
    STATE of Louisiana v. Stephen ROSIERE.
    No. KA-2185.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 23, 1985.
    Rehearing Denied Oct. 30, 1985.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appel-lee.
    Arthur A. Lemann, III, Lemann, O’Hara & Miles, Joseph Meyer, Jr., New Orleans, for appellant.
    
      Before REDMANN, C.J., and BARRY and KLEES, JJ.
   BARRY, Judge.

Stephen Rosiere, a police officer, was found guilty of second degree murder, La. R.S. 14:30.1, following a bench trial. After denial of motions for a post-verdict judgment of acquittal or alternatively for modification of the verdict and a new trial, Rosiere was sentenced to the mandatory life imprisonment at hard labor.

Rosiere’s appeal hinges on two arguments. He argues the State failed to prove beyond a reasonable doubt that the homicide was unjustified and alternatively that the verdict should be reduced to manslaughter. He also argues that a new trial should have been granted because the State suppressed exculpatory Brady material.

Shortly after midnight on August 31, 1983 Rosiere was riding in a police car driven by Officer Fred McFarland when they noticed two people on a speeding motorcycle. The siren and blue light were turned on and a chase began which covered 2-3 miles at estimated speeds up to 95 m.p.h. As the motorcycle started up the Palmetto St. overpass the police car was about two car lengths behind and Rosiere fired one shot. The passenger, Gerard Glover, was hit and later died. No gun was found on Glover or at the scene. McFarland and Rosiere later planted a gun on the escape route taken by the motorcycle driver, Rene Brooks, who surrendered the next day.

After an on-scene investigation Rosiere and McFarland reported to the Homicide Division that gunfire came from the motorcycle and Rosiere shot back. According to a written statement by McFarland on September 1st, during the chase he saw a flash from the motorcycle and heard a loud pop which sounded like a gun. At the base of the overpass he heard a second loud pop and observed another flash and Rosiere shot back.

On September 6, 1983 McFarland was called back to Homicide to explain discrepancies in his September 1st statement. McFarland contradicted his prior statements by saying Rosiere accidentally shot his gun, but the balance was correct up to his hearing gunshots. He still maintained that after a second pop and flash, Rosiere “discharged his gun” then said something like “Oh fuck.” Glover fell from the motorcycle and Rosiere said “I shot him.” McFarland explained he originally thought Rosiere shot intentionally, but from Rosi-ere’s facial expression and the tone of his voice he felt Rosiere “did not mean to shoot him.” He said Rosiere gave the impression his gun accidentally discharged.

In the September 6th statement McFarland first mentioned finding a gun, but claimed he was not aware Rosiere had planted the weapon.

At trial McFarland was granted immunity and his prior versions of the facts changed again. He testified no shots were fired at them, no motorcycle backfire occurred, and Rosiere fired without justification. McFarland claimed that as the motorcycle approached the overpass Rosiere said “I’m going to shoot” and fired one shot. Unexplainably, he saw “[b]oth flashes.” He stated Rosiere’s reaction was “I missed”, but after Glover fell off the motorcycle Rosiere said “Oh, fuck, I hit him.” McFarland testified a “108” (officer needs assistance) was radioed in after Rosiere fired, but admitted saying in prior statements the “108” was called before Rosiere fired when they believed they were shot at. McFarland said he pretended to chase the motorcycle driver but allowed him to escape. However, on the dispatcher’s tape he claimed while pursuing the motorcycle he was shot at and finally lost it. McFarland admitted he lied to the dispatcher and lied throughout the investigation.

Brooks, the motorcycle driver, testified he was speeding when first observed by the police and attempted to escape because he and Glover had two outstanding traffic tickets. He claimed that he and Glover did not have a gun, and admitted a prior arrest for possession of a gun. He said he did not hear a gunshot (even the fatal shot) and the motorcycle did not backfire.

Rosiere made a statement on September 2nd to the Office of Municipal Investigations. He heard a pop and saw a flash before the fleeing motorcycle got to the Palmetto overpass; then as the motorcycle went up the overpass he saw a muzzle flash, heard a pop and saw a hand. Although not sure that he heard a shot the first time, Rosiere said he believed he was a target after the second “pop” and “flash.” He asked the dispatcher for assistance then responded with one shot. The dispatcher’s tape indicates the “108” call preceded Rosiere’s shot.

