros four cases of burglary and grand larceny, and one case of an ex-felon in possession of a pistol. In turn the defendant agreed to a term of fifteen years to run consecutively with a nine year Sentence he had previously received. The appellant was well represented by two court-appointed attorneys at the time.

The Assistant District Attorney conducted an extensive colloquy with the appellant in court in the presence of the trial judge, the court reporter, the attorneys and the jury, before the guilty plea was accepted. All the appellant’s rights were fully explained pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). He stated that he understood each of the rights as they were explained to him.

When asked by the trial judge if he had anything to say before sentencing, the appellant said:

“Under the law of insanity, a person who knows right from wrong, but cannot adhere to the right; there is no doubt in my mind that I qualify under that law. Also, there is no doubt that I cannot get the evidence or the witnesses to prove this. And I understand that this is a plea is an agreement between myself and the State.”

The state then called Dr. Verna Wool, a clinical psychologist, to testify as to the appellant’s sanity. The appellant had previously been granted permission to subpoena Dr. Wool as a defense witness. The appellant stipulated that Dr. Wool would testify the same as in his previous trial, and also stated, “I stipulate that her testimony will be that I am legally sane.”

A proper predicate was laid for Dr. Wool’s testimony. She testified that, based upon her observation and examination of Hanes and examination of his case history, in her opinion he was legally sane. She stated that the appellant knew the difference between right and wrong and had the ability to choose between right and wrong, and that he was competent to communicate with his counsel and witnesses.

The court then again asked the appellant if he had anything to say why the sentence should not be pronounced, and he answered, “No, sir.” The sentence of fifteen years was then imposed.

I

A plea of guilty purges the record of error unless the appellant proves clearly that his plea of guilty was extorted by duress, fraud, intimidation or deception. Dixon v. State, 45 Ala.App. 45, 222 So.2d 375 (1969); Childers v. State, 43 Ala.App. 594, 197 So.2d 281, cert. den. 280 Ala. 711, 197 So.2d 283 (1967); Argo v. State, 43 Ala.App. 564, 195 So.2d 901, cert. den. 280 Ala. 707, 195 So.2d 819 (1967), cert. den. 389 U.S. 865, 88 S.Ct. 129, 19 L.Ed.2d 136.

II

Appellant contends he was not mentally competent to enter a plea of guilty.

The appellant and his counsel were at liberty to subpoena expert witnesses to testify as to the appellant’s sanity. Early in the trial, the court had granted appellant’s motion to allow him to subpoena witnesses, documents, and records. When, upon sentencing, Hanes raised the question of sanity, the trial court heard expert testimony bearing on that question. The appellant cross-examined the witness, but offered no evidence and called no witnesses to testify on that issue.

The undisputed testimony of Dr. Wool was clear and unequivocal that the appellant was sane, that he knew the difference between right and wrong and could choose between them, and that he could communicate with counsel and witnesses. The trial judge then asked appellant again if there was any reason why sentence should not be pronounced, and the appellant stated that there was no reason. The court then pronounced sentence and we are unable to find any abuse of discretion therein on the part of the trial judge. Pace v. State, 284 Ala. 585, 226 So.2d 645 (1969); Barnett v. State, 51 Ala.App. 470, 286 So.2d 876, cert. den. 291 Ala. 773, 286 So.2d 890 (1973).

Affirmed.

All the Judges concur.


author: JONES, Justice.

text:
    In re James E. HANES v. STATE. Ex parte James E. Hanes.
    SC 1569.
    Supreme Court of Alabama.
    Jan. 2, 1976.
    Carl O. Pilgrim, Montgomery, for petitioner.
    None for respondent.
   JONES, Justice.

Petition of James E. Hanes for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hanes v. State, 56 Ala.App. 711, 325 So.2d 219.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


author: DIXON, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Billy HOUSE.
    No. 56565.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Dissenting Opinion Jan. 26, 1976.
    See also 325 So.2d 227.
    William E. Woodward, Clinton, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Billy House was convicted of possession of marijuana with the intent to distribute in violation of R.S. 40:966(A). The conviction was by a jury, on January 13, 1975. Defendant was sentenced to ten years at hard labor, which was set aside after the filing of a multiple bill; he was subsequently sentenced as a fourth offender to one hundred years at hard labor.

On appeal, defendant relies on four assignments of error. We find merit in Assignment No. 3.

At the close of the State’s case, defendant moved for a directed verdict of acquittal, arguing that the State had introduced no evidence of intent to distribute marijuana. The motion for a directed verdict was overruled.

Defendant was an inmate at Angola at the time of this offense. He was employed as an electrician, and, along with a fellow inmate, was taken in a pickup truck from a pickup point to the prison electric shop, Joe Matthews, a maintenance employee at the penitentiary, drove the truck and supervised the work.

After a brief stop at the electric shop, defendant, another inmate and Matthews proceeded to one of the buildings which housed penitentiary employees and removed an electrical motor from an attic fan. Matthews then drove to a store on the prison grounds, where he bought a pack of cigarettes, then proceeded toward the electric shop. The truck reached a roadblock manned by penitentiary personnel, who searched defendant. A cellophane package containing about one gram of marijuana, mainly seeds and stems, was found in House’s pocket. He was carried into a nearby building, stripped and searched. One marijuana cigarette was found in his watch pocket; twenty marijuana cigarettes were found in his boot.

Although searched, no other contraband was found on the pickup truck, or on the other occupants of the truck, except (as brought out on a motion for a new trial) for $5.00 on the person of one of the other inmates.

Except for the facts recited above, there was no evidence in the record which might tend to prove that the defendant possessed the marijuana “with intent to . . . distribute, or dispense a controlled dangerous substance . . . ’ ■’

The relevant statutory references to intent are:

“Criminal intent may be specific or general :
“(1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
“(2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” R.S. 14:10.
“The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent.’” R.S. 14:11.

