State v. Barberousse

• Decision Date: 02 December 1985
• Docket Number: No. 84-K-2146,84-K-2146
• Citation: 480 So.2d 273
• Parties: STATE of Louisiana v. James E. BARBEROUSSE.
• Court: Louisiana Supreme Court

Page 273

480 So.2d 273

STATE of Louisiana v. James E. BARBEROUSSE.

No. 84-K-2146.

Supreme Court of Louisiana.

Dec. 2, 1985.

Rehearings Denied Jan. 9, 1986.

Michael Dees, McHale, Bufkin & Dees, Lake Charles, for defendant-applicant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Richard Ieyoub, Dist. Atty., Charles Richard, Asst. Dist. Atty., F. Wayne Frye, Asst. Dist. Atty., for plaintiff-respondent.

CALOGERO, Justice.

In this case wherein under our supervisory jurisdiction we review a conviction and sentence for negligent homicide, we address several asserted errors, including some concerning application of one of the firearm enhancement statutes, La.Code Crim.Pro. art. 893.1.

James W. Barberousse was convicted before a jury for the commission of negligent homicide (La.Rev.Stat. Sec. 14:32). Because a firearm was used in commission of the felony, the trial judge applied La.Code Crim.Pro. art. 893.1 along with La.Rev.Stat. Sec. 14:32 and sentenced defendant, a first offender, to serve five years at hard labor, unsuspended, and without benefit of parole or probation.

On appeal, the Third Circuit Court of Appeal affirmed his conviction and sentence. We granted writs because his assignments of error included an attack on La.Code Crim.Pro. art. 893.1. We did so coincident with granting writs in seven other cases. ¹ The cases address a multitude of related issues, including some concerning La.Code Crim.Pro. art. 893.1. They were consolidated for argument. Separate opinions are being rendered this day.

Defendant's arguments in this Court are essentially three in number. ² They concern 1) sufficiency of evidence, 2) the state's use of "gruesome" photographs, and 3) the constitutionality and/or procedural inapplicability of La.Code Crim.Pro. art. 893.1, with a related excessiveness of sentence contention. The arguments will be discussed hereinafter following a recitation of the facts involved in the case.

FACTS

Defendant lived with his sister, Bonnie, and her boyfriend, Albert. Apparently, Bonnie was unemployed and an alcoholic; her only source of money was Albert. Defendant often argued with the couple over Bonnie's drinking and over Albert's continued funding of her habit. On the evening of January 30, 1982, Albert told defendant that Bonnie was drinking at a local bar (in fact defendant's place of employment). Defendant went to the bar and found her in the midst of a heated argument with two other patrons. Fearing trouble, defendant went behind the bar and armed himself with a .38 caliber Colt revolver, but managed to remove Bonnie and get her into his car without further incident at that time. During the drive home they argued and, at some point, Bonnie left the vehicle and made her own way back to the house. As soon as she arrived, the three renewed the old argument. Details are disputed (officers testified that defendant admitted to threatening both Bonnie and Albert and to hitting her, knocking her to the floor). Defendant's version is that he drew, cocked and pointed the pistol at Albert in order to frighten Albert into helping him with Bonnie's drinking problem; that, in returning the pistol to his boot, he un-cocked it and somehow accidently discharged a single bullet, striking Bonnie in the chest. At trial, the medical evidence indicated death was caused by "gunshot wound ... due to massive intro-thoracic hemorrhage;" it also indicated the presence of lethal levels of alcohol in her blood. The jury convicted defendant of negligent homicide, as charged, and the court relied upon La.Code Crim.Pro. art. 893.1 to sentence the 43 year-old first offender to five years at hard labor without benefit of parole, probation or suspension of sentence. The Court of Appeal affirmed. State v. Barberousse, 458 So.2d 569 (La.App.3rd Cir.1984).

SUFFICIENCY OF THE EVIDENCE

Defendant argues in this assignment that he was convicted of negligent homicide by evidence constitutionally insufficient to sustain a conviction.

Negligent homicide is "the killing of a human being by criminal negligence." La.Rev.Stat.Ann. Sec. 14:32. The definition of criminal negligence is set forth in La.Rev.Stat.Ann. Sec. 14:12 as follows:

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.

