text:
    Terry VAN FUQUAY, Appellant, v. STATE of Florida, Appellee.
    No. NN-297/T1-75.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.
    Christopher W. Wickersham of Becks & Becks, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

Appellant has raised the issue of incompetency of privately retained counsel in a criminal matter. In effect, he says he was denied due process and a fair trial because his trial counsel, not the same person as his appellate counsel, was incompetent and ineffective. This question has been answered in various cases and various Florida district courts where it has been held that no state action is involved in the alleged denial of due process or fair trial and appellant cannot complain about the ineffectiveness of his counsel whom he chose. State v. Garmise, 382 So.2d 769 (Fla.3d DCA 1980); Spencer v. State, 385 So.2d 119 (Fla. 1st DCA 1980).

Appellant has not shown us reason to differ from the holdings in those cases so we decline to do so. In fact, even though we have on one occasion ordered appellant to supplement the record on appeal, with which order he less than completely complied, we have no record from the trial to determine whether counsel was incompetent. Although we are aware of the Rule 9.200(f)(2), Florida Rules of Appellate Procedure, which requires our affirmative action when an incomplete record is discerned, we are certain some limit should be reached at which we shall no longer prosecute the appeal for appellant. In order to demonstrate to the trial court and this court that appellant was denied effective assistance of counsel at trial it surely must be a starting point to show from the record at trial the particular instances or examples of the allegations of incompetence.

Based upon the above cited cases and because the record concerning this appeal from a denial of collateral relief under Rule 3.850, Florida Rules of Criminal Procedure, was not properly presented to the court below or this court, we affirm the order denying post-conviction relief. We are aware that some courts have held privately retained counsel to be so incompetent so as to turn the trial into a “farce” or “mockery” and thus cause an accused to be denied due process or effective assistance of counsel. We are also of the understanding our state Supreme Court may soon decide that issue in a case styled Vagner v. Wainwright, No. 56,201, which was referred to in Garmise as “Vargas.”

The order denying appellants petition for post conviction relief is affirmed.

AFFIRMED.

ORFINGER, J., and EVANS, VERNON W., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    David SINGLETON, Appellant, v. STATE of Florida, Appellee.
    No. 79-1204/T4-576.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 1980.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Appellant was charged with possession of heroin, possession of heroin with intent to sell, and sale of heroin. All three counts arose from the same transaction of the same heroin. Appellant was tried and timely objected to the testimony of one of the state’s witnesses as a violation of the Williams Rule. Appellant was convicted of all three counts.

The state sought an enhanced penalty pursuant to the habitual offender statute. Without setting forth any statutory findings, the trial court sentenced the appellant to an extended term which included a period of probation following the imprisonment. One of the conditions of that probation authorized any probation supervisor and any law enforcement officer to search the appellant, his vehicles, and his premises at any time.

The testimony that was objected to as a Williams Rule violation was that the appellant had told the state witness that the appellant lived in Miami and came to Titus-ville to sell heroin and that while in Titus-ville he stayed at the apartment where the sale was supposed to have occurred. We do not think this testimony contravened Williams.

The other issues raised by this appeal have never been presented to the trial court to give the trial court an opportunity to rule upon them. Based upon the principles set forth in Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980); Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1978); and Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976), we affirm the judgments and sentences without prejudice to the appellant to properly raise the issues before the trial court.

AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . Section 893.13(l)(a)(l), Florida Statutes (1977).

      . Section 893.13(l)(a)(l), Florida Statutes (1977).

      . Section 893.13(l)(e), Florida Statutes (1977).

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . See Wright v. State, 348 So.2d 633 (Fla. 3d DCA 1977) and Shaw v. State, 264 So.2d 95 (Fla. 1st DCA 1972).

      . Section 775.084, Florida Statutes (1977).

      . See Eutsey v. State, 383 So.2d 219 (Fla. 1980) and Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980).

      . See Grubbs v. State, 373 So.2d 905 (Fla. 1979) and Wood v. State, 378 So.2d 110 (Fla. 5th DCA 1980).


author: LETTS, Chief Judge.

text:
    STATE of Florida, Appellant, v. James VAN JOHNSON, Appellee.
    No. 79-2154.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Michael J. Satz, State’s Atty. and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Victor Tobin, Fort Lauderdale, for appel-lee.
   LETTS, Chief Judge.

This cause is reversed. We see no need to belabor the facts. On July 24, 1980, the Supreme Court in Butterworth v. Fluellen (Fla. Case No. 57,385, Opinion filed July 24, 1980) receded from Negron v. State, 306 So.2d 104 (Fla.1974), for the very reason that we expressed doubt about when we followed Negron in State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978), cert. den. 365 So.2d 715 (Fla.1978).

The Supreme Court having receded from Negron, it is now our turn to recede from Reese.

REVERSED AND REMANDED.

BERANEK, J., and WESSEL, JOHN D., Associate Judge, concur.

      . See also the Florida Bar, Rules of Criminal Procedure, 385 So.2d 1367 (Fla.1980) which has modified FRCP 3.191(d), (e).


author: PER CURIAM.

text:
    Russell J. YOUNG, Appellant, v. NORM BURG CONSTRUCTION COMPANY, Appellee.
    No. 79-2279.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Allan L. Hoffman, West Palm Beach, for appellant.
    John L. Phillips, of Magill & Reid, P. A., Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Fidelity Const. Co. v. Arthur J. Collins & Son, Inc., 130 So.2d 612 (Fla.1961); Jones v. Florida Power Corp., 72 So.2d 285 (Fla.1954); Brickley v. Gulf Coast Const. Co., 153 Fla. 216, 14 So.2d 265 (1943).

LETTS, C. J., and ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    ADAM METAL SUPPLY, INC., a New York Corporation, Appellant, v. ELECTRODEX, INC., a Florida Corporation, Appellee.
    No. 79-921.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1980.

      Douglas A. Wallace, Bradenton, for appellant.
    Richard H. Bailey and Curtis Hamlin of Harrison, Harllee, Porges & Bailey, Braden-ton, for appellee.
   PER CURIAM.

This appeal involves the application of several sections of the Uniform Commercial Code. Appellee contracted to buy from appellant 200 sheets of Coilzak, a special kind of aluminum sheeting, for a total sales price of $3,069. Appellee intended to use the Coilzak in the manufacture of lighting fixtures which were to be sold to a third party (WILD) pursuant to a contract requiring the use of Coilzak aluminum in the fixtures. In the course of processing the shipment, appellee concluded that the shipment it had received was not Coilzak and refused to pay for it.

Appellant sued for the purchase price. The court denied appellant any relief because it found that the shipment was nonconforming and thereby entitled appellee to a set-off of $3,069. Appellant does not contest the finding that the aluminum shipment was not Coilzak but argues that ap-pellee accepted the shipment and therefore was liable to pay for it.

It does appear that appellee accepted the shipment and that thus under Section 672.607(1), Florida Statutes (1979), it was liable for the contract price. However, it notified appellant of the nonconforming use within a reasonable time after discovery according to the requirements of Section 672.607(3)(a), Florida Statutes (1979). Consequently, under Section 672.714, Florida Statutes (1979), it was entitled to damages for the nonconforming shipment which it could subtract from the contract price of the shipment pursuant to Section 672.717, Florida Statutes (1979). Insofar as this analysis goes, we are in agreement with the trial court, but we must quarrel with its finding that appellee’s damages equaled the contract price.

In failing to provide appellee with Coil-zak, appellant breached an express warranty to appellee that the goods appellee was to receive would be Coilzak. § 672.313, Fla.Stat. (1979). That part of Section 672.-714 which deals with damages for breach of warranty is subsection (2), and it reads as follows:

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.

