State v. GuinState v. Guin
On November 17, 1982, the defendant, Kenneth Guin, was convicted by a twelveperson jury of attempted second degree murder, in violation of
Ms. Barbara Joe Jacob, a 20 year old single girl, shared an apartment with her brother in Westlake, La. The defendant, Kenneth Guin, known to most of his friends as “Bear“, was co-worker of Ms. Jacob. He also happened to live nearby her apartment in Westlake. As a payroll clerk for the company, Ms. Jacob was acquainted with the defendant, “Bear“. She testified that she had hired him into the company1 and saw him two to three times a week. She admitted that on numerous occasions he had asked her for a date, but she had always turned him down.
On or about April 16, 1982, Ms. Jacob was at her apartment, when, at about 2:00 P.M., the defendant came by. He asked the victim if she would take him to a nearby
After entering the Moss Bluff area, the defendant directed Ms. Jacob to turn down a dirt road. After traveling along this road for a short distance, the defendant pulled out a knife and forced the car into the roadside ditch. He then reached over and dragged the victim, by the hair, across the console and out the passenger side of the vehicle. While staying close behind, the defendant ordered her to walk into the wooded area, occasionally shoving her on the back. Upon entering a secluded area where the grass and weeds were matted down, the defendant stripped the victim of all her clothing, took off his shirt and pushed her on the ground. The victim, now naked and laying on the defendant‘s shirt, was sexually abused and raped2 by the defendant. After the sexual act, the defendant strangled the victim into unconsciousness. When she regained consciousness, the defendant was not around. Ms. Jacob‘s neck was severely lacerated with twenty (20) to thirty (30) cuts across the throat. Naked and bleeding, the victim found her way to the roadway and was discovered by a deputy sheriff. The police, based upon the description and name given by the victim, subsequently arrested the defendant, Kenneth Guin.
The Grand Jury of Calcasieu Parish returned a two count indictment against the defendant charging him with the crimes of aggravated rape in violation of
ASSIGNMENTS OF ERROR
1. The trial court erred in permitting the State to amend the grand jury indictment, over the objection of the defendant, so as to change offenses charged by amending the date from March 16, 1982, to April 16, 1982.
2. The trial court erred in examining prospective jurors as to their general qualifications out of the presence of the defendant and over his objection.
3. The trial court erred in conducting a voir dire examination of the prospective jurors in private bench conference prior to the defendant having been brought into the courtroom and out of the hearing of counsel.
4. The trial court erred in failing to require the sheriff to account for service or attempted service on absent and unexcused petit jury veniremen.
5. The trial court erred in denying defendant‘s request for attachment of absent and unexcused petit jury veniremen as required by
LSA-C.Cr.P. art. 783 .11. The trial court erred in overruling the defendant‘s motion for a mistrial.
14. The trial court erred in permitting a hearsay statement that the alleged victim identified the defendant‘s clothing.
16. The trial court erred in permitting the prosecutor and a State witness to improperly identify physical evidence so as to give an impression as to where it was located.
17. The trial court erred in refusing the defendant‘s motion for mistrial on the ground that the court had made a comment on the evidence.
18. The trial court erred in overruling the defendant‘s objection to the inclusion of the words “or to inflict great bodily harm” in the charge which the court gave defining attempted second degree murder.
19. The trial court erred in refusing to charge the jury that a unanimous verdict is required to convict the defendant.
ASSIGNMENT OF ERROR NO. 1
The defendant argues that the trial court erred by allowing the State to amend the grand jury indictment as to the date of the offenses charged. The original indictment mistakenly indicated the offenses occurred on March 16, 1982, where it should have read that the offenses occurred on or about April 16, 1982, as it was amended.7
On November 9, 1982, before Judge L.E. Hawsey, Jr., the State moved to amend the indictment, as to the date the alleged offenses were committed, from March 16, 1982, to April 16, 1982. Counsel for the
It is clear that the district attorney has the power and authority to amend grand jury indictments, both as to amendments of form and as to amendments of substance. State v. Sheppard, 350 So.2d 615 (La.1977); State v. Bluain, 315 So.2d 749 (La.1975). This power is controlled by
In any event, the date and time of the commission of an offense need not be alleged in the indictment, unless the date or time is essential to the offense. (See
ASSIGNMENT OF ERROR NOS. 2 AND 3
Both of these assignments concern the trial court‘s examination of prospective jurors and can be dealt with together.
