author: WILLIAM NORRIS, III, Justice Ad Hoc. ROBERT L. LOBRANO, Justice Ad Hoc,

text:
    STATE of Louisiana v. Darryl JETT.
    No. 81-KA-3295.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Eddie Knoll, Dist. Atty., Cliff Laborde, Asst. Dist. Atty., for plaintiff-appellee.
    J. Michael Small, Katherine Williamson, Alexandria, for defendant-appellant.
   WILLIAM NORRIS, III, Justice Ad Hoc.

Defendant, Darryl Jett was charged by grand jury indictment with two counts of first degree murder in violation of La.R.S. 14:30, one count of attempted first degree murder in violation of La.R.S. 14:27 and La.R.S. 14:30 respectively, and one count of armed robbery in violation of La.R.S. 14:64. At arraignment defendant pled not guilty to all charges but subsequently changed his plea to not guilty and not guilty by reason of insanity. Thereafter, a trial date was fixed on the two first degree murder counts with the state seeking the death penalty. On the day of trial, defendant withdrew his plea of not guilty by reason of insanity to all charges after which witnesses were sequestered and voir dire began. The following day, prior to opening statements, pursuant to a plea bargain, defendant was allowed to plead guilty as charged to all charges with the understanding that the death penalty would not be imposed in the first degree murder counts, that he would receive the maximum penalty for each charge to which he pled guilty, and that his sentences would be imposed consecutively. After waiving his right to all legal delays, defendant was sentenced to two life sentences for the two first degree murder charges, fifty years for the attempted first degree murder charge, and ninety-nine years for the armed robbery charge, all sentences to run consecutively. It is from the imposition of the consecutive sentences that defendant appeals, asserting that the consecutive nature of the sentences renders them excessive.

In our initial review of the record, we discovered a possible error in the proceedings which requires our consideration notwithstanding the absence of an assignment of error, that is, whether or not the defendant could validly enter a plea to first degree murder without capital punishment.

La.C.Cr.P. Art. 920 dictates the scope of our review in criminal appeals and provides in pertinent part as follows:

The following matters and no others shall be considered on appeal:
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

Under this provision, we will consider any errors that “are discoverable by a mere inspection of the pleadings and proceedings.” These errors are “patent errors.”

At argument, the possibility of a patent error in these proceedings was brought to the attention of counsel for the defendant and the state. An opportunity was afforded to all parties to further address this issue by additional briefs resulting in an additional brief being filed on behalf of defendant in which defendant contends that he is now seeking to have his previously entered pleas of “not guilty without capital punishment” vacated if, and only if, a condition of the remand is this court’s exclusion of the death penalty.

FACTS

From the record, it appears to be undisputed that defendant and four accomplices entered a night club in Marksville, Louisiana, on February 14,1981, at approximately 4:00 a. m. armed with handguns and shotguns, and engaged in a shooting spree which resulted in the killing of two men and serious injury to another who received five gunshot wounds. Thereafter, defendant and his companions robbed the wounded man and another patron, after which they fled the scene. These facts formed the factual basis for the pleas in question.

VALIDITY OF THE GUILTY PLEA

The validity of a guilty plea to first degree murder without capital punishment under the present statutory scheme is res nova. The United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), finally addressed the issue of the constitutionality of capital punishment and held that the death penalty as imposed in Georgia and Texas at that time was violative of the eighth and fourteenth amendments of the United States Constitution. The constitutional infirmity specified within that decision was that of excessive jury discretion. Although the opinion in Furman was a per curiam opinion, there were five separate concurring opinions. The court in essence held that the imposition of the death penalty in that case constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments. (408 U.S. 239, 240, 92 S.Ct. at 2727). There were also three separate dissents with reasons. In that case, the constitutionality of untrammeled jury discretion in the imposition of the death penalty was put squarely at issue. In Fur-man, Justices White, Stewart, and Douglas had expressed great concern over the discretion exercised by juries in recommending punishment in capital cases.

Thereafter, in 1976, the United States Supreme Court in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), upheld the revised capital sentencing procedures in Georgia, Texas, and Florida, wherein bifurcated trial procedures were utilized in capital cases. In these proceedings, the initial phase of the trial dealt solely with the defendant’s guilt or innocence. Upon a finding of guilty, the trial jury was reconvened and evidence was introduced relating to the issue of an appropriate sentence after which the jury could return a sentence of death only if specific aggravating factors were found. In those cases, the Court found that the legislative guidance provided by the bifurcated trial statutes cured the constitutional defects identified in Furman. These decisions necessarily resulted in widespread revisions of state capital punishment procedures. Because the direction in which the Supreme Court was to move in this area was not immediately ascertainable, the revision process engaged in by some of the states has largely been by trial and error. Louisiana has been no exception to this rule.

In 1973 Louisiana made several changes in the procedures and statutes pertaining to capital cases. Subsequent to the court’s holding in Furman, the Louisiana legislature amended the first degree murder statute. See 1973 La. Acts, No. 109 § 1, Art. 30. In hindsight, it appears that the legislature expected that the imposition of capital punishment under the new statute, with its more tightly defined categories of murder, would be found constitutional by the Furman court. By combining more tightly defined murder categories with the mandatory death penalty clause, the legislature attempted to insure that such a sentence would no longer be “so wantonly and so freakishly imposed” (408 U.S. at 310, 92 S.Ct. at 2762) nor imposed so infrequently that the threat of death would cease to be of substantial deterrent value. (408 U.S. at 311-312, 92 S.Ct. at 2763).

In 1973, the legislature also amended the Code of Criminal Procedure to remove the earlier available option to the jury of qualifying its verdict of guilty in a capital case by deleting the words “without capital punishment” and to remove the qualified plea of guilty without capital punishment. After the 1973 amendment, the article pertaining to qualified verdicts read that any such qualification was to have no effect whatsoever. The article relating to qualified pleas simply deleted the language providing for such plea. This revision was clearly designed to limit the jury discretion found so objectionable in Furman by Justice White. See La.C.Cr.P. Art. 817; 1973 La. Acts, No. 125 § 1; 408 U.S. at 314, 92 S.Ct. at 2764.

Thereafter, in 1975, the Louisiana legislature made one change in La.R.S. 14:30.by adding aggravated burglary to the felonies enumerated in La.R.S. 14:30(1). See 1975 La. Acts, No. 327.

This was the state of the law in 1976 when the United States Supreme Court rejected the revised Louisiana procedures in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Roberts was found guilty of first degree murder and sentenced to death. The court rejected Louisiana’s efforts to correct eighth amendment defects by narrowing the definition of first degree murder. These narrower categories were seen as an inadequate method of offsetting “the harshness and inflexibility of a mandatory death statute.” (428 U.S. at 332, 96 S.Ct. at 3005).

The majority also attacked the Louisiana responsive verdict system finding that the standardless jury discretion held unconstitutional in Furman was compounded in a system in which a jury hearing a first degree murder case received instructions on and was permitted to return verdicts of lesser included offenses even if no evidence of those lesser crimes had been offered. (428 U.S. at 334-335, 96 S.Ct. at 3007). Therefore, the Louisiana system was unconstitutional because there were no standards provided to guide the jury in its power to select those first degree murderers who would receive death sentences, and there was no meaningful appellate review of the jury’s decision. (428 U.S. at 335-336, 96 S.Ct. at 3007). .

In the subsequent case of (Harry) Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977), concerning a conviction which occurred prior to the 1976 revision of the first degree murder statute, the defendant was charged and convicted of the murder of a police officer under La.R.S. 14:30(2) and received the mandatory death sentence. In a per curiam opinion, the Supreme Court held subsection (2) to be unconstitutional. While the majority recognized the killing of a police officer who was performing his duty to be an aggravating factor, the statute was found to be defective because of its failure to provide the jury with any opportunity to consider mitigating circumstances which might be relevant in a sentencing hearing under a bifurcated trial system.

