author: FORET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana v. Jarvis Dale CHAPMAN.
    No. K83-432.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Stewart Thomas, Jennings, Charles L. Bull, Jr., Welsh, for defendant-respondent.
    W. Gregory Amette, Jr., Dist. Atty., W.J. Riley, III, Asst. Dist. Atty., Jennings, for plaintiff-relator.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   ON WRIT OF CERTIORARI

FORET, Judge.

We granted this writ of certiorari upon application of the State of Louisiana, to review the trial court’s granting a new trial upon motion of a jury-convicted defendant. The major issue involved is what role does the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), play in a motion for new trial.

FACTS

On the evening of October 5, 1981, the defendant, Jarvis Dale Chapman, entered the rear portion of a religious revival tent located in the community of Topsy, Louisiana. This particular portion of the tent was concealed from the view of the congregation by means of a curtain. Once inside the tent, the defendant killed the Reverend W.O. Bowman with one shot from a .38 caliber derringer. After the firing of the shot, several members of the congregation went to the portion of the tent where the shooting had taken place and apprehended the defendant. He was later indicted by grand jury for second degree murder in violation of LSA-R.S. 14:30.1 on October 19, 1981.

At arraignment, defendant pleaded not guilty and not guilty by reason of insanity. A sanity commission was appointed, consisting of Dr. David B. Regan and Dr. Young Kang. After considering the report of the sanity commission, on January 18,1982, the court found that defendant was not competent to stand trial. He was then committed to the forensic unit of the East Feliciana Forensic Facility where he remained until the staff found him capable to stand trial, in July of 1982.

The only issue at trial was the sanity of the defendant at the time of commission of the crime. A unanimous jury of twelve felt' he was sane and found him guilty as charged. On July 23, 1982, defendant filed a motion for new trial and that motion was granted on March 11, 1983.

The State of Louisiana has taken writs to challenge the trial court’s granting of defendant’s motion and bases its argument on three assignments of error. We shall consider the first and third assignments first.

ASSIGNMENT OF ERROR NUMBER 1

By this assignment, the State contends that the trial court granted defendant’s motion for new trial without first holding a contradictory hearing as required by LSA-C.Cr.P. Article 852. This article provides:

“A motion for a new trial shall be in writing, shall state the grounds upon which it is based, and shall be tried contradictorily with the district attorney.”

The Official Revision Comment, paragraph (b) provides, in pertinent part:

“... The district attorney can be fully protected by the court’s granting of additional time to prepare to meet a surprise ground that is asserted by the defendant. ...”

The record shows that on July 23, 1982, prior to sentencing, defendant filed a written motion for new trial and the grounds upon which it was based. Both sides were present in court when the motion was made and both were given an opportunity to present their arguments. At no time did the District Attorney move to present evidence in opposition to the motion nor did he request any additional time to present a defense, even though the trial court took the motion under advisement and did not rule on it until March 11, 1983, some eight months after the initial filing by defendant. Where the minutes reflect that a motion for a new trial has been heard and argued by both sides, and no request for additional time made, then the requirements of LSA-C.Cr.P. Article 852 are met. State v. Zeno, 322 So.2d 136 (La.1975). This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 3

By this assignment, the State contends that the trial court committed error in granting the motion for new trial because the effect of this ruling would be to usurp the fact-finding power of the jury by substituting the judge’s own opinion in place of the jury’s. This assignment is without merit. There is no doubt that a trial judge, under LSA-C.Cr.P. Article 851(1) and (5), has the power to do exactly what he did. To accept the State’s argument would be to effectively repeal these sections of the article.

ASSIGNMENT OF ERROR NUMBER 2

By this assignment, the State contends that the trial judge committed error of law in not applying the Jackson standard in deciding whether to grant defendant’s motion for new trial. Simply stated, the question under Jackson is whether any rational fact-finder, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proved beyond a reasonable doubt. The State feels that the error occurred because the trial court did not view the evidence in the light most favorable to the prosecution.

Defendant’s motion was based on the grounds that the verdict was contrary to the law and the evidence and that the ends of justice would be served by the granting of a new trial. LSA-C.Cr.P. Article 851(1) and (5). Under Article 851(1), it is the duty of the trial judge to determine if the evidence is sufficient to support the verdict. State v. Daspit, 167 La. 53, 118 So. 690 (1928); State v. Rollins, 351 So.2d 470 (La.1977). Where a trial judge grants a motion for a new trial on the grounds that the evidence is legally insufficient to support the jury’s guilty verdict, the double jeopardy clause of the United States Constitution prevents the defendant from being retried on the same charge. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). Because of the power granted to the trial judge under Article 851(1) and considering that power in light of the Hudson decision, this Court feels that the same principles should be applicable whether there is a motion for a new trial based on insufficiency of the evidence or a review of the case at the appellate level. State v. Hudson, 373 So.2d 1294 (La.1979), at 1297. We therefore hold the Jackson standard is applicable in a motion for new trial based on the grounds that there is insufficient evidence to support the conviction. State v. Brown, 421 So.2d 854 (La.1982), at 858.

The rule set forth above applies equally in a case, such as the one at bar, where the issue is the sanity of the defendant. In Louisiana, an adult defendant is presumed to be sane, and if he wishes to rebut this presumption, he must prove by a preponderance of the evidence that he was insane at the time of the offense. LSA-R.S. 15:432; LSA-C.Cr.P. Article 652. Our holding here does not affect the defendant’s burden. We simply mean that the test to be applied by a trial judge in deciding on a motion for a new trial based on insufficiency of the evidence where the issue is the sanity of the defendant, is whether “a rational fact finder, viewing the evidence in the light most favorable to the prosecution, could not have concluded that the defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense”. See State v. Roy, supra, at 669.

When, however, a motion for new trial is based not on insufficiency of evidence to support a conviction but rather on other grounds enumerated under Article 851, we agree with defendant’s contention that the Jackson standard is not applicable. In other words, the Jackson standard is to be used by a trial court on a motion for a new trial only if the grounds are based on insufficient evidence to support a conviction under LSA-C.Cr.P. Article 851(1). This is not to imply that a judge is precluded from granting a new trial under Article 851(1) when he feels that although the evidence may be sufficient to support a conviction, in his opinion the verdict is still contrary to the law and evidence. In that case, the trial judge sits essentially as a thirteenth juror, much like he does when he grants a motion for new trial based on the grounds that the ends of justice would be served thereby under LSA-C.Cr.P. Article 851(5). See Justice Tate’s concurrence in State v. Hudson, supra, at 1298. See also Hudson v. Louisiana, supra, 101 S.Ct., at 973, footnote 5. In the exercise of his discretion as a thirteenth juror under Article 851(1) or (5), a trial judge is given wide discretion and his decision will not be disturbed on review in the absence of clear abuse. Official Revision Comment, LSA-C.Cr.P. Article 851(d); State v. Rollins, supra, at 472.

In the case at bar, it is unclear from the record what standard or what reasons the trial court used in granting the motion for new trial. It appears that the judge may have felt that the evidence was insufficient to convict. He states:

“... The lay testimony and the expert testimony lead this Court to believe that Chapman was legally insane within the meaning of Louisiana law and the Court further believes that no rational trier of fact could conclude otherwise.”

He did not indicate, however, if he viewed the evidence in the light most favorable to the prosecution as required by Jackson, and indicated at the July 23 hearing that he had doubts as to whether Jackson was the correct standard to be applied.

The trial court also stated that:

“To avoid injustice, this court will grant defendant’s motion.”

Thus, the judge may have ruled on the motion in his capacity as a thirteenth juror under 851(1) or 851(5) and therefore the Jackson standard would not apply.