Appellee was able to use 40% of the shipment in the manufacture of smaller fixtures which did not require Coilzak aluminum, and appellee was able to sell these fixtures to WILD. Appellee did not demonstrate that the value of the forty per cent of the shipment which it used was less than the contract price. Therefore, appellee failed to prove damages for breach of warranty as to forty per cent of the shipment.

WILD declined to take any more fixtures without Coilzak aluminum, so the balance of thé shipment had only scrap value to appellee. Since the court gave appellant the right to retrieve the unused aluminum, appellant could not claim that appellee even had the benefit of scrap value. Therefore, appellee was entitled to damages of sixty per cent of the contract price or $1,841.40. It should be noted that in applying Section 672.714(2), we have used the' value of the aluminum after it was sheared rather than the value of the aluminum at the time of its acceptance. However, the “special circumstances” of this case, namely the fact that it was necessary to shear the aluminum in order to determine that it was not Coilzak, mandates that result and makes it perfectly proper under Section 672.714.

Appellee also proved that it incurred an expense of $200 in shearing all of the aluminum sheets before it realized the nonconforming use. The shearing costs applicable to the unusable portion of the shipment were $120 ($200 X 60%). Thus, ap-pellee suffered incidental damages in that amount as permitted by Section 672.714(3).

Appellee’s total damages were $1,961.40. Therefore, appellee was only entitled to a set-off of that amount against the contract price of $3,069. Accordingly, we reverse with directions to enter judgment for appellant in the sum of $1,107.60.

REVERSED AND REMANDED WITH DIRECTIONS.

SCHEB, C. J., and GRIMES and DAN-AHY, JJ., concur.


author: GRIMES, Judge.

text:
    Ed T. JONES, Appellant, v. Odessa RAINEY and Phil Gotti, as Co-Personal Representatives of the Estate of Marie J. Rainey, deceased, Appellees.
    No. 80-410.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1980.
    Marcus J. Ezelle of Burton, Evers & Ezelle, P.A., Wauchula, for appellant.
    John J. Nedza, Bradenton, for appellees.
   GRIMES, Judge.

Appellant complains of an adverse summary judgment in his suit on a promissory note against the personal representatives of the estate of Marie J. Rainey, deceased.

On February 16, 1959, Ms. Rainey executed a note under seal payable on demand to appellant in the amount of $9,000. At that time, the applicable statute of limitations was twenty years. § 95.11(1), Fla. Stat. (1959). As part of a general revision concerning the limitation of actions, the legislature in 1974 eliminated the twenty year limitation period for written instruments under seal, thereby reducing the limitation period for such a note to five years. § 95.11(1) & (2), Fla.Stat. (1979). The effective date of the new act was January 1, 1975, but it contained a savings clause which provided that any action which would be barred when the act became effective though not barred under prior law could be commenced before January 1, 1976. § 95.-022, Fla.Stat. (1979).

Appellant did not commence this action until October 10, 1979. Therefore, if we assume that the statute was running on January 1, 1975, the last date for filing suit on the note would have been December 31, 1975. Carpenter v. Florida Central Credit Union, 369 So.2d 935 (Fla. 1979). However, this does not take into account the fact that Section 95.031(1), Florida Statutes (1979), which became effective June 27,1975, specifies that for purposes of the statute of limitations the cause of action on a demand note accrues upon the first written demand for payment.

The only indication in the record of a prior written demand for payment was appellant’s filing of a claim against Ms. Rai-ney’s estate on August 24,1979, and there is nothing on file to suggest that appellant’s cause of action accrued before that date. Thus, the court erred in granting appellee a summary judgment predicated upon the statute of limitations. Accordingly, we reverse the summary judgment and remand the case for further proceedings including the development of the issue of when the first written demand for payment was made.

DANAHY and CAMPBELL, JJ., concur.


text:
    BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Appellant, v. Harry L. WILSON, Appellee.
    No. 80-463.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1980.
    Robert A. Ginsburg, County Atty., for appellant.
    Dennis M. O’Connor, Peters, Short, Max-ey & Morgan and Eugene M. Short, Jr., Coral Gables, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court, 382 So.2d 431, was entered on April 15,1980 affirming the order of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 386 So.2d 556, by its opinion and judgment filed July 25, 1980 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate in this court heretofore issued in this cause on April 15,1980 is withdrawn, the judgment of this court filed April 15, 1980 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


author:
DIXON, Justice. CALOGERO, Justice, DENNIS, Justice, BLANCHE, Justice WATSON, Justice.
     DIXON, Justice CALOGERO, Justice,

text:
    STATE of Louisiana v. Carlos R. POREE.
    No. 64308.
    Supreme Court of Louisiana.
    Nov. 1, 1979.
    On Rehearing March 3, 1980.
    Order March 7, 1980.
    See also, 386 So.2d 1341.
    Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On November 7,1977, within the space of a few hours, Carlos Poree shot ten people. Among the targets of his violence only two individuals, his estranged wife and her father, were known to him; the others were all men he encountered on the streets of New Orleans and in the offices of a brokerage firm. One of his victims died of his wounds, and Poree was indicted for murder in the first degree. Poree entered pleas of not guilty and not guilty by reason of insanity, in accordance with C.Cr.P. 552(3). A sanity commission, appointed pursuant to C.Cr.P. 650, found the defendant incompetent to stand trial by reason of present insanity, and he was transferred to the East Louisiana State Mental Hospital for observation and evaluation. Five months later, after a course of psychotropic medication, defendant was determined legally sane and competent to stand trial.

At trial, all of the facts were stipulated by the prosecution and the defense so that Poree’s sanity was the only issue for the jury. After hearing evidence on this issue, the jury returned a verdict of guilty as charged. The defense moved for a new trial on two grounds; one, that of jury

misconduct, need not concern us here. The other ground was that the verdict was contrary to the law and the evidence because there was no evidence to refute the defendant’s proof of insanity. The trial court denied the motion for a new trial, defendant was sentenced to life imprisonment, then took an appeal.

Under the Louisiana statutory scheme governing insanity in criminal cases, a defendant is exempt from criminal responsibility “[i]f the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question . . . ” R.S. 14:14. However, R.S. 15:432 establishes a legal presumption that the defendant is sane and responsible for his actions. This statute also provides that the effect of this presumption is to relieve the State of the necessity of any proof of defendant’s sanity, but that the presumption of sanity may be destroyed by rebutting evidence on the part of the defendant. Under C.Cr.P. 652, insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence.

At trial the defendant’s evidence of insanity at the time of the offense consisted of the testimony of his wife and his father-in-law, both still suffering the physical effects of his attacks, and of two psychiatrists. Both Mrs. Poree and her father testified that the defendant was a cheerful, peaceful person and an ideal husband and son-in-law until about five months before the shootings. At that time, according to Mrs. Poree, the defendant began to demonstrate a fear of airplanes flying overhead, to shut himself up in the house, to secretively take notes while watching television, to be obsessed with jealousy of his wife, and to engage in outbursts of anger of increasing frequency and duration. Because of these changes in Poree’s behavior, the couple began to consult a psychologist some weeks before the shootings, and Mrs. Poree was forced to return to the home of her parents. Mrs. Poree’s father testified that, on the morning of the shootings, the defendant was abnormal in speech, and appearance, that he looked insane, and that he seemed unable to understand what was said to him. Of the psychiatrists who testified for the defense, one had first seen the defendant immediately after the shootings, the other two months later. On the basis of their own examinations of the defendant, defendant’s responses to medication, and others’ reports of defendant’s behavior, both experts stated unequivocally that the defendant was suffering from paranoid schizophrenia and that at the time of the offense he was incapable of distinguishing right from wrong.