In 1976, the legislature radically altered the definition of first degree murder and the statutory procedure in order to comply with the Supreme Court’s decision in the first Roberts case. See 1976 La. Acts, No. 657. The felony-murder offenses of the prior statutes were reclassified as second degree murder, punishable by life imprisonment without benefit of parole, probation, or suspension of sentence for forty years. See 1976 La. Acts, No. 657 § 2.

Additionally, the Louisiana Code of Criminal Procedure was amended adding Articles 905 through 905.9 to provide for a bifurcated procedure to deal with sentencing in capital cases. See 1976 La. Acts, No. 694 § 1 and 1977 La. Acts, No. 105. Thus, a new system of trial was established for capital cases. In this bifurcated proceeding, a sentencing hearing followed a verdict of guilty in a capital case.

Additionally, the second degree murder statute was amended in 1977 to include all homicides where the offender has a specific intent to kill under circumstances that would be first degree murder under Article 30 but the killing is accomplished without any of the aggravating circumstances of La.C.Cr.P. Art. 905.4. See 1977 La. Acts, No. 121.

During the 1978 legislative session, the definition of second degree murder was again amended to delete paragraph (B) which was added in the 1977 Act (see 1978 La. Acts, No. 796), which had previously resulted in our finding that the Louisiana first degree murder statute had been amended by implication to include the requirement that the state prove the existence of an aggravating circumstance during the guilt phase of the trial. See State v. Payton, 361 So.2d 866 (La.1978).

In 1979, the legislature again amended the first and second degree murder statutes and amended La.C.Cr.P. Art. 905.4 defining aggravating circumstances. See 1979 La. Acts No. 74.

Thus, the law now stands and so stood at the time that the instant offense was committed by the defendant.

The applicable article herein is La.C.Cr.P. Art. 557 relating to guilty pleas in capital cases which provides:

A court shall not receive an unqualified plea of guilty in a capital case. If a defendant makes such a plea, the court shall order a plea of not guilty entered for him. (1973 La. Acts No. 134, § 1)

A mere reading of the provisions of this article indicates that while an unqualified plea cannot be accepted by virtue of its language, conversely a qualified plea of guilty without capital punishment could be encompassed as a valid plea under its provisions.

Prior to its 1973 amendment the article read:

A court shall not receive an unqualified plea of guilty in a capital case. If a defendant makes such a plea, the court shall order a plea of not guilty entered for him. The defendant, with the consent of the district attorney, may plead “guilty without capital punishment.” (Emphasis added.)

A tracing of the history of capital offenses since the Furman decision makes it obvious that the article was amended in 1973 to remove the provision providing for a plea of “guilty without capital punishment” because it was felt that this qualified plea might be subject to the same constitutional infirmities as the qualified verdict provision of La.C.Cr.P. Art. 817. [See 34 La.L.Rev. 334-338.] relating to the unguided discretion granted by the article which was held unconstitutional. Furthermore, it is obvious that since a jury could not return such a qualified verdict the court was not authorized to accept such a plea. In an effort to enact a constitutionally acceptable capital offense scheme, the legislature obviously felt that neither the jury, the trial judge or the district attorney should have any discretion in capital cases.

This was the legal state of affairs when Roberts v. Louisiana, supra, held that the death penalty as imposed thereunder was unconstitutional. Thereafter, many legislative changes were made in an attempt to formulate a constitutionally acceptable statutory scheme for capital offense. Included in those changes was not only a redefinition of the crime of first degree murder but the addition of the bifurcated trial proceedings. By the addition of La.C.Cr.P. Art. 905 through 905.9, the jury has again been given the discretion (through the application of strictly enforced guidelines provided in those articles) to qualify its verdict of guilty, i.e., guilty with capital punishment or guilty without capital punishment. Thus, the jury can in effect and does return a qualified verdict in a capital case. Albeit that verdict is only returned subject to strict guidelines, the qualified verdict in capital cases has been returned to the statutory scheme.

However, the qualified plea has not been expressly returned by any post-1973 enactments to the statutory scheme in capital cases although it certainly is implied by the very language of the article which does not expressly prohibit such a plea. Because the qualified verdict has been successfully returned to the statutory scheme without constitutional infirmity, there is no longer a valid reason to conclude that a qualified plea of guilty without capital punishment would be unconstitutional. Therefore, we conclude that the effect of these enactments places the law in the same general posture found in 1952 when we addressed a similar question in State v. Green, 221 La. 713, 60 So.2d 208 (1952). At that time, Article 262 of the Code of Criminal Procedure and La.R.S. 15:262 (the source provisions for Art. 557) read as La.C.Cr.P. Art. 557 does now. Also, a jury could return a qualified verdict of guilty without capital punishment. Green involved a murder case where the trial court refused to accept defendant’s plea of guilty of murder without capital punishment. In affirming the trial court’s ruling, this court stated:

The ruling was correct. There is no provision of law requiring the court to accept a qualified plea of guilty in any case. Under Article 261 of the Code of Criminal Procedure, LSA-R.S. 15:261 there are four kinds of pleas to an indictment, viz., guilty, not guilty, former jeopardy and insanity. True enough, in capital cases, the court is without authority to receive an unqualified plea of guilty, see Article 262 of the Code of Criminal Procedure, LSA-R.S. 15:262, but this does not imply the converse, as counsel for defendant contend, that the judge is bound to accept a qualified plea in such matters. (Emphasis added.) 60 So.2d 213

We can only and do conclude that this means provided a jury could return the qualified verdict of guilty without capital punishment, that a trial court within its discretion could then and may now accept such a qualified plea pursuant to a valid plea bargain but was not then nor now mandated to accept such a plea. That reasoning is equally applicable under both the aforementioned as well as the present statutory scheme.

While in the instant case and under the present statutory scheme there arguably exist two qualified pleas — guilty without capital punishment and guilty with capital punishment, it is apparent without need for further amplification that a qualified plea of guilty with capital punishment would be prohibited under the article because the law has long been to the effect that a person cannot plead guilty in a manner to bring about his own death. There is a well founded legislative policy against a person accomplishing such judicial suicide.

We realize that in so interpreting La.C. Cr.P. Art. 557 we are formulating a procedure not specifically provided for but also not expressly prohibited under the Code of Criminal Procedure or other statutory provisions. In such instances, La.C.Cr.P. Art. 3 applies and dictates that the court proceed in a manner consistent with the spirit of the code and other applicable legislation. See State v. Byrd, 385 So.2d 248 (La.1980). By holding that a trial court may accept a defendant’s plea of guilty to first degree murder without capital punishment pursuant to a valid plea bargain, we give effect to the constitutional and statutory provisions that expressly prohibit a defendant from pleading guilty in a manner to bring about his own death but also recognize and give effect to the statutory scheme that provides for a sentence of life imprisonment without benefit of parole, probation or suspension of sentence following a verdict of guilty of first degree murder.

We therefore hold that pursuant to a valid plea bargain, a trial court may but is not required to accept a plea of guilty without capital punishment in a first degree murder case. In this case, the court chose to accept these pleas and the pleas entered in the instant case to two counts of first degree murder are valid. This conclusion is bolstered by our holding that the same result could be easily accomplished by allowing the district attorney in his inherent power to informally amend the first degree murder indictment to second degree murder in open court in the presence of the defendant after which a plea of guilty to the lesser charge could be entered necessarily resulting in the same sentence as given here of life imprisonment without benefit of parole, probation or suspension of sentence. See State v. Gilmore, 332 So.2d 789 (La.1976).

EXCESSIVENESS OF SENTENCE

Defendant contends that the trial court committed reversible error in declaring that the sentences imposed should run consecutively rather than concurrently, in that the imposition of consecutive sentences constitutes cruel, unusual, and excessive punishment, in violation of the United States and Louisiana constitutions. Defendant asserts that the sole fact which renders these sentences excessive is the fact that they were imposed consecutively.