The reporter’s comment explaining R.S. 14:11 is:

“Mental element:
“This section amplifies the three preceding sections, and makes it perfectly clear that the required mental element varies with varying crimes. In some crimes, particularly criminal attempts, ‘specific intent’ is required. In still others, such as negligent homicide, only ‘criminal negligence’ is necessary.
“The definitions of the great bulk of the crimes in the Code, however, state that there must be an ‘intentional’ production of certain prescribed consequences (for example, ‘Aggravated arson is the intentional damaging * * * or setting fire to any structure * * *’). However, in some crimes the production of certain consequences plus a specific intent to produce or accomplish some prescribed consequences is necessary (for example, ‘Forgery is the false making or altering, with intent to defraud, of any signature * * *’). Such an intent is a ‘specific intent.’
“The concluding sentence of this section indicates that when the term ‘intentional’ or ‘intent’ is used alone without modification, it refers to ‘general criminal intent’ as defined in the preceding section.”

R.S. 15:445 and R.S. 15:446 are concerned with the proof of intent:

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” R.S. 15 :445.
“When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” R.S. 15:446.

Part of the “circumstances of the transaction” is the quantity of the substance involved. In some cases, the quantity involved may be so large that it would be unreasonable to contend that its possession was with any other purpose than to distribute. This court recently ruled that the possession of a quantity of marijuana sufficient for the manufacture of six hundred cigarettes was sufficient to infer from that circumstance that the defendant possessed with the intent to distribute. State v. Sibley, 310 So.2d 100 (La.1975).

Cases from other jurisdictions, in which the question of the sufficiency of the evidence to prove intent to distribute was raised, demonstrate that possession of large quantities of marijuana constitutes evidence of intent to distribute. In State v. Boyd, 224 N.W.2d 609 (Iowa 1974), thirty-three pounds of marijuana along with packaging equipment usually associated with the sale and delivery of the material was sufficient evidence of intent. In State v. Bowers, 87 N.M. 74, 529 P.2d 300 (1974), two hundred forty-six pounds of marijuana, along with evidence of activities compatible with distribution, was sufficient evidence of intent to distribute. A quantity sufficient to manufacture seventeen thousand cigarettes justified an inference of intent to distribute in State v. Gedko, 63 Wis.2d 644, 218 N.W.2d 249 (1974). In Daygee v. State, 514 P.2d 1159 (Alaska 1973), fifteen pounds of marijuana, scales and bags were held evidence probative of intent to sell.

In State v. Sullivan, 190 Neb. 621, 211 N.W.2d 125 (1973), defendant was found in possession of twenty-nine “lids,” enough marijuana for eight to nine hundred cigarettes. The court held:

“The evidence, although circumstantial and in dispute, presented a question for the trier of fact. The possession of a large quantity of a controlled substance packaged in a form customarily used for distribution will support an inference of possession with intent to distribute. . . ” 211 N.W.2d 125, 126.

In State v. Turner, 192 Neb. 397, 222 N.W.2d 105 (1974), the court listed these factors as probative of possession with intent to distribute a controlled dangerous substance:

“. . . Circumstantial evidence to establish that possession of a controlled substance was with intent to distribute or deliver may consist of the quantity of the substance, the equipment and supplies found with it; the place it was found; the manner of packaging; and the testimony of witnesses experienced and knowledgeable in the field. ...” 222 N.W.2d 105, 106.

Some jurisdictions have rejected the contention that the intent to distribute can be inferred from quantity alone. Redden v. State, (Del.Supr.), 281 A.2d 490 (1971). In Perry v. State, 303 A,2d 658, 659 (Del.1973), that court said, in holding that growing, manicuring and transporting over seven pounds of marijuana justified an inference of intent to sell:

“Quantity and possession do not, standing alone, necessarily prove intent to sell, but must be considered with the attendant circumstances. . . . ”

See also State v. Larko, 6 Conn. Cir. 564, 280 A.2d 153 (1971) and Commonwealth v. Ellis, 356 Mass. 574, 254 N.W.2d 408 (1970), where it was held that an inference drawn from possession, alone, invaded the prohibited realm of speculation and conjecture and could not support a conviction.

A similar problem to the one we face confronted the Idaho Supreme Court in State v. O’Mealey, 95 Idaho 202, 506 P.2d 99 (1973). In that case, the defendant was charged with, among other things, possession of marijuana with intent to deliver. The charge was based on his possession of 63.23 grams of marijuana, an amount greater than that found on the defendant in the instant case. In upholding a dismissal because of lack of evidence of intent, the court stated, in language particularly apt to the problem we face in the instant case:

“We turn now to the amount of marijuana discovered on the defendant’s person or clothing, and whether such amount was more than that necessary for his personal use. Marihuana, A Signal of Misunderstanding; First Report of the National Commission on Marihuana and Drug Abuse (1972), Appendix I, pp. 28-30, appears to indicate that the amount found in defendant’s possession in this case could be reasonably expected to furnish approximately 126, 0.5 gram marijuana cigarettes. The Commission’s report likewise would appear to indicate that a heavy marijuana user could utilize 70 marijuana cigarettes per week. We emphasize that the authorities furnish little if any conclusive knowledge one way or the other on the amounts of marijuana sutiable for personal consumption. Hence, it is crucial in a matter of this type that the State in its evidence furnish the lower court and this court with some purported evidence sufficient to reach a conclusion as to what amount of drugs may create a presumption of intent to deliver.
“In the absence of any statutory presumption, without any other evidence to corroborate defendant’s intent to deliver, and without sufficient knowledge upon which to base judicial notice, we have no alternative but to find that the magistrate in this case abused his discretion in binding the defendant over for trial.” 506 P.2d 99,102.

In the instant case, the State has shown only that (1) the defendant was in possession of twenty-one marijuana cigarettes and a small plastic bag containing seeds and stems and (2) the defendant traveled, with his supervisor, from living quarters to electric shop to other points on the prison grounds.