Delores Carter, who lived near the bottom of the overpass, testified she heard two shots. Clifton Cotton, a Palmetto St. resident, was sitting under the overpass and heard sirens and two shots. On rebuttal the State called Juanita Burles, a resident across the canal, who heard one shot.

An expert motorcycle mechanic, Herman Netzhammer, (hired by O.M.I.) test drove Brooks’ motorcycle at 55 mph. He said when he rode over the bump or dip at the base of the overpass his thumb accidentally hit the kill switch and when he turned the ignition back on it caused a backfire or “pop” which could have caused a flash at night. During a second test run he deliberately hit the kill switch and the engine backfired again.

In order to convict on second degree murder the State must prove beyond a reasonable doubt that Rosiere had the specific intent to kill or to inflict great bodily harm when he fired the shot. Specific intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). Specific intent need not be proven as a fact; it may be inferred from the circumstances of the transaction. La.R.S. 15:445; State v. Shapiro, 431 So.2d 372 (La.1982).

Rosiere’s defense is based on justification in that he acted while under the reasonable apprehension that he and McFarland were being fired upon by fleeing suspects. This defense requires the State to prove beyond a reasonable doubt that the homicide was committed without justification. State v. Edwards, 420 So.2d 663 (La.1982). Where circumstantial evidence is utilized to prove the offense, La. R.S. 15:438 mandates that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

The statutory test to determine whether to grant Rosiere’s motion for a post verdict judgment of acquittal or alternatively for a modified verdict under La.C.Cr.P. Art. 821 utilizes the same due process standard which a reviewing court must use under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our Supreme Court has recognized that La.R.S. 15:438 is not a purely separate test from the Jackson standard to be applied instead of a sufficiency of the evidence test whenever circumstantial evidence forms the basis of the conviction. State v. Wright, 445 So.2d 1198 (La.1984); State v. Austin, 399 So.2d 158 (La.1981). Exclusion of every reasonable hypothesis of innocence is a component of the more comprehensive reasonable doubt standard in such cases. State v. Wright, supra.

R.S. 15:438 emphasizes the need for careful observation of the usual standard and provides a methodology for its implementation. State v. Nealy, 450 So.2d 634 (La.1984). In order for the trial court to grant a post verdict motion for acquittal or for an appellate court to reverse a conviction, the test is whether any rational trier of fact viewing the evidence, both direct and that inferred from the circumstances, in the light most favorable to the State could have found the defendant guilty beyond a reasonable doubt of every essential element of the crime. State v. Captville, 448 So.2d 676 (La.1984). See also State v. Morris, 414 So.2d 320 (La.1982).

To carry its heavy burden the prosecution relied on three witnesses. The primary witness, McFarland, admitted lying in all of his pre-trial statements and to the dispatcher. He changed his story from a justified intentional shooting to an accidental shooting to his immunized testimony that Rosiere said “I am going to shoot.” Rosiere’s statement, made at night during a high speed chase, is susceptible of multiple interpretations, such as the shot was a warning to stop. Rosiere’s reaction “I missed,” then after Glover fell off the motorcycle, “Oh, fuck, I hit him,” clearly refutes the state’s proof of the statutory intent to kill or inflict bodily harm. McFarland lacks credibility and is not worthy of belief.

Brooks’ testimony has little, if any, probative value. The number of shots (sounds) is uncertain. The testimony is not beneficial to the state’s ease.

The totality of the State’s case is weak, at best, and woefully insufficient to convict. The evidence does not exclude the hypothesis that Rosiere acted justifiably out of apprehension. Nor does it exclude the reasonable belief that Rosiere did not intend to shoot Glover. We do not believe a rational trier of fact, viewing the direct and circumstantial evidence in the light most favorable to the prosecution, could conclude that the requisite elements of second degree murder, primarily specific intent, have been proven beyond a reasonable doubt.

We need not discuss defendant’s assignment relating to Brady material. However, we note that a statement by William Helfand was wrongfully withheld from the defense in answer to its broad request for exculpatory material. Helfand said he arrived at the scene seconds after Rosiere and McFarland and one of the officers yelled to be careful because the suspect on the ground had a gun, and then the suspect was patted down. Helfand stated Rosiere told him they had been fired at and he shot once.