The prosecution’s evidence on the issue of sanity consisted of the testimony of four employees of the brokerage firm and of the two police officers who arrested the defendant. One employee testified only as to the physical layout of the brokerage office and to the fact that, at the time of the shooting, she had a brief glimpse of a man with a gun; the second employee testified only that the defendant hit her with his hand; the third testified that he saw the defendant stop at the desks at which three employees were working and shoot the two male employees but not the female; the fourth testified that the defendant’s motions in shooting him were calm and cool. The content of the police officers’ testimony was that, after an initial movement toward his gun, the defendant offered no violent resistance to being taken into custody and that, in response to one officer’s spontaneous exclamation of “What the hell is going on here?” the defendant said, “I’m not making any statements until I speak to my attorney.” With regard to the latter point, one of the psychiatrists, testifying for the defense earlier in the trial proceedings, stated that this comment by defendant was not incompatible with a diagnosis of paranoid schizophrenia and insanity at the time of the offense, but could rather be explained by the defendant’s delusion that the police knew what he was doing and were controlling his behavior. It should also be noted that at the time of his arrest, defendant had no attorney and no funds with which to engage one; he was represented at trial by an attorney appointed by the court.

It is clear, then, that defendant’s evidence of insanity was uneontroverted, and that his motion for a new trial should have been granted. Under present jurisprudence, however, this court will review the denial of a new trial motion only when the motion is grounded on a claim of no evidence of the crime charged or an essential element thereof. State v. Thompson, 366 So.2d 1291 (La. 1978), State v. Williams, 354 So.2d 152 (La. 1977). Because such a claim presents a question of law, it evokes the appellate jurisdiction of this court, which is limited in criminal cases by Art. V, § 5(C) of the Louisiana Constitution of 1974 and C.Cr.P. 858 to errors of law. When, on the other hand, a new trial motion claims that the verdict was contrary to the law and evidence, it has consistently been held that the denial of such a motion presents nothing for this court to review- State v. Mouton, 366 So.2d 1336 (La. 1978), State v. Edwards, 354 So.2d 1322 (La. 1978).

The rule that appellate review is available on a claim of no evidence functions to protect the defendant against the denial of due process which would occur if a guilty verdict were returned after the prosecution failed to introduce any evidence as to an element of the crime which it is required to prove. This rule is broad enough to assure due process in almost all cases; its deficiency becomes apparent only in a situation like the one now before us, where the trier of fact must make a determination of guilt or innocence on the basis of evidence for which the burdens of production and persuasion are on the defendant, and to which the prosecution need only respond in rebuttal. Due process requires that a defendant in this posture must also have access to review when he claims that he was found guilty of an offense despite the fact that the evidence of his insanity was uncontroverted.

The necessity of such review becomes apparent when we recognize the peculiar position which the determination of sanity or insanity occupies under the current law of this State. The due process clause of the Fourteenth Amendment of the United States Constitution demands that the state must prove, beyond a reasonable doubt, every fact necessary to constitute the offense charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Although it has been held that due process is not violated where insanity is treated as an affirmative defense which the defendant must prove, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Patterson court also noted that a majority of jurisdictions have followed the lead of the federal courts in “shoulder(ing) the burden of proving the sanity of the accused;” id. at 203, 97 S.Ct. 2323, 53 L.Ed.2d 287. Louisiana is one of those states in which insanity is still an affirmative defense which the defendant must prove by a preponderance of the evidence. The burden of production and persuasion which this allocation of responsibility places on the defendant is not only a weighty one; it is also as crucial, in and of itself, to the fact finder’s determination of guilt or innocence as is any one of the elements which the prosecution must prove.

As we have indicated, the presumption of sanity which serves to shift the burden of proving insanity to the defendant is a rebuttable presumption: upon the defendant’s production of evidence of insanity, the presumption is destroyed, and if the defendant’s evidence outweighs that of the state, the fact finder must find him not guilty by reason of insanity. This system is constitutionally mandated; in Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560, 570 (1979), the United States Supreme Court acknowledged a “premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend.” (Emphasis added). Obviously, the affirmative defense of insanity would be totally devoid of meaning if the trier of fact were free to find the defendant guilty even when he proves insanity by a preponderance of the evidence. And, in a capital case such as the one before us, “[jjuries . . . (would) have practically untrammeled discretion to let an accused live or insist that he die;” Douglas, J., concurring, Furman v. Georgia, 408 U.S. 238, 248, 92 S.Ct. 2726, 2731, 33 L.Ed.2d 346, 355 (1972).

The motion for a new trial on the ground that the verdict is contrary to the law and evidence provides one form of relief to a defendant who finds himself in the situation hypothesized above, at the trial court level. If such a motion is denied, however, the defendant may have no access whatsoever to appellate review, even where the prosecution has introduced no evidence proving his sanity. In light of the fact that such review is available when defendant makes a no evidence claim about a fact that the prosecution must prove, it is apparent that the defendant who pleads insanity suffers a double disability: he must not only carry, on a crucial issue, the burdens of production and persuasion which are generally allocated to the state, but he must also do so without any access to appellate review. Yet the right to judicial review is guaranteed by Art. 1, § 19 of the Louisiana Constitution of 1974, and the salience of that right under the due process clause of the Fourteenth Amendment of the United States Constitution was recently reaffirmed in Jackson v. Virginia, supra.

We therefore hold that, as a matter of law, defendant was denied due process when he was found guilty as charged, despite his uncontroverted evidence of insanity, and that his motion for a new trial should have been granted. •

The conviction and sentence are reversed, and the case is remanded to the trial court.

SUMMERS, C. J., and MARCUS, J., dissent.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in the majority opinion authored by Justice Dixon, and I join in the reasons assigned by Justice Dennis in concurrence because I do not believe that the state should be barred from attempting to secure a verdict of not guilty by reason of insanity, with its attendant consequences (the defendant shall be committed to a state mental institution in accordance with La.C.Cr.P. art. 654-660, etc.).

Inasmuch as defense counsel stipulated that defendant shot the victim, and the sole issue at trial was sanity v. insanity, release of the defendant hereafter on double jeopardy principles would subvert the ends of justice.

DENNIS, Justice,

concurring.

I respectfully concur in the majority’s reversal of the defendant’s conviction and sentence. The evidence does not provide a rational basis for a finding that the defendant Poree knew right from wrong at the time of the offense; therefore, the trial judge erred in failing to grant the motion for new trial. However, I believe that the decree requires clarification regarding what is to be done by the trial court on remand.

This Court’s decision is that as a matter of law the defendant cannot be found guilty, based on the evidence in the record. Accordingly, a violation of the prohibition against double jeopardy will result under Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, if, on remand, Poree is again placed in jeopardy of being found guilty under the charge against him; the only verdicts legally possible in a new trial, therefore, are not guilty and not guilty by reason of insanity. Consequently, this Court’s decree should reverse the conviction and sentence and remand for a new trial to determine if the defendant is not guilty or not guilty by reason of insanity, prohibiting any verdict of guilty.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The jury apparently did not believe evidence of defendant’s insanity was sufficient to rebut the presumption of sanity. The sufficiency of the evidence on this issue was one for jury determination and not this Court’s.

ON REHEARING

WATSON, Justice.

The State’s application for rehearing was granted to reconsider the conclusion “. . . that defendant was denied due process when he was found guilty as charged, despite his uncontroverted evidence of insanity . .. . ”.

The general facts are stated accurately in the original opinion. Poree went on a shooting spree on November 7, 1977. He shot ten people: two victims were his estranged wife and father-in-law; the others were men encountered on the streets and in a stockbroker’s office. One, George Held, died and Poree was indicted for first degree murder (Tr. 1). At trial, all of the facts were stipulated by the prosecution and the defense; the only issue for the jury was that of Poree’s insanity. The jury heard the testimony of two psychiatrists, Dr. Aris Cox and Dr. Herman Colomb; the testimony of Poree’s wife, Dianna Marie Poree, and father-in-law, Alvin Broussard; and the testimony of persons present in the brokerage office and the arresting police officers.

