State v. Dickinson

• Decision Date: 09 April 1979
• Docket Number: No. 63141,63141
• Citation: 370 So.2d 557
• Parties: STATE of Louisiana v. Milton Eric DICKINSON and John L. McNemar, Jr.
• Court: Louisiana Supreme Court

Page 557

370 So.2d 557

STATE of Louisiana v. Milton Eric DICKINSON and John L. McNemar, Jr.

No. 63141.

Supreme Court of Louisiana.

April 9, 1979.

Emile M. Weber, Weber & Weber, Baton Rouge, for Milton Eric Dickinson.

D. Bert Garraway, Baton Rouge, for John L. McNemar, Jr.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for the State.

CALOGERO, Justice. ^*

Defendants, Milton Dickinson and John McNemar, were tried pursuant to a four count indictment charging them jointly with the attempted aggravated rapes and aggravated kidnappings of two young women. The jury found both defendants guilty as charged on all four counts. The court imposed on Dickinson consecutive life sentences for the aggravated kidnappings, and two forty year sentences for the attempted aggravated rapes, the two rape sentences to run concurrently with each other and with the first life sentence for aggravated kidnapping. McNemar was given life sentences for each of his aggravated kidnapping convictions and five year sentences for each of his attempted aggravated rape convictions, all four sentences imposed to run concurrently. In seeking reversal of his convictions and sentences, Dickinson argues to this Court seven of the twelve errors assigned in the lower court. In support of his appeal, McNemar urges seventeen of the twenty-three errors asserted on his behalf.

One of the more serious issues presented upon this appeal concerns the claim that the court erroneously allowed joint trial of the two counts charging the February, 1976, kidnapping-attempted rape of one woman with the two counts charging the same offenses against another woman in February, 1977 (Dickinson's assignment one, McNemar's assignments nine and seventeen). Two other serious issues are whether the court improperly restricted the defense's voir dire examination of the prospective jurors (Dickinson's assignment two, McNemar's assignments two and four) and whether the trial judge abused his discretion by denying a recess sought when a subpoenaed defense witness became ill and was unable to appear and testify (McNemar's assignment twenty-four).

Louisiana Code of Criminal Procedure article 493 governs joinder and provides:

"Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial."

The record in this case amply establishes parallels between the two jointly tried criminal episodes sufficient to indicate that the transactions are strikingly similar. Therefore, the question of the propriety of joint trial of charges arising out of similar criminal transactions separated by a year chiefly resolves itself into an inquiry of whether the criminal transactions here are so separated by the passage of time that their character as crimes of the same modus operandi is impaired or destroyed.

Crimes exhibiting identical modus operandi may be tried simultaneously, even in the face of defense objection, when evidence thereof is mutually admissible as "other crimes" evidence, that is, when the offenses are sufficiently similar, when they tend to be relevant to a genuine issue, and when the prejudicial effect of their admission does not outweigh the probative value. See State v. Carter, 352 So.2d 607 (La.1977). While it is true that this Court has often discussed modus operandi crimes in terms of the proximity in time of the offenses considered, there is no absolute requirement of close proximity and no compelling reason why lapse of time, in and of itself, should govern whether two or more crimes qualify as crimes exhibiting the same modus operandi for purposes of admissibility under R.S. 15:446. Crimes may properly be said to exhibit the same modus operandi when they are so distinctively similar as to virtually establish that their perpetrator was the same individual. See State v. Mitchell, 356 So.2d 974 (La.1978). Here, men fitting fairly distinctive physical descriptions abducted girls in substantially the same manner, took them to dwellings virtually certain to have been the same residence, and exhibited behavior and mannerisms astonishingly similar in many important respects. The lapse of time between the two criminal offenses does not arguably alter the near certainty of identity of assailants in these instances. Therefore, the two crimes exhibiting the same modus operandi would be mutually admissible in separate trials, provided each is relevant to prove a fact of consequence to each accuseds' guilt or innocence and, further, that the probative value of the "other crimes" evidence outweighs its prejudicial effect. See State v. Mitchell, supra at 979.