However, the State offered no evidence: (1) that the defendant ever distributed or attempted to distribute any marijuana; (2) that the marijuana was in a form usually associated with marijuana possessed for distribution to others; (3) that the amount was such as to create a presumption of intent to distribute; (4) of expert or other testimony that such an amount as found on the defendant is inconsistent with personal use only; and (5) of any paraphernalia, such as baggies or scales, evidencing an intent to distribute.

The trial judge’s ruling on a motion for a directed verdict will be reversed only if we find, as a matter of law, that there is no evidence of an essential element of the offense in the record. State v. Ford, 315 So.2d 276 (La.1975); State v. Williams, 311 So.2d 850 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973). There are at least two elements in the crime of possession of marijuana with intent to distribute. Obviously, one element is possession and the other is the intent to distribute. One element of the crime cannot, without more, be said to supply “some evidence” of the other required element of the offense. In a drunk driving case, evidence of drunkenness alone cannot be said to satisfy the absence of any evidence of driving.

We cannot say that mere possession is “some evidence” of possession of marijuana with the intent to distribute. We recognize that proof of intent nearly always rests on permissible inferences from the circumstances of the transaction; conjectural conclusions are not permitted. In the case before us there is no evidence from which the jury might legitimately infer that the possession, alone, of the marijuana was accompanied by the intent to distribute.

The motion for a directed verdict should have been granted. The conviction and sentence are set aside and the cause remanded to the trial court for proceedings consistent with this opinion.

SANDERS, C. J., concurs.

SUMMERS, J., dissents and will assign reasons.

BOLIN, J., dissents.

SUMMERS, Justice

(dissenting).

I cannot agree that there is no evidence at all of defendant’s intent to distribute marijuana. As the Court’s opinion makes manifest, the decision turns on the sufficiency of the evidence.

I do not agree that a directed verdict in this jury trial was constitutionally permissible. See State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), and my dissent in State v. Douglas, 278 So.2d 485 (La.1973). The appropriate constitutional principle is embodied in Section 5(C) of Article V of the Constitution of 1974, as it was in Section 9 of Article XIX of the Constitution of 1921. Jurisdiction of this Court and the scope of its review in criminal matters is declared by the Constitution to extend to questions of law only. Since the trial in the case before us, this proposition has been affirmed by the legislature by amending Article 778 of the Code of Criminal Procedure to provide that a motion for a directed verdict is permissible only “in a trial by the judge alone.”

In addition, I cannot subscribe to the rationale of the decision even if I could concede that a directed verdict was permissible in this jury trial. The sufficiency of the evidence upon which this reversal turns, is, of course, a question of fact bearing upon the guilt or innocence of the accused — a matter beyond this Court’s jurisdiction — a matter which is the exclusive prerogative of the jury. La.Const. Art. I, § 17 (1974). It is implicit in the limitation of this Court’s jurisdiction in criminal matters “to questions of law,” only that this Court has no jurisdiction to determine the sufficiency of the evidence. La.Const. Art. V, § 5(C) (1974). It is only when there is no evidence whatsoever of the crime or an essential element thereof that it becomes a question of law: whether it is legal to convict an accused on no evidence at all. State v. Singley, et al, 195 La. 519, 197 So. 218 (1940). This proposition is elementary and fundamental to our system of criminal justice. It ordains that juries decide guilt or innocence, not judges.

It is my view that the number of marijuana cigarettes required to establish intent to distribute is a question of fact which the jury must decide. Thus, whether possession of two dozen or 600 marijuana cigarettes is required to infer an intent to distribute is a fact question dependent upon the circumstances of each case. The quantity of marijuana possessed by this defendant undoubtedly furnished a basis for the jury to find that he intended to distribute. This decision tells the jury it cannot make this inference of intent on the basis of the quantity of marijuana involved here — a clear question of the sufficiency of the evidence. In ■ doing so the Court substitutes its judgment for the jury’s.

Inferences from facts are fact-finding determinations peculiarly within the province of the jury. An inference is a logical indüctive or deductive process by which the mind arrives at reasoned conclusions from data before it. In this case the jury made a permissible deduction from positive physical evidence before the jury. Here an inference was essential to the proof of intent. For intent is a subjective element often impossible to establish by direct evidence. Consequently the legislature has specifically authorized the proof of intent by inference.

“In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” La.R.S. IS :445.

Decisions of other states relied upon by the Court are inappropriate. This Court’s limited jurisdiction on review to questions of law only distinguishes our appellate practices from that of the other states.

The decision in State v. Sibley, 310 So.2d 100 (La.1975), cited in the majority opinion, is not authority for the holding in the instant case. State v. Sibley did not turn on the sufficiency of the evidence. To the contrary, that case correctly held that intent to distribute could be inferred from the possession of 600 marijuana cigarettes. In this holding the Court merely answered the defense contention that there was no direct evidence of intent to distribute by citing Section 445 of Title 15 of the Revised Statutes, supra. The Sibley Court did not question the “sufficiency” of the evidence.

In my view this decision promotes a tendency to erode the principle that the jury is the exclusive judge of the facts on questions of guilt or innocence. Those who subscribe to this proposition would usurp this prerogative of the jury and invest in themselves a veto over jury verdicts. So long as the constitution declares otherwise, I cannot subscribe to the tendency. To do so is to relegate the jury function to a useless exercise and effectively deny trial by jury.

I respectfully dissent.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Edmond WILLIS.
    No. 56635.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.

      Stanley E. Branton, Stan Branton & Associates, Inc., St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Edmond Willis was charged by bill of information with knowingly and intentionally possessing marijuana with the intent to distribute in violation of La.R.S. 40:-966(A)(1). After trial by jury, defendant was found guilty as charged and was sentenced to serve ten years at hard labor. Subsequently, defendant was charged as a habitual offender. Upon finding that defendant had been convicted of the prior felonies, the court vacated the sentence imposed herein and sentenced him to fifty years at hard labor pursuant to La.R.S. 15:529.1. See State v. Willis, 325 So.2d 230 (La.1975), handed down this day. On this appeal, he relies upon nine assignments of error for reversal of his conviction. Finding merit in Assignments of Error Nos. 7 and 8, requiring reversal of the conviction, we do not consider the other assignments of error in our disposition of the cause.