The jury found the defendant guilty as charged. A sentencing hearing was immediately held which consisted only of opening statements by the State and the defense, a stipulation that the defendant had no criminal record, and the closing statements. The jury then returned a verdict of life imprisonment without the benefit of probation, parole or suspension of sentence (Tr. 18).

The defense filed a motion for new trial claiming two grounds: (1) that the verdict was contrary to the law and the evidence because there was no evidence to refute the contention that defendant was legally insane at the time of the commission of the offense, and (2) misconduct by the jury in discussing the case prior to having been instructed by the court.

The trial court denied the motion for new trial, sentenced the defendant in accordance with the verdict of the jury, and defendant appealed.

ASSIGNMENT OF ERROR 3a. THE INSANITY DEFENSE

On original hearing the majority reviewed thoroughly the evidence bearing on the question of defendant’s sanity at the time of the commission of the offense and concluded that “. . . the presumption of sanity which serves to shift the burden of proving insanity to defendant is a rebut-table presumption: upon the defendant’s production of evidence of insanity, the presumption is destroyed, and if the defendant’s evidence outweighs that of the State, the fact-finder must find him not guilty by reason of insanity.” We now find that the majority on original hearing erred in this conclusion.

Essential to an analysis of the assignment of error is the consideration of the function of the jury and the reviewing court in criminal cases under our State constitutional and statutory law, particularly as related to the plea of not guilty by reason of insanity.

The Louisiana Constitution of 1974 provides for the right of an accused to trial by jury. As applicable in Poree’s ease, Article 1, Section 17 provides in part:

“A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.”

Additionally, the person who has been tried by a jury is assured of the right of appeal by Article 1, Section 19 which provides that a person shall not be imprisoned or required to forfeit rights or property “. . . without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.”

Appeal to the Louisiana Supreme Court is provided in criminal cases by Article 5, Section 5(D). The duty of the Supreme Court when considering matters on appeal is set forth with particularity in Article 5, Section 5(C) as follows:

“(C) Scope of Review.
“Except as otherwise provided by this constitution, the jurisdiction of the su-' preme court in civil cases extends to both law and facts. In criminal matters, its appellate jurisdiction extends only to questions of law.”

As recently as 1976 the scope of review as provided in Article 5, Section 5(C) has been authoritatively stated by this court in a unanimous opinion as applicable to the issue of insanity. Justice Tate, writing for the court in State v. Fletcher, 341 So.2d 340 (La.1976), discussed the proper review of a jury’s factual finding of sanity as follows:

“Assignment 21 also urges that the accused should have the right to appellate review of the jury’s factual finding of sanity at the time of the offense. Assignment 11 raises the issue that Louisiana’s statutory scheme for the trial of the defense of not guilty by reason of insanity deprives him of due process and equal protection in violation of constitutional right; one reason advanced is that there is no statutory scheme to ascertain, separately from the determination of guilt, the number of jurors who specifically voted against the accused’s plea of not guilty by reason of insanity.
“Without summarizing the subtle arguments advanced by the accused’s counsel, it is sufficient to state that we find no constitutional requirement for appellate review of the defense of insanity at the time of the crime, nor for separately polling the jury as to this factual defense. The unanimous general verdict of the jury, properly instructed as to factual defense of insanity, constitutes a factual rejection of this defense as well as of the others urged.
“The appellate jurisdiction of this court to review this factual issue is limited to issues of law by our state constitution, La.Const. Art. 6, Section 5(B). We are cited to no persuasive authority that this historic limitation of review, common to that of many American jurisdictions, offends constitutional guarantees of due process and equal protection.” 340 So.2d 343, 344.

Following the constitutional mandate of reviewing only issues of law in criminal appeals, this court has consistently held that it may consider error in the denial of a motion for new trial only when the defendant contends that there is no evidence of the crime charged or of an essential element of the crime. This contention presents a question of law rather than a question of fact. State v. Arnold, 351 So.2d 442 (La.1977). See also State v. Madison, 345 So.2d 485 (La.1977) where this court noted that “. . .we may not consider the sufficiency of the evidence, but only whether there was some evidence of each essential element of the crime charged.” 345 So.2d 495.

Applying these rules to the instant appeal, it is apparent that the question before us is whether there was any evidence before the jury on which it could reach the conclusion that the defendant had failed to prove-his defense of insanity.

The statutory law is clear:

“The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.”

This has been the rule in Louisiana for many years. See State v. Scott, 49 La.Ann. 253, 21 So. 271 (1897). The defendant is not required to prove insanity beyond a reasonable doubt but only by a preponderance of the evidence. State v. Stewart, 238 La. 1036, 117 So.2d 583 (1960).

The thrust of defendant’s argument is that all of the evidence pointed to his insanity and there was no evidence of sanity, or as stated by the original majority opinion, the evidence of insanity was uncontrovert-ed.

It is correct that the two psychiatrists who examined Poree gave their opinions that at the time of the offense he did not know the difference between right and wrong, which is the test of insanity under the Louisiana Criminal Code. LSA-R.S. 14:14 reads as follows:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.”

Dr. Aris Cox, who examined Poree some ten times, testified that in his opinion Poree was unable at the time of the commission of the crime to distinguish right from wrong (Tr. 102). Likewise, Dr. Colomb, who saw Poree only once about twenty-three days after the offense, indicated that Poree was unable to distinguish right from wrong (Tr. 128). Dr. Cox, while consistent in his view that Poree was legally insane and a paranoid schizophrenic, admitted that Poree was somewhat old to develop that illness (Tr. 96). Also, Dr. Cox indicated that there was some indication of an understanding of wrongdoing in Poree’s request to talk to an attorney.

Dr. Colomb also testified that all indications were that Poree was legally insane, but that Poree’s failure to confront the two police officers violently when he faced their drawn guns indicated a type of rational decision making on Poree’s part. He also stated that following confrontation by the officers, Poree’s request to speak to an attorney before he would say anything to anyone was an act of discernment, although the doctor said it did not necessarily mean that the defendant realized he had done wrong.

The other witnesses called by the defendant were Poree’s estranged wife and her father who described the incident which occurred on the morning of November 7, 1977, when Poree came to the father’s house located at 1015 Adam Street in New Orleans. There the defendant shot both of them, but not mortally.

Called in rebuttal on the issue of insanity by the State were a number of witnesses who worked at the stockbroker’s office on Common Street, where the later shooting episode occurred and where George Held received his fatal wounds. They described Poree’s entry into the office and his shooting various males, but no females, who were present on the premises.

The evidence that is emphasized by the State as reflecting Poree’s ability to distinguish between right and wrong is that of the police officers who arrested him. The first officer, William Schultz, testified about the apprehension of the defendant near the corner of Common and Baronne Streets. He, along with his partner, Detective Stan Barre, were traveling in an unmarked police car when they heard a sound that was similar to a gunshot. They got out of the police car and observed Poree running across an intersection, while a number of people were yelling and throwing themselves on the ground. Officer Schultz observed that Poree had a revolver in his right hand and then saw him place it in his waist-band. When Poree approached Officer Schultz, the officer had his revolver in his hand, stepped forward, and ordered Poree to freeze. When he did so, Poree started to reach for his gun but Schultz said “Police. Turn around and put your hands on the glass.” (Tr. 189). Poree hesitated, but complied. The officer retrieved the gun, the barrel of which was still hot. The officer placed Poree face down on the pavement and handcuffed his hands behind him. He then got Poree on his feet and put him in front for protection, fearing there might be other gunmen in the area. People pointed at Poree and said, “that’s him; that’s him.” The officer then said to Poree, “What the hell is going on here?”. As he did so Poree said, “I’m not making any statements until I speak to my attorney. (Tr. 191)

The State emphasizes that it is important to note that when Poree was confronted by the armed officers, he possessed sufficient discernment to avoid going for his weapon or offering any defense to the arrest and that when asked about the situation by the officer, Poree declined to make any statement until talking to a lawyer. Detective Barre confirmed the account given by Officer Schultz in its various aspects. His recollection of what Poree said was “I’m not going to say anything until I speak to my attorney.” (Tr. 197)

There is no question that the evidence of Poree’s sanity, as reflected by the testimony of the psychiatrists and the lay witnesses, is weak. However, it is impossible to conclude that there is no evidence of sanity. It is also important to remember that every person is presumed to be sane. State v. Chinn, 229 La. 984, 87 So.2d 315 (1956). It is presumed that the jury was charged as to the presumption of sanity, and that the defendant has the statutory burden of proving his insanity.