Therefore, because of our inability to determine exactly what standard and reasons the trial court applied, the case shall be remanded to the trial court for further clarification on whether the ruling was based on his finding the evidence insufficient to convict under 851(1) or in his capacity as a thirteenth juror under 851(1) or 851(5). If he acted as a thirteenth juror and simply disagreed with the jury verdict, then the defendant shall be retried. If he applied Jackson and found the evidence insufficient, then Hudson v. Louisiana, supra, prevents retrial and the defendant shall be acquitted. If he found the evidence insufficient but did not view the evidence in the light most favorable to the prosecution as required by Jackson, then there was error of law and the motion must be reconsidered.

DECREE

We, therefore, remand this case to the trial court for further proceedings not inconsistent with this opinion.

REMANDED WITH INSTRUCTIONS.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

DOMENGEAUX, Judge,

concurring in part and dissenting in part.

I concur with the majority’s treatment of Assignment of Error No. 1, wherein the State alleges that a contradictory hearing was not held as required by Louisiana Code of Criminal Procedure Article 852. I agree that this assignment is without merit. Beyond that however, I respectfully suggest that the majority opinion is grievously erroneous.

In Assignments of Error Nos. 2 and 3, the State contends that the trial judge committed error of law by applying an incorrect standard of review in deciding whether to grant defendant’s motion for a new trial. More specifically, the State argues that the trial court did not view the evidence in the light most favorable to the prosecution under the standard mandated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State also contends the trial judge committed error of law by determining the defendant’s sanity at the time of the offense contrary to the jury verdict.

Defendant’s motion was based on the grounds that the verdict was contrary to the law and the evidence and that the ends of justice would be served by the granting of a new trial. La.C.Cr.P. Art. 851(1) and (5). Under Article 851(1), it is the duty of the trial judge to determine if the evidence is sufficient to support the verdict. State v. Daspit, 167 La. 53, 118 So. 690 (1928); State v. Rollins, 351 So.2d 470 (La.1977). The Jackson standard is applicable in a motion for a new trial based on the grounds that there is insufficient evidence to support the conviction. State v. Brown, 421 So.2d 854, 858 (La.1982); White v. Estelle, 669 F.2d 973 (5th Cir.1982). As set forth in White v. Estelle:

“The Jackson standard accommodates both the constitutionally compelled burden of proof under state law (proof beyond a reasonable doubt) and the presumption of correctness due jury verdicts generally.”
At 976.

Following the rationale of White v. Estelle, I find that the judge’s ruling is subject to review. Under La.C.Cr.P. Art. 851(5), the trial judge has plenary authority to order a new trial to do justice, even when the motion is not based on a strictly legal ground. State v. Toomer, 395 So.2d 1320 (La.1981). The ruling on a motion for a new trial is committed to the sound discretion of the trial judge. The ruling will be disturbed on appeal only when there is a clear showing of abuse of this discretion. State v. Fuller, 414 So.2d 306 (La.1982).

It is noted that when a motion for new trial is based on the supposition that the ends of justice will be better served by granting it, unless an injustice has been done to the defendant and shown to have been the case, that motion will be denied no matter what allegations it is grounded on. Such a motion is not favored by law. State v. Vinet, 352 So.2d 684 (La.1977). Further, in situations in which discretion is inappropriate, an incorrect decision is not entitled to deference (which is usually accorded to the trial court’s reasonable decision in a situation calling for discretion when resolving a new trial motion). State v. Talbot, 408 So.2d 861 (La.1981).

Although there exists a line of jurisprudence which holds that a trial judge’s ruling which grants a motion for a new trial based upon La.C.Cr.P. Art. 851(5) presents nothing for appellate review, these cases were decided before the standard of review announced in Jackson v. Virginia became applicable. See State v. Matthews, 354 So.2d 552 (La.1978). Accordingly, the standard must be one appropriate to a Jackson -type review, i.e. a second-tier review. In applying the Jackson standard, I find that the trial judge committed error in granting the motion for a new trial under La.C.Cr.P. Art. 851.

The trial judge stated in granting defendant’s motion for a new trial that “... the lay testimony and the expert testimony leave this court to believe that Chapman was legally insane within the meaning of Louisiana law and the court further believes that no rational trier of fact could conclude otherwise. To avoid injustice, this Court will grant defendant’s motion.” In an attempt to paraphrase the standard of review announced in Jackson v. Virginia, the trial judge omitted one crucial factor of the test, i.e., all the evidence must be considered in the light most favorable to the State. Also, the trial judge speculated upon the reasoning process he thought the jury used to reach its decision. Further, the trial judge gratuitously stated that the jury verdict was wrong generally because it was influenced by the public disfavor of the insanity defense, and particularly because it was a reaction to the attempted assassination of President Reagan and the shooting death of singer John Lennon. The trial judge is not permitted to make a subjective determination of defendant’s guilt or innocence, nor is it within the province of the trial judge to scrutinize the reasoning process which the jury engaged in to make its determination. The trial judge was required to consider the sufficiency of the evidence upon defendant’s motion in the light most favorable to the prosecution.

At trial, several members of defendant’s family testified. The testimony concerned past episodes relating to defendant, defendant’s childhood behavior and recent behavior, defendant’s employment history, and the series of events which culminated in the shooting death of the Reverend Bowman.

Rev. John C. Hair, defendant’s pastor, testified at trial. He and his wife had visited defendant pending trial at defendant’s request. Defendant disclosed to Rev. and Mrs. Hair that he knew it was wrong to kill Reverend Bowman and that he wanted to tell the truth, but he was afraid that this would result in his being sent to Angola.

John Hamilton, defendant’s closest friend, testified at trial that on the day of the murder, defendant attempted to engage his help in the commission of the crime. Defendant asked to use Hamilton’s gun and also wanted Hamilton to act as a lookout. When Hamilton refused, defendant stated: “If you ain’t gonna help me, I done said too much.”

Rev. Albert Lyle, another Pentecostal minister, stated that immediately after Reverend Bowman was shot, when defendant was asked the reason for the incident, defendant’s only reply was: “I want my lawyer.”

Of the family members, only defendant’s mother gave testimony which indicated that defendant might have experienced difficulty in coping with everyday problems. Mrs. Chapman testified that defendant was fearful, dependent, and withdrawn. She also stated that defendant once told her he had no reason to live anymore. However, each of the other relatives and friends expressed the opinion that defendant outwardly did not seem disturbed or abnormal. The overall concensus reached by these witnesses was merely that defendant kept to himself, did not participate in family activities, and relinquished his religious practices.

The only expert witness to testify was Doctor Regan, who qualified as a psychiatrist specializing in forensic medicine. The doctor examined defendant on several occasions, totalling seven hours of psychiatric analysis. Doctor Regan also conducted “interviews” with defendant’s parents in order to gather a complete medical history of defendant. The psychiatrist did not, however, obtain any information from anyone else associated with defendant. From this information, Doctor Regan concluded that defendant was suffering from chronic schizophrenia, paranoid type, which prevented defendant in distinguishing between right and wrong at the time of the offense under the elements of the M’Naughten test. On cross-examination by the State, Doctor Re-gan admitted that his determination might be incorrect. He also admitted that there existed the possibility that defendant lied about his delusions, faked psychosis, and that defendant actually knew at the time of the crime that his actions were “morally” wrong. Upon further questioning by the State, Doctor Regan also revealed that shortly after defendant shot the Reverend Bowman he appreciated the wrongness of his actions, so that his period of insanity, i.e. the inability to discern right from wrong, lasted for only several minutes (from the time defendant crossed the street to the revival tent until he fired the gun).

The jury had the opportunity to hear and consider all the evidence presented. In this case, the jury exercised its function by drawing conclusions from the evidence, granting credence to certain testimony, and then determining the defendant’s guilt, implicitly finding the defendant sane, i.e., defendant knew that his actions were wrong when he shot Reverend Bowman. From this verdict, it is apparent that the jury was not persuaded by the lay or expert testimony rendered on behalf of the defendant to establish his insanity plea. It is also clear that the jury was convinced beyond a reasonable doubt that defendant was fully aware that it was wrong to shoot Reverend Bowman.