FACTS

Defendant is an inmate in the Louisiana State Penitentiary at Angola. On February 24, 1974, at approximately 3:00 p.m., Sgt. William Honeycutt, Jr., a correctional officer, while making his rounds of the prison, saw defendant playing cards in a dormitory other than the one to which he was assigned. Defendant thereby violated the “inter-dorn visit rule,” which prohibits a prisoner from entering a non-assigned dormitory without the permission of the officer on duty. Sgt. Honeycutt ordered defendant to return to his own dormitory and resumed making his rounds. As he looked back, however, he saw that defendant had not complied with his order and was still playing cards in the non-assigned dormitory. Sgt. Honeycutt then called defendant over to him and made a search of his person. He discovered a pack of fifteen cigarettes in his sweat shirt, which he suspected were composed of marijuana. Sgt. Honeycutt turned over his findings to his supervisor, who in turn transferred them to the warden. Defendant was subsequently charged with knowingly and intentionally possessing marijuana with the intent to distribute.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

At the close of the state’s case, defendant moved for a directed verdict of acquittal pursuant to article 778 of the Code of Criminal Procedure, which provides:

In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a directed verdict or judgment of acquittal at the close of the state’s case, the defendant may offer his evidence in defense.

In State v. Douglas, 278 So.2d 485 (La.1973), we stated that a directed verdict of acquittal is proper only where the state has produced no evidence of the commission of the crime or an essential element thereof. Defendant moved for a directed verdict on the ground that the prosecution had produced no evidence tending to show that he had the intent to distribute the marijuana in his possession. Defendant’s motion for a new trial, alleging that the verdict was contrary to the law and evidence, was based on the same ground. The trial judge’s denials of these motions are assigned as errors.

At the trial of the instant case, Sgt. Honeycutt testified that he did not witness defendant turn over marijuana to any other inmate. He further testified that, to the best of his knowledge, no other inmate in the general area where defendant was searched had any marijuana in his possession, that defendant gave no indication that he was distributing the marijuana to others, and that the marijuana found on defendant’s person was all that he had. Defendant was charged with knowingly and intentionally possessing marijuana with the intent to distribute. It was therefore incumbent upon the state to produce evidence tending to show that defendant possessed marijuana with the intent to distribute. La.R.S. 40:966(A) (1). Intent to distribute is an essential element of the crime charged.

Although intent is a question of fact, it need not be proven as a fact, but may be inferred from the circumstances of the transaction. La.R.S. 15:445. The state contends that the jury could infer intent to distribute from the sole circumstance that defendant was playing' cards in a dormitory other than the one in which he is housed with a pack of fifteen marijuana cigarettes concealed on his person. This contention is without merit. Although defendant admittedly violated a prison regulation by entering a dormitory to which he was not assigned without authority, this bare fact does not give rise to an inference that he had the intent to distribute. In his per curiam, the trial judge stated that defendant possessed a “fair quantity” of marijuana cigarettes and that the jury could infer the intent to distribute from this fact. We have held that the intent to distribute may be inferred from the possession of a large quantity of a controlled dangerous substance. In State v. Sibley, 310 So.2d 100 (La.1975), there was evidence establishing that defendant possessed enough marijuana to produce 600 cigarettes. We stated that the intent to distribute could be inferred from this circumstance. In the instant case, defendant possessed only fifteen marijuana cigarettes. While we by no means imply that an arbitrary, quantity-based demarcation exists below which the intent to distribute is not to be inferred, we believe that the number of cigarettes on defendant’s person was too small to support an inference that the cigarettes were intended for distribution.

We therefore hold that evidence of possession of fifteen marijuana cigarettes, without other evidence, does not, as a matter of law, constitute evidence of possession of marijuana with intent to distribute. Because the record is devoid of any evidence that defendant had the intent to distribute marijuana, an essential element of the crime charged, the trial judge improperly denied his motions for a directed verdict of acquittal and for a new trial. State v. Bradley, 310 So.2d 582 (La.1975); State v. Brown, 301 So.2d 605 (La.1974); State v. Patterson, 295 So.2d 792 (La.1974); State v. Douglas, 278 So.2d 485 (La.1973).

DECREE

For the reasons assigned, defendant’s conviction is reversed. The cause is remanded to the trial court for proper judgment of acquittal in compliance with this opinion.

SUMMERS and BOLIN, JJ., dissented.


author: MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Edmond WILLIS.
    No. 56636.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Dissenting Opinion Jan. 26, 1976.
    Stanley E. Branton, Stan Branton & Associates, Inc., St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., Cynthia Picou Bran-ton, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Edmond Willis was charged by bill of information with the crime of possessing marijuana with intent to distribute in violation of La.R.S. 40:966(A) (1). Defendant pled not guilty and, after trial by jury, was found guilty as charged. He was then sentenced to ten years at hard labor. Subsequent to this sentence, the district attorney filed a bill of information charging defendant with being a fourth felony offender. La.R.S. 15:529.1. It was alleged that, in addition to the present felony conviction of possession of marijuana with intent to distribute, defendant had three prior felony convictions. Defendant pled not guilty. The court, upon finding defendant had been convicted of the prior felonies, vacated his sentence for the conviction of possessing marijuana with intent to distribute and sentenced him to fifty years at hard labor, to run consecutively with the sentence he is presently serving. On this appeal, defendant relies upon eight assignments of error for reversal of this enhanced sentence.

In State v. Willis, 325 So.2d 227 (La.1975), rendered this day, defendant’s conviction for possession of marijuana with intent to distribute was reversed and set aside. Our disposition of that case requires that the enhanced sentence imposed herein be annulled and set aside. Hence, we do not consider the assignments of error urged on this appeal.

DECREE

For the reasons assigned, the sentence is annulled and set aside.