The distinct similarities between the criminal episodes bear heavily upon a seriously disputed issue, identity. ¹ The introduction of "other crimes" evidence to prove the identity of the perpetrator of the crime being tried has been recognized as a legitimate exception to the general prohibition against the introduction of evidence of other criminal acts, provided the identity issue is actually disputed. See, e. g. State v. Sutfield, 354 So.2d 1334 (La.1978). Because there were alibi defenses presented by both accuseds, because one of the perpetrators (identified by each victim as McNemar) attempted to shield his identity during the commission of each offense, and because one of the victims had difficulty making a positive line-up identification of Dickinson (a year had passed since her abduction and Dickinson had gained weight), the state put the "other crimes" evidence to legitimate use in its efforts to prove each criminal episode. The virtually identical modus operandi lent support to the identifications of Dickinson and McNemar by the victims. Ability of Both victims to positively identify Dickinson's apartment as the place of the sexual assaults further assured the defendants' convictions. In this case, the "other crimes" evidence had legitimate purpose and overriding probative value. Thus, the trial judge's denial of the severance sought was not error. These assignments lack merit.

During voir dire, by means of questions the trial judge deemed hypothetical, Dickinson's counsel asked whether, this being a rape case, prospective jurors would ". . . feel like he (defendant) ought to prove it a little bit stronger that it wasn't him" in a situation where the victim and the defendant would both take the stand. Because the inquiry assumed a situation where both victim and accused would testify, the query was ruled improperly hypothetical and defense was precluded from addressing it to other prospective jurors. Counsel for both defendants urge that the court erred when it foreclosed further use of the inquiry which was calculated to provide a basis for the intelligent exercise of the right to challenge for cause and the constitutionally guaranteed right of peremptory challenge.

It appears that the question defense sought to propound was not the kind of hypothetical question our jurisprudence prohibits. In State v. Clark, 325 So.2d 802 (La.1975), it is noted that questions which seek the prospective jurors' opinion concerning evidence to be presented at trial or seek to obtain a pre-trial commitment on the issues based on facts which May be established at trial are not permitted. Such is not the nature of the question the defense here sought to ask. However, even error consisting of improper curtailment of the scope of the defense's voir dire examination in this particular case is not of reversible proportions since examination of the entire voir dire satisfies us that sufficiently wide latitude was afforded the defense in delving for answers which would bear upon the prospective jurors' ability to apply the presumption of innocence. See State v. Monroe, on rehearing, 329 So.2d 193 (La.1976). We thus conclude that both Dickinson's and McNemar's second assignments are without merit.

In his fourth assignment McNemar outlines another instance of curtailment of voir dire and argues that in connection therewith the court committed reversible error. During voir dire examination of a panel of prospective jurors, when McNemar's counsel was assertedly preparing to delve into an inquiry relating to a prospective juror's kinship with a law officer and the effect that relationship might have on the juror's ability to fairly judge he asked that juror, ". . . you heard the court talk about reasonable doubt. What does reasonable doubt constitute to you? Could you tell us in your own words what reasonable doubt is?" The judge disallowed that inquiry (because it sought to have a prospective juror define a legal principle, when the duty to instruct the jurors as to the law was his).

Regardless of the purpose of defense counsel's inquiry, whether he sought to discover bias flowing from this juror's association with police officers, from personal disagreement with the stringent burden placed upon the state to prove its case, or from some other source, it is clear that a criminal defendant ought to be allowed wide latitude in his attempts to discover jurors' subtle or subconscious attitudes by seeking responses which will reveal nuances felt to bear upon his impartiality and ability to accept the law as given to him. See State v. Hayes, 364 So.2d 923 (La.1978). Nevertheless, McNemar's counsel's straightfoward question seeking to have the prospective juror say (albeit in his own words) what constitutes reasonable doubt is not the only way to exercise the right to inquire into a juror's subconscious inclinations or predispositions. Much like the inquiry in State v. Crochet, 354 So.2d 1288...