Defendant obviously does not contend that the sentences were excessive because he received the mandatory sentences for each of the first degree murder counts and the maximum sentences for the attempted first degree murder charge and the armed robbery charge. He further does not dispute the fact that he knew he was going to receive the exact sentences he received when he pled guilty to all four charges to escape the death penalty. He reiterates that the plea bargain was struck for but one purpose — to avoid the possible imposition of the death penalty. However, he contends that this should not operate to deprive him of his right to have his sentence reviewed to determine whether or not it is excessive and thereby violative of the Louisiana Constitution.

In the instant case, the record clearly reflects that the defendant knowingly and voluntarily agreed to the imposition of the consecutive sentences in advance of their actual imposition. The record makes it equally clear that he did in fact so agree to avoid the death penalty.

The facts of this case which are undisputed by defendant indicate that the following aggravating factors as enumerated by La.C. Cr.P. Art. 905.4 are present in this case, e.g., (1) the defendant was engaged in the perpetration of an armed robbery, (2) the defendant knowingly created a risk of death or great bodily harm to more than one person and (3) [possibly,] the offense was committed in an especially heinous, atrocious, or cruel manner. [See La.C.Cr.P. Art. 905.4(a), (d) and (g)]. Therefore, it appears that defendant was justified in the reasonable belief that he might be subjected to the death penalty after being found guilty on either or both of the first degree murder counts.

Although it is tempting to rely on the fact that the sentences were agreed to by all parties to summarily conclude that there was no necessity for the trial court to comply with La.C.Cr.P. Art. 894.1 and to bar the defendant from complaining of the excessive length of the sentence [see State v. Gray, 404 So.2d 1215 (La.1981) ], we prefer not to do so and will address the issue squarely concluding that our review of possible constitutional error is not absolutely precluded by a defendant’s agreement to plead guilty or to receive a particular sentence.

Initially, we note that the trial court did not comply with the sentencing guidelines of La.C.Cr.P. Art. 894.1. However, this lack of compliance does not necessarily require that the sentences be set aside if the record otherwise clearly illumines the trial court’s sentencing choice and demonstrates that the sentence is not arbitrary or excessive. State v. Martin, 400 So.2d 1063, on rehearing 400 So.2d 1074 (La.1981). Our review of the instant record indicates that in this particular case, the record is sufficient for us to conclude that the trial court did not abuse its discretion or impose constitutionally excessive sentences.

The plea bargain certainly reduced defendant’s sentencing exposure — from death to life, literally.

While the general rule that concurrent rather than consecutive sentences are the usual rule for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence was recognized in State v. Underwood, 353 So.2d 1013 (La.1977), this court has never held that if convictions arise out of a single course of illegal conduct, consecutive sentences will necessarily be found to be excessive. State v. Ortego, 382 So.2d 921 (La.1980). Other factors must be taken into consideration.

Consecutive sentences are justified when the offender poses an unusual risk to the safety of the public. State v. Watson, 372 So.2d 1205 (La.1979).

In the instant case defendant engaged in a senseless, unprovoked shooting spree which resulted in the deaths of two innocent bystanders and the near death of a third innocent bystander after which he robbed two persons at gunpoint. Consequently, the consecutive sentences were justified by the dangerous propensities exhibited by the defendant on this occasion. He clearly poses a risk to the safety of the public. Therefore, the consecutive nature of the sentences imposed does not render them excessive in this case.

Accordingly, the conviction and sentence in the instant case are affirmed.

ROBERT L. LOBRANO, J. ad hoc, concurs with reasons.

ROBERT L. LOBRANO, Justice Ad Hoc,

concurring in part.

I concur with the majority reasoning in this case as to all issues except the question of excessive sentencing. I agree with the conclusion that the sentences are not excessive, however I would rely on the plea bargaining agreement. The defendant knew prior to entering his guilty plea the consequences of such a plea, yet according to the majority he is allowed to object at the appellate level. I am of the opinion that defendant waived his right to object by agreeing to the plea bargain.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . In that case the defendant was found guilty and sentenced to death under a unitary trial system.

      . Louisiana has amended its definition of first degree murder four times by specific acts of the legislature and once by implication in an amendment to the second degree murder article. See State v. Payton, infra.

      . Until the existing statutory scheme for capital crimes was enacted, historically, under La.C. Cr.P. Art. 557, and its predecessor, the only qualified plea was guilty without capital punishment since the qualified plea of guilty caused the mandatory death penalty.

      . This case was handed down on the same day as Jurek, Proffitt, and Gregg, supra.

      . Art. 905. Capital cases; sentencing hearing required
      Following a verdict of guilty in a capital case, a sentence of death may be imposed only after a sentencing hearing as provided herein.
      Art. 905.1 Sentencing hearing jury; commencement
      The sentencing hearing shall be conducted before the same jury that determined the issue of guilt. The order of sequestration shall remain in effect until the completion of the sentencing hearing.
      Art. 905.2 Sentencing hearing; procedure and evidence
      The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.
      Art. 905.3 Sentence of death; jury findings
      A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed. The jury shall be furnished with a copy of the statutory aggravating and mitigating circumstances.
      Art. 905.4 Aggravating circumstances
      The following shall be considered aggravating circumstances:
      (a) The offender was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery;
      (b) The victim was a fireman or peace officer engaged in his lawful duties;
      (c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;
      (d) The offender knowingly created a risk of death or great bodily harm to more than one person;
      (e) The offender offered or has been offered or has given or received anything of value for the commission of the offense;
      (f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
      (g) The offense was committed in an especially heinous, atrocious, or cruel manner. Art. 905.5 Mitigating circumstances
      The following shall be considered mitigating circumstances:
      (a) The offender has no significant prior history of criminal activity;
      (b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;

        (c) The offense was committed while the offender was under the influence or under the domination of another person;
      (d) The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;
      (e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;
      (f) The youth of the offender at the time of the offense;
      (g) The offender was a principal whose participation was relatively minor;
      (h) Any other mitigating circumstance.
      Art. 905.6 Jury; unanimous recommendation
      A sentence of death shall be imposed only upon the unanimous recommendation of the jury. If the jury unanimously finds the sentence of death inappropriate, it shall recommend a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.
      Art. 905.7 Form of recommendations
      The form of jury recommendation shall be as follows:
      “Having found the below listed statutory aggravating circumstance or circumstances and, after consideration of the mitigating circumstances offered, the jury recommends that the defendant be sentenced to death.
      Aggravating circumstances or circumstances found:
      s/_ Foreman”
      or
      “The jury unanimously recommends that the defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence.
      s/ _ Foreman”
      Art. 905.8 Imposition of sentence
      The court shall sentence the defendant in accordance with the recommendation of the jury. If the jury is unable to unanimously agree on a recommendation, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.
      Art. 905.9 Review on appeal
      The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive. The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review. (1976 La. Acts No. 694 § 1.)

      . This last sentence was added after the Green decision, infra, not for the purpose of accepting the plea of guilty without capital punishment but to effectively require the court to accept the plea if entered with the consent of the District Attorney.

      . Art. 3. Procedures not otherwise specified
      Where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the provisions of this Code and other applicable statutory and constitutional provisions.

      . Since under the present statutory scheme the jury (after considering the aggravating and mitigating circumstances enumerated in La.C.Cr.P. Arts. 905.4-905.9) can recommend a defendant found guilty of first degree murder receive a sentence of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence (in essence of qualified verdict) and the judge is bound to follow this recommendation, there is no compelling reason (as there existed under the 1973 scheme) to bar a defendant from pleading guilty without capital punishment to a capital offense.


source: Caselaw Access Project

author: DENNIS, Justice. BLANCHE, Justice MARCUS, Justice

license: Public Domain

text:
    Alma LeBLANC v. STATE of Louisiana and the Louisiana Department of Highways.
    No. 81-C-3239.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      Larry A. Roach, Lake Charles, for applicant.
    Marshall W. Wroten, Robert J. Jones, David K. Balfour, John W. King, Baton Rouge, for respondent.
   DENNIS, Justice.

