93 1090 La.App. 1 Cir. 4/8/94, State v. Stelly

• Decision Date: 08 April 1994
• Citation: 93 1090 La.App. 1 Cir. 4/8/94, State v. Stelly, 635 So.2d 725 (La. App. 1994)
• Parties: 93 1090 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 725

635 So.2d 725

93 1090 La.App. 1 Cir. 4/8/94

STATE of Louisiana v. Donald J. STELLY.

No. 93 KA 1090.

Court of Appeal of Louisiana First Circuit.

April 8, 1994.

Richard J. Ward, Jr., Dist. Atty., Maringouin, and Michael E. Parks, Asst. Dist. Atty., New Roads, for State.

Edward J. Lopez, Opelousas, for defendant-appellant Donald J. Stelly.

Before CARTER, GONZALES and WHIPPLE, JJ.

[93 1090 La.App. 1 Cir. 2] CARTER, Judge.

Donald J. Stelly was indicted with attempted forcible rape, a violation of LSA-R.S. 14:27 and 14:42.1. He pled not guilty and, after trial by jury, was convicted of the responsive offense of attempted simple rape, a violation of LSA-R.S. 14:27 and 14:43. The court sentenced him to serve a term of five years imprisonment at hard labor, with credit for time served. The court suspended the sentence and placed him on supervised probation for five years with special conditions (including serving one year in the parish jail). Defendant has appealed, urging four assignments of error.

FACTS

On the evening of January 7, 1992, the victim, a young female college student, was on her way back to school in Baton Rouge after being home for the holidays. She was driving a new car and was traveling alone. In Krotz Springs, she stopped at an Exxon station to use the restroom and make a purchase. Before she went into the store, a pickup truck pulling a camper pulled up behind her. Although the truck obviously was blocking the victim's car, the driver of the truck, later identified as being defendant, asked the victim if he was blocking her. Because the victim was about to go into the store, she told the man that it was alright, but that he would have to move the truck when she was ready to leave. The victim then went into the store. When she returned to her car, the truck was moved, but the driver came to her window and asked her if she wanted to talk. The victim thought defendant was behaving strangely and declined his request. She then proceeded on her way to Baton Rouge.

She partially traversed a bridge which crosses the Morganza Spillway, when she realized she had a flat tire. Frightened by her situation and concerned because the bridge did not have a shoulder, the victim put on her emergency lights and attempted to secure assistance. Defendant pulled his vehicle next to the victim's car and told her that he would help and would be [93 1090 La.App. 1 Cir. 3] waiting for her at the end of the bridge. At the end of the bridge, defendant told the victim she had a flat tire and asked if she had a spare. Unfamiliar with her car, the victim said she did not think so. After defendant appeared to look for the spare, he announced that the victim did not have one. When the victim indicated that she was on her way to Baton Rouge, defendant said he lived there and would bring her to Baton Rouge. The victim accepted defendant's offer because she did not know where else she could go. She offered to pay him for the trip. Defendant then helped put the victim's bags into the back of his truck, and they proceeded in defendant's truck toward to Baton Rouge.

After a short distance, defendant asked the victim if she would rather have sex with him instead of paying him. Shocked, the victim said no and insisted that defendant take her back to the Exxon station in Krotz Springs. Defendant agreed and turned the truck around. Shortly before reaching the Atchafalaya River Bridge, defendant pulled his truck off onto a side road, explaining that he needed to get a beer out of his camper. This action frightened the victim. She felt that she was trapped between the woods in one direction and defendant in the other. She was concerned that defendant would kill her, and she did not know what he was going to do in the camper. She offered to buy him beer at the station, but defendant refused. When defendant returned to the truck, he grabbed the victim's arm, aggressively pulled her towards him, and kissed her on the lips. Despite the victim repeatedly telling defendant that she did not want to have sex with him, he persisted even after the victim established that she was menstruating. When the victim attempted to open the door, defendant grabbed both of her wrists and pulled her back. Continuing to ask the victim to have sex with him, defendant began squeezing her breasts and pushing her down in the truck. In an effort to provide a chance for escape, the victim finally told defendant that she would have sex with him, but that she wanted to do it outside of the truck. Surprised by the victim's response, [93 1090 La.App. 1 Cir. 4] defendant let go of her. The victim then got out of the truck, ran across the highway, and turned towards Krotz Springs. Frantically trying to escape, the victim ran in front of several large trucks, hoping someone would stop to help her. When she was halfway over the bridge, defendant pulled alongside her. He apologized and told her that he had left her belongings at the Exxon station. The victim kept running. When the victim arrived at the station, her elbows were bleeding, and she had blood on her ankles. A woman at the station called the police.

