State v. Amphy

• Citation: 249 So.2d 560,259 La. 161
• Decision Date: 07 June 1971
• Docket Number: No. 50897,50897
• Parties: STATE of Louisiana, Appellee, v. Terry Lee AMPHY, Appellant.
• Court: Louisiana Supreme Court

Page 560

249 So.2d 560

259 La. 161

STATE of Louisiana, Appellee, v. Terry Lee AMPHY, Appellant.

No. 50897.

Supreme Court of Louisiana.

June 7, 1971.

J. Carl Parkerson, Monroe, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Robert W. Kostelka, Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant was convicted of aggravated rape, La.R.S. 14:42, and sentenced to life imprisonment.

The principal errors contended as a basis for reversal concern: 1. The composition and selection of the grand jury, of the petit jury panel, and of the petit jury; 2. Arrest and search and seizure questions; 3. An in-court identification by the victim; 4. The admission of testimony of pre-custodial statements and search; 5. The refusal to give a special alibi instruction.

For the reasons to be set forth, we find no error and therefore affirm.

The context circumstances show:

About 10:30 p.m., March 2nd, 1969, a Sunday, the victim, a white girl, aged 20, was returning to her parked car in a deserted parking lot. As she got in, a young black man appeared, stuck a sharp object to her throat, and put his hand over her mouth. He told her he would kill her if she screamed. The assailant climbed in the back and told her to drive.

The assailant forced the terrorized victim to drive him to another deserted parking lot in back of an office building. At the point of the sharp object pressed into her stomach, the victim was forced to disrobe. After a struggle, the assailant raped her. He raped her, in all, three times over the next two-three hours. He continually threatened the victim with death, saying that since she had seen his face-scar she could identify him. Finally, however, he acceded to her pleas and released her and her car about 1:30 a.m.

The defendant Amphy, a 16-year-old negro, was detained for questioning at about 9:00 a.m. on the morning following the rapes (March 3, 1969). He was picked up on the basis of his identifying face-scar. He was charged with and convicted of the rapes on the basis of: the victim's positive identification of him and of the clothes he had worn; his unexplained presence immediately after the rapes near the rape-site, with a sharp instrument in his possession; and the identification of pubic hairs found on the victim as matching pubic hairs from his body, and the identification of pubic hairs found on his body as matching pubic hairs from the victim's.

1. The composition and selection of the grand jury, of the petit panel, and of the petit jury

The defendant contends (a) that the indictment is invalid as brought by a grand jury illegally constituted through practice discriminatory against Negroes (Bill of Exceptions No. 3), and (b) that the petit jury panel should be quashed as not representing a true cross-section of the community (Bill No. 6.).

The main thrust of this attack is that the general venire (from which the grand jury and petit jury panels are chosen) was chosen by the jury commission through subjective factors, that it resulted from racially discriminatory practices, and that irrationally excluded from it was women and persons nonresident in the community for less than a year.

As the trial court's per curiams note, the evidence negates systematic exclusion or inclusion of Negroes; it shows a sincere effort of the commissioners to obtain qualified veniremen of both Caucasian and Negro race. We have recently rejected similar attacks on this parish's method of choosing the general venire, including the issue of the exclusion of women from jury service unless they file a written declaration of their willingness to serve (La.C.Crim.P. Art. 402). State v. Square, 257 La. 743, 244 So.2d 200 (1971); State v. Millsap, 258 La. 883, 248 So.2d 324 (1971).

For the reasons there set forth, we find the trial court committed no error in rejecting the attacks presented by these bills. See also: Carter v. Jury Commission 396 U.S. 320, 331--339, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961).

Three bills reserved as to selection of the petit jury are likewise without merit:

The trial court did not abuse his discretion in sustaining an objection to a question of a prospective juror, as beyond the scope of examination relative to his qualifications to serve as juror, La.C.Crim.P. Art. 786 (Bill of Exceptions No. 9);

The trial court's failure to sustain a defendant's challenge of a juror for cause cannot be complained of on appeal, since the record does not show that the defendant's peremptory challenges were exhausted, La.C.Crim.P. Art. 800 (and moreover, for the reasons noted by its per curiam, the trial court's ruling was not incorrect) (Bill of Exceptions No. 10);

Nor could the defendant object to the state's use of a peremptory challenge to excuse a Negro tendered as juror, since the motive for a peremptory challenge is beyond the scope of judicial inquiry and presents no constitutional issue, State v. Anderson, 254 La. 1107, 229 So.2d 329 (Bill of Exceptions No. 11).

