State v. Babin

• Decision Date: 24 February 1975
• Docket Number: No. 54608,54608
• Citation: 319 So.2d 367
• Parties: STATE of Louisiana, Appellee, v. Lawrence 'Red' BABIN, Appellant.
• Court: Louisiana Supreme Court

Page 367

319 So.2d 367

STATE of Louisiana, Appellee, v. Lawrence 'Red' BABIN, Appellant.

No. 54608.

Supreme Court of Louisiana.

Feb. 24, 1975.

On Rehearing July 25, 1975.

Rehearing Denied Sept. 5, 1975.

Dissenting Opinion July 30, 1975.

Dissenting Opinion Oct. 10, 1975.

Bertrand DeBlanc, Lafayette, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Ronald E. Dauterive, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant Babin was convicted of armed robbery, La.R.S. 14:64, and sentenced to twenty-five years at hard labor. On his appeal, he relies upon three bills of exceptions.

I

By motion to quash, La.C.Cr.P. art. 532(1), the indictment is attacked as charging an offense made punishable by an unconstitutional statute. (Bill No. 1.)

The defendant contends that the armed robbery statute, La.R.S. 14:64, is unconstitutional. The enactment defines the offense and prescribes imprisonment at hard labor for not less than five years and for not more than ninety-nine years 'without benefit of parole, probation or suspension of sentence'.

The defendant contends that the italicized prohibition in the penalty clause is in direct conflict with Article V, Section 10, of the Louisiana Constitution of 1921 (in effect at the time of the offense). This latter provision confers upon the governor the power to grant reprieves and, upon recommendation of the pardon board, to grant pardons and to commute sentences.

The statute prohibits 'parole', 'probation', or 'suspension of sentence', whereas the constitution empowers the governor to grant 'reprieves', 'pardons' or to 'commute sentences'. It is argued that, despite the shades of difference in meaning between these terms, they essentially mean the same thing.¹

However, the respective terms nevertheless have distinct and separate meanings. When the legislature prohibited 'parole', 'probation' or 'suspension of sentence', it did not intend, and it did not in fact seek, to infringe upon the Governor's power to grant 'reprieves' and 'pardons' or to 'commute sentences'.

Notwithstanding that the effect of these different actions is indeed closely related, there are significant differences which permit each to have effect independently of the other. Thus, the Governor may grant reprieves and pardons or he may commute sentences, without contravening the legislative prohibition against granting parole, probation, or suspension of sentence to persons convicted under the statute. The prohibition does not, therefore, infringe upon the Governor's constitutional pardon-reprieve-commutation powers and is not unconstitutional for such contended reason. Cf. State v. Ramsey 292 So.2d 708 (La.1974) and State v. Varice, 292 So.2d 703 (La.1974).

II

Bill No. 2 concerns the alleged denial by the trial court of the defendant's cross-examination (impeachment) rights. A state witness, a police officer, admitted on the stand that his pre-trial written statement was contrary to his own earlier trial testimony. (The witness had previously testified that he was the only policeman who arrested the accused; whereas he now admitted that his own pre-trial written report had stated that another police officer had advised the defendant that he was under arrest.)

It is not denied that the trial testimony of the officer was contrary to his prior written report. By reason of this conflict in a statement material to the case, the defendant arguably was entitled to the use of the police report for cross-examination under the rule as judicially formulated prior to the present decision.

The lead case on the issue in modern times is State v. Weston, 232 La. 766, 95 So.2d 305 (1957). There, summarizing and reconciling our previous jurisprudence, the court held that the trial judge should order production of a prior statement of a prosecution witness for use in cross-examination upon proper foundation, such as that the witness's 'written statement was contrary in any respect to her testimony given at the trial.' 95 So.2d 310. See also Pugh, Louisiana Evidence Law 686--89 (1975). The subsequent jurisprudence has usually mentioned the inconsistency as the sole basis for a proper foundation for requiring production of the pre-trial statement for use in cross-examination. See, e.g., State v. Adams, 302 So.2d 599, 604 (La.1974) ('A showing . . . that one or more of the material statements therein are contrary to the sworn testimony'). See also State v. Whitfield, 253 La. 679, 219 So.2d 493, 496 (1969) (summarizing later cases²).