In reviewing the record, I find that the jury believed that the State produced sufficient evidence to prove guilt beyond a reasonable doubt; and that the jury found that the defendant failed to sustain the burden of proving insanity at the time of the homicide; so that the jury, acting as a rational trier of fact and viewing the evidence in the light most favorable to the State, could have found the essential elements proved beyond a reasonable doubt. The cogency of the jury’s findings and the conclusive weight given to it is set forth by the Louisiana Supreme Court in State v. Abercrombie, 375 So.2d 1170 (La.1979):

“Applying this test, we have little difficulty in finding that the evidence overwhelmingly supports a determination that, due to the accused’s severe paranoid schizophrenia, he was irresistibly compelled to accept the perceived direction of the higher beings who he felt controlled him by reason of which he did not know that it was morally wrong to kill the victim.
On the other hand, the expert evidence also admitted that the accused knew it was ‘humanly wrong,’ being illegal, to kill another human being.
The difficulty is that the M’Naughten test of legal insanity, i.e., being capable of distinguishing between right and wrong with regard to the conduct in question, is not in origin or application a medical or scientific concept. The testimony and opinion of medical experts are almost essential for determining whether a mental disease or defect affected the defendant’s conduct, and they also have weight in the decision whether because of this mental condition (as required) the accused could not distinguish between ‘right’ and ‘wrong’.
However, in the last analysis, it is rather a question of law than of medicine as to what the cognizable ‘wrong’ is; a legal rather than a medical question is presented by the issue of whether an accused is legally insane who knows it is legally wrong to kill another human being, but who does not know it is morally wrong (being under a delusion or compulsion produced by severe mental disease). Indeed, the predominant practice in American jurisdictions seems without discussion to leave it to the factual determination of the trial jury to determine whether the defendant was capable of knowing right from ‘wrong’ with regard to the conduct complained of, without specifying as a matter of law whether the defendant must know it to be ‘morally’ or instead ‘legally’ wrong. LaFave and Scott, Criminal Law 278-279 (1972). The jury is thus free to exculpate for legal insanity on either basis, providing that the inability to know is a product of a mental disease or defect.” (Emphasis added). At 1178.

In the instant case, the jury evaluated all the evidence at trial and determined that the evidence supported a verdict of second degree murder. While the trial judge has great discretion under the power accorded to him by La.C.Cr.P. Art. 851(1), I feel that there has been an abuse of that discretion. The trial judge interposed his opinion and supplanted the jury’s verdict even though there was sufficient evidence to convict defendant. The unanimous vote returned by the jury found defendant sane and guilty as charged based upon testimony by those- expert and lay witnesses presented at trial State v. Poree, 386 So.2d 1331 (La.1980). With reference to the jury’s verdict, I think that the trial judge, in granting defendant’s motion for a new trial, failed to consider all of the evidence in the light most favorable to the prosecution by relying almost exclusively on the psychiatrist’s testimony, despite Doctor Regan’s equivocation as to several critical aspects of the sanity issue. See State v. Abercrombie, at 1177.

Further, I conclude that the trial judge committed manifest error by finding defendant legally insane under Louisiana law.

“When the defendant pleads ‘not guilty and not guilty by reason of insanity’ the court is prohibited from determining the defendant’s sanity at the time of the offense; this question is reserved for the jury.” The burden is on the defendant to prove his insanity, codified by La.C.Cr.P. Art. 652. State v. Link, 301 So.2d 339 (La.1974); State v. Sonnier, 379 So.2d 1336 (La.1979). The trial judge did not have the authority under La.C.Cr.P. 851(1) to usurp the fact-finding power of the jury simply because, in his opinion, the defendant was insane.

“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.”
Jackson v. Virginia, at 319, 99 S.Ct., at 2789.

I determine that the jury’s verdict in no way violated defendant’s fundamental due process protection.

It is my opinion that the trial judge also abused his discretion by basing his ruling upon the rationale used by the jury to reach a verdict.

“The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder — if known. * * * ”
Jackson v. Virginia, at 319, n. 13, 99 S.Ct., at 2789, n. 13.

Because the abuse of discretion amounts to error of law, I would find it necessary to set aside the trial judge’s ruling which granted defendant a new trial, State v. Credeur, 328 So.2d 59 (La.1976), and order the verdict of the trial jury reinstated.

For the above and foregoing reasons, I respectfully dissent from the portion of the majority opinion which remands the case to the trial court for further proceedings.

      . Jackson v. Virginia, supra. This standard of appellate review has been adopted in Louisiana. State v. Claibon, 395 So,2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981).

      . LSA-C.Cr.P. Article 851(1) and (5) provide that a motion for new trial shall be granted whenever,
      “(1) The verdict is contrary to the law and the evidence;
      (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.”

      . Defendant’s able brief seeks to differentiate between a motion for new trial and a review of a case on appeal and maintains that different standards should be applied for the two. He states:
      “... Granting a reversal based on Jackson is a final resolution of the case that precludes further prosecution. Granting a motion for a new trial is not.” (Defendant’s brief, page 6.) According to Hudson v. Louisiana, supra,
      this argument is simply incorrect when a trial judge grants the motion based on insufficiency of evidence; in that case, since the trial court acts essentially as an appellate court, we feel the standard used by the appellate courts should also govern the trial court.

      . We note that whenever the trial judge determines that a rational fact finder could not have concluded that the defendant did not carry his burden, then the defendant must be acquitted, not retried. Any confusion on this issue which remained after the Roy decision is now cleared up by the U.S. Supreme Court’s ruling in Hudson v. Louisiana, supra.

      . This standard of review has been adopted in Louisiana. See generally State v. Claibon, 395 So.2d 770 (La.1981); State v. Roy, 395 So.2d 664 (La.1981). Under Jackson, the reviewing court must “determine whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt.” 443 U.S. at 318, 99 S.Ct. at 2788. The requisite test is whether any rational fact finder, viewing the evidence in the light most favorable to the prosecution could have found the essential elements of the offense proved beyond a reasonable doubt. State v. Mathews, 375 So.2d 1165 (La.1979).

      . Although reviewing courts are obligated to follow the Jackson standard as mandated by the Louisiana Supreme Court, the author of this concurring and dissenting opinion has expressed opposition to this standard because it relegates the reviewing power of the appellate courts to nothing more than “second-guesswork” of the triers of fact. See State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983), concurring opinion, and cases cited therein.

      .La.C.Cr.P. Art. 851(1) and (5) provide;
      “(1) The verdict is contrary to the law and the evidence;
      ⅜ ⅝ ⅜ ⅝ ⅜: #
      (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.”

      . When a trial judge grants a motion for new trial on the grounds that the evidence is legally insufficient to support the jury’s guilty verdict, the double jeopardy clause of the United States Constitution prevents the defendant from being retried on the same charge. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981).

      . During the trial it was determined by this Court upon emergency writ application filed by the State that these oral inculpatory statements were not privileged communications between clergyman and penitent under La.R.S. 15:477.

      . The origin of the insanity rule is McNaughten’s Case, 1 Car. & K. 130 (1843). The test has been adopted in Louisiana, in La.R.S. 14:14, which provides:
      “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.”


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edward Frank RAINEY, Defendant-Appellant.
    No. CR82-760.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Kenneth E. Badon, Cameron, Thomas L. Lorenzi, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

On May 14, 1981, the defendant, Edward Frank Rainey, was indicted by the Cameron Parish Grand Jury; Rainey was charged with one count of aggravated rape under LSA-R.S. 14:42. On August 26, 1982, the charge was amended to one count of sexual battery, LSA-R.S. 14:43.1, on motion of the State, and Rainey entered a plea of guilty. A presentence investigation was ordered by the court after being requested to do so by defendant’s counsel. After receiving this report and having a presentence hearing, at which the defendant presented several character witnesses, the trial judge sentenced Rainey to the maximum prison term of ten years as provided for by LSA-R.S. 14:43.1.

