State v. Franklin

506 So. 2d 503, 1987 La. LEXIS 9126

• Court: Supreme Court of Louisiana
• Decided: May 8, 1987
• Docket: No. 87-K-0303
• Status: Published

Opinion

PER CURIAM.

Granted in part and denied in part.

The application is denied insofar as it relates to the sufficiency of the evidence. However, relator alleges that the trial judge advised the prosecutor during a recess that he had neglected to present evidence of the value of the stolen goods and allowed the prosecutor to recall the victim to supply this evidence. Relator further alleges that the trial judge refused to have the bench conversation transcribed or to allow the defense to call the prosecutor’s assistant to the stand for the purpose of making a record of the advice from the judge.

These allegations, if proved, may constitute a serious due process violation. In the interest of justice, we order that the case be remanded to the trial court for a hearing before a different judge, at which relator may present any evidence of the alleged improper advice of the judge to the prosecutor. The new judge may take any appropriate action, and either side may seek review of the ruling to the court of appeal. On review, relator may also reurge his prescription argument (which the court of appeal, 498 So.2d 302, incorrectly refused to consider because of the lack of a formal assignment of error in the trial court).