Appendix — WAYNE R. FELDE v. LOUISIANA (No. 82-6412)

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82 6412

RECEIVED

Mag. 1, 7&3

MAR-+-9--1963

Gi... oe VeeRK

No. A-682

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

WAYNE ROBERT FELDE,

SUPREMT “"''>T US

PETITIONER,

V.

LOUISIANA,

RESPONDENT.

ON WRIT OF CERTIORARI TO

THE LOUISIANA SUPREME COURT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

NATHANIEL GRAVES THOMAS

1217 OAKLAND STREET

SHREVEPORT, LOUISIANA 71I01

318-221-2241

[MARCH 17, 1983)

TABLE OF CONTENTS FOR APPENDIX

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370 la

STATE of Louisiana

¥.

Wayne Robert FELDE.

No. 81-KA-0998.

Supreme Court of Louisiana.

Oct. 18, 1982.

Rehearing Denied Dec. 17, 1982.

Defendant was convicted in the Ninth

of death penalty; and (7) death penalty was

properly imposed.

Affirmed.

Dennis, J., filed a concurring opinion.

3. Criminal Law @=633%(1)

There was no inherent prejudice in tri-

al procedure under which trial was held on

11 consecutive days, beginning at 9:00 a.m.

on most days and continuing to 7:30 p.m. or

even later on most days. LSA-C.Cr.P. art.

17. . ;

4. Criminal Law @=633(1)

Evidence did not establish that guilty

verdict or sentence of death was influenced

by trial schedule which had court in seasion

on 11 consecutive days, beginning at 9:00

a.m. on most days and continuing past 7:00

p.m. on most days.

5. Witnesses @=269(4)

Where defense witness testified on di-

rect examination about her knowledge of

homicide, State was entitled to cross-exam-

ine her as to the details of the event, includ-

ing statements made by defendant there-

after.

6. Witnesses @>208(1)

Doctor-patient privilege is not applied

to a physician who is court appointed.

STATE v. FELDE

la 371

Cite on, La, 422 $0.36 376

10. Witnesses @=390

Miranda does not preclude cross-exam-

ination on basis of voluntary, uncoerced,

prior statements which are inconsistent.

11. Criminal Law @=1170'(1)

Where member of sanity commission

was not allowed to testify on direct exami-

nation about the substance of what defend-

ant told him and where there was never

any affirmative evidence that statements

which defendant was asked about were ac-

tually made by him to the member of the

commission, any error in cross-examining

defendant about the statements was rela-

tively harmless. LSA-C.Cr.P. art. 921.

12. Criminal Law @ 1171.3

In view of the ample independent evi-

dence that defendant was sane at the time

of the offense, prosecutor's improper rebut-

ta) argument concerning statements made

by defendant to sanity commission member

which were based on matters not of record

was harmless.

13. Criminal Law @=627.6(1), 627.7(3)

Statements and addresses of potential

witnesses were subject to discovery by the

defense only if they were favorable to the

defendant and material and relevant to the

iasue of guilt or puttishment. LSA-C.Cr.P.

arts. 718, 723.

court did not err in refusing to give defend-

ant the prosecution's files on certain wit-

Nesses

15. Criminal Law @=627.6(3)

Where State offered to let the court

conduct an inspection of all the photograph-

ic negatives in its records, so that defendant

could have determined if there were any

photographs which were helpful to the de-

fendant, court did not err in denying mo-

tion production of photo-

graphs favorable to the defendant.

16. Criminal Law @=438(1)

which would allegedly

have shown that the police intended to

shoot the defendant in cold blood after he

committed the offense were irrelevant to

the issue of the circumstances under which

the defendant shot the victim.

17. Criminal Law @=1170%(1)

Leading questions are not the type of

prosecutorial error which diminishes the re-

liability of the jury's verdict and only where

there is a clear abuse of discretion which

prejudices defendant's rights will a convic-

tion be reversed because of leading ques-

tions.

18. Criminal Law @=1170(5)

Where similar informauon was brought

out by the defense during defendant's di-

rect testimony, cross-examination of de-

fendant's sister as to whether her father

waz on probation from a federal offense

when he died and as to the nature of her

father's drinking problem and propensity to

violence was not error.

19. Criminal Law 4 438(1)

Where employee testified that defend-

ant's sister cashed a $50 check when de-

fendant bought a gun, the driver's license

of defendant's sister and her photograph on

it were relevant to the circumstances in

which defendant purchased the murder

weapon and they were properly admitted

into evidence despite argument that the

State's only purpose was to utilize the per-

sonal unattractiveness of the defendant's

sister against the defendant.

20. Criminal Law @=419%(12)

Letter in which defendant's brother de-

scribed defendant's changes in personality

after his return from combat in Vietnam

was properly excluded as hearsay. LSA-

RS. 15:44.

21. Criminal Law @=41%(1)

Homicide @=179

In defendant's trial for homicide in

which he asserted a defense “of insanity

Vietnam veterans who had suffered from

exposure to Agent Orange was properly

excluded as hearsay and as irrelevant to the

question of whether defendant was insane

at the time of the crime.

372 le

22. Homicide @= 179

In defendant's trial for murder in

which he asserted a ‘defense of insanity

based on posttraumatic streas disorder as a

result of his combat experiences in Viet-

nam, trial court properly excluded, as irrele-

vant, testimony of defendant's sister about

the effects of World War II on defendant's

father. LSA-RS. 15:275.

23. Criminal Law @=478(1)

Person who had researched complaints

from Vietnam veterans did not qualify as

an expert on the effect of Agent Orange.

24. Criminal Law @=354

Proffered testimony of person, who had

researched complaints from Vietnam veter-

ans, about his own ability to cope with

Vietnam combat was irrelevant to defense

of insanity based on claim of posttraumatic

stress disorder as a result of combat experi-

ences in Vietnam.

25. Homicide 179

In defendant's trial for murder in

which he asserted defense of insanity based

on posttraumatic stress disorder as a result

of his combat experiences in Vietnam, prof-

fered testimony of operating room nurse in

Vietnam regarding the type of combat

wounds received by Vietnam veterans and

her personal feelings about the war was

irrelevant.

26. Criminal Law @=1134(3)

Where ordered medical examination of

defendant never took place, trial court's

error in ordering a midtrial mental exami-

nation was moot where there was no evi-

dence that the threat of the examination

affected defendant or his counsel or that

the jury had knowledge of the proposed

examination.

27. Criminal Law @=655(5), 656(1)

Comments made by trial court during

the course of the trial, including imploring

counsel to get back to the subject of the

cane, acknowledging that one witness was

correct in her testimony that she was “lost,”

in admonishing one witness not to sit in the

chair for an hour and a half over the lunch

break, and in commenting that a witness

was creating a problem with his commen-

tary and editorializing on every question

did not convey to the jury any impression

as to the accused's guilt or innocence.

LSA-C.Cr.P. art. 772.

28. Criminal Law @713

In defendant's trial for murder in

which he asserted defense of insanity based

on posttraumatic stress disorder as a result

of his combat experience in Vietnam, prose-

cutor’s closing arguments that photographs

of the scene of the offense looked like a

Louisiana highway on which the defendant

was being escorted to jail rather than look-

ing like a foxhole or a cave or anything in

Vietnam was proper. _

29. Criminal Law @1171.1(3)

Because of evidence that defendant

was an escapee at the time of the offense

and intended to avoid further jail time,

where was a factual basis for prosecutor's

closing argument that the defendant, if

found not guilty by reasons of insanity,

would easily escape and, although that pre-

diction of the consequences of the jury's

verdict was improper, the error was not

likely to have contributed to the verdict.

LSA-C.Cr.P. art. 774.

30. Criminal Law @=1171.1(5)

Prosecutor's brief reference in closing

argument to the fact that the automobile

seat in which police officer was sitting at

the time that he was shot had not been

brought into evidence but was in the court-

house and had been available if the defense

wanted to present it was harmless.

31. Criminal Law @71%1)

Prosecutor erred in quoting from re-

port of psychiatrist in his final argument to

the jury where the report was not in evi-

dence. LSA-C.Cr.P. art. 774.

32. Criminal Law @1171.1(3)

Prosecutor's error in quoting in closing

argument from report of psychiatrist which

had not been admitted into evidence was

not so prejudicial as to ire a new trial

where the jury was that the prose-

cutor’s arguments did not constitute evi-

dence.

STATE v. FELDE la. 373

Cite as, La, 423 $0.36 370

33. Criminal Law @=649%(1) 41. Criminal Law ©5701)

Trial court did not err in ordering re- Testimony by members of the sanity

cess between defense closing argument and

prosecutor's rebuttal, even though court

had failed to declare a recess following the

closing argument of the prosecution and

before the closing argument of the defend-

ant.

34. Criminal Law @726

Where defense counsel alluded to mate-

rial in psychiatrist's report in closing argu-

ment, rebuttal which referred to informa-

tion in psychiatrist's report did not exceed

the scope of defendant's closing argument.

35. Criminal Law 726

Where defendant had referred to the

manslaughter statute in his closing argu-

ment, rebuttal argument on the law of

manslaughter was proper, even though de-

fendant was only seeking @ verdict of not

guilty by reason of insanity or guilty with

the death penalty.

37. Criminal Law = 331

Defendant's burden of proof on the af-

firmative defense of insanity is constitu-

tional.

38. Criminal Law > 868

Evidewce did not show that jury was

not properly insulated from outside influ-

ences because the jury room was the most

convenient and, at times, the only place

where hot coffee could be found.

39. Jury e990

Disclosure during trial that a juror is

acquainted with a witness does not neces-

sarily prevent a fair trial.

@. Jary e90

Defendant was not deprived of a fair

trial by fact that one juror apparently knew

on_ of the State's witnesses who testified in

rebuttal as a member of the sanity commis

sion

his gun while handcuffed *

was sufficient to show a specific intent to

kill or inflict great bodily harm on the

officer.

43. Criminal Law @©641.13(4)

To establish ineffective representation,

it must be shown that counsel did not meet

the level of competency normally demanded

in criminal cases; adequate defense must

be based on informed professional delibera-

tion.

4. Criminal Law @641.13(2)

Defendant was not deprived of effee-

tive assistance of counsel merely because

counsel agreed to follow defendant's in-

struction to not attempt to obtain any ver-

dict other than not guilty by reason of

insanity or guilty of first-degree murder

with capital punishment. LSA-Const. Art.

1, § 13; U.S.CA. Const.Amend. 5.

45. Criminal Law @641.1%(1)

Fact that « particular strategy is un-

successful does not establish ineffective as-

sistance of counsel.

46. Attorney and Client 88

Defendant, who was mentally compe-

tent to stand trial and enrolled as cocounsel,

had a constitutional right to impose condi-

tion of employment on his counsel.

47. Attorney and Client o=88

Defendant can limit his defense con-

sistent with his wishes at the penalty phase

of trial.

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STATE v. FELDE

la. 375

Cite an, La, 423 So.26 378

vieted of first-degree murder of a police

officer in the line of duty could not be held

disproportionate to the sentences in other

cases. LSA-C.Cr.P. art. 905.9.1.

William J. Guste, Jr., Atty. Gen., Barbara

Rutledge, Asst. Atty. Gen, Paul J. Car-

mouche, Dist. Atty., R. Cody Mayo, Edward

E. Roberts, Jr., Dale G. Cox, Asst. Dist

Attys., for plaintiff-appellee.

Nathaniel Graves Thomas, Shreveport,

for defendant-appellant.

WATSON, Justice.

Defendant, Wayne Robert Felde was con-

vieted of first degree murder. LSA-RS.

14:30! The jury unanimously recom-

mended a death sentence on the ground of

one aggravating circumstance: the victim

was a peace officer engaged in his lawful

duties LSA-C.Cr.P. art. 906.4(d)" De-

fendant has appealed and assigns fifty er-

rors by the trial court.

FACTS

Felde, convicted of manslaughter and as-

sault in Maryland, was serving a twelve

year sentence when he escaped from a mini-

mum security job and hitchhiked to his

mother's home in Grand Cane, Louisiana

Felde then visited other states but returned

to Louisiana because of his mother's termi-

McKenzie. At his mother's dying request,

Eelde abandoned an alias, Harold “Harry”

Hershey, and worked under his real name in

Louisiana. His mother died on

McKenzie to Lorant's Sporting Goods in

Shreveport where Felde purchased a .357

Magnum gun and a box of shells. With the

loaded gun in his waistband, Felde was

dropped off at the Pizza Inn on Highway

171. Larry Hall and Cheryl McKenzie were

supposed to get his things and pick him up

at the parking lot behind the pizza place.

