Roy Jones was employed as a deputy sheriff by Terrebonne Parish Sheriff Charlton Rozands for thirty-three months before the latter's death while in office in April of 1987. Following his tenure in office, Jones was convicted of two felonies, public payroll fraud, R.S. 14:138(1), and theft of over $500, R.S. 14:67.
The court of appeal affirmed both convictions, with one of the three judges dissenting regarding the public payroll fraud conviction. State v. Jones, 540 So.2d 1124 (La.App. 1st Cir.1989). We granted writs primarily to consider two questions central to defendant's assignments of error numbers one and two. Should the trial court have permitted testimony about what the now-deceased sheriff told defendant in delineating his duties and about use of the department's credit cards, and should the court have permitted a former Louisiana sheriff, qualified as an expert, to testify as to his opinion of the value of services of a deputy such as Jones? For the following reasons we find both assignments of error meritorious, reverse the convictions, and remand for a new trial.
Sixty-seven years old at the time, Jones was placed on the sheriff's payroll when Charlton Rozands assumed the office of sheriff on July 1, 1984.
Jones indeed had a special position with the sheriff's department. His pay was less than other deputies; he earned only $580 each four week period as opposed to full-time patrolmen who earned $855 base each four week period, plus state supplemental pay. Also his assignments were different; he worked directly under Sheriff Rozands rather than under any other supervisor or shift commander, he did not have regular hours or work in any specific division of
The state presented for its case in chief the testimony of twenty-seven witnesses, and on rebuttal an additional ten witnesses. These included various sheriff's office employees, a forensic document examiner, two employees of the office of motor vehicles, four persons whose license plate numbers matched those on some of Jones' charge tickets, the Gibson, Louisiana justice of the peace, the Gibson constable, and a captain for the Louisiana Department of Wildlife and Fisheries. The sheriff's department employees testified that Jones had been listed on the official roster as working in the motor pool and then the marine patrol, that he turned in few official complaints and offense reports, and that they were generally unaware of what duties Jones performed. They also testified that credit cards were only supposed to be used for official business but that as many as sixty-nine people in the department used office credit cards, and that Sheriff Rozands had no written rules regulating their use. The document examiner testified that Jones himself had signed most of the charge tickets, and other witnesses stated that they were unaware of Jones' patrolling the streets or waters in the Gibson area.
The defense presented sixteen witnesses: twelve residents of the Gibson area in addition to a former sheriff's office employee, a Houma businessman, the former sheriff of Assumption Parish, and Jones himself. The residents testified that they were well aware of Jones' role as deputy sheriff, that he often responded to their calls for assistance, that his response time was quicker than that of deputies called from Houma, that he was effective in solving some problems with which the other deputies would not become involved, and that he regularly patrolled the Gibson area in either his own vehicle or a sheriff's unit. Others testified that Jones' units had several times broken down and had to be towed, and that Jones had frequently been seen with Sheriff Rozands at Rozands' farm where the sheriff often conducted department business. Furthermore, Sheriff Murray Landry qualified as an expert in the field of law enforcement specializing in the operation and supervision of a rural sheriff's office. He attested to the valuable role that the local "resident" deputy played within a rural sheriff's department. According to Sheriff Landry the function of a local "resident" deputy was to operate informally within a particular community to avoid and settle disputes and problems rather than to make arrests and official complaints. He also testified that he had seen Jones in Rozands' company at official legislative functions in Baton Rouge.
ASSIGNMENTS OF ERROR
This brief discussion of the evidence suffices to place in perspective the two trial court rulings which are assigned as error. Jones raises as assignments of error the failure of the court to allow him to relate what Sheriff Rozands had told him concerning his duties and his use of credit cards, and the failure of the court to allow Sheriff Landry, Jones' expert witness, to testify as to the value of services of special deputies such as Jones. Jones argues that these exclusions were improper and that such rulings deprived him of his right under both federal and state constitutions to present a defense.
For both public payroll fraud and theft a relevant inquiry for the jury is the defendant's intent. This inquiry necessarily brings into consideration the defendant's state of mind because the charge of public payroll fraud proscribes knowingly receiving pay for services grossly inadequate for the pay received,
This court has adopted Professor McCormick's definition of hearsay:
State v. Martin, 356 So.2d 1370, 1373 (La. 1978) (quoting McCormick, Evidence § 246 (Cleary ed.1972)). Hearsay evidence is inadmissible
In the instant case Jones sought to offer the statements made to him by the out-of-court declarant, Sheriff Rozands, for the purpose of rebutting the state's contention that he knowingly received pay for grossly inadequate services and that he took property valued at more than $500 with felonious intent. For this purpose the testimony was not hearsay because it was arguably not offered as an assertion for the truth of the matter of Jones' job assignments, but rather as a nonassertive
In State v. Webb, 372 So.2d 1209 (La. 1979), we reversed a defendant's conviction for simple burglary after the trial court had refused his testimony relating statements made to him by a bystander that the building was to be demolished and that the owner did not object to fixtures being removed. We concluded that the testimony was being offered to prove the defendant's state of mind which he was justified in presenting, to show lack of criminal intent. Similarly, in State v. Shoemaker, 500 So.2d 385 (La.1987), we reversed a conviction for distribution of marijuana after the defendant was not allowed to testify as to statements made to him by an undercover officer which would bear on his defense of entrapment. We concluded that since these statements were offered not to show the truth of the matters asserted but to show the contents of the conversation, they should have been allowed. See also State v. Weiland, 505 So.2d 702 (La.1987); State v. Martin, 458 So.2d 454 (La.1984); State v. Roche, 341 So.2d 348 (La.1976); and Pugh, Louisiana Evidence Law 415 n. 8 (letter written to defendant admissible to show defendant's belief that he had authority to sell and that he did not act with criminal intent). Similarly, in the instant case, Jones' testimony regarding Sheriff Rozands' extrajudicial statements should have been admitted, perhaps with a limiting instruction to the jury. Jones' testimony reporting statements made to him by Sheriff Rozands concerning Jones' duties as a deputy and his use of credit cards was not hearsay, because it was not offered as an assertion to show the truth of the matters asserted therein, and the district court erred by excluding it.
