State v. Lubrano
| Decision Date | 14 June 1990 |
| Docket Number | No. 89-K-2904,89-K-2904 |
| Citation | 563 So.2d 847 |
| Parties | STATE of Louisiana v. Anthony LUBRANO. 563 So.2d 847 |
| Court | Louisiana Supreme Court |
Dwight Dosky, for Anthony Lubrano.
Harry F. Connick, Dist. Atty., Jack Peebles, Asst. Dist. Atty., for State.
The defendant was charged by bill of information with six counts of public payroll fraud in violation of La.R.S. 14:138. After trial by jury, he was found guilty as charged on all counts. The trial court sentenced him to concurrent terms of eighteen (18) months' imprisonment at hard labor on each count. The court suspended the sentences and placed the defendant on active probation for eighteen (18) months. On appeal, the Fourth Circuit affirmed the defendant's convictions and sentences, rejecting three assignments of error. State v. Lubrano, 550 So.2d 1283 (La.App. 4th Cir.1989). We granted certiorari in order to review the court of appeal's treatment of defendant's third assignment of error, challenging the sufficiency of the evidence to convict him. We now reverse.
La.R.S. 14:138 required the state to prove beyond a reasonable doubt at trial that the defendant, a New Orleans Police Officer assigned to foot patrol on Royal Street in the French Quarter during the summer of 1984, knowingly received payment for services not actually rendered or for services "grossly inadequate for the payment or compensation received or to be received according to such employment list or pay roll...." According to the state's theory of the case, the defendant fraudulently "double dipped" the City of New Orleans by receiving compensation from the city for walking his beat in the French Quarter on six days in August and September of 1984, when, in fact, he was working a security detail for a movie project entitled "French Quarter Underground."
No witness came forward to testify at trial that he had seen defendant working the security detail at a time he should have been walking his beat. The state's case relied entirely upon the circumstantial inferences arising from the discrepancies between two sets of documents. The state produced the First District's "beat roll" book and defendant's payroll (RAMS) cards indicating that he had worked an eight-hour shift (10:00 a.m. to 6:00 p.m.) on the six days in August and September, 1984, specified in the bill of information. The state also produced the paychecks issued by the City of New Orleans corresponding to the pay periods on the payroll cards. The checks had been endorsed and cashed by the defendant.
Testimony at trial established that defendant's immediate supervisor, John Alesich, filled in the hours on the defendant's payroll card and then signed defendant's name to it, a customary practice at the time. Nevertheless, each officer was responsible for the accuracy of his payroll records, and a rational trier of fact could reasonably determine that the payroll cards used to generate the checks cashed by the defendant represented an accurate statement of the hours he claimed to have worked on those six days.
The state also produced time cards purporting to show the hours and days the defendant spent working the security detail for the movie production, "French Quarter Underground." The cards revealed clear conflicts with the defendant's police payroll records for the six days specified in the bill of information. On September 7, 1984, for example, when the defendant was supposed to be walking his beat on Royal Street in the French Quarter, the movie records showed him working a security detail from 8:00 a.m. to 6:00 p.m. According to the movie call sheets, September 7 involved filming at "Landmark and the French Market, and all over Bourbon Street," locations removed from the defendant's regular "beat." Similar conflicts existed for the other five days charged against defendant in the bill of information. The cards were the responsibility of Captain Don McMullen, who kept a running total of each man's hours through the week and then went back and entered the hours on the time cards "on a daily basis, in order to include the proper total amount of hours."
The state also produced checks corresponding to the defendant's time cards made out on two accounts at the First National Bank of Commerce. Two of the checks had been signed by Mark Hebert, the executive producer of the movie, and cashed by the defendant. These checks totaled $825.00 and purportedly compensated the defendant for working on two of the days alleged in the bill of information. Two other checks, totaling $645.00, purportedly compensated the defendant for working on the other four days charged in the bill of information.
The latter checks were not signed by Hebert, and were marked "VOID." According to Hebert's testimony at trial, these void checks were made out for accounting purposes, as a way of keeping track of cash payments, or payments by way of cashier's checks, to the officers working the detail. Financial difficulties had forced Hebert to adopt this system after checks to the police officers working security and to the crew bounced because of insufficient funds in the various bank accounts maintained to finance the film. Hebert had recruited a part-time accountant, Karren Button, who worked on weekends to straighten out the "menagerie that was going on during the week...." Financial chaos had overtaken the movie at the end of August and in September of 1984, and one work stoppage called by the Screen Actors Guild brought filming to a stop temporarily.
State as well as defense witnesses agreed at trial that the film time cards were accounting devices intended only to keep an accurate record of the number of hours worked by the security detail. State witness Richard Lazes, production manager for "French Quarter Underground," testified that he approved the times submitted by Captain McMullen for payment. "We wouldn't check them individually," Lazes told the jurors, ...
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