State v. HoffmanState v. Hoffman
On May 5, 1975 Rayfield Hoffman was found guilty by a jury of attempted aggravated rape. The crime occurred between 6:00 and 7:00 a.m. on December 25, 1974.
The victim lived alone in a one room apartment. She was in her bathrobe at about 6:00 o‘clock in the morning when the defendant broke into her room and forced her to her bed. During the rape the defendant lost consciousness. The victim escaped to a nearby restaurant where she called the police. Upon their arrival, the police found the defendant asleep on the victim‘s bed, naked except for underwear shorts around his knees, and a hammer in the bed near his feet.
On this appeal defendant argues Assignments of Error Nos. 3, 4, 6, 7 and 8. The other assignments of error were neither briefed nor argued and are thereby considered abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).
Assignment of Error No. 3
In this assignment defendant seems to argue that the names of the veniremen who were called on voir dire were not selected indiscriminately and by lot, and that
“In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court.”
The record before us does not reflect a violation of
The State seems to indicate that State v. Bradford, 298 So.2d 781 (La.1974) approved the practice of which defendant seems to complain. Bradford made no such holding. If it were true that the names of the veniremen were not drawn from the petit jury venire list indiscriminately and by lot in open court, there would be a serious defect in the trial. However, the record before us does not reveal such a violation.
There is no merit to Assignment of Error No. 3.
Assignment of Error No. 4
While the jury was being selected, defendant moved as follows: “Under
The trial court denied the motion and stated that all jurors would be sworn together before the trial began.
“After the examination provided by
Article 786 , a prospective juror shall be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him. When a prospective juror is accepted by the state and the defendant, he shall be sworn immediately as a juror. This article is subject to the provisions ofArticles 795 and796 .”
Nevertheless, the practice is contrary to the provisions of
However, defendant does not point to any prejudice he has suffered, nor to any advantage gained by the State from this error. Although there is obviously a violation of a statutory provision, the practice complained of has not affected the right of the accused to a fair and impartial trial, and is not a violation of a substantial right of the accused. Therefore, the assignment of error is not ground for reversal.
Assignments of Error Nos. 6 and 7
In Assignment of Error No. 6 the defendant complains that it was error for the court to provide the jury with a list of
In brief defendant seems to argue that the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), disapproved Louisiana‘s responsive verdict system, which lacked standards to guide the jury in selecting the lesser included offenses of which they might find the defendant guilty. The defendant argues that, if the State‘s evidence is believed, it would support only a finding of aggravated rape; if the State‘s evidence is not believed (and the defendant testified that he had not raped the victim), the defendant must be found not guilty.
The trial judge had no alternative but to submit to the jury the list of responsive verdicts. The responsive verdicts fixed by statute (
It is true that there is an element of intellectual confusion in certain of the responsive verdicts. (For instance, manslaughter is a responsive verdict to first degree and second degree murder. See State v. Cooley, 260 La. 768, 257 So.2d 400 (1972).
Nevertheless, no constitutional bar has been suggested which would invalidate the responsive verdict system used in Louisiana. Since the trial judge was required by statute to submit the responsive verdicts to the jury, and was not prohibited by the Constitution, the defendant cannot complain, and there is no merit in his argument.
The argument in the motion for a new trial and the motion in arrest of judgment that there was no evidence of attempted aggravated rape is simply a play on words. There was not only an attempt; the attempt was successful. There was evidence of every element of aggravated rape, and the defendant cannot complain that the jury did not find him guilty of as severe a crime as they might have.
Assignment of Error No. 8
After conviction, the defendant was billed as a multiple offender, and was sentenced as a third offender to forty years at hard labor.
It is argued that the present policy of the district attorney‘s office in Orleans Parish is to employ the multiple offender procedure in every case in which the defendant has been previously convicted of a felony. In contrast, it is argued that it was not the policy during the administration of the district attorney‘s predecessor to employ the multiple offender procedure, and that, when the defendant pleaded guilty in 1968 and 1971 to charges of simple burglary and simple robbery, he was not informed that these sentences might subsequently be employed to enhance the penalty, in the event he should be convicted at a later time of another felony.
This argument is without substance. There is no requirement that a defendant must be informed of every possible consequence of his guilty plea before it can be considered knowingly and intelligently given. Defendant also complains that in 1971 he was charged with simple robbery and pleaded guilty to attempted simple robbery, without the bill of information having been amended. For this reason, since attempted simple robbery was not a responsive verdict, to a charge of simple robbery, there is a defect in the proceedings which invalidates the conviction and sentence for attempted simple robbery.
