State v. Ray

¶1(dissenting).

¶2This case is one of a series of incidents attending strike breaking activities connected with labor difficulties in the Abbe-ville area in 1967. Specifically these defendants are charged with arson in the same locality for the second time, having been acquitted of the first charge.

¶3According to the State’s theory of the case, on September 6, 1967 defendants dynamited and destroyed a Cadillac automobile belonging to Carl Suddereth, a superintendent of one of the companies involved in the labor controversy. At the time, the Cadillac was parked in the street near an apartment which was occupied. Missiles from the dynamited automobile struck the nearby building.

¶4In preparation for the crime, defendant J. C. Ray contacted one Vernon Cuvillier and told him he wanted to meet with him and defendant Charles E. Hayes at the Underpass Bar that night. The three allegedly met at the bar and went for a ride in Ray’s car. During this ride Ray said he wanted them to blow up Suddereth’s Cadillac and a pick-up truck belonging to a man named Thibeaux, who had failed to bring pickets to a struck job site the day before. Suddereth was referred tOj *117as a superintendent of Dresser Construction Company, a firm which would not agree to “work union”.

¶5Ray also informed Hayes and Cuvillier that Rodney Miller would have the dynamite. When the plans were laid the trio returned to the Underpass Bar. Later that evening, according to the State’s theory, Hayes and Cuvillier drove the Hayes’ station wagon to Miller’s home, where the latter directed them to a nearby barn from •which they obtained dynamite.

¶6Hayes and Cuvillier then drove to the site of the Cadillac and pick-up truck, lighted the dynamite fuses and threw the dynamite under each vehicle. The fuse under the pick-up truck fizzled out and did not explode but the dynamite under the Cadillac exploded and damaged it to the extent of $4,500, a total loss.

¶7From a conviction and sentence to a term of twenty years in the penitentiary these defendants have appealed.

¶8Their conviction has been set aside and a new trial ordered. In my view this Court’s decision should not stand.

¶9The sole basis for overturning the conviction is the defense contention that the trial judge committed reversible error when he failed to caution the jury that a prior inconsistent statement of a witness who was being impeached was admitted only as to the credibility of the witness and not as substantive evidence of defendant’s guilt.

¶10In defending against this contention the State asserts no objection was made during the course of the trial nor was a bill of exceptions reserved which could serve to present the issue for appellate review.

¶11This Court finds “Both Bills of Exceptions No. 2, reserved to the overruling of a prayer for oyer, and Bill of Exceptions No. 13, reserved to the admission of prior inconsistent statement in evidence, complain of the failure of trial judge to explain the manner in which the prior inconsistent statement was to be received by the jury. These bills were reurged in Bill of Exceptions No. 15, reserved to the overruling of the motion for a new trial.” Articles 841 and 844 of the Code of Criminal Procedure and State v. Barbar, 250 La. 509, 197 So.2d 69 (1967), are cited by the Court as authority for its conclusion.

¶12In my view these findings are erroneous and are not supported by the record.

¶13Bill of Exceptions No. 2, which is said to present the issue, is a bill based primarily upon the contention that the answers to a prayer for oyer were insufficient. This bill was filed on July 15, 1970 months after the verdict on April 25, 1969. It incorporates the issue that the trial judge failed to instruct regarding the limited effect to be given impeaching testimony as an argument entirely disconnected and *119unrelated to the bill'. The bill was reserved to overruling defendant’s prayer for oyer — nothing more.

¶14Bill of Exceptions No. 13 is another protracted recitation filed on January 16, 1970 lumping together a host of unrelated matter,' -none of which contain any objection during the trial to the judge’s failure to instruct the jury concerning the limited effect to be given to impeaching testimony. . Nor- was any. motion for a mistrial denied on. account of the admission of unqualified testimony. • The question is raised for the .first time in the bill by way of argurrient. .This was nine months after trial and verdict and long after the law permits an objection to a trial irregularity..

¶15Bill of Exceptions No. 15 follows the pattern of the other bills. It contains a lengthy recitation of unrelated matters occurring at the trial none of' which relate to the issue we must determine, which is: Was a bill of exceptions reserved to a court ruling concerning the issue which the majority has made the basis for setting aside this conviction? The answer to this question is that no such bill was ever reserved during the trial

¶16The Barbar Case does stand for the proposition that when a witness other than the-.'defendant is impeached by the admission of a prior inconsistent statement incriminating the defendant, the statement is admissible only on the issue of credibility and not as substantive evidence of defendant’s guilt. However, the issue was raised-in that case by objection to the impeachment of the witness, to the alleged hearsay content of a written statement used for impeachment and to the introduction of the-prior written statement used for impeachment. All of these objections were overruled and bills were reserved to these rulings and embodied in a perfected bill which this Court considered on Appeal.

