State v. Barnes

Decision Date02 June 1986
Docket NumberNo. 86-KA-13,86-KA-13
Citation491 So.2d 42
PartiesSTATE of Louisiana v. Joseph BARNES and Edward Barnes.
CourtCourt of Appeal of Louisiana — District of US

Stephen Gernhouser, New Orleans, Martha E. Sassone, Gretna, for defendants-appellants.

Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.

Before CHEHARDY, BOWES and WICKER, JJ.

WICKER, Judge.

Joseph Barnes and Edward Barnes, defendants, were charged by bill of information with the attempted second degree murder of Howard Bridges (Bridges) in violation of L.S.A.-R.S. 14:27, 14:30.1. They entered pleas of not guilty, were tried by jury and convicted of L.S.A.-R.S. 14:34, aggravated battery. The trial court sentenced Joseph Barnes to ten years at hard labor. Edward Barnes was sentenced to five years at hard labor.

The testimony at trial set out the following: Bridges testified that on the evening of October 18, 1984 he and Johnny Davis (Davis) entered a bar located in Jefferson Parish and discovered Edward Barnes lying on the floor. Bridges recounted that Edward Barnes had played cards in his home earlier that evening. He further stated that he searched Edward Barnes's pockets, but found no money. Upon awakening, Edward Barnes accused both Bridges and Davis of theft. At approximately 2:00 or 3:00 a.m. on October 19, 1984 all three men left the bar to begin a two or three mile walk home to their neighborhood. Shortly thereafter, Edward Barnes, still angry about the suspected theft, pushed Bridges and ran off. Later, when Bridges and Davis met Edward Barnes, Barnes began cursing the two men. Thereafter, Davis attempted to speak to Barnes and then departed. Bridges further testified that he subsequently encountered Edward Barnes and explained that he had not taken any money. However, Edward Barnes began hitting and kicking him from the front while Edward's brother, Joseph Barnes, stabbed him with a knife thirteen times from behind. In addition, Bridges indicated that Edward Barnes stated that he (Edward Barnes) was trying to kill him. Finally, the attack ceased and Bridges crawled under a house until daylight when a neighbor came to his aid. Bridges was hospitalized for serious injuries, including a punctured lung.

On the other hand, Edward Barnes testified that Bridges and Davis pursued him from the bar while throwing bottles and other objects at him. He further stated that as the three men neared their neighborhood, Bridges and Davis picked up boards and hit him with a stick. Mildred Artis, a neighbor, testified that she saw two dark men running after Edward Barnes whereupon she summoned Edward's brother, Joseph, to come to his aid. The brothers do not deny attacking Bridges, but they assert that their actions were justified since Edward acted in self-defense and Joseph acted in defense of his brother.

Defendant, Joseph Barnes, assigns four errors:

1. That the trial judge erred in his instructions to the jury with regard to who bears the burden of proof on the issue of self-defense;

2. That the trial judge erred by sustaining the state's objection to testimony by an eyewitness as inadmissible hearsay;

3. That the trial judge erred in failing to grant a new trial or a judgment of acquittal due to insufficient evidence relative to an essential element of the crime, and

4. That the trial judge erred in imposing the maximum sentence allowable thereby resulting in an excessive sentence.

Defendant, Edward Barnes, adopts Joseph Barnes's assignments of errors, numbers one (1) and two (2) and additionally assigns the following error:

1. That the trial judge erred in failing to grant a judgment of acquittal due to insufficient evidence to prove each element of the crime beyond a reasonable doubt.

ASSIGNMENT OF ERROR NUMBER ONE

Both Joseph Barnes and Edward Barnes assign as error the trial judge's refusal to instruct the jury that the burden of proof is on the state to show that the defendants had not acted in self-defense or in defense of another. The trial judge refused to charge the jury accordingly and instead instructed them that the burden of proof in a non-homicide case was on the defendant to show by a preponderance of the evidence that the use of force or violence was justified.

