STATE of Louisiana v. Jack R. ALLEN.
No. 82-KA-1505.
Supreme Court of Louisiana.
October 17, 1983.
440 So.2d 1330
DIXON, Chief Justice.
DIXON, Chief Justice.
Defendant Jack R. Allen was indicted for negligent homicide, a violation of
On October 23, 1980 Jack Allen and his business partner arrived at the Pier 90 Restaurant and Bar at approximately 4:00 p.m. to make some business telephone calls. Allen‘s partner left at about 9:00 p.m. and Allen remained until approximately 3:00 a.m. Defendant stated that he consumed
Upon leaving Pier 90, defendant drove his pickup truck eastbound down Lapalco Boulevard. At the same time, Mark Page was driving his Toyota automobile westbound on Lapalco Boulevard. Just past the intersection of Lapalco Boulevard and East Drive the two vehicles collided. According to the accident investigation and reconstruction expert, defendant‘s truck traversed into the oncoming lane and hit Page‘s car head-on.
Defendant testified that he saw oncoming headlights which he believed were in his lane and he tried to swerve. Page, the other driver, was pronounced dead on arrival at a local hospital from multiple injuries. Defendant was arrested at the accident scene by Officer Dufrene.
Dufrene testified that his initial observation of Allen indicated intoxication. He observed that the defendant was “unbalanced. He swayed a bit.” His eyes were “glassy—somewhat bloodshot.” After placing defendant under arrest, Dufrene read the Miranda rights to him and asked if he would submit to a photoelectric intoximeter test. Defendant agreed.
Dufrene transported defendant to a correctional center for booking and testing. Defendant was again advised of his rights and advised оf the consequences of refusing to take the test. At this time, the defendant refused to take the test and refused to sign the form indicating his refusal to take the test. Defendant did consent to take the field sobriety test, but was unable to perform the maneuvers satisfactorily.
Allen testified that he had been up for almost twenty-four hours at the timе of the accident, and that his staggering and swaying were a result of the accident. He also blamed the accident for his poor performance on the sobriety test. The defense argued that the victim entered a curve in the roadway too quickly and crossed over the center line, causing defendant to swervе. When the victim corrected his swerve, he hit defendant head-on in the victim‘s original lane.
Assignments of Error Nos. 1 and 5
Defendant contends that the trial court erred in denying his motions for a directed verdict of acquittal and for a new trial.
Directed verdicts upon the state‘s completion of its case in chief cannot be entered in jury trials, but only in bench trials.
Defendant argues that the state‘s failure to prove driving while intoxicated constituted a failure to prove criminal negligence, аn essential element of the crime of negligent homicide, and that defendant is entitled to a new trial. Defendant‘s argument is not persuasive. Violation of a statute or ordinance is not the only means of proving criminal negligence, and is, in fact, only presumptive evidence of such negligence.
“... In order to convict a defendant of negligent homicide, however, the state must prove (1) that defendant was criminally negligent, i.e., that there was such
disregard of the interest of others that the offender‘s conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances; and (2) that a killing resulted from this conduct....” State v. Fontenot, 408 So.2d 919, 921 (La.1981).
The standard of review, as set forth by the United States Supreme Court and adopted by this court, is whether “upon the record adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Johnson, 426 So.2d 95, 101 (La.1983).
To prove criminal negligence, the state‘s evidence included Officer Dufrene‘s observations; defendant‘s admission to having consumed four or five beers and at least one glass of liqueur; defendant‘s admission to having been awake for almost twenty-four hours prior to the accident; defendant‘s poor performance in the field sobriety test; and the fact that the accident occurred in the westbound lane, requiring that defendant‘s vehicle cross the center line to collide with the victim‘s vehicle.
Although defendant attempted to show that his post accident dazed condition and reactions wеre caused by the collision and resulting injuries, he did not seek medical assistance. The jury chose to believe the evidence presented by the state.
There is no question that “a killing resulted from this conduct.” State v. Fontenot, supra at 921. The state presented sufficient evidence at trial to allow a rational trier of fact to find proof of guilt beyond a reasonable doubt. The motion for a new trial was properly denied.
Assignment of Error No. 2
Defendant contends that the trial court erred in admitting into evidence the defendant‘s refusal to take the photoelectric intoximeter test. Defendant claims that he did not understand the warnings concerning his rights because of his head injuries and could not intelligently waive his rights. We note that defendant exercised his right to refuse to take the intoximeter test and refused to sign any forms until he had a lawyer present.
No waiver of rights is involved. Defendant‘s Fifth Amendment privilege cannot be used to bar the nontestimonial blood test. South Dakota v. Neville, ___ U.S. ___, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). The Louisiana statute permits an accused to refuse the tеst and requires that the defendant be advised of the consequences of such refusal, but it is not necessary to give Miranda warnings before administering chemical testing. State v. Hargrave, supra; State v. Badon, 401 So.2d 1178 (La.1981). The officer correctly informed the defendant of his right to refuse, and of the consequences of his refusal. It is not error that the officer erroneously informed defendant that he could lose his vehicle registration for refusing to take the test. State v. Spence, 418 So.2d 583, 586 (La.1982).
Defendant claims that the officer failed to comply with the procedures of
The consequence of the officer‘s failure to file the sworn statement is that the defendant‘s license will not be revoked under that section of the law. No advantage was lost to the defendant by the absence of this administrative hearing. Defendant‘s right to challenge the introduction of evidence of his refusal to take the test is not abridged. Any issues raised in this hearing could be raised at a criminal trial.
