STATE of Louisiana v. Rickey ALEXANDER
No. 58164
Supreme Court of Louisiana
November 8, 1976
339 So. 2d 818
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appellee.
CALOGERO, Justice.
Defendant Rickey Alexander was charged by grand jury indictment with aggravated rape in violation of
The incident from which this charge arose occurred on March 6, 1975, between 8:30 and 9:00 a.m. On the morning in question after having seen her children off to school and her husband off to work, the alleged victim went back to bed and was awakened by the doorbell. She got up, put on a rоbe and answered the door. A man standing at the door asked if her husband was home and when she responded in the negative, he asked her if she knew a George Patin. The woman stated that there was no one in the neighborhood by that name and proceeded to close the door. The man, however, put his hand on the door and pushed it open. Thе woman then began to scream and tried to get out the door, but he got her by the neck with both hands. Although she apparently kept fighting and trying to get away, he continued to grasp her by the neck so that she could hardly breathe and struck her in the face several times. While she kept fighting and trying to get away, he took her to the floor of the kitchen and had sexual intercourse with her. He then left and she saw him drive away in a 1970 gold car and picked up three of the numbers of the license plate. She called her husband, the police subsequently arrived, and she was taken to the coroner‘s office for examination at about 10:30 a.m. The coroner testified that she was bruised, that her jaw was swollen and that the results of the genital examination were positive for presence of spermatozoa. An investigation by the police led to defendant‘s arrest the following day. A tape recording of a confession made by defendant was played to the jury, after having been found admissible. Defendant took the stand, however, and testified that he only made the statement because he was promised to be out by Monday if he did so. He stated that he had been having an affair with the victim, that on the morning in question he had gone to her house to call it off, that she had cursed at him and slapped him in the face, and that because of this he did hit her and put his hands around her neck.
ASSIGNMENTS OF ERROR NOS. 1, 4, and 6.
By assignment of error number one, defendant аrgues that the trial court should
These assignments of error are consolidated for argument as they all relate to a purported insufficiency of evidence introduced at trial. At the outset it should be noted that assignmеnt of error number one is not argued in brief but is being discussed because defendant was convicted of a capital offense. That assignment is apparently based on the denial of a motion for a new trial, the grounds urged being that the verdict was contrary to the law and the evidence. The motion for a new trial, however, does not raise this issue but rathеr sets forth grounds which are the subject of assignments of error numbers five and seven, discussed infra. With these factors in mind, the specific assignments will be discussed more fully.
In criminal matters, the scope of this Court‘s appellate jurisdiction extends only to questions of law.
Defendant was charged with the offense of aggravated rape. Rape is defined in
“Rape is the act of sexual interсourse with a female person not the wife of, or judicially separated from bed and board from, the offender, committed without her lawful consent. Emission is not necessary; and any sexual penetration, however slight, is sufficient to complete the crime.”
Aggravated rape is defined at
“Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
(1) Where the female resists the act to the utmost, but her resistance is overcome by force.
(2) Where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) Where she is under the age of twelve years. Lack of knowledge of the female‘s age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by death.”
In the instant case there was at least some evidence that defendant had sexual intercourse with the victim, who was not his wife, without her consent. With respeсt to the aggravated nature of the rape, there was at least some evidence that the victim resisted the act to the utmost but that her resistance was overcome by force. The victim testified that throughout the episode she continued to fight defendant, pushing on him and trying to get away. In apparent reaction to this resistance, defendant had to grasp her by the neck leaving bruise marks. He also struck her in the face at least once, more likely several times, leaving her jaw swollen.
It is submitted that these assignments of error lack merit.
ASSIGNMENTS OF ERROR NOS. 2 AND 3.
By assignment of error number two, defendant argues that the recording of “some” statements made by defendant should not have been admitted into evidence because they were incomplete. By assignment of error number three, defendant argues that the confession itself was improperly admitted in that prior to giving the statement defendant did not affirmatively and positively indicate that he understood his rights.
Defendant was arrested on March 7, 1975, the day following the alleged rape, in Breaux Bridge, Louisiana by an officer with the Breaux Bridge City Police. Almost immediately thereafter he was taken into custody by Detective Guy Barnett and Roland Boutte of the Lafayette Police Department and placed in their police unit to be transported back to Lafayette. Once in the police car, the officers gave defendant his rights orally. The rights were again given defendant when they arrived at their office. On this lattеr occasion he signed a waiver of rights form and gave a statement, in question and answer form, confessing to the rape. The giving of the rights in the police unit and some questioning of defendant during the ride back to Lafayette were tape recorded, as were the regiving of the rights and the confession taken at the office.
