State v. RichState v. Rich
Defendant, Timothy Rich, was convicted of aggravated rape, a violation of
Defendant filed twelve assignments of error which he has consolidated into three arguments. He also argues that an examination of the record discloses a patent error.1 The latter contention has merit. The conviction and sentence therefore must be reversed. For that reason we find it unnecessary to consider defendant‘s twelve assignments of error.
Defendant purportedly committed the aggravated rape for which he was convicted on August 31, 1977. At that time the statute under which he was later charged,
In analogous situations this court has repeatedly declared that, notwithstanding abolition of the death penalty, upon prosecutions of crimes for which the legislature had prescribed the death penalty, those offenses retained their classifications as capital for the purpose of deciding which procedural rules are applicable. In these cases our court has reasoned that although the death penalty may have been eliminated, the legislature‘s
Accordingly, this court has required jury sequestration in a “capital” murder case even though, post-Furman, death was not a permissible sentence (State v. Holmes, supra); has held that bail was not available in a post-Furman “capital” murder case where the proof is evident or the presumption great (State v. Flood, supra); has held that bail was not automatically available in a “capital” aggravated rape prosecution (State v. Rhymes, supra); has required jury sequestration in a “capital” aggravated rape trial (State v. Hunter, 306 So.2d 710 (La.1975)); and has unanimously held that a defendant charged with the “capital” offense of murder could not waive trial by jury, and was entitled to juror sequestration and a unanimous verdict (State v. Lott, 325 So.2d 576 (La.1976)). Additionally, Holmes and Flood and succeeding cases were cited with approval in connection with an incidental question in State v. McZeal, 352 So.2d 592 (La.1977).
The foregoing demonstrates that the jurisprudence has been consistent and clearly requires that the trial of a case such as the present one, an aggravated rape committed on August 31, 1977 (at which time the state statute categorized the crime as capital but execution was impermissible because of Selman and Coker), conform procedurally to the requirements applicable to a “capital” prosecution.
In the present case the matter was not tried in accordance with procedural rules applicable to capital prosecutions. The jury was not sequestered, although the defendant requested that this be done;
It is clear from our jurisprudence that when the lack of jury sequestration in a capital case is reflected in the court minutes, as in this case, the error is one which is discoverable by a mere inspection of the pleadings and proceedings. See State v. Luquette, 275 So.2d 396 (La.1973).
It is evident, therefore, that the trial judge erred in treating the case procedurally as one less than capital. The state‘s attempt to distinguish the present case from the earlier cited decisions is unavailing. The mere fact that this case was tried several months after Coker, when the death penalty was invalidated for rape cases, does not permit a departure from the rationale and the rules of the cases cited above. Conformance to the procedures mandated in the trial of capital cases was no less required.
For the foregoing reasons, the conviction and sentence of defendant Timothy Rich are reversed. The case is remanded to the district court for a new trial.
Notes
“The following matters, and no others shall be considered on appeal:
(2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.”