In reviewing a claim of evidentiary insufficiency, we follow the standard announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In accord with that standard this Court will resolve any conflict in the light most favorable to the state and then determine whether the facts established by the direct evidence and inferred from the circumstantial evidence are sufficient for a rational juror to conclude beyond a reasonable doubt that defendant is guilty of every essential element of the crime. State v. Captville, 448 So.2d 676 (La.1984).

The treatment given this assignment of error by the Court of Appeal is ample and correct.

The defendant argues that the extraordinary high blood alcohol level found in the victim could have caused her death, such that she was not "killed" by the defendant's criminal negligence. The physician, Dr. Stanley Smith, who performed the autopsy on the victim, stated that her blood alcohol level was "452 mgs per cent (100 mgs. per cent considered to be legal intoxication)." Dr. Smith testified that this level exceeded the levels generally associated with possible fatal comas--350 to 400 mgs percent. Further, Dr. Smith stated that the victim could have died of toxicity from the amount of alcohol in her system. It is this testimony which the defendant seeks to utilize to attack the State's proof as to Bonnie's death. However, such an attack is likewise defeated by Dr. Stanley's unequivocal testimony that, notwithstanding her drunkenness, the victim's death directly resulted from the gunshot to her chest, causing a fatal loss of blood.

Undeniably, the defendant in the instant case deliberately pulled a loaded .38 caliber revolver, cocked it; and pointed it at another human being, supposedly to frighten that person (Albert) into complying with the defendant's request to desist in providing drinking funds for Bonnie. The gun discharged, the bullet striking Bonnie in the chest. The defendant has constantly averred that he did not intend to shoot his sister. Under the circumstances, a classic case of negligent homicide has been established by the State. The defendant's actions, in handling the gun, amounted to criminal negligence which resulted in the killing of Bonnie Jenkins. State v. Barberousse, 458 So.2d at 572-73.

The assignment of error is without merit.

ADMISSIBILITY OF PHOTOGRAPHS

The defendant contends that a reversible error occurred when the trial court allowed into evidence, over defendant's objection, certain photographs of the victim and the scene of the crime. The defendant alleges that the photographs were gruesome and introduced by the State for the sole purpose of inflaming the jury against the defendant. The trial judge found the pictures not to be gruesome and, therefore, not prejudicial to the defendant.

We agree with the lower courts' findings. This Court has addressed this issue previously and held:

It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. Photographs of the body of a deceased victim have generally been held relevant to prove the corpus delicti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Gaskin, 412 So.2d 1007 (La.1982); State v. Lewis, 353 So.2d 703 (La.1977). State v. Perry, 420 So.2d 139, 150 (La.1982), certiorari denied, U.S. , 103 S.Ct. 2438, 7 L.Ed.2d 1322 (1983).

See also State v. Smith, 327 So.2d 355, on rehearing, 327 So.2d 360 (La.1976).

The photographs in this case are simply not gruesome. And they were probative. The trial court correctly admitted them into evidence.

This assignment lacks merit.

ENHANCEMENT OF SENTENCE UNDER LA.CODE CRIM.PRO. ART. 893.1

As recited hereinabove the defendant Barberousse, a first offender, was convicted of negligent homicide, a felony for which the punishment is prescribed by La.Rev.Stat. Sec. 14:32, imprisonment "with or without hard labor for not more than five years ..." A firearm was used in connection with the felony; thus the sentence is normally governed by both Sec. 14:32 and art. 893.1. ³

Since suspension of sentence is not otherwise prohibited (first paragraph of art. 893.1), and since the maximum sentence for negligent homicide is five years or more (indeed it is five years), art. 893.1 prescribes a five year minimum sentence, unsuspended, and without eligibility for probation or parole. It was because of this article that the trial judge imposed an unsuspended sentence of five years at hard labor without benefit of probation or parole.

Defendant's complaint about the art. 893.1 enhancement and the sentence which was in fact ultimately imposed is many faceted. He contends that his due process rights were violated by the state's failure to include art. 893.1 in a bill of information; that, having requested it, he should have been granted a separate hearing on the applicability of art. 893.1 since the trial court must make a finding that a firearm was used; that the Legislature never intended the enhancement provision of 893.1 to apply to negligent homicide since there is no criminal intent involved in this felonious act; that art. 893.1 violates his equal protection rights in creating a constitutionally...