State v. Cook

• Decision Date: 12 March 1986
• Docket Number: No. KA-3980,KA-3980
• Citation: 485 So.2d 606
• Parties: STATE of Louisiana v. Nathaniel COOK.
• Court: Court of Appeal of Louisiana — District of US

Page 606

485 So.2d 606

STATE of Louisiana v. Nathaniel COOK.

No. KA-3980.

Court of Appeal of Louisiana Fourth Circuit.

March 12, 1986.

Rehearing Denied April 16, 1986.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Timothy M. Warner, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

Malvern Burnett, Student Practitioner, Elizabeth W. Cole, Supervising Atty., Tulane Criminal Law Clinic, New Orleans, for defendant-appellant.

Before GULOTTA, SCHOTT and GARRISON, JJ.

GARRISON, Judge.

The defendant, Nathaniel Cook, was charged by grand jury indictment with aggravated rape in violation of LSA-R.S. 14:42. ¹ After a jury found the defendant guilty as charged, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. He was also sentenced to pay $74.00 in court costs or serve an additional thirty day sentence in default thereof. Defendant appeals his conviction and sentence.

On February 13, 1984 at approximately 8:55 p.m., Officer Steven Dunn of the New Orleans Police Department responded to a call at 920 St. Mary Street in New Orleans. Upon arrival, Officer Dunn was told by Brenda McMillan that her ten year old daughter had just been sexually attacked by the defendant, McMillan's former boyfriend. McMillan had allegedly left her home momentarily and when she returned, her daughter was running to her room with her pants down and the defendant was standing in the kitchen with his penis exposed. The child allegedly told McMillan that sexual activity between her and the defendant had begun several months earlier when McMillan and the defendant were living together. After this discussion, McMillan handed her gun to the child and told the child to bring the gun across the street to her grandmother. McMillan then went over to her mother's house to call the police. The defendant followed her and she fired several shots at him. Defendant left the scene and was arrested soon thereafter in a nearby area.

At trial, the trial judge interviewed the child in chambers to determine the child's competency to testify in accordance with LSA-R.S. 15:469. ² After the judge was satisfied as to the child's competency as a witness, the child testified that the defendant had forced her to have sex with him on February 13, 1984 and on several dates in the preceding year. She claimed that the defendant paid her approximately three dollars prior to each sexual attack and told her not to tell her mother under threats that she would be beaten by her mother and that he would go to jail.

The defendant denied ever having sexual relations with the child and claimed that the child was lying out of fear of being beaten by her mother.

Due to the following reversible errors committed by the trial judge, we reverse the defendant's conviction and remand this case for a new trial.

In defendant's first assignment of error, he contends that the trial court erred in granting the State's motion in limine which prevented defense counsel from questioning a state witness regarding that witness' arrest for shooting the defendant on a prior occasion.

LSA-R.S. 15:495 provides:

Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.

However, LSA-R.S. 15:492 provides:

When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.

In State v. Sweeney, 443 So.2d 522 (La.1983), the court stated for the following reasons that the questioning of a witness as to a prior arrest was permissible to show special interest or bias:

"The limitation of La.R.S. 15:495 on the use of arrests in impeachment applies only to the method of impeaching the credibility of a witness by his prior conviction of a crime. Irrespective of its relevance to the present prosecution, a conviction per se historically is a relevant factor for the trier of fact's evaluation of a witness' credibility; however, the mere fact that a witness has been previously arrested or indicted is not regarded as logically relevant to the jury's evaluation on that ground, being a mere accusation. However, another accepted method of impeaching the credibility of a witness is by showing that the witness is biased or interested in the special case on trial because of partiality or of any acts, relationships, or motives reasonably likely to produce it. Louisiana jurisprudence has generally permitted full scope of cross-examination in the interest of exposing for trier of fact evaluation any bias or interest of the witness which might influence his perceptions or color his testimony. State v. Robinson, 337 So.2d 1168 (La.1976)."

In the Sweeney case, the court allowed the State to cross-examine a witness about a prior drug arrest to show the witness' bias toward two particular narcotics agents, stating that:

"Thus, the present cross-examination as to the arrest was not within the prohibition of La.R.S. 15:495 because it was independently relevant and permitted under La.R.S. 15:492 to show particular bias in the special case before the court." Id. at 530.

It has been further stated that the bias sought to be shown must be personal against the defendant rather than general in nature. State v. Williams, 445 So.2d 1171 (La.1984).

In granting the State's motion in limine in this case, the trial judge...