The assignments of error present two issues:

(1) Whether the sentence is excessive, under the circumstances of this case, in violation of the defendant’s constitutional guarantees as provided in Art. I § 20 of the Louisiana Constitution of 1974; and
(2) Whether the trial court complied with Louisiana Code of Criminal Procedure article 894.1.

The basic facts concerning Rainey, the victim and the commission of the offense are as follow:

Rainey is 34 years old; he has six prior convictions which resulted in three jail or prison terms and three probated sentences. During each probationary period- Rainey was convicted of a subsequent offense. The victim was an unmarried female 17 years of age; medical evidence confirmed she had never engaged in sexual intercourse before this incident. Defendant induced the victim to accompany him to an isolated spot in Cameron Parish on the pretext of the victim test driving a ear which Rainey had for sale. The defendant made complete vaginal entry upon the victim with both his hands and his genitals; the victim was also made to perform an oral genital sex act on the defendant.

The main thrust of the defendant’s argument concerning the excessiveness of the trial judge’s sentence arises from statements made by the judge. At defendant’s sentencing the trial judge said:

“[M]r. Edward Frank Rainey, you stand before me having entered a guilty plea to the crime of sexual battery, in violation of Revised Statute 14:48.1.... First of all, I’d like to comment on the facts of the crime itself. If the version of the incident which was related by the victim is accepted, then I do not think the defendant was overbilled. I think that all of the elements for the crime of aggravated rape were present. But naturally enough, the version offered by the defendant conflicts with that of the victim .... [N]ow even under the defendant’s version of the story I feel that a violation of Revised Statute 14:42.1, forcible rape, is evident....”

Defendant argues that the trial judge was influenced by the original charges brought against the defendant and that the trial judge, being improperly influenced, imposed the maximum sentence under the sexual battery statute when the circumstances of this case did not justify such a maximum sentence.

The law concerning excessive sentences is well settled; the following general statements require no citation. First, a sentence, although within the statutory limit, may violate a defendant’s constitutional right against being subjected to excessive punishment. Further, a sentence is excessive and unconstitutional if it is grossly out of proportion to the severity of the crime; that is, considering the crime in light of the harm to society caused by its commission and the punishment meted out for that crime, is the penalty or sentence so disproportionate as to shock the appellate court’s sense of justice. Regarding the imposition of a maximum sentence under a particular statute, it has been held that maximum sentences are appropriate only in cases involving the most serious violation of the relevant statute and the worst type of offender.

We do not believe that the trial judge lost sight of either the actual crime to which Rainey pled guilty or the constraints placed on courts when imposing maximum sentences. Continuing the above quotation of the trial judge’s statements at sentencing, we find:

“[B]ut he is not before the Court on forcible rape. He’s before the Court on the lesser charge of sexual battery. But the Court cannot ignore the fact that he has committed an act which is far more serious than this reduced charge to which he has entered a plea of guilty. I think it is appropriate ... one of the few times where I ■think it is appropriate to impose a maximum sentence, which is ten years with the Department of Corrections.”

In State v. Lanclos, 419 So.2d 475 (La.1982), a maximum sentence for sexual battery was imposed upon the defendant after a plea bargain had reduced the charge of forcible rape. There, our Supreme Court said:

“In the instant case the record provides factual grounds which are more than adequate to support the sentence imposed. The offense of sexual battery does not fully describe the defendant’s conduct. By his own confession he is guilty of rape. The trial judge clearly considered this fact in deciding to impose the maximum sentence on the defendant.”
“This court has held that maximum sentences are appropriate only in eases involving the most serious violation of the relevant statute and the worst type of offender. State v. Jones, 398 So.2d 1049 (La.1981). In a case such as this, where the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court’s great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered.”

The Supreme Court went on to state that where a defendant has received a significant reduction in potential exposure to imprisonment through a plea bargain the above is “particularly true.” In Landos, the defendant’s potential maximum exposure to imprisonment fell from forty years to ten years. In the instant case the defendant was originally subjected to a potential sentence of life imprisonment; after the charge was reduced defendant faced a maximum of only ten years.

A trial judge is given wide discretion in the imposition of sentences within statutory limits. Absent a manifest abuse of discretion the sentence imposed by a trial judge should not be set aside as excessive. Considering the minimal contact which could constitute a sexual battery and the conduct Rainey had admittedly engaged in, in this case, we believe Rainey’s actions amount to the “most serious violation” of the sexual battery statute. Further, we find that Rainey, a 34 year old multiple offender, who lured a 17 year old to a desolate spot and engaged in the above described activity, is the “worst type offender.” The maximum sentence of ten years for sexual battery under the circumstances of this case is not excessive.

Defendant’s counsel makes several arguments under its general statement that the trial judge’s sentence was “contrary” to art. 894.1 of the Louisiana Code of Criminal Procedure. We have reviewed the record, the trial judge’s statements made at the sentencing and his reasons for sentencing and find no merit to these arguments. The trial judge specifically mentioned factors which follow the guidelines of 894.1(A), the aggravating factors, and explained why he felt none of the 894.1(B) factors, the mitigating factors, were present. It is not necessary that a trial judge articulate every aggravating or mitigating circumstance presented in art. 894.1, but the record must reflect that these factors were adequately considered to insure that the sentence was particularized to this defendant. State v. Guiden, 399 So.2d 194 (La.1981), U.S.Cert. den., 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). Again the Landos case provides language which is applicable in the instant case.

“[AJrtide 894.1 is not an exclusive'listing of factors to be considered in imposing a sentence. Any and all relevant factors can and should be taken into account by the trial court. The aim of Article 894.1 is to make the punishment fit the criminal as well as the crime. To meet that ideal, a trial judge must consider every circumstance surrounding the offense, including plea bargaining. To do otherwise would be to ignore clearly relevant information which has an important bearing on the true nature of the defendant’s conduct and the type of punishment most appropriate for that conduct. This court has upheld sentences which were based in part on the effects of a plea bargain. See State v. Stegall, 377 So.2d 103 (La.1979), State v. Washington, supra [414 So.2d 313 (La.1982)]. We find no error in the trial judge’s use of the plea bargain as a factor in determining the sentence to be imposed on this defendant.”

State v. Lanclos, 419 So.2d 475, 478 (La.1982).

We find no error in the trial court’s compliance with art. 894.1. We find that the sentence is not excessive under the circumstances.

For these reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . Our attention has been called to the fact that the “Certifícate of Examination of the Record,” prepared by this court’s personnel and placed in the record, reflects that the sentence was “Ten (10) yrs. without the benefit of parole.” This was error and arose from a misinterpretation of the minutes. The minutes of the clerk of the trial court reflect that the defendant was sentenced to “10 years with the Department of Corrections without the benefit of probation, nor suspension.”
      In the trial judge’s discussion of the sentence he imposed the sentence of 10 years with the Department of Corrections and then added that there was to be no probation or suspension. Further reading of the trial judge’s reasons for the sentence shows that he was saying that he (the trial judge) would not suspend and probate the sentence. The way the minutes were prepared could create some confusion. The minutes have been corrected to remove any ambiguity, showing that the sentence of the defendant was that he serve 10 years with the Department of Corrections. Likewise, our Certificate of Examination has been so corrected.


author: YELVERTON, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Roger Claude MYERS, Defendant-Appellant.
    No. CR82-842.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 16,1983.

      David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for defendant-appellant.
    Roger Claude Myers, in pro. per.
    W.C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   YELVERTON, Judge.

Defendant, Roger Claude Myers, was charged by bill of information with armed robbery. A jury found him guilty of simple robbery. The trial court sentenced him to seven years at hard labor. Defendant appeals his conviction and presents eight assignments of error.

