State v. DomangueState v. Domangue
Defendant Errol Anthony Domаngue was charged with an attempted aggravated rape. After trial by jury on September 20, 1976 defendant was found guilty of attempted simple rape, and later sentenced as a multiple offеnder to twenty years at hard labor. Defendant relies upon eight assignments of error for reversal of his conviction.
Assignments of Error Nos. 1 and 2
In Assignment of Error No. 1 defendant contends the trial judge erred in denying an oral motion for a continuance of a sanity hearing made on the ground that defensе counsel had received one of the examining physician‘s reports on the day of the hearing. In Assignment of Error No. 2 defendant argues that the trial court erred in not concluding that the examinаtions of the defendant by the sanity commission conducted in the presence of a police officer were improper and void.
Prior to conducting the sanity hearing the record rеveals some confusion concerning whether defendant continued in his desire to plead not guilty and not guilty by reason of insanity. However, the last entry in the record concerning this point (made just prior to voir dire) reveals that defendant abandoned the dual plea and desired to be tried on a plea of not guilty. Furthermore, absolutely no evidence was adduced by either the State or defense relative to the allegation that defendant was legally insane at the time of the commission of the offense. In Assignment of Error No. 1 defendant argues that the continuance was needed because his attorneys had received one doctor‘s report prior to the date set for the sanity hearing but had only received the supplement to that repоrt on the day of the hearing. The supplement dealt with the physician‘s opinion concerning the defendant‘s sanity at the time of the commission of the offense. Likewise, the thrust of Assignment No. 2 is that the sаnity examinations were invalid because the presence of the police officer tainted defendant‘s responses relative to his alleged insanity at the time of the commission of the offense. Since defendant abandoned his insanity defense and since the first two assignments concern errors in connection with the dual plea, we conclude that these alleged еrrors are moot. Accordingly, these two assignments do not present reversible error.
Assignment of Error No. 3
In this assignment defendant contends that the trial judge erred in refusing to permit defense counsel to inquire into the victim‘s past sexual relationships with men other than her common-law husband and the defendant. Defendant argues that past jurisprudence indicates that this is a proper line of inquiry when defendant reliеs upon the defense of consent. Nonetheless,
This assignment lacks merit.
Assignments of Error Nos. 4 and 5
The investigating officers found a knife near to the point where defendant jumped the fence as he fled from the house. The officers testified that the knife had much less of an accumulation of moisture from dew than the surrounding areas. The victim initially testified that this knife looked like the knife used by the intruder but during cross-examination admitted that she never really saw the knife but only felt
The defendant‘s arguments оn these two assignments are based upon the contention that the testimony adduced at trial did not sufficiently connect these items to the alleged offense and the defendant. However, the knife was found shortly after the commission of the crime very near the fence over which the intruder climbed. In addition, the knife had much less dew accumulation than the nearby areas. The victim testified that the chain the defendant was wearing felt very similar to the chain worn by her attacker. Thus, the fact that the knife was found in close proximity to the fence over which the attacker escaped was relevant evidence and was admissible. Likewise, the victim sufficiently connected the chain worn by the accused with the chain worn by the attacker. The items themselves were demonstrative of relevant evidence and thus properly admitted.
These assignments lack merit.
Assignment of Error No. 6
In this jury trial defendant moved for a directed verdict after the close of the State‘s case in chief. The overruling of this motiоn forms the basis for this assignment of error.
This assignment lacks merit.
Assignment of Error No. 7
During closing argument by defense counsel the common-law husband of the victim began to cry. No verbal outburst occurred. After some time the prosecutor noticed that the man was upset and hаd him removed from the courtroom. The defense counsel requested that the jury be removed and then moved for a mistrial contending that the man‘s actions constituted “prejudicial conduct” within the meaning of
It has been consistently held that when the conduct does not fall within the mandatory mistrial provisions of
This assignment lacks merit.
Assignment of Error No. 8
In this assignment defendant contends that the trial judge erred in refusing
The conviction and sentence are affirmed.
CALOGERO, J., concurs and assigns reasons.
CALOGERO, Justice, concurring.
In assignment of error number two, defendant Errol Domangue argues that the court below erred in failing to conclude that the sanity examinations of him were void because they were cоnducted in the presence of a police officer.
The legislature and courts have consciously allowed sanity commission procedures to be flexible so that doctors сonducting such examinations can do so in the way that the particular facts of the case warrant.
I agree, however, with the majority decision in this case that this defendant‘s assignment lacks merit because his insanity defense was abandoned.