State v. Bennett

A St. Mary Parish Grand Jury indicted the defendant, James Bennett, for attempted aggravated rape, a violation of LSA-R.S. 14:42 and 14:27. The defendant pled not guilty and not guilty by reason of insanity. A unanimous jury found him guilty as charged. The defendant received a sentence of twenty years at hard labor.

The defendant appeals, relying on four assignments of error for reversal of his conviction and sentence. Defense counsel specifically abandoned four other assignments of error in brief.

ASSIGNMENT OF ERROR NO. 1

After a sanity hearing, the court concluded that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense. See LSA-C.Cr.P. Art. 641. The defendant asserts four grounds for a reversal of this finding.

Defense counsel contends that the court failed to appoint the sanity commission in accordance with Louisiana Code of Criminal Procedure Article 644(A), as the court appointed the commission more than seven days after ordering the mental examination, and as only one physician served on the commission.

Article 644(A) provides:

“Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two’and not more than three physicians who are licensed to practice medicine in Louisiana, and have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment. No more than one member of the commission shall be the coroner or any one of his deputies.”

On September 19,1975, the court granted a defense motion to suspend the prosecution and to appoint a sanity commission. Yet on September 23, 1975, the defendant filed another motion, identical to the first. On that same day, the court again suspended the prosecution and ordered a commission to examine the defendant and report on his present mental capacity to proceed. On September 29, 1975, the court named Dr. David Rees, Psychiatric Director of the Acadiana Mental Health Center and Dr. G. P. Musso, St. Mary Parish Coroner, to serve on the commission. Both doctors examined the defendant on October 8, 1975. However, the State moved for the appointment of another physician to assist Dr. Rees in his examination of the defendant. On November 3, 1975, the court named Dr. N. N. Anthony to the commission. On the following day, Dr. Anthony examined the defendant. On November 5,1975, the court held a sanity hearing and found the defendant legally sane.

The record does not support the defense assertion that only Dr. Anthony served on the sanity commission. The court appointed three physicians to report on the defendant’s mental status, two of whom testified at the sanity hearing. This commission satisfied the physician requirement of Article 644(A). "

As more than seven days elapsed between the court’s first ordering a mental examination and the court’s appointing a sanity commission, the commission was untimely appointed. However, the court did appoint a commission within ten days of the first order and within six days of the second. This delay does not invalidate the proceedings. No prejudice resulted since the defendant received the benefit of an examination by a sanity commission. See LSA-C. Cr.P. Art. 921.

The defendant further argues that during the sanity hearing the court improperly admitted a letter from Dr. Rees to the judge conducting the sanity hearing. This letter contains the result of Dr. Rees’ mental examination of the defendant. (R. p. 58) He complains that the State failed to lay the proper predicate for its introduction.

When the State introduced the letter, the Assistant District Attorney failed to offer any proof of its genuineness. See LSA-R.S. 15:456. However, assuming the letter to be inadmissible, the defendant was not prejudiced, for Dr. Rees’ testimony at the sanity hearing tracked the contents of his letter. LSA-C.Cr.P. Art. 921.

Finally, the defendant assigns as reversible error the court’s finding the defendant competent to stand trial. He specifically objects to the court’s refusal to suspend the sanity hearing and order a further evaluation of defendant’s mental retardation and intelligence quotient. (The examining physicians reported that the defendant had a “moderately severe mental retardation” but did not fix his exact I.Q.)

Louisiana law presumes the defendant’s sanity. LSA-R.S. 15:432. The defense carries the burden of proving by a clear preponderance of the evidence that as a result of a mental disease or defect he lacks the capacity to understand the proceedings against him or to assist in his defense. LSA-C.Cr.P. Art. 641; State v. Morris, La., 340 So.2d 195 (1976); State v. Veal, La., 326 So.2d 329 (1976); State v. Marks, 252 La. 277, 211 So.2d 261 (1968). Moreover, the judge’s determination of a defendant’s present mental capacity is entitled to great weight and his ruling will be reversed only if it is clearly erroneous. State v. Morris, supra; State v. Flores, La., 315 So.2d 772 (1975).

