WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL,
PARISH OF ALLEN
1, 2014, defendant fatally shot Michael Pitre in the head
while they were sitting in defendant's truck, which was
parked outside the home of the victim's mother in
Oberlin. Defendant and the victim had been drinking, and
defendant claimed at trial that his weapon discharged
accidentally while he was defending himself against the
victim. An Allen Parish jury found defendant guilty of
manslaughter in response to the charge of second degree
murder. The district court granted defendant's motion for
new trial pursuant to La.C.Cr.P. art. 851(B)(1). In doing so,
the district court emphasized its evaluation of
defendant's testimony in conjunction with the forensic
State sought supervisory writs from the court of appeal,
which granted the State's application and reversed the
district court's ruling after hearing oral argument.
State v. Bourg, 16-0915 (La.App. 3 Cir. 6/21/17),
223 So.3d 26, writ denied, 17-1504 (La. 11/17/17),
229 So.3d 932 (Bourg-I). Finding that the district
court erred in granting defendant's motion for new trial,
the court of appeal reinstated the jury's verdict and
remanded for sentencing. On remand, the district court
sentenced defendant to serve 20 years imprisonment at hard
labor and denied him parole eligibility pursuant to the
firearms enhancement provision contained in La.C.Cr.P. art.
893.3. Defendant appealed.
direct review, the court of appeal found that the State had
failed to file a motion for imposition of a sentence under
the enhancement provision of La.C.Cr.P. art. 893.3, as
required by La.C.Cr.P. art. 893.1. State v. Bourg,
18-0435, pp. 4-5 (La.App. 3 Cir. 12/6/18), 260 So.3d 679,
682-683 (Bourg-II). Therefore, the court of appeal
vacated the sentence. The court of appeal also declined to
revisit its earlier determination that the district court
erred in granting the motion for new trial. Applying the
law-of-the-case doctrine, the court of appeal found no clear
error in its prior ruling. Bourg-II, 18-0435, pp.
3-4, 260 So.3d at 681-682. Therefore, the court of appeal
affirmed the conviction.
granted defendant's application from the affirmance in
Bourg-II to review the court of appeal's
previous determination in Bourg-I that the district
court erred in granting defendant a new trial pursuant to
La.C.Cr.P. art. 851(B)(1). As a preliminary matter, we note
that the principle of law-of-the-case has no bearing upon our
decision today. Under this doctrine, courts of appeal
generally refuse to reconsider their own rulings of law on a
subsequent appeal in the same case. See Pitre v.
Louisiana Tech University, 95-1466, p. 7 (La. 5/10/96),
673 So.2d 585, 589. However, the law-of-the-case principle is
not applied to prevent a higher court from examining the
correctness of the ruling of an intermediate appellate court.
See Day v. Campbell-Grosjean Roofing & Sheet Metal
Corp., 260 La. 325, 331, 256 So.2d 105, 107 (1971). In
addition, our previous denial of the defendant's request
to review of the court of appeal's exercise of its
supervisory jurisdiction in Bourg-I has no
precedential value and should in no way be construed as an
adoption of the court of appeal's ruling or reasoning in
Bourg-I. See St. Tammany Manor, Inc. v. Spartan
Building Corp., 509 So.2d 424, 428 (La. 1987) ("A
writ denial by this Court has no precedential value.").
Accordingly, the court of appeal's previous determination
in Bourg-I is now squarely before us despite the
court of appeal's application of the law-of-the-case in
Criminal Procedure article 851(B)(1) provides that a district
court, on motion of the defendant, shall grant a new trial
when "[t]he verdict is contrary to the law and the
evidence." Code of Criminal Procedure article 858
provides that "[n]either the appellate nor supervisory
jurisdiction of the supreme court may be invoked to review
the granting or the refusal to grant a new trial, except for
error of law." Article 858 is a "particularized
application of the constitutional limitation of the [s]upreme
[c]ourt's appellate jurisdiction to questions of law
only." State v. Guillory, 10-1231, p. 3 (La.
10/8/10), 45 So.3d 612, 614. The constitutional restriction
on the supreme court to review only questions of law is found
in La. Const. Art. V, § 5(C); a parallel version
restricting the intermediate appellate courts is found in La.