On the morning of November 15, 1982, court was convened with Judge W. Ellis Bond presiding. Roll was called to determine which of the petit jury veniremen were present and which were absent. Prior to the State calling a particular case, the judge informed the members of the venire of their purpose and the basic qualifications they must have.10 He then informed
A defendant charged with a felony shall be present:
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror.
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced.
However, the Louisiana Supreme Court has stated on numerous occasions that the trial court is authorized to excuse a member of the petit jury venire at any time prior to the time he is sworn as a juror to try a particular case.
In this case, the roll was called for the jurors and they were afforded the opportunity to submit special reasons for being excused. In accordance with the aforementioned jurisprudence, the trial court
ASSIGNMENTS OF ERROR NOS. 4 AND 5
In these assignments the defendant argues that the trial court erred by failing to account for, and attach, the absent and unexcused petit jury veniremen.
On the issue of requiring the sheriff to account for service or attempted service, the judge gave an explanation to defense counsel as to why petit jury veniremen were absent. Also, as indicated in the trial court‘s minutes, there was an accounting by the sheriff of who was and who was not served.
In addressing whether or not the trial court erred in denying the defendant‘s request for attachment of the absent and unexcused petit jury veniremen, one should note the controlling language of
ASSIGNMENT OF ERROR NO. 11
In this assignment the defendant argues that the State posed a “leading question” to the victim. The nature of the question was such that it referred to one of the critical elements necessary for any rape conviction, that being “penetration“. The defendant feels a mistrial should have been granted based on the following colloquy:
Q: Then what happened?
A: And, then he started—He put—He took his fingers and he was pushing his penis into me.
Q: Had he taken his clothes off at any time?
A: Well, the only time he took off was when he took off his shirt. But, I had heard his pants unzip when I was on the ground.
Q: And, he penetrated you at this time?
A: Yes, he did.13
The trial court sustained the objection and asked that the assistant district attorney rephrase his question.
A leading question is one which suggests to the witness the answer they are to deliver; ordinarily, such questions are prohibited when posed to one‘s own witness unless the witness is hostile or unwilling. State v. Prestridge, 399 So.2d 564 (La.1981); State v. Carthan, 377 So.2d 308 (La.1979).
In this instance the question does appear to be leading. However, as pointed out by the State, it merely restates what the witness’ earlier testimony had been. Though it may not have been proper, it certainly was not grounds for a mistrial.
A mistrial may be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by article 77015 or 77116.
A mistrial is a drastic remedy and except in instances in which it is mandatory, is only warranted if substantial prejudice results which would deprive the defendant of a fair trial. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tribbet, 415 So.2d 182 (La.1982). The determination of prejudice lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Tribbet, supra; State v. Douglas, 389 So.2d 1263 (La.1980).
Leading questions are not the type of prosecutorial error which diminish the reliability of a jury‘s verdict. Ms. Jacob‘s testimony, as well as the medical evidence and testimony, clearly show sexual penetration. Only when there is clear abuse of discretion which prejudices defendant‘s rights will a conviction be reversed because of leading questions. State v. Felde, 422 So.2d 370 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982). The defendant has failed to show any prejudicial effect the statement had on his defense. Although counsel should not be permitted to mold the witness’ testimony, a verdict should not be reversed in the absence of a clear abuse calculated to prejudice the accused‘s rights. State v. Jackson, 419 So.2d 425 (La.1982); State v. Swift, 363 So.2d 499 (La.1978). This assignment lacks merit.
ASSIGNMENT OF ERROR NO. 14
In this assignment the defendant argues that a hearsay statement was improperly allowed into evidence. During the course of the prosecution‘s case Deputy Sheriff Babin was questioned as follows:
Q: Now, were you involved any further in this particular case, sir, after that particular date?