In this case we consider whether the plaintiff motorist’s inattention in allowing her vehicle to stray from the roadway onto a dangerously low shoulder followed instinctively, by her immediate swerve back onto the elevated road surface precludes her recovery from the Department of Highways for injuries sustained in a resulting accident. The trial court found that the four to six inch dropoff between the roadway and the shoulder was the principal cause of the accident and held for the plaintiff motorist. The appeals court reversed, however, on the ground that the plaintiff’s failure to stabilize her vehicle after its two right wheels dropped to the shoulder constituted deficient conduct and thus barred her recovery. We reverse. The Department’s duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist’s inadvertent encounter with an unexpected, sharp dropoff from the roadway and her consequent instinctive over-steering of her vehicle.

The plaintiff, Alma LeBlanc, a sixty-one year old widow, was returning from a fishing trip in Cameron Parish with her pet Chihuahua at the time of the accident. As a result of her injuries, she is paralyzed from the waist down, suffers constant pain, and must be cared for continually by her daughter. The trial court awarded her $638,000 for her medical expenses, care and therapy, pain and suffering.

The uncontroverted facts as recited by the trial judge are as follows:

“The accident occurred on La. Highway 27 during daylight hours between mile post markers 18 and 19. Alma LeBlanc, plaintiff, was traveling northward on La. Highway 26 and reached a point in the road where a curve began in which the road changed from a northeasterly direction to a northerly direction. This resulted in a left turning curve to a north traveling driver. The curve was rounded and the angle was not remarkably acute. “La. Highway 27 in this stretch was a two-lane highway with asphalt surface and narrow shoulders covered with loose clam shell. On the outside of the curve (east shoulder) the roadway was some four to six inches higher than the shoulder.
“On entering the curve, plaintiff accidentally drove her automobile off the roadway onto the shoulder. She experienced the sensation of the dropoff. She testified that she pulled back onto the highway and lost control. The physical evidence of tire marks suggest(s) that she may have lost control while still on the shoulder. Nevertheless, upon regaining the surface of the highway, plaintiff could no longer control her automobile and turned sideways in the road where she was struck broadside by an automobile in the south-bound lane. Plaintiff’s vehicle then entered a canal on the west side of the road.”

Regarding the crucial moment before the accident the plaintiff testified: “ * * * I seen cars coming approaching me, so I stayed to my side; made sure I was over to my side, and then the next thing I knew there was a drop-off. I had stepped off of the . .. dropped off of the highway, and I pulled ... quick — pulled back up onto the highway, and I lost control, and that’s all I ever remembered.” The other evidence of record corroborates and does not conflict with this testimony.

On defendant’s appeal, the appeals court affirmed the finding of the trial court that the Department had been negligent in allowing the dangerous shoulder condition to exist but reversed its decision as to the plaintiff’s claim against the Department. See 405 So.2d 635. The court of appeal held that the plaintiff had been contributorily negligent and was barred from recovery because of her attempt to remount the roadway, instead of gradually slowing her vehicle, and then maneuvering it safely back onto the paved surface. The appellate opinion indicates that the court thought this result was somehow required by our decisions in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) and Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

The court of appeal, seeking to extract rules of precedent from our previous opinions instead of evaluating the relationship between the department’s duty and the particular risk involved here, fell into error because of a faulty approach. In Rue v. State Department of Highways, this court held that the Department’s duty to maintain safe highway shoulders imposed an obligation to protect a motorist who inadvertently drove onto the shoulder from the risk of striking an unexpected deep rut caused by negligent maintenance. Id 1198 n. 2, 1199. But all rules of conduct are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it shows that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. Hill v. Lundin, 260 La. 542, 256 So.2d 620 (1972) (quoting Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956). Accordingly, in a later case presenting the question of whether a different type of risk was protected against by the same legal duty, this court reexamined the Department’s obligation to maintain highway shoulders and held that the duty is not imposed to protect a motorist against a shoulder defect of which he has full knowledge and a reasonable opportunity to avoid. Sinitiere v. Lavergne, supra.

In the present case the particular risk which gave rise to plaintiff’s injuries was unlike those from which harm resulted in the previous cases. As opposed to the motorist in Rue, Mrs. LeBlanc’s accident resulted not only from her inadvertence in straying from the road and encountering an unexpected shoulder defect. These factors in combination with her instinctive overreaction when her wheels dropped onto the low shoulder caused her injuries. Unlike the motorist in Sinitiere, Mrs. LeBlanc had no knowledge or notice of the shoulder defect before encountering it and no reasonable opportunity to avoid it. Although the dropoff in the present case was substantial, it was not immediately apparent to a motorist approaching the curve at a normal speed. Mrs. LeBlanc had never driven on the road before, and there were no signs to alert her to the drop-off. Discovering the dropoff only as her wheels slipped over the edge, Mrs. LeBlanc’s immediate instinctive reaction led directly to her loss of control and the accident. Consequently, it is necessary that we carefully examine the facts of the present case to determine whether there is a legal duty imposed upon the Department which protects against the particular risk involved.

The accident in this case occurred because of the four to six inch dropoff of the shoulder at the site of the mishap. If the Department had maintained the shoulder at the same or approximate elevation of the roadway the plaintiff probably would not have lost control of her car. The evidence is undisputed that the four to six inch drop-off of the shoulder created a dangerous hazard to motorists and was a cause in fact of Mrs. LeBlanc’s accident.

If the defendant’s conduct of which the plaintiff complains is a cause in fact of the harm, we are then required in a determination of negligence to ascertain whether the defendant breached a legal duty imposed to protect against the particular risk involved. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Jones v. Robbins, 289 So.2d 104 (La.1974); Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogue on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1 (1973). The basic question, therefore, is whether the risk of injury from a motorist’s instinctive reaction to an unexpected four to six inch dropoff from a paved highway to its shoulder, produced by a combination of the Department’s failure to provide a continuous even surface and the plaintiff’s inadvertent straying onto the shoulder, is within the scope of protection of the rule of law which requires the Department to maintain safe highway shoulders.

We are of the opinion that the Department was under a duty to protect this plaintiff from the risk which gave rise to her injuries. One purpose of a highway shoulder is to provide a margin of error for the safety of motorists. A highway without a shoulder or one which never permits safe deviation from the main traffic lanes would be intolerably unsafe. Of course, the duty imposed on the Department is tempered by common sense. As this court held in Sinitiere, it does not protect a motorist against a shoulder defect or obstruction of which he has knowledge and a reasonable opportunity to avoid. But in the absence of such knowledge and opportunity, the motorist is entitled to assume that a highway shoulder is maintained in a reasonably safe condition and that his inadvertent deviation onto it will not lead to disastrous consequences. One witness qualified as an expert in driving techniques by the Department, when asked if it is an accepted fact that people do get off of the traveled portion of the roadway, replied that “we all do.” Moreover, a motorist’s instinctive overreaction to an abrupt dropoff between roadway and shoulder is part of the risk against which the legal duty is designed to protect. It may be true, as the Department’s experimental evidence demonstrated, that an expert driver with advance knowledge of a six inch dropoff can deviate on to the shoulder at high speed and return safely to the highway by holding the steering wheel steady and making a gradual reentry. Nevertheless, as the Department’s driving technique expert testified, the natural instinct of an ordinary driver, without prior warning or specific training, is to attempt to regain immediate entry onto the highway, thereby creating a risk of loss of control. Because a substantial percentage, if not a majority, of ordinary drivers encountering an unexpected four to six inch descent upon inadvertently deviating slightly from the roadway would react instinctively as Mrs. LeBlanc did, the legal duty of the Department to maintain safe highway shoulders is imposed to protect against this risk.