Felde stayed awhile at the Pizza Inn and

then went next door to the Dragon Lounge.

He waited in vain about six hours and

drank enough beer to get “pretty loaded”.

(Tr. 2118) He finally asked that a taxi be

- called. Because a customer reported there

was someone at the Lounge with a gun; two

officers arrived in separate vehicles. While

they were frisking another customer, Felde

was following the taxi driver outside. Af-

ter being told Feide was the man with the

gun, officers Norwood afd Thompkins

searched him but did not discover the pistol.

The taxi driver refused to carry Felde

because of his intoxication, and officer

Thompkins arrested him as a simple drunk.

Felde’s hands were handcuffed behind his

back and he was placed in the rear seat of

Thompkins’ police car. While Felde was

being driven in the police car, William

David Sweet, in another car, observed Felde

up close behind the fiont seat. Felde was

leaning forward on the right hand side of

the driver. The officer put on his brakes

and simultaneously made a motion to push

Felde back in the seat. Felde said he was

trying to shoot himself when he was pulled

forward and pushed back. A shot was

fired. There was testimony that the car

filled with smoke. Felde did not remember

anything after the first explosion. There

were three other shots, leaving Felde with

at least one bullet in his gun. The vehicle

swerved against a guard rail and stopped

Thompkins staggered out of the car across

the road before collapsing dead in a ditch

tence in accordance with the recommenda.

tion of the jury”

2% LSA-CCrP. art 905.4(b) provides:

“The following shall be considered aggravat.

ing circumstances

. . 7 . am .

“(>) The victim was a fireman or peace offi.

cer engaged in his lawful duties, . ~

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STATE v. FELDE

Cite an, La, 423 $0.36 370

golucky kid. Afterward, he was moody,

depressed, and irritable, with erratic sleeping

habits and a low tolerance for alcohol. One

of Wayne Felde’s sisters, Maria Kristine

Krebsbech, testified that she had sent one

tempted to get psychiatric help for Felde

but were unable to do so...

The transcript of testimony of Dr. Guil-

lermo Olivos was read into the record. A

board certified psychiatrist, Dr. Olivos saw

Wayne Felde on December 8, 1973, after

the Maryland homicide. Concerning the

killing of his friend, Felde had a poor mem-

ory and questioned whether he did it, how

he did it, and whether he did it in self-de-

fense. He was ambivalent and depressed

about the situation.

Wilson concluded unequivocally that Wayne

Felde had a chronic form of post-traumatic

stress disorder. This is a recognized beha-

vioral disorder or mental defect which is

ized by the American Psychiatric As-

ion. The symptoms are also shared by

survivors of atomic attacks, holocausts or

natural disasters. Post-traumatic stress re-

sponse symptoms include: depression;

flashbacks to the trauma; inability to con-

trol one’s impulses; violent, cxplosive be-

havior; frequent suicidal thoughts and re-

curring nightmares. is often memo-

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The suicide rate of Vietnam veterans is

thirty-three to forty percent higher than

that of others the same age. The aleobol-

ism rate among Vietnam veterans is sixty

percent higher than it was for veterans of

World War II or Korea. The Veterans’

Administration now recognizes post-trau-

matic stress disorder as a service connected

disability for which treatment can be re-

ceived. Stress in a person's emotional life,

such as the death of a mother, can trigger

disassociative reactions. Dr. Wilson said

that Fe'+e's Maryland killing sounded like a

classic disamociative reaction in which a

person uses survival contact tactics because

he is not fully aware of what is happening.

Many Vietnam veterans suffering from

post-traumatic stress disorder are being

misdiagnosed as being alcoholics or having

other disordera. Felde's prison record in

Maryland was exemplary, which is charac-

teristic of Vietnam veterans. The confined,

controlled environment helps the post-trau-

matic stress disorder. Although they suffer

tremendously, such inmates tend to behave

well while incarcerated. Dr. Wilson testi-

fied that, since his father died when Wayne

Felde was twelve, he was particularly close

to his mother, the most significant support

person in his life. losing his mother

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Lounge, “they asked me

I had the, where the gun was,

handcuffed me and put me in the

1 was in the back of the car and

I thought I'd blow my brains out. I tried to

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more explosions and | couldn't

move. I was happy because | knew | was

going to die.” (Tr. 1804-1805) According

to Dr. Wilson, this fragmented memory is

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and flashback typical of post-traumatic

stress disorder. In Dr. Wilson's opinion,

“At that time, m that disassociated state, he

and a nationally recognized expert on the

adjustment problems of Vietnam veterans,

testified as an expert psychologist that

Felde is definitely suffering from a mental

defect, a post-traumatic stress disorder.

Felde was in the upper twenty percent of

veterans in his exposure to combat stress.

In this doctor's opinion, Felde bought the

gun to kill himself and was trying to com-

mit suicide in the police car.

Dr. Joe Ben Hayes, an expert in psychia-

try, testified that, in his opinion, Felde is

suicidal and has a post-traumatic stress dis-

order. In this doctor's opinion Felde

bought the gun to kill himself if he were

cornered.

Dr. Norman Mauroner, a member of the

Sanity Commission, and a specialist in pay-

chiatry testified in rebuttal. In Mauroner's

opinion, on October 20, 1978, at approxi-

mately 9:30 P.M., Felde was able to distin-

guish right from wrong. Dr. Joe Ben

Hayes then testified again in surrebuttal

that Felde did not give him any real infor-

mation about his disorder unti, his fourth

evaluation

ASSIGNMENT OF ERROR

NUMBER ONE

“The prosecution engaged in improper

pretrial maneuvering and overreaching

for the purpose of interfering with trial

preparation of defense counsel and there-

by caused the defendant to be deprived of

his rights to compulsory process and ef-

fective assistance of counsel.”

It is contended that the state fixed trial

than four weeks prior to Felde’s trial to

preven’ Felde's counsel from proper prepa-

ration. Further, it is argued that the Mills’

(trial was continued until September 8, 1980,

less than a month after Felde’s trial began,

to hamper defense counsel's concentration.

STATE v. FELDE la. 379

Che an, Ln, 423 $0.36 370

(1) Defense counsel did not object to the examination of prospective jurors, his

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ed a vigorous defense. The record does not

indicate any lack of preparation or establish

that the defense was prejudiced. When

there is inadequate time, the proper remedy

is a continuance, which was not requested.

LSA-C.CrP. art. 712’

This assignment of error lacks merit

rulings oF

com that © party, of the time the ruling or

order of the court is made or sought. makes

known to the court the ection which he de

tires the court to take or of his objections to

the ection of the court, and the grounds

“The requirement of an objection shall not

* apply to the cowt’s ruling om any written

motion ~

References to Art 84) and failure to object will

be found in subsequent essignments not to

indicate that the error cannot be considered but

merety to mote thet the error was not « matter

defendant, as well as jury, to undue

fatigue. Also, the schedule created defense

problems in examination of out of town

experts. It is contended that the trial

schedule was as follows:

Augat ll (Monday) —Sam w 1016 pm.

August 12 (Tuesday) —Sam w OB pm

August 18 (Wednesday) —P am wi pm

—Sam wt Dong

Auget 16 (Friday) . —Sam tod ii pm

Augast 16 (Geturdey) ~—Sam wi pm

Augat 11 (Benday) = —Wam wT pm

Augutt 18 (Monday) —Sam w7pm

Avgat 19 (Tuesday) —O20am wt pm

August 1) (Thuraiay) — i201 am te libam

[First Supplemental Brief, P. 43)

It is conceded that these hours included one

and one half hour lunch and dinner recesses.

[3] There was no specific objection to

the trial schedule. LSA-C.Cr.P. art. 641.

seven day basis. There is no inherent pre)-

udice in such a trial procedure. Certle v.

United States, 370 F.2d 719 (10 Cir.1966).

7. LSA-C.CrP. art. 712 provides:

for continuance, if timely filed,

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THREE, SIXTEEN, SEVENTEEN, = improperly utilized an ineulpatory state-

EIGHTEEN, NINETEEN, TWENTY, ment allegedly obtained from the dofend-

AND TWENTY -SEVEN character of which statement

“The misinformation and was ever established by any evidence

tations set forth in the Re- whatsoever, either before or after its mis-

sponse to Defendant's Motion for Dis- use by the prosecutor, who was well-

covery and in the aware that the defendant's Maryland

tary Response to Defendant's Motion for conviction had been reversed because of

Discovery.” (No. 3) the use at trial same statement,

lize extraneous offense evidence at trial.” been shown to be free and voluntaty.”

(No. 16) (No. 21)

“The improper and prejudicial prosecu- “The denial by the trial court of the

tion utilization of extraneous offense evi- Defense Motion to Expunge Portion of

dence at trial.” (No. 17) Sanity Commission Report.” (No. 22)

“The prosecution failure to furnish the “The sanity commission appointed by

defense with any notice of intent to uti- the Court on motion of the prosecutor, in

lize at trial alleged inculpatory state- addition to the authorized disclosure of

ments purportedly made by the accused.” = objective psychiatric findings, improperly

(No. 18) disclosed to the prosecutor inculpatory

“The improper and prejudicial prosecu- statements allegedly made by the defend-

tion utilization at ‘rial of alleged inculpa- = ant, which information was improperly

®& “STATEMENT ON BEHALF OF JURY “This trial will forever remain indelibly im-

“BY MR. OLIVER: We, the Jury, recognize printed upon our minds, hearts, and con-

the contribution of ow Viet Nam veterans ectences.

and those who lost their lives in Viet Nem’ “Through long and careful deliberation,

“We feel that the trial of Wayne Feide has through exposure to all evidence, we felt that

brought to the forefront those extreme stress Mr. Feide was aware of right and wrong

disorders prevalent among thousands of our when Mr. Thompkins’ life was taken. How-

veterans ever, we pledge ourselves to contribute what-

“We have attempted, through great emotion- ever we can to Best meet the needs of our

al and mental strain, to serve and preserve veterans.” (Tr. 2408) ee

the judicial branch of our government by ’

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STATE v. FELDE la 381

Che on, La, 423 $0.34 370

utilized at trial through the use of asser- expert witness during his court-ordered

tive questions propounded to witnesses by psychiatric examination of defendant,

the in the presence of the which information had been disclosed to, -

jury.” (No. 23) and discussed with, the prosecutor by the

made by the defendant to the sanity com- asked by the state to read from.a document

adie tanaiuaad to tn eoneh on eae the following: “We were wrestling over my

of the prosecutor, which statements were rifle and | told him to leave my home and

neither freely or voluntarily made as they he got shot. He would not leave so he got

were legally compelled and also becayse, shot.” (Tr. 1554) An objection to this line

ment and stress that any such statements Sdmonishment was given. The state was

were the direct result of, and totally at- told to lay a foundation for introduction of

tributable to, the exertion of improper the Maryland confession, 8-83, before using

influence, fear, intimidation, menace, it for cross-examination. It was never in-

troduced into evidence.”

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manner for the sole purpose of prejudice oo) 11 ao vecliamm

ing the defendant through disclosure to

the jury of legally inadmissible and erro- {6,7} Defendant contends that the in-

neous information allegedly obtained formation given to Dr. Marceau during his

from the defendant, by the prosecution sanity examination was privileged and

10, Felde’s initial conviction in Maryland wes “Yes, very. Very upect. He told mother to

reversed because this confession was not wipe his tears and he says, I think there's «

shown to be free and voluntary under @ correct man in there that was shot in the heed. |

standard of proof. Feide v. Maryland, 336 A.24 think And then, they, they took

382 le

should not have been used in his cross-ex-

amination. However, the doctor-patient

privilege does not apply to a physician who

fendant pleaded insanity. State v. Berry,

508 (La., 1978).

[8,9] Defendant also argues that the

Fifth Amendment to the United States

Constitution " prevented cross-examination

on statements purportedly made by Felde

to Dr. Marceau. When a defendant fails to

plead not guilty by reason of insanity, the

information furnished to the sanity commis-

sion cannot be-used in his cross-examina-

tion. State v. Jones, 359 So.2d 9% (La,

1978). Involuntary, uncounselled disclo-

sures *. a pretrial sanity examination can-

not be used at trial, without violation of the

pelled self-incrimination. Estelle v. Smith,

451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.24 350

(1981). In Estelle v. Smith, supra, a psychi-

atrist who examined defendant under court

order to determine his competency to stand

trial testified at the penalty phase on the

basis of that examination that Smith was a

severe sociopath and Smith was sentenced

to death. The court in Estelle distinguished

that situation from one in which there was

& sanity examination occasioned by a de-

fendant's plea of not guilty by reason of

insanity at the time of his offense

422 SOUTHERN REPORTER, 24 SERIES

States v. Madrid, 673 F.2d 1114 (1982).