Other testimony which the court disallowed was opinion testimony by Sheriff Landry regarding the value of services rendered by a "resident" deputy such as Jones. The defense asked: "Sheriff, do you think you're qualified to render an opinion on the worth, and merit, and value of certain services rendered by certain police officers?" Before Landry was able to respond, the district attorney objected. Thereafter, out of hearing of the jury, the parties debated the admissibility of Landry's opinion. The defense attorney stated that he planned to ask Sheriff Landry "his opinion on the value of certain services performed by certain officers," and that he also planned to ask explicitly whether or not Jones' services were grossly inadequate for the pay he received.
The trial judge refused to allow him to testify as to either the value of special deputy services or the adequacy of Jones' services, and the court of appeal did not distinguish between the two, ruling that
In State v. Wheeler, 416 So.2d 78, 81 (La.1982), this court recognized three variables to consider in deciding whether to admit expert testimony: 1) whether the evidence relates to matters well within the jury's understanding and is therefore not truly expert testimony; 2) whether the opinion is abstract and indirect; and 3) whether the opinion relates to an ultimate issue rather than a collateral matter. We noted that as testimony approaches the hub of an issue, the more constrained we should be to prefer concrete details over general inferences. Id. at 80 (citing McCormick on Evidence, § 12, p. 26 (1972)).
Weighing these variables in the instant case, we conclude that the expert testimony should have been admitted. First, Landry had qualified as an expert in rural law enforcement. His valuation of special deputy services was truly expert in nature in that it related to matters beyond the general understanding of the jury. Second, such testimony was neither abstract nor indirect. Landry could have assigned specific monetary value to the services of a special deputy through answers to hypothetical questions which would have aided the jury in making its ultimate decision on whether Jones' services were grossly inadequate, considering his pay. Finally, although Landry's testimony would have had bearing on the resolution of the ultimate issue, it would not necessarily have decided it. In other words Landry could have used his expertise to place a monetary value on hypothetical services without offering an opinion on the "adequacy," "inadequacy," or "gross inadequacy" in relation to pay, of Jones' services. So while Sheriff Landry's testimony would have approached the central issue at trial, the ultimate determination would have been left to the jury. If the state chooses to define a crime respecting pay and services in terms of "inadequacy," it must suffer having experts render opinions which bear on that issue in order to assist the jury in making its final decision. Therefore, the trial judge may have been correct in not allowing Sheriff Landry to offer his opinion on the adequacy of Jones' services because that was the ultimate issue, and it was properly left for the jury. However, the trial judge was surely wrong not to let Landry testify about the monetary value of special deputy services.
Defendant was constitutionally entitled to present a defense. He was entitled to relate what Sheriff Rozands told him about use of the credit cards. Furthermore, his best opportunity to have the jury acquit him of public payroll fraud was in his testifying concerning what Sheriff Rozands told him at the outset of employment concerning his job duties and use of credit cards, and his consequent state of mind as he went about performing those duties and using the credit cards. Denying him the opportunity to relate to the jury what the Sheriff told him concerning his duties and use of department credit cards, and barring expert testimony on the value of special deputy services, constituted prejudicial error such as warrants reversal of the conviction and the ordering of a new trial.
It is appropriate to address assignments of error which are likely to arise anew. One such is defendant's fourth assignment of error wherein he contends that R.S. 14:138(1) is unconstitutionally vague. This court addressed that issue in State v. Gisclair, 363 So.2d 696 (La.1978) and resolved it adversely to defendant's position. In Gisclair we considered the statutory language of R.S. 14:138(2) which defines as public payroll fraud a public officer's carrying the name of an employee on a public payroll with knowledge that the employee is receiving compensation "for services grossly inadequate for such payment or compensation." We determined that the statutory language offered a clear and definite
For these reasons the convictions and sentences are reversed, and the case is remanded to the district court for retrial.
REVERSED; REMANDED FOR NEW TRIAL.
DENNIS, J., concurs with reasons.