Const. Art. V, § 10(B). Article V, § 5(C) provides:
"In criminal matters, [the supreme court's]
appellate jurisdiction extends only to questions of
law." Article V, § 10(B) likewise provides:
"In criminal cases [a court of appeal's] appellate
jurisdiction extends only to questions of law." A
comment to Article 858 cites a string of venerable decisions
for the proposition, "Although the constitutional
limitation of the supreme court's criminal jurisdiction
is specifically addressed to the court's appellate
jurisdiction, the limitation is generally construed as
applicable to both the appellate and supervisory jurisdiction
of that court." La.C.Cr.P. art. 858 cmt. b. While
Article 858 refers only to the supreme court's appellate
and supervisory jurisdiction, that language has been
attributed to a failure of the legislature to keep pace with
the transfer of criminal appellate jurisdiction to the
circuit courts. See State v. Korman, 439 So.2d 1099,
1100 (La.App. 1 Cir. 1983) ("The transfer of criminal
jurisdiction from the supreme court to the courts of appeal
makes C.Cr.P. Art. 858 applicable to the courts of appeal.
La. Const. Art. 5, Sec. 10(A)."). Thus, the
jurisprudence has recognized that the same principles apply
in this area of law regardless of whether they are applied by
this court or an intermediate appellate court, and whether
they are applied by a court exercising appellate or
a doubt, these prohibitions against fact-finding and
credibility assessments by appellate courts in criminal cases
afford Louisiana trial judges immense power to set aside jury
verdicts and grant new trials pursuant to Article 851(B)(1),
as this court has recently reiterated. See State v.
King, 15-1283, p. 12 (La. 9/18/17), 232 So.3d 1207,
1214. When a new trial is granted pursuant to La.C.Cr.P. art.
851(B)(1) because the trial judge finds the verdict to be
contrary to the evidence, i.e., there is reasonable doubt as
to the guilt of the defendant, that is unreviewable because
an appellate court may not review facts in a criminal case.
See State v. Guillory, 10-1231, p. 3 (La. 10/8/10),
45 So.3d 612, 614-615. A motion for a new trial challenging
the sufficiency of the evidence is a question of fact outside
of the higher courts' constitutional scope of review.
context of a motion for new trial pursuant La.C.Cr.P. art.
851(B)(1), the term sufficiency is shorthand for
factual sufficiency, which should not be confused
with legal sufficiency of the evidence in the
context of a motion for post verdict judgment of acquittal
and the due process standard of Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). In ruling on a motion for new trial
brought under La.C.Cr.P. art. 851(B)(1), the trial
court's duty is to put itself in the position of a juror.
State v. McKinnies, 13-1412, p. 10 (La. 10/15/14),
171 So.3d 861, 869. A trial court independently assesses
credibility and weighs the evidence, and in doing so acts as
what is often described as a thirteenth juror.
an extensive review of the facts presented at trial, the
court of appeal found the trial court applied the wrong
standard to evaluate defendant's motion for new trial.
Specifically, the court of appeal found the district court
misapplied the due process standard of Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), to conclude the State presented insufficient evidence
of defendant's specific intent. See Bourg-I,
16-0915, pp. 16-17, 229 So.3d at 36. Because it found the
trial court applied the wrong standard, the court of appeal
reversed the district court's ruling, which granted
defendant a new trial. The court of appeal erred.
reviewing the record, we cannot find as the court of appeal
did that the district court failed to weigh the evidence as a
so-called thirteenth juror but instead found the evidence
legally insufficient to support the conviction under
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). If the district court had found the
evidence legally insufficient it is not apparent why it would
not have granted the motion for post verdict judgment of
acquittal on that basis. There is no confusion between
factual and legal sufficiency that can fairly be discerned
from this record. Furthermore, although the court of appeal
found it telling that the district court focused on
circumstances pertaining to defendant's credibility and
on the forensic evidence, rather than "discuss a greater
amount of credible evidence on either side,"
Bourg-I, 16-0915, p. 18, 223 So.3d at 37, a review
of the district court's reasons suggests the district
court simply evaluated the evidence as a juror
might. The court of appeal's determinations
in Bourg-I clearly run afoul of this court's
decision in State v. King. See King,
15-1283, p. 12, 232 So.3d at 1215 (declining to "upset
the longstanding jurisprudence concerning the reviewability
of Article 851(1) and also craft a per se rule that a trial
court cannot grant a new trial under Article 851(1) based
purely on its rejection of a sole witness's
noted in State v. King, a long line of jurisprudence
has emphasized that a grant of new trial pursuant to
851(B)(1) leaves nothing for appellate court review. None of
these cases, however, addressed whether the district court
applied the correct legal standard in weighing the evidence
as a thirteenth juror. While the appellate courts have
jurisdiction in a criminal case to review the standard
applied for error of law, the court of appeal erred in
Bourg-I in finding the district court applied the
wrong standard, and then used its erroneous determination to
displace the district court's evaluation of credibility
and the weight of the evidence. Accordingly, we grant
defendant's application to reverse the court of
appeal's affirmance of the conviction, we reinstate the
district court's ruling that granted defendant a new
trial pursuant to La.C.Cr.P. art. 851(B)(1), and we remand to
the district court for further proceedings.
JOHNSON, C.J. ...