FACTS

On December 15,1981, a man entered the City Savings Bank and Trust Company of DeRidder, Louisiana, and handed teller Theresa Durham a note which declared he was intent on robbing the bank and was armed with a gun. Ms. Durham complied with his request and handed him approximately $4,900 in cash. After warning her not to set off any alarms, the man left the bank and fled the scene. At trial, Ms. Durham identified defendant as the bank robber.

On January 2, 1982, defendant was arrested in Texas, on authority of an N.C.I.C. Teletype stating that he was wanted by the FBI in connection with the DeRidder bank robbery.

On January 4,1982, defendant was transferred by United States Marshalls to a federal district court in Beaumont, Texas, where he was arraigned and waived extradition. He was subsequently transported to the Calcasieu Parish Jail in Lake Charles, Louisiana, in federal custody. During his incarceration in Lake Charles he made an inculpatory statement and was identified in a lineup by eyewitnesses as the bank robber.

He was formally charged by the State of Louisiana by bill of information dated January 29,1982. From that time on he was in State custody. At the preliminary examination on February 26, 1982, defendant admitted to robbing the bank but claimed he was not armed. In June, defendant successfully petitioned the court to dismiss his court-appointed attorney. Defendant represented himself for the remainder of the proceedings. He was tried and found guilty of simple robbery on September 21, 1982.

ASSIGNMENTS OF ERROR NOS. 1 AND 8

By this assignment defendant contends that it was reversible error for the trial court to admit into evidence statements taken from defendant by the FBI, and a statement made by the defendant to the Beauregard Parish Sheriff’s Department during his detention in Lake Charles.

LSA-R.S. 15:451 states:

“Before what 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.”

The State introduced into evidence only one inculpatory statement, that one made by the defendant to Beauregard Parish Sheriff’s deputies in Lake Charles on January 4,1982. In this written statement defendant confessed to robbing the City Savings Bank in DeRidder on December 15, 1981. Before making the statement defendant signed a standard form acknowledging he had been read his rights, and understood and desired to waive them. The three deputies who interrogated him stated that defendant’s confession was not the product of any promise, threat, duress or other form of coercion. Defendant’s argument that he gave the statement only because the deputies told him it would be used only for the purpose of “clearing their records,” is not supported by the record. We find that his statement was freely and voluntarily given. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant argues that it was reversible error for the trial court to allow eyewitness testimony and identification of defendant at trial proceedings by witnesses who had made prior unconstitutional identifications from a mug shot and a subsequent lineup in Lake Charles on January 11, 1982, which was not supervised by counsel. He asserts that his request for counsel to supervise the lineup was denied by the Beauregard Sheriff’s deputies. He claims he was informed by a Calcasieu Parish Deputy Sheriff that supervising the lineup was not necessary as the “Feds” were maintaining jurisdiction, and if defendant got any time, it would be in one of those “Federal Country Clubs.” In addition, defendant contends that improper procedures were utilized by law enforcement officers in a “photo lineup.” According to defendant, the officers presented eyewitnesses with photos and asked them to pick out the one that most resembled the holdup man at the bank, an instruction he claims was prejudicial because of its suggestive nature.

An accused’s right to counsel does not arise until adversary judicial proceedings have been initiated against him. State v. McDonald, 387 So.2d 1116 (La.1980). A defendant does not have a right to counsel at a pre-indictment, pre-preliminary examination lineup. State v. King, 385 So.2d 223 (La.1980); State v. Frisco, 411 So.2d 37 (La.1982).

In the instant case the photographic lineup occurred on December 16, 1981, and the physical lineup on January 11,1982. As of these dates adversary judicial proceedings had not been instituted against him. The State formally charged him by bill of information on January 29, 1982, and his preliminary examination took place on February 26, 1982. Therefore, he had no right to counsel at either lineup. Additionally, we note that at the January 11th lineup, the deputies took the added precaution of obtaining a written waiver of counsel from defendant.

Nor do we find that the photo-lineup was conducted improperly. The officers’ instructions to the eyewitnesses to pick out any photo that resembled the person they saw rob the bank is not suggestive in nature. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in denying his motion for a speedy trial. He points out that he was arrested on January 2, 1982, but not tried until September 21, 1982.

In State v. Dewey, 408 So.2d 1255 (La.1982), the Supreme Court set forth the appropriate analysis for determining whether an accused has been denied his right to a speedy trial:

“The right to a speedy trial is guaranteed by the sixth amendment to the federal constitution and by article one, section sixteen of our state constitution. The right attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Perkins, 374 So.2d 1234 (La.1979). Four factors must be considered in determining whether a defendant has been deprived of his right to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The initial inquiry is into the length of delay; if the delay is presumptively prejudicial, there will be an inquiry into the other factors. The length of delay that will provoke such an inquiry is dependent upon the peculiar circumstances of the case.”

In the case at hand, defendant was formally charged and arraigned on January 29, 1982. Prior to that time, he had been arrested and incarcerated only in connection with federal charges lodged against him. Therefore the earliest date at which defendant’s right to a speedy trial attached was •January 29, 1982. His trial commenced on September 21, 1982. Therefore the length of delay was 232 days.

The reasons for the delay are in the record. Defendant’s trial was originally scheduled for May 17, 1982, ;the next available petit jury session. It could not be reached because of the crowded docket and was rescheduled. Neither the defendant nor his counsel made any objection at the time to the refixing.

The next factor to be considered is whether defendant asserted his right. Defendant did not file a motion asserting his right to a speedy trial until June 25, 1982. His trial commenced 87 days later. This was well within the limit imposed by LSA-C.Cr.P. art. 701(D) which provides that after the filing of a motion for a speedy trial by the defendant, the trial of a defendant charged with a felony shall be commenced within 120 days if he is continued in custody-

Finally, we must consider whether the defendant has been prejudiced by the delay. Our study of the record persuades us that if defendant suffered any prejudice, it was negligible. His contention that because of the delay his witness, a State witness, and a juror (during voir dire exam) were unable to recall past events with any degree of certainty is specious. We find no evidence that defendant’s defense was impaired by the delay in any respect. Accordingly, defendant has not demonstrated any prejudice.

We therefore conclude that defendant was not deprived of his constitutional right to a speedy trial. This assignment has no merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends that the trial court committed reversible error in denying his motion for subpoenas of out-of-state witnesses. He also maintains that it was error for the trial court to deny his request for a continuance so that the presence of these witnesses could be obtained. The trial court denied both motions on the grounds that defendant had not shown that the testimony of the witnesses would be relevant and material in his case.

LSA-C.Cr.P. arts. 741-745 explain the procedure for the subpoena of foreign witnesses. C.Cr.P. art. 741 limits the availability of the subpoena to a material witness.

In State v. McCabe, 420 So.2d 955 (La.1982) and State v. Barnes, 365 So.2d 1282 (La.1978), the Supreme Court held that a defendant must show both that the testimony of out-of-state witnesses would be material and that the trial judge abused his discretion in denying defendant’s motion requesting them.

Similarly, the trial court’s decision to deny a request for a recess will not be interfered with absent a showing of an abuse of discretion. State v. Jones, 412 So.2d 1051 (La.1982).

At the hearings on defendant’s motion to subpoena out-of-state witnesses and motion for recess, defendant failed to make any showing that the witness’ testimony would be material to his case. We, therefore, find no error in the trial court’s rulings. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 6

By this assignment defendant asserts that it was reversible error for the trial court to deny his motion for discovery and production of defense information and evidence in support of his defense. Defendant had requested that the State furnish him with newspaper and television news film clip coverage of the bank robbery.

The discovery of documents and tangible objects provided by LSA-C.Cr.P. art. 718 is limited to those items which are “within the possession, custody, or control of the state.”

