633 So.2d 142 (La. 1994), 93-KA-2159, State v. Baxley

Docket Nº:93-KA-2159.
Citation:633 So.2d 142, 93-2159 La. 2/28/94
Party Name:STATE of Louisiana v. Johnny L. BAXLEY.
Case Date:February 28, 1994
Court:Supreme Court of Louisiana

Page 142

633 So.2d 142 (La. 1994)

93-2159 La. 2/28/94

STATE of Louisiana

v.

Johnny L. BAXLEY.

No. 93-KA-2159.

Supreme Court of Louisiana.

February 28, 1994

Rehearing Denied April 6, 1994.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Mark D. Pethke, Jack Peebles, New Orleans, for applicant.

John D. Rawls, New Orleans, for respondent.

Grover Rees, III, Washington, DC, for Louisiana Counsel Knights of Columbus, Christian Coalition of Louisiana, Louisiana Public Policy (Amicus Curiae).

R. James Kellogg, New Orleans, Evan Wolfson, New York City, for Lambda Legal Defense and Educ. (Amicus Curiae).

Glenn J. Reames, New Orleans, for The John Doe Group (Amicus Curiae).

W. Lloyd Bowers, New Orleans, for Nat. Lesbian and Gay Bar Ass'n (Amicus Curiae).

Marilyn M. Fournet, Baton Rouge, for Louisiana Ass'n Crim. Defense Lawyer (Amicus Curiae).

Denise Leboeuf, New Orleans, for American Civil Liberty Union (Amicus Curiae).

Jeffrey T. Reeder, New Orleans, for Friends for Life, Capital Area Hiv-Aids Service, Philadelphia Center, No Aids Task

Page 143

Force, Inc., United Service Aids Foundation (Amicus Curiae).

F. Clayton Latimer, New Orleans, Counsel for Nat. Ass'n of Social Workers (Amicus Curiae).

Ted L. Luquette, New Orleans, Ruth E. Harlow, William B. Rubenstein, Ralph E. Jones, New York City, for American Friends Service Committee, The Com'n on Social Action of Reform Judaism, Dignity/USA, Office for Church in Soc. of the United Church of Christ, General Bd. of Church and Soc. of the United Methodist Church, Unitarian Universalist Ass'n, Universal Fellowship of Metropolitan Community Churches, First Unitarian Universalist Church, New Orleans, Task Force for Gay and Lesbian Concerns of the First Unitarian Universalist Church New Orleans, Victory Fellowship Metropolitan Community Church, Shreveport, Reverend Deanne B. Aime, Rabbi David Goldstein and Reverend William P. Richardson, Jr. (Amicus Curiae).

Ronald L. Wilson, New Orleans, for Edwin A. Murray, and Arthur A. Morrell (Amicus Curiae).

[93-2159 La. 1] WATSON, Justice. 1

This is a direct appeal from a trial court judgment holding the crime against nature statute, LSA-R.S. 14:89, an unconstitutional invasion of a citizen's right to privacy under La. Const. art. I, § 5.

FACTS

Since the trial judge granted a pretrial motion to quash, the only details about the alleged crime are in the police report, the bill of information and the pleadings. According to the state, on June 4, 1992, [93-2159 La. 2] Johnny Baxley approached an undercover police officer who was sitting on a New Orleans French Quarter stoop and offered to pay the officer $20 if he would allow Baxley to perform fellatio on him. The officer agreed and stood up, which signaled backup officers to arrest Baxley. The undercover officer was not wearing a wire; no money changed hands. Baxley admits discussion of consensual fellatio but denies a monetary offer.

Baxley was charged by bill of information with violating LSA-R.S. 14:89, relative to crime against nature. Baxley filed a motion to quash the information, asserting that the statute was unconstitutional on nineteen grounds. After a hearing, the trial court decided Baxley had standing to challenge the statute's constitutionality and that the statute violated the state constitutional right to privacy. A direct appeal was taken to this Court. La. Const. art. V, § 5(D)(1).

LAW AND ANALYSIS

LSA-R.S. 14:89 provides:

  1. Crime against nature is:

    (1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. [93-2159 La. 3] 14:41, 14:42, 14:42.1 or 14:43. [Rape statutes.] Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

    (2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.

  2. Whoever violates the provisions of this Section shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.

    Initially, this Court must determine whether Baxley has standing to challenge the statute's constitutionality. "As a general rule a party does not have standing to challenge the constitutionality of a statute unless the application of that statute adversely affects him." State v. Brown, 389 So.2d 48, 50 (La.1980). Accord State v. Rue, 236 La. 451, 107 So.2d 702 (La.1958).

    Page 144

    Baxley argues he has standing because he is charged with violating LSA-R.S. 14:89 in its entirety and because subpart (A)(1) cannot be severed from subpart (A)(2). In addition, Baxley contends attempted crime against nature under LSA-R.S. 14:89(A)(1) may be a responsive verdict to a charge under LSA-R.S. 14:89(A)(2). The state counters that the information clearly...

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