State v. PerkinsState v. Perkins
Defendant, Leonard B. Perkins, appeals from his conviction of first degree murder and his sentence to life imprisonment without benefit of parole, probation or suspension of sentence. For the reasons which follow, we affirm the conviction and sentence, amending the later to afford credit for time served, and remand the case to the district court for notification to defendant of the prescriptive period for post conviction relief.
On March 1, 1994, Jefferson Parish Sheriff‘s Office personnel responded to a call about a body at an abandoned house in the 7000 block of Britt Street in Jefferson Parish. There, deputies discovered the body of a deceased black female, later identified as Penny Rodrigue. The victim was lying faceup and her shirt was pulled up around her neck. She was nude from the waist down. A subsequent autopsy revealed that the victim had been strangled and revealed the presence of sperm in the victim‘s vagina. While at the scene, deputies talked to Lisa Johnson, who lived next to the abandoned house. She dеnied seeing or hearing any event related to the decedent. Subsequently, deputies picked up her husband, Lynndon Johnson, for questioning related to this homicide. At that time the Johnsons gave statements about the victim‘s activities which they observed on the evening of February 28, 1991. At approximately 11:00 p.m., Mrs.
Lynndon Johnson returned home and his wifе told him to look out of the window. Mr. Johnson also saw defendant having sex with the victim. Defendant left and returned a while later and again had sex with the victim. Mr. Johnson wanted to call the police, but Mrs. Johnson persuaded him not to do so. She was concerned that the police would accuse him of the offense because the police were always “harassing him.” However, the next morning when the victim‘s body was still behind the abandoned house, Mrs. Johnson called the police.
As a result of the Johnsons’ statements, defendant was arrested. He gave a taped statement admitting that he raped and choked the victim. Defendant was charged with first degree murder, in violation of
First, defendant argues that the trial court erred in rejecting certain special jury instructions that he had proposed. More particularly, defendant contends that error was committed when the submitted special jury instructions regarding manslaughter were not read to the jury. He argues that this omission (1) violated
The pertinent jury instructions regarding manslaughter given by the trial judge are as follows:
Manslaughter is the killing of a human being when the defendant has a specific intent to kill or inflict great bodily harm but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection, or
A killing committed without any intent to cause death оr great bodily harm when the defendant is engaged in the perpetration or attempted perpetration of simple rape.
Simple rape is a rape committed when the anal or vaginal sexual intercourse is deemed to be without the lawful consent of a victim because it is committed under any one or more of thе following circumstances:
1) when the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by an intoxicating narcotic or anesthetic agent, administered by or with the defendant; or when the victim has such incapacity, by reason of stupor or abnormal condition of mind from any cause, and the offender know or should have known of the victim‘s incapacity, or
2) when the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act and the offender knew or should have known of the victim‘s incapacity.
Thus, in order to convict the defendаnt of manslaughter, you must find:
1) that the defendant killed Penny Rodrigue; and
2) that the defendant had a specific intent to kill or inflict great bodily harm; and
3) that the killing was committed in sudden passion or heat of flood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.
or:
1) that the defendant killed Penny Rodrigue; and
2) that the defendant had no intent to kill or infliсt great bodily harm and was engaged in the perpetration or attempted perpetration of simple rape.
The trial court did not include three of defendant‘s proposed jury instructions regarding manslaughter. They are as follows:
Proposed Instruction 1:
“There are two basic types of manslaughter: (1) homicide committed in the heat of passion and (2) homicide committed during the perpetration of certain felonies and misdemeanors, or resisting lawful arrest. (See
La.R.S. 14:30.1 ) It is only the second type of manslaughter which does not require intent to kill or inflict great bodily harm. The heat of passion manslaughter `would be murder under Article 30 (first degree murder) or Article 30.1 (second degree murder)’ exceрt for the `sudden passion or heat of blood.’ Therefore this type of manslaughter has all the elements of first or second degree murder, including specific intent to kill or inflict great bodily harm, but in addition has the mitigating circumstance of sudden passion.” (State v. Tompkins, 403 So.2d 644, 648 (La.1981); State v. Rayford, 476 So.2d 961, 964 (La. App. 1 Cir.1985)).“The existence of “sudden passion” and “heat of blood” are not elements of the offense, but rather are factors in the nature of mitigating circumstances which may reduce the grade of homicide.” (State v. Tompkins, 403 So.2d 644, 648 (La.1981); State v. Smith, 490 So.2d 369, [sic] at 370 (La.App. 1 Cir.1986), writ denied, 494 So.2d 324 (La.1986)).