¶17Other cases cited in support of the-Court’s position are likewise distinguishable from the case at bar and do not' support the Court’s position. In State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969) the question was preserved for appellate review by an objection to the introduction of a police report which was. being used to impeach a witness’ testi-‘ mony. When the objection was overruled' a bill was reserved.

¶18In State v. Willis, 241 La. 796, 131 So. 2d 792 (1961) bills were reserved to the admission Of prior inconsistent statements made by the accused as proof of her guilt,, despite defense counsel’s timely request that the jury be instructed that this hearsay evidence was receivable only for impeachment purposes. • ■

¶19Again in State v. Rocco, 222 La. 177, 62 So.2d 265 (1952), a letter was being introduced to. contradict the defendants’ testimony at the trial. Counsel objected and; *121reserved a bill which was the basis for appellate consideration of the question.

¶20State v. Paul, 203 La. 1033, 14 So.2d 826 (1943) involved a prosecution for theft in which the district attorney was attempting to impeach a witness with the contents of a written statement previously given by the witness. Defense counsel objected to the attempt to impeach the witness and was overruled. A bill was reserved which formed the basis for considering the trial judge’s failure to instruct concerning the limited effect to be given the impeaching evidence.

¶21Objection was made to the State’s attempt to impeach a defense witness in State v. Blassengame, 132 La. 250, 61 So. 219 (1913), and a bill reserved to the Court’s ruling. On this basis the Court was enabled to consider the contention that the impeaching testimony was permitted to go to the jury as substantive evidence against the defendant, with no warning that it was admitted merely for the purpose of impeaching the witnesses’ credibility.

¶22A refusal to grant a mistrial was the basis for a bill raising the question in State v. Robinson, 52 La.Ann. 615, 27 So. 124 (1900).

¶23In State v. Reed, 49 La.Ann. 704, 21 So. 732 (1897), a statement of facts was prepared and signed by the Clerk of Court-which counsel erroneously felt would serve in lieu of a bill of exceptions under a recent a-ct of the Legislature. The issue was nevertheless considered since the case involved murder and the statute erroneously relied upon was recently enacted.

¶24None of these cases relied upon by the Court, therefore, are authority for considering the issue upon which the case at bar turns.

¶25The positive law of this State on the subject is clear and unambiguous. Article 841 of the Code of Criminal Procedure-announces the basic rule in these terms:

An irregularity or error in the proceedings cannot he availed• of after verdict unless it is objected to at the time of its occurrence and a. bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and an acquiescence in the irregularity or ruling. (Emphasis added.)

¶26My view, concisely stated¿ is that if the trial judge erroneously failed to instruct the jury as to the limited effect to be given the impeaching testimony, defense counsel should have either objected to that failure or moved for a mistrial on account of that failure and reserved a bill of exceptions to the judge’s ruling if the ruling either denied the limiting instruction or refused the mistrial. Failure of defense counsel to object, in the language of Arti*123ele 841, “operates as a waiver of the objection and an acquiescence in the irregularity or ruling.”

¶27Moreover, Article 921 of the Code of Criminal Procedure has particular pertinence here. A limiting instruction, though meager, was given to the jury by the judge in connection with the testimony of the impeaching witness. The following questions .and answers illustrate the judge’s stateinents relating to the limiting effect of the Impeaching testimony, viz:

Q. (By Mr. DeBlanc) Lt. Breaux, what statement did John Landry give you and Mr. Beck about the explosion which totaled the Carl Suddereth Cadillac on September 6, 1967?

A. Well, Mr. Landry advised us that J. C. Ray planned it. He planned the bombing of the Suddereth vehicle. And he runs into Ray and he—

Mr. Gill: May it please Your Honor, that is not impeachment. That is not impeachment of what this gentleman Mr. Landry testified to.

The Court: I think the impeachment would have to be restricted to the testimony.

Mr. Gill: And I ask Your Honor to please advise the gentlemen of the jury to disregard that statement.

The Court: I would so advise the jury to disregard the statement made to the effect that J. C. Ray planned the bombing.

¶28It is to be noted, also, that much of the testimony concerning this issue was elicited on cross-examination by defense counsel. Surely evidence received under this circumstance is not subject to the rule of State v. Barbar.