The record does not reflect that the State had possession custody, or control of any of the aforementioned items requested by defendant. Accordingly, the trial court did not err in denying defendant’s discovery motion. This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

Defendant argues that it was reversible error for the trial court to deny defendant’s motion for a change in venue and as a result he was denied his constitutional right to a fair trial.

Defendant filed two motions for a change of venue, once while he was represented by counsel and the second time after he had succeeded in dismissing his counsel and was representing himself. The trial court refused to hold a contradictory hearing on either motion but specifically deferred action on the motions until voir dire. The following colloquy appears in the record on the occasion of the consideration of the second motion for a change of venue:

“... I am going to take the same position on it, this new motion, as I took on the previous one insofar as it permits you, during the course of the voir dire examination of the jury, to show, if you can, some examination of the jurors that a fair trial cannot be obtained here because of prejudice on the part of the prospective jurors. That is a very common thing in criminal jury cases where there has been a motion for change of venue, even if it’s considered timely filed, for the Court to defer any action on it until after there has been an opportunity to question jurors under oath to see if, in fact, there does appear to be good reason to fear that perhaps the defendant cannot get a fair trial.
BY MR. MYERS:
I understand, your Honor.
BY THE COURT:
So, I think that that’s probably under usual case the best test; when we get to the process of actually picking a jury, the jurors, as you probably know, are sworn and questions are put to them about whether they know the parties or anything about the case or formed an opinion and that sort of thing. And then if it appears that there is no problem, then there is no basis for a change of venue. If it appears that, in fact, there is a problem, then of course, the Court can, with the motion having been filed and final action deferred to the voir dire examination, maintain the motion and order the case transferred. So, that is the action I’m going to take here. I don’t believe that it would be profitable at this time to have any further hearing.
BY MR. MYERS: '
I agree.
BY THE COURT:
I did not feel when Mr. Wallace filed his motion, on the face of it, and I don’t feel now, that there is anything, based on my appreciation of the facts and circumstances about the publicity, that would make it appear manifest, evident, that you can’t receive a fair trial. The final test of that will come when we start picking the jury. Do you understand?
BY MR. MYERS:
Yes, sir.
BY THE COURT:
So, that will be the action that we’ll take. We’ll defer final action on your motion for change of venue until we reach the trial and the voir dire examination.”

The above described action took place on August 26, 1982. At the voir dire conducted at the trial which commenced on September 21, 1982, there is nothing in the record to indicate that the defendant raised again the motion for a change of venue.

In the case of State v. Brogdon, 426 So.2d 158 (La.1983), the Supreme Court was faced with a similar procedural set of facts and the same complaint on appeal, and stated:

“... Because the defendant failed to object to the actions of the trial judge in deferring final disposition of the venue question until voir dire, and because the defendant failed to raise again the motion at the time of voir dire despite the invitation of the trial judge, it is impossible for us to say that the defendant proved the existence of such prejudice that a change of venue should have been granted.”

For the same reasons, we find that this assignment of error is without merit.

For the reasons stated above defendant’s conviction is affirmed.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Margie FRUGE, Defendant-Appellant.
    No. CR83-4.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Edward J. Lopez, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty., and Robert Brinkman, Asst. Dist. Atty., Opelou-sas, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

Defendant Margie Fruge was charged by bill of information with being an accessory after the fact to the crime of aggravated rape, a violation of La.R.S. 14:25. Pursuant to a bench trial following the defendant’s waiver of her right to trial by jury, she was convicted as charged. Thereafter, the court sentenced the defendant to five years at hard labor with the Department of Corrections, the maximum penalty available under the provisions of La.R.S. 14:25.

Following her conviction and sentencing, the defendant appealed, perfecting in writing two assignments of error, pursuant to La.C.Cr.P. Art. 844. However, no brief or argumentation of these assignments was ever filed by the defendant on appeal. Therefore, we can only consider these assignments to have been abandoned. State v. Lewis, 416 So.2d 921 (La.1982); State v. Rowe, 416 So.2d 87 (La.1982). Thus, we are limited in this appeal to a consideration of those errors that are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence, i.e., patent errors. La.C. Cr.P. Article 920(2).

Accordingly, we have conducted a careful examination of the record before us pursuant to the provisions of La.C.Cr.P. Art. 920, and finding no errors patent on the record, we hereby affirm the conviction and sentence imposed upon the defendant by the district court.

AFFIRMED.


author: REDMANN, Chief Judge.

text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Norman L. JOHNSON et al.
    No. C-1328.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1983.
    Writ Dismissed at the Request of Relator Oct. 28,1983.
    Writ Denied Nov. 18,1983.
    George J. Kambur, New Orleans, for relator.
    B. Franklin Martin, III, Marie A. Moore, New Orleans, for respondent.
    Before REDMANN, C.J., and GARRISON and AUGUSTINE, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review the district court’s ruling of September 14, 1983, refusing to enjoin executory process under a mortgage attacked as non-authentic for failure of the subscribing witnesses to have been present at the time of the execution of the act, La.C.C. 2234. (Non-authenticity would not have prevented enforcement of the mortgage by ordinary proceedings, C.C. 2235.)

Our order suggested clear entitlement to review, because of the affirmative testimony by the person who signed the act as agent of the creditor that the act was executed in the debtor’s office outside of the presence of the witnesses, and because the notary’s testimony did not flatly contradict that testimony (although one of the notary’s employees’ testimony did), insofar as reported to us in application and response. Unfortunately, the sale had been set for September 15, the day following the trial judge’s ruling (through, perhaps, no one’s fault), and we therefore were obliged to stay the sale minutes before it was to have been made. We note, for those who may later cite this case in perhaps similar proceedings, two special circumstances leading to a stay. First, application and response did not present, as far as we could see, a simple conflict in testimony, in which case primacy must be accorded to the trial judge and we would therefore have been more hesitant about staying executory proceedings, although we would in any case consider a seasonable application for review. Second, the sale was less than two hours away when we received the application, without delay on the part of application, and we therefore did not have time to obtain the record and afford review prior to the scheduled sale.

We have now reviewed the record, and we conclude that the transcript establishes that the trial judge had to make a credibility determination between the creditor’s then agent, on the one side, and the notary and his two then employees, on the other. It may be added that the creditor’s agent later became an employee of the debtor; and that one of the notary’s employees is no longer employed by him.

One of the notary’s employees who signed as witnesses remembered this particular act. She had prepared the documents as the notarial secretary in the notary’s office, and she “was probably impressed by a residence that cost that much” (she had been a notarial secretary 30 years). She testified affirmatively that she was present at this particular act.

The second employee of the notary (no longer so employed) did not remember that particular “loan closing” or its signatories, but she testified that she knew as a legal secretary that to sign as a witness she was supposed to have seen the signatures being affixed; and that this notary had never asked her to sign as a witness except when she did see the signatures being affixed.

The notary himself testified that he did not remember the passage of this particular act; “To the best of my recollection, ... the mortgage was passed in my office because I have had a policy, a standing policy for a period of time, not to pass mortgages of any substantial size out of my office and without the witnesses present.” (This mortgage was for $1,200,000.) “I don’t recall passing any acts of mortgage outside of my office.”

The testimony of those three witnesses, believed by the trial judge, was sufficient to support his rejection of the testimony of the creditor’s former employee (now employed by the debtor), who had testified that the mortgage was passed in the debtor’s office and that the witnesses were not there. Credibility is the province of the trial judge.

The debtor’s application for writs argued also that an error in the mortgage’s description of the principal obligation it secured defeated the mortgagee’s entitlement to ex-ecutory process. This argument had been introduced by an inferior mortgagee’s intervention.

The mortgage describes the obligation as a note for $1,200,000, “payable in one hundred twenty equal, consecutive quarterly installments of $29,616.48 each ...; said installments to commence on the 29th day of November, 1979, and to continue on the 29th day of each succeeding quarter thereafter, the final installment, if not sooner paid, to be due and payable on the 29th day of August, 1979.” (Emphasis added.) The note does not contain a similar error; it rightly places the 120th quarter from 1979 in 2009 rather than 1979.