A: Yes, sir. Q: How so?
A: The victim, after her stay in the hospital, she was asked to come to our office. We showed her the clothing which you just showed me which she I.D.‘d...
The defendant objected, arguing that the statement was hearsay. The trial judge overruled the objection, however, the record reveals that Deputy Babin did not affirmatively testify as to the identification after the objection was interposed.
Generally, hearsay is defined as an out-of-court statement introduced to prove the truth of its content. State v. Chaney and State v. Herman, 423 So.2d 1092 (La.1982); State v. Spell, 399 So.2d 551 (La.1981).
The victim, Ms. Jacob, had previously identified every article of clothing referred to by the deputy in his statement. It is clear that the statement was merely cumulative in showing that the victim recognized certain articles worn by the defendant. There was no prejudice to the defendant.
ASSIGNMENT OF ERROR NO. 16
The defendant objected to the State‘s questioning of an expert witness as to the markings on an envelope located in the sex kit submitted to the expert for analysis. The envelope in question contained a hair of human origin recovered from the cervix of the victim and was so marked on the envelope.
The defendant argues that the testimony sought was not within the personal knowledge of the witness and not within his expertise. The court overruled the objection, however, the response concerning the markings, as indicated on the envelope, was never made. Without responding to what was marked on the envelope there is no alleged error to analyze. This assignment has no merit.
ASSIGNMENT OF ERROR NO. 17
During the prosecutor‘s direct examination of an expert witness an objection was made as to his testifying on matters not within his personal knowledge. This is the subject of assignment of error No. 16, supra. During the course of the objection, the following colloquy occurred:
Q: All I want to know is where this particular item came from, not any opinions of yours?
A: The envelope was labeled hair...
MR. BURNES: ... Excuse me, Your Honor. Your Honor, that‘s the objection that I made. I don‘t have any objection to this man‘s expertise. I stipulated to it. I know him. I‘ve examined him in cases before. But, he‘s not testifying now identifying the object. He‘s trying to say what someone else observed about the object. Not what he observed, but what someone else wrote on the ..
THE COURT: ... With the testimony of the doctor in connection with the preparation of the crime kit...
MR. BURNES: ... I don‘t want to help...
THE COURT: ... He may...
MR. BURNES: ... the State try their case, Your Honor.
THE COURT: But, I must consider all prior testimony in connection with this objection also. I‘ll overrule the objection.
MR. BURNES: Your Honor, I‘ll respectfully object. And, I think that the statement Your Honor just made about the doctor‘s testimony constitutes a comment on the evidence in the presence of the jury. I respectfully object to it and I move for a mis-trial.
THE COURT: I don‘t think I commented on what the doctor testified to, Mr. Burnes. I attempted to carefully
refrain from doing so. Your motion is denied.
The defendant feels the trial court erred in denying his motion for a mistrial on the grounds that the court had made a comment on the evidence. The defendant feels that
ASSIGNMENT OF ERROR NO. 18
The defendant alleges the trial court erred in including in the jury charge the words “or to inflict great bodily harm” when defining attempted second degree murder. The pertinent part of the charge reads:
I will now instruct you on count one, attempted second degree murder. Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. An attempt is defined as follows: A person who has a specific intent to commit a crime and who does an act for the purpose of and tending directly toward accomplishing his object is guilty of an attempt to commit the crime intended.
There is no dispute that the words “or to inflict great bodily harm” is part of the second degree murder statute.18 The charge here is that of attempted second degree murder and deals with the specific intent as defined in the attempt statute.19 When the attempt statute is invoked and the charge is attempted second degree murder, it is required that the person have the specific intent to kill a human being. Having specific intent to inflict great bodily harm and then only inflicting great bodily harm cannot be construed as attempted second degree murder.
The defendant relies heavily on the case of State v. Butler, 322 So.2d 189 (La.1975) wherein the Louisiana Supreme Court reiterated that specific intent to kill is an essential element of attempted murder.