The Department has not complained of error in the trial court’s assessment of Mrs. LeBlanc’s damages in either this court or the court of appeal. Accordingly, the court of appeal judgment is reversed, and the trial court judgment is reinstated at defendant’s cost.

REVERSED; TRIAL COURT JUDGMENT REINSTATED.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

BLANCHE, Justice

(dissenting).

For the reasons we stated in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), the court of appeal reversed the finding of the trial court that the four to six inch dropoff was the principal cause of the accident. Also for the reasons assigned in Sinitiere, I must dissent from the majority opinion, believing that the opinion of the court of appeal was correct.

The majority opinion seeks to distinguish the facts of this case from those of Siniti-ere, but in doing so fails to recognize that a crucial portion of the inquiry must be whether Mrs. LeBlanc was negligent in immediately attempting to swerve back onto the roadway without slowing down to be certain she had control of her car. I agree with the finding of the trial court that the Department was negligent in allowing a dangerous shoulder condition to exist; however, I cannot subscribe to the opinion of the majority that a person who “instinctively” swerves back onto the roadway somehow owes less of a duty of reasonable care than a motorist who drives along the shoulder before attempting to re-enter the roadway. Indeed, just the opposite would seem true and this writer seriously doubts whether this court would relieve the “instinctive swerver” from liability if some 3rd person was killed or injured when the instinctive swerver reentered the highway.

In Sinitiere v. Lavergne, supra, a motorist inadvertently allowed his two right wheels to ease onto the shoulder of the road. Aware that he was on the shoulder, the motorist slowed to approximately 40 miles per hour, but sought to re-enter where there was a three to four inch drop-off. When his right wheels struck the paved surface, the motorist lost control of his vehicle and careened across the center line where he was struck by an oncoming car. 391 So.2d at 823, 824. We held that the motorist breached the duty of reasonable care owed to himself and other motorists in the vicinity by attempting to swerve back onto the road at the point of the dropoff while still travelling at 40 miles per hour. Id. at 826. As we noted in Sinitiere, a motorist’s duty of reasonable care includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir. 1975), writ denied 325 So.2d 608 (La.1976). Mrs. LeBlanc testified that she was travelling “around 45” and “dropped off the highway,” then “quick-pulled back up onto the highway” where she lost control of her car. If anything, Mrs. LeBlanc was less careful in re-entering the roadway than the motorist we deemed to be negligent in Sinitiere. As opposed to that motorist, Mrs. LeBlanc, knowing that she had driven off onto the shoulder of the road, swerved into the dropoff without slowing down.

In Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) we held that mere inadvertence in allowing one’s wheels to stray onto the shoulder of a highway was not necessarily such substandard conduct so as to bar recovery from the highway department where the department had allowed a dangerous shoulder condition to exist. However, in Sinitiere, where the shoulder defect was a dropoff, we imposed a duty upon the motorist who negligently allows his vehicle to stray off of the roadway to exercise reasonable care in re-entering. Mrs. LeBlanc made no attempt to slow down before re-entering, but instead “quick-pulled back up onto the highway” where she lost control of her car. For these reasons assigned, I would find that Mrs. LeBlanc’s negligence in re-entering the roadway is a bar to her recovery.

Accordingly, I respectfully dissent.

MARCUS, Justice

(dissenting).

I agree that, generally, when a person inadvertently drives onto the shoulder of the road, there is an instinctive reaction to reenter the road. However, not so, where, as here, plaintiff experienced the “sensation of the dropoff” (from four to six inches) as she inadvertently traveled onto the shoulder of the road. I consider her attempt to pull back onto the highway under these circumstances to have been unreasonable. Rather, she should have slowed down until she gained control of her vehicle before attempting to re-mount the highway. In my view, her negligent conduct was a contributing cause of the accident which would bar her recovery. Accordingly, I respectfully dissent.

       In that case the defendant motorist inadvertently allowed his right two wheels to stray from the roadway onto the shoulder, where he was alerted to the existence of the sharp offset between the pavement and the shoulder. After travelling about one hundred feet on the shoulder in complete control, the motorist consciously attempted to climb this offset back onto the roadway at a speed of 35 to 40 miles per hour in the face of oncoming traffic. He lost control on attempted reentry and collided with an oncoming car.


author: DENNIS, Justice. MARCUS, Justice LEMMON, Justice,

text:
    STATE of Louisiana v. Christine RAYMO.
    No. 81-KA-3151.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Douglas H. Allen, Asst. Dist. Atty., for plaintiff-appellee.
    Martin S. Sanders, Jr., Sanders & Cas-tete, Ltd., Winnfield, for defendant-appellant.
   DENNIS, Justice.

This case presents the question of whether forgery may be committed without an intent to injure or prejudice the rights of another. Defendant, Christine Raymo, was convicted of attempted forgery, La.R.S. 14:27, 72, and sentenced to nine months in jail. We reverse. One essential element of a forgery prosecution is proof of an intent to defraud, i.e., an intent to injure or prejudice the rights of another. The record is devoid of any evidence from which the jury reasonably could have inferred that the defendant made a false signature with such an intent.

On October 21, 1981, Christine Raymo entered Shirley’s Pharmacy in Winnfield, Louisiana and presented to pharmacist Thomas Thompson a prescription form, bearing the signature of Dr. Ratnam B. Nagalla, for forty Seconal capsules, to the order of “Mary T. Hill.” After asking how much it would cost to have the prescription filled, Raymo left the pharmacy for the purpose of obtaining more money to pay for the drugs. When she returned, Thompson became suspicious of the signature and format of the prescription and sent a store employee next door to Dr. Nagalla’s office to verify its authenticity. Upon the employee’s return, Thompson confronted Ray-mo, telling her that the prescription was an obvious forgery and that he was going to contact the police. Raymo was subsequently arrested and taken to the police station. At the station, she gave a taped statement in which she admitted writing the prescription, signing Dr. Nagalla’s name and attempting to use it to secure drugs for her personal use.

Forgery is defined by the criminal code in two ways:

“Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.
“Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.
u * * * a
La.R.S. 14:72.
An “intent to defraud” is an essential element of forgery under either definition. The Reporter’s Comment under La. R.S. 14:72 provides:
“Intent to defraud:
“A general intent to defraud should be an essential element of forgery. However, it is unnecessary that an injury result from the actual consummation of the fraud, since the intent to defraud is sufficient. State v. McCranie, 192 La. 163, 187 So. 278 (1939). It is also unnecessary to prove that the offender intended to defraud any particular one, for if he intended to defraud any person the crime is complete. Hence it suffices if the instrument does or may prejudice the rights of another. State v. LaBorde, 120 La. 136, 45 So. 38 (1907).
“The intent should be able to be inferred from the circumstances, as in the case of a forgery of a check the ‘jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine * * *’. State v. Dennett, 19 La.Ann. 395 (1867).”

That a general intent to defraud is an essential element of forgery is evident from the statute and the comment. Consequently, it is necessary to the offense that the offender either actively desire to defraud another or that he must have known that defrauding another was reasonably certain to result from his act or failure to act. La.R.S. 14:10. To defraud in the sense intended by the forgery definitions means to injure or prejudice the rights of another. State v. LaBorde, 120 La. 136, 45 So. 38 (1907). See W. Burdick, Law of Crimes § 663a, 551 (1946). However, it is unnecessary that an injury result from the actual consummation of the fraud, since the intent to defraud is sufficient. State v. McCranie, 192 La. 163, 187 So. 278 (1939). Furthermore, it is immaterial whom the offender intended to defraud, for it is sufficient if he intended that someone be defrauded. Louisiana, as well as several other jurisdictions, has deviated from the early common law rule that forgery required an intent to defraud a particular person. Burdick, supra, § 663, at 551; Clark and Marshall, Law of Crimes § 1243, 955-56 (7th ed. 1967).

