28,994 La.App. 2 Cir. 2/26/97, State v. Green

• Decision Date: 26 February 1997
• Citation: 691 So.2d 1273
• Parties: 28,994 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1273

691 So.2d 1273

28,994 La.App. 2 Cir. 2/26/97

STATE of Louisiana, Appellee, v. Spencer Newton GREEN, Appellant.

No. 28994-KA.

Court of Appeal of Louisiana Second Circuit.

Feb. 26, 1997.

R.H. Madden, III, Ruston, for Appellant.

Richard Ieyoub, Attorney General, Robert W. Levy, District Attorney, A. Scott Killen, Assistant District Attorney, for Appellee.

Before MARVIN, C.J., and HIGHTOWER and BROWN, JJ.

MARVIN, Chief Judge.

This appeal by Spencer Green of his conviction of four counts of indecent behavior with a juvenile has produced a disagreement between the majority of the three-judge panel and the third panelist who was initially assigned to write the opinion of the panel for the court. One of Green's complaints on appeal is that the evidence was legally insufficient to convict.

The disagreement arises because the sufficiency issue is presented to us "merely by assignment of error [La.C.Cr.P. arts. 920, 921] rather than by motion for post-verdict judgment of acquittal [La.C.Cr.P. art. 821]," to use the words of the third panelist. Brackets supplied by panel majority.

The third panelist wrote that when not raised by the Art. 821 post-verdict motion, but only by the Art. 920 assignment of error, "this [sufficiency] issue is not properly before us ... [but] we opt to address the assignment," citing authorities. Italics supplied. The panel majority disagreed with the third panelist's statement that this court could choose whether or not to address the sufficiency assignment, an issue of constitutional proportion. Simultaneously, other judges on this court called this panel's attention to apparent inconsistencies in opinions of this and other circuits as to when and how the sufficiency issue is properly raised and resolved, either or both in the trial court and the appellate court. Compare Arts. 821 and 920.

The panel majority holds that the correct pronouncement of our appellate responsibility is that this court has the obligation, and may not opt or choose whether, to review the sufficiency issue when that issue is raised solely by an assignment of error. The panel majority desires to state its reasons for this holding, believing that the criminal bench and bar may benefit from this attempt to state precisely our appellate responsibility and to not further contribute to the inconsistencies in the cases that have addressed this particular issue. ¹

After resolving the issue--obligation v. option--the majority affirms Green's convictions and sentences, adopting, as an unpublished appendix to this opinion, the discussion of the evidence and applicable authorities originally written by the third panelist that resolves Green's assignments.

Appellate Review of Sufficiency Issue; Arts. 920, 921 Obligation or Art. 821 Option?

Before the Supreme Court decided Jackson v. Virginia in 1979, sufficiency of the evidence to convict was reviewable on appeal in Louisiana when it was raised in the trial court, either by a motion for a new trial, a motion for directed verdict, or by post-conviction habeas corpus. See La.C.Cr.P. arts. 778, 851, 920, 921, as originally enacted in 1966 Code of Criminal Procedure and Official Revision Comments.

Comments (c) and (d) to Art. 851 in the original code observed that when the issue was raised by defendant's motion for a new trial in the trial court, the trial judge had the duty to pass on the sufficiency of the evidence under Art. 851(1) and to determine whether the verdict was "contrary to the law and the evidence." We shall discuss infra, in the light of Jackson, the amendments of some of those articles and the adoption of other articles that occurred after the Code of Criminal Procedure was enacted in 1966.

As the concurrences in Jackson v. Virginia emphasized, the sufficiency standard to test a jury verdict of guilty, pre-Jackson, was the "no evidence" rule applicable in the trial and the appellate court. Appellate review was of the trial court's ruling on a post-verdict motion, usually one for a new trial. This prior standard began with post-verdict motions in the trial court, such as the Louisiana motions mentioned above, the rulings on which were subject to more limited appellate review than under the post-Jackson v. Virginia standard. ²

After Jackson v. Virginia and amendments to the Code of Criminal Procedure that corresponded with Jackson and the current Louisiana constitution, the applicable standard and procedure for resolving, on appeal, the sufficiency issue no longer requires the foundation for the issue to be laid in the trial court. When and how the sufficiency issue may be raised, and at what court level, either or both trial and appellate, the issue shall or may be resolved, is controlled by post-Jackson law and criminal procedure in Louisiana:

-- A trial judge is not authorized to entertain a motion for a directed verdict of acquittal in a criminal jury trial. See La.C.Cr.P. art. 778 as amended in 1975; State v. Brooks, 452 So.2d 149, 154, fn. 2 (La.1984) (on rehearing).

