State v. McDanielState v. McDaniel
Thomas McDaniel was indicted by the St. Tammany Parish grand jury for aggravated rape, in violation of
Defendant was charged with the rape of a fifteen year old girl, who was attacked as she walked along an interstate highway service road in Slidell, Louisiana, with her mother. The incident occurred at approximately 4:00 in the afternoon as the women returned to their apartment from a nearby convenience store. Both women testified their attention was drawn to defendant as he passed them on the service road because he was jogging in blue jeans and looked “weird.” Defendant spoke to them in greeting as he ran past; and the women acknowledged his greeting. Shortly thereafter, he ran up behind them, grabbed the victim by her hair and arm and pulled her down into the brush. Defendant carried a plastic toy pistol, which appeared to be a real weapon to the victim‘s mother (but was not seen by the victim herself at that time). He told the victim‘s mother to leave or he would kill both of them. She ran off to summon help as he dragged the victim through the woods.
Defendant ordered the victim to undress, repeatedly choked and slapped her, and raped her four times. She testified that, during the last episode, he told her that “[she] had better enjoy it because he was going to kill [her] when he was finished.” In his taped statement, defendant also admitted that he forced her to perform oral sex upon him.
The victim‘s mother ran to the highway and flagged down a car. The driver took her to the nearby home of his friend, a deputy sheriff who was off-duty at the time. They summoned help, and several other deputies arrived within fifteen minutes. Defendant was still with the victim when they arrived. He fled through the woods, and the deputies gave chase. After sprinting about 150 yards, defendant crouched to the ground and attempted to hide behind a clump of grass. He was arrested at the scene. After booking, defendant was taken to a local hospital and treated for injuries sustained during the chase.
Defendant was charged with aggravated rape and, by separate indictment, with aggravated crime against nature. He gave a taped confession in which he admitted that he “assaulted” the victim but claimed that he was under the influence of alcohol and a homemade drug called “crank“, a mixture of muriatic acid and benzedrine, at the time.
ASSIGNMENT OF ERROR NUMBER ONE:
By this assignment of error, defendant argues that the trial court erred by denying his motion for a continuance, for which he was forced to move because of the absence of a material witness.2 He claims that he was prejudiced because he was not able to present the testimony of a witness who was with him on the day in question and could have testified as to the defendant‘s drugged condition, bizarre actions and behavior on the day of the rapes.
Before the trial began, defendant apparently notified the court in chambers when he discovered his witness was absent. He moved for a continuance before jury selection, noting that the witness had been in court for the preceding three days. The trial court denied defendant‘s motion for a continuance but issued a bench warrant for the production of the witness. The state then presented its case. During the presentation of the defense, defendant sought a recess; and the court denied the motion. Defendant now claims he exercised due
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
A motion for a continuance based upon the absence of a material witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
Defendant acknowledges that he did not file a written motion. He claims, however, that he was not required to do so because of the fact that the grounds for the continuance arose unexpectedly and he had no time to prepare his motion in writing.
Initially, we note that the record is essentially devoid of proof of defendant‘s claims regarding the necessity for the testimony of this witness. On the record before us, we are not able to determine whether or not defendant did actually show the facts to which the witness was expected to testify, the materiality of the testimony, and facts showing the likelihood that the witness would be available at another date. Since defendant apparently chose to advise the court of his dilemma at conferences off the record and no written motion for a continuance was filed, he has presented nothing for this court to review.
Moreover, we note that it is doubtful that defendant could establish the materiality of the testimony of the witness, as required by
It is well settled that voluntary intoxication can be considered as a defense only in cases where specific intent is a necessary element of the crime. State v. Boleyn, 328 So.2d 95 (La.1976). Aggravated rape is a general intent crime. See
Similarly, the evidence of defendant‘s bizarre behavior on the day prior to the rape would not have been material because it would have tended merely to illustrate his drug-related intoxication and not a mental defect in the nature of insanity. See State v. Rives, 407 So.2d 1195 (La.1981). Louisiana does not recognize the doctrine of diminished capacity. State v. Lecompte, 371 So.2d 239 (La.1979), on rehearing.
The granting or refusal of a motion for a continuance rests within the sound discretion
We find, therefore, that the trial court did not err in denying defendant‘s motion for a continuance. The court attempted to accommodate defendant by issuing a bench warrant; however, in light of the tentative materiality of the evidence to be presented by the witness and the apparent lack of assurance that the witness would be available later, the trial court did not err in refusing to delay a trial in progress to secure this witness. These assignments of error have no merit.