Our grant of certiorari was not based on this argument because we deem the error insignificant. The description of a note the same in every particular save that one of two definitions of the final installment date is different, when the different one is unmistakably an error (the 120th quarter after the date of the act, August 29, 1979— that is, 30 years after the August 29, 1979 act — cannot possibly be August 29, 1979) does not raise a doubt as to whether the note described and the note sought to be enforced are the same. The ultimate question, in respect to the effect of any difference in mortgage and note, is whether the authentic evidence establishes entitlement to executory process: if non-authentic evidence is required to establish that the note sued on is the debt for which judgment is confessed and mortgage given, then execu-tory process can not be had. It is not necessary here to resort to evidence beyond the act and note. Only the first and the last of the 120 quarterly installments are given dates, and (although the first might have been necessary if different from a quarter after August 29, 1979) neither date was necessary to an exact description of the debt — and especially not the last. When the last of the 120 quarters’ date is deleted because of its obviously erroneous statement (the same date as the very act and note themselves), it is not necessary to go outside of mortgage or note to have the same description of the same, fully-described debt in each.

The trial court’s ruling is affirmed and our stay order is recalled, at applicant’s cost.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Douglas Warren FREEZE, Jr., Defendant-Appellant.
    No. CR82-756.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 1983.

      Ronnie K. Banks, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.
    Before STOKER, DOUCET and KNOLL, JJ.
   DOUCET, Judge.

The questions presented are: whether a former law enforcement officer who had previously arrested defendant was improperly impaneled on the jury in this criminal proceeding, and, whether the defendant’s sentence was properly imposed. We affirm.

Defendant, Douglas Warren Freeze, Jr., was arrested in Cameron, Louisiana and charged with aggravated criminal damage to property, a violation of LSA-R.S. 14:55. The facts giving rise to the arrest are as follows: Defendant, locally known as “Flea”, and co-defendant Joseph Shea, were socializing at the Fiesta Lounge in Cameron, Louisiana on the evening of March 2, 1982, when defendant’s girl friend entered the bar and tearfully related that she had been beaten by a male juvenile. The girl, Anna LaBiche, did not know her attacker’s identity but stated that he was driving a blue pickup truck and was in the company of two other male juveniles. Forsaking any attempt to summon help from local law-enforcement officials, defendant enlisted the aid of Shea and approximately four other men, and set out to find Ms. Labiche’s assailant. Defendant determined that safety and efficiency considerations demanded that they be armed so the party made a quick pit-stop at his house for firearms. He armed himself with a .357 magnum and Shea with a .16 gauge shotgun. They resumed the hunt and within a short time observed the blue truck stopped at an intersection. Defendant attracted the attention of the pickup’s driver by ramming his own vehicle into the pickup’s rear end. Defendant ordered Bruce Bang, the truck’s driver, and Ms. LaBiche’s alleged assailant to get out of the truck and announced that he intended to bring Bang to jail. As Bang attempted to step out of the truck to investigate, he was greeted by the gun-wielding defendant and Shea. The events which transpired next were the subject of conflicting testimony. Bang and his three passengers testified that a shot was fired almost immediately after Bang opened the truck door. Bang claims that the shot came from defendant’s pistol. Defendant maintains that Shea fired the first shot and that his own gun accidentally discharged as Bang closed the truck door. In any event, Bang wasted little time in jumping back behind the wheel of his truck and speeding away. The pickup’s flight drew more gunfire from defendant and Shea. A bullet from defendant’s pistol struck the truck’s bed near the driver’s door. Shea fired at least twice into the right side of the truck and in the process injured the leg of a teenage boy. But the duo was unsuccessful in halting the truck’s escape. Bang never slowed down until he chanced upon a deputy sheriff a few miles down the road. The group related their story to the officer, and defendant and Shea were apprehended and taken into custody shortly thereafter.

After arrest, defendant remained in jail, unable to post bond. His motion for reduction of bond was denied by the trial judge. Subsequently, the Supreme Court granted writs of review, declared the bond excessive and set bond at $10,000.00. Motions for Suppression of Evidence, Continuance, Suppression of Confession, and Appointment of an Investigator were denied.

At the beginning of the trial, the drawing for the jury was conducted. Defendant exhausted all peremptory challenges prior to completion of the panel. When prospective juror George Griffith was questioned, it was revealed that he had been employed as a deputy sheriff with the Cameron Parish Sheriff’s Department and had quit about two (2) years prior to the date of defendant’s trial. Moreover, according to defendant, Mr. Griffith had arrested defendant previously on at least two occasions. Mr. Griffith admitted knowing defendant, and recalled arresting him on one occasion, however, he did not remember the details of any arrests due to the multitude of cases he dealt with while a deputy sheriff. When questioned further, Mr. Griffith believed he had cited defendant for littering or possibly a minor driving offense. The State sought to rehabilitate the prospective juror, however, they offered no evidence to contradict defendant’s allegation that Mr. Griffith had arrested him several times in the past. Counsel for defendant challenged Mr. Griffith for cause. The challenge was rejected. Thereafter, the defendant was found guilty and sentenced to nine years in jail.

Appellant contends that the seating of Mr. Griffith on the jury denied him of his right to a trial by an impartial jury. Additionally, appellant asserts the trial judge erred in failing to comply with La.C.Cr.P. arts. 873 and 894.1 and further imposed an excessive sentence.

Both our federal and state constitutions guarantee the accused in a criminal proceeding the right to a trial by an impartial jury. 6th Amendment, U.S. Constitution; La. Constitution, Art. 1, § 16. Additionally, La.C.Cr.P. art. 797 protects the right to an impartial jury. The reason for the right was expressed in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), as follows:

“Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.”

Implicit in the right to a jury trial is the guarantee that an accused will receive an impartial jury. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The constitutional standard of fairness requires that a defendant have a panel of impartial, indifferent jurors. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, supra. As was stated in Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578, “It is to be remembered that such impartiality requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.”

Just as one biased against the State may be precluded from serving on a jury, La.C.Cr.P. arts. 401(5), 787, 797, 798, service on a criminal jury by one associated with law enforcement duties must be closely scrutinized. State v. Winn, 412 So.2d 1337 (La.1982); State v. Sylvester, 400 So.2d 640 (La.1981); State v. Lewis, 391 So.2d 1156 (La.1980); State v. McIntyre, 365 So.2d 1348 (La.1978); State v. Monroe, 366 So.2d 1345 (La.1978).

A prospective juror’s statement that he will be fair and impartial is not binding on the court. State v. Lewis, supra; State v. Sylvester, supra. If the revealed details of the relationship are such that bias or prejudice may be reasonably implied, a jur- or may be properly refused for cause. State v. Monroe, supra; State v. Lewis, supra.

A defendant has standing to complain of a trial judge’s refusal to maintain his challenge for cause when he has exhausted all of his peremptory challenges before completion of the panel. La.C.Cr.P. art. 800, State v. Qualls, 353 So.2d 978 (La.1978); State v. Ballard, 337 So.2d 481 (La.1976); State v. Monroe, supra; State v. Lewis, supra; State v. Sylvester, supra.

In Sylvester, prospective juror Frank Landry was challenged for cause due to his employment with the Lake Charles City Police Department two years prior to trial and his acquaintance with a State witness associated with the department. Despite his association with the department and witness, Mr. Landry stated he would not tend to credit the testimony of the State’s witness over that of other persons not in the department. In reversing defendant’s conviction, the Supreme Court stated: “. .. [W]e do not consider it reasonable to conclude that Mr. Landry was capable of serving as an impartial juror despite his manifestations to the contrary.”

