Summary
In Stowe, the defendant challenged the sufficiency of evidence in a second degree battery case, contending the state had failed to prove the victim suffered the element of "extreme physical pain.
Summary of this case from State v. DavisOpinion
No. 93-K-2020
April 11, 1994
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF LASALLE, STATE OF LOUISIANA
Arthur Gilmore, Jr., Monroe, for applicant.
Richard P. Ieyoub, Atty. Gen., John Reed Walters, Dist. Atty., for respondent.
Defendant was charged by bill of information with the offense of second degree battery. After trial by jury, defendant was found guilty as charged, and was sentenced to serve 60 months at hard labor. Defendant appealed his conviction and sentence. The court of appeal affirmed in an unpublished opinion. Upon defendant's application, we granted certiorari to consider the correctness of that decision, being particularly interested in the sufficiency of evidence issue.
617 So.2d 997 (La.App. 3rd Cir. 1993).
627 So.2d 642 (La. 1993).
On the afternoon of September 4, 1991, Officer Gary Taylor of the Olla Police Department responded to a report of an injured person walking along Highway 125. Upon arriving at the scene, Officer Taylor observed two men, Reverend Allen Scott McDowell, who was responsible for placing the call, and defendant. Defendant, who was in an intoxicated state, had earlier had a fight with his wife and apparently punched through a window, resulting in a deep cut on his right arm which was dripping blood. Officer Taylor wrapped a towel around defendant's arm in an attempt to stop the blood flow. Defendant responded in a belligerent manner, cursing very loudly. Officer Taylor attempted to reason with him and tried to take him to get medical attention for his arm. Defendant refused and became increasingly hostile and threatening. Traffic began to back up, since defendant and the officer, were standing in the middle of the highway. Realizing that he was unable to reason with defendant, Officer Taylor advised him that he was under arrest for disturbing the peace. At this point, defendant suddenly hit Officer Taylor in the head, knocking him backwards across the road and into a roadside ditch. The officer attempted to remove his ASP (an expandable metal baton) from his belt, but was unable to use it. Defendant continued to hit the officer. Defendant grabbed the end of the officer's ASP and the two began wrestling for it. The officer was able to get it away from defendant and it dropped to the ground. Finally, Officer Taylor was able to pin defendant's arm down. With the assistance of Reverend McDowell and a bystander, Ken Evans, the officer put his handcuffs on defendant and placed him in his patrol car.
Officer Taylor was treated in the emergency room of Hardtner Medical Center by Dr. B.E. Doughty. Dr. Doughty's report revealed that Officer Taylor had an edema and contusion under his right eye, abrasions on his forehead, lip and under his right eye and contusions and some edema on his forehead. His wounds were cleaned and his abrasions treated with neosporin ointment. He was instructed to use an ice pack on the forehead and right eye area, apply neosporin ointment to the abrasions and under the right eye and the sheriff's office was asked to check with him every two hours. Officer Taylor received no further treatment, although he stated he had severe headaches for approximately two weeks after the incident and had difficulty sleeping.
Three issues are presented for our consideration: (1) whether there was sufficient evidence to support a conviction for second degree battery; (2) whether the trial court erred in denying introduction of certain medical records of defendant into evidence; and (3) whether defendant received ineffective assistance of counsel. Sufficiency of Evidence
Defendant contends that the state failed to prove he committed second degree battery. Specifically, he argues that the state failed to prove that the victim suffered extreme physical pain. The offense of second degree battery is set forth in La.R.S. 14:34.1.:
Second degree battery is a battery committed without the consent of the victim when the offender intentionally inflicts serious bodily injury.
For purposes of this article, serious bodily injury means bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.
Whoever commits the crime of second degree battery shall be fined not more than two thousand dollars or imprisoned, with or without hard labor, for not more than five years, or both.
We have held that the phrase "extreme physical pain" as used in the statute is not unconstitutionally vague, since it "describes a condition which most people of common intelligence can understand." State v. Thompson, 399 So.2d 1161, 1168 (La. 1981). In State v. Fuller, 414 So.2d 306, 310 (La. 1982), we held that second degree battery is a specific intent crime, and that such intent "maybe inferred from the circumstances of the transaction."
When considering a claim of insufficient evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); State v. Smith, 600 So.2d 1319 (La. 1992). It is not the function of an appellate court to assess credibility or reweigh the evidence. State v. Rosiere, 488 So.2d 965 (La. 1986).
In order to prove its case, the state relied on the testimony of Officer Taylor, and two eyewitnesses to the incident, Reverend Allen McDowell and Ken Evans. In addition, the state introduced the testimony of Chief of Police Bobby W. Cruse, who transported Officer Taylor to the hospital, and photographs of Officer Taylor taken shortly after the incident. Officer Taylor testified as follows:
Q: Officer Taylor, while Mr. Stowe was hitting you did you feel his blow on your face?
