State ex rel. Graffagnino v. King

• Citation: 436 So.2d 559
• Decision Date: 27 June 1983
• Docket Number: 83-KA-0016,Nos. 82-KH-0556,s. 82-KH-0556
• Parties: STATE ex rel. Danny H. GRAFFAGNINO v. John T. KING, Secretary of the Louisiana Department of Corrections, J.D. Middlebrooks, Warden. STATE of Louisiana v. Danny H. GRAFFAGNINO.
• Court: Supreme Court of Louisiana

Page 559

436 So.2d 559

STATE ex rel. Danny H. GRAFFAGNINO v. John T. KING, Secretary of the Louisiana Department of

Corrections, J.D. Middlebrooks, Warden.

STATE of Louisiana v. Danny H. GRAFFAGNINO.

Nos. 82-KH-0556, 83-KA-0016.

Supreme Court of Louisiana.

June 27, 1983.

Rehearing Denied Sept. 1, 1983. ^*

William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Goudeau, III, Dist. Atty., Donald J. Richard, Robert Brinkman, Asst. Dist. Attys., for respondent in No. 82-KH-0556 and plaintiff-appellee in No. 83-KA-0016.

Paul Henry Kidd, Monroe, for relator in No. 82-KH-0556 and defendant-appellant in No. 83-KA-0016.

BLANCHE, Justice.

Defendant Danny Graffagnino was convicted in a non-jury trial of forcible rape, a violation of LSA-R.S. 14:42.1. Following a presentence investigation, he was sentenced to eight years at hard labor, with two years to be served without benefit of parole, probation, or suspension of sentence. No appeal was taken. Subsequently, in an application for post-conviction relief, the defendant urged that he was denied effective assistance of counsel in that his retained attorney had utterly failed to prepare for trial. The trial court denied the application, but we granted the defendant's request for a writ of certiorari and ordered the matter consolidated with an out-of-time appeal. State ex rel. Graffagnino v. King, 422 So.2d 426 (La.1982). The defendant now urges five assignments of error.

The defendant met the sixteen year old victim on the evening of May 19, 1979 at an Opelousas, Louisiana night spot called the "Southern Club." The victim had gone to the club with several of her friends and had been seen dancing with several young men. According to the defendant, she looked "pretty loose" (drunk) and he wanted to dance with her. After several dances, the victim wanted a ride home because it was near the 2:00 a.m. closing time for the club. The defendant solicited from a friend a ride to his house where he intended to get his father's car to take the girl home.

Once at the defendant's house, the couple went inside to the defendant's room so he could show her his drum set and electric guitar. Shortly thereafter, the two went "out walking" and ended up in a nearby graveyard. The stories of the two diverge at this point, but it appears that some sort of struggle ensued, and the victim fell into a ditch full of water. The victim claims that she fell into the ditch while escaping from the defendant when he began to pull at her clothes. On the other hand, the defendant testified at trial that the victim became quite enamored once they reached the graveyard and stumbled into the ditch as she excitedly tried to remove her pants.

The victim testified that the defendant forced her to remove her jeans after she fell into the water and proceeded to rape her. She asserted that she attempted to scream, but that the defendant had threatened to hit her if she did not "shut up" and submit. She testified that she submitted in fear of violence by the defendant and believed that further resistance would be pointless. By all accounts, the two were in the graveyard for several hours, and the victim was brought to her home at nearly 5:00 a.m., soaking wet and covered with mud. She immediately told her parents that she had been raped, and a physical examination about an hour later showed that penetration had indeed occurred. ¹

Following the incident, the defendant gave three different versions of the events which had transpired that night. In a voluntary statement to police after his arrest, the defendant denied ever having been to the graveyard. At trial, he admitted having gone to the graveyard with the victim, but denied having had sexual intercourse with her and asserted that he had repelled her sexual advances. At the hearing on his application for post-conviction relief, the defendant admitted to having perjured himself at trial and admitted to having had intercourse with the victim, but asserted that it was consensual. However, the victim was not without inconsistencies in her testimony. On cross-examination, she admitted that she had first told her mother that she had not been raped, but then immediately changed her story to state that she had been.