The jury concluded that Poree had not borne his burden of establishing the defense of insanity. Our review is limited by the constitutional and statutory provisions, cited supra, to considering whether the trial court erred in failing to grant a new trial on the basis that there was no evidence to establish sanity. The record contains some evidence which indicates a capability of “distinguishing between right and wrong” (LSA-R.S. 14:14, cited supra). Therefore, we cannot hold that the trial court erred in denying the motion for new trial based on the no evidence contention. The assignment of error relating to evidence of sanity is without merit.

ASSIGNMENT OF ERROR NUMBER 3b.

The other claim of error on appeal is that there was misconduct by the jurors in discussing the case among themselves prior to being charged by the judge. At the hearing on the motion for new trial, counsel for defendant proposed to call the jurors and alternate juror to be examined concerning possible jury misconduct. The State objected on the basis of LSA-R.S. 15:470 which provides that a juror is not competent to impeach the verdict of the jury. The trial court sustained the objection and denied the motion for a new trial. It is clear from the statement by defense counsel (Tr. 202) at the hearing on the motion for new trial that the questions he proposed to ask the jurors would require them to violate the statutory provision. The trial court properly sustained the State’s objection.

There is no merit to this assignment of error.

DECREE

The decree of the original opinion is recalled and set aside. The conviction and sentence of the defendant are affirmed.

AFFIRMED.

DENNIS, J., dissents for reasons assigned by DIXON, J.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

None of the evidence presented by the state is inconsistent with the testimony of the psychiatrists that defendant did not know right from wrong at the time of the offense. Nonetheless, the majority bases its holding on the now outmoded “some evidence” rule and ignores Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). No rational trier of fact could have found Poree sane beyond a reasonable doubt, nor does the majority indicate otherwise.

In the record in this court on appeal are the findings of two additional psychiatrists who, in conjunction with Dr. Colomb, formed the sanity commission appointed by the court to determine whether Poree was competent to stand trial. In a letter written to the court approximately six weeks after the offense, all three experts stated that they found that Poree was not only unable to assist his counsel but was also insane, unable to appreciate the usual, natural and probable consequences of his acts, and unable to distinguish right from wrong. The conclusions of all three psychiatrists were based on their interviews with prison personnel and members of the prison’s medical and nursing staff, as well as on personal observation of the defendant himself, in one case involving six observations conducted during a period beginning about three weeks after the shootings. The record also shows that in a hearing held to determine whether Poree had regained the capacity to stand trial as a result of the administration of psychotropic medication, yet another psychiatrist testified that upon his admission to the East Louisiana State Hospital for such treatment, Poree seemed to be suffering from schizophrenia accompanied by hallucinatory, delusional experiences.

In arguing before this court on rehearing, the state attacked the original majority opinion on the ground that it accorded greater weight to the expert psychiatric testimony than to the testimony of the state’s lay witnesses. Of course, lay witnesses are usually not in a position to testify as to whether a defendant was able to distinguish right from wrong at the time of an offense. The testimony of both the state’s lay witnesses and the defendant’s lay witnesses could therefore in no way be conclusive on this crucial point. But the most poignant part of the record before us is comprised of the testimony of Poree’s wife and father-in-law, both victims of his senseless attacks, reporting the tragic dete-riorative changes in his previously exemplary character and personality, and his insane comportment on the day of the offense.

CALOGERO, Justice,

dissenting.

I respectfully dissent. The majority has found that there was some evidence that Poree was sane. While I disagree with that conclusion and with their use of the “some evidence” standard rather than the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), my primary objection is that the majority has changed the law relating to the burden of proof on insanity.

Insanity is an affirmative defense in Louisiana which the defendant must- establish by a preponderance of the evidence. C.Cr.P. 652. R.S. 15:432 requires a defendant to come forward with some evidence of insanity to destroy the presumption of sanity. Once defendant presents some evidence of insanity the presumption is destroyed and the state is then required to prove that defendant was sane. To hold otherwise would relieve the state of its due process burden of proving beyond a reasonable doubt every fact necessary to constitute the offense charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

ORDER

All proceedings in # 64,308 and # 66,318 are stayed for 90 days from this date to permit an application for writs to the United States Supreme Court.

March 7, 1980.

      . C.CtP. 650 provides in pertinent part:
      “When a defendant enters a combined plea of ‘not guilty and not guilty by reason of insanity,’ the court may appoint a sanity commission as provided in Article 644 to make an examination as to the defendant’s mental condition at the time of the offense. The court may also order the commission to make an examination as to the defendant’s present mental capacity to proceed. . .

      . Defendant’s first trial ended in a mistrial when the jury was unable to agree upon a verdict. The appeal before us here concerns his second trial.

      . C.Cr.P. 851 provides:
      The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been case the motion shall be denied, no matter upon what allegations it is grounded.
      The court, on motion of the defendant, shall grant a new trial whenever:
      (1) The verdict is contrary to the law and the evidence;
      (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
      (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
      (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or
      (5)The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”

      . R.S. 15:432 provides in pertinent part:
      “A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; such is the presumption attaching to the regularity of judicial proceedings; that the grand jury was legally constituted; that public officers have done their duty; that a relation or subject-matter once established, continues, but not that it pre-existed; that the defendant intended the natural and probable consequence of his act; that the defendant is innocent; that the defendant is sane and responsible for his actions; . . . ”

      . “The defendant has the burden of establishing the defense of insanity at the time of the offense by a preponderance of the evidence.” C.Cr.P. 652.

      .The status of this “no evidence” standard may be in question in the light of Jackson v. Virginia, which recently held that an applicant for federal habeas corpus who challenges a state criminal conviction will be entitled to such relief “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560, 576-577 (1979).

      . Art. V, § 5(C) provides:
      “Except as otherwise provided by this constitution, the jurisdiction of the supreme court in civil cases extends to both law and facts. In criminal matters, its appellate jurisdiction extends only to questions of law.”

      . “Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.” C.Cr.P. 858.

      . See note 4, supra, and accompanying text.

      . Our awareness of this deficiency is implicit in at least three earlier cases involving the insanity defense. In State v. Craig, 340 So.2d 191 (La. 1976), we noted that the defendant’s claim that the verdict was contrary to the law and evidence provided nothing for this court to review, but we went on to consider his contention that the verdict was contrary to the psychiatric evidence. In State v. Daigle, 344 So.2d 1380 (La. 1977), defendant’s motion for a new trial -on the ground of a verdict contrary to the law and evidence was denied. He then asked this court to order a new trial on the “ends of justice” ground of C.Cr.P. 851(5), supra, note 3, claiming that the evidence preponderated that he was unable to distinguish right from wrong. We held that there was nothing for this court to review because the trial court had not had an opportunity to rule on this new ground, but we also noted that “[w]e believe that defendant makes here a very serious argument,” id. at 1388. State v. Rollins, 351 So.2d 470 (La. 1977), also involved the denial of a new trial motion which claimed that the verdict was contrary to the law and evidence. The specific contention was that psychiatric testimony at trial overwhelmingly showed that the accused was insane at the time of the offense. This court noted that its appellate jurisdiction extends only to questions of law and not to the sufficiency of the evidence, but it reviewed the denial of the new trial motion on the theory that such a determination could be reversed upon a finding of clear abuse of the trial court’s discretion.