With reference to Helfand’s statement, the judge noted there was “[n]o time to concoct a story at that junction.” The State also did not produce a statement from off-duty narcotics Officer Michael Glasser who verified he heard the “108” called in prior to the shooting. Glasser confirmed Helfand arrived immediately after the shooting.

The suppressed statements were crucial to Rosiere’s defense. The trial judge noted that Helfand’s testimony “could have made a whale of a difference” to the defense. We agree. The state acted improperly and the new trial motion (now moot) should have been granted.

Defendant’s conviction is reversed.

REVERSED.

REDMANN, Chief Judge,

dissenting.

This is a hard case because the Louisiana second-degree murder statute is a hard law. It allows no other punishment than life imprisonment for a broad range of homicides, including:

Example 1. As revenge for some real or imagined wrong, one carefully plans to and does ambush another and with six shots from a pistol kills that other. Example 2. After chasing two persons on a motorcycle over a distance of two to three miles of city streets, with police siren blaring and lights flashing, through stop signs and lights, at speeds up to 95 miles an hour, a policeman (who may believe, in his excitement, but not reasonably, that he is being fired upon) shoots one shot at the motorcyclists when they are a car length and a half away, killing one of them.

Though society cannot tolerate either homicide, it is a hard law that treats the second the same as the first. A legislator might well vote to treat those two situations differently. Yet homicide is among the gravest of offenses, and defendant here — whose behavior is described in example 2 — does not argue that Louisiana’s constitutional prohibition of excessive punishment invalidates the statute's punishing his behavior with imprisonment for life.

This case was assigned to me for preparation of the court’s opinion, and I now reproduce as my dissent my proposed opinion, altered to show that is only my view rather than the court’s.

The basic question in this appeal is whether the state proved that the homicide committed by defendant police officer was not justifiable, i.e., tracking the language of La.R.S. 14:2o, that defendant did not reasonably believe that he was in imminent danger of receiving great bodily harm to save himself from which the killing was necessary. A second question is whether a new trial should have been granted because of the state’s failure to furnish defendant with a witness’s statement arguably supportive of defendant’s justification argument.

Defendant and another police officer were pursuing two persons on a motorcycle that was speeding up to 90 or 95 mph (according to its driver) over a distance of two or three miles on New Orleans streets shortly after midnight on August 31, 1983. Defendant shot and killed the passenger. Although defendant did not testify, a statement by him was introduced in which he describes a “pop” and flash from the motorcycle that convinced him he was being fired upon, and for that reason he “returned fire with one shot.”

The trial judge, sitting without a jury, found defendant guilty of second degree murder, “the killing of a human being ... [wjhen the offender has a specific intent to kill or to inflict great bodily harm ...,” La.R.S. 14:30.1, and imposed the statutory sentence of life in prison. Defendant appeals.

I

Defendant argues from State v. Edwards, 420 So.2d 663 (La.1982), that it is the burden of the state, once the defendant raises the justification defense, to prove that defendant did not reasonably believe that the persons on the motorcycle were shooting at him and his partner. Citing State v. Holmes, 388 So.2d 722 (La.1980), defendant argues that to infer specific intent the circumstances must exclude every reasonable hypothesis of innocence, and then, comparing specific intent to justification, urges that the state failed to exclude every reasonable hypothesis to prove beyond reasonable doubt (citing Edwards, supra) that defendant acted without justification.

Defendant does not contend that a trained police officer, shooting a .357 pistol at someone a car length and a half away, may not intend to inflict great bodily harm upon his target. (I have considered, nevertheless, the arguably inconsistent testimony by the state’s principal witness, defendant’s partner, that defendant first said “I missed” after shooting, but when the passenger fell, defendant said “Oh, fuck, I hit him!”) Defendant contends only that the state failed to carry its burden of proving, beyond reasonable doubt, the absence of justification.