Proposed Instruction 2:
If you believe that the elements of first or second degree murder are present, then you must “determine whether the circumstances indicated that the crime was actually manslaughter. Provocation may reduce a homicide to manslaughter if `the offense is committed in sudden passion ... immediately caused by provocation sufficient to deprive an average person of his control and cool reflection.’
LA. R.S.-R.S. 14:31(1) . Nevertheless, `provocation shall not reduce a homicide to manslaughter if the jury finds the offender‘s blood had actually cooled, or that an average person‘s blood would have cooled at the time the offense was committed.’ Id. ... State v. Tompkins, 403 So.2d at 648. Because the question of provocation is one of fact, the jury must determine whether the offender‘s blood had cooled, or whether the average person‘s blood would have cooled.” (State v. Tompkins, 403 So.2d 644, 648 (La.1981); State v. Rayford, 476 So.2d 961, 964 (La.App. 1 Cir.1985)).
Proposed Instruction 3:
“Heat оf passion” is defined in criminal law as “passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time.” Black‘s Law Dictionary 4th Ed. at 853.
Defendant argues that the jury instructions given by the court provided a detailed definition of manslaughter involving a simple rape but failed to contain a detаiled definition of manslaughter where the killing was committed in the “heat of blood” or “sudden passion.”
The state and the defendant shall have the right before argument to submit to the
court special written charges for the jury. Such charges may be receivеd by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court. A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.
Defendant‘s first and second requested special jury charges closely and contextually parallel the charge on manslaughter given by the trial court. The law clearly provides that a requested special charge which is inсluded in the general charge need not be given.
As to the third requested jury instruction, it was within the trial court‘s discretion to refuse to givе the requested definition of “heat of passion“, because it would have required a qualification, limitation or explanation.
Therefore, this assignment of error has no merit.
Next, defendant argues that the trial court erred in denying defendant‘s motion for a mistrial, made during the prosecutor‘s rebuttal argument. He argues that the prosecutor‘s specific statement during rebuttal, “Allow me thе opportunity to come back and tell you why this should be a death penalty case,” referred to other evidence of defendant‘s guilt or bad character, was prejudicial and warrants a reversal of his conviction.
The state contends that the statement was “merely a reference to statements made to the jury during voir dire regarding the possibility of a penalty phase in a first degree murder trial.”
During the trial, the court sustained defendant‘s objection and admonished the jury to disregard the prosecutor‘s remark. Defense counsel continued to argue that the remark was “misconduct” and requested a mistrial. The trial court denied this motion for a mistrial.
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Racе, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition
be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
Clearly, the remark in this case is not within the scope of
Defendant also assigned as error any and all errors patent on the face of the record. Defendant requests that this court conduct an error patent review of the record. This court routinely reviews every criminal record for errors patent on the face of the record.
For the purpose of an error patent review the “record” in a criminal case includes the caption, the time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the bill of particulars filed in connection with a short form indictment or information, the mentioning of the impaneling of the jury, the minute entry reflecting sequestration in a capital case, the verdict, and the judgment or sentence. See State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5th Cir.1990).
A review of the record reveals two errors patent. First, we find that the trial court failed to give the defendant сredit for time spent in actual custody prior to the imposition of sentence as mandated by
Additionally, the record reflects that the triаl court failed to advised defendant of the three year prescriptive period for post conviction relief, as required in
Accordingly, for the reasons stated above, defendant‘s conviction for first degree murder and sentence to life imprisonment without benefit of parole, probation or suspension of sentence is affirmed, as amended, giving credit for time served, and the case is remanded to district court for further proceedings as provided herein.
CONVICTION AFFIRMED; SENTENCE AFFIRMED, AS AMENDED; CASE REMANDED.
Notes
[2] Article 930.8 C provides:
C. At the time of sentencing, the trial court shall inform the defendant of the prescriptive period for post conviction relief.