      .According to the analysis presented in Ash-ford and Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969), this is an assumption, not a presumption. The authors distinguish between a true presumption, which in a criminal case shifts the burden of introducing evidence as to a given issue to the defendant, while the burden of persuasion remains with the prosecution; and an assumption, which imposes upon the defendant not only the burden of introducing evidence but also the burden of persuasion and the risk of non-persuasion. They conclude that when an assumption is in operation, there is a considerable risk that the due process requirement of precision in the guilt determination process will be violated.

      . R.S. 15:432, supra, note 4.

      . There is dictum in State v. Marmillion, 339 So.2d 788 (La. 1976), to the effect that the state is not required to produce countervailing proof of sanity. This statement is misleading: the presumption of sanity operates to remove the state’s burden of proving defendant’s sanity in making its case initially; but once this presumption is destroyed by defendant’s evidence of insanity, the statutory “preponderance of the evidence” standard clearly envisions a situation in which the fact finder must weigh the evidence of the defendant against the evidence of the state.

      .Art. 1, § 19 provides in pertinent part:
      “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. . . .”

      . See note 6, supra.

      . See State v. Sands, 10 Or.App. 438, 499 P.2d 821, 822 (1972), in which the Oregon Court of Appeals stated that “[c]onsistent with the approach followed, we believe, by a majority of other courts, we hold the evidence of insanity can be so substantial that the matter should be withdrawn from the trier of fact and decided favorably to the defendant by the trial judge as a matter of law.”

       Chief Judge Paul B. Landry, participated in this decision as Associate Justice ad hoc, in place of Summers, C. J.

      . These grounds were argued as assignments of error in this court on the contention that the trial court erred in failing to grant a new trial.

      . The jury charges are not in the record, but there is a notation that there was no objection or error assigned as to jury instructions.


author:
WATSON, Justice.
     CALOGERO, J.,

text:
    STATE of Louisiana v. Carlos POREE.
    No. 66318.
    Supreme Court of Louisiana.
    March 3, 1980.
    Robert J. Zibilich, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   WATSON, Justice.

This matter was consolidated for hearing' with docket number 64,308, La., 386 So.2d 1331, State of Louisiana v. Poree, in which an opinion on rehearing has been handed down this date.

Writs were granted in this proceeding to review a ruling by the trial court which granted defendant’s Motion to Quash. The charges are nine counts of attempted murder and one count of armed robbery, which arose from the same shooting episode on November 7, 1977. These charges were quashed by the trial court following the rendition of the original opinion of this court in docket number 64,308, La., 386 So.2d 1331, which reversed Poree’s conviction and sentence on a charge of first degree murder, holding that Poree was entitled to a reversal of his conviction and sentence. On original hearing, the majority concluded that the evidence of Poree’s insanity required reversal; on rehearing the majority held that the question was for the jury.

In the opinion on rehearing in docket number 64,308, La., 386 So.2d 1331, rendered this date, the conviction and sentence of Poree are affirmed. Therefore, the trial court erred in granting the Motion to Quash. The ruling is reversed and the case is remanded to the trial court for further proceedings according to law.

REVERSED AND REMANDED.

DENNIS, J., dissents.

CALOGERO, J.,

dissents, having dissented in the companion case, State of La. v. Poree, # 64,308, La., 386 So.2d 1331, decided this day.

DIXON, J., dissents.

      Chief Judge Paul B. Landry participated in this opinion as Justice ad hoc in place of Summers, C. J.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Willie J. WILLIAMS.
    No. 65270.
    Supreme Court of Louisiana.
    April 7, 1980.
    Concurring Opinion Sept. 15, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Willie J. Williams was charged by bill of information with possession of heroin with intent to distribute in violation of La.R.S. 40:966. After trial by jury, he was found “guilty of possession of a controlled dangerous substance.” Thereafter, the district attorney filed an information accusing defendant of prior felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a third felony offender. He vacated the sentence previously imposed and sentenced defendant to serve twenty years at hard labor with credit for time served. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in accepting Officer Charles Crone as an expert in the field of narcotics identification.

Officer Crone testified that he was a criminologist with the New Orleans Police Department for five and one-half years. His duties consisted of detecting and identifying narcotics. He received a bachelor of science degree in biology from Louisiana State University and had twenty-five credit hours in college chemistry courses.

La.R.S. 15:466 sets out the guidelines for qualification of expert witnesses:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before, any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.

It is well settled that the competence of an expert witness is a question of fact to be determined within the sound discretion of the trial judge, and his rulings on the qualifications of expert witnesses will not be disturbed in the absence of manifest error. State v. Drew, 360 So.2d 500 (La.1978) cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed,2d 25 (1979); State v. Titus, 358 So.2d 912 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977).

The record discloses that Officer Crone possessed sufficient education and practical experience to qualify as an expert in narcotics identification. Moreover, he had previously qualified as an expert in narcotics identification in the district courts of this state. We are unable to say that the trial judge abused his discretion in accepting Officer Crone as an expert in narcotics identification.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in permitting testimony, over his objection, connecting him to the evidence pri- or to it being identified as related to the case.

La.Code Crim.P. art. 773 provides:

Neither the state nor the defendant can be controlled by the court as to the order in which evidence shall be adduced; but when the evidence requires a foundation for its admission, the foundation must be laid before the evidence is admissible.

Officer Carl Crone was the first witness called by the state. During direct examination by the state, the following exchange took place:

Q Mr. Crone, did you bring with you, to court today, any documents that would be evidence?
A Yes, I brought an evidence envelope bearing the name, Willie J. Williams, and another defendant under police item number 1361174.

Officer Crone was a chemical expert called to testify as to the results of his analysis of the substance seized from defendant. The heroin was not admitted in evidence during his testimony. Subsequently, Officer Robert Barare testified that the same evidence envelope was the one in which the “tannish powder” seized from defendant was placed. Barare stated that he placed the substance inside the envelope, signed, dated and sealed it, and gave it to Officer Crone who later identified the substance as heroin. Because the evidence was introduced in evidence following Officer Barare’s testimony, the state properly identified the evidence as related to the case prior to introduction by establishing the custody of the heroin from the time it was seized from defendant to the time it was offered in evidence. Hence, defendant’s contention is without substance.

Defendant for the first time in brief to this court contends that the testimony of Officer Crone was inadmissible hearsay in that the testimony rested upon observations of the arresting officer not presently testifying. It is well settled that a new basis for an objection may not be raised for the first time on appeal. State v. Quincy, 363 So.2d 647 (La.1978); State v. Drew, 360 So.2d 500 (La.1978), cert. denied, 439 U.S. 1059, 99 S.Ct. 820, 59 L.Ed.2d 25 (1979); State v. Williams, 343 So.2d 1026 (La.), cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977). In any event, Officer Barare identified the contents of the evidence envelope as items taken from defendant at the time of his arrest. While Officer Crone’s testimony was hearsay, it was merely cumulative. Hence, admitting his testimony was harmless error.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge improperly commented on the evidence at trial. An objection was properly noted.

During the cross-examination by defense counsel of Officer James Kirkpatrick, one of the arresting officers, the following exchange took place:

Q How many arrests were made?
A To the best of my knowledge, two.
Q May I see the report again? (Defense counsel looks at report). Where [sic] three people were arrested?
A Not that day.
Q Two were arrested on the scene?
A Yes.
Q Both of them are charged the same way?

BY [ASSISTANT DISTRICT ATTORNEY]:

Objection, your honor.

BY THE COURT:

Sustained.

