[33] DOMENGEAUX, Judge, concurring in part and dissenting in part.

I concur with the majority's treatment of Assignment of Error No. 1, wherein the State alleges that a contradictory hearing was not held as required by Louisiana Code of Criminal Procedure Article 852. I agree that this assignment is without merit. Beyond that however, I respectfully suggest that the majority opinion is grievously erroneous.

In Assignments of Error Nos. 2 and 3, the State contends that the trial judge committed error of law by applying an incorrect standard of review in deciding whether to grant defendant's motion for a new trial. More specifically, the State argues that the trial court did not view the evidence in the light most favorable to the prosecution under the standard mandated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State also contends the trial judge committed error of law by determining the defendant's sanity at the time of the offense contrary to the jury verdict.

Defendant's motion was based on the grounds that the verdict was contrary to the law and the evidence and that the ends of justice would be served by the granting of a new trial. La.C.Cr.P. Art. 851(1) and (5). Under Article 851(1), it is the duty of the trial judge to determine if the evidence is sufficient to support the verdict. State v. Daspit, 167 La. 53, 118 So. 690 (1928); State v. Rollins, 351 So.2d 470 (La. 1977). The Jackson standard is applicable in a motion for a new trial based on the grounds that there is insufficient evidence to support the conviction. State v. Brown, 421 So.2d 854, 858 (La. 1982); White v. Estelle, 669 F.2d 973 (5th Cir. 1982). As set forth in White v. Estelle:

"The Jackson standard accommodates both the constitutionally compelled burden of proof under state law (proof beyond a reasonable doubt) and the presumption of correctness due jury verdicts generally."

At 976.

Following the rationale of White v. Estelle, I find that the judge's ruling is subject to review. Under La.C.Cr.P. Art. 851(5), the trial judge has plenary authority to order a new trial to do justice, even when the motion is not based on a strictly legal ground. State v. Toomer, 395 So.2d 1320 (La. 1981). The ruling on a motion for a new trial is committed to the sound discretion of the trial judge. The ruling will be disturbed on appeal only when there is a clear showing of abuse of this discretion. State v. Fuller, 414 So.2d 306 (La. 1982).

It is noted that when a motion for new trial is based on the supposition that the ends of justice will be better served by granting it, unless an injustice has been done to the defendant and shown to have been the case, that motion will be denied no matter what allegations it is grounded on. Such a motion is not favored by law. State v. Vinet, 352 So.2d 684 (La. 1977). Further, in situations in which discretion is inappropriate, an incorrect decision is not entitled to deference (which is usually accorded to the trial court's reasonable decision in a situation calling for discretion when resolving a new trial motion). State v. Talbot, 408 So.2d 861 (La. 1981).

Although there exists a line of jurisprudence which holds that a trial judge's ruling which grants a motion for a new trial based upon La.C.Cr.P. Art. 851(5) presents nothing for appellate review, these cases were decided before the standard of review announced in Jackson v. Virginia became applicable. See State v. Matthews, 354 So.2d 552 (La. 1978). Accordingly, the standard must be one appropriate to a Jackson-type review, i.e. a second-tier review. In applying the Jackson standard, I find that the trial judge committed error in granting the motion for a new trial under La.C.Cr.P. Art. 851.

The trial judge stated in granting defendant's motion for a new trial that ". . . the lay testimony and the expert testimony leave this court to believe that Chapman was legally insane within the meaning of Louisiana law and the court further believes that no rational trier of fact could conclude otherwise. To avoid injustice, this Court will grant defendant's motion." In an attempt to paraphrase the standard of review announced in Jackson v. Virginia, the trial judge omitted one crucial factor of the test, i.e., all the evidence must be considered in the light most favorable to the State. Also, the trial judge speculated upon the reasoning process he thought the jury used to reach its decision. Further, the trial judge gratuitously stated that the jury verdict was wrong generally because it was influenced by the public disfavor of the insanity defense, and particularly because it was a reaction to the attempted assassination of President Reagan and the shooting death of singer John Lennon. The trial judge is not permitted to make a subjective determination of defendant's guilt or innocence, nor is it within the province of the trial judge to scrutinize the reasoning process which the jury engaged in to make its determination. The trial judge was required to consider the sufficiency of the evidence upon defendant's motion in the light most favorable to the prosecution.