Nevertheless, although a literal application of the prior jurisprudential test might require an opposite conclusion, we do not find Reversible error presented here by the admitted inconsistency between the pre-trial statement and the actual trial testimony, at least in the light of the abbreviated record before us. For the thing, the actual discrepancy between the trial testimony and the inconsistent pre-trial statement, while concerning a fact material to the decision of the case, does not really concern a critical point at issue or necessarily indicate difference of a substantively significant nature between the pre-trial statement and the trial testimony. Also, it seems anomalous to reverse for failure to produce a document for cross-examination purposes where the witness distinctly admits the conflict between it and his trial testimony, whereas (because of such admission) the statement itself could not be produced as Evidence, see La.R.S. 15:493.³

III

The defendant pleaded 'not guilty' and also 'not guilty by reason of insanity'. Before submission to the jury, the defendant requested the court to read to the jury Articles 652, 654, and 657 of the Code of Criminal Procedure. Bill No. 3 was taken to the denial of this request for a special written charge.

The effect of the requested special charge was to inform the jury that, if it found the accused not guilty by reason of insanity, he would not be released upon the streets but would instead be committed to an appropriate state institution, with his release conditioned only upon a subsequent judicial finding that he could be discharged or go on probation without danger to others and to himself.

The defendant contended that this charge was necessary to effectuate jury consideration of his defense of not guilty by reason of insanity. Since to the layman 'not guilty' connotes release from confinement, the jury may have wished to avoid freeing the defendant in ignorance that a finding of 'not guilty by reason of insanity' would continue the confinement of this mental defective.

The insanity defense was founded upon the accused's mental condition. He was a man of 23 with a mental age of five, an IQ of 50. He had been committed to mental institutions from 1961 to 1969 (until released because of lack of welfare funding).⁴

A majority of this court has determined that the trial court did not abuse his discretion by failing to give the requested special charge.⁵

In the majority's view: The procedure, treatment, commitment and discharge of a defendant found not guilty by reason of insanity, though not in the true sense a sentence, is nevertheless not pertinent to the jury's function to determine guilt or innocence of the accused. The various aspects of the post-verdict treatment of a defendant found not guilty by reason of insanity can only serve to complicate and confuse the jury function. The law has delegated the responsibility and authority for administering this post-conviction procedure to the judge, and the jury verdict should not be influenced by this aspect of the case.

The majority therefore does not find merit to this bill. Cf., e.g., State v. Blackwell, 298 So.2d 798 (La.1974).

Decree

The conviction and sentence are affirmed.

Affirmed.

SUMMERS, J., concurs in the result.

TATE, J., specially concurs as to Bill No. 2 and assigns reasons in which BARHAM and CALOGERO, JJ., concur.

DIXON, J., dissents with written reasons.

BARHAM, J., dissents with written reasons.

TATE, Justice (concurring as to Bill No. 2).

Bill No. 2 was taken to the denial for use in cross-examination of a prior inconsistent statement of a police witness. A majority of this court agrees that, under the circumstances, this does not constitute reversible error. However, a majority was not able to agree fully on the rationale.

The writer and those judges who concur in this opinion believe that the present instance is an instance of the unworkability of the present jurisprudential rule. In the present case, the defense finally proved that the pre-trial statement of the state witness is inconsistent with the trial testimony (the test for production under the rule), yet on appeal such denial of production is found to be harmless (since the witness admitted the inconsistency).

The trial court's ruling and the argument of counsel in the present case illustrate the confusion as to the present jurisprudential rule and its confusing application to the precise question at issue, namely: the production for use in cross-examination of a prosecution witness's pre-trial statement, when the latter may be inconsistent with the witness's trial testimony. The judicially formulated rule has also been the subject of critical scholarly comment on the grounds of its impracticality and theoretic illogic. See Pugh, Louisiana Evidence Law 689--91 (1974); see also, 34 La.L.Rev. 458--59 (1974).

The present appeal should force us to re-examine the rational bases of our rule and to re-formulate it, not only because of such reasons, but also because doubt is cast upon its validity, as previously formulated, by the recent decision of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) by the United States Supreme Court.

At the outset, however, we should note that some of the confusion has arisen (as, for instance, in the argument made by the state in the present...