To meet that burden, the state presented the testimony of defendant’s partner, testifying under a grant of immunity. He described the high-speed chase with flashing lights and siren, from start on Louisiana avenue through Toledano street and Washington avenue to fatal finish on the Palmetto street overpass. He denied any shot or backfire from the motorcycle (though he saw “both flashes” and defendant shot only once) or any other cause for fear of the motorcyclists when defendant announced “I’m going to shoot” and shot as the car was only a car length and a half from the motorcycle. The state also presented the testimony of the motorcycle driver denying both shooting and backfiring from the motorcycle, and the testimony of a neighbor that she had heard only one shot.

In turn, the defense presented testimony by two other neighbors that they had heard two shots. The defense also presented the testimony of a motorcycle expert (hired by the city’s administrative investigative agency in investigating this incident) that, when he tested the motorcycle on which the victim had been riding, it backfired as he drove at about 55 mph on the route that the victim had taken just before he was shot by defendant. As the motorcycle reached a dip at the bottom of the overpass and bounced into the air and back down, the movement caused the expert’s thumb to accidentally hit the “kill” switch, turning off the engine: switching it back on caused the backfire. Every time the expert turned the switch off and on, backfire resulted; the faster the speed, the louder the backfire. At night, he testified, the backfire might be seen as a flash out of the tailpipe. (This expert’s testimony thus established the possibility that the motorcycle might have backfired, making a pop and a flash, and thus that defendant might have heard a pop and seen a flash at the time of the incident.) The defense also presented some evidence, by cross-examination of defendant’s partner, of the “chase syndrome,” suggesting “the excitement and confusion of the occasion,” Comment subd. (1), R.S. 14:20, that is a factor “in determining whether the party attacked had a reasonable belief that it was necessary to kill

The question for an appellate court on review is “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, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). There is no reasonable doubt that the elements of the crime itself — the killing and the specific intent to shoot the victim — were established by the evidence when viewed in the light most favorable to the prosecution. The heart of the case, on this assignment of error, is whether some rational trier of fact could have found the absence of justification.

I cannot say that no rational trier of fact could have concluded that justification was proven absent, and I therefore find no reversible error in this assignment.

II

Defendant’s second argument is that a new trial should have been ordered because of the state’s failure to furnish defendant a copy of the statement of reserve police officer William Scott Helfand in response to defendant’s request for material discoverable under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial judge’s “firm belief” was that the state should have furnished the statement. He observed, on the hearing of the motion for a new trial, that the statement “would have been critical to the defense’s case” in that defendant would have made a “concerted effort” to find that witness. The trial judge nevertheless denied a new trial.

Helfand’s statement included that defendant or his partner “yelled to me that the man on the ground had a gun” almost immediately after the shooting, when they “were just getting out of their car.” Hel-fand (with his girlfriend, Donna Oakleaf— also a possible witness, though her name was not disclosed to defendant) was on the scene of the end of the chase just as the shooting occurred. If one is of the trial judge’s view (“No time to concoct a story at that junction”), one might conclude that Helfand’s statement supports a factual conclusion that, rightly or wrongly, defendant believed that the victim had a gun. Helfand’s statement thus indirectly supports a conclusion that defendant believed he had been fired upon and thus supports defendant’s justification theory. The statement also provides some conflict with defendant’s partner’s trial-time statement that he and defendant had no cause to fear the motorcyclists.

Defendant by pre-trial discovery motion had sought “an accounting of any documents and tangible objects which ... are favorable to the defendant” and “any and all evidence, of whatever nature, that may be deemed exculpatory as to the defendant, no matter how tenuous the exculpation.” The state in response provided the city’s motorcycle expert’s report and the names of possibly exculpatory witnesses, namely that expert, the two witnesses who testified of hearing two shots, and Helfand. Defendant did not at any time request any statement by Helfand. He argues that that was unnecessary, as he reasonably assumed from the state’s giving him the expert’s statement that the state had no statement from the other witnesses.

United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976), rules that when the defendant has made no request or only a non-specific request for exculpatory material, the prosecution’s duty to disclose exists only if “the omitted evidence creates a reasonable doubt that did not otherwise exist .... ”

I cannot say that Helfand’s statement creates such a doubt. Considering the case as a whole, including the cover-up action and statements by defendant and the partner hereafter alluded to, Helfand's statement that defendant or his partner said that the victim had a gun on alighting from their car means nothing except that they made up the gun story right away. It does not create a different reasonable doubt from, nor afford any greater support to doubt than, the other defense evidence already in the record.