The State claims Butler is distinguishable on its facts. In Butler, the evidence the jury found credible proved an aggravated battery not an attempted murder. The evidence indicated that there was not a specific intent to kill. Also, in the closing arguments the prosecutor argued that the specific intent to inflict great bodily injury was sufficient for a conviction of attempted murder. The defendant was not permitted to argue in his closing arguments that a specific intent to kill was required to convict of attempted murder. While it is admitted that the inclusion of the term “or to inflict great bodily harm” was improper (and included at the State‘s request), the State contends the circumstances of the case do not require a reversal.
With reluctance, we are obliged to agree with argument of defense counsel. The reason for reservation is that the evidence is so overwhelming as to the specific intent
Fundamental to American law are the principles here applicable. The state through its legislature has defined the conduct constituting particular offenses, with particular consequences (sentences). To secure conviction for any such offenses, the state through its prosecutors must charge the accused with a particular crime or crimes and prove the accused‘s guilt of the legislatively-defined crime(s) beyond a reasonable doubt. The jury with proper instructions of law is the exclusive arbiter of the innocence or guilt of the crime charged. The courts are constitutionally bound to assure that those accused before our courts are tried in accordance with law and to reverse, where substantial error of law is committed.
To suggest that no substantial error of law occurs, where the jury was in effect instructed that a person guilty of aggravated battery can be convicted of attempted murder although he has no specific intent to kill by the battery, is to suggest an untrammelled discretion of prosecutor, jury, and court to punish an accused for offensive conduct. To the contrary, the legislature has authorized prosecutions for particular crimes. In a government of law and of constitutionally and legislatively limited powers, neither prosecutor, jury, nor court are empowered to sustain a conviction for conduct not punishable by the crime for which the accused stands charged. 322 So.2d at 193-194.
That the defendant‘s incarceration will not be altered by adhering to Butler appears to be of no consequence insofar as our review is concerned. See: State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). The defendant is entitled to attack the invalid conviction even though it is concurrent with or consecutive to a valid sentence for which defendant will remain confined inasmuch as, in the event of retrial, it is of great advantage to the prosecution and defense alike to marshall their respective cases while the evidence is fresh and the witnesses are available. id. See also: State ex rel. Becnel v. Blackburn, 410 So.2d 1015 (La.1982). The trial court‘s error in instructing the jury requires the defendant‘s conviction for this crime be reversed.
ASSIGNMENT OF ERROR NO. 19
The defendant argues that the trial court erred in charging the twelve-person jury that: “Ten of you must agree upon a verdict“. The defendant feels that a nonunanimous verdict offends due process under the Fourteenth Amendment, and impairs the defendant‘s right to a “fair trial by jury” as is guaranteed by the Sixth and Fourteenth Amendments.
Article I, Section 17 of the Louisiana Constitution states in pertinent part that:
“... A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict...”
See, also
The United States Supreme Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), has upheld Louisiana‘s less than unanimous verdicts as provided in
CONCLUSION
For the reasons assigned hereinabove, the defendant‘s aggravated rape conviction and sentence to life imprisonment without benefit of probation, parole or suspension of sentence is affirmed. His conviction for attempted second degree murder is reversed and the case is remanded for re-trial in accordance with law.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
State of Louisiana
Parish of Calcasieu
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF LOUISIANA:
The Grand Jurors of the State of Louisiana, duly empaneled, sworn and charged to enquire within and for the Parish of Calcasieu State of Louisiana, upon their oath do present THAT KENNETH GUIN at the Parish of Calcasieu on the 16th day of “APRIL” Amended Nov.12, 1980 in the year of our Lord, One Thousand Nine Hundred and Eighty-two
COUNT ONE: KENNETH GUIN ATTEMPTED TO COMMIT SECOND DEGREE MURDER OF BARBARA JACOBS IN VIOLATION OF
COUNT TWO: KENNETH GUIN COMMITTED AGGRAVATED RAPE UPON BARBARA JACOBS IN VIOLATION OF
contrary to the law of the State of Louisiana, in contempt of the authority of said State, and against the peace and dignity of the same.
asst District Attorney
Fourteenth Judicial District of Louisiana.