# Appendix — WAYNE R. FELDE v. LOUISIANA (No. 82-6412) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1391%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 ## Text RE ee 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 LOUISIANA SUPREME COURT OPINION ... 2-2 ee ee eee eee eeeene LOUISIANA SUPREME COURT DENIAL OF REHEARING .....+++++6> DSM-Ill, SECTION 309.81 2: 2 £8 Oe 8:3 66.6 O°... 8 6: 2 2 2°93 C-S Se = i 1 Be me PORTIONS OF RECORD RELIED UPON... eee eee eee eee eenene 0 4n 8 > 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. shs ui i 3 +3 tl viii Hib} : i Te Ht i, uf ii HH iH i : rH ili ahi 2 a Hi Hh i Ce Nid! HARE EH aE Hie ait iil! Ht ee} eee i : , i: Fig Fuel a ih el tli ane | ‘it vy ela ee ae Hen atin antl iy iy Hitt ait HP & {2 Is tpt 3 TE d HATE Hue 3 HITE 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, . ~ Ppa PEE! TTT eee Hee Te 2 Rdg ih AE BAe Beier Raila i He iia UL eT UH li peajfa i woe estat ly Nil ik | : in Hgts AU RA Sr La Ee Hea Hedin Wael | ‘ nal | Bh pk iz Ht eee er hie 3$33993%23 aan ‘li? Hit ) 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- H 143 i [i f | if ‘ 4 4 i | | 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 cpereesge lines z : i z Ff 2 z : ey | 2 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 ut Le i F i 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 E t | 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 " ue i RE a* . gee 8Se= ; i } 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, Ep : i Ff il F : “f] i i ! 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 ’ ! 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.” : ris! #32 & J i z i fs ‘ Hi lif : : ; i iH vel ti! | i : 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 2 d i : g E arith . 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: z . i 8 3 | | f | i; tlt i is i 422 SOUTHERN REPORTER, 24 SERIES 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 ? thank ain 3 z AI Hi if nie i / : Hi i + j Ht i33 ite k if u; ; STATE v. FELDE La. 385 (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 2 eh 21s. ate fu h viet et ae gun EU ri Han a jh if HE ise isle st hill hate ile ey Ue HH te Ga ia 5 iT ees eet ae a ph rntet it abt a tly anit ribs Lt bit HLT i atta til if i Ha § + zt E fix . . : iia i: rae 7 ite Hi badsetlih : be Hel! eld, .3 sirens on top on a four lane highway in 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. . . . . . o “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. 5% fs i ite 4 zi -§ LF rE ay set j Zs ris $ F] i 7 j EF 3 F ad 32 if 23/ jul CITE STATE v. FELDE 5 8 Cho an, La, 422 $0.26 370 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- § x : ef ef iH f J i 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: Fj f tr t i : Z i F i E “The sua sponte judicia) decision to de- clare a lengthy court recess following the defense closing eEFEEG pe lea ej! THE FEE Bl ch fh iff is gf I iu fs : : ut EEE E i 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. mE Hr ist ee |e 4 fp : f23¢ Bax pe pibeedl Hit é 35525343 Cea i Ae ea 7 pitas +E eats it iE ial ae i HE aii ait uae! | hee i iltne ial feline Gis Hs if ad ene | eta all Bani HTH MUTE sn3é Halt: Ha Hii 3. OPS S 85222 GRLG See = EtEyestt ne cet a ie Hit satu tt sili hau sp tice, ADH HE iit aH i [i ta’ dil som ibility teks He doe a rr RE Ae Ha { ! ny HG en ed iit iuay ‘af. i344 gi af Es ae ma at He Hae 3 Hiryips Heb wig leiidds vide! grini Bets es HEH eee I his et +i sands HULL HE | EAT alibi nie ill iy deaiz ti de la ATE Ae in; platen radi ih Fa Li ! HUE =o ay jiciey ay 4 ie ih : i] HE Meer ll: , “alt s241th litt Hy Hi rea fer ee su } SD Ea iall | iti it j ith i (i uff HTH a ut eh fe i Ht tee ai lay Hi HH HEE pata tiflepeelst hie Hie itl! i 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 EEE Hi it fata ds STATE v. FELDE lea 397 Che an, La. 2? Sate Fe [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 ages ui i i 5 a it | il pile rh ' Ti (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 F E i F z f fits Fei ¥ THe | i ig a ti li i! i H | a | iit: blu til fa int iti i rat Hil HE tl HIME i i faa i i ON REHEARING : 1, 3 1 HH ks 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 tr ! A Q " 2 & 13 14 iT w] 4 7} & wi A wi 8 20 a A 2 23 u A 25 2% 1] 2 8 2 20 A 31 SBeweeweneiew#weszaAwees - > 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 1 2 3] @ aia 5 6} @ 7 a 9} A 10 iN 12 13 4 13} @ 16 17 18 wi A 20 a | @ 2 mai A uj Q as) A % | 9 a 28 2 8 20 Pe 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: 11 @Q 2A 3 @ aja 5} Q 6 A 7 Q 8 9] A 10 1 @ 12 13) A 4] Q 5 | A 15 || Q 7, A 18 || Q wi A 20 | Q 21 2) A 23 24 25 26 7a 28 29 30 31} © ....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- 1 2 3 4 5 6 Q 7 8 9 A 10 iv 12 13 14 15 | Q 16 7 18 19 20 21 A 22 23 24 a 2% 7) A 2 2 20 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 - eo 7 o > & > *eexseseeseeesesr ssa oa > & > 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 1 2 w 3 4 5 6 7 A 8 9 7 10 i 12 13 > 14 15 16 7 A VegysesseRpessrssea F) 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 ecoenreiewesenF}ewes 12 13 14 15 %6 17 18 19 A 20 Q 21 A 2] & 23 rz] 25 26 A 7 2 24 8 30 A Oe a 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- co en ews#s#eseev- 1% exe ysexseepeses tresses ———— o > © > oa > & > oa» & >} & * 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? -1765- 2213 colUCcemlCU NMChCUCUCcCOhUCUrrOrhUCUCcOhlmUC UC NCU 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' -1766- 2211 ~~ 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? ~-1896- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1391%3A2. Public record. Not legal advice.