Much less can I say that the Helfand statement (or further, similar testimony by Helfand, if he had been found and testified) “would probably have changed the verdict or judgment of guilty ...,” making new trial mandatory under C.Cr.P. 851.

I find no reversible error in this assignment.

Ill

Because of the public interest in this case, and because of their conceivable value to a reviewing court, I do note some additional circumstances that I deem not squarely relevant to guilt or innocence. Most prominent of all is that defendant and his partner “planted” a gun on Bamboo road, a possible escape route for the motorcycle and its driver (whom they did not pursue, defendant’s partner testified, because they knew he could contradict their gun story). They also broadcast on their police radio that they were being fired upon and thereafter gave similar statements to the investigating police and administrative agencies (all of which, the partner testified, was nothing but coverup). It may also be mentioned that the driver of the motorcycle had pled guilty in 1982 to carrying his mother’s .22 caliber handgun at a school. And it may be added that a smashed lead pellet, not a bullet from defendant’s gun, was found atop the overpass. None of these circumstances, however, demonstrates any error in the conviction and sentence.

I would affirm. 
      
      . Rosiere’s third assignment of error relating to the Motion to Suppress was neither briefed nor argued and is deemed abandoned. State v. Joseph, 425 So.2d 1261 (La.1983).
     
      
      . McFarland said he lost the motorcycle going over the overpass, but on the dispatcher’s tape he claims that he lost it on Bamboo Road.
     
      
      . When he was first questioned by the State as to why he ran from the police, he testified that he “turned around and asked Gerard" and they both agreed to try to outrun the police car. When the defense pointed this out to Brooks, he stated that besides asking Glover, he had the traffic violations.'
     
      
      . The trial testimony of the Deputy Director of O.M.I., Raymond Reed, recounted Rosiere's statemént that the first pop and flash occurred when the motorcycle "got to the up ramp,” but the transcribed statement of Rosiere declares that the first occurrence happened earlier when the bike unsuccessfully attempted to cross the canal. Reed stated that Rosiere saw an arm, but Rosiere’s statement says it was a hand.
     
      
      . On September 7, 1983 a bullet was found at the top of the overpass by O.M.I. investigators. The State's expert, Sgt. Allen Tidwell, testified the spent pellet was not consistent with police ammunition and it was impossible to determine what weapon fired it. He said there were indications Rosiere’s gun had been fired once.
     
      
      . Cotton said he thought both shots were fired from the same gun.
     
      
      . La.R.S. 14:30.1 provides:
      Second degree murder is the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm; or (2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm. Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
     
      
      . La.R.S. 14:20 provides (in pertinent part):
      A homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger; or (2) When committed, for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm, by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing.
     
      
      . La.C.Cr.P. Art. 821 provides (in pertinent part):
      (A)The defendant may move for a post verdict judgment of acquittal following the verdict.
      A motion for a post verdict judgment of acquittal must be made and disposed of before sentence.
      (B) A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty.
      (C) If the court finds that the evidence, viewed in a light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense.
     
      
      . The “rational trier of fact” rule obviously does not mean that after conviction, especially from a bench trial, appellate courts cannot review the facts to satisfy sufficiency. Our trial colleague is certainly rational; however, we are mandated to a full review of the facts and law in every case to satisfy a conviction.
     
      
      . The name of William Helfand, a reserve officer and part-time emergency medical technician for the department, was given to the defense but there was no mention of his statement. The name of the woman with Helfand, Donna Oak-leaf, was not provided. Helfand's O.M.I. statement (similar to one made to the Homicide Division) was provided pre-trial for in camera inspection.
     
      
      . The defense was not aware of Glasser’s statement until its inclusion in the in camera exhibits. Thus, the initial argument relating to its importance appears in the defense brief.
     
      
      . The conduct of McFarland and Rosiere after the shooting, i.e., their lies and planting a gun, is reprehensible, inexcusable, and a disgrace to law enforcement.
     
      
      . "A homicide is justifiable:
      (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger ...
     