Felde’s counse! had no objection to the sani-

ty commission's appointment. [Caddo Pro-

ceedings, Tr. 8) Thus, hie attorney partici-

pated in the “significant decision” to submit

to the examination. Estelle v. Smith, su-

pra, 451 U.S. at 471, 101 S.Ct. at 1877, 68

L.Ed.2d at 374. Wayne Felde said that, to

him, the members of the sanity commission

amounted to policemen; he did- not trust

them when he went in to talk to them. He

was guarded and polite, but said he was not

cooperative. Therefore, any statements

made to Dr. Marceau were free and volun-

tary.

[10] The statements were not intro

duced into evidence; they were used by the

prosecution only in questioning Felde. Mi-

randa™ does not preclude cross-examina-

tion on the basis of voluntary, uncoerced,

prior statements which are inconsistent.

Harris v. New York, 401 U.S. 222, 91 S.Ct

643, 28 L.Ed.2d 1 (1971).

The question of whether Felde was in a

disassociated state and unable to remember

what happened at the time of the crime was

a key issue at trial.

[11] Felde was asked, “Do you recall

telling Dr. Marceau that you vaguely

membered pointing the gun at the

officer and telling him to stop and let

out, and when your instructions were

followed, the officer started wrestling

you for the gun, the car hit a guard rail

the gun went off?" (Tr. 2150) Felde

he did not recal! the statement and

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. FELDE Le. 383

Cite an, La, 422 $0.26 370

was with statements made to a

psychiatrist in a court ordered mental ex-

amination.

The claimed in rebuttal argu-

“And either the doctor made it up or

someone made it up and it does not fit in

“He's got a lot of opportunity to lie in

this case, a lot. He had a lot of opportu-

nity to lie in Maryland, and | submit that

much he remembered and how much was

told to him.

“And why would he say the car hit

guardrail and went off at that time

bearing on his credibility were not of rec-

ord. State v. Sayles, 395 So.2d 695, (La.,

1981). Although the prosecution's rebuttal

argument was improper, defense counsel

did not object. In view of the ample inde-

pendent evidence that Felde was sane at

the time of the offense, it is unlikely this

argument carried great weight with the

jury. See State v. Moore, 414 So.2d 340

(La, 1982); State v. Hayes, 364 So.2d 923

(La., 1978). Compare State v. Carthan, 377

So.2d 308 (La, 1979). It was only after

learning that he was wanted by the police

that Felde bought the pistol and shells” It

was Thompkins, not Felde, who was shot

and Felde reloaded his gun before he was

apprehended. Even one of the expert wit-

nesses supporting defendant's insanity de-

fense admitted that it was possible he shot

officer Thompkins to avoid going back to

jail.

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBER

FOUR AND FIVE

“The denial by the trial court of the

Defense Motion for Court Order Com-

manding State Production and Disclosure

of Statements and Addresses of Witness-

es Favorable to the Defense; (No. 4) and

time of the offense charged which excul-

patory evidence was material to the ques-

tion of guilt.” (No. 5)

{13} As to Assignment No. 4, the state

.

384 le

issue of guilt or punishment. LSA-C.Cr.P.

arta. 718, 723."

As to Assignment No. 5, these witnesses

could allegedly have testified on the ques-

tion of defendant's intoxication, but there

was abundant other evidence that defend-

ant was intoxicated at the time of the

crime. The prosecution denied having any

information that defendant was intoxicated

to the point of not knowing what he was

doing, but was willing to stipulate that

defendant was intoxicated.

[14] Although defense counsel argued

garding intoxication, he did not ask for an

in camera examination by the trial court to

settle the argument. Absent some showing

fusing to give defendant's counsel the pros-

ecution's files on these witnesses.

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBER

SIX, SEVEN, AND EIGHT

“The denial by the trial court of the

Defense Motion for Court Order

18. LSA-C.CrP. art. 718 provides:

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manding Prosecution Production of Pho-

tographs Favorable to the Defense.”

(No. 6)

“The granting by the trial court of the

prosecution Motion to Quash Subpoena

Duces Tecum.” (No. 7)

“The ial nondisclosure and

suppression of photographic evidence

which was favorable to the accused and

material to the issues of credibility and

culpability.” (No. 8)

Defense counsel admits that any error as

to Assignment No. Seven was harmiess.

(15] Defendant contends in assignments

six and eight that the state had photo

graphs of Felde which were not given to

the defense, specifically shots showing

Feide on the ground after being shot. It

counsel argued that he had seen one in the

prosecutor's office which he did not re-

ceive.” The state offered to let the court

conduct an inspection of all the photograph-

i¢ negatives in its records. (Tr. 246)

the defense could have had an in camera

examination of the negatives (o determine

witnesses of prospective witnesses, other

than the defendant, to the district attorney,

or to agents ~; the state.”

16. “Many mc nths, perhaps over @ year, prior

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(Cite an, La, 422 Se.36 370

if there were any photographs which had ASSIGNMENT OF ERROR

been withheld but did not avail itself of the NUMBER TEN

y: “The improper cross-examination of

{16} It is argued in connection with — the defendant by the prosecutor in the

shot Feide te eohd tos. This ee

to This argu- that the deceased father of the defendant

ment is irrelevant to the real issue, the had been convicted of a federal criminal

se offense.” .

. [18] It is contended that asking defend-

éaueeh ‘aula Gan te outa on. ant’s sister, Maria Krebsbach, if herefather

tempted to execute Felde. Mr. Elzie A was on probation from a federal offense

Sandifer, who lives adjacent to the scene of When he died, together with other questions

ASSIGNMENT OF ERROR

NUMBER NINE

counsel failed to object, he cannot raise the

issue on appeal. LSA-C.Cr.P. art. 841.

Leading questions are not the type of prose-

cutorial error which diminish the reliability

defendant's rights will a conviction be re-

versed because of leading questions. State

v. Swift, 363 So.2d 499 (La, 1978); State v.

Vanderhoff, 415 So.2d 190 (La, 1982).

This assignment lacks merit.

about her father’s drinking problem and

violence, implied that Felde was, like his

father, a bad man.

Defense counsel did not object to this line

of questioning. Similar information was

brought out by the defense during Felde's

direct testimony.

This assignment lacks merit.

ASSIGNMENT OF ERROR

NUMBER ELEVEN

“The improper admission into evidence

by the trial court of State Exhibits 56 A

and 56 b.”

It is contended that the trial court should

not have allowed a copy of the permanent

driver's license of Felde’s sister, Florence

t the state's only purpose was to

McDonald's personal unat-

tractiveness against her defendant brother.

{19} Mr. Mustin of Lorant’s testified

dol-

386 le

ASSIGNMENT OF ERROR

NUMBER TWELVE

“The improper exclusion from evidence

by the trial court of Defense Exhibit

133.”

[20] It is argued that a 1975 letter writ-

ten by Felde's brother-in-law, David Krebs-

bach, documented the changes produced in

Felde from his combat in Vietnam. Thus,

it corroborated the insanity defense, showed

that Pelde's mental condition was not a

recent concoction by the defense, and

should have been admitted.

The letter states: “He served in combat

over in Vietnam. Upon his return from

Vietnam, he was stationed nearby and re-

sided with us. He was a changed person

upon returning from Vietnam. He was

very quiet and not as fun loving. Had

nightmares, talking in his sleep, was nerv-

ous and twitchy, and started drinking. He

was discharged honorably from the army.”

The letter was properly excluded as hear-

say offered to show the truth of its sub-

stance. LSA-R.S. 15:434. The information

in the letter was brought out during Krebs-

bach’s testimony. This was the better evi-

dence. Since Krebsbach testified about the

letter, his 1975 opinion was given to the

jury. There was no error.

This assignment lacks merit.

ASSIGNMENT OF ERROR

NUMBER THIRTEEN

“The improper exclusion from evidence

by the trial court of Defense Exhibit

173.” ‘

{21} The trial court refused to admit in

422 SOUTHERN REPORTER, 2d SERIES

The questionaire revealed unauthenticat-

ed complaints by other veterans. There

was ample testimony that defendant's com-

bat experience and exposure to Agent Or-

ange could have created a post-traumatic

stress syndrome. The questionaire results

were hearsay and essentially irrelevant to

the question of whether defendant was in-

sane at the time of the crime. The exhibit

was properly excluded.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR

NUMBER FOURTEEN

“The trial court improperly restricted

the scope of defense inquiry into the issue

of insanity and improperly limited the

evidence to be utilized by the defense in

establishing the insanivy of the accused at

the time of the offense by the required

preponderance of evidence.”

{22] Defendant contends that the trial

court improperly prevented him from ques-

tioning Maria Krebsbach about the effects

of World War II on her father. The desired

testimony was irrelevant LSA-RS.

15:275."

[23,24] Defendant also alleges that de-

fense witness Michael Uhl should have been

qualified as an expert concerning the effect

of Agent Orange on Vietnam veterans.

Mr. .Uhi had researched complaints from

Vietnam veterans, but this did not qualify

him as an expert on the effect of Agent

Orange. Uh! was not allowed to testify

about his own ability to cope with Vietnam

combat. because the subject was irrelevant.

[25] Defense counsel argues that the

about the war. Both were irrelevant

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Shreveport, Louisiana? That's a ride

back to the penitentiary.

“Does this look like anything you see in

Vietnam. Or does that look like a ride

back to the penitentiary.

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“You show me something that looks like

Vietnam in this picture. You decide

whether this looks like Vietnam or this

looks like a ride back to the penitentiary

and you decide if that man did not intend

to kill.” (Tr. pp. 2344-2346)

The use of the evidence and the prosecu-

tor’s remarks were within the scope of

proper closing argument. Moreover, there

was no objection and defense counsel did

not ask for an admonition or mistrial.

LSA-C.Cr.P. arts. 770, 775.

This assignment of error lacks merit.

+ ASSIGNMENT OF ERROR

NUMBER THIRTY

gument aroused the passions, prejudice and

fears of the jurors and convinced them that

an insanity verdict would result in Felde

escaping or being released to the detriment

of the general public. The following argu-

ment was made:

“If you find him not guilty by reason of

insanity, he is not going up to Michigan,

or wherever his experts came from, and

sit around with a bunch of Viet Nam

veterans and about things.

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LSA-C.CrP. art. 774. Although such

and the court's instructions, that the error

contributed to the verdict. State v. Hayes,

supra, 364 So.2d at 926.

This assignment lacks merit.

ASSIGNMENT OF ERROK

NUMBER THIRTY-ONE

“The pr cution argument to the trial

jury contained comments by the prosecu-

tor to matters not in evidence, thereby

adding to the actual evidence in the rec-

ord through the influence of the prosecu-

tor's official position and causing the jury

to arrive at @ determination of guilt by

giving greater weight to the assertions of

the prosecutor than to the actual legal

evidence introduced at trial.”

In rebuttal, the prosecutor referred to

- things not in evidence when he referred to

the automobile seat with the bullet holes

from the police car He implied that the

seat was available, but the defense did not

want the jury to see it.

“The bullet holes in the seat, and | be-

lieve that we stated in the presence of the

Jury the seat was present in the court-

house if anyone wanted it....” (Tr.

2333)

(30) It is argued that there was no evi-

dence the seat was available. However,

report which was not in evidence. In re-

buttal the prosecution referred to state-

ments made by Felde to Dr. Marceau and

aid that what Felice had eid at that time

was the truth.

The closing references to Dr. Marceau's

report were as follows:

“He examined thy Defendant on January

Sist, 1979, approximately four months af-

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circumstances, not respo: ible for his ac-

that are not consistent with an alcoho!

like, ‘Pull the car over, I have a gun.’

" (Tr. 2250)

In rebuttal, the prosecutor said:

“And either the doctor made it up or

someone made it up and it does not fit in

any way as an incriminating piece of

evidence in this case that he pulled the

gun and told the policeman to pull over,

back in January of 1979, when Dr. Mar-

ceau spoke with the Defendant. § It

doesn't fit in any way at that time as

incriminating evidence. In fact, it would

have been more incriminating for some-

body to tell him he pulled the gun and

started executing the policeman. But,

see, the truth is, obviously, the Defendant

told Dr. Marceau what he recalled at the

time, four months after the incident.”