-- An issue "designated in the assignment of errors shall be considered on appeal." Art. 920(1), as amended in 1974. The sufficiency issue pre-Jackson was properly raised in the trial court by defendant's motion for new trial. The Official Revision Comment to the amended Art. 920 explained: "It is now clear that a defendant does not have to apply for a new trial [in the trial court] in order to urge an issue on appeal. Clause (1) [of Art. 920] only requires that the error ... be urged ... in the written assignment of errors." Emphasis and brackets supplied.

-- The adoption of Art. 821 in 1982 facilitated resolution of the sufficiency issue in the trial court under the Jackson standard: "The defendant may move for a post verdict judgment of acquittal ... [which] must be made and disposed of before sentence." Emphasis supplied. Art. 821 "clearly manifests an intent to adopt the Jackson standard as the proper degree of deference which both the trial and appellate courts owe to the jury's verdict." Cheney C. Joseph, Jr., Developments in the Law--Postconviction Procedure, 44 La.L.Rev. 477, 480 (1983). Italics supplied.

The official revision comment of Art. 821 explains:

Since the abolition of the directed verdict in jury cases, the Supreme Court has recognized its authority to reverse convictions and dismiss the charges if the evidence does not support the conviction.

The test on appeal to determine the "sufficiency" of evidence is no longer the "total lack of evidence" test. The test now is whether a reasonable fact finder must have a reasonable doubt. The test incorporated as the standard for judgments of acquittal defers to the jury's finding by requiring that the evidence be viewed in a light most favorable to the state. However, if the evidence is legally insufficient the verdict must be set aside and either a modified verdict or a judgment of acquittal must be entered.

The trial court or appellate court may modify the jury's verdict if the verdict is not supported by the evidence but a lesser included responsive verdict would be supported.

The district attorney may seek review of a post verdict judgment of acquittal or a judgment modifying a verdict. Such review does not violate double jeopardy because if the appellate court merely reinstates the jury's verdict no new trial is necessary.

The appropriate appellate court and mode of seeking review are, of course, determined by reference to La. Const. art. 5, §§ 5 and 10 (1974).

Citations omitted. Emphasis supplied. Shortly after Jackson, our supreme court, recognizing the Art. 920 alternative, summarized the developments in the law regarding raising and resolving the sufficiency issue:

In State v. Peoples, 383 So.2d 1006 (La.1980), this court abandoned the rule that a defendant must file a motion for new trial in order to preserve the issue of sufficiency of evidence for appellate review. As a matter of due process, the court concluded that the issue could be considered when raised "upon formal assignment of error," notwithstanding the defendant's failure to move for new trial. 383 So.2d at 1007.

State v. Temple, 394 So.2d 259, 261 (La.1981); see also State v. Raymo, 419 So.2d 858 (La.1982). Emphasis supplied.

Peoples, cited above, discussing the sufficiency issue, stated: "[It] would be ... a substantial denial of due process to deny a defendant the right to obtain review by this court ... simply because he did not file a motion for a new trial ... Hence, whether or not a defendant raises a claim ... in a motion for a new trial, upon formal assignment of error, we will review whether the defendant's claim ... has merit." 383 So.2d at 1007.

After being given the responsibility of exercising, except in capital appeals, criminal appellate jurisdiction, this court, albeit on only a few occasions, has said that sufficiency errors must be reviewed on appeal regardless of how the error is brought to the attention of the court. See, e.g., State v. Otis, 586 So.2d 595, 604 (La.App. 2d Cir.1991), writ granted in part on other grounds; State v. Wesley, 28,941 (La.App. 2d Cir. 12/13/96) 685 So.2d 1169. More often perhaps, this and the other appellate circuits, we believe, have inconsistently and too frequently misstated that the proper method is only by the Art. 821 motion in the trial court. See e.g., State v. Johnson, 584 So.2d 1216, 1218 (La.App. 2d Cir.1991), writ denied, and dozens of cases cited under La.C.Cr.P. art. 821, West Pub. Co., vol. 2A. We shall attempt to trace the source of the inconsistencies:

Jurisprudential adoption of the Jackson standard in Louisiana was initially criticized. See C.J. Summers' dissent in State v. Mathews, 375 So.2d 1165 (La.1979); State v. Ruple, 426 So.2d 249 (La.App. 1st Cir.1983); State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). Korman raised the sufficiency issue in the trial court by a then improper motion for new trial.

Korman was cited in a footnote in State v. Marshall,...