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State v. Bourg

Supreme Court of Louisiana

December 11, 2019

STATE OF LOUISIANA
v.
DAVID BOURG

          ON WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL, PARISH OF ALLEN

          PER CURIAM [*]

         On June 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 evidence.

         The 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.

         On 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.

         We 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 Bourg-II.

         Code of 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 supervisory jurisdiction.

         Without 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. Id.

         In the 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).[1] 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.[2]

         After 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.

         After 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.[3] 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 testimony.").

         As we 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.

         REVERSED AND REMANDED

          JOHNSON, C.J. ...


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