Opinion
NO. 2013-CA-1198
03-01-2014
STATE OF LOUISIANA IN THE INTEREST OF A.W.
, J., DISSENTS WITH REASONS
I respectfully dissent from the majority opinion, which upheld A.W.'s adjudication. In particular, I disagree with the majority's conclusion that the State met its burden of proving beyond a reasonable doubt that A.W. did not act in self-defense (assuming that the State had the burden).
While it is clear that the State bears the burden of negating the claim of self-defense or justification beyond a reasonable doubt in a homicide case, the burden in a non-homicide case is unsettled. See State v. Freeman, 427 So.2d 1161, 1163 (La. 1983); State v. Jefferson, 04-1960, pp. 9-10 (La. App. 4 Cir. 12/21/05), 922 So.2d 577, 587; and State v. Cooks, 11-342, pp. 11-12, (La. App. 4 Cir. 12/14/11), 81 So.3d 932, 939-940. It is unclear whether that burden is: 1) upon the defendant to establish by a preponderance of the evidence that he acted in self-defense; or (2) upon the State to establish beyond a reasonable doubt that the defendant did not act in self-defense. This court discussed this very issue in State v. Fluker, 618 So.2d 459 (La. App. 4 Cir. 1993), stating:
Under our Louisiana Constitution, every defendant is innocent until proven guilty. La. Const. Article I § 16 (1974). The State bears the burden of proving guilt beyond a reasonable doubt. Id. Except where expressly stated by the legislature, the state should bear the burden of proving every aspect of a criminal defendant's guilt.LSA R.S. 14:18, 14:19 and 14:20 specifically set forth the provisions under which a defense of justification applies. The justification statutes are silent as to the defendant bearing any burden of proof. Logically, if the State must disprove a defendant's assertion of innocence in a homicide case, the State shall also bear that burden in a non-homicide case. The lack of distinction between the statutes does not support the reasoning that in a non-homicide case the burden of proof is lessened to a preponderance of the evidence and shifts to the defendant.
In State v. Freeman, 427 So.2d 1161 (La. 1983), Justice Calogero acknowledged that there was no Louisiana jurisprudence distinguishing the burdens of persuasion applicable to self-defense in homicide and non-homicide cases. He further stated that it was a "narrow legal issue" that did not have to be resolved for the court to decide the Freeman case. Id. at 1163. Likewise, I do not believe the facts of this case warrant a determination of that "narrow legal issue" to reverse A.W.'s conviction, as the State failed to meet its burden.
The inquiry as to A.W.'s self-defense claim is whether pushing Mr. Foster was objectively reasonable and, subjectively, whether it was apparently necessary to prevent a forcible offense against the defendant. See La. R.S. 14:19(A); Fluker, 618 So.2d at 462. The undisputed facts reflect that during a heated verbal altercation, Mr. Foster swiftly rushed upon A.W., getting close to his face. In response, A.W. pushed Mr. Foster away. Mr. Foster then backed away and the encounter ended. Under these circumstances, Mr. Foster's actions represented a forcible offense against the defendant, an assault, by intentionally placing him in reasonable apprehension of receiving a battery. The push was objectively reasonable, and subjectively necessary to prevent a battery. Mr. Wells, the security officer and only independent witness to the altercation, testified that he could not prevent the encounter because Mr. Foster charged too quickly. Certainly, a child cannot be expected to endure an actual battery before defending himself, especially here, where the aggressor was an adult male much larger than the seventh grade pupil. Accordingly, I find that the State failed to negate A.W.'s self-defense claim beyond a reasonable doubt, while A.W. proved his claim by a preponderance of the evidence. For these reasons, I would reverse A.W.'s adjudication.
An assault is an attempt to commit a battery, or intentionally placing another in reasonable apprehension of receiving one. La. R.S. 14:36.