State v. Drew

• Citation: 360 So.2d 500
• Decision Date: 22 May 1978
• Docket Number: No. 61121,61121
• Parties: STATE of Louisiana v. Steven Jerome DREW.
• Court: Supreme Court of Louisiana

Page 500

360 So.2d 500

STATE of Louisiana v. Steven Jerome DREW.

No. 61121.

Supreme Court of Louisiana.

May 22, 1978.

Rehearing Denied July 3, 1978.

Steven H. Beadles, Michael W. Beam, Bossier City, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Lawrence M. Johnson, Donald C. Brown, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals, for plaintiff-appellee.

MARCUS, Justice.

Steven Jerome Drew was indicted by the grand jury for an aggravated rape allegedly committed on October 18, 1976, in violation of La.R.S. 14:42 (1975). After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt; and the jury unanimously recommended a sentence of life imprisonment without benefit of probation, parole or suspension of sentence. The trial court sentenced defendant in accordance with the recommendation of the jury. On appeal, defendant relies upon fifty assignments of error for reversal of his conviction and sentence. ¹

ASSIGNMENTS OF ERROR NOS. 1 AND 49

Defendant contends the trial court erred in denying his motion to quash the indictment and motion in arrest of judgment. He argues that the statute under which he was indicted and convicted, La.R.S. 14:42 (1975), has no valid penalty provision and is unconstitutionally vague and overbroad.

La.R.S. 14:42 (1975) provided:

Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:

(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force;

(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;

(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.

Whoever commits the crime of aggravated rape shall be punished by death.

La.Code Crim.P. art. 905.6, one of the statutes under which defendant's sentence was determined, provides:

A sentence of death shall be imposed only upon the unanimous recommendation of the jury. If the jury unanimously finds the sentence of death inappropriate, it shall recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

First, we address the issue concerning the invalidity of the penalty provision of La.R.S. 14:42 (1975). After the instant trial on the merits and sentencing hearing before the same jury that determined the issue of guilt, but prior to imposition of that sentence by the trial court, the United States Supreme Court rendered a decision in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In Coker, the Supreme Court reviewed a death sentence imposed for aggravated rape of an adult woman and "concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the Eighth Amendment (to the United States Constitution) as cruel and unusual punishment." (Footnote omitted.) Code Ga. § 26-2001 (1972), the statute under which Coker was convicted provides for alternative penalties to the death sentence. Coker's punishment was determined by a jury in a separate sentencing proceeding under Ga.Code Ann. § 26-3102 (1976 Supp.), which is very similar to the bifurcated procedure provided under La.Code Crim.P. arts. 905, Et seq., under which the instant defendant was sentenced. The Court in Coker limited its grant of certiorari only to the issue of constitutionality of the death penalty in that case, found the sentence unconstitutional, and remanded the case to the Georgia Supreme Court for further proceedings. The Georgia Supreme Court in turn remanded the case to the Georgia trial court for resentencing. Coker v. State, 239 Ga. 408, 238 S.E.2d 690 (1977). Coker's conviction for aggravated rape was not overturned; only his death sentence was vacated.

In the instant case, defendant was not sentenced to death but contends that, under Coker, his conviction should be vacated. He argues that the nullity of the death penalty provision of La.R.S. 14:42 (1975) renders the entire statute invalid, as well as the bifurcated procedure set forth in La.Code Crim.P. arts. 905, Et seq., as applied to aggravated rape cases. He argues that the articles providing for the bifurcated procedure would not have been enacted for aggravated rape cases unless the death penalty were available for such convictions. Alternatively, he argues that the proper sentence in the instant case is the sentence provided in La.R.S. 14:43 for simple rape, or, in the further alternative, the sentence provided in La.R.S. 14:27 for attempt of a crime punishable by death or life imprisonment. We find no merit to these arguments.