The forgery statute is to be distinguished from La.R.S. 40:971(B)(l)(b) which makes it unlawful for any person knowingly or intentionally to “acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge * * *.” Proof of an intent to defraud is not required in every prosecution under this section of the controlled dangerous substances law. It is possible for a jury to convict upon finding that drugs were obtained without an intent of injury or prejudice to another’s right if the act was committed by misrepresentation, deception or subterfuge. If the defendant had been prosecuted and convicted for violation of the substance offense, the result on appeal undoubtedly would have been different.

Applying the forgery statute to this case, we are forced to conclude that there is no evidence in the record, even when viewed in the light most favorable to the prosecution, from which a jury could reasonably find or infer that the defendant intended to injure or prejudice the rights of anyone. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There is no evidence that she attempted or intended to obtain either medical services from the doctor or drugs from the pharmacist without paying for them. She certainly intended to deceive the pharmacist, but she did not intend to injure or prejudice anyone’s rights. Although it might be possible to conjure up a far-fetched hypothetical in which injury to a person could result from her deception, the evidence in the record does not suggest any real possibility of injury and certainly does not indicate any injury which she must have adverted to as reasonably certain to result from her act.

Our decision does not mean that, given the proper factual setting, falsification of a medical prescription could not constitute forgery under La.R.S. 14:72. If a prosecutor were faced with a case where intent to defraud could be established, he would have the option of charging the defendant with either general forgery or the more specific offense of obtaining a controlled dangerous substance through misrepresentation, fraud, forgery, deception or subterfuge. La.R.S. 40:971(B)(a)(b); see, State v. Juluke, 374 So.2d 1259 (La.1979); State v. O’Blanc, 346 So.2d 686 (La.1977). However, in a case such as the one on appeal, we cannot permit a person to be convicted of‘forgery without proof that she intended to prejudice the rights of another. To do so would be to read the words “with intent to defraud” out of the statute. Such a course would be an improper allocation of the law-making function to the judiciary, for the legislature, by including those words in the definition of forgery, obviously intended that they be given some meaning. Without them, innocent and socially acceptable behavior, such as signing another’s name to a writing as part of a practical joke without any intent to injure, would disproportionally expose the signer to a felony conviction and ten years imprisonment at hard labor and present a serious substantive due process issue. It is for this reason, we think, the legislature specified that an intent to defraud is to be an element of forgery. The legislature also realized that such a requirement would place conduct such as that of the defendant — Ms. Raymo — outside the sphere of La.R.S. 14:72. To fill in this gap, La.R.S. 40:971(B)(l)(b) was enacted, making it a crime for a person to obtain a controlled dangerous substance through any means of deception, even without an intent to defraud or injure.

Because the state’s case was devoid of evidence of an essential element of the charged offense, i.e., an intent to defraud, defendant’s conviction and sentence must be set aside, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Peoples, 383 So.2d 1006 (La.1980), regardless of how the error is brought to the attention of the reviewing court. State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981); Id., 1220 (Lemmon, J. concurring); cf., State v. Morris, 397 So.2d 1237, 1251 (La.1981) (on rehearing). Accordingly, we rest our decision on this ground without considering the defendant’s assignments of error. Moreover, since the double jeopardy clause prevents retrial when a reversal is based on insufficiency of evidence due to the state’s failure to prove an essential element of the offense, a judgment of acquittal must be entered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Nguyen, 367 So.2d 342 (La.1979).

Accordingly, for the reasons assigned, defendant’s conviction and sentence are reversed, and a judgment of acquittal is entered in her favor.

REVERSED; JUDGMENT OF ACQUITTAL RENDERED.

MARCUS and LEMMON, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

In my view, the use of a forged prescription to obtain illegal drugs evidences an “intent to defraud.” Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

The majority places too narrow a construction on the term “intent to defraud”. This court should clearly reject any suggestion that the term be limited to pecuniary matters.

One intends to defraud when one knowingly uses a false writing or signature to obtain anything of value to which one is not otherwise entitled. Here, defendant intended to defraud the doctor and the pharmacist by obtaining substances which the doctor could not prescribe and the pharmacist could not dispense to persons who were not in need of medical treatment. By presenting a prescription on which she had falsely made the doctor’s signature (which she admitted in her confession), defendant intended by means of a counterfeit document to secure by fraudulent misrepresentations a substance to which she was not entitled.

The evidence was sufficient to prove the elements of the crime.

      . At early common law, the only prejudice which was sufficient to support a charge of forgery was prejudice to an economic right. J. W. Turner, Russell on Crime, pt. 7, ch. 72 at 1238 (12th ed. 1964).
      The early Louisiana case of State v. Boasso, 38 La.Ann. 202 (Orleans 1886) interpreted the phrase “prejudice of rights” as something more than the definition of personal property. 38 La.Ann. at 206. However, what that “something” is has yet to be determined. Moreover, the court in Boasso was ruling upon a statute which required the intent to “injure or defraud” a person [emphasis added]. This statute is significantly different from La.R.S. 14:72, which requires an “intent to defraud.” The significance of the presence of the word “injure” as part of the elements of the offense lies in the fact that “defraud” alone has commercial or business connotations, which would by its nature imply a situation involving a pecuniary matter. “Intent to injure” was added to the draft of the Model Penal Code to supplement the traditional mens rea of forgery legislation specifically for the purpose of eliminating any doubt that the subject of the intent to defraud could be something other than a matter of pecuniary concern. A.L.I. Model Penal Code, art. 224.1, Reporter’s Comment 5(a).
      As a consequence, Louisiana is one of the states which the drafters of the Model Penal Code categorized as having “ambiguous coverage” under its forgery statute. A.L..I. Model Penal Code, art. 224.1, Reporter’s Comment 5(a), n.69. Given the facts of the present case, we find it unnecessary to resolve this ambiguity. Under either interpretation of the word “defraud,” the record is devoid of any evidence by which a jury could find that Christine Ray-mo intended to defraud anyone.

      . Mr. Justice Lemmon’s dissenting opinion incorrectly suggests that this case presents the question of whether an intent to defraud includes an intent to injure pecuniarily. Discussion of this question would have been pure dicta, since there was no evidence that the defendant intended any kind of injury to anyone. See footnote 1, supra. Moreover, the author of the dissenting opinion does not address the problems which would have been involved in interpreting intent to defraud as including every type of deception. Instead, he contents himself with a partial paraphrase of Black’s Law Dictionary’s definition of “defraud,” omitting a substantial portion of the definition which is contrary to his opinion. Black’s Law Dictionary defines defraud and intent to defraud as follows:
      Defraud: To make a misrepresentation of an existing material fact, knowing it to be false or making it recklessly without regard to whether it is true or false, intending one to rely and under circumstances in which such person does rely to his damage. To practice fraud; to cheat or trick. To deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.

        Intent to defraud means an intention to deceive another person and, to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.
      Black’s Law Dictionary (5th Ed. 1979), p. 381. [emphasis added].

      . Black’s Law Dictionary defines “defraud” as “[t]o practice fraud; to cheat or trick”. There is no question that defendant here intended to “trick” the pharmacist into selling her the drugs she sought. This court should adhere to the principle set forth in R.S. 14:3 that provisions of the Code be “given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision”.

      . Defendant also intended to defraud the state, which has a legitimate interest in controlling dangerous substances. See R.S. 40:972 et seq.

      . The fact that defendant could have been charged under another statute is not determinative of whether the state proved all of the elements of the crime with which she was charged. See R.S. 14:4; United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); State v. Valasquez, 376 So.2d 129 (La.1979). Further, there is no evidence of a legislative intent to limit prosecutions for such conduct to R.S. 40:971(B)(1)(b).


author: WILLIAM NORRIS, III, Justice Ad Hoc.

text:
    STATE of Louisiana v. David LEFEVRE.
    Nos. 81-KA-2988, 81-KA-3034.
    Supreme Court of Louisiana.
    Sept. 7, 1982.
    Rehearing Denied Oct. 15, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Philip Boudousque, William C. Credo, III, Stephen Wimberly, Asst. Dist. Attys., for plaintiff-appellee.
    Daryl A. Higgins, Marrero, for defendant-appellant.
   WILLIAM NORRIS, III, Justice Ad Hoc.