(Tr. 2343-2344)

[31] The prosecution erred in quoting

from Dr. Marceau's report in his final argu-

ments to the jury. This report was not in

evidence. McKenna v. State, 639

P.2d 557 (Nev., 1982) where the conviction

was reversed because s court appointed pay-

chiatrist testified about admissions made by

the defendant during his psychiatric exami-

nation. There was no contemporaneous ob-

jection to the comments here and defendant

did not request an admonition or move for a

mistrial. The argument vielated LSA-C.

CrP. art. 714:

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ASSIGNMENT OF ERROR NUMBER

THIRTY-THREE

“The rebuttal argument of the prosecu-

tor to the trial jurors excoeded the scope

of the defense closing argument.”

[34] Defendant complains again about

the mention in rebuttal of information in

Dr. Marceau's sanity commission report, cit-

ed as an example of calculated prosecutorial

overreaching. Since defense counsel allud-

ed to material in Dr. Marceau's report in

closing argument, the rebuttal did not ex-

ceed the scope of the defense's closing argu-

ment. There was no contemporaneous ob-

jection, and it is unlikely that the argument

had an undue influence on the jury.

[35] Defendant also objects to the over-

ruling of his objection to the prosecution

reviewing the law on manslaughter, con-

tending this was not proper rebuttal. De-

fense counsel had referred to the man-

slaughter statute in his closing argument so

the rebuttal argument was proper.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER

THIRTY-FOUR

“The judicial refusal to permit, and the

unconstitutional failure of Louisiana co-

da] provisions to provide for, defense re-

buttal argument to the trial jury on the

affirmative defense of insanity.”

[36] The state has the right to make the

last argument to the jury. LSA-C.Cr.P.

art. 765; State v. Wiggins, 837 So.2d 1172

(La, 1976).

‘This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER

THIRTY-FIVE

“The Louisiana statutory presumption

of sanity and the Louisiana codal provi-

sions placing upon the defense the burden

of establishing insanity at the time of the

offense, are unconstitutional.”

STATE v. FELDE

la 391

Cite an, La, 422 $0.26 370

[37] Defendant's burden of proof on the

affirmative defense of insanity is constitu-

tional. State ¥. Lee, 395 So2d 700 (La,

1981); Leland v. Oregon, 343 U.S. 790, 72

S.Ct. 1002, 96 ©. 4. 1302 (1952); Patterson

v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53

L.Ed.2d 281 (1977).

This assignment lacks merit.

ASSIGNMENT OF ERROR

NUMBER THIRTY-SIX

tinuing and substantial failure by the tri-

al court to adhere to the sequestration

mandated in @ capital case, as repeated

contacts, communications and conversa-

tions which took place between the jurors

and non-juror third parties may well have

resulted in the jury verdicts being based

upon, and affected by, influences extra-

neous of the legal evidence introduced at

trial.”

[38] Defendant contends that the jury

was not properly insulated from outside

influences because the jury room was the

most convenient and, at times, the only

place where hot coffee could be found.

These allegations are unfounded and there

is no real basis for the argument.

This ass'gnment of error lacks merit

ASSIGNMENT OF ERROR NUMBER

THIRTY-SEVEN

“The prejudicial professional relation-

ship between a tral juror and a prosecu-

tion witness whose identity as a member

of the sanity commission appointed by

the court on motion of the prosecution

did not become known by defense counsel

until subsequent to the return of the jury

verdict.”

contended that defense counsel thought de-

fense rebuttal witness, Dr. Joe Ben Hayes,

was the witness whom Martha Dominguez

knew because the matter was brought up

immediately after Dr. Hayes’ rebuttal evi-

dence in the following manner:

“BY THE COURT: Okay. I had one

question here by Mrs. Dominguez. She

was inquiring about any relationship that

a Juror may have to a witness; and | will

explain to her and to the Jury on that, if

that is agreeable with you. It is almost

impossible to pick a Jury that one or the

other of the twelve may not have some

relationship with some person to appear

as @ witness, My only inquiry @ you,

Mrs. Dominguez, is would this relation-

ship at all affect you in rendering a fair

and impartial verdict in the case? That

is, can you ....

“BY MRS. DOMINGUEZ:

(Juror) A. Not under the circum-

stances given...

“BY THE COURT: That is what I want

to know...

“BY MRS. DOMINGUEZ:

' (Juror) A. Not under the circum-

“BY THE COURT: Whatever relation-

ship you may have to any of the witness-

3, you must put it aside and disregard it

and weigh the testimony of all witnesses

alike, under all of the circumstances, and

I will give you some brief explanation of

how to evaluate testimony of witnesses,

80 you will not let that enter ....

“BY MRS. DOMINGUEZ:

A. Not under the circumstances.

“BY THE COURT: Into your delibera-

tion any more so than the consideration

given to other witnesses... .

“BY MRS. DOMINGUEZ:

(Juror) A. No, sir.

“BY THE COURT: Would not influence

you because of your, perhaps, professional

or persona! relationship with the witness

in your deliberation and rendition of ver-

dict?

“BY MRS. DOMINGUEZ:

A. Correct, sir.

a a rational trial jury to find that every es

[39,49] Disclosure during trial thet « sential element of the offense of First

juror is sequainted with witness does not ‘Degree Murder had been proven beyond

necessarily prevent s fair trial. State y. I! reasonable doubt." (No, 42)

Langendorfer, 389 So.2d 1271 (La, 1980); “The conviction in this case constitutes

State v. Daniel, 378 So.2d 1361 (La, 1979). —® deprivation of life, liberty and property

Defense counsel did not attempt at the time ~ Without due process of law as it is based

to determine the identity of the witness upon conduct of the defendant

did not move for a mistrial or object inany _—infantry training, actual wartime combat

manner. LSA-C.CrP. art. 841. The jur- @*periences, and prolonged dioxin expo-

tance did not affect her verdict. te tensenevegr ts trons Guarantee

This assignment lacks merit. at” ras States Govern

ASSIGNMENTS OF ERROR NUMBER finding Felde guilty of first degree murder

THIRTY-EIGHT, THIRTY-NINE, and rejecting his defense of insanity at the

FORTY, FORTY-ONE, FORTY-TWO, time of the crime on the basis of the evi-

AND FORTY-THREE dence presented.

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396 le 422 SOUTHERN REPORTER, 24 SERIES

despite the exercise of reasonable dili- [53) Since the subpoena was served late

gence, would probably have changed the and the prosecutor was unable to appear,

jury verdict of ‘guilty’ to a verdict of ‘not the trial court was within its discretion in

guilty by reason of insanity’, had that quashing the subpoena on the ground that

evidence been available for introduction it was oppressive.

dicts were rendered, counsel first received

addresses for three of the eight members of

Wayne Felde’s unit in Vietnam. It is ar-

guved that « new trial should have been

because this testimony, not previ-

ously available, would have substantiated

the defense of post-traumatic stress disor-

FORTY-SEVEN

ASSIGNMENT OF ERROP. NUMBER

FORTY-EIG!

“The denial by the trial court of the

Defense Motion for New Trial.”

[54] Defendant contends that « new tri-

al should have been granted because DSM -

II], the Diagnostic and Statistic Manvel II!

of the American Psychiatric Association

first recognized post-traumatic stress disor-

der in 1980, only months prior to trial.

However, there was trial testimony that the

American Psychiatric Association recog:

nizes this disorder. Although the DSM-III

has been adopted in Louisiana hospitals

since the trial, this factor is not so material

that it would be likely to produce a differ-

ent result. State v. Talbot, 408 So.2d 861

(La., 1981).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER

FORTY-NINE

“The failure of the trial court to grant

the Defense Motion for Payment of Trial

Expenses.”

{55} This assignment of error is irrele-

vant to de’ odant's appeal.

ASSIGNMENT OF ERROR

NUMBER FIFTY

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STATE v. FELDE

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[56] Defense counse! contends that the

uniform sentencing veport sub-

mitted by the trial judge reflects a negative

attitude toward the defendant because it

contains erroneous information and that

this attitude toward the defendant was con-

veyed to the jury during trial.

The report is inaccurate in two particu-

lars. It states that defendant completed

the eleventh grade, whereas he graduated.

from high school. It states that Felde was

sentenced to fifteen years for seeond degree

murder and five years concurrently for four

counts of assault, but the second degree

murder conviction was reversed. Defend-

omission did not harm the defendant.

This assignment lacks merit.

DEATH SENTENCE REVIEW

Under LSA-C.Cr.P. art. 906.9.1, every

sentence of death is reviewed for excessive-

ness on the basis of three factors:

28. LSA-C.CrP. art. 095.91, § 3 provides

“(a) Whenever the death penalty is imposed,

trial judge shall expeditiously complete

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(a) Whether the sentence was imposed

under the influence of passion, preju-

dice, or any other arbitrary factors;

(b) Whether the evidence suppérts the

jury's finding of a statutory. aggra-

vating circumstance; and

(c) Whether the sentence is dispropor-

tionate to the penalty imposed in simi-

lar cases, considering both the crime

and the defendant.

[58) A. There is no indication that the

sentence was imposed under the influence

of passion, prejudice or any other arbitrary

factors.

[59] B. The fact, as the jury found

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ON REHEARING

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J re TS

S.yreme Court of ouisiaws

NEW ORLEANS, 70112

FOR N . WEWS RELEASE # 142

FROM: CLERK OF SUPREME COURT OF LOUISIANA

On the 17th day of December, 1982, the following action was taken by the

Supreme Court of Louisiana, composed of Chief Justice John

A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr.,

Walter F. Marcus, Jr., James L. Dennis, Fred A. Blanche, Jr.,

Jack Crozier Watson, and Harry T. Lemmon, in the cases

listed below:

REHEARINGS DENIED:

fra-0998) State v. Wayne Robert Felde

See Per Curiam

61-KA-2627 State v. Joe D. Carter

81-KA-2629 State ex rel Alex Elaire v. Blackburn, Warden

DIXON, C.J., CALOGERO & DENNIS, J.J., would grant a rehearinc

LEMMOi., J., concurs with reasons.

81-KA~-2717 State v. Alex Robinson

81-KA-2990 State v. Sammy Bernard and Clarence Simmons

82-C-0025 New Orleans Firefighters Association, et al v. City Civil

Service Commission of the City of New Orleans, et al

(3 applications)

DIXON, C.J., MARCUS & BLANCHE, J.J., would grant a rehearing.

@2-KA-0219 State v. Willie J. Robinson, Jr.

CALOGERO & DENNIS, J.J.-, would grant a rehearing.

82-C-0594 Naomi Carter,et al v. City Parish Government of

Baton Rouge, et al

62-C-0790 Linda B, Dodd v. Nicolon Corporation, et al

(p. 1 of 1 page)

236 Diagnostic Categories

308.30 Post-traumatic Stress Disorder, Acute

309.81 Post-traumatic Stress Disorder, Chronic or Delayed .

The essential feature is the development of characteristic symptoms following a

psychologically traumatic event that is generally outside the range of usual

human experience.

- The characteristic symptoms involve reexperiencing the traumatic event:

numbing of responsiveness to, or reduced involvement with, the external

. world; and a variety of autonomic, dysphoric, or cognitive symptoms.

The stressor producing this syndrome would evoke significant symptoms of

distress in most people, and is generally outside the range of such common

experiences as simple bereavement, chronic illness, business losses, or marital

conflict. The trauma may be experienced alone (rape or assault) or in the com-

pany of groups of people (military combat). Stressors producing this disorder

include natural disasters (floods, earthquakes), accidental man-made disasters

(car accidents with serious physical injury, airplane crashes, large fires), of

deliberate man-made disasters (bombing, torture, death camps). Some stressors

frequently produce the disorder (e.g., torture) and others produce it only occa-

sionally (¢.g., car accidents). Frequently there is a concomitant physical com-

ponent to the trauma which may even involve direct damage to the central

nervous system (e.g., malnutrition, head trauma). The disorder is apparently

more severe and longer lasting when the stressor is of human design. The

severity of the stressor should be recorded and the specific stressor may be

noted on Axis IV (p. 26).

The traumatic event can be reexperienced in a variety of ways. Commonly

the individual has recurrent painful, intrusive recollections of the event or re-

current dreams or nightmares during which the event is reexperienced. In rare

instances there are dissociativelike states, lasting from a few minutes to several

hours or even days, during which components of the event are relived and the

individual behaves as though experiencing the event at that momert. Such states

have been reported in combat veterans. Diminished responsiveness to the ex-

ternal world, referred to as “psychic numbing” or “emotional anesthesia,” usually

begins soon after the traumatic event. A person may complain of feeling de-

tached or estranged from other people, that he or she has lost the ability to

become interested in previously enjoyed significant activities, or that the ability

to feel emotions of any type, especially those associated with intimacy, tender-

ness, and sexuality, is markedly decreased.

