State v. Frentz

• Decision Date: 30 January 1978
• Docket Number: No. 60089,60089
• Citation: 354 So.2d 1007
• Parties: STATE of Louisiana, Appellee, v. John G. FRENTZ, Appellant.
• Court: Louisiana Supreme Court

Page 1007

354 So.2d 1007

STATE of Louisiana, Appellee, v. John G. FRENTZ, Appellant.

No. 60089.

Supreme Court of Louisiana.

Jan. 30, 1978.

F. Irvin Dymond, New Orleans, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.

TATE, Justice.

The defendant Frentz was convicted of aggravated crime against nature with a person under seventeen years of age. La.R.S. 14:89.1(5). He was sentenced to ten years' imprisonment.

On the defendant's appeal, we find that the conviction must be reversed: prejudicial evidence was improperly admitted as to (1) unnatural sexual acts committed with other persons than those with the person specified by the bill of information (Assignment 4); and as to (2) the defendant's alleged reputation as a homosexual (Assignment 14).

1. Other-crime Evidence.

The defendant is charged with unnatural oral sexual relations with David D., a 15-year-old boy, during June of 1974. Over defense objection, the state introduced testimony by Ronald S. and John S., then sixteen, that the accused had committed similar sex acts with them at the same place and during approximately the same period.

Pursuant to pre-trial Prieur notice, the state sought to justify introduction of evidence as to these similar acts for the purpose of showing "system" in aid of proof of guilty knowledge and intent. La.R.S. 15:445, 446. As the defendant correctly contends, however, the trial court erred in admitting them for such purpose.

The victim (David D.) testified that the defendant, his teacher, had committed unnatural oral sex acts upon his person at the teacher's home. Two young boys testified on behalf of the state that they witnessed at least one of these acts. The defendant, admitting that David D. had come to his house (to do some housecleaning, he testified), denied the acts, and claimed that the opposing testimony arose from disciplinary or other differences between the witnesses and himself.

The offense of crime against nature is committed by unnatural carnal copulation through use of the genital organ of one of the participants. La.R.S. 14:89, 89.1. Proof of the act itself is proof both of the crime and of the general criminal intent, La.R.S. 14:10(2), alone required. Perkins on Criminal Law 389-92 (2d ed., 1969); Clark and Marshall, Treatise on the Law of Crimes, Section 11.07 (7th ed., 1967).

Evidence of other crimes, therefore, is not admissible to prove criminal intent. State v. Williams, 352 So.2d 1295 (La.1977); State v. Clark, 338 So.2d 690 (La.1976); State v. Moore, 278 So.2d 781 (La.1973). Nor does this case present facts where the accused admits the act but asserts some innocent explanation for it; so that, therefore, his guilty knowledge presents an issue, as to which other-crime evidence may become admissible. State v. Frederick, 340 So.2d 1353 (La.1976).

On appeal, the state contends that, at the least, the evidence of the other acts was admissible to prove "system." However, system was not relevant to prove any fact of consequence actually at issue herein (e. g., identity). Where system is not relevant for such purpose, the state is not permitted to prove other crimes in the guise of proving "system" for the sole purpose of such evidence is, then, a prohibited one of inferring the defendant's guilt of the present crime (for which alone he is on trial) simply because he is a bad man who had committed similar crimes in the past. State v. Jackson, 352 So.2d 195 (La.1977).

As we stated in State v. Ledet, 345 So.2d 474, 479 (La.1977): " * * * proof of system simply is not relevant in a case such as this one where there is absolutely no question that the accused was the person involved in both incidents. The entire point of the state's establishing that a 'system' existed is to show that because of the unique aspects of an extraneous crime committed by the accused that he must have been the perpetrator of the crime at issue because it, too, was marked by the same distinctive hallmarks. However, when there is no contest at all over the participation of the accused in the alleged incident, but the only question is whether any crime at all took place, evidence of extraneous offenses serves only to establish that defendant is capable of and thus likely to have committed the crime in question, and as such the evidence is inadmissible."