BY [DEFENSE COUNSEL]:

You arrested them for probable cause?

BY [ASSISTANT DISTRICT ATTORNEY]:

Objection to that line of questioning.
There is one defendant on trial today.

BY THE COURT:

I presume you asked that question about the defendant?

BY [DEFENSE COUNSEL]:

Sir, the incident of the arrest.

BY THE COURT:

You are asking about this defendant?
Are you referring to this defendant?

BY [DEFENSE COUNSEL]:

To this defendant?

BY THE COURT:

To this defendant before the court.

BY [DEFENSE COUNSEL]:

I am asking if he made other arrests simultaneously.

BY THE COURT:

He has answered that.

BY [DEFENSE COUNSEL]:

I asked, how many?

BY THE COURT:

He answered.

BY [DEFENSE COUNSEL]:

Your honor is commenting on the evidence?

BY THE COURT:

I said, he answered it. He has answered
the question.

BY [DEFENSE COUNSEL]:

I ask that my objection be noted.

Judicial comment on the facts or evidence in the presence of the jury is prohibited by La.Code Crim.P. art. 772. However, this court has consistently held that remarks made by the trial judge in the jury’s presence giving reasons for his rulings on objections, for admitting or excluding evidence, or stating the purpose for which evidence is offered or admitted are not objectionable as comments or expression of an opinion provided they are not unfair and prejudicial to the accused. State v. Simms, No. 65,582, 381 So.2d 472 (La.1980); State v. Schouest, 351 So.2d 462 (La.1977); State v. Young, 337 So.2d 1196 (La.1976). Additionally, La. R.S. 15:275 authorizes a trial judge, in the exercise of his discretion, to stop the prolonged, unnecessary and irrelevant examination of a witness.

In the instant case, the trial judge’s remarks were merely an exercise of his discretion to stop repetitious questioning of the witness and an explanation for his ruling. The remarks did not constitute an improper comment on the evidence. Hence, the assigned error is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial judge erred in overruling his objection to the introduction of an oral confession made by defendant at the time of his arrest because the state did not lay a proper predicate for its introduction.

Testimony adduced by the state revealed that after police officers entered defendant’s house and found defendant and Willie Landry in the bathroom, a scuffle ensued as the officers attempted to arrest them and secure the evidence which they were attempting to flush down the toilet. As a result, defendant received a small laceration on his head. Officer Ronald Brady testified that when he arrived at defendant’s house, other arresting officers were leading defendant out of the bathroom and asked him to stay with defendant. Officer Brady advised defendant of the charges against him and read him his Miranda rights, and defendant stated that he understood his rights. The officer testified that no promises or threats were made to defendant. When he questioned him, defendant stated that the drugs found in the bathroom belonged to him, that he and Louis Hubbard, who was arrested later that night, had been getting eight bundles of heroin a day from Larry Wiley, recutting the heroin and selling it on the street.

Defendant admitted telling Officer Brady that the drugs were his but testified that he gave the statement because the officer threatened to take his entire family to jail. He further stated that officers beat him before they handcuffed him and took him to the bedroom where the oral confession took place.

After hearing the testimony of Officer Brady and defendant, the trial judge ruled that the state had laid a proper predicate for introduction of the confession in evidence.

Before a confession- may be introduced in evidence, the state must affirmatively show that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, inducements or promises. La.R.S. 15:451. It must also be shown that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. A confession need not be the spontaneous act of the accused but may be obtained by means of questions and answers. La.R.S. 15:453. The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the voluntariness of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Gaines, 354 So.2d 548 (La.1978); State v. Hutto, 349 So.2d 318 (La.1977).

After a review of the record, we are convinced, as was the trial judge, that the state satisfied its burden of affirmatively proving that the confession was freely and voluntarily made after defendant had been advised of his Miranda rights. Each contention made by defendant to show that his confession was not free and voluntary was in conflict with the testimony of the arresting officer. Moreover, defendant produced no corroborating evidence that he was beaten or otherwise mistreated or that the officer threatened to take his entire family to jail. Additionally, defendant’s statement implicating Louis Hubbard and Larry Wiley goes far beyond his claim that he admitted ownership of the drugs because the officer threatened to take his entire family to jail. Under the circumstances, the trial judge was clearly justified in finding that the testimony of Officer Brady was more credible than that of defendant and in concluding that defendant’s statement was freely and voluntarily made after having been advised of his Miranda rights. Accordingly, the trial judge did not err in overruling defendant’s objection to the introduction of defendant’s oral confession in evidence.

Assignment of Error No. 4 is without merit.

ASSIGNMENT OF ERROR NO. 5

Defendant contends the verdict presents an error patent on the face of the record. He argues that the jury returned a verdict of “guilty of possession of a controlled dangerous substance” without stating the type of substance; therefore, the verdict does not convey the intention of the jury.

Defendant was charged by bill of information with “possession with the intent to distribute a controlled dangerous substance, to-wit: Heroin” in violation of La.R.S. 40:966 which provides that it shall be unlawful for any person knowingly or intentionally: “To possess with intent to . distribute a controlled dangerous substance classified in Schedule I.” Heroin is listed in Schedule I (La.R.S. 40:964(B)(11)) as a controlled dangerous substance. The trial judge’s written list of the verdicts responsive to the offense charged given to the jury listed the responsive verdicts as set forth in La.Code Crim.P. art. 814(46):

1. Guilty as charged.
2. Guilty of attempt to distribute a controlled dangerous substance.
3. Guilty of possession of a controlled dangerous substance.
4. Guilty of attempt [sic] possession of a controlled dangerous substance.
5. Not guilty.

The jury returned a verdict of “guilty of possession of a controlled dangerous substance,” one of the responsive verdicts to the crime charged.

La.Code Crim.P. art. 810 provides that a verdict must clearly convey the intention of the jury. When faced with an ambiguous verdict, the intent of the jury can be determined by reference to the pleadings, the evidence, the admissions of the parties, the instructions, or the forms of the verdict submitted. State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976); State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950). In Broadnax, the defendant was charged with possession of heroin and the jury returned a verdict of “guilty of attempted possession.” This court held that there was no doubt that the verdict as returned was sufficient in form to ascertain the jury’s intention when the bill of information and references to heroin in the record were considered.

In the instant case, the bill of information charges defendant with possession with intent to distribute heroin. In addition, the state produced an expert witness who identified the substance as heroin and all testimony in the record relates to no other substance but heroin. When the verdict is construed in light of the repeated references to heroin as the controlled dangerous substance which defendant was charged with possessing with the intent to distribute, there is no doubt as to the jury’s intent to find defendant guilty of possession of heroin. The verdict was clearly responsive to the charge.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial judge erred in sentencing him as an habitual offender without a hearing.

The contention is without substance. Following defendant’s original sentence, the district attorney filed an information accusing defendant of previous felony convictions pursuant to La.R.S. 15:529.1 (Habitual Offender Law). An habitual offender hearing was conducted on October 15, 1975. Defendant was present and represented by counsel. After the state produced evidence and rested its case, defense counsel stated: “Your honor, we would have no defense and we would like to waive all delays for the purpose of the record . . . .” Thereafter, the trial judge vacated the sentence previously imposed and sentenced defendant to serve twenty years at hard labor with credit for time served.

Assignment of Error No. 6 is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I agree with the result of the majority opinion, but wish to note additional reasons for finding no merit in Assignment of Error No. 4, concerning a proper predicate being laid for the introduction of the oral confession. Defendant’s contentions were not merely “in conflict with the testimony of the arresting officer;” the officer specifically rebutted the allegations of brutality surrounding the confession. This is the sort of affirmative showing that establishes a proper predicate for introduction of an oral confession into evidence. La.R.S. 15:451.


author:
BLANCHE, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Ronnie BROOKS.
    No. 65812.
    Supreme Court of Louisiana.
    April 7, 1980.
    Dissenting Opinion Sept. 15, 1980.
    Ann Woolhandler, Michael Collins, Paul Henry Kidd, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy J. Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
   BLANCHE, Justice.

