State v. Bluain
| Decision Date | 23 June 1975 |
| Docket Number | No. 55799,55799 |
| Parties | STATE of Louisiana v. Lloyd BLUAIN. |
| Court | Louisiana Supreme Court |
Samuel S. Dalton, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Giles Duplechin, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div. New Orleans, for plaintiff-appellee.
The Jefferson Parish Grand Jury indicted Lloyd Bluain for an aggravated crime against nature in violation of LSA-R.S. 14:89.1. The State later amended the indictment to set out the details of the crime in two counts. After trial, the twelve-man jury found the defendant guilty of both counts. The court sentenced the defendant to fifteen years imprisonment on each count, to run concurrently. Defendant appeals his conviction and sentence, relying on ten bills of exceptions.
The incident which is the subject of this criminal prosecution took place in the early hours of October 11, 1971. The victim of the sexual assault, a married woman, was driving her automobile, when the defendant drove his vehicle into hers. After the collision, both drivers pulled their cars out of the roadway. While defendant was moving his car, the victim wrote down the license number of the car on a matchbox and put it in her purse. Thereafter, defendant forced the victim into his car at knife point. He ordered her to lie on the floorboard, placing a black trench coat over her head. He then blindfolded and gagged her. Defendant drove the victim to his residence, where he committed two acts of unnatural carnal copulation by forcing her to have anal and oral sex with him. Defendant then drove the victim to River Road, where he pushed her out of the Car. She sought help and was taken to the Ochsner Foundation Hospital. From memory, the victim described defendant's car and gave its license number as , was used by the police to secure the address of defendant Bluain. Bluain was apprehended at his residence. His home was searched pursuant to a search warrant and photographed.
Prior to trial, defendant filed a motion styled Motion for Protective Due Process as to Suggestive Identification. When the trial court overruled his motion, defendant reserved Bill of Exceptions No. A--1.
In the motion, defendant alleged that, as of the date of the filing, no person had identified the accused. The defendant averred that the State would rely on suggestive identification by forcing the defendant to sit at the defendant's table in the courtroom at trial. He sought protection from in-court identification under these alleged conditions. In State v. Brooks, La., 294 So.2d 503 (1974), we rejected a similar complaint. That decision is controlling here.
The defense submits that the State improperly used the preparation of its witness, together with the trial itself, to suggest the identification of the defendant.
The record reflects that the victim positively identified the defendant at trial. Her identification was based on her face to face encounter with the defendant at the time of the automobile collision before she was blindfolded. The witness also identified tile flooring from photographs of the defendant's house introduced at trial, which she saw through the bottom of the blindfold. In our opinion, the identification procedure contains no infirmity.
This bill of exceptions is, therefore, without merit.
Defendant reserved Bill of Exceptions No. 1 to the trial judge's ruling allowing the District Attorney to amend the Grand Jury indictment.
Originally, the indictment alleged only that the defendant committed 'the crime of aggravated crime against nature as defined in R.S. 14:89.1 in that he did have unnatural carnal copulation with (the victim).'
On motion of the District Attorney before trial, the judge allowed an amendment of the indictment to describe the unnatural sex acts as required by Article 465 of the Louisiana Code of Criminal Procedure. Because there were two different types of acts committed, the amendment was in two counts.
Defendant asserts that the original indictment was fatally defective and that the ruling allowed the District Attorney to improperly rewrite the indictment, adding a crime not originally charged.
Quite clearly, a district attorney can amend a Grand Jury indictment. State v. Fitzgerald, 248 La. 487, 179 So.2d 906 (1965). Here, the original indictment was deficient in that it failed to describe the unnatural sex acts, referring only to 'unnatural carnal copulation.' The amendment corrected the deficiency. Accordingly, we regard it as an amendment of substance.
An amendment of substance is properly allowed before trial. LSA-C.Cr.P. Art. 487; State v. Hubbard, La., 279 So.2d 177 (1973).
We conclude that there was no error in the ruling of the trial judge.
The defendant reserved Bill of Exceptions No. 2 to the court's overruling of the defendant's Motion to Quash the indictment. The defendant asserts that LSA-R.S. 14:89 and LSA-R.S. 14:89.1, proscribing the crime against nature, are unconstitutional. This Court has recently rejected an attack upon the constitutionality of LSA-R.S. 14:89. State v. Lindsey, La., 310 So.2d 89 (1975); State v. Bonanno, 245 La. 1117, 163 So.2d 72 (1964). In the light of that holding, LSA-R.S. 14:89.1 is likewise constitutional.
Bill of Exceptions No. 2 is consequently without merit.
Defendant reserved Bill of Exceptions No. 3 when the trial court ruled that rearraignment after amendment of the indictment was unnecessary. He urges that he is entitled to be arraigned on the amended indictment with an opportunity to file technical motions upon the amended indictment.
The function of an arraignment is to notify the defendant of the charge against him. LSA-C.Cr.P. Art. 551. Defendant was araigned on the original indictment. His plea of not guilty also applied to the amended indictment, since the amendment was designed to cure deficiencies and not to alter the nature of the crime. See State v. Bonner, 193 La. 387, 190 So. 621 (1939). Under these circumstances, rearraignment was unnecessary.
Moreover, defendant fails to show what motion he would have filed if he had been rearraigned.
Bill of Exceptions No. 3 is, therefore, without merit.
Defendant reserved Bill of Exceptions No. 4 when the court denied his motion for a continuance after the amendment of the indictment. The amendment was timely made prior to trial. As stated in Bill of Exceptions No. 1, it set forth the details of the charge in conformity with LSA-C.Cr.P. Art. 465.
Defendant did not show that his defense was prejudiced by the amendment. He, therefore, was not entitled to a continuance. LSA-C.Cr.P. Art. 489.
Consequently, Bill of Exceptions No. 4 lacks merit.
Defendant reserved this bill of exceptions when the court denied his motion to suppress photographs taken of his house. He contends that the application for the search warrant does not show probable cause to support the search warrant. Defendant contends that the affidavit contains no facts indicating that his residence was the scene of the crime or that it contained any evidence of the crime.
The affidavit upon which the search warrant issued set forth detailed facts of the crime, reciting that the victim was taken to defendant's residence, where the crime was committed. It recites that defendant's address was obtained by means of license registration furnished by the victim.
The search warrant specifically included the taking of photographs, as well as a search for one black trench coat, a large knife, and other items used in the commission of the crime. As the photographs were taken pursuant to a search warrant based on a proper showing of probable cause, they were properly admitted into evidence.
Bill of Exceptions No. 5 lacks merit.
In Bill of Exceptions No. 6, defendant complains that he was denied a fair opportunity to select or be tried by a cross-section of the community. He complains that thirty-two percent of the jury panel were absent.
Defendant in the instant case makes no showing that any special class was systematically excluded or that he was deprived of a trial before an unbiased jury or that he was compelled to accept an abnoxious juror.
We...
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