ASSIGNMENTS OF ERRORS FOUR, FIVE AND SIX:
By these assignments of error, defendant submits that the evidence is not sufficient to sustain the conviction and that the trial court erred by denying his motions for a new trial and a post verdict judgment of acquittal based on this ground.
In reviewing the sufficiency of the evidence to support a conviction, a Louisiana appellate court is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard of appellate review, adopted by the Legislature in enacting
Defendant argues that the evidence was not sufficient because he carried a small plastic toy pistol and, therefore, was not armed with a dangerous weapon, as required by
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force;
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
The victim testified that she fought defendant as he dragged her into the bushes. After defendant overcame her resistance by beating and choking her to the point where she almost lost consciousness, he raped her twice. Thereafter, he told the victim that he intended to kill her when he was finished. She testified that she caught a glimpse of the gun and thought that he intended to kill her. She tried to escape, but he caught her as she ran. Sheriff‘s deputies arrived as defendant was committing the fourth rape.
The victim‘s testimony clearly establishes that defendant committed aggravated rape. She testified that defendant raped her after overcoming her resistance and raped her again after threatening her into submission. Photographs introduced by the state showing numerous scratch marks clearly illustrate the degree of force used by defendant in dragging her, as well as vivid bite marks on her neck and breast. Any rational trier of fact could have found that defendant was guilty of aggravated rape as defined by
Moreover, defendant‘s claim that the offense was not aggravated because he was not armed with a dangerous weapon is without merit because victim was under threat of great bodily harm accompanied by apparent power of execution.
Defendant further argues that he met his burden of proof establishing the defense
The defense of insanity is without merit for the reasons given under Assignment of Error Number One.
This assignment of error has no merit.
ASSIGNMENT OF ERROR NUMBER SEVEN:
By this assignment of error, defendant urges that the mandatory sentence imposed, life imprisonment without benefit of probation, parole or suspension of sentence, is unconstitutionally excessive under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). He submits that the mitigating factors involved, including his drug problem, lack of a criminal record, family and work history, and the fact that he was not armed, mandate a lesser sentence. Defendant also argues that, even if his drugged condition did not rise to the level of insanity, he was obviously in a state of diminished capacity and that the mandatory sentence is excessive in light of the limited sentence that could have been imposed if he had been convicted of the lesser offense of forcible rape.
In State v. Foley, 456 So.2d 979 (La. 1984), the Louisiana Supreme Court considered the same argument presented herein. In Foley, that court stated as follows:
Solem v. Helm, supra, held that a life sentence without benefit of parole imposed on a defendant who had six prior felony convictions was unconstitutionally excessive. Helm wrote a check on a bank at which he had no account. Had he been a first offender, his maximum sentence would have been five years imprisonment and a $5,000 fine. The life sentence was imposed by operation of the South Dakota recidivist statute which specifically excluded the possibility of parole.
Helm held that “a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes.... But no penalty is per se constitutional.” 103 S.Ct. at 3009-3010. The Helm court set forth the following objective factors to guide reviewing courts: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentence imposed for commission of the same crime in other jurisdictions. While requiring proportionality analysis, even in noncapital cases, Helm did point out that, “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” 103 S.Ct. at 3009.
Applying these factors to this crime and sentence, defendant‘s life sentence is not excessive. As to the gravity of the offense, the legal definition of aggravated rape in
LSA-R.S. 14:42(2) is virtually identical to that of forcible rape. Distinctions are drawn based on the degree of force and the resistance of the victim. The jury determines the permissible punishment by a verdict which fits the crime by assessing the degree of force employed. State v. Willie, 422 So.2d 1128 (La.1982).Defendant does not expressly contend that there is insufficient evidence to convict him of aggravated rape but cites numerous forcible rape cases, and argues that their facts are no more egregious than those here. However, the evidence adduced at this trial justifies the jury‘s verdict. [footnotes omitted].