After experiencing the stressor, many develop symptoms of excessive

autonomic arousal, such as hyperalertness, exaggerated startle response, and

difficulty falling asleep. Recurrent nightmares during which the traumatic event

is relived and which are sometimes accompanied by middle or terminal sleep

disturbance may be present. Some complain of impaired memory or difficulty

in concentrating or completing tasks. In the case of a life-threatening trauma

shared with others, survivors often describe painful guilt feelings about surviving

when many did not, or about the things they had to do in order to ‘survive.

Activities 0: situations that may arouse recollections of the traumatic event are

Anxiety Disorders 237

often avoided. Symptoms characteristic of Post-traumatic Stress Disorder are

often intensified when the individual is exposed to situations or activities that

resemble or symbolize the original trauma (e.g., cold snowy weather or uni-

formed guards for death-camp survivors, hot, humid weather for veterans of

the South Pacific).

Associated features. Symptoms of depression and anxiety are common,

and in some instances may be sufficiently severe to be diagnosed as an Anxiety

or Depressive Dis order. Increased irritabilixy may be associated with sporadic

and unpredictable explosions of aggressive behavior, upon even minimal or no

provocation. The latter symptom has been reported to be particularly character-

istic of war veterans with this disorder. Impulsive behavior can occur, such as

sudden trips, unexplained absences, or changes in life-style or residence. Sur-

vivors of death camps sometimes have symptoms of an Organic Mental Dis-

order, such as failing memory, difficulty in concentrating, emotional —-

autonomic lability, headache, and vertigo.

Age at onset. The disorder can occur at any age, including during childhood.

Course and subtypes. Symptoms may begin immediately or soon after

the trauma. It is not unusual, however, for the symptoms to emerge after a

latency period of months or years following the trauma.

When the symptoms begin within six months of the trauma and have not

lasted more than six months, the acute subtype is diagnosed, and the

for remission is good. If the symptoms either develop more than six months

aivar Ge woume er last six enenthe or mave, the cheente or dalayed eubtype ts

Impairment and complications. Impairment may either be mild or affect

nearly every aspect of life. Phobic avoidance of situations or activities resembling

or symbolizing the original trauma may result in occupational or recreational

may develop.

Predisposing factors. Preexisting psychopathology apparently predisposes

to the development of the disorder.

Prevalence. No information.

Sex ratio and familial pattern. No informatica.

Differential diagnosis. If an Anxiety, Depressive, or Organic Mental Dis-

order develops following the trauma, these diagnoses should also be made.

In Adjustment Disorder, the stressor is usually less severe and within the

range of common experience; and the characteristic symptoms of Post-traumatic

Stress Disorder, such as reexperiencing the trauma, are absent.

238 Diagnostic Categories

criteria for Post-traumatic Stress Disorder

A. Existence of a recognizable stressor that would evoke significant

symptoms of distress in almost everyone.

B. Reexperiencing of the trauma as evidenced by at least éne of the

following:

(1) recurrent and intrusive recollections of the event

(2) recurrent dreams of the event

(3) sudden acting or feeling as if the traumatic event were reoc-

curring, because of an association with an environmental or idea-

tional stimulus

C. Numbing of responsiveness to or reduced involvement with the

external world, beginning some time after the trauma, as shown by at

least one of the following:

(1) markedly diminished interest in one or more significant activities

(2) feeling of detachment or estrangement from others

(3) constricted affect

D. At least two of the following symptoms that were not present before

the trauma:

(1) hyperalertness or exaggerated startle response

(2) sleep disturbance

(3) guilt about surviving when others have not, or about behavior

required for survival

(4) memory impairment or trouble concentrating

(S) avoidance of activities that arouse recollection of the traumatic

event

(6) intensification of symptoms by exposure to events that symbolize

or resemble the traumatic event

SUBTYPES

Post-traumatic Stress Disorder, Acute

A. Onset of symptoms within six months of the trauma.

8. Duration of symptoms less than six months.

Post-traumatic Stress Disorder, Chronic or Delayed

Either of the following, or both:

(1) duration of symptoms six months or more (chronic)

(2) onset of symptorns at least six months after the trauma (delayed)

ian,”

-

Anxiety Disorders 239

used when the individual appears to have an

criteria for any of the above specified

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Okay....

For about three (3) years.

All right. Any other connections besides mental

health in the Mental Health Center in Shreveport

and the....in connection with the coroner's office?

No, sir. No other public service.

Other than your present job right now?

That's right. I was....a member of the faculty at

LSU Medical School.

All right. In Psychiatry?

In Psychiatry.

All right, sir. In connection with your appointment

to the Sanity Commission, did you have occasion to

visit my client, Wayne Felde, in the Caddo Parish

Jail?

Yes, sir.

And what date did you go see him on, Dr. Marceau?

I saw him on....January the 3lst, 1979.

Do you know how long it was that he had been in jail

as of that time?

sel don't....know except what he'd told me.

With regard to his condition at that time, what type

of physical condition did you perceive him to be in?

...ehe had....apparently, somewhat of a deficiency

in bis walk. I don't remember exactly if he used....

any particular aids to walk with but he did have some

problems with his legs from what I....I remember.

You don't remember anything else about his personal

appearance or anything. Is that right?

Well, he....he was fairly well-groomed for....a

prison inmate and came into the....interview quite

1147

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readily, and....seemed to be in fairly good control

of himself at that time.

Seemed to be in real good spirits?

He seemed to....be in fairly good spirits during

most of the interview anyway.

Uh-huh. Right. Did you....he didn't complain of

....make any complaints to you regarding his physical

condition, did he?

Well, he did say that he didn't feel too good yet

and he was....he had been wounded and....had....

recently got out....gotten out of the hospital. I!

understand that he was in....what was Confederate

Memorial Hospital at that time, I believe. It is

now LSU Medical School Hospital.

He didn't mention anything to you about any problems

he was having with any of the jailers or any

problems he was having with his medication or any-~-

thing?

No, he didn't....really complain about that....

situation.

Okay. How many times....how many more times did you

see him?

I just saw him that one time.

Oh, on that one (1) occasion?

Right.

How long did you stay up there?

Oh, about an hour, an hour and fifteen minutes, 1

imagine.

Okay. Did he appear to be...- You said he appeared

to be....to want to be cooperative with you?

Yes, he was cooperative.

1148

’

eceenreeweeseerv -

5

CROSS EXAMINATION

BY MR. NESBITT:

Dr. Marceau, would you tell us what you recall the

Defendant said happened that evening?

BY MR. THOMAS: Your Honor, I

strenvously object and if....this isn't the time.

If Mr. Nesbitt wants to bring that out, this isn't

the time to do it, and if he wants to have any

rebuttal, that's fine with me, but at this time,

the State moved for the Sanity Commission and they

appointed the coroner, & man here,who has had

numerous contacts with the State, and another deputy

coroner to examine this man. And with regard to

any statements, there is a privilege, when the State

moves for a Sanity Commission, there is a patient-

psychiatrist privilege and that can't come out until

such time as they might want to impeach Mr. Felde's

testimony. At this time, there is a definite

privilege there and we can find the cases, Your

Honor. And Mr. Nesbitt, I submit is aware of that.

BY THE COURT: It is my under-

standing of the law, and I will let you look up some

more, if you want, in a short period of time, but

when you put him on the stand any privilege you bad

was waived, and he was called, this witness....

BY MR. THOMAS: That's not

correct, Your Honor....

BY THE COURT: Was called by

you. Well, I think that is the law.

1152

|

eer ew#eeew#wts--

eeszsex,seperesstrsses

BY MR. THOMAS: Well, we'll....

I mean...-

BY THE COURT: If you have....

BY MR. THOMAS: Let me put it,

that's not my, I might be wrong...-

BY THE COURT: A case you want

to show me to the contrary, I will be happy to look

at it, but I haven't seen one. Get the slip from

this lady here and let me look at this siip and we

will take a recess. Certainly, we will do that when

we come back, We will take a recess at this time.

The question from Mrs. Dominguez was that she wanted

to know a little more background on the Doctor's

qualifications. So when we come back, Doctor, if

you don't have a resume with you, maybe you can jot

down something to give us & little more background

on your education, training, and experience as we,

in the legal profession, spout out...-

All right, I will be glad to do so.

BY THE COURT: Do you need a

pad or something? Do you want to....

Yes, I need a blank sheet.

BY THE COURT: I have got some-

thing here for hin. Here you are, sir.

Thank you.

BY THE COURT: Okay. Take the

Jury out, please.

JURY REMOVED FROM COURTROOM

-705-

1153

ARGUMENT ON BEHALF OF DEFENDANT

BY MR. THOMAS: Your Honor,

number one, I would like to expand my objection from

merely the physician-patient privilege, statutory

privilege, to also include the Constitutional privilege

against the right, where a defendant has the right not

to incriminate himself in a criminal proceeding.

And the basis of my objection for the

Constitutional privilege which we assert in support of

our objection is the fact that the Minutes will reflect

the State moved for the Sanity Commiesion in this case,

Mr. Felde was compelled to meet with the psychiatrists,

at which time, information was taken from him regarding

this case.

We would submit that the holdings of

the Louisiana Supreme Court, initially, in State vs.

which may or may not be integral part of the

decision but we submit it is the law as reiterated in

State vs. Jones, which is a 1978 case, 359 So. 2d 95,

in which the Louisiana Supreme Court stated that no

inculpatory statements made to the examiner are admissible

in evidence at the merit trial of the defendant's guilt

or innocence due to the fact that a sanity commission is

not a critical stage of the proceeding in which the

presence of counsel is required. That is the basis for

1155

our Fifth Amendment privilege and we submit there was no

waiver of the privilege as we did not ask any specific

questions regarding specific information which Mr, Felde

had given to the psychiatrist. In fact, the broadest

question asked was what Dr. Marceau's opinion was based

on, what Mr. Felde told him, he remembered or what was

told to him, and he stated both and that his recollection

was very vague. The defense did not pursue that any

further. ~

With regard to the physician-patient

privilege, in State v. O'Quinn, we would submit that the

Supreme Court in that case, located at 362 So. 2d 503,

rendered in 1978, said that the limitation, the only

limitation where a defendant waives that privilege by

tendering his mental state as an issue in the trial, the

Supreme Court said the only limitation there announced

is that by tendering his mental health as an issue the

defendant waives the privilege, saying of physician-

patient privilege, only as to such information as is

genuinely relevant to the narrow issue there tendered

providing that its probative value outweighs its preju-

dicial effect. And we submit strenuously that any, the

type of information that Mr. Nesbitt is trying to bring

out at this stage of the proceeding would certainly, the

prejudicial effect would far outweigh the probative valve

and, therefore, that is the basis of our objection on

both of those particular grounds.

BY THE COURT: All right. Hear

from the State.

1156

ARGUMENT ON BEHALF OF STATE

BY MR. NESBITT: Your Honor,

the defense has changed their objection to rely on

the Fifth Amendment. We need to make clear, we are not

offering anything Mr. Felde may have said for the truth

of it. We are just offering it for the fact that he said

it to the Doctor as the basis of the Doctor's opinion.

We wovld submit, first of all, the

Defendant raised the iesue of sanity by pleading not

guilty by reason of insanity and the law requires the

Court to appoint a Sanity Commission at that point. At

that point, the privilege that may otherwise exist

between the defendant and examining physicians protecting

any information he provided those physicians is waived

insofar as that information is contained in the reports

and the knowledge of the physicians on which their opinion

is based as to the defendant's sanity.

That privilege would remain intact at

a trial on the issue of the merits of the defendant's

guilt or innocence until and u\ieso the defendant elected

to present evidence addressing his insanity, at which

time, we submit, that whatever Fifth Amendment privilege

otherwise would have existed that, in effect, is waived

along with the physician-patient privilege at that stage.

The Defendant has called the gentleman

to the witness stand and asked him his opinion and the

1157

basis of his opinion and specifically inquired whether

Mr. Felde told him about the incident, something to that

general nature.

The Brogue case is easily distinguishable

in that Brogue dealt with a defendant who did not raise the

issue of insanity but only the defendant's capacity to pro-

ceed. The law, at that point, requires the court to appoint

a commission solely for that purpose. A commission was

appointed for that purpose. The report was rendered to the

court as to the defendant's capacity to proceed. At trial,

insanity was not an issue, the State tried to call the

psychiatrists, who examined the defendant, on the issue of

capacity to proceed and asked them about the defendant's

statements to them which was privileged at that point, not

waived by the defendant and not an issue at the trial.