Defendant contends that he did not adequately acknowledge his understanding of his rights prior to giving the statement. The tape recording taken during the ride from Breaux Bridge indicates that defendant was adequately informed of his rights. When told of his right to counsel, he indicated he did not understand. Following a re-explanation, he stated, “Oh, I understand.” The tape recorded at the office cоntains another reading of defendant‘s Miranda rights and a response by him that he understood. One of the officers then read defendant a waiver of rights form and asked him “You wish to waive your rights which I just read to you, and give a statement now? Okay, would you sign this form right here.” While a verbal affirmative response by defendant does not appear on the tape, both dеtectives testified that defendant nodded affirmatively. In addition, defendant did sign the form.
Under the test set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the state has a heavy burden to prove that a waiver of rights did indeed take place. See also
With respect to recording of the statements, defendant contends that not all of his statement was taped. The facts as testified to by the police officers were that during the ride to Lafayette, after giving defendant his rights they questioned him as to his aсtivities the preceding day; that among other apparently irrelevant admissions defendant told them about getting his car inspected and purchasing new tires on the previous day; that since defendant was not making admissions relevant to the offense for which he was arrested they turned the recorder off and did not question him further until they reached the office, but did tell him that they had finger prints found at the scene and that he would be fingerprinted for comparison; and that defendant was basically silent after that. When defendant was interviewed at the station, he signed a waiver of rights form and did give a confession at that time.
Defendant states that all of what he said in the police car was not on the recording played in the courtroom, that in addition he had told them that he was having an affair with the alleged victim and that on the previous day he had gone to visit the victim in order to break off their relations. He also stated that he was told to confess, as he did, in return for a promise to be let off in several days. In rebuttal testimony, one of the officers affirmatively dеnied that defendant had tried to tell them anything about an affair with the victim.
“Every confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford.”
While it does appear that the tape recording was turned off during the latter part of the ride from Breaux Bridge to Lafayette, the entire tape recording was played before the jury, the first portion thereof having been played only after a request by defense counsel. In addition, the officers testified as to what was said during the remainder of the ride and rebutted defеndant‘s statement that he had indicated he had had an affair with the victim. Under these facts, there was compliance with the requirements of
These assignments of error lack merit.
ASSIGNMENT OF ERROR NO. 5.
Defendant contends that the trial court erred in denying his motion for a mistrial on the grounds that at the close of the first day of trial, the men and women jurors were permitted to sleep in separate rooms.
“[I]n caрital cases, after each juror is sworn he shall be sequestered.”
and that
“[A] jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.”
The article does not require the jury be kept continually in one single group, but rather that they be sequestered so as to be secluded from outsidе communication. See State v. Cuchinelli, 261 La. 789, 261 So.2d 217 (1972); State v. Groves, 311 So.2d 230 (La.1975). The record reflects in the instant case that the male and the female jurors were permitted to sleep in separate rooms in the courthouse for the night and that each room was under the supervision of a bailiff. We find that the law was substantially complied with. Accordingly the assignment is without merit.
By assignment of error number seven, defendant argues that reversible error occurred when during closing argument the district attorney commented to the jury on the defense counsel‘s failure to make an opening statement.
The thrust of a portion of the prosecuting attorney‘s argument was that while the state had given an opening statement outlining the facts it intended to prove, defеndant had not done so; that defendant‘s testimony concerning the affair with the victim was less believable because the commitment to such course of defense was delayed until after defendant had opportunity to assess the quality of the state‘s evidence. The prosecutor thus commented several times upon failure of the defense counsel to make an opening statement.
The law, while requiring an opening statement from the state (See
We find it unnecessary in this case to resolve the legal question in light of the procedural position in which the matter is presented.
Only once to the prosecutor‘s several references did defendant object and on that occasion he moved for a mistrial (to which he might not have been entitled even if his claim is meritorious—see
There is no merit to assignment number seven.
We note that defendant‘s commission of the crime of aggravated rape, his conviction, and his sentence to death all occurred during the year 1975. The then prevalent aggravated rape statute,
DENNIS, J., concurs.
SUMMERS, J., I concur with the holding on conviction and dissent from penalty for the reasоns in the dissent I filed in State v. Lee, La., 340 So.2d 180.