A: Definitely.
Q: What did they feel like?
A: Felt like I was getting hit up side the head with a baseball bat.
* * *
Q: Tell us what it felt like?
A: Every time he hit me I just felt a great deal of pain up to the point where I finally became numb. I was hurting so bad that I was having difficulty seeing, my vision was bad, had so much blood in my face. At that time I thought it was mine, some of might have been mine, some of it might have been Mr. Stowe's. I have no way of determining what was what.
Q: Where did Mr. Stowe hit you at?
A: All over the face and head.
* * *
Q: Officer Taylor, what was your impression of the fight that took place?
A: I felt like I was fighting for my life. . .
The officer's version of the story was corroborated by the testimony of two eyewitnesses, Ken Evans and Reverend McDowell. Mr. Evans testified as follows:
Q: Mr. Evans were you in a position that you could see what was taking place during this incident?
A: I saw the whole thing.
Q: What was your impression of what took place?
* * *
A: Well here was a man hurt, here's a police officer coming to help him, trying to help him, trying his best to help him and I just watched this guy just explode on this police officer trying to kill him, trying to break him into [sic]. My recollections of the whole thing is sickening because if he could have he would have killed that guy. He was trying to kill him and that is my recollection of what I saw.
Reverend McDowell testified that he saw defendant hit Officer Taylor in the head "probably four or five times" without any provocation from the officer. Like Mr. Evans, he stated that defendant was "whipping up" on the officer, was repeatedly "hitting him with his fist" and "was getting the best of him."
As to his condition, Officer Taylor testified:
Q: What was the condition of your face when you got to the hospital?
A: One eye was swelled nearly completely shut. There were bruises and abrasions all over my face. Knots on my head, had a large knot on my chin and I still have a small knot on my chin from this. Had a large place under my eye. It stayed there for about two weeks before it finally started going down. Both eyes were blackened. Had a nose bleed and a cut lip.
Q: You previously testified that this hurt. For how long a period did you hurt from this?
A: I had severe headaches approximately two weeks, night and day. It was very little sleep that I get during that time. There was no way to be comfortable at all.
Q: Did you have these headaches prior to this incident?
A: No.
The description given by Chief Cruse, who saw Officer Taylor immediately after the incident, was similar: "his face was severely beaten, his eyes was already swollen shut, had bruises upon his face, lacerations and bleeding." The photographs of Officer Taylor taken shortly after the incident are in accord with this testimony.
The defense offered no testimony to contradict the version of the incident testified to by Officer Taylor, Reverend Allen and Mr. Evans. The defense presented the testimony of defendant's wife, Phyllis Stowe, his sister-in-law, Peggy Whitman, his son, Ricky Stowe, and his daughter, Shannon Stowe, none of whom were present when the altercation started. Mrs. Stowe testified that Officer Taylor told her he was "bruised up" and would be "sore tomorrow," but the only thing he was sorry about was that his uniform was ruined. Ms. Whitman testified that Officer Taylor denied being hurt, stating he was "just mad." The defense also put on the testimony of Dr. Doughty, the physician who treated Officer Taylor. Dr. Doughty's report indicated that at the time he was treated Officer Taylor denied he was in pain. However, Dr. Doughty admitted that he had patients who denied pain even though it was obvious that they were in pain.
Having reviewed the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found beyond a reasonable doubt that the state proved that defendant intentionally inflicted extreme physical pain on officer Taylor without his consent. Exclusion of Evidence
Defendant argues the officer's decision to "force his will" upon him after he refused the officer's assistance meant the officer "impliedly consented" to this physical confrontation. In essence, defendant argues he was simply exercising his right to resist an unlawful arrest. We find no merit to this argument. Clearly, based on defendant's offensive and derisive language in the middle of a public highway, plus his visibly intoxicated condition, Officer Taylor was justified in believing that defendant was acting "in a manner which would 'foreseeably disturb or alarm the public.'" State v. Jordan, 369 So.2d 1347, 1350 (La. 1979). Therefore, Officer Taylor had probable cause to arrest him for violating La.R.S. 14:103, disturbing the peace. Since Officer Taylor was engaged in making a lawful arrest, he did not consent to the battery.
Defendant contends that the trial judge erred in excluding introduction of his medical records into evidence. Defendant sought to introduce the records to support his theory that he was attempting to resist an unlawful arrest and the injuries he received were defensive in nature. The state objected to the introduction of the records on the ground they were not relevant. The trial judge sustained the state's objection, but allowed defendant to make a proffer. The trial judge also allowed the treating physician, Dr. Doughty, to testify before the jury as to his examination of defendant and as to the specifics concerning defendant's arm injury. The record indicates that Dr. Doughty testified before the jury that defendant had a four inch laceration to his right forearm and wrist area, contusion abrasions to the left knee and thigh and contusions to the right and left chest and front. He observed that the lacerated tendon weakened the function of closing the palm. A review of the proffered information indicates that the medical records contained essentially the same information as Dr. Doughty testified to before the jury. The only additional information in the proffer concerned the results of defendant's skull x-ray, which was negative, and a report from a registered nurse concerning vomiting by defendant at approximately 7:30 p.m. on the night of the incident. The report shows that as a result of the vomiting, defendant was examined again; however, no unusual conditions were found and defendant was discharged to the sheriff's department at 8:20 p.m.