Defendant appeals a verdict of guilty of forcible rape and the resulting sentence as an habitual offender to sixty years at hard labor assigning as errors the trial court’s denial of defendant’s motion to suppress his confession and sentencing defendant as an habitual offender. We affirm the conviction and remand for proper sentencing.

FACTS

On August 9,1980, at approximately 2:30 p. m., the female victim was leaving the A&P Store in the M. A. Green Shopping Center in Metairie, Louisiana, when the defendant approached her offering to help carry her groceries, which offer she declined. When the victim reached her car, she placed her bags and purse on the passenger side of the vehicle and proceeded to walk around the car to the driver’s side. Thereafter, the defendant approached the victim from her left, placed a pair of scissors to her side and ordered her not to scream. He then told the victim that he only wanted her car and forced her to enter the vehicle and lie on the floor. After driving the victim around, the defendant stopped the car and ordered the victim to undress. He drove around with the victim lying nude on the seat until he later again stopped the vehicle and proceeded to accomplish the rape. The scissors remained on the seat within reach of the defendant; and during the rape, he actually choked her. After the rape, defendant returned the victim’s clothes but took her driver’s license from her purse along with some money and a picture of the victim’s son. Defendant then threatened to find and kill the victim and her son if he was stopped and questioned, exited the vehicle and left the scene.

The victim fled to her mother’s residence where she bathed, douched, brushed her teeth and changed clothes. Thereafter, she contacted the police.

One week later on August 16, 1980, the defendant was detained at the same shopping center where the initial abduction occurred. While interviewing a potential witness to the abduction, the police spotted the defendant and based on a description provided by the victim which included tattoos on the arms and a general physical description he was detained for questioning. As the defendant was being taken to his place of employment he struck an officer and escaped for several hours after which he was apprehended.

After being taken to the police station and fully advised of his Miranda rights, the defendant confessed to the robbery and the rape. Detective Toca, the officer who actually took the confession, testified that defendant was advised of his constitutional rights from a standard “Miranda” form on two occasions, advised what he was under investigation for, and that defendant stated he understood his rights, waived them and signed the Miranda form so acknowledging. Detective Toca also testified there were no promises made defendant, nor was he coerced or induced whatsoever to get him to make a statement. He further described the defendant as being in a calm, collected state and appearing to be normal. Detective Toca’s testimony was uncontradicted on these points.

The officer further testified that the confession was elicited by the use of a question and answer format. Under this procedure, the defendant would respond and as he did the officer would type the response on the statement form. After the statement was complete, the defendant read the statement, stated that it was correct and signed it. Admittedly, the statement was edited in some fashion. The officer stated that synonyms were used in place of “vernacular” terms used by the defendant in connection with his response describing his actions in raping the victim. There were no material changes made in the statement; however, it does appear that some unanswered questions were left out of the body of the form and that answers to two or more questions were incorporated into one answer.

The defendant was indicted by the Jefferson Parish Grand Jury for the offense of aggravated rape in violation of La.R.S. 14:42. He originally pled not guilty but on April 9,1981, changed his not guilty plea to not guilty and not guilty by reason of insanity.

A sanity hearing was convened on October 23, 1980, to determine if defendant was competent to assist counsel and to stand trial. After hearing extensive testimony from the members of the sanity commission, the trial judge concluded that the defendant had a problem communicating with and assisting counsel and needed further evaluation and treatment. Thereafter, defendant was transferred to the Feliciana Forensic Unit for this purpose where he remained until a second hearing was held on April 9, 1981, to determine if defendant was competent to stand trial. Based primarily on the testimony of Dr. Aris Cox, the director of forensic psychiatry for the state of Louisiana, it was concluded by the court that defendant’s problems would not prevent him from assisting counsel.

After trial, defendant was found guilty of forcible rape and sentenced to serve 30 years at hard labor, without benefit of probation, parole, or suspension of sentence for two years. After the initial sentencing, the state filed a multiple offender bill under the provisions of La.R.S. 15:529.1. Defendant was found after a hearing to be a third felony offender after which the trial court vacated its original sentence and sentenced the defendant to serve 60 years at hard labor.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, the defendant contends that it was error for the trial court to deny defendant’s motion to suppress his confession.

The thrust of defendant’s argument in connection with this assignment of error is two-fold. First, he contends that the state failed to carry its burden of proof of showing beyond a reasonable doubt that the defendant freely and voluntarily made the statement; and secondly, that if he in fact made an uncoerced statement, the resulting transcribed confession was so altered, edited or changed by the police that it gave the jury an unrealistic and/or inaccurate insight into the defendant’s state of mind at the time of the offense which effectively eliminated his defense of not guilty by reason of insanity.

We note at this point that there are no complaints made by defendant of police brutality, police promises, or police conduct designed to overcome defendant’s will and to produce a confession not the voluntary product of his own choice. Rather, it is the argument of defendant that where insanity is an issue, to prove the voluntariness of a confession, the state must also prove beyond a reasonable doubt the defendant’s mental defect did not preclude the voluntary giving of a confession. State v. Trudell, 350 So.2d 658 (La.1977).

The law is clear that when the issue on appeal is whether an accused’s level of intellectual disability precludes him from effectively understanding the essential nature of his rights to silence and counsel and of the consequences of his speech, much weight is accorded to the trial court’s assessment. State v. Coleman, 395 So.2d 704 (La.1981); State v. Trudell, supra; State v. White, 329 So.2d 738 (La.1976). Once the trial judge has determined that the state has met its burden of proof, his decision is entitled to great weight on review. State v. Coleman, supra; State v. White, supra; State v. Hall, 257 La. 253, 242 So.2d 239 (1970).

Opinions of experts on the question of “waiver” of constitutional rights may be helpful but are not binding on the trial court. The decision on the validity of a waiver is ultimately for the court. There is no controlling psychiatric principle. State v. Coleman, supra. See also State v. Bennett, 345 So.2d 1129 (La.1977).

It is equally clear that the state bears the burden of proving beyond a reasonable doubt the voluntary nature of a confession. State v. Glover, 343 So.2d 118 (La.1977).

State v. Trudell, supra involved a somewhat analogous situation to the instant case. In Trudell, the court imposed a heavy burden of proving beyond a reasonable doubt that the confession which the state sought to introduce was voluntary, a product of free and rational choice. La.R.S. 15:451. Trudell was a defendant who was mentally retarded and seventeen years of age at the time of the offense charged [armed robbery]. His IQ was approximately 60, he was psychotic, easily led and very suggestible. There, as in the instant case, the defendant was found to be unable to assist counsel and to lack the mental capacity to stand trial and was committed to the East Louisiana State Hospital at Jackson where he remained until he was found to be competent to stand trial. In the Trudell case, the defendant gave a statement which was held by the court to be admissible. This court found that the statement in question revealed that the defendant was lucid, oriented as to time and place and apparently in control of his faculties at that time. The statement coupled with the state’s unrebutted predicate testimony that the statements were made voluntarily, the sanity commission reports indicating that the statements show “no psychosis” established beyond a reasonable doubt that the statements were made voluntarily.

Although we do not have available for our review, a recording of defendant’s confession in this ease, there are other factors which lead us to conclude that the trial court did not commit manifest error in determining that the state had met its burden of proof in establishing beyond a reasonable doubt that the statement was freely and voluntarily made. State v. Glover, supra.