BOLIN, J., dissents.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

In the companion case State of Louisiana v. Edmond Willis, 325 So.2d 227 (La.1976), the Court reverses the ruling of the trial judge denying a directed verdict. The question in the first Willis case (325 So.2d 227) involves whether a pack of fifteen marijuana cigarettes was evidence from which the jury could infer an intent to distribute. The trial judge ruled that possession of the fifteen marijuana cigarettes was evidence upon which the jury could infer an intent to distribute. In reversing this ruling the Court holds that fifteen cigarettes is no evidence from which an inference to distribute could be drawn. I cannot agree.

I have assigned reasons for dissent in State v. Billy House, 325 So.2d 222 (La.1976). Those reasons apply to my dissent here and in the companion case involving this same defendant, 325 So.2d 227 (La.1976).


text:
    STATE of Louisiana v. Richard Ellman STRAHAN.
    No. 56717.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Concurring Opinion Jan. 28, 1976.

      James D. Johnson, Jr., Franklinton, for de f endant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty,, John N. Gallaspy, Second Asst. Dist. Atty., for plaintiff-ap-pellee.
   MARCUS, Justice.

Richard Ellman Strahan was indicted by the grand jury for the Parish of Washington for aggravated rape committed on February 9, 1969 in violation of La.R.S. 14:42. After trial by jury, he was found guilty without capital punishment. He was subsequently sentenced to life imprisonment at hard labor. On December 13, 1974, an out-of-time appeal was ordered by this court. On this appeal, defendant relies upon four arguments for reversal of his conviction and sentence.

After church on February 9, 1969, the victim and her fiance drove in their car to the outskirts of Bogalusa where they parked. They reached this area about 8:30 or 9:00 p.m. While seated in their car talking, another vehicle pulled up. Two masked men armed with guns came to their car and attempted to rob the couple. They were then locked in the trunk of their car by the masked men. One of the robbers drove the fiance’s car with the couple locked in the trunk while the other robber followed in the robbers’ car. They drove around for about fifteen or twenty minutes. Thereafter, in a wooded area outside of Bogalusa, the girl was removed from the trunk, handcuffed and blindfolded. She was then taken to the back seat of the robbers’ car where she was raped by one of these men. Her fiance remained locked in the trunk of his car. The other man stood guard at this vehicle located about one hundred yards from where the crime took place. Both men wore masks during the entire episode. After the commission of the crime, the victim was released, and the two men left the scene in their vehicle.

At the outset, it should be noted that the state’s case consisted of the testimony of three witnesses: James Glenn Ritchie, Dale Thomas and the victim. James Glenn Ritchie, brother-in-law of defendant, testified in detail concerning the events of the crime. He was defendant’s accomplice. His testimony generally corroborated the testimony of the victim regarding the events surrounding the commission of the crime. Dale Thomas, deputy sheriff, testified regarding the recovery of the handcuffs from defendant’s tool box at his place of employment and the jacket from the trailer where defendant resided. The victim testified as to all facts relating to this crime. Her present husband, fiance at the time of the crime, was in the armed services in Germany at the time of trial and did not testify. Defendant did not take the stand in his own behalf. However, four alibi witnesses were presented.

A careful reading of the record reveals that the state fairly presented the state’s evidence. It is also clear that defense counsel extensively cross-examined each of the state’s witnesses and made timely objections where necessary. Both defense and state objections were either overruled or sustained depending upon their merit. It is evident from the record that defendant was afforded a fair and impartial trial conducted in a dignified manner. With the foregoing in mind, we will proceed to review each of the arguments set forth by defendant’s court-appointed counsel in this out-of-time appeal.

I.

The first argument is that defendant is entitled to reversal of his conviction and sentence since he was denied effective assistance of counsel. Various grounds are urged in support of this contention.

Failure of trial counsel to take an appeal is claimed as evidence of the ineffectiveness of his representation. Only under unusual circumstances, not present here, would the failure of counsel to take an appeal reflect upon his effectiveness at trial. Besides, any complaint regarding the failure to take an appeal is cured by the granting of this out-of-time appeal. As further evidence of his ineffectiveness, counsel for defendant points to the fact that no pre-trial motions were filed, specifically noting no suppression of the handcuffs and jacket was sought. The record reveals that the handcuffs were recovered from defendant’s place of employment with the consent of his employer. Hence, the search and seizure was based on a valid consent. There was testimony that the jacket was recovered from defendant’s trailer pursuant to a search warrant. No claim is asserted as to any irregularity in the issuance and/or execution of the warrant. Therefore, there is no apparent reason which would have prompted trial counsel to file such a motion. Further, failure of trial counsel to adequately question alibi witnesses, properly investigate the case, make an opening statement, have defendant take the stand, request particular special charges, and object to certain questions asked of witnesses at trial are all claimed to clearly show that defendant was not adequately and effectively represented at the trial. We do not agree. These charges are either leveled at decisions made by counsel during the heat of trial, the correctness of which cannot be determined by hindsight, or the validity of which is not evident from the record. Additionally, many objections made by trial counsel were sustained. Other objections were made and overruled. Ordinarily in an out-of-time appeal, we consider such objections when they are specifically assigned as reversible errors. However, the objections here are referred to in brief only in support of the contention that trial counsel was ineffective and are not assigned as reversible errors per se. Nevertheless, we have reviewed each of these objections and find them to be without merit. Hence, they were correctly overruled, and trial counsel’s failure to reserve bills of exceptions for appellate review is of no moment and does not reflect adversely on defendant’s representation at trial.

We are asked to examine the entire record to determine whether defendant was denied effective assistance of counsel. This we have done and conclude that there is no substance in this complaint. To the contrary, we are satisfied that defendant was effectively represented by trial counsel. As previously noted, he vigorously cross-examined the state’s witnesses; made timely objections where necessary, and presented a proper defense. It should be observed that, despite the overwhelming evidence against defendant, the jury returned a verdict of guilty without capital punishment.

II.