The form is not incomplete or vague because it lacks reference to appellate rеview, administrative hearings or limited driving privileges. The form is designed to relate only to the taking or refusal to take the intoxication test. In conformance with
The form is not improper because it “requires” a chemical test. By law, “any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test ...”
The form is not coercive or disрaraging of constitutional rights. Defendant was well aware of and exercised his constitutional right to a lawyer, and was not coerced into consenting to the testing. He, in fact, did not consent to the testing. The Fifth Amendment protection against self-incrimination does not protect against chemical testing for intoxication. State v. Hargrave, supra.
Assignment of Error No. 3
Dеfendant contends that administration of the field sobriety test is an illegal search because the legislature has not validly delegated this responsibility to police officers. He argues that
When enacting
This court has indicated that “[i]ntoxication, with its attendant behavioral manifestations, is an observable condition about which a witness may testify.” State v. Spence, supra at 589; State v. Badon, supra at 1179; State v. Neal, 321 So.2d 497, 500 (La.1975).
In conducting the field sobriety test, Officer Dufrene was gathering evidence as an observer of coordination. Gathering evidence is not an exclusive function of the legislature.
The ultimate decision of whether or not the defendаnt was intoxicated rests with the fact finder. The court did not err in admitting evidence of the field sobriety test.
Assignment of Error No. 4
The defendant contends that the trial court erred in denying the defendant the opportunity to fully cross-examine the victim‘s mother, a witness for the prosecution. Defendant sought to elicit from the witness that the victim‘s estranged wife filed a civil action for damages in the amount of $1,000,000 as a consequence of this accident.
The trial court has wide discretion in determining the relevancy of evidence and its determination will not be overturned absent a clear abuse of discretion. State v. Huizar, 414 So.2d 741, 748 (La.1982); State v. West, 419 So.2d 868, 876 (La.1982). Error, if made by the trial court, is not fatal unless the defendant demonstrates prejudice. State v. Humphrey, 412 So.2d 507, 516 (La.1981).
Defendant‘s proffer does not convince us that the evidence he sought to elicit would tend to show or negate the commission of the offense.
Defendant‘s assignments of error lack merit.
Accordingly, defendant‘s conviction and sentence are affirmed.
STATE of Louisiana v. Jack R. ALLEN.
No. 82-KA-1505.
Supreme Court of Louisiana.
October 17, 1983.
440 So.2d 1330
LEMMON, Justice, concurring.
LEMMON, Justice, concurring.
Subscribing to the decision of the court, I add these concurring reasons in an attempt to clarify a very important, but very confused, aspect of Louisiana сriminal procedure: the proper test to be applied by a trial judge in deciding whether to grant a new trial or a judgment of acquittal when confronted with a post-trial motion challenging the sufficiency of the evidence.
In 1975, the Legislature amended
Even after the United States Supreme Court mandated the rational juror standard for determining sufficiency in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Louisiana courts continued to permit the use of the motion for new trial as a procedural device to question legal sufficiency of evidence. However, in Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), the United States Supreme Court madе it very clear that a finding of legal insufficiency precluded a new trial on double jeopardy grounds. See State v. Shapiro, 431 So.2d 372 (La.1982).2
In 1982, on recommendation of the Louisiana State Law Institute, the Legislature added
Adoption of Article 821 emрhasizes the distinction between the trial court‘s granting of a new trial based on the “weight” of the evidence and the trial court‘s granting of a judgment of acquittal based on a finding that the evidence was legally insufficient.3
The United States Supreme Court clearly recognized the same distinction for double jeopardy purposes in Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), and Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). The distinction, therefоre, is not merely one of form, but is of critical legal significance. In the first instance, the trial judge is serving as a “thirteenth juror“, and the judge sets aside the verdict in the interest of justice, based solely on the “weight” of the evidence.
In State v. Korman, 439 So.2d 1099 (La. App. 1st Cir.1983), the court of appeal rendered a scholarly opinion оn the issue. The trial judge, in granting a new trial, had merely stated that the evidence was “insufficient“. The state appealed the granting of the new trial, and the court of appeal, unable to discern the basis for the trial court‘s order, remanded with explicit directions to clarify the basis for the ruling. The court of appeal stаted:
“It is our view, and we so hold, that only the weight of the evidence can be reviewed by the trial judge in a motion for new trial under
C.Cr.P. Art. 851 . The trial judge can grant a new trial only if dissatisfied with the weight of the evidence, and in so determining the trial judge makes a factual review as a thirteenth juror rather than under the Jackson standard. If he grants a new trial because of the weight of the evidence, that new trial can proceed without being barred by double jeopardy. Tibbs v. Florida, supra. Such a determination by the trial judge is not subject to review by the appellate courts because ofLouisiana Constitution Article 10, Sec. 10(B) andC.Cr.P. Art. 858 .“On the other hand, if the trial judge finds the evidence legally insufficient, he must do so under
C.Cr.P. Art. 821 which decision is subject to appellate review on аpplication of the state. The trial judge cannot act as a thirteenth juror in reviewing a jury verdict underC.Cr.P. Art. 821 , but must review under the much more restrictive Jackson standard.”
For a similar scholarly analysis and result, see State v. Chapman, 438 So.2d 1319 (La. App. 3rd Cir.1983).
In summary, I emphasize that the purpose of these concurring thoughts is not to quibble over the “title” of the motion by which the issue of legal insufficiency under Jackson is raised. Certainly, the trial court (or the appellate court) may treat the issue as properly presented despite the failure of counsel to denominate the motion properly as one for judgment of acquittal.4
Notes
“Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
Whoever commits the crime of negligent homicide shall be imprisoned, with or without hard labor, for not more than five years.”
“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender‘s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.”