Defendant appeals from his conviction on a charge of violation of R.S. 40:966(A)(1), distribution of a controlled dangerous substance classified in Schedule I of R.S. 40:964 (marijuana). Defendant was sentenced to pay a fine of $500 plus court costs and to serve two years at hard labor. The sentence was suspended upon the condition that defendant make full payment of the fine and costs, and defendant was placed on active probation for two years.

Defendant makes two major arguments on this appeal. One basis for the appeal is that there was evidence which was newly discovered after trial and which was not discoverable by the exercise of reasonable diligence prior to or at trial. The other basis for the appeal is that the state deliberately withheld information from the defendant when it knew that information to be favorable to the defense, and continued to refuse disclosure even following defense requests for discovery.

The evidence presented by the state against defendant consisted solely of the testimony of a Louisiana State Police officer who works undercover in narcotics. The officer, Trooper Donald Givens, stated that during February of 1978, while he was investigating drug distribution in Lincoln Parish in the area near the Grambling campus, a confidential informant set up a meeting with someone who could arrange for the officer to purchase drugs. On February 21, the informant introduced the officer to two men, one of whom Givens said he “later identified to be Allen Russell”, and the other whom he called Callahan. On February 22, the informant and Russell again met with Trooper Givens and Russell subsequently led the officer to a house in which Givens purchased for $150 a one-pound package of a substance later identified as marijuana.

Trooper Givens testified that over the next several months he attempted, without success, to find out the name of the person who had sold him the marijuana. Then one day, about five or six months later, he was in the vicinity of Grambling while on surveillance in another matter and saw a man leaving a liquor store whom he recognized as the person from whom he had purchased the drugs. For the first time since the purchase of the drugs, he identified the man as the defendant in this case. After having identified himself as a police officer, he asked the man for his driver’s license. No arrest was made at the time, but defendant was arrested some two weeks later.

Prior to trial, the defense had made several discovery requests of the state. The state answered that it did not have any information which would be exculpatory. The state did not give defendant the name of Allen Russell, nor did the state indicate what Russell’s testimony might be were he called as a witness.

It was not until trial that there was any intimation to the defense that someone other than Givens was present when the drugs were purchased. At that time, Givens gave the name of Allen Russell as the person who had arranged for his contact with the seller. The state did not call Russell as a witness. However, in the state’s brief, it is now admitted that the prosecution did know, before trial, that Allen Russell would not corroborate the officer’s identification. Therefore, the state was indeed in the possession of material information favorable to the accused. That information, namely that Russell would have contradicted the state’s sole eyewitness, was not revealed to the defense, despite its discovery request.

Following trial, the defense had an opportunity to interview the said Allen Russell, and, for the first time, ascertained that, not only would his testimony not corroborate the statements of Givens, but the testimony would be directly contradictory to the testimony of Givens.

The defense moved for a new trial on the basis of newly discovered evidence, C.Cr.P, art. 851. A hearing was held in which Russell testified that he had never seen Givens and had not participated in the activities which Givens had described. Russell also testified that he is a cousin of defendant herein.

After hearing the testimony, the trial court denied the motion for a new trial stating as its reason that the evidence which the defense presented was discovered at the trial, not afterwards, therefore the provisions of C.Cr.P. art. 851 would not be applicable.

We believe the only evidence which was discovered at trial was the existence and identity of one whom the state’s sole witness claimed arranged for and was present at the sale of the marijuana. There was nothing said at trial which would indicate that the substance of Russell’s testimony would not corroborate the testimony of Trooper Givens. Thus, it was Russell’s testimony which is the evidence which was not discovered until subsequent to trial. The existence and identity of a witness, without any knowledge of what that witness’ testimony may be, does not in these circumstances constitute evidence discovered at the time of trial.

We also find there is another sound basis for granting a new trial. The refusal of the state to turn over such information in a case of this nature, presenting a one-on-one witness conflict, falls squarely within the constitutional proscription of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Therefore, this case is directly analogous to those cases holding that witnesses’ information which might cast doubt on the specific testimony or general reliability of the prosecution’s sole eyewitness is information which is “material” for the purposes of Brady-Agurs. For Louisiana jurisprudence discussing and applying the Brady-Agurs principles, see State v. Falkins, 356 So.2d 415 (La.1978); State v. Bailey, 367 So.2d 368 (La.1979). For a discussion of the principles see State ex rel. Fields v. Maggio, 368 So.2d 1016 (La.1979) and State v. Talbot (La. 1980), No. 62,832.

Moreover, these due process limitations are applicable not only where the prosecution has an actual “statement” in its files favorable to the accused, but also where the prosecution is aware of the existence of a witness who would testify favorably to the accused. Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968); United States v. Gleason, 265 F.Supp. 880 (S.D.N.Y. 1967).

The state rationalizes the failure of its obligation to disclose by stating that, even though it knew that Russell might testify in the accused’s behalf, it refused to let him do so on the theory that if he did not corroborate the state’s eyewitness, he would just be “perjuring” himself. We do not regard it to be the role of the prosecution to usurp the acknowledged functions of judge and jury in determining the truthfulness of witnesses. The state’s determination that someone would not make a good witness for the prosecution because he seemed inclined to testify for the defense is one thing, but it is quite another for the state to fail to turn over such information to the defense pursuant to a Brady request. The state repeatedly suggests that since Russell was a cousin of defendant, the defendant must have known in advance of trial that Russell might have testified in his behalf. However, there is no evidence that the defendant was aware, prior to trial, either that the state thought Russell was an eyewitness, or more significantly, that Russell had already disclosed his willingness to the state not to corroborate the prosecution’s witness. The state cannot escape its disclosure obligations by proffering the excuse that it thought the accused already knew what it failed to disclose. Moreover, there can be no doubt that the prosecution was well aware in advance of trial that Russell would testify as he ultimately did (i. e. in behalf of the defendant), since it admitted that to put Russell on the stand would amount to perjury. Obviously, at least from the state’s point of view, this meant that Russell was known to them to be prepared to testify for the defense. The prosecution would surely not be contending that Russell would have “perjured” himself had he testified for the state. The meaning of the admission is clear: the state knew that Russell would contradict its sole eyewitness, and then it refused to disclose the fact to the defendant in the face of discovery requests, or even at trial when his name was “unexpectedly” revealed by the prosecution’s witness.

The Brady rules of disclosure apply not just to information favorable to the accused which the state itself believes to be credible, but to any material information that is favorable to the accused. The possible absence of bad faith in the state’s failure to produce is no defense. Brady, supra, 373 U.S. at 87, 83 S.Ct. at 1196. If the prosecution could, under the aegis of Brady, disclose only what information favorable to the accused which it found to be believable, then the doctrine would become meaningless. Gleason, supra.

For the reasons assigned, this case should be remanded for a new trial.

REVERSED AND REMANDED.

DENNIS, J., dissents with reason.

DENNIS, Justice,

dissenting.

I would affirm the conviction. In my opinion the record in this case does not reflect that the existence of the witness was unknown to the defense until after the trial. Therefore, this favorable evidence is neither “new evidence” for purposes of granting a new trial, nor violative of Brady or Agurs, which involve “the discovery, after trial of information which had been known to the prosecution but unknown to the defense. 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342, 347.

      Chief Judge Paul B. Landry, Jr., Retired, participated in this decision as Associate Justice Ad Hoc.

      . “Art. 851. Grounds for new trial. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
      “The court, on motion of the defendant, shall r^'-nt a new trial whenever: (1) The verdict is contrary to the law and evidence; (2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error; (3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty; (4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or (5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.”