¶29My study of the record demonstrates that the evidence of guilt connected with the impeaching testimony added little to the State’s case. The proof of the crime was otherwise established beyond a reasonable doubt by more direct and positive evidence.

¶30As Article 921 of the Code of Criminal Procedure declares:

A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.

¶31No injustice has occurred here as a study of this record will plainly reveal. Furthermore the basis for overruling this case is the breach of a jurisprudential rule of evidence — not a substantial violation of a constitutional or statutory right as Article 921 very emphatically requires. Not only is the rule forming the basis for over*125ruling this conviction not a statutory right, it is a discredited rule of law which the Court discards when it overrules the cases announcing that rule.

¶32Thus, on the basis of the foregoing, this Court should find that the issue of limiting instructions concerning impeaching testimony is not properly presented for appellate review. However, not only did the Court improperly consider the issue but it overruled State v. Barbar and the cases which have applied the rule. In doing so it made the overruling prospective in its effect, but the rule was permitted to apply to the case at hand and brought about a reversal. Herein lies another reason why the majority decision should not stand.

¶33The overruling should have applied to the case at bar. So far as I can ascertain, this Court has never adopted the practice of overruling its decisions prospectively only. This Court’s position on this subject is stated by Mr. Justice Rogers in Norton v. Crescent City Ice Mfg. Co., 178 La. 135, 150 So. 855 (1933):

… the decisions of a court of last resort are not the law, but only the evidence of what the court thinks is the law. The law as construed in an overruled case is considered as though it had never existed, and the law as construed in the last case is considered as though it has always been the law. As a general rule, the law as construed in the last decision operates both prospectively and retrospectively, except that it will not be permitted to disturb vested rights.

¶34At this point it is pertinent to observe that a precedent concerning a rule of evidence, such as the rule requiring limiting instructions regarding impeaching evidence, may more readily be departed from, since no one has a vested right in a rule of evidence. 20 Am.Jur.2d, Courts, § 199.

¶35In my view, although I recognize that courts have exercised the power to overrule a decision in an earlier case wholly prospectively and to completely deny retroactive effect to an overruling decision, this Court has never done so. State ex rel. Day v. Rapides Parish School Board, 158 La. 251, 103 So. 757 (1925). The practice is subject to the objection that a purely prospective overruling is an unconstitutional violation of a legislative prerogative.

¶36Mr. Justice Land expressed this Court’s understanding of its function even after the notion of prospective overruling of decisions had gained acceptance in some courts. I-Ie said:

The functions of this court are strictly judicial, and are restricted to the interpretation of laws as they exist upon the statute books. What the law ought to be is not a juristic question, but is a matter which addresses itself solely to the Legislature of the state. (Carpenter v. Metropolitan Life Ins. Co., 182 La. 813, 162 So. 630 [1935])

¶37*127This Court is not authorized by our Constitution to grant advisory opinions. Our jurisdiction is limited to the decision of cases or controvei-sies. Purely prospective overruling, as the Court attempts here, is an effort to extend the judicial powers of the Court purporting to affect rights of nonparties instead of deciding the case at hand. Thus, the Court’s statement overruling State v. Barbar prospectively is merely dictum. If State v. Barbar is to be overruled it should be overruled as to the case at bar and the conviction should be sustained.

¶38The majority has reached a singular decision. In one bold stroke the opinion sets aside the requirements long recognized in our cases and in the Code of Criminal Procedure (Article 841, et seq.) for obtaining appellate review; and the decision brushes aside the long-established concept of this Court’s function and embarks upon a program of doubtful judicial activity by prospectively overruling a bad rule of evidence. In so doing the conviction of these defendants is set aside contrary to the clear provisions of Article 921 of the Code of Criminal Procedure.

¶39I respectfully dissent.

¶40On Rehearing

¶41The defendants were convicted of aggravated arson, La.R.S. 14:51, and sentenced to twenty years in the state penitentiary. On our original hearing on their appeal, we concluded, one justice dissenting, that their conviction must be reversed' on the basis of a long-settled jurisprudential rule applicable at the time of trial. We granted rehearing because of the State’s earnest, insistence of error. Upon reconsideration, we adhere to our original view that the convictions must be reversed and the matter remanded for re-trial.

¶42Failure to Catition Jury as to Effect to be Given to Prior Inconsistent Statements

¶43The context circumstances are as follows :

¶44The State called Allen Ray Landry as a witness. The prosecutor asked Landry if he knew anything about the dynamiting with which the defendants are charged. Landry replied that all he knew about it was what he read in the newspapers. ,

¶45Pleading surprise, the State proceeded to question Landry about prior inconsistent statements allegedly given by him to three police officers. The defendant made a general objection to all testimony “along that line” of prior inconsistent statements and reserved a bill thereto. Tr. 510. The perfected bill was reserved “to the Court’s procedure in impeaching a witness called by the State.” Bill of Exceptions No. 13.