When the police arrived, the victim gave a description of her attacker. A wrecker arrived to move her car, and the wrecker driver and the police officer discovered the victim's spare tire in her trunk. A couple of days after the offense, at the request of a detective with the Pointe Coupee Parish Sheriff's Office, the victim viewed a surveillance tape which had been recorded at the Exxon station. While viewing the tape, the victim identified both herself and her attacker. A detective with the St. Landry Parish Sheriff's office also viewed the tape, and afterwards the detectives prepared a photographic display, including defendant's picture. After viewing the photographs, the victim selected defendant's picture without hesitation. On January 9, 1992, defendant was arrested at his campsite in Lottie, off the Morganza Spillway.

Defendant testified in his own defense. He indicated that he lived in Opelousas and denied telling the victim that he lived in Baton Rouge. Defendant admitted stopping to help the victim with her car, but denied looking for a spare tire. He claimed that he and the victim did not discuss going to Baton Rouge and that he agreed only to take the victim back to Krotz Springs. Defendant testified that he stopped the truck before going over the bridge because he needed to use the bathroom. He denied saying that he wanted to get a beer. Defendant claimed that, when he returned to the truck, he reached over to hug the victim only in an effort to comfort her. He explained that the victim had been [93 1090 La.App. 1 Cir. 5] crying when he stopped to help her and that she still was crying when he returned to his truck. Defendant admitted that the victim got out of his truck and ran across the highway after this "hug," but he denied kissing the victim or asking her to have sex with him.

DENIAL OF MOTION FOR MISTRIAL

In assignment of error number one, defendant argues that the court erred when it failed to grant a mistrial, or at least give an admonishment to the jury, when the state elicited testimony from a witness that defendant did not make any statements after his arrest.

At the conclusion of the testimony of Brett Robillard, the investigating detective from the Pointe Coupee Parish Sheriff's Office, the state questioned Robillard about the photographic display which was shown to the victim. The state then asked, "Did Donald Stelly, after he was arrested and advised of his rights, did he give you any statements?" Robillard responded, "No, sir, he didn't." Defendant's attorney objected. In response, the court indicated that the question had been asked and answered but cautioned the prosecutor. At defendant's request, the court removed the jury. Defendant then moved for a mistrial, arguing that the state improperly questioned the officer concerning defendant's failure to make a statement after his arrest. The court overruled the objection and denied the motion for mistrial. Defendant then requested an admonishment, which the court denied. After the jury returned, the state tendered the witness for cross-examination.

The United States Supreme Court has held that, because an accused's post-arrest silence is "insolubly ambiguous" and a jury is apt to draw inappropriate inferences from the fact that a defendant chose to remain silent, "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." Doyle v. Ohio, 426 U.S. 610, 617 & 619, 96 S.Ct. 2240, [93 1090 La.App. 1 Cir. 6] 2244 & 2245, 49 L.Ed.2d 91 (1976). ¹ This ruling also applies to instances where a defendant does not take the stand. In such a situation, "there is even less justification ... for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest." State v. Montoya, 340 So.2d 557, 560 (La.1976). See State v. Kersey, 406 So.2d 555, 559 (La.1981).

The Louisiana Supreme Court has indicated that, under the authority of article 771 of the Code of Criminal Procedure, where the prosecutor or a witness makes a reference to a defendant's post-arrest silence, the trial court is required, upon the request of the defendant or the state, promptly to admonish the jury. In such cases where the court is satisfied that an admonition is not sufficient to assure the defendant a fair trial, upon motion of the defendant, the court may grant a mistrial. State v. Kersey, 406 So.2d at 560.

In the instant case, the reference to defendant's post-arrest silence does not appear to be for the purpose of simply calling the jury's attention to it or having the jury make an inappropriate inference. See ...