The Harris vs. New York case would

certainly answer any Constitutional Fifth Amendment

questions in that if there is, in fact, a privilege that

is in existence here, regarding the Fifth Amendment, we

have a situation where the basis of the Doctor's opinion

is the Defendant's statement, although, we are not

offering the Defendant's statement for the truth of it,

we would submit that the statement itself will be incon-

sistent with other statements made by the Defendant that

have already been placed before the Jury in connection

with his testimony at a previous trial.

BY THE COURT: Sir?

BY MR. NESBITT: The Fifth Amend-

ment does not stand to allow....

1158

-710-

BY THE COURT: Oh, what you

mean, the statements....you are contending that the

statements made to the doctor or inconsistent with the

statements that he made at the McDonald trial?

BY MR, NESBITT: At the McDonald

trial, they are inconsistent with the contention of Mr.

Thomas in his opening statement as to the Defendant's

version of the facts, his memory of the facts, his degree

of intoxication, what does or does not recall. It is,

as a whole, inconsistent with the position the Defendant

is now taking, and it is also inconsistent with other

matters that have been explained to the Jury in opening

statement regarding the "Agent Orange” and all of the

stress syndrome business.

So we would submit, first of all, any

privileges waived when the Defendant specifically raised

the issue....

BY MR. THOMAS: Your Honor....

BY MR. NESBITT: And that the

Fifth Amendment should not stand to allow the Defendant

to place on the stand a psychiatrist and then shield

from the Jury the basis of that opinion which is solely

the information the Defendant elected to give the psy-

chiatrist whether it is true or not.

BY MR. THOMAS: Just as to the

new point that he raised there, Your Honor. We would

1159

-711-

request that should the Court consider the fact that

there might be any inconsistencies in opening statement

and the McDonald testimony as opposed to what he told

Dr. Marceau, that there be a judicial examination of

that material because we don't know of any inconsistencies

between what he told Dr. Marceau and that.

Secondly....

BY THE COURT: Well, at this

point, I don't think that you can bring it up to show

that what the witness told someone is inconsistent with

what the attorney says at the opening statement. I

don't know about that type of an impeachment. I don't

know who you are impeaching. Are you impeaching the

Defendant or the....

BY MR. THOMAS: Impeaching me.

BY THE COURT: Attorney.

BY MR. THOMAS: The only other

two things I'd say is that he didn't....

BY THE COURT: Well....

BY MR. THOMAS: He did not

elect to tell Dr. Marceau that, really. He was forced to.

And the other thing, of course, being the fact that the

State has rebuttal. They would certainly have an oppor-

tunity on rebuttal and I think if they....if he even

attempted to present it here, we would have grounds for

a mis-trial.

BY THE COURT: Well, that is

going to give me some concern, I guess at one stage of

the proceedings, as to what right they may have to come

1160

-712-

in,in rebuttal, and show that he made prior inconsistent

statement. But the Court is seriously concerned with the

waiver. If I accept the State's proposition that there

is a waiver, then it would seem to me that every time a

defendant pleads not guilty by reason of insanity, he

automatically waives his Fifth Amendment rights.

BY MR. NESBITT: Could I address

that point?

BY THE COURT: That bothers me.

BY MR. NESBITT: Your Honor....

BY THE COURT: Because the

only way he can....

BY MR, NESBITT: That is....

BY THE COURT: Can plead

insanity is to have a mental examination and if, at that

mental examination, he has to tell those physiciaas every-

thing he knows in order for them to make a proper *val-

uation, then that can always be brought out, so wouldn't

it be tantamount to, in every case, a waiver of the Fifth

Amendment?

BY MR. NESBITT: No, sir, we

don't submit that, on the defendant's plea, the Fifth

Amendment is waived. The Fifth Amendment comes into play

if the inculipatory evidence is either used....inculpatory

statement, assuming it is true, may be a completely excul-

patory. He may have told Dr. Marceau a completely excul-

patory version.

BY THE COURT: Well, if it was

exculpatory, I wouldn't be worried about it.

1161

-713-

BY MR. NESBITT: Yes, sir. That

is the whole point. We submit that the essence of what

he told Dr. Marceau regarding intoxication as a defense

is totally exculpatory, and that ic in the Sanity Com-

mission Report itself.

BY THE COURT: I don't know

what you seek to get from the Doctor....

BY MR. NESBITT: All right, sir.

BY THE COURT: Does someone

have a report that I may look at....

BY MR. NESBITT: It should be

in the record....

BY THE COURT: It at noon?

BY MR. THOMAS: I have got it

right here. And he....since he doesn't say that he was

....-it is exculpatory with regard to intoxication, Your

Honor, I think it might be, he might have mentioned that

issue but....

BY MR. NESBITT: If we can clarify.

BY MR. THOMAS: Of course, we

are....

BY MR. NESBITT: We do not contend...

BY THE COURT: I would like to

have a copy of the report and the statements that were

made so that I can look at them, and maybe we're....

BY MR. THOMAS: Your Honor....

BY MR. NESBITT: The statements....

BY THE COURT: In a moot

matter....

1162

BY MR. NESBITT: The statements.

BY MR. THOMAS: On their face,

they would appear to the Jury to be very inculpatory at

this point in the proceedings.

BY THE COURT: are

BY MR. NESBITT: The statements....

BY THE COURT: I don't know

whether they are or not.

BY MR. NESBITT: The statements

concerning the Defendant's degree of intoxication could

have been misrepresented by the Defendant intentionally

to the Doctor relying on the defense of intoxication at

that stage. Now....

BY THE COURT: All right....

BY MR. NESBITT: I want to make

clear that we do not contend that when the Defendant

raises the issue of sanity, any Fifth Amendment privilege

is waived because the Fifth Amendment comes into play in

protecting the Defendant from giving inculpatory infor-

mation and if the Defendant were to give information to

a psychiatrist and that information were to be used to

discover additional evidence against the accused, I would

submit the propriety of suppressing that evidence would

be a very serious issue. If the Defendant's version of

what happened or his statement in any regard were offered

by the State, and we are not offering anything. We are

cross examining the Defendant's witness....

BY THE COURT: I understand

the state of the proceeding....

1163

BY MR, NESBITT: Yes, sir. If

that is offered by the State to a Jury or a trier of fact

on the issue of guilt or innocence, the Fifth Amendment

privilege would prevent that from being done. The waiver

of that occurred when the Defendant pled guilty....not

guilty by insanity....

BY THE COURT: Now, wait just

a minute. The burden is upon a defendant to prove

insanity at.... —

BY MR. NESBITT: Yes, sir.

BY THE COURT: The time of the

commission of the crime.

BY MR. NESBITT: Yes, sir.

BY THE COURT: The State does

not even go into it.

BY MR. NESBITT: That's correct.

BY THE COURT: As you didn't...

BY MR, NESBITT: Yes, sir.

BY THE COURT: The case is

with the defense and they are seeking to show that the

accused was insane at the time of the commission of the

offense.

BY MR. NESBITT: Yes, sir. And

what we are saying, the Fifth....

BY THE COURT: ’ He puts on his

expert. Now are you entitled to question the expert as

to what was told to the expert and elicit from the expert

inculpatory statements?

1164

-716-

on

BY MR. NESBITT: Well, sir,

whether...

BY THE COURT: If you can in

this case, then would it be true in every case.

BY MR. NESBITT: Well, no, sir.

The point we are making is the Fifth Amendment remains

intact until the defendant presents the expert witness

at the trial....

BY THE COURT: Yes, sir, and

that's where we are.

BY MR. NESBITT: In the defen-

dant's behalf.

BY THE COURT: That's where

we are.

BY MR. NESBITT: The Fifth

Amendment is intact until that point and then it is

waived when the defendant elects to make that presents-

tion.

BY THE COURT: Well, if he

doesn't elect to make that presentation, then he cannot....

BY MR. NESBITT: The State would

BY THE COURT: He cannot rely

upon insanity as a defense.

BY MR. NESBITT: No, sir, the

State would be prohibited from cross examining that

witness or bringing that witness to testify to the Jury

as to what the Defendant told him.

1165

-717-

BY THE COURT: Well, that is

what they are contending you shouldn't be permitted to

do.

BY MR. NESBITT: Well, what we

are contending is, that once they make that move, once

they put that witness on the stand and asked him his

opinion, we have the right to go into the basis of it,

which happens to be, in part, what the Defendant related

to the examining physician to determine....

BY THE COURT: Well, I cannot

reason any other way but every time you plead not guilty

by reason of insanity, you are subjecting yourself to a

waiver of your Fifth whenever you put the witness on to

show that you were insane, and the Defendant has that

burden of proof.

BY MR. NESBITT: I would say

that would be generally correct on the assumption that

you are interpreting anything the defendant said as

inculpatory. But if the defendant offers one exculpatory

version to a doctor and later, at trial, offers a com-

pletely different or inconsistent version; we are not

offering inculpatory statements as an admission to the

crime or an admission to facts which would tend to prove

guilt.

BY MR. THOMAS: Your Honor, if

I can respond to that. If we do....

BY THE COURT: You don't think

that this statement is not inculpatory? Would you....I

haven't read it, but I just happened to pick out....

1166

~-718-

BY MR. NESBITT: We have....

BY THE COURT: One paragraph

and read it without my glasses and I had to put them on

to make sure that is there....

BY MR. THOMAS: 1 would say at

this stage of the proceedings, Your Honor, it would be

very inculpatory, and there has been no inconsistent

version offered as of this time, either. Now, when we

get to rebuttal of the State, I realize that we might

be looking at an entirely....

BY THE COURT: We may....

BY MR. THOMAS: Horse of a

different color. Maybe.

BY THE COURT: We may.

BY MR. NESBITT: In this state-

ment, the Defendant....

BY MR. THOMAS: Your Honor, I

don't want him to read the statement out loud, either,

Your Honor, because there is too much danger of....we

can talk about it in chambers or something. I don't

want Mr. Nesbitt to read the statement out loud for any

reason.

BY MR. NESBITT: It is in the

record, Your Honor.

BY MR. THOMAS: And we can....

BY MR, NESBITT: . Public....

BY MR. THOMAS: File it in the

record or something.

BY THE COURT: What?

. 1167

-719-

Bh et

Ww ws

BY MR. NESBITT; It's a public

record....

BY THE COURT: No, we don't have

to read it. I can read it. Well....

BY MR. NESBITT: Our contention

is....

BY THE COURT: That gives me

geome concern.

BY MR. NESBITT: All right, sir.

Our contention is simply that the Fifth is intact until

the defendant waives it at trial....

BY THE COURT: That's right.

BY MR. NESBITT: And it has been

waived.

BY THE COURT: But wouldn't

that be true in every case where a defendant pleads

insanity?

BY MR. NESBITT: Not as to the....

BY THE COURT: In order to

prove his insanity, at some state in that proceeding, he

has got to waive his Fifth.

BY MR. NESBITT: Not as to the

State calling the examining physician and asking that

physician as to....

BY THE COURT: Now, wait, wait

a minute. We are not calling about the State calling

anybody....

BY MR. NESBITT: That's correct.

1168

-720-

C)

. «

BY THE COURT: I am talking

about....

BY MR. NESBITT: That ia exactly

right.

BY THE COURT: When the

defendant seeks to put on the proof of his insanity at

the time of the commission of the crime. In every case,

when he does that, he waives his Fifth?

BY MR. NESBITT: No, sir. That

is not our position. I think there are some subtle

differences that exist between....

BY THE COURT: Tell me....

BY MR. NESBITT: Who is called

by the....

BY THE COURT: What they are.

BY MR. NESBITT: For instance,

if the defendant were to put on a series of civilian

witnesses to testify he crawled around on the floor

barking like a dog for the entire day before he committed

some crime, I don't think the State would be allowed to

call a physician that examined him and ask the physician

what did the defendant tell ,cu happened.

BY THE COURT: Well, I don't

really....

RY MR, NESBITT: If the State....

if the defense calls that physician....

BY THE COURT: Now, now, Mr.

Nesbitt, I really don't think you are being practical

1169

because when they plead not guilty by reason of insanity,

we always have some expert on the stand to testify about

him.

BY MR. NESBITT: Well, not if

all the doctors....

BY THE COURT: That has been

my experience. And then, of course, they do put on

laywitnesses to corroborate the testimony and the opinion

of the expert. I think that is a little too subtle for

me to buy.