At trial, several members of defendant's family testified. The testimony concerned past episodes relating to defendant, defendant's childhood behavior and recent behavior, defendant's employment history, and the series of events which culminated in the shooting death of the Reverend Bowman.

Rev. John C. Hair, defendant's pastor, testified at trial. He and his wife had visited defendant pending trial at defendant's request. Defendant disclosed to Rev. and Mrs. Hair that he knew it was wrong to kill Reverend Bowman and that he wanted to tell the truth, but he was afraid that this would result in his being sent to Angola.

John Hamilton, defendant's closest friend, testified at trial that on the day of the murder, defendant attempted to engage his help in the commission of the crime. Defendant asked to use Hamilton's gun and also wanted Hamilton to act as a lookout. When Hamilton refused, defendant stated: "If you ain't gonna help me, I done said too much."

Rev. Albert Lyle, another Pentecostal minister, stated that immediately after Reverend Bowman was shot, when defendant was asked the reason for the incident, defendant's only reply was: "I want my lawyer."

Of the family members, only defendant's mother gave testimony which indicated that defendant might have experienced difficulty in coping with everyday problems. Mrs. Chapman testified that defendant was fearful, dependent, and withdrawn. She also stated that defendant once told her he had no reason to live anymore. However, each of the other relatives and friends expressed the opinion that defendant outwardly did not seem disturbed or abnormal. The overall concensus reached by these witnesses was merely that defendant kept to himself, did not participate in family activities, and relinquished his religious practices.

The only expert witness to testify was Doctor Regan, who qualified as a psychiatrist specializing in forensic medicine. The doctor examined defendant on several occasions, totalling seven hours of psychiatric analysis. Doctor Regan also conducted "interviews" with defendant's parents in order to gather a complete medical history of defendant. The psychiatrist did not, however, obtain any information from anyone else associated with defendant. From this information, Doctor Regan concluded that defendant was suffering from chronic schizophrenia, paranoid type, which prevented defendant in distinguishing between right and wrong at the time of the offense under the elements of the M'Naughten test. On cross-examination by the State, Doctor Regan admitted that his determination might be incorrect. He also admitted that there existed the possibility that defendant lied about his delusions, faked psychosis, and that defendant actually knew at the time of the crime that his actions were "morally" wrong. Upon further questioning by the State, Doctor Regan also revealed that shortly after defendant shot the Reverend Bowman he appreciated the wrongness of his actions, so that his period of insanity, i.e. the inability to discern right from wrong, lasted for only several minutes (from the time defendant crossed the street to the revival tent until he fired the gun).

The jury had the opportunity to hear and consider all the evidence presented. In this case, the jury exercised its function by drawing conclusions from the evidence, granting credence to certain testimony, and then determining the defendant's guilt, implicitly finding the defendant sane, i.e., defendant knew that his actions were wrong when he shot Reverend Bowman. From this verdict, it is apparent that the jury was not persuaded by the lay or expert testimony rendered on behalf of the defendant to establish his insanity plea. It is also clear that the jury was convinced beyond a reasonable doubt that defendant was fully aware that it was wrong to shoot Reverend Bowman.

In reviewing the record, I find that the jury believed that the State produced sufficient evidence to prove guilt beyond a reasonable doubt; and that the jury found that the defendant failed to sustain the burden of proving insanity at the time of the homicide; so that the jury, acting as a rational trier of fact and viewing the evidence in the light most favorable to the State, could have found the essential elements proved beyond a reasonable doubt. The cogency of the jury's findings and the conclusive weight given to it is set forth by the Louisiana Supreme Court in State v. Abercrombie, 375 So.2d 1170 (La. 1979):

"Applying this test, we have little difficulty in finding that the evidence overwhelmingly supports a determination that, due to the accused's severe paranoid schizophrenia, he was irresistibly compelled to accept the perceived direction of the higher beings who he felt controlled him by reason of which he did not know that it was morally wrong to kill the victim.

