State v. Smith

• Decision Date: 17 May 1976
• Docket Number: No. 57239,57239
• Citation: 332 So.2d 773
• Parties: STATE of Louisiana, Respondent, v. Casey A. SMITH, Relator.
• Court: Louisiana Supreme Court

Page 773

332 So.2d 773

STATE of Louisiana, Respondent, v. Casey A. SMITH, Relator.

No. 57239.

Supreme Court of Louisiana.

May 17, 1976.

Rehearing Denied June 18, 1976.

Bruce G. Reed, Trial Atty., Reed, Reed & D'Antonio, Metairie, for relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Richard J. Bontall, Research Atty., Metairie, for respondent.

TATE, Justice.

The defendant was convicted of receiving a stolen car of a value of less than $100.00, La.R.S. 14:69 (1972), and sentenced to thirty days, suspended, in the parish prison and a fine of $250.00. We granted certiorari, 325 So.2d 269 (1976), because we felt the trial court may have erred in denying the defendant's motion for a directed verdict of acquittal, La.C.Cr.P. art. 778, at the close of the state's case.

Directed Verdict (Assignment of Error nos. 1 and 2)

The state's case consisted of two witnesses:

A managerial employee of Hertz testified that a specified Ford rental automobile of the firm had been missing since January 19, 1973; it had been reported by the firm as stolen on April 27, but was recovered from the local police department July 10. A local detective from that department testified that, by license check of the parked automobile, he discovered the reportedly-stolen Ford in front of the defendant Smith's residence during the early hours of July 9, that he waited until Smith came out from his residence and drove off in the vehicle, and that he stopped Smith about a mile later and (after re-checking the license number) arrested the defendant.

At the close of the state's case (the testimony of these two witnesses), the defendant filed a motion for directed verdict of acquittal in this non-jury trial. La.C.Cr.P. art. 778. Since at that point there was no evidence of an essential element of the crime, i.e., that the defendant knew or had reason to believe that the vehicle was stolen, ¹ we granted certiorari to review the conviction.

The issue before us, as a reviewing court, is whether the defendant, by subsequently presenting his own evidence, waived his right to have the denial of his motion reviewed solely upon the basis of the state's case rather than of the evidence as a whole (including that produced by him on his defense). This issue has never been directly addressed by this court, the motion for a directed verdict being a relatively recent addition to our criminal procedure. ²

As amended in 1975 (see footnote 2), La.C.Cr.P. art. 778 provides: 'In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state's evidence or of all of the evidence, if the evidence is insufficient to sustain a conviction. If the court denies a defendant's motion for a judgment of acquittal at the close of the state's case, the defendant may offer its evidence in defense.'

As enacted, the statute permits review of the denial of the defendant's motion for a directed verdict of acquittal, whether or not the defendant subsequently offers evidence in defense. It does not necessarily provide that, nevertheless, the reviewing court may not consider, in ruling upon whether acquittal should be ordered as a matter of law, evidence in the defendant's case which cures the omission in the state's evidence and which thus supports a verdict of guilty. That is, the reviewing court is not necessarily obliged by the article to reverse a conviction because of an erroneous denial of the motion at the time, where the conviction is otherwise supported by the evidence and affirmable on the evidence as a whole.

In the great majority of American jurisdictions (almost all of which allow the directed verdict), if the court overrules the defendant's motion for a directed verdict of acquittal filed at the close of the state's case, the defendant is deemed to waive his right to complain on review of an erroneous denial, at least where his own evidence fills in the gaps of the state case. 3 Wharton's Criminal Procedure, Section 520 (12th ed., Torcia; 1975); American Bar Association Standards Relating to Trial by Jury, Standard 4.5(a), Commentary (1968); Comment, The Motion for Acquittal, 70 Yale L.J. 1151 (1961).

The cited law review comment criticizes the application in criminal cases of this 'waiver' doctrine, which had been jurisprudentially developed in civil cases. The denial of review of the erroneous (at the time) overruling of an accused's motion for acquittal, it is contended, overlooks the function of requiring the state to prove its case, upon penalty of dismissal; it unfairly forces the defendant to put on a case which, however strong, converts into an unreviewable issue of fact the issue of his guilt or innocence, when in fact the state itself did not prove its case. For similar reasons, modern treatises have criticized the rule, and a small minority of courts (two out of the eleven federal circuits, for instance) have rejected it. 8 Moore's Federal Practice, Section 29.05 (1969); 2 Wright, Federal Practice and Procedure, Section 463 (1969).

Nevertheless, the distinguished and thoughtful scholars, judges, and lawyers who drafted the American Bar Association Standards for Criminal Justice Relating to Trial by Jury (1968) ultimately concluded to retain the majority rule and not to accept the minority rule. In the commentary to Standard 4.5(a), it is noted: '* * * an erroneous denial of the motion for acquittal made at the conclusion of the prosecutor's case may be cured by subsequent developments at the trial. Although it has been argued that this rule comes perilously close to compelling the defendant to incriminate himself, Note, 70 Yale L.J. 1151 (1961), the argument is not believed to be persuasive, and no deviation from the majority rule is recommended here.'

Thus, the value adhered to is that adopted by a great majority of the American jurisdictions which have considered the issue: Despite the potential unfairness of the policy to a defendant, an erroneous denial of a motion for acquittal is nevertheless not cause for reversal if the evidence as a whole, including the defendant's case, justifies the affirmance as guilty (assuming no other reversible error). To reverse, in such an instance, is to reverse not because the evidence as a whole does not prove guilt; but because of an erroneous interlocutory ruling which was cured by subsequent evidence.

The minority view appeals to at least some of us as more fair and more in accord with the purpose of the motion for an acquittal at the close of the state's case. Yet we are unwilling at this time to depart from the view of the great majority of American jurisdictions which have considered the issue, especially since the authoritative, scholarly, and balanced American Bar Association standards have recently reviewed the issue and have reached the considered recommendation that the merits of the majority view outweigh its demerits.

We therefore conclude that, when a defendant's motion for an acquittal is overruled at the close of the state's case, on review the appellate court may consider, in determining whether there is evidence of guilt, not only the evidence before the court at the time of the motion but the entire admissible evidence contained in the record of the trial. We expressly do not hold, however, and Article 778 provides otherwise (see also footnote 2), that a defendant waives his right to have the denial of his motion for acquittal reviewed by introducing defense evidence. See State v. Douglas, 278 So.2d 485 (La.1973) and succeeding jurisprudence. Such review, however, is based upon the entire record of the...