ASSIGNMENTS OF ERROR NOS. 1, 2

By these assignments, the defendant urges that the trial court erred in admitting into evidence the statement given to police following his arrest on the grounds that he was never given formal notice by the state of its intention to introduce it at trial. He also argues that the statement had not been given voluntarily and should not have been used for impeachment purposes. Specifically, the defendant urges on appeal that the statement was made without a knowing and intelligent waiver of his right to remain silent, the right to consult with an attorney, and the right to have an attorney present during questioning. Moreover, the defendant argues, he was not advised of each right separately in order to ascertain his voluntary waiver of each. ²

Our review of the record shows that the defendant was arrested by the Opelousas City Police late on the night of May 21, 1979 and brought directly to the courthouse. At 11:18 p.m., the defendant was advised of his Miranda rights and executed a waiver of those rights. At 12:29 a.m. he gave the taped statement he now complains of and was again informed of his rights by the interrogating officer, who expressly advised the defendant that he could terminate the interview at any time.

Before a confession is admissible into evidence, the burden is upon the state to prove that it was given freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. LSA-R.S. 15:451; State v. Brogdon, 426 So.2d 158 (La.1983); State v. Jackson, 414 So.2d 310 (La.1982). The factual determinations of the trial court as to the voluntariness of a confession will not be overturned on appeal unless unsupported by the evidence. State v. Jackson, supra; State v. Vaccaro, 411 So.2d 415 (La.1982). In our view, there is no evidence in the record which would establish that the defendant was not adequately informed of his constitutional rights or that the statement was given under conditions demonstrating constitutional violations. Other than his assertion that he was "sleepy," the record does not reflect that the defendant was so disoriented that his state of fatigue should vitiate the voluntariness of the statement. Moreover, the defendant was warned twice of his rights before submitting to questioning.

As to the defendant's contentions that he had received no pre-trial notice of the state's intention to introduce the statement for purposes of impeachment, our review of the record shows without qualification that defense counsel had indeed been given notice pre-trial. The purpose of the notice required by La.C.Cr.P. art. 768 is to avoid surprise to the defendant and to allow adequate time for preparation of a defense. See State v. Billiot, 421 So.2d 864 (La.1982). Even though it is apparent here that the defendant did have prior notice of the state's intention to use the statement, such notice is generally unnecessary in bench trials. State v. Korman, 397 So.2d 1346 (La.1981); State v. Cleary, 262 La. 539, 263 So.2d 882 (1972). Assuming, arguendo, that the notice given did not comport with the written requirement of art. 768, the defendant could not have been surprised by the state's use of the statement because of his counsel's actual notice; absent surprise, there is not sufficient prejudice to the defendant to require reversal of the conviction. Cf. State v. Spot, 340 So.2d 1349 (La.1976); State v. Bolen, 338 So.2d 97 (La.1976). Moreover, the proper procedure by which to urge suppression of an inculpatory statement is through the pre-trial motion to suppress. La.C.Cr.P. art. 703; State v. Smith, 283 So.2d 470 (La.1973); State v. Chambers, 263 La. 1080, 270 So.2d 514 (1972).

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defendant urges that the state failed to prove his guilt beyond a reasonable doubt. More specifically, he argues that the state failed to prove, within the meaning of LSA-R.S. 14:42.1, that the victim was "prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believe[d] that such resistance would not prevent the rape".

It is well-settled that the evidence is sufficient to support the conviction when any rational trier of fact, in viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and this court will not second-guess the credibility determinations of the trier of fact beyond our sufficiency evaluations under the Jackson standard of review. See State v. Richardson, 425 So.2d 1228 (La.1983).

Here, the trier of fact accorded much weight to the testimony of the victim that she believed that the threat of physical violence by the defendant made resistance useless, especially when viewed against the defendant's conflicting accounts of the events which transpired. The victim testified that the defendant had forced her to the ground and made her remove her jeans. She asserted that she began screaming, but that he threatened to hit her if she didn't "shut up" and submit. She claimed that her submission was prompted by a fear of violence by the defendant.

Furthermore, the examining physician testified that grass and other foreign matter had been forced into the victim's vagina and that the condition of her genitalia was consistent with forcible intrusion or intercourse....