Defense counsel relies on portions of Dr. Anthony’s testimony and State v. Square, 257 La. 743, 244 So.2d 200 (1971) to support his argument.

Dr. Anthony testified as follows:

“[DEFENSE COUNSEL]: Q. And at this time, do you believe that the defendant — I know that you have already answered this but I would like a clearer answer — Is the defendant fully capable of assisting counsel in his defense, in your professional opinion?

“[DR. ANTHONY]: A. Again, I must state that I find the defendant to be well-oriented; to be aware of his environment, and I consider that he can be of assistance in assisting counsel.

“Q. Can he be of full assistance in assisting counsel in this matter?

“A. My feeling is that it would be helpful to have the defendant subjected to further clinical psychological evaluation, regarding his I.Q.

“Q. With what purpose in mind, what end purpose in mind?

“A. With a purpose of defining his level of mental retardation.

“Q. And this would be of possibly a greater help in determining whether or not he was fully capable of assisting counsel in his defense?

“[DEFENSE COUNSEL]: Well, Your Honor, in view of the testimony, I believe it might be proper to further subject the defendant to further mental tests in order to determine—

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“BY THE COURT: I would imagine that a person with a college degree or a great deal of education would be of more assistance to counsel in assisting in his defense than a person would be of a low educational level and possibly some mental retardation. But within his capabilities, if I understand what the law is, within his capabilities, if he can assist counsel in his defense.

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“[DR. ANTHONY]: I would say that within his capabilities, I’d find him able to assist counsel. Now, when he asked me about his I.Q., you know, I feel that there are tests that can nail this down, if this has to be nailed down for the satisfaction of the Court. But I certainly find the defendant’s orientation good enough to assist counsel in his defense.

“[DEFENSE COUNSEL]: Q. And can you state this beyond a reasonable certainty?

“[DR. ANTHONY]: A. Yes.”

(Sanity Hearing Tr. pp. 29-32)

Subnormal intelligence alone does not constitute legal insanity. State v. Morris, supra; State v. Hargrove, La., 330 So.2d 895 (1976); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). Louisiana Code of Criminal Procedure Article 641 sets forth the test for incapacity to proceed, as follows:

“Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.”

Both examining physicians reported that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense.

In State v. Square, supra, in a letter by a member of the sanity commission, the physician presumably stated that a clinical psychologist’s examination was necessary to determine the defendant’s mental capacity to stand trial. We found the lower court erred in prohibiting defense counsel from questioning the physician as to his opinion on the necessity of such further examination. However, the present case is distinguishable. While Dr. Anthony stated that further tests would establish his precise intelligence quotient, both Dr. Rees and Dr. Anthony testified that the defendant possessed the capacity to understand the proceedings against him and to assist in his defense. Their testimony revealed that the defendant could distinguish right from wrong, was not psychotic, was able to communicate, was fully aware of his circumstances and environment, and was well oriented.

We conclude that the trial judge did not abuse his discretion in denying the motion to suspend the proceedings and order further tests. We also conclude that he properly found the defendant competent to stand trial.

ASSIGNMENT OF ERROR NO. 3

During his opening statement, defense counsel attempted to read the penalty provisions of the statutes under which the State charged the defendant, LSA-R.S. 14:42 and 14:27. The court upheld the State’s objection to the reading of the penalty provisions to the jury. In complaining of this ruling, the defendant states:

“The main thrust of the defendant’s defense in this case was to show the jury that the defendant should be found not guilty by reason of insanity. In order to do this it was felt that the jury had to understand not only the consequences of a verdict of not guilty by reason of insanity, but it should also understand the consequences of a guilty verdict.”

In State v. Nero, La., 319 So.2d 303 (1975), we held that it was proper for the trial judge to prohibit the defense counsel’s reading possible sentences to the jury during his opening statement. This Court stated:

“When defendant avails himself of the opportunity to make an opening statement under Article 765(4) of the Louisiana Code of Criminal Procedure, he must confine his remarks to the explanation of the nature of the defense and the evidence by which he expects to establish it. State v. Spencer, 257 La. 672, 243 So.2d 793 (1971). See also State v. Mehan, 262 La. 611, 264 So.2d 581 (1972).”