¶46The police officers in question subsequently testified that, several months after the dynamiting, they had interviewed. Lan*129dry.-.Laiidry had informed them, they said, that,- on the day following the dynamiting, the defendant Ray had told him “that they had taken care of the vehicle” [apparently, the dynamited Cadillac] and “the place lit up like á Christmas tree.”

¶47The settled rule in Louisiana is that, when a witness other than the defendant is impeached by the admission of a prior inconsistent statement, the statement is admissible only on the issue of credibility and not as substantive evidence of the defendant’s guilt. State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969) and other decisions cited by our original opinion.

¶48Further, in an unbroken line of decisions stemming from State v. Reed, 49 La.Ann. 704, 21 So. 732 (1897), this court had held that, when such impeachment testimony is introduced, it is reversal error for the trial court not to caution the jury at the time of introduction as to the limited purpose of the inconsistent statement (for impeachment, not as substantive proof of guilt) ; and moreover, due to the grave prejudice to an accused so sustained, that such error is ground for reversal even though the defendant failed to request such an instruction at the time the (merely) impeaching testimony is introduced.

¶49We have most recently adhered to this view in State v. Barbar, 250 La. 509, 197 So.2d 69 (1967), citing the reasons therefor and the unbroken jurisprudence to this effect. In this recent unanimous decision, we specifically stated that, “in the absence of specific statutory authority to the contrary, this court should continue to follow the precedent already set down by its previous decisions.” 197 So.2d 72.

¶50In our original opinion, we adhered to the view that this jurisprudential rule, in effect at the time this case was tried, required reversal under the law applicable at the time of trial, sentencing, and appeal. We therefore reversed.

¶51However, as to all trials to take place following the finality of this decision, we overruled State v. Barbar and its predecessor decisions, for reasons more fully stated by us in our original opinion. The effect of this prospective overruling, to which we adhere on rehearing, is that in cases tried hereafter we shall require a defendant to specifically request .the trial judge to give the limiting instruction as to the effect of impeachment testimony, in order to avail himself of its omission.

¶52The State does not contend that the law is otherwise than as above summarized, nor that in fact the trial judge here gave the caution as to the limited effect of impeachment testimony as required by such unbroken former jurisprudence.1

¶53*131The principal thrust of the State’s contention is that Barbarshould be overruled because it is wrong, since by the 1966 Louisiana Code of Criminal Procedure an error cannot be complained of on appeal unless objected to at the time of occurrence and unless at this time a bill of exceptions is reserved. Article 841.

¶54However, as the Official Revision Comment to this article notes, the Article 841 of the 1966 Code involves no change in statutory regulation of this particular question. This article’s predecessor provision, La.R.S. 15 :502 (1950) (incorporating earlier statutory enactments to the same effect) provides, in wording substantially identical to the present Code article’s pertinent provision : “No error, not patent on the face of the record, can be availed of after verdict, unless objection shall have been made at the time of the happening of such error and unless at the time of the ruling on the objection a bill of exceptions shall have been reserved to such adverse ruling.” 2

¶55Thus, for over seven decades the law of Louisiana has been, as stated by Barbarin 1967: Despite any statutory requirement that an objection be noted and a bill reserved at the time an alleged error is committed, nevertheless (in view of the prejudice otherwise sustained by an accused) a trial judge is under an affirmative duty, even in the absence of request, to instruct the jury at the time impeachment testimony is introduced that such is not evidence of guilt; that it is only evidence of a prior statement reflecting upon the credibility of a witness who denied at the trial having made such statement, in proof only of which is the impeaching testimony offered.

¶56We should note, as stated in our original opinion, that by virtue of Bill No. 13 3, as well as of Bills Nos. 2 and 15 (see Art. VIII), the testimony of Landry and of the three impeaching police officers is before us for review, in connection with the impropriety alleged in introducing such impeachment testimony. Under virtually *133identical circumstances, presenting the identical issue now before us for review, we so held in State v. Barbar, 250 La. 509, 197 So.2d 69 (1967).