In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court held unconstitutional Louisiana's mandatory death sentence for first degree murder. In accordance with that decision, this court affirmed convictions in first degree murder cases presenting no otherwise reversible error, but vacated the death sentences and remanded the cases to the trial court for resentencing of the accuseds to the most severe valid penalty established by the legislature for criminal homicide at the time of the offense. See State v. Sheppard, 350 So.2d 615 (La.1977); State v. Williams, 343 So.2d 1026 (La.), Cert. denied, 434 U.S. 928, 98 S.Ct. 412, 54 L.Ed.2d 287 (1977); State v. Jenkins, 340 So.2d 157 (La.1976).

In Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the United States Supreme Court declared unconstitutional Louisiana's mandatory death penalty for aggravated rape. Since Selman, in cases where defendants have been convicted of aggravated rape and sentenced to death, this court under the mandate of Selman has set aside and vacated the death sentences but, finding no reversible error, has affirmed the convictions. These cases were remanded to the trial court for resentencing of defendants to the most serious penalty for a lesser included offense at the time of commission of the crime. See State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La.1976); State v. Sledge, 340 So.2d 205 (La.1976).

However, in the instant case, La.R.S. 14:42 (1975) and La.Code Crim.P. art. 905.6 provide for alternative penalties, death or life imprisonment without benefit of probation, parole or suspension of sentence. The instant situation is thus analagous to those of many cases reviewed by this court after the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In Furman, the Supreme Court invalidated the death sentence provided by a Georgia statute and imposed similarly to the death penalty provided by the then effective La.R.S. 14:42 (1950). Also effective at that time was La.Code Crim.P. art. 817 (1966), which allowed a jury in a capital case to "qualify its verdict of guilty with the addition of the words 'without capital punishment,' in which case the punishment (was to be) imprisonment at hard labor for life." Hence, the effect of these two provisions was to give the jury a choice in sentencing between death and life imprisonment, as in the instant case under La.R.S. 14:42 (1975) and La.Code Crim.P. art. 905.6. Upon review of such post-Furman Cases, this court affirmed convictions presenting no otherwise reversible error and remanded the cases to the trial court for resentencing of the accuseds to life imprisonment, the alternative sentence provided by La.Code Crim.P. art. 817 (1966). See, e. g., State v. Baker, 288 So.2d 52 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Refuge, 270 So.2d 842 (La.1972); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

Under the rationale of these cases, we find that the invalidity of the death penalty provision of La.R.S. 14:42 (1975) does not render invalid that entire statute and La.Code Crim.P. arts. 905, Et seq., as applied to the instant aggravated rape case. We further find that the proper sentence in the instant case is life imprisonment without benefit of probation, parole or suspension of sentence, ² the alternate sentence provided by La.Code Crim.P. art. 905.6. Since defendant was not sentenced to death, but was in fact sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, no resentencing is necessary.

We likewise find no merit to defendant's contention that La.R.S. 14:42 (1975) is unconstitutionally vague and overbroad. He argues that the law is ambiguous because there is virtually no difference between the elements of the crime of forcible rape (La.R.S. 14:43.1) and the crime of aggravated rape with which he was charged. This argument was previously rejected by this court in State v. Fletcher, 341 So.2d 340 (La.1976):

(La.R.S. 14:43.1) merely created a lesser degree of the crime, permitting a responsive verdict, La.C.Cr.P. art. 814, subd. A(8) (as amended in 1975), to the charge of aggravated rape, La.R.S. 14:42. It does not, as defendant contends, repeal or make ambiguous the more serious offense of aggravated rape defined by Subsection (2) of the latter statute punishing sexual intercourse without the lawful consent of the female since committed 'Where (she) is prevented from resisting the act by threats Of great and immediate bodily harm, accompanied by apparent power of execution.' 1 (Footnote omitted.)

We adhere to this decision.

For the reasons assigned, we find the trial court did not err in denying defendant's motion to quash the indictment and motion in arrest of judgment.

Assignments of Error Nos. 1 and 49 are without merit.

ASSIGNMENTS OF ERROR NOS. 2...