ASSIGNMENT OF ERROR NO. 4

The defense complains of a ruling which upheld a State objection. He contends that the ruling precluded the defense from clarifying defendant’s mental status. The objection arose as follows:

“[DEFENSE ATTORNEY]: Q. And did you notice anything about Mr. Bennett’s personality?

“[DR. ANTHONY]: A. Yes. Reviewing his past history and his own evaluation about himself and law enforcement agencies, I would consider him to be sociopathie.

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“Q. Would you say a sociopathie personality would be a type of person that would not learn from their mistakes?

“A. Yes, sir.

“Q. Would you believe that by being punished or sent to jail, one would learn from his mistakes?

“[ASSISTANT DISTRICT ATTORNEY]: I object, Your Honor. We are getting into a realm of question of punishment as opposed to what the man’s mental status is.

“BY THE COURT: The objection is sustained.

“[DEFENSE ATTORNEY]: Please note an objection.

“[DEFENSE ATTORNEY]: Q. Again, speaking hypothetically, a person suffering from a sociopathie personality or condition, would they learn from punishment?

“[DR. ANTHONY]: A. They would not.”

(Tr. pp. 384-385)

Assuming that the trial judge erroneously sustained the objection, we note that the same testimony was elicited in response to the next question, to which the State offered no objection. Hence, the defense has no cause to complain. LSA-C.Cr.P. Art. 921.

ASSIGNMENT OF ERROR NO. 7

The defendant timely submitted a special written charge to the trial judge wherein he requested that the court include a reading of Louisiana Code of Criminal Procedure Articles 652, 654, 655, and 657 in its general charge to the jury. The trial judge denied the request on the ground that the general charge included the substance of the requested special charge.

We agree with the trial judge. The general charge contained the substance of Article 652, relating to the burden of proof as to the defense of insanity.

The judge further instructed the jury as follows:

“If you return a verdict of not guilty by reason of insanity, our law provides that the defendant must be committed to a state mental institution from which he shall not be released except upon order of this Court, based upon a determination that he is no longer criminally insane and a menace to himself or to society.”

(Tr. p. 485)

The defendant asserts that State v. Babin, La., 319 So.2d 367 (1975), requires the inclusion of the full text of Articles 654, 655, and 657 in the general charge. He contends that the short summary could be overlooked by the jurors.

In Babin, the trial judge declined to read Articles 654, 655, and 657 as requested or to explain their substance to the jury. There we stated:

“ ‘The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty. It is common knowledge that a verdict of not guilty means that the prisoner goes free and that a verdict of guilty means that he is subject to such punishment as the court may impose. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. ... It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.’

“In view of our interpretation of Art. 803 of the C.Cr.P., and in order to prevent a possible miscarriage of justice, flowing from the imprisonment of one who should be hospitalized because a jury does not understand the effects of an insanity verdict, we hold that the instructions here at issue must be given if they have been specially requested by defendant or by the jurors.

“ We prefer not to prescribe any particular form that such instructions must take. However, when the trial judge has not included in the general charge an instruction explaining or quoting the law applicable to a verdict of not guilty by reason of insanity, then upon defendant’s request he must read defendant’s wholly applicable, wholly correct suggested charge to the jury. Art. 807 C.Cr.P.” (Italics ours.)

We hold that the judge’s general charge adequately explained the legal consequences of a verdict of not guilty by reason of insanity. Hence, the trial judge properly declined to give the special charge. LSA-C.Cr.P. Art. 807. See State v. Watkins, La., 340 So.2d 235 (1976).

Assignment of Error No. 7 is without merit.

For the reasons assigned, the conviction and sentence are affirmed.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

. The Honorable Robert E. Johnson presided at the sanity hearing.

. We will not consider grounds urged for the first time on appeal, nor matters not briefed or argued. See LSA-C.Cr.P. Art. 841; State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).