State v. Alexander
| Decision Date | 08 November 1976 |
| Docket Number | No. 58164,58164 |
| Citation | 339 So.2d 818 |
| Parties | STATE of Louisiana v. Rickey ALEXANDER. |
| Court | Louisiana Supreme Court |
Harold L. Savoie, Duson Bar, Inc., Lafayette, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appellee.
Defendant Rickey Alexander was charged by grand jury indictment with aggravated rape in violation of La.R.S. 14:42. On November 26, 1975, a jury found defendant guilty as charged. Subsequently he was sentenced to death. Relying on seven assignments of error, defendant now appeals his conviction and sentence.
The incident from which this charge arose occurred on March 6, 1975, between 8:30 and 9:00 a.m. On the morning in question after having seen her children off to school and her husband off to work, the alleged victim went back to bed and was awakened by the doorbell. She got up, put on a robe and answered the door. A man standing at the door asked if her husband was home and when she responded in the negative, he asked her if she knew a George Patin. The woman stated that there was no one in the neighborhood by that name and poceeded to close the door. The man, however, put his hand on the door and pushed it open. The woman then began to scream and tried to get out the door, but he got her by the neck with both hands. Although she apparently kept fighting and trying to get away, he continued to grasp her by the neck so that she could hardly breathe and struck her in the face several times. While she kept fighting and trying to get away, he took her to the floor of the kitchen and had sexual intercourse with her. He then left and she saw him drive away in a 1970 gold car and picked up three of the numbers of the license plate. She called her husband, the police subsequently arrived, and she was taken to the coroner's office for examination at about 10:30 a.m. The coroner testified that she was bruised, that her jaw was swollen and that the results of the genital examination were positive for presence of spermatozoa. An investigation by the police led to defendant's arrest the following day. A tape recording of a confession made by defendant was played to the jury, after having been found admissible. Defendant took the stand, however, and testified that he only made the statement because he was promised to be out by Monday if he did so. He stated that he had been having an affair with the victim, that on the morning in question he had gone to her house to call it off, that she had crused at him and slapped him in the face, and that because of this he did hit her and put his hands around her neck.
ASSIGNMENTS OF ERROR NOS. 1, 4, and 6.
By assignment of error number one, defendant argues that the trial court should have granted a new trial or dismissed the charge against defendant on the grounds that the verdict was contrary to the law and the evidence. By assignment of error number four, defendant contends that assuming there was a rape there was a total lack of evidence of the aggravated nature of the rape. By assignment of error number six, defendant argues that the medical evidence was inadequate to show a 'connection' between the alleged victim and defendant.
These assignments of error are consolidated for argument as they all relate to a purported insufficiency of evidence introduced at trial. At the outset it should be noted that assignment of error number one is not argued in brief but is being discussed because defendant was convicted of a capital offense. That assignment is apparently based on the denial of a motion for a new trial, the grounds urged being that the verdict was contrary to the law and the evidence. The motion for a new trial, however, does not raise this issue but rather sets forth grounds which are the subject of assignments of error numbers five and seven, discussed Infra. With these factors in mind, the specific assignments will be discussed more fully.
In criminal matters, the scope of this Court's appellate jurisdiction extends only to questions of law. La.Const. art. 5, Sec. 5(C) (1974). A contention that a verdict was based on insufficient evidence is essentially a question of fact. Only where defendant has moved for a directed verdict during trial (permissible in jury trials prior to the recent amendment of article 778 C.Cr.P., Acts 1975, No. 527, § 1) or for a new trial based on the argument that there is no evidence at all of some essential element of the crime charged is a question of law presented which this Court can review. See State v. Jack, 332 So.2d 464 (La.1976); State v. Jones, 303 So.2d 486 (La.1974); State v. Douglas, 278 So.2d 485 (La.1973). No such motions were made by defense counsel in the instant case. However, because of the capital nature of the offense, we will discuss the issue of whether there was at least some evidence of the essential elements of the crime.