In Lewis, prospective juror Kay Howell had been employed by the district attorney as a law clerk for several months before the trial. She was awaiting the results of the bar exam and had filed an application with the district attorney for a job. The Supreme Court stated: “Under these circumstances, we conclude that the juror’s relationship with the district attorney was such that it would influence the juror in arriving at a verdict, and the defendant’s conviction, therefore, must be reversed.”

Each case must be reviewed upon its own facts. Although the most expedient and preferred procedure would have been for the trial court to dismiss Mr. Griffith and proceed to select another juror, the trial judge is vested with broad discretion in ruling on a challenge to show cause and his ruling will not be disturbed on appeal unless the record demonstrates a manifest abuse of discretion. State v. Edwards, 419 So.2d 881 (La.1982). If the trial court could reasonably conclude, from Mr. Griffith’s answers on voir dire exam, that he could render an impartial verdict according to the law and evidence, the trial court may deny the challenge for cause. State v. Claiborne, 397 So.2d 486 (La.1981). At the time of defendant’s trial, Mr. Griffith had been disassociated from the Cameron Parish Sheriff’s Office for over two years. When questioned as to whether his duties as a deputy in the rural parish had ever brought him into contact with defendant he stated that he could not recall ever having arrested defendant, but remembered ticketing him once for driving without a license. In fact, the presentence investigation did not reveal that defendant had ever been arrested by Cameron Parish authorities and defendant offered no proof thereof other than his own allegation. Mr. Griffith stated that he was familiar with defendant but did not dislike him and was not aware of defendant’s reputation in the local community. When asked whether he would be fair and impartial, Griffith answered affirmatively.

The record indicates that the trial judge admonished Mr. Griffith on a juror’s duty to be unbiased and was satisfied that Griffith could serve impartially. In our opinion there does not appear to be any reason to conclude otherwise. The arrest alleged was minor, Mr. Griffith had been disassociated with the rural law enforcement agency, and defendant did not sufficiently establish any arrest. In view of these facts, we find no abuse of discretion in the denial of the challenge for cause by the trial court. Accordingly, this assignment does not warrant reversal.

It is contended that the trial court erred in imposing a constitutionally excessive sentence because he failed to comply with the LSA-C.Cr.P. art. 894.1 sentencing guidelines.

Article I, § 20 of the 1974 Louisiana Constitution prohibits the imposition of excessive punishment. Excessiveness of a sentence is a question of law which is, of course, reviewable. See: State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence may be excessive either by reason of its length or because the circumstances warranted a less onerous sentencing alternative. State v. Telsee, 425 So.2d 1251 (La.1983); Sepulvado, supra. In determining whether a penalty is excessive, we must consider “the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.” State v. Bonanno, 384 So.2d 355, 358 (La.1980).

Our review is aided by sentencing guidelines codified in LSA-C.Cr.P. art. 894.1. These factors, which must be considered before sentence is imposed, allow the trial court to individualize the penalty, i.e., adapt it to the offender as well as the offense. State v. Lathers, 414 So.2d 678 (La.1982); Sepulvado, supra. Because of the wide discretion afforded the trial court in imposing sentence, a sentence within statutory limits will not be set aside as excessive in absence of a manifest abuse of discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982).

Before imposing sentence, the trial judge discussed a number of factors including: that defendant and his accomplice, Joseph Shea, fired weapons belonging to defendant at a vehicle with complete disregard of the lives of the passengers contained within; although defendant did not actually cause the injury to the innocent teenage boy, who had not been present at the prior altercation with Ms. LaBiche, defendant was certainly the instigator and therefore bore full responsibility; that defendant was very likely to engage in further criminal activity if released and therefore probation was not a viable sentencing alternative.

The trial judge also noted the absence of any mitigating factors that would weigh in defendant’s favor. He explained that the victim in this case was an innocent teenage boy who had not been involved in the prior altercation with defendant’s girl friend. Defendant’s incarceration would not pose a hardship for others, he observed, as defendant was unmarried and without dependents.

We find that this discussion by the trial judge satisfies the requirement of LSA-C.Cr.P. 894.1. The circumstances of this case, defendant’s history of criminal activity, and the fact that defendant could have been sentenced to 15 years at hard labor (see LSA-R.S. 14:55) do not lead us to conclude that defendant’s sentence was disproportionate to the severity of his crime. These assignments lack merit.

Finally, defendant requests that we reverse his sentence and remand the case to the trial court so that sentence may be imposed in accordance with the sentencing delays outlined in LSA-C.Cr.P. art. 873. Defendant correctly points out that he was sentenced immediately after his motion for a new trial was denied instead of after a twenty-four hour delay mandated by article 873. The minutes do not reflect that this period was affirmatively waived by defendant, but nor do they indicate that defendant raised any objection at the trial court. However, the defect is considered an error patent on the face of the record and thus may be raised for the first time on appeal. State v. Hutto, 349 So.2d 318 (La.1977); State v. White, 404 So.2d 1202 (La.1981).

LSA-C.Cr.P. art. 873 emphatically states: “If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.”

Up until recently, the jurisprudence has been uniform in holding that noncomplianee with article 873 was reversible error and remand for resentencing was in order. Hutto, supra; State v. Bell, 377 So.2d 275 (La.1979); State v. Sheppard, 371 So.2d 1135 (La.1979). However, the Supreme Court has altered this strict approach somewhat and held that there is no need to equate patent errors with reversible error. State v. White, supra. The defendant in White raised for the first time on appeal an objection to the trial court’s imposition of sentence immediately after his motion for a new trial was denied. Unlike our defendant, he did not challenge the sentence itself. In ruling that the trial court’s error did not warrant a remand the Supreme Court declared:

“The time lapsed between the defendant’s conviction, March 18, 1980, and the date on which sentence was finally imposed, May 30, 1980, was substantial. There are no indications that defendant’s sentence was hurriedly imposed without due consideration. Indeed, the minutes of March 18, 1980, reflect that a presen-tence investigation was ordered. A remand would only serve to lengthen unnecessarily the already substantial delays involved in this case and would in no way further the goal of achieving a fair and just decision on either verdict or sentence. It is illogical for this court to remand for the reimposition of sentence merely because there is an ‘error’ in the minutes’ lack of an affirmative waiver of the 24-hour delay. Just as non-prejudicial violations of the accused’s statutory rights do not mandate reversal, an error in procedure which does not affect the fundamental fairness of the process does not necessarily require reversal and remand, unless prejudice is shown. C.Cr.P. art. 921. In fact, C.Cr.P. art. 921 mandates that this court not reverse a judgment because of an ‘error, defect, irregularity or variance which does not affect substantial rights of the accused.’ ”

Although defendant in this case did indeed challenge his sentence, we are convinced that the White, supra, rationale is still applicable to these facts. Therefore in determining whether a remand for reimpo-sition of sentence is necessary, the relevant inquiry is whether defendant suffered any prejudice to a substantial right. White, supra at 1204. Defendant has not alleged that the trial court’s failure to observe the twenty-four hour delay caused him any impairment nor does the record reflect that such is the case. As previously discussed, the trial court’s reasons adequately support defendant’s sentence. There is no indication that the sentence was hurriedly imposed as over a month transpired between defendant’s conviction and sentencing. The trial judge reviewed a pre-sentence report before imposing sentence and concluded there were no mitigating circumstances which would operate to defendant’s benefit. The trial court’s failure to observe the twenty-four hour sentencing delay appears not to have affected any substantial right of defendant and therefore a remand for resentencing is not warranted.

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

AFFIRMED.


text:
    Bobby D. RAWLS v. MISSISSIPPI CHEMICAL CORP., et al.
    No. 53917.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Rehearing Denied Nov. 2, 1983.
    Rex Gordon, Sr., Gordon, Myers & Gordon, Pascagoula, for appellant.
    Linda D. Baggett, Michael J. McElhaney, Jr., Roy C. Williams, Megehee, Brown, Williams & Mestayer, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.