2. Unlawful Arrest and Search and Seizure Questions

Certain evidence was objected to as being acquired as the result of (a) an illegal detention, and certain other evidence objected to as obtained as the result of (b) an invalid consent to search. (Bills of Exceptions 2 and 19.)

(a) Alleged Illegal Detention

Certain evidence was obtained as a result of the defendant's detention prior to the filing of formal charges against him. These included: pubic hairs from his person; testimony of alleged sperm traces as shown by ultra violet lighting; and testimony of inculpatory statements by him identifying clothing as having been worn by him the night before (which the victim identified as having been worn by her attacker).

The contention is made that such detention was illegal as being without a warrant and also without probable cause. Therefore, it is contended, the evidence noted is inadmissible, being the fruit of such illegal detention. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The detention for questioning may be justified under Louisiana statutory law as a lawful arrest without a warrant by a police officer (La.C.Crim.P. Art. 213), at least at the time the suspect was informed at the police station of the charge about which he was to be questioned (Art. 218).

Immediately after the rape, the victim described the young Negro assailant as to height, bushy hair, and identifying facial scar. ¹ The two detectives assigned to the case checked generally with other police officers and found that some knew young Amphy as the only young Negro to their knowledge having the peculiarly identifying face-mark described by the victim. Amphy also met the victim's general description of her assailant. Our jurisprudence considers this to justify holding there was probable cause to arrest, being more specific reason to detain than mere suspicion. State v. Millsap, La.248 So.2d 324 (1971); State v. Johnson, 255 La. 314, 230 So.2d 825 (1970), see 400 U.S. 900, 91 S.Ct. 144, 27 L.Ed.2d 137; State v. Anderson, 254 La. 1107, 229 So.2d 329 (1969). ²

Actually, the police did not consider that they were arresting Amphy. They asked him to come to the police station for questioning. He had not objected; but his coming with the police officer was more peaceful submission to a presumed lawful request, as contrasted with an informed consent.

Once at the station, Amphy was explained his constitutional rights. He was informed that he was under investigation for rape, that he need not respond to questioning, that anything he said could be used against him, and that a lawyer would be furnished him if he desired. Before any questioning took place, the police asked his grandmother, with whom he lived, to come to the station and be present during the questioning; at this time, the Miranda warnings were once again carefully explained to him and his grandmother, and both signed a written statement to such effect. In the initial hour, the purpose of the questioning was more investigatory than accusatory.

Our jurisprudence has not yet treated of an investigatory detention for purposes of interrogation, on the basis of grounds constituting less than the probable cause required for an arrest. Cf., however, State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). Such sort of temporary (an hour or so) detention does not, however, necessarily offend federal constitutional guarantees against unlawful searches and seizures. Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), reviewing People v. Morales, 22 N.Y.2d 55, 290 N.Y.S.2d 898, 238 N.E.2d 307 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Comment, 29 La.L.Rev. 523, 525--26 (1969). ³

We thus do not find, under the circumstances here presented, that the objected-to evidence ⁴ must be excluded on the basis of a detention unlawful under either state law or federal constitution. In so concluding, we rely upon all the circumstances shown, including the specific and repeated Miranda warnings given the defendant when detained for questioning, by reason of which he knew of the seriousness of the charges for which held, of his right to counsel, of his right to remain silent, and of the possibility that statements or other evidence obtained from him during his detention could be used against him.

(b) Alleged Invalid Consent to Search

The defendant also objected to introduction into evidence of a shirt, torn sweater, and trousers taken from his residence without a search warrant. These were identified by him as the clothes he had worn the night before; they matched the prior description given by the victim of her assailant's clothing; and the victim so identified them at the trial.

The detectives had gone with the grandmother to her home, where...