¶57The State, conceding that for us to affirm the conviction we must overrule Bar-bar, asks us to overrule this latter decision retrospectively. The effect of such overruling would be to require us, now, to affirm only on the basis of a different rule we expressly adopt today for the purpose of affirming. To do so in a criminal prosecution — to change the rules in the middle of the game — to apply a new rule just so as to affirm a conviction; and thus to discard a rule just recently reaffirmed and in existence at the time of the trial for over seven decades, by reason of which we are obliged to reverse — amounts to such fundamental unfairness as to verge on a denial of due process. See James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).

¶58Decree

¶59For the reasons assigned, we therefore reinstate our original decree reversing the convictions and sentences. The case is remanded to the Fifteenth Judicial District Court for further proceedings in accordance with law.

¶60Original decree reinstated, and case remanded.

¶64(concurring).

¶65I agree that the failure of the judge to give the jury cautionary instructions, that impeaching evidence may not be considered substantive proof in determining the guilt of an accused, requires the granting of a new trial. However, I seriously question the right of the majority to overrule prospectively the long-settled jurisprudential rule, anent cautionary instructions regarding impeaching evidence, believing it is beyond our power to attempt to bind the Court, in futuro, by such dictum.

¶66On this phase of the case, I agree with the observations of Mr. Justice Summers in his dissenting opinion on original hearing, even though he and I would reach, ultimately, a different result. For I adhere firmly to the view expressed in State v. Willis, 241 La. 796, 131 So.2d 792, wherein it is stated:

“ … jn or¿er t0 minimize the harm which may ensue from the reception of hearsay when used as impeaching evidence, it is necessary to caution the jury as to the limited purpose for which it may be considered before it hears such evidence, rather than to include it later in an instruction which the jury will have to apply in retrospect.”

¶67I concur in the result.

¶68(dissenting).

¶69Conceding arguendo that this Court has, in the past, applied the rule that when impeachment testimony is introduced, it is reversible error for the trial court not to caution the jury at the time of introduction as to the limited purpose of the inconsistent statement (for impeachment, not as substantive proof of guilt); and that such error is ground for reversal even though the defendant failed to request such an instruction at the time the impeaching testimony is introduced. State v. Whitfield, 253 La. 679, 219 So.2d 493 (1969); State v. Barbar, 250 La. 509, 197 So.2d 69 (1967).

¶70We must now realize, however, that the Whitfield and Barbar Cases were decided without reconciling the rule applied there with Articles 841, 845, 920 and 921 of the Code of Criminal Procedure which became effective January 1, 1967. These . articles provide :

Art. 841. When bill of exceptions must be reserved

An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.

¶71This requirement shall not apply to:

(1) A ground for arrest of judgment under Article 859, or the court’s ruling on a motion in arrest of judgment; or

(2) The court’s ruling on a motion for a new trial based on the ground of bills of exceptions reserved during the trial.

Art. 845. Submission and signing of formal bills of exceptions

The bills of exceptions reserved during the trial shall be submitted to the court and signed by it at any time prior to the order of appeal the court shall fix a later date for the submission and signing of bills of exceptions, which extended date must be not later than the return day for the appeal. The court must sign the *137formal bills of exceptions, but may attach per curiam comments stating its reasons for the rulings. If the court refuses to sign a formal bill of exceptions, its refusal may be reviewed on a writ of mandamus.

Art. 920. Scope of appellate review

The following matters and no others shall be considered on appeal:

(1) Formal bills of exceptions that have been submitted to and signed by the trial court in accordance with Article 845, whether or not the bills of exceptions were made a ground for a motion for a new trial; and

(2) Any error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.

Art. 921. Matters not grounds for reversal

A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantial rights of the accused, or constitutes a substantial violation of a constitutional or statutory right.

¶72Application of these articles to the facts and circumstances of this case requires that this Court refuse to review an irregularity or error in the proceedings after verdict, unless it is objected to at the time of its occurrence and a bill of exception is reserved to the adverse ruling of the Court on such objection. La.Code Crim.Proc. Art. 841. That is to say, the rule óf the Whitfield and Barbar Cases cannot exist side by side with the quoted codal artides.

¶73By its decision in this case, even though vigorously urged to do so by the State in its brief on rehearing, the Court refuses to apply the legislature’s mandate. Instead the majority adheres to and applies a rule, the merit of which it repudiates, but only prospectively; a rule which the legislature in the quoted articles has refused to recognize as an exception to the scope of review on appeal in criminal cases; a rule the quoted articles have effectively eliminated from our law.

¶74The opinion of the majority on rehearing gives only footnote attention to Article 920 which limits the scope of review to bills of exceptions properly perfected. In so doing it relegates to a subordinate role in this decision the controlling positive law on the subject.

¶75I respectfully dissent.