On the other hand, the expert evidence also admitted that the accused knew it was 'humanly wrong,' being illegal, to kill another human being.

The difficulty is that the M'Naughten test of legal insanity, i.e., being capable of distinguishing between right and wrong with regard to the conduct in question, is not in origin or application a medical or scientific concept. The testimony and opinion of medical experts are almost essential for determining whether a mental disease or defect affected the defendant's conduct, and they also have weight in the decision whether because of this mental condition (as required) the accused could not distinguish between 'right' and 'wrong'.

However, in the last analysis, it is rather a question of law than of medicine as to what the cognizable 'wrong' is; a legal rather than a medical question is presented by the issue of whether an accused is legally insane who knows it is legally wrong to kill another human being, but who does not know it is morally wrong (being under a delusion or compulsion produced by severe mental disease). Indeed, the predominant practice in American jurisdictions seems without discussion to leave it to the factual determination of the trial jury to determine whether the defendant was capable of knowing right from 'wrong' with regard to the conduct complained of, without specifying as a matter of law whether the defendant must know it to be 'morally' or instead 'legally' wrong. LaFave and Scott, Criminal Law 278-279 (1972). The jury is thus free to exculpate for legal insanity on either basis, providing that the inability to know is a product of a mental disease or defect." (Emphasis added). At 1178.

In the instant case, the jury evaluated all the evidence at trial and determined that the evidence supported a verdict of second degree murder. While the trial judge has great discretion under the power accorded to him by La.C.Cr.P. Art. 851(1), I feel that there has been an abuse of that discretion. The trial judge interposed his opinion and supplanted the jury's verdict even though there was sufficient evidence to convict defendant. The unanimous vote returned by the jury found defendant sane and guilty as charged based upon testimony by those expert and lay witnesses presented at trial. State v. Poree, 386 So.2d 1331 (La. 1980). With reference to the jury's verdict, I think that the trial judge, in granting defendant's motion for a new trial, failed to consider all of the evidence in the light most favorable to the prosecution by relying almost exclusively on the psychiatrist's testimony, despite Doctor Regan's equivocation as to several critical aspects of the sanity issue. See State v. Abercrombie, at 1177.

Further, I conclude that the trial judge committed manifest error by finding defendant legally insane under Louisiana law. "When the defendant pleads 'not guilty and not guilty by reason of insanity' the court is prohibited from determining the defendant's sanity at the time of the offense; this question is reserved for the jury." The burden is on the defendant to prove his insanity, codified by La.C.Cr.P. Art. 652. State v. Link, 301 So.2d 339 (La. 1974); State v. Sonnier, 379 So.2d 1336 (La. 1979). The trial judge did not have the authority under La.C.Cr.P. 851(1) to usurp the factfinding power of the jury simply because, in his opinion, the defendant was insane.

"This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon 'jury' discretion only to the extent necessary to guarantee the fundamental protection of due process of law."

Jackson v. Virginia, at 319, 99 S.Ct., at 2789.

I determine that the jury's verdict in no way violated defendant's fundamental due process protection.

It is my opinion that the trial judge also abused his discretion by basing his ruling upon the rationale used by the jury to reach a verdict.

"The question whether the evidence is constitutionally sufficient is of course wholly unrelated to the question of how rationally the verdict was actually reached. Just as the standard announced today does not permit a court to make its own subjective determination of guilt or innocence, it does not require scrutiny of the reasoning process actually used by the factfinder — if known. * * *"

Jackson v. Virginia, at 319, n. 13, 99 S.Ct., at 2789, n. 13.

Because the abuse of discretion amounts to error of law, I would find it necessary to set aside the trial judge's ruling which granted defendant a new trial, State v. Credeur, 328 So.2d 59 (La. 1976), and order the verdict of the trial jury reinstated.

For the above and foregoing reasons, I respectfully dissent from the portion of the majority opinion which remands the case to the trial court for further proceedings.