Defendant‘s claims of mitigating circumstances are without merit. The jury, in refusing to return a verdict of insanity, obviously rejected any notion that defendant was unaware of the criminality of his actions; and, having been rejected by the trier of fact in returning the verdict and the trial court in the denial of defendant‘s motion for a post-verdict judgment of acquittal, defendant‘s claim of a self-induced “diminished capacity” was not a proper consideration. Moreover, defendant‘s attempt
Solem v. Helm also requires that the sentence be compared with that which could be imposed on other criminals in this state and for this offense in other states. In Foley, supra, the court found as follows:
Louisiana statutes mandate life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the commission of the following crimes:
(1)
LSA-R.S. 14:30 , First Degree Murder, where the jury does not unanimously recommend the death penalty;(2)
LSA-R.S. 30.1 , Second Degree Murder;(3)
LSA-R.S. 14:42 , Aggravated Rape;(4)
LSA-R.S. 14:44 , Aggravated Kidnapping; and(5) Certain offenses under the habitual offender law.
Except for criminal conduct subject to sentencing under the habitual offender statute, mandatory life sentences are imposed only for violent crimes against the person. Louisiana‘s statutory scheme recognizes five grades of culpability for illegal sexual conduct ranging from aggravated rape to sexual battery. This scheme is complimented by the responsive verdict system. Louisiana does not single out aggravated rape for disproportionate punishment.
Compared with the sentencing statutes of other states for the same crime, Louisiana‘s statute is not facially excessive. Many jurisdictions (not Louisiana) have adopted, with modifications, the Model Penal Code classifications. Under this Code, rape under these circumstances would be classified as a first degree felony. The ordinary term for such a felony is imprisonment to a minimum term of not less than one year nor more than ten years and a maximum term of life. In Alabama, for example, rape in the first degree is a Class A felony punishable either by life imprisonment or a term of ten to ninety-nine years. If a deadly weapon is used in the commission of the crime, punishment can not be less than twenty years imprisonment.
Ala.Code tit. 13A, §§ 13A-6-61 ,13A-5-6 . In Missouri and Michigan, a life sentence is possible but not mandatory.Mo.Rev. Stat. §§ 566.030 ,558.011 andMSA § 28.788(2) [M.C.L.A. § 750.520] . Maryland requires that a person convicted of first degree rape be subject to imprisonment for no more than the period of his natural life.Md.Crim.Law Code Ann. § 462 . In Delaware, rape is a Class A felony, carrying a punishment of life imprisonment which cannot be reduced or suspended by the court.Del.Code tit. 11, §§ 764 ,4204 ,4205 .Thus, while not all jurisdictions surveyed mandate life imprisonment, all view aggravated rape as a serious crime meriting substantial punishment. Unlike the defendant in Helm who could have received his life sentence in only one other state, Foley‘s sentence could have been meted out in other jurisdictions. [footnotes omitted]
We find, therefore, that the mandatory sentence of aggravated rape herein is not unconstitutionally excessive under either the Louisiana or United States Constitutions. This assignment of error has no merit.
By this assignment of error, defendant submits that the trial court erred by allowing the state to present this case after having called another case for trial. The reference to the other offense, obviously inadvertent, occurred before voir dire began. Both indictments charged an offense committed by defendant against the same victim, arising out of the same incident. The first indictment called, number 149074, apparently charged defendant with an aggravated crime against nature. After the clerk read the bill number, the assistant district attorney greeted the panel members and told them the accused was charged with aggravated rape. Defendant objected to the reference and remarked that the indictment number previously read was for aggravated crime against nature. Thereafter, the assistant district attorney advised the court that the prosecution ensued under indictment number 149075 and was for aggravated rape. The court overruled the objection. After the entire jury had been selected, defendant moved for a motion in limine, prohibiting the state and its witnesses from referring to the charge of aggravated crime against nature or oral sex. The court granted the motion.
Defendant argues that the reference to the aggravated crime against nature was a reference to another crime, as to which evidence would be inadmissible; and, therefore, he was entitled to a mistrial under the provisions of
Initially, we note that defendant did not request a mistrial. The court did not err in failing to grant a mistrial sua sponte. See
In any event, the remarks complained of do not constitute evidence of another crime to which evidence was not admissible. The aggravated crime against nature was a part of the same offense as the aggravated rape. Evidence of other crimes which are part of the res gestae of the charged offense is admissible without balancing the probative value of the evidence against its prejudicial effect and without any pretrial Prieur notice by the state.
Although defendant intimates in his brief that the district attorney‘s remarks were in contravention of the court‘s ruling on defendant‘s motion in limine, it is clear that the court‘s order was issued at the conclusion of jury selection; the inadvertent reference to the incorrect indictment was made before jury selection. Thus, the remarks were not in contravention of the court‘s order but were indistinct references to another part of the res gestae of the offense for which defendant was on trial. This assignment of error is without merit.
The conviction and sentence are affirmed.
AFFIRMED.