Defendant next contends that the summary dismissal of his motion for a new trial by the trial judge constitutes reversible error.

The motion for a new trial alleges that the verdict is contrary to the law and the evidence. Defendant contends that the trial judge, according to the minutes of April 21, 1970, overruled the motion failing to decide whether the evidence supported the jury verdict. He relies upon this court’s holding in State v. Jones, 288 So.2d 48 (La.1973).

This case is clearly distinguishable from Jones, where the trial judge in his reasons for denying the motion for new trial stated in effect that the matter of deciding defendant’s guilt was entirely up to the jury and it would be wrong for the trial judge to upset the verdict of the jury and grant a new trial. Here, there is nothing in the record to indicate that the trial judge refused to decide whether there was sufficient evidence to support the verdict of the jury before denying the motion for a new trial. The minutes merely recite that the motion was overruled. Hence, defendant made no showing to support this contention.

III.

Defendant contends that the state failed to prove the elements of the crime of aggravated rape and consequently his conviction and sentence should be reversed and set aside.

The record is to the contrary. It reveals ample evidence to support each element of the crime of aggravated rape as defined in La.R.S. 14:42. While the prosecutrix was unable to identify her assailant because he wore a mask during the entire time, she testified that she was in fact raped, describing the details of the act. The accomplice did not witness the actual commission of the act itself but identified defendant as the person who took the victim into the back seat of the automobile during which time the act was committed. The victim had been handcuffed. Handcuffs recovered from defendant’s tool box were identified as similar to the ones used by defendant and were received in evidence. Likewise, a jacket recovered from defendant’s trailer was identified as the one worn by defendant on the night of the crime and was admitted in evidence. The prosecutrix testified that she was in fear of her life because of the gun and switchblade displayed to her by the rapist. She further stated that she fought his advances until she could no longer resist and that her assailant threatened to -shoot her fiance if she resisted. In view of the foregoing, we find no merit in this contention.

IV.

The last assigned error is that the accused did not “personally” and “expressly” waive the required delay between the overruling of the motion for a -new trial and the sentencing.

The minutes of April 21, 1970 recite:

The defendant being present in open Court in person and through counsel and a motion for a new trial having been previously filed, the Court hereby overrules the motion for a new trial. Whereupon, Mr. Watts stated that the defendant personally and through counsel waived the delays for sentence.

(Emphasis added.) The argument of counsel that defendant did not personally and expressly waive this delay is untenable. The minutes reflect that defendant expressly waived the delay. Cf. State v. Jones, 288 So.2d 48 (La.1973). Hence, there is no merit in this contention.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

SUMMERS, J., concurs and will assign reasons.

SUMMERS, Justice

(concurring).

In Part II of the majority opinion there is an inference that the trial judge can decide the sufficiency of the evidence to sustain the jury verdict. In my concurring opinion in State v. Jones, 288 So.2d 48 (La.1973), I pointed out the constitutional impediment to any effort on the part of the trial judge to override the jury verdict on a question of fact on the issue of guilt or innocence. Only when there is no evidence at all of the crime or an essential element thereof is a question of law presented which would authorize the trial judge to set aside the verdict of the jury and grant a new trial. To permit the trial judge to rule on the sufficiency of the evidence on a motion for a new trial and deny him the right to direct a verdict would be to permit by indirection what is directly prohibited. For it is my opinion that a directed verdict is not permitted in a jury trial because the constitution does not permit the judge to veto the jury verdict. La.Const. Art. V, § 5(C) (1974); La.Code Crim.Pro. Art. 778 as amended in 1975; State v. Billy House, 325 So.2d 222, (La.1976), dissenting opinion.

For these reasons, I concur.


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana, Appellee, v. Wilbert JONES, Appellant.
    No. 56748.
    Supreme Court of Louisiana.
    Dec. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    Concurring Opinion Jan. 27, 1976.

      Vincent Wilkins, Director; Roland T. Huson, III, App. Counsel, Baton Rouge, for appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, James E. Boren, Asst. Dist. Attys., for appellee.
   TATE, Justice.

The defendant was convicted of aggravated rape, La.R.S. 14:42, and sentenced to life imprisonment at hard labor. His conviction on a first trial was reversed because of trial error. 283 So.2d 373 (La.1973).

On his present appeal, the two principal errors urged relate to (a) the identification procedures by which the victim identified the accused as her rapist and (b) the use of deposition testimony of a medical witness, allegedly unavailable.

Identification Testimony

The victim was raped on October 2, 1971. The accused, then aged 19, was arrested at his home at about midnight on January 13, 1972, some three and one-half months later.

In the interval, the victim had been shown on several occasions photographs of suspects who matched her description. In the single instance where she had made a tentative photographic identification, she had at a physical lineup found that the person was not her rapist.

The defendant was arrested for investigation over three months later because a rapist confessing other crimes had implicated by name the present defendant. No objection was made during the trial at the time this testimony of the reason for the arrest was educed, partly by cross-examination on behalf of the defendant.

When the defendant was brought to the police headquarters, he was informed of his rights to have a lawyer and not to participate in a line-up. The evidence shows he voluntarily consented to the line-up, picked four inmates of parish jail to participate in it with him, and also picked his own number and placement in the lineup. All members of the line-up were dressed similarly, in jail clothes. We further do not find error in the trial court’s factual finding that there were no suggestive differences in the participants of this line-up which might have influenced the victim’s identification.

The victim viewed the line-up. The participants in the line-up each repeated certain phrases suggested by the victim, which had been used by her rapist at the time of the offense.

The victim (who herself was black) identified the present defendant as her rapist from among the five young blacks participating in the line-up. Her identification was mainly on the basis of similar facial features, although she rioted that the accused was a little shorter than she had remembered her rapist being and that he spoke a little rougher (although his pronunciation of a certain phrase was identical to her memory of her rapist’s).

At the trial before the jury, she repeated these reservations, but stated she was 98% certain that the accused was her rapist. Her testimony also shows that she had ridden with him for about an hour, frequently in lighted areas, had been raped twice by him, and had had adequate opportunity to observe and remember him.