Defendant was charged with the offense of aggravated rape. Rape is defined in La.R.S. 14:41 as follows:
Aggravated rape is defined at La.R.S. 14:42 as follows:
'Aggravated rape is a rape committed where the sexual intercourse is deemed to be without the lawful consent of the female because it is committed under any one or more of the following circumstances:
(1) Where the female resists the act to the utmost, but her resistance is overcome by force.
(2) Where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) Where she is under the age of twelve years. Lack of knowledge of the female's age shall not be a defense.
Whoever commits the crime of aggravated rape shall be punished by death.'
In the instant case there was At least some evidence that defendant had sexual intercourse with the victim, who was not his wife, without her consent. With respect to the aggravated nature of the rape, there was At least some evidence that the victim resisted the act to the utlmost but that her resistance was overcome by force. The victim testified that throughout the episode she continued to fight defendant, pushing on him and trying to get away. In apparent reaction to this resistance, defendant had to grasp her by the neck leaving bruise marks. He also struck her in the face at least once, more likely several times, leaving her jaw swollen.
In specific response to defendant's arguments on appeal, the fact that no weapon was introduced and that no clothing was exhibited to the jury is not controlling. The absence of a weapon does not mean that a victim's utmost resistance was not overcome by force, and there was apparently no probative value to the clothes the victim was wearing under the facts of this case. She did not in fact testify that any clothing was torn or soiled during the incident. With respect to defendant's argument that the medical evidence did not indicate any physical contact between the alleged victim and defendant there was testimony by the coroner that approximately one hour and a half after the alleged offense, a genital examination of the victim showed the presence of spermatozoa. In addition, the coroner testified that there is no test for determining that particular semen comes from a particular male, but only whether the spermatozoa is present or not. While the physician did state that there are some sophisticated tests for determining blood type from semen, no facilities for carrying out the test were available in Lafayette. The failure to carry out this test even if it was available would only go to sufficiency of the evidence. Absence thereof would not establish a total lack of evidence.
It is submitted that these assignments of error lack merit.
ASSIGNMENTS OF ERROR NOS. 2 AND 3.
By assignment of error number two, defendant argues that the recording of 'some' statements made by defendant should not have been admitted into evidence because they were incomplete. By assignment of error number three, defendant argues that the confession itself was improperly admitted in that prior to giving the statement defendant did not affirmatively and positively indicate that he understood his rights.
Defendant was arrested on March 7, 1975, the day following the alleged rape, in Breaux Bridge, Louisiana by an officer with the Breaux Bridge City Police. Almost immediately thereafter he was taken into custody by Detective Guy Barnett and Roland Boutte of the Lafayette Police Department and placed in their police unit to be transported back to Lafayette. Once in the police car, the officers gave defendant his rights orally. The rights were again given defendant when they arrived at their office. On this latter occasion he signed a waiver of rights form and gave a statement, in question and answer form, confessing to the rape. The giving of the rights in the police unit and some questioning of defendant during the ride back to Lafayette were tape recorded, as were the regiving of the rights and the confession taken at the office.
Defendant contends that he did not adequately acknowledge his understanding of his rights prior to giving the statement. The tape recording taken during the ride from Breaux Bridge indicates that defendant was adequately informed of his rights. When told of his right to counsel, he indicated he did not understand. Following a re-explanation, he stated, 'Oh, I understand.' The tape recorded at the office contains another reading of defendant's Miranda rights and a response by him that he understood. One of the officers then read defendant a waiver of rights form and asked him ...
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... ... State v. Ross, 343 So.2d 722 (La.1977). Although the State bears a heavy burden of proving a waiver of these rights, waiver is to be determined by the facts of each case. State v. Alexander, 339 So.2d 818 (La.1976) ... In the instant case, it is argued that the defendant's confession should have been suppressed because he only signed the statement of his rights and not the waiver form and because he merely stated that he understood his rights at the beginning of his ... ...
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