BY MR. NESBITT: I don't know

of any case law to support the Defendant's contention.

BY MR. THOMAS: I think that,

Your Honor....a good point that was brought up just now,

and the fact that the defendant does have the burden of

proof on insanity, and even that is unlike a lot of

jurisdictions and there has been a lot of controversy

whether he should even have that burden.,..

BY THE COURT: I appreciate

that....

BY MR. THOMAS: So it is sort

of like....

BY THE COURT: But I don't

think we need to get into that. This....

BY MR. THOMAS: Right. But

I mean, it is sort of like, it adds a little more to the,

to our argument, I think. I just wanted to mention that

as a ground, also.

1170

-722-

BY THE COURT: No, well, no,

I have a fear of that, but not the same one you have and,

that is, that one day we are going to get hit with a

change of the law by the Louisiana Supreme Court, state

that the, the burden of State to disprove the defendant's

insanity at the time of the commission of the crime and

we will get a bunch of cases reversed and retried, at

least one. All right. I think I understand your positions.

I will give you a ruling at 1:30. Court is at recess

until 1:30.

ARGUMENT CONCLUDED

COURT RECESSED

1171

-723-

COURT RECONVENED AUGUST 15, 1980

JURY RETURNED TO COURTROOM

RULING OF THE COURT

BY THE COURT: The Court will

now rule unon the subsequent objection made by defense

counsel, and will sustain the same.

Ruling Concluded

1172

-724-

1 "to these charges?" And you

2 said, "No, sir."

3 Did the attorney whisper that in your ear, too?

4 A Yes. If it's on there, I, I assume he did, Mr.

5 Nesbitt.

6 Q "Has anyone made any promises to you of a

7 lesser sentence than what I told

8 you the maximum penalties were,

9 that is, fifteen years, of

iT) probation, immunity, or anything

1 else in order to get you to

12 plead guilty?" You said, "No,

13 sir."

14 Did your attorney whisper that in your ear?

15 I, I went on the advice of my attorneys, Mr. Nesbitt.

16 Q The Judge said:

17 “Are you in good health, mentally and

18 physically?" You said, "Yes,

WY sir."

20 “Have you been, or are you now, subjected

21 to any way, to illness,

22 accident, or nervous upset."

23 Your answer was: "No."

24 A Mr. Nesbitt, I was eligible to go up for parole

25 immediately upon that, and that was exactly what my

26 feelings were that I was going to get. I went under

7 the advice of my attorneys, feeling I would make

2B parole.

2 Q Now, Mr. Felde, you don't recall telling Dr. Marceau

30 on January 3ist, 1979....

31 BY MR. THOMAS: Your Honor....

2141

- -1693-

co @oeneeoeweas®wsesS -

well, that's all right....

BY MR. NESBITT:

Q That you found out officers were looking for you

because you were a fugitive and you had been serving

a term for Manslaughter, that you left your job and

went and bought a 357 magnum and some shells, that

you were going to hitchhike out of town because you

felt the police would be watching you on airplanes,

buses, and trains, as well as your car....

BY MR. THOMAS:

What we would

request, Your Honor, is that he ask....instead of

reading long paragraphs into the record, we would

like him to separate the questions....

BY MR. NESBITT:

BY MR. THOMAS:

BY MR. NESBITT:

Q Do you recall....

BY MR. THOMAS:

asking a long, narrative question....

BY MR. NESBITT:

Q PM you recall....

BY THE COURT:

BY MR. NESBITT:

Q Telling Doctor....

BY THE COURT:

minute....

BY MR. THOMAS:

objection....

BY THE COURT:

At...

BY MR. NESBITT:

Be glad to....

And....

Instead of

Well, I don't....

Just, just a

That's my

Let me rule on

2142

Sa | |

17

BY THE COURT: I can't require

the State to do that. I don't have the control over

the way the State presents its case so the....

BY MR. THOMAS: Then, Your

Honor, we would object....

BY THE COURT: Objection will

be overruled.”

BY MR. THOMAS: To the questions

asked for reasons previously discussed with the

Court.

BY THE COURT: Well, that

objection is overruled.”

BY MR. NESBITT:

Q Do you recall telling him that?

BY MR. THOMAS: Thank you,

Your Honor. We would take an assignment.

Pi MR. NESBITT:

Q Do you recall telling him that?

BY THE COURT: Well, you have

it. It's written. It's a written motion.

BY MR. NESBITT: I'm sorry.

BY MR. NESBITT:

Q Do you recall telling him that?

A I recall telling them that I don't remember what I

told them or if it's what I was told. I believe

you'll find that in the report, too, if you'll read

it down ferther.

Well, it says that you....

.++sthat's what I told them....

+.+-weren't sure exactly....

~o+- that's what I told....

> © > ©

Assignment of Error

21:

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....how much you remembered....

..them, Mr. Nesbitt....

....and how much you were told. That's....

..+- that's what....

...-do you recall telling....

++I told them....

_...him that? So if you, if he says you told him

that, that's what you told him?

I would assume it is, yes. I don't know. I don't

remember it.

And did you see the photographs of your car that was

obviously abandoned at the car wash?

The photographs....

.».-Of your car....

....from who? The ones in this case?

Yes, sir.

No, I don't believe I did.

Well, you did leave your car at the car wash?

Yes, I did.

You didn't drive off in your car on the 20th. You'd

left it?

I left it there. Yes, I did.

Dr. Marceau recalls you telling him that you were

afraid they'd be watching for you in your car. You

told Dr. Marceau that you were going to get a back-

pack, which you were sending a friend for....

Well, I had a backpack in my car, Mr. Nesvitt. If

you']? go down to wherever you all have it stored,

you'll find there is about @ hundred-and-ten-dollar

backpack in there I just bought.

Do you recall telling Dr. Marceau....did somebody

-1696-

2144

on motion of the State, which is permitted to examine him

under the conditions under which he was....particularly,

under the oppressive conditions he has been held in at the

Caddo Parish Jail at that time, there's no doubt that state-

ment was, it had a Fifth Amendment privilege attached when

they took it from him; and the Fifth Amendment privilege

being Constitutional, it's certainly a heck of @ lot

stronger than something like a physician-patient privilege

which he does not waive by taking the stand;. and, well,

he may refuse....may waive his right to claim the Fifth

Amendment privilege with regard to any questions Mr.

Nesbitt asks him about the case, be certainly cannot waive

a privilege which pertains to a statement taken in January

of 1978; the privilege still attaches to a statement taken

at that time; that would be our argument, Your Honor.

BY THE COURT: All right, sir.

Argument Concluded

BY THE COURT: Well, does the

State wish to make a reply or not?

BY MR. NESBITT: They called Dr.

Marceau to the stand as a defense witness and they asked

him.... |

BY THE COURT: Well, he is

arguing the Fifth Amendment...-

BY MR. NESBITT: Yes, sir...-

BY THE COURT: There is no

physician-patient privilege on a Sanity Commission.

2147

18

tell you that? That you had a backpack in your own

car? Did anybody tell you that, Mr. Felde?

I don't know. I don't understand what you're getting

at.

Do you recall telling the Doctor that you had a back-

pack and you sent a friend for it, and you went into

a bar and started drinking?

I might've told the Doctor....

BY MR. THOMAS: Your Honor....

based on that question, I would object, Your Honor,

and due to the line of questioning about, about

what, on statements that he has already, that he

told a psychiatrist that are clearly....told to

that psychiatrist under the circumstances which

they were told in the Caddo Parish Jail, which they,

it is already in evidence, and I also ask that we

would be able to argue it outside the presence of

the Jury. I think that would be appropriate.

BY THE COURT: Take the Jury,

please.

JURY REMOVED FROM COURTROOM

-1697-

2145

BY MR. NESBITT: Yes, sir.

BY THE COURT: That is a doctor

that is appointed by the Court. Any physician appointed

by the Court to examine a person does not create a physician-

patient privilege.

BY MR. NESBITT: I would submit

if he wanted to asseit the Fifth, he shouldn't have gotten

on the stand.

RULING OF THE COURT

BY THE COURT: It is the Court's

opinion that he has waived the Fifth. The objection will

be overruled.”

BY MR. THOMAS: Thank you, Your

Honor, we would take an assignment with regard to that....

BY THE COURT: All right.

BY MR. THOMAS: On the grounds

that, although, he has waived it today, he can't waive

the privilege with regard to statements taken back in

1978, January. Thank you, sir.

BY THE COURT: Just to point

out where we are now. The question asked was: Did he

remember telling the Doctor such and such; as I recall

the statement....

BY MR. THOMAS: The form....

BY THE COURT: I mean, the

: Assignment of Error

2148

-1700-

question of the State. Bring in the Jury....

BY MR. THOMAS: Your Honor, the

form in which....I would have to incorporate in my argument

the fact that, as I recall the question, it was asked in

the manner, in effect, advising the Jury that he had told

Dr. Marceau that on that date: Do you remember giving, do

you remember his testimony? Do you remember....

BY THE COURT: ) re

BY MR. THOMAS: “When you talked

to him on that date?

BY THE COURT: I fully appreciate

the effect that it has on the Jury. It conveys that

intelligence to the Jury; certainly.

BY MR. THOMAS: Well, I think -

(Interrupted)

BY THE COURT: All right. All

right, sir. Bring the Jury AN. .ee

BY MR. THOMAS: I would submit,

Your Honor, that he can't use Dr. Marceau's name, I would

like to say that....did he ever tel) anybody that, but

referring to that particular report, of course, is extremely

prejudicial in the way he asked the question.

BY THE COURT: All right, sir.

You've made your objection and you have it in the record.

JURY RETURNED TO COURTROOM

BY THE COURT: All right.

Proceed, please, sir.

2149

-1701-

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2

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4

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16

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i |

CROSS EXAMINATION OF WAYNE ROBERT FELDE

(Continued)

BY MR. NESBITT:

Mr. Felde, do you remember telling Dr. Marceau that

you went to the bar and started drinking and got

pretty inebriated?

...eno, I don't....I repeat for you once more, Mr.

Nesbitt. The Sanity Commission was composed of the

coroner, the deputy coroner, and another State

employee, and when they come up to see me, they had

very little interest in what they really came up for

and so I was subject to tell them anything.

Do you recall telling Dr. Marceau that you vaguely

remembered pointing the gun at the police officer

and telling him to stop and let you out, and when

your instructions were not followed, the officer

started wrestling with you for the gun, the car

bit a guardrail and the gun went off?

No, I don't.

And you don't recall telling Dr. Marceau that you

were close to a garage or a small house and the

police told you to drop the gun, when you didn't

do that, they shot you because you weren't dropping

the gun?

No, I don't.

But you do recall telling him that your father was

an alcoholic and committed suicide when you were

thirteen?

No.

2150

co enteoeevec_eewernx -

17

2eeszsuensueepeessrses

You didn't....you don't recall?

I don't recall talking to the man that much, Mr.

Nesbitt. I honestly don't.

Do you think Dr. Marceau made that up?

I'm not saying he made it up. I might've been

listening in certain stages of his conversation

when he brought up maybe my father. I don't know,

Mr. Nesbitt....

.»+-@o you recall,...

....but I'm telling you, I had no faith in the man,

no trust in the man, and I still don't. And what

you got on that paper might be true and might not

be true, I just have no knowledge of it. I don't

remember telling him that.

Do you recall telling him that you started drinking

heavily and your mother took you to a psychiatric

facility but you did not cooperate and follow-

through, and you joined the service when you were

eighteen, stayed in for three years, you were in

Viet Nam for a year and, although, you had quite

a bit of problems in the service you got an honorable

discharge in 19707

No, I don't. But I can see what you're getting at,

what's your point, so you can go shead and read

the report, and then I'll] just answer at the end

of it.

BY MR. THOMAS: No objection if

he wants to read it, Your Honor.

BY MR. NESBITT:

Do you recall telling Dr. Marceau that you were

extremely intoxicated and you really didn't recall

2151

co eneoeweesewenr -

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*eexseseeseeesesr ssa

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what happened, couldn't control yourself, something

like that?

I recall talking to Dr. Marceau but I don't recall

what I told him.

Well, you talked to him in January of ‘79, just four

months after the incident.

That is close to two years ago, too, isn't it?

You did talk to him just four months after the

incident, though, didn't you?

Yes, sir, 1 guess I did.

And wouldn't your memory of what you recall from

that night be better then than now?

If he was interested in hearing, yes.