A similar agrument was answered in State v. Green, 263 La. 837, 269 So.2d 460 (1972), where the defendant, charged with armed robbery, pleaded guilty to attempted armed robbery without the bill of information having been amended. Attempted armed robbery is not a responsive verdict to
This contention is without merit.
Finally, the defense argues that the records in the cases charged in the habitual offender bill as prior felony convictions are silent as to whether defendant was represented by an attorney at the time of the sentence, and whether the defendant was advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when he pleaded guilty. In Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 Fn. 6 (1970), the court stated that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. In City of Monroe v. Fincher, 305 So.2d 108 (La.1974), this court applied Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and held that where the record of defendant‘s first DWI conviction does not establish that he had counsel or had made a waiver of counsel, the prior uncounseled DWI conviction may not be used to subject the defendant to prosecution and imprisonment as a repeat DWI offender. In the instant case, the State argues that the burden is upon the defendant to prove that the pleas were uncounseled or involuntary. However, it appears that under the Boykin rationale, the record must show that the pleas were counseled or waivers of counsel.
In the instant case, this court has not been provided with a transcript of the hearing on the multiple offender bill. Nor does the record contain the minutes of the prior guilty pleas.
The State merely argues that there was no evidence produced showing that the prior pleas of guilty were not voluntary or were not entered with the assistance of counsel.
The same argument was made in City of Monroe v. Coleman, 304 So.2d 332 (La.1974). The record must affirmatively show that the accused either was accompanied by counsel or that he was informed of his right to counsel and waived that right, and that the plea was knowingly and intelligently entered. See also State v. Guillotte, 297 So.2d 423 (La.1974); State v. Coody, 275 So.2d 773 (La.1973).
In the absence of such showing, such convictions cannot serve to enhance the penalty under the multiple offender statute.
For these reasons, the conviction is affirmed; the sentence is set aside; the case is remanded to the district court for sentencing consistent with the views here expressed and in accordance with law.
ON REHEARING
MARCUS, Justice.
Rayfield Hoffman was indicted by the grand jury for the Parish of Orleans for having committed aggravated rape in violation of
On original hearing, defendant urged as Assignment of Error No. 3 the failure of the trial judge to select a jury panel “. . indiscriminately and by lot in open court. . .” as directed by
On rehearing, the record has been supplemented at our request and it now substantiates defendant‘s contention that the jury panel was not selected in accordance with law.
In selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court. (Emphasis added.)
In order to facilitate the administration of criminal justice in Orleans Parish, the Louisiana Legislature in 1972 passed Act No. 41 which authorizes the creation and operation of a central jury pool for the Criminal District Court for the Parish of Orleans. Act No. 41, now codified as
A. There is hereby created a central jury pool for the Criminal District Court for the Parish of Orleans which shall be administered by the Jury Commission of the Parish of Orleans as hereinafter provided.
B. In order to properly and adequately administer and operate the central jury pool for the Criminal District Court for the Parish of Orleans, the chairman of the Jury Commissioners for the Parish of Orleans shall designate two jury commissioners each month who shall be specifically charged with the responsibility for administering and operating the central jury pool. The chairman of the jury commissioners shall rotate the responsibility for the administration and operation of the central jury pool amongst the other four jury commissioners so that no jury commissioner shall be assigned to the central jury pool for more than six months out of every twelve months.
C. The Criminal District Court for the Parish of Orleans acting en banc shall by majority vote determine the number of jurors to serve in the central jury pool in any given month, the jury days for that month, and all other matters relative to the operating procedures of the central jury pool.
D. The jury commission shall select the number of jurors to serve in the central jury pool as hereinabove determined by the criminal district court acting en banc and by the method now prescribed by law.
E. The provisions of this Act shall be cumulative of and in addition to the method now prescribed by law for the selection of a jury panel for the Criminal District Court for the Parish of Orleans except that those provisions in conflict with this Act are hereby repealed and declared invalid insofar as they apply to the Criminal District Court for the Parish of Orleans. (Emphasis added.)
In the instant case, the jury panel was not selected in compliance with
DECREE
For the reasons assigned, our original decree is vacated and set aside; defendant‘s conviction and sentence are reversed and the case is remanded to district court for a new trial in accordance with the views herein expressed.
DIXON, J., concurs, being of the opinion that the rule of this case should be effective at the latest on the day after this opinion is handed down.
CALOGERO, J., concurs.
Notes
“If it is discovered after a juror has been accepted and sworn, that he is incompetent to serve, the court may, at any time before the first witness is sworn, order the juror removed and the panel completed in the ordinary course.”
The record did not establish that defendant either had counsel or waived counsel prior to pleading guilty to the felonies which formed the basis of defendant‘s sentencing as a multiple offender.