2. Improper Proof of "Reputation"

Assignment 14 involves the introduction of improper evidence concerning the accused's alleged reputation as a homosexual. Before discussing this assignment's particulars, we deem it advisable to summarize some general rules governing introduction of evidence as to character or reputation of an accused or of a witness.

Testimony as to "character" (reputation) may be admissible for two distinct purposes, with differing rules and reasons:

(1) The credibility of a witness may be attacked "by showing that his general reputation for truth or for moral character is bad." La.R.S. 15:490. In that event, "the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct." La.R.S. 15:491. If the accused takes the stand, he places his credibility at issue, and his credibility may then be attacked in the same manner, with the same limitations, as in the case of any other witness. La.R.S. 15:462, 486. The inquiry is, in this case, limited to general reputation for truth and character with regard to veracity; and the defendant may not advance affirmative proof of this character unless the state has, by cross-examination or otherwise, placed his reputation for credibility at issue.

See: State v. Muse, 319 So.2d 920 (La.1975), discussed at 37 La.L.Rev. 589-90 (1970); McCormick on Evidence, Section 44 (2d ed. 1972); cf., Pugh, Louisiana Evidence Law 22-23 (1974).

(2) The accused may also introduce evidence of his character to show he is not the type of person who would commit the particular crime charged; until he does so, his character (reputation) is not at issue; but, if he does so, the state may introduce rebutting reputation testimony only as to the aspects of reputation put at issue by the accused. La.R.S. 15:479, 480. The character evidence is limited to "the general reputation that a man has among his neighbors, not upon what particular persons think of him." La.R.S. 15:479. The accused's introduction of evidence for such purpose "must be restricted to showing character as to such moral qualities as have pertinence to the crime with which he is charged." La.R.S. 15:480.

See: State v. Kelly, 237 La. 991, 112 So.2d 687 (1959); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948) (leading case); Pugh, Louisiana Evidence Law 22-23 (1974); McCormick on Evidence, Section 191 (2d ed., 1972).

In the present instance, the defense introduced character witnesses as to the accused's reputation for "truthfulness, veracity, morality and character." Although couched in the terms common to credibility reputation (see 1 above, also State v. Kelly, therewith cited), both defense and state assumed the testimony had to do with moral qualities pertinent to the particular crime charged (see 2 above). If so, the state was entitled to introduce rebuttal evidence and to conduct cross-examination as to the accused's reputation for homosexual inclinations and activities.

Accordingly, the state on rebuttal offered the testimony of Officer Latapie for the purpose of testifying to the accused's reputation in the community, to the extent he was aware of it. The defendant offered both a general objection to any police officers testifying (since they were not members of the community), Tr. 267, and also a specific objection that this particular police officer could not summarize the testimony of the only person in the academic community he had spoken to concerning that one person's view of the accused's reputation in such community, Tr. 271-72. ¹

The officer was then permitted to testify as to his (unnamed) academic informant's impression "that it was the general consensus of the teachers at Colton (the school the accused taught at), if you want me to use slang expressions, that the defendant was 'fruit' (i. e., homosexual). How he never got caught, he didn't know. He said he did it in the open, or what appeared to be in the open."

The police witness did not know how long his teacher-informant had been at Colton. Upon state objection that the name of the informant was irrelevant, the defense was not even permitted to ascertain the informant's identity.

The ruling admitting the police officer's testimony was clearly erroneous. The teacher-informant's testimony as to the accused's homosexual reputation may have been admissible under accepted theory, even though such opinion was based on hearsay. Nevertheless, for the reasons noted below, the police officer's hearsay testimony of the informant's reputation-opinion was inadmissible. It should have been excluded upon the accused's objection.

The reasons for admissibility of reputation evidence based solely upon "opinion-based-on-hearsay testimony" are complex and historical. See Michelson v. United States, cited above, at 335 U.S. 477-78, 69 S.Ct. 213, 219. For these historical reasons, the hearsay-based testimony by the reputation witness himself is "allowed to summarize what he has heard in the community, although much of it may have been said by persons less qualified to judge than himself. The evidence which the law permits is not as to the personality of defendant but only as to the shadow his daily life has cast in his neighborhood.

"This has been well described in a different connection as 'the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest because disinterested, and safer to be trusted because prone to suspect. * *...