We find no merit to the defendant’s assignments that the line-up identification sheet was admitted without proper identification (Assignment of Error No. 1), that the line-up procedure was improper because suggestive and conducted without counsel (the latter had been intelligently waived) and that the in-court identification should therefore be suppressed because tainted (Assignments 2, 5, 8, 9), or that the identification should be suppressed because it was the product of an unlawful arrest (Assignment 10).

As to the last contention (Assignment 10), the evidence indicates that the accused was arrested as the potential rapist on the basis of information given an investigating officer by another person, who confessed to being the accused’s partner in other rape attempts. Assuming that such information without more investigation did not constitute probable cause to arrest the accused even for the limited purpose of securing his attendance with his consent at a line-up, we find that the circumstances of the voluntary appearance before the lineup subsequent to the detention sufficiently show an act- of free will sufficient to purge any primary taint of illegality. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).

Use of Deposition Testimony

A serious assignment of error is posed by the contention that the recorded testimony of a medical witness was read to the jury, instead of the state’s producing the live-testimony of this witness before the present trial jury (Assignment No. 15).

The confrontation clauses in our federal and state constitutions prohibit the introduction by the prosecution of transcribed testimony from a former proceeding (even where cross-examination rights were then available), unless the state proves the witness is truly not available for the trial despite good-faith and diligent efforts to locate him timely before the trial and to produce him at the trial.

See: United States Constitution, Sixth Amendment; Louisiana Constitution of 1974, Art. 1, Section 17; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Moore, 305 So.2d 532 (La.1975); State v. Kaufman, 304 So.2d 300 (La.1974); State v. Sam, 283 So.2d 81 (La.1973). See also: Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

The multiple purposes served by the confrontation requirements of the state and federal constitutions are summarized as follows in California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970): “Confrontation: (1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” (Italics ours).

Our decision in State v. Sam, 283 So.2d 81 (La.1973) relied upon and extensively quoted from the United States Supreme Court decision in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). This decision described as fundamental the right of an accused in a state trial to have the live testimony of a witness before the trial jury for the trial jury’s evaluation of a witness’ credibility (except in limited circumstances where a cross-examined witness is truly unavailable for the trial despite diligent good-faith prosecution efforts to obtain his presence there).

In Barber v. Page, the nation’s high court unanimously stated, as plainly as the English language permits, that in circumstances similar to the present a state conviction should be set aside where transcribed testimony is produced instead of the live witness: The constitutional right of confrontation is so important — not only to permit cross-examination, but also to permit the trial jury to judge the witness’ credibility face to face — that the prosecution cannot Introduce the transcribed testimony even of a cross-examined witness (as here and as in State v. Sam), unless the State has first made a good-faith and diligent effort to obtain the presence at the trial of the out-of-state witness (including by use of a uniform act for such purpose, adopted by Louisiana and almost all states.)

In State v. Sam, we attempted to explain, as clearly as we could, the holding in Barber v. Page and its application to Louisiana criminal trials. Summarizing the holding and the essential reasons for this holding, we quoted extensively from that decision of the United States Supreme Court, and we do so once again:

“In speaking of the right of confrontation guaranteed to the accused in state trials by the Sixth and Fourteenth Amendments to the federal constitution, the United States Supreme Court stated in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255 (1968): ‘Many years ago this Court stated that “[t]he primary object of the [Confrontation Clause of the Sixth Amendment] * * * was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by Ms demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895). More recently in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said, “There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. State of Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L. Ed.2d 934 (1965).’ ” (Italics ours.)

In the present instance, the state claims that the deputy coroner who examined the victim was unavailable for the trial despite diligent and good-faith efforts to produce him.

These efforts were: “Domiciliary service” upon the medical witness, a deputy coroner, some twelve days before the trial, by leaving a copy with his receptionist at the doctor’s private office; a telephone call by the prosecutor’s secretary on the first day of the three-day trial, at which the secretary informed the unidentified' recipient of the call that the doctor was to be on standby basis to be called as a witness in the trial going on; and a telephone call on the afternoon of the second day of the trial by the prosecutor’s investigator, at which he was informed that the doctor had been “out of town” (at some unidentified location) for a week and would not be back until the following Monday.

The evidence of the almost-perfunctory attempts to assure the attendance of the deputy coroner, a state official, to testify for the prosecution, is plainly not the “full and convincing” proof of unavailability of a witness and of timely good-faith and diligent efforts to secure his attendance required before his transcribed testimony may be introduced in lieu of his live attendance. State v. Johnson, 261 La. 620, 260 So.2d 645, 650-51 (1972). See also State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). Much more intensive location and production efforts are required to be timely made, before the constitutional requirement is deemed satisfied that will permit the jury to receive deposition testimony instead of hearing a live witness. Cf., State v. Nelson, 261 La. 153, 259 So.2d 46, 50 (1972).

The prosecutor may not agree with the confrontation requirements as enunciated by the United States Supreme Court and by this court. Despite such reservations on his part (or, for that matter, on our part), we are bound by the confrontation requirements of our constitutions, a fundamental decision of our people in favor of trial by live witnesses before a jury, in preference to trial by affidavit and depositions and the ancient abuses that resulted from such governmental shortcuts.

Nevertheless, under the peculiar circumstances here present, we are unwilling to hold that this error is cause for reversal. La.C.Cr.P. art. 921

The one page of testimony by the deputy coroner concerned a brief summary of his physical examination of the victim after the rape. It was a factual and non-inflammatory recital of the undramatic indicia of some bruising, corroborating a forcible rape.

If the forcible rape had been at issue, we could not say that the evidence, however brief and unimpassioned, was harmless as not being prejudicial to the substantial rights of the accused or as a substantial violation of a constitutional right. La.C.Cr. P. art. 921; State v. Moore, 305 So.2d 532 (La.1974). Here, however, as the defendant’s able counsel frankly admitted in closing argument, the defense did not contend that no forcible rape had occurred. Tr. 505-06. (The defense was that the state had not borne its burden of proving that the accused was the rapist or properly identified as the person who had committed the rape.)