And when you wrote the letter that has been filed

in evidence to the attorney in Alexandria, you told

that person that you were "extremely intoxicated

at the time." Didn't you start off trying to con-

* wince everybody that you were so drunk you didn't

know what you were doing and that it was an

accidental shooting in the back of the car, there

was no intent, therefore, you can't be guilty of

murder?

Well, no, I don't think so, Mr. Nesbitt.

You don't think that was it?

No, I don't.

When did you first learn about your blood-alcohol

content?

When did I first learn?

Yes, sir.

I still don't understand it.

You don't understand that?

-1704-

2152

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3

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5

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system, we don't use it.

So, although, certain insurance companies and groups

like that may be going on to it now or requiring

people to use it and....

...-l don't think they....

...-with regard....

..s.required it because I think there has been a

delay in its official use.

Is it your testimony, then, at the time you examined

Wayne Felde, you didn't know anything about that,

this defect. Is that right?

Well, no, sir, I wasn't aware of that term.

You stated to Mr. Nesbitt that you had gone into the

details of the incident on October the 20th, 1978.

Did you go into any, you didn't go into any details

of what happened inside the police car, did you?

Well, I didn't ask him specific questions as far as:

‘Did he pull the trigger?’ and such as that, but I

did go into detail about what occurred at that

particular time.

Do you have any sort of & recollection of whether

or not he....was his memory, has a real good memory

about what happened?

There were things that he was vague about.

You haven't had any experience in working with Viet

Nam veterans or anybody, really, who's...-

..eeI'd have to differ with you on that; I have....

No, wait. Wait. I'm not, let m....

PS) ere

«++-let me....

+++-Oh, Okay.

-1727-

2175

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It would be better but I don't think the material

would be that different because Mr. Felde was

very cooperative and attentive and gave basically

factual data that was validated at a later date.

That was validated?

Well, in checking other, other material, yes, sir.

What other material?

From....the past history.

What past history?

_...the Pre-Sentence and Probation Investigation....

~» + -What....

...when he was in Maryland.

Oh, you mean....

oo ee JUBt.ues

....0h, you mean further back?

Yeah, just checking, yes, sir.

Where did you get that material to check it, to

check....

_...from the District Attorney's Office.

From who?

District Attorney's Office.

Oh. Do you know if the other two psychiatrists in

the case, I mean, do you know if Dr. Braswell and

Dr. Marceau were furnished with those documents,

too?

I was not furnished. I went up to the office and

reviewed them; and I don't know the actions of the

other psychiatrists.

You went to the DA's office and reviewed them?

Yes, sir.

Did you contact the District Attorney to get any

-1731-

2179

co en @cewetewewens* -

o> © >» &© > & >

information from him?

Yes, sir, if I'm going to give....

..eel mean, the defense attorney?

The defense attorney?

Right.

No, sir.

You didn't contact the defense attorney?

No, sir.

Is there any way for you to determine whether or not

a witness is reacting to you in an usual manner, in

their normal usual manner?

Now, when you say ‘normal usual manner’....

Do you know if they are acting normally when you

talk to them or not?

No, every person has their own idiosyncrasies and

their own mode of behavior so comparing his or her

behavior at a particular moment, compared to the,

at another time, I have no basis for it.

A person who has been incarcerated or in custody

nnd undergoing treatment for severe wounds, under-

going perhaps mental and physical harassment, that

would cause stress, wouldn't it?

That is stress, yes, sir.

Those conditions would have created stresses that,

of that nature, stresses of that nature which might

ordinarily not have been present and could, in

fact, have caused him to answer your questions in

a manner in which he might riot have answered them

if he'd been in a less hostile environment in the

Caddo Parish Jail, don't you think?

That' possible, but then that would have more

-1732-

2180

co eoneew#weseeaeenv -

7

~ Bisse

*eezeuseseeesss = se

validity if the interaction was negative rather than

positive. He was very attentive and cooperative.

With regard to the interaction, what if, what if

he had been held, his defense attorneys are not

coming to see him, assume his defense attorneys

do not come to see him, had very little time with

them, he has been subjected or directed to this

type of treatment and, all of a sudden, you come

in there, I mean, don't you think he would be....

you are not a deputy, don't you think he'd be

wanting to please or go out of his way to finally

hope that he had somebody who's interested in his

cause or his case?

Possible.

I mean, you are an outsider, coming in, supposedly,

unconnected with either side to examine him, isn't

that right?

Yes, sir, but also the degree of his cooperation....

was not in keeping with his feeling that his

defense would be insanity. He was very cooperative.

He did not try to present material in a biased way

in his favor.

What about somebody who thought that something was

seriously wrong with them or afraid of what might

be wrong with them, and who find it impossible to

discuss horrible experiences they might have had

with the people closest to them much less a

stranger, would that not be consistent with the

way he acted towards you?

I don't truly get the connection.

Well, how much did you, did you probe into his Viet

-1733-

2181

ceneeweasbens =

Veeszseseeessersvsaets

o > & >

Nam experience?

No, sir, I didn't go into his, into a specific....

because many people like to forget things, and I

not only didn't do it with Mr. Felde but I don't

do it with any individual whom I talk to. I give

them an opportunity to tell me what they want to.

Have you experienced the phenomenon where people

who suffer from a memory loss or selective recall,

or whatever you want to call it, spotty memory,

memory impairment, grope and try to remember, try

to remember and want to remember what happened....

-«+-Well, quite....

..«.4in a period which is blank in their mind?

Quite often.

And are they not more likely to be influenced by

external stimuli, so to speuk, as if, and those

facts which might be suggested to them as to what

might have happened, or facts that they might read

in the newspaper as to what was supposed to have

happened during that period, wouldn't that be

extremely likely to have some affect upon what

they think they might remember?

Well, it would be difficult for him to separate

what he read and what he was told and what he

actually remembered.

And so a person,who has had that sort of an

experience, may really not even know if what he

is saying has any connection, whatsoever, with his

independent recollection. Is that correct? It

could be a scenario which is based purely on data

which he, has been suggested to him, told to him

~1734-—

2182

|

1 as you probably think that I did get from him.

2 Oh, I've got, I really have no idea.

4 A Well, it's just what he recalled and so,at that

4 particular time, it was no attempt at fabrication

5 in completing the story. In other words....

6 «++ NOW....

7 .+.. there was....

8 Q ....how can you say, can you say that, positively?

9 I mean, when you say there's no fabrication or....

10 A ----well, in....

11 Q ....why do you say, why do you use the word

12 ‘fabrication’....

13 A -++-Well....

14 Q ....instead of, I mean, I'm trying to get exactly

15 the way you were looking at him when you examined

% him. You said there was no fabrication. Now, if

17 he related something to you that he might have read

or been told and it had affected what he thought

he remembered, why would you say he was fabricating

it?

A Well, maybe this will help you to understand. What

he related to me, there were gaps and he made no

| attempt,at the time he related these facts to me,

to fill in the gaps.

But that would also be consistent with somebody who

might have been hearing piecemeal accounts, either

from people who were guarding him in the hospital

or from accounts furnished to the newspaper by

the police, isn't that correct?

A Well, I don't know whether it is correct or not,

but I can't disagree with you.

2st

~1736-

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The personal interaction between a person who was

examining someone, psychologist or a psychiatrist,

the personal interaction between his patient and

himself, that will affect the results. Is that

correct?

Yeah, that is what we refer to as rapport....

.+.-uh-huh.

. «+. R-A-P-P-O-R-T.

And with regard to rapport, at the time you examined

him, how did you observe his physical condition to

be and....he was in good shape? |

No, sir, he was in terrible shape.

What about pain? Did he mention pain to you?

He was in pain. Yes, sir.

And what steps did you take with regard to him being

in pain?

In what regard?

What did you try to do for him?

Well, I, I am not involved in the treating process....

~++eI'm not that....

..«-I asked....

....familiar with it, but I thought that all doctors,

all medical doctors took some sort of an oath where

they, you know, if people were hurting or something,

they try to do something about it.

Well, there're situations were....our hands are tied

and we are not permitted to do this.

Did you go out and maybe even, you know, walk the....-

...eI asked him if he had been receiving his

medicine for pain.

And he said, yes?

-1737-

2185

coon @ fw & ON =

17

Veeseszseueepeses t= ssa

pushed down, it was discovered pushed down when the

police were conducting their manhunt?

No, sir.

With regard to the non-completion of the MMPI.

MMPI's have a lie factor, do they not?

Yes, sir.

So if....there were MMPI results....would a lie

factor perhaps be affected by stress or anything

like that?

Well, the stressor....attempt to cover up but,

in Mr. Felde's case, the lie scan was quite low,

very low.

And with regard to the non-completion of the MMPI,

what would that indicate to you? Would that mean

that he is mistrustful or has no recollection or

is confused or what?

Some of that, and another factor is ambivalence....

the....

~++.'ambivalence.' Now, before you go further. Now,

that's a word that has been used with regard to

some psychiatric testimony which was given in 1973,

I believe, which is in evidence....

BY MR. THOMAS: Let me....

could I see Dr. Olivos' transcript?

BY MR. NESBITT: Could we ask

the Doctor now to be able to complete the answer

and then we came come back to the....

BY MR. THOMAS: I am going to

ask the question....

BY THE COURT: Had you

completed your answer?

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17

BY MR.

BY MR.

BY Mk.

Well, no, sir....

THOMAS :

Well, go ahead and complete it....

Well....

BY THE COURT: Complete it,

then, please.

Okay, sir. Ambivalence....and the things that you

mentioned, also the fact that it will, he didn't

really....care to complete it because of the possible

results of it might being used against him.

THOMAS ;

Well, you said he trusted you; didn't he?

I said these are possibilities for an individual

not completing.

BY THE COURT: Would you mind

defining the term ‘ambivalence'?

Well, it's the....dual feeling of....the best way

to explain it is love-hate....a need-fear. The

young man who loves and respects his father but....

at the same time, would like to punch him in the

face because his father said, no, he couldn't use

the car to go out on a date.

THOMAS:

Read you asentence here, it says....from Dr. Olivos’

transcript....excerpt of the testimony given on

June lith, 1973, in Maryland:

‘During the interview that he had with

me, he appears to be kind of

stunned. He actually was in,

sort of like....his memory was

so spotty that he had this'

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~~

wrote a story about what he said.

The defense called vr. Marceau.

Stipulated he was an expert medical doctor, specializing

in the field of psychiatry. A doctor, who, in fact,

taught the Defendant's sole psychiatric expert and trained

him in this field of specialty. A man who has taught at

Baylor Medical School and lectured at many medical schools

and psychiatric schools in the country, who has wartime

experience to reflect on, director of mental] health centers

in Shreveport, in Lafayette, a practicing psychiatrist, a

teacher in the LSU Medical School system.

He examined the Defendant on January

3l1st, 1979, approximately four months after the incident,

and we submit approximately four months after the incident,

because it is before the Defendant learned of the possi-

bility of asserting a delayed stress defense. Dr. Marceau

examined the Defendant, discussed the fact that the

Defendant had been to Viet Nam, discussed the Defendant's

drinking problems, the Defendant indicated extreme

intoxication, and, thus, under some circumstances, not

responsible for h‘s actions, gave certain details of the

offense that are not consistent with an alcohol blackout

or consistent with a psychotic break or a break from

reality, claimed he did not know for sure what he

remembered as opposed to what he was told; but told him

some things that only the persons in that car would be

aware of, like, ‘Pull the car over, I have a gun.’ The

2°50

-1802-

If he wanted to commit suicide, he had

to have had the intent to do so. If he had the intent to

do so, he had to inherently know right from wrong and know

what he was doing when he tried to do it. That is incon-

sistent with having a break from reality, thinking he is

in war in Viet Nam. Totally inconsistent.

And either the doctor made it up or

someone made it up and it does not fit in any way as an

incriminating piece of evidence in this case fhat he pulled

the gun and told the policeman to pull over, back in

January of 1979, when Dr. Marceau spoke with the Defendant.

It doesn't fit in any way at that time as incriminating

evidence. In fact, it would have been more incriminating

for somebody to tell him he pulled the gun and started

executing the policeman. But, see, the truth is, obviously,

the Defendant told Dr. Marceau what he recalled at the

time, four months after the incident.

Four hulls at the scene. Four reloads.

One live in the chamber. Forty-one bullets in the box.

They would have you believe that within minutes the police

removed from the car, went to the scene where the Defendant

was and figured out that,somehow, twenty-two months in

advance, we can reload the gun and cock it and it is going

to have some bearing on the case. I submit to you that

is completely preposterous.

Does this look like a foxhole or a

cave, or does that look like the ride back to the penitentiary?

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