The definition of relevant evidence is set forth in La. Code Evid. art. 401:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
In determining the relevance of evidence, much discretion is afforded to the trial judge. State v. Johnson, 343 So.2d 155 (La. 1977); State v. Nero, 319 So.2d 303 (La. 1975).
Having reviewed the proffered materials, we find that the additional information in the proffer which was not included in Dr. Doughty's testimony before the jury does not lend any support to defendant's assertions that his injuries were defensive in nature. Arguably, however, defendant's medical records were relevant insofar as they showed his cut tendon weakened his ability to make a fist and made it difficult for him to hit Officer Taylor. Nonetheless, we find any error in this regard was harmless, since the jury was fully informed of defendant's cut tendon and his weakened ability to make a fist through the testimony of Dr. Doughty.
Ineffective Assistance of Counsel
Finally, defendant contends he received ineffective assistance of counsel, since his attorney failed to raise the issue of whether his highly intoxicated state at the time of the incident precluded the presence of specific intent. Defendant additionally argues that the defense counsel failed to request a special jury charge regarding the defense of intoxication. In rejecting this contention, the court of appeal held:
As the evidence presented at trial and alleged by the defendant in brief did not indicate a level of intoxication sufficient to preclude the presence of specific intent, defendant's counsel was not ineffective in failing to present evidence of intoxication or to request a special jury charge concerning intoxication.
An ineffective assistance of counsel claim may be addressed on direct review if the record discloses evidence needed to decide the issue. State v. Ratcliff, 416 So.2d 528, 530 (La. 1982) (record was sufficient since ineffective assistance claim was explored in detail during a hearing on a motion for new trial). However, the issue is more properly raised by application for post-conviction relief in the trial court, where a full evidentiary hearing may be conducted if warranted. State v. Deloch, 380 So.2d 67 (La. 1980); State v. Malveaux, 371 So.2d 820 (La. 1979).
In the present case, the record does not contain sufficient evidence to resolve defendant's ineffective assistance of counsel claim on direct review. The court of appeal erred in passing on this issue. Accordingly, we will vacate and set aside that portion of the court of appeal's judgment dealing with this issue. Defendant may re-raise this issue by application for post-conviction relief in the trial court.
DECREE
For the reasons assigned, the judgment of the court of appeal is vacated and set aside insofar as it passes on defendant's ineffective assistance of counsel claim. In all other respects, the judgment of the court of appeal is affirmed.
I join in the majority opinion except that part which perpetuates this court's error in State v. Fuller, 414 So.2d 306 (La. 1982), by classifying second degree battery, as a specific intent crime. La.Rev.Stat. 14:341 proscribes "intentionally" inflicting serious bodily injury, thereby distinguishing the conduct necessary for this crime from conduct which accidently inflicts serious bodily injury. Only general intent, and not specific intent, needs to be proved as an element of second degree battery.
When specific intent is required, the Legislature uses words like "specific intent to kill" in La.Rev.Stat. 14:30, or "with intent to defraud" in La.Rev.Stat. 14:72. Use of the word "intentionally" denotes a general intent crime.
I respectfully dissent.
To convict the defendant of second degree battery, the state was required to prove one of the following: (1) unconsciousness; (2) extreme physical pain; (3) protracted and obvious disfigurement; (4) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; or (5) substantial risk of death. The majority concedes that the state failed to prove (1) and (3) through (5), but takes the position that the state proved that the victim suffered "extreme physical pain." Because these words are used in a crime definition they must be construed strictly against the state. Therefore, the term cannot be equated with "substantial," "serious," or even "severe" physical pain. Instead, it must be taken to mean pain that is situated at or marks the end of the range of pain that a victim may suffer in a nonaggravated battery. Obviously, the victim in the present case did not suffer pain of such magnitude; that is, he did not suffer pain equal to or similar to the highest degree of pain suffered by victims in the range of non-aggravated batteries. The victim did not lose consciousness; he denied that he was in pain; he required only a brief visit to the emergency room; he went back to work immediately; he sought no further medical attention; he lost no time from work; and he was not permanently disabled. Furthermore, the treating physician was of the opinion that the victim was not in extreme physical pain. Consequently, the evidence in this case was constitutionally insufficient to support a conviction of second degree battery.