The special jury charge requested by defense counsel was that "[a] defendant who raises the defense that he acted in self-defense does not have the burden of proof on that issue. The state has the burden of proving beyond a reasonable doubt that the alleged attempted homicide was not committed in self-defense." The actual charge given by the trial judge with respect to the burden of proof was:

... The burden of proving that the use of force or violence is justified in non-homicide cases is on the defendant and need only be established by a preponderance of the evidence, not beyond a reasonable doubt as is encumbent on the State to prove the defendant's guilt ... It is justifiable to use force or violence in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person. Again, the burden of proving that the use of force or violence is justified as a defense of others is on the defendant, and need not be established--and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, as is encumbent on the State to prove the defendant's guilt ...

Defense counsel argues that by placing the burden of proving the defense on the defendants, they are denied the presumption of innocence. However, although the due process clause requires proof beyond a reasonable doubt of the elements of a crime it does not mandate that the state prove beyond a reasonable doubt the nonexistence of every affirmative defense. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). In Patterson, supra, the defendant was convicted of second-degree murder. He raised the statutory defense of acting while under the influence of extreme emotional distress and thereby sought to reduce the crime to manslaughter. The Patterson Court considered the issue of whether New York law which characterized the defense as an affirmative one and which placed the burden on the defendant to prove it by a preponderance of the evidence violated due process. In concluding that the conviction under New York law did not deprive the defendant of due process, the Court reasoned that "[t]his affirmative defense ... does not serve to negative any facts of the crime which the State is to prove in order to convict of murder ... The State was itself unwilling to undertake to establish the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult ..." 432 U.S. 207-208, 97 S.Ct. 2325. Moreover, the court noted that "[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required ..." 432 U.S. 211, 97 S.Ct. 2327.

The burden of proof, however, is actually two burdens: namely, the burden of persuasion and the burden of production. See W. LaFave and A. Scott, Criminal Law at 46-51 (1972) [hereinafter Criminal Law ]. "[a]s to the burden of production of evidence, it is uniformly held that the defendant is obliged to start matters off by putting in some evidence in support of his defense ... [Footnote omitted] unless of course the prosecution, in presenting its own side of the case, puts in some evidence of a defense, in which case the matter of defense is properly an issue though the defendant himself produces nothing further to support it ..." [Footnote omitted] Criminal Law at 47.

In the instant case, the defendants first raised the issue of self-defense and defense of another through the cross-examination of Bridges when Bridges denied attacking the Barnes brothers. The defendants next raised these defenses through the testimony of Mildred Artis who testified on their behalf. She testified that she saw Edward Barnes running from two men and that she so informed his brother, Joseph Barnes. Edward Barnes also testified that he was being chased and struck by Bridges and another man and that his brother, Joseph, came to his aid.

Thus, the defendants properly raised the issues of self-defense and defense of another so as to meet their initial evidentiary burden of producing some evidence in support of their defense.

The next issue regards the burden of persuasion. On this issue, jurisdictions either place the burden of persuasion on the defendant to prove the defense by a preponderance of the evidence or instead place the burden on the prosecution to prove beyond a reasonable doubt the nonexistence of the defense. Criminal Law at 48.

Louisiana jurisprudence has long held that a defendant in a homicide prosecution who asserts that he acted in self-defense does not have the burden of proof on that issue; the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Brown, 414 So.2d 726 (La.1982); State v. Necaise, 466 So.2d 660 (La.App. 5th Cir.1985). The issue of who bears the burden of persuasion in a non-homicide case is unsettled in Louisiana at this time. State v. Freeman, 427 So.2d 1161 (La.1983); State v. Aldridge, 450 So.2d 1057 (La.App. 1st Cir.1984). However, in a non-homicide case, the Louisiana Supreme Court clearly considered the justification defense of aggravated assault to be an affirmative one. State v. Landry, 381 So.2d 462, 467-468 (La.1980) same case Landry v. Ascension Parish School, 415 So.2d 473 (La.App. 1st Cir.1982); L.S.A.-R.S. 14:19. The Landry Court likened the justification defense to the insanity defense which "need be established only by a preponderance of evidence, not beyond a reasonable doubt as is incumbent on the state to prove defendant's guilt." 381 So.2d 462 at 467.

In Aldridge, supra, the First Circuit noted that "defendant's argument assumes that ...

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