In the instant case, the defendant has an IQ of 80, which is classified in the dull/normal range. He functions as a slow learner. Additionally, it was the testimony of psychiatric experts that defendant’s mental functioning may in fact be higher than that reflected by testing. It is further obvious from the testimony of all of the psychiatric experts that defendant is not suggestible; if anything, he is reluctant to cooperate when he chooses to be. It is obvious that he could not be coerced by those experts into assisting with a determination of his mental status; therefore, it could be concluded that he could not have likely been coerced or induced into cooperating with the officers who took his statement.

Although there is some conflict among the opinions expressed by the expert witnesses, the trial court chose to accept the testimony of Dr. Cox concerning the defendant’s ability to assist counsel and his ability to provide a narrative statement concerning the events regarding the crime. Other psychologists and psychiatrists examined the defendant on isolated occasions and these examinations were of limited, short duration. Dr. Cox had the opportunity to examine the defendant on several occasions over a six month period of time and additionally had the benefit of the opinions of the staff of the forensic facility who had the opportunity to work with and observe the defendant over that same period of time before arriving at a final decision regarding defendant’s condition. It was the opinion of Dr. Cox that defendant could give a narrative statement. He emphasized that the defendant understood the nature of the charges against him, and the hospital records entered into evidence support this conclusion. Other experts testified that Dr. Cox was in the best position to evaluate this complex patient, and we have no reason to disagree.

Obviously, one question that had to be determined by the trial court was whether or not the defendant’s lack of cooperation was due to an inability to cooperate because of impaired mental functioning or whether or not the inability to cooperate was based on conscious choice. There is ample evidence in the record for the trial court to conclude and it obviously did conclude that the defendant chose at times not to aid the doctors or his attorney.

Therefore, we conclude that the trial court did not commit manifest error when it determined that the state had met its burden of proof in establishing beyond a reasonable doubt that the statement was freely and voluntarily made. State v. Glover, supra. The uncontradieted testimony of Detective Toca who advised defendant of his “Miranda” rights and the testimony of the experts combined with defendant’s hospital records constitute a sufficient basis for the trial court to conclude beyond a reasonable doubt that defendant was competent to give the statement and that it was freely and voluntarily made. See State v. Coleman, supra.

Defendant’s second argument in relation to this confession relates to the alleged tampering with the statement by the recording officer. Defendant contends that this confession was not introduced to prove the guilt of the defendant but rather to eliminate the defense of not guilty by reason of insanity by showing to the jury the literacy and competency of the defendant. The defense argues further that if words on the statement were altered then the resulting effect of the edited confession was to make it appear that defendant’s mental state was better than was actually the case. There is nothing in the record to support defendant’s contention that the sole purpose of admitting the statement was to show the literacy and competency of the defendant. To the contrary, there was no evidence that an act of rape occurred other than the testimony of the victim. There is no physical evidence in the record to corroborate the victim’s testimony that she was actually raped. Therefore, it is equally plausible that the state introduced this confession for the purpose of corroborating the victim’s statements that she was raped. It is further obvious that the failure of the state to introduce this confession could have caused the jury to find that the state had not proved beyond a reasonable doubt that a rape had occurred. This conclusion is bolstered by the argument of defense counsel to the jury regarding the lack of physical evidence of an actual rape.

The testimony of the officer who recorded the confession indicates that changes were made in the wording of certain answers and that unanswered questions were edited from the form. The expert testimony was essentially to the effect that while the defendant was capable of making a narrative statement some of the words in the form probably were supplied by an outside source. The question presented is whether or not this is sufficient cause to totally suppress the confession. We conclude that under the facts and circumstances presented by this case this is insufficient cause for suppression of this confession. We conclude from the testimony that the changes or alterations in the words of the defendant did not so distort the confession as to make it useless. There is no testimony or other evidence to cast doubt on the testimony of the officer who testified that the changes were only minor. Furthermore, the psychiatric testimony was to the effect that the defendant was capable of speaking, reading and understanding the language utilized in the confession.

The law is clear that a statement given by a defendant does not have to be a verbatim record of the defendant’s oral version. State v. Johnson, 327 So.2d 384 (La.1976); State v. Goins, 232 La. 238, 94 So.2d 244 (1957); State v. Comery, 214 La. 245, 36 So.2d 781 (1948).

In the absence of efforts by the recording officer to make substantial material changes in the confession, the question becomes one of fact. The defendant could and did bring forth evidence in an attempt to show that the confession did not necessarily reflect a true mental picture. Defense counsel was given every opportunity to cross examine the officer regarding any changes and to present psychiatric testimony in support of his defense. In the absence of substantial material changes, the statement could go to the jury so that it, as the trier of fact, could determine its merit. While the law requires that every confession, admission, or declaration sought to be used against an accused must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford [La.R.S. 15:450], in the absence of proof to the contrary, the fact that the purported statement of the accused as testified to by the investigating officer does not consist of a verbatim reiteration of the conversation between them due to the witness’ inability to recall or other valid explanation does not violate the rights of the accused. The law does not require the production of nonexistent portions of a confession or portions which cannot be recalled. State v. Marmillion, 339 So.2d 788 (La.1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the defendant contends that it was reversible error for the trial court to convict and sentence the defendant as an habitual offender.

At the habitual offender hearing, Jefferson Parish Deputy Sheriff Johnnie Koeppin testified and identified defendant’s fingerprints on an arrest register indicating an arrest for counts of simple burglary. In addition to the arrest register and the fingerprint card, the state filed into evidence a copy of the bill of information for simple burglary with accompanying minutes and a copy of a “waiver of rights” form executed by the defendant. Officer Koeppin also testified and identified defendant’s fingerprints on an arrest register indicating an arrest for possession of stolen property valued at $1000. Additionally, the state filed into evidence a copy of a bill of information charging defendant with receiving stolen goods with accompanying minutes and a copy of another “waiver of rights” form signed by defendant in connection with this plea of guilty. The aforementioned constitutes all of the evidence presented by the state at this hearing.

The defendant objected at the habitual offender hearing to the predicate for the state’s evidence that the guilty pleas were knowing and voluntary in the earlier proceedings in which he pled guilty. Relying on State v. Nelson, 379 So.2d 1072 (La.1980), defendant correctly contends that the burden of proof was then shifted to the state to show affirmatively a contemporaneous record that, at the time of the defendant’s pleas he was informed and made a knowing waiver of his privilege against self-incrimination, his right to a trial by jury, and his right of confrontation.

In Nelson we stated as follows:

Thus, with respect to a conviction based on a guilty plea in a Louisiana court subsequent to December 8, 1971, if the defendant objects to the predicate for the state’s evidence that the guilty plea was knowing and voluntary, the state has the burden of showing affirmatively a contemporaneous record that, at the time of the plea, the accused was informed of and made a knowing waiver of his privileges against self-incrimination, his right to a jury trial, and his right of confrontation. If the defendant does not object on this ground, the state, in order to establish the knowing and voluntary guilty plea, is required only to prove that the prior conviction resulted from the defendant’s guilty plea at which he was represented by counsel. State v. Holden, supra, 375 So.2d [1372] at 1376.

In the instant case, because the defendant objected to the predicate for the state’s evidence that the guilty plea was knowing and voluntary, the burden then shifted to the state to show a voluntary waiver of those constitutional rights. Because the record is devoid of any evidence indicating that the defendant was advised of and knowingly waived his privilege against self-incrimination, his right to a jury trial, and his right to confront his accusers, these guilty pleas cannot serve to enhance defendant’s penalty under the multiple offender statute.

DECREE

Accordingly, for the foregoing reasons, the conviction of defendant is affirmed, but his sentence is vacated and set aside, and the case is remanded to the district court for further proceedings consistent herewith.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . Our review of the record indicates that defense counsel never asked this witness what the “vernacular” terms used by defendant were.

      . In State v. Bennett, supra, we cautioned trial courts not to base judgments regarding capacity to stand trial solely on conclusory opinions of experts unsupported by enumerated factors.

      . La.R.S. 15:451 provides:
      Before what purposes 1 [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. (Footnote omitted.)