As always, in circumstances such as the present, the reviewing court is faced with the dilemma that, by seeming to excuse a constitutional shortcut as “harmless” under limited circumstances, it will apparently approve such shortcuts for future use. We have attempted, as plainly as we can, to state once again that the use of deposition instead of live testimony is constitutionally disfavored and that it is permitted only in extremely limited circumstances, not here present.

We hope that future reversals will not be required to enforce this constitutional command, and that our characterization of this error as non-reversible under the very limited circumstances here shown should not be taken as a warrant for its use, lending to court reversal in the future by ignoring the constitutional requirement of confrontation of live witnesses before a trial jury required in criminal trials.

Other Assignments of Error

Of the other assignments of error, the most serious is presented by Assignment No. 18.

This assignment pertains to improper closing argument by the assistant district attorney: Pointing out the proven respectability and reliability of the victim, the prosecutor urged that “she should not be condemned as a perjuror” by acquitting the defendant. The defendant’s objection to this argument was overruled.

The argument was improper as injecting an issue broader than and irrelevant to the issue of the defendant’s guilt or innocence. See American Bar Association Standards Relating to the Prosecution Function, Standard 5.8(d). We do not find it reversible chiefly because, in subsequent closing argument, the defendant fully explained to the jury that an acquittal did not impugn the integrity or truthfulness of the obviously fair and honest complaining witness, who had fully admitted areas of uncertainty in her identification, but who might nevertheless be mistaken in her identification.

This type of argument should not recur, however. It improperly injects the prosecutor’s unnecessarily prejudicial, irrelevant, and inadmissible opinion as to an issue not concerning the guilt or innocence of the accused. Cf. 5 Wharton’s Criminal Law and Procedure, Section 2034, p. 345 (Anderson ed., 1957).

The other assignments of error are not briefed and are presumed abandoned: Assignments 3, 4 (motions to quash the grand jury and petit jury venires); Assignments 6, 7 (questions objected to as subjective or leading); Assignments 11, 12 (testimony relating to a comb and its admission objected to on ground of lack of connexity); Assignments 16, 20 (motions for directed verdict and for new trial denied) ; and Assignment 17 (objection to state’s brief rebuttal testimony as to the defendant’s height).

Our examination of the record discloses no merit to these bills.

Decree

For the reasons assigned, we affirm the conviction and sentence.

Affirmed.

MARCUS, J., concurs.

SANDERS, C. J., concurs in the result only.

SUMMERS, J., concurs in the result only, and assigns reasons.

DIXON, J., dissents.

SUMMERS, Justice

(concurring).

In addition to the conflicting and inconsistent statements contained in the opinion relative to the confrontation clause, I cannot agree that the opinion fulfills the Court’s obligation to assign reasons for its decisions. A number of assignments of error are disposed of by a cursory mention of the issues involved and a bare declaration that the assignments are without merit. Therefore, I concur in the result only. Fortunately, however, the opinion cannot serve as precedent, for it has not received a majority vote, except for the result.

      . La.C.Cr.P. art. 735, subd. A provides that “domiciliary service” shall be made by leaving the subpoena “at the dwelling house or usual abode” of the person served. Prior to enactment of La.C.Civ.P. art. 1236 by Act 778 of 1975, a year after the present trial, valid service could not be made upon a physician through personal service upon a clerical employee of the physician at his office. See Warrington v. Employers Group Insurance Companies, 207 So.2d 207 (La.App. 4th Cir. 1968), certiorari denied 252 La. 118, 209 So.2d 42 (1968).

      . We note that the present trial prosecutor was the same assistant district attorney whose refusal to follow confrontation requirements resulted in this court’s reversals in Moore, Kaufmam, and Sam, cited above, and resulted in the federal court’s setting aside the conviction in State v. Holmes, 258 La. 221, 245 So.2d 707 (1971), see Civil Action 72-178, United States District Court, Middle District of Louisiana, under circumstances strongly reminiscent of the present.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Rudy BERAIN.
    No. 57396.
    Supreme Court of Louisiana.
    Jan. 23, 1976.
   In re: State of Louisiana applying for Supervisory Writs and for Stay Order.

Writ denied: No abuse of discretion shown under the facts alleged. This court ordinarily does not interfere with interlocutory rulings of the trial court in the absence of irreparable change of position.

SUMMERS and MARCUS, JJ., are of the opinion the writ should be granted.

SANDERS, C. J.,

is of the opinion that the preliminary hearing must be limited to bail and perpetuation of testimony.


author: PER CURIAM.

text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. W. A. BOOK, Clerk of Court, 7th Judicial District Court, Catahoula Parish.
    No. 57117.
    Supreme Court of Louisiana.
    Jan. 28, 1976.
   PER CURIAM.

Petitioner’s probation on the charge of carnal knowledge was revoked because he was subsequently convicted of the crime of simple kidnapping. His appeal on the kidnapping conviction, which is now final, resulted in an affirmance of that conviction. State of Louisiana v. Smith, La., 323 So.2d 797. However, this court in State ex rel. Smith v. Henderson, La., 323 So.2d 797, ordered an evidentiary hearing to determine whether petitioner’s conviction for simple kidnapping constituted double jeopardy. If that hearing results in a finding by the lower court or this court that petitioner’s right against double jeopardy were violated, petitioner may then seek appropriate relief from the revocation of his parole.


author: TATE, J.,

text:
    STATE of Louisiana v. Milton GREEN.
    No. 57432.
    Supreme Court of Louisiana.
    Jan. 22, 1976.
   In re: Milton Green applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. Relator not entitled to the relief sought at this time.

TATE, J.,

concurs for the additional reason that the failure of the State to locate the victim-witness so shortly after the offense does not entitle the accused to' relief at this time, upon the substantial showing of the offense and of his connection with it.