State v. Adams

• Decision Date: 04 February 1981
• Docket Number: No. 80-KA-1702,80-KA-1702
• Citation: 394 So.2d 1204
• Parties: STATE of Louisiana v. Leslie Kyle ADAMS.
• Court: Louisiana Supreme Court

Page 1204

394 So.2d 1204

STATE of Louisiana v. Leslie Kyle ADAMS.

No. 80-KA-1702.

Supreme Court of Louisiana.

Feb. 4, 1981.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Nick Pizzolatto, Jr., Caskey & Pizzolatto, Gregory D. Lyons, Lake Charles, for defendant-appellant.

E. L. GUIDRY, Jr., Justice Ad Hoc. ^*

Defendant, Leslie Kyle Adams, was charged with the crime of aggravated rape, a violation of R.S. 14:42. A jury of twelve found the defendant guilty as charged. Following his conviction, the defendant was adjudged a habitual offender pursuant to the provisions of the Louisiana Habitual Offender Law, La.R.S. 15:529.1, and sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. ¹ The defendant assigns twenty-seven (27) errors for reversal of his conviction and sentence.

FACTS

The defendant was convicted of the aggravated rape of Angela Beth Carter, his five year old stepdaughter. The record discloses the following facts. On August 4, 1979, Mrs. Pamela Adams, wife of the defendant and mother of the victim, was employed at a convenience store in Lake Charles, Louisiana. Mrs. Adams worked the 3:00 p. m. to 11:00 p. m. shift that evening. At approximately 9:30 p. m., the defendant arrived at the store accompanied by the victim whom defendant cared for while her mother worked. Mrs. Adams observed the child, uninjured and sleeping, in the backseat of defendant's vehicle. Upon realizing that the defendant had been drinking, Mrs. Adams suggested that he and Angela go home. The defendant appeared to comply with her request. At approximately 10:30 p. m., Mrs. Adams, concerned for her daughter's welfare, received permission to leave the store early and proceeded home. Arriving at her residence, Mrs. Adams discovered that neither the defendant nor the young child were home. At midnight that same evening, Mrs. Adams returned to the store to determine if the defendant and her child had been by the store. She observed the defendant in the store's parking lot and noted that he appeared disgruntled and angry. She attempted to enter defendant's vehicle, however the accused blocked her entry and drove off accompanied by the victim. Mrs. Adams noted that the child was in the backseat of the vehicle. Mrs. Adams approached Lake Charles Police Officer W. E. Bushnell early the following morning and requested that he locate her husband and child. The officer found the defendant at the Trailways Bus Station at about 3:30 a. m. on August 5, 1979. Officer Bushnell noted that the child was in the backseat of defendant's vehicle, however, due to his vantage point, could not determine if the child was injured. Defendant's vehicle was later discovered parked on a Lake Charles street on the morning of August 5, 1979 with the defendant asleep in the front seat of the vehicle and the victim asleep in the backseat. Evidence adduced at trial indicated that the victim was injured and bleeding at this time. Defendant accompanied by the victim arrived at the trailer home of Pamela Arabie at 12:00 noon on August 5, 1979. Ms. Arabie discovered young Angela bleeding from the vaginal area with dried blood on her arms, legs and clothing. Shortly thereafter, a neighbor arrived at the Arabie trailer and defendant was persuaded to take the child to a hospital. At the hospital, the examining physician concluded that the child's injuries were consistent with rape. Subsequently, the accused was arrested by the police in connection with the offense.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

Defendant contends that the trial court erred in denying his motion for a change of venue. In addition, defendant alleges error on the part of the trial court in refusing defense counsel's request for additional time to gather witnesses to testify in support of defendant's motion.

La.C.Cr.P. art. 622 provides:

"A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial."

In order for a defendant to be entitled to have his trial moved to another parish he must prove more than a mere knowledge by the public of facts surrounding the offense. Defendant's burden of proof is to show the existence of such prejudice in the collective mind of the community that a fair trial is impossible. State v. Sonnier, 379 So.2d 1336 (La.1980); State v. Matthews, 354 So.2d 552 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977). The granting or denial of the motion for change of venue rests within the sound discretion of the trial judge, and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Sheppard, supra; State v. Bennett, 341 So.2d 847 (La.1976).

In State v. Bell, 315 So.2d 307 (La.1975) this court discussed those relevant factors which should be considered when determining the propriety of granting defendant's request for a change of venue. Such considerations include (1) nature of pre-trial publicity and the particular degree to which it has circulated in the community; (2) the connection of government officials with the release of the publicity; (3) the length of time between the dissemination of the publicity and the trial; (4) the severity and notoriety of the offense; (5) the area from which the jury is to be drawn; (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant; and, (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Defendant called representatives of the Lake Charles media to testify regarding publicity surrounding the instant offense. Testimony of witnesses indicated that the local television station and two area newspapers did not provide an unusual amount of publicity concerning the offense. Most of the news reports relative to the crime were published in close temporal proximity to the offense and defendant's arrest or during the selection of the jury and commencement of trial approximately six months later. Presumably, those news accounts appearing during the selection process were not read or observed by the jurors. There was no testimony indicating any undue connection between government officials and the dissemination of publicity. The area from which the jury was drawn was a fairly populous parish of over 145,000 people. While the heinous nature of the offense cannot be denied, its notoriety was limited. Testimony received at the hearing failed to substantiate defendant's claim that a fair and impartial trial in Calcasieu Parish was impossible.

Defendant challenges the trial court's denial of his request for additional time to "round up" citizens in the community in order to sustain his venue request. This Court has previously authorized the "dry run voir dire" as a legitimate method of exploring community prejudice and pre-trial publicity. In the "dry run voir dire", potential jurors are called for questioning to determine the nature and extent of publicity and the community's attitude toward the defendant. See State v. Bell, supra. Once this process is completed, if the motion for a change of venue is denied, the true voir dire begins.

In the instant case, the defendant via his request for additional time was apparently attempting to conduct "dry run voir dire". At the time of defendant's motion, the jury had already been selected. The testimony of witnesses called by defense counsel clearly indicated that the instant case had not been the subject of extensive pre-trial publicity. Further, the hearing on the motion was scheduled for the day following defendant's request, thus the trial judge concluded that defense counsel had ample opportunity to gather all of the witnesses he needed to prove the validity of his request for a change of venue. We conclude that it was not unreasonable to deny defendant's request for a continuance under the circumstances and discern no abuse of discretion on the part of the trial court.

Defendant's assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER 5

Defendant contends that the State failed to prove the three essential elements of the instant offense, specifically, (1) corpus delicti, penile penetration by the defendant of the victim's vagina; (2) venue in Calcasieu Parish; and, (3) the identity of the perpetrator.

The defendant was convicted of the aggravated rape of his five year old stepdaughter, a violation of La.R.S. 14:42 which provides in pertinent part:

"Aggravated rape is a rape ² committed where the anal or vaginal sexual intercourse is deemed without the lawful consent of the victim because it is committed under one or more of the following circumstances:

(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense."

Our court, in reviewing the sufficiency of evidence supporting a conviction, is governed by the standard of review enunciated in the U. S. Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also, State v. Holmes, 388 So.2d 722 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980). This standard provides that the reviewing court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the...