State v. Hatcher
Decision Date | 29 January 1979 |
Docket Number | No. 62767,62767 |
Citation | 372 So.2d 1024 |
Parties | STATE of Louisiana v. Gerald HATCHER. |
Court | Louisiana Supreme Court |
John M. Standridge, Louis A. Heyd, Jr., Miriam G. Waltzer, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
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Gerald Hatcher was charged in the same information in separate counts with forcible rape in violation of La.R.S. 14:43.1 and aggravated crime against nature in violation of La.R.S. 14:89.1. After trial by jury, he was found guilty of aggravated crime against nature and sentenced to serve ten years at hard labor. The jury was unable to agree on a verdict as to the charge of forcible rape. On appeal, defendant relies on fifteen assignments of error for reversal of his conviction and sentence. 1
Defendant contends the trial judge erred in allowing the state to introduce hearsay evidence at the hearing on the state's notice of intent to introduce similar acts of defendant to prove system, knowledge or intent. He argues that the introduction of such hearsay evidence deprived him of the right to cross-examine the victims of the alleged prior offenses.
At the pretrial hearing on the state's notice of intent to introduce similar acts of defendant to prove system, knowledge or intent, an assistant district attorney testified, over defendant's objection on the ground of hearsay, as to interviews he had conducted with the victims of the three prior offenses and the victim of the offense forming the basis of the instant prosecution. He recited in detail the facts and circumstances of the offenses as described to him by the victims during their interviews. He was cross-examined by defendant. The testimony of the assistant district attorney was the only evidence adduced at the hearing. The trial judge, finding that the offenses exhibited identical modus operandi, ruled the evidence of the other crimes admissible.
As a prerequisite to the admissibility of evidence of other crimes, the state must within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. State v. Prieur, 277 So.2d 126 (La.1973). The state must also make a showing that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting defendant's bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered. State v. Prieur, supra. However, a pretrial evidentiary hearing as to whether extraneous other-crime evidence may be admissible is not required. State v. Lukefahr, 363 So.2d 661 (La.1978).
Clearly, the evidence offered by the state at the pretrial Prieur hearing was hearsay. However, we are satisfied that the testimony of the assistant district attorney adequately informed defendant of the nature and factual content of the other-crime evidence sought to be introduced by the state. Moreover, the testimony of the victims of the prior offenses at trial conforms substantially to the details of the offenses as described by the assistant district attorney. Additionally, this testimony afforded the trial judge a sufficient basis from which he could rule on the admissibility of the other-crime evidence. Accordingly, we are unable to say that the trial judge erred in overruling defendant's objection to the testimony of the assistant district attorney at this pretrial Prieur hearing.
Assignment of Error No. 1 is without merit.
Defendant contends the trial judge erred in overruling his objections to the state's introduction of evidence of other crime allegedly committed by defendant (Assignments of Error Nos. 2 and 5) and in denying him motion for a new trial grounded on the contention that, even if the evidence of other crimes was relevant to prove forcible rape, it was irrelevant to prove aggravated crime against nature, thereby causing prejudice to defendant (Assignment of Error No. 14).
In order for evidence of similar acts committed by defendant to be admissible under La.R.S. 15:445 and 446, 2 the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976). The proof of the other crimes must be relevant to prove a fact of consequence to the accused's present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Mitchell, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crimes must outweigh any prejudicial effect. State v. Jackson, supra; State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).
At trial, X, a victim of the crimes charged, testified that as she was walking home from school on August 30, 1976, she was approached by defendant who asked her name and age (she was fourteen years old at the time) and whether she would be interested in being in the movies. Defendant informed her that he was a talent scout looking for people to be in movies that were being made in New Orleans. He showed her a newspaper containing a photograph of himself talking to a local disc jockey and an application form to be filled out by those interested in obtaining parts in movies. X indicated that she was interested. He then convinced her to go with him in his car to his aunt's house. No one was in the house when they arrived. Defendant handed X an application form for her inspection as well as a pad on which he told her to write certain information. Although defendant knew she was fourteen years old at the time, he instructed her to write down that she was twenty, explaining that this would help her get the job. Thereafter, defendant ordered X to remove her clothes and lie on the bed in a certain position in the nude. When she refused, he threatened her with physical violence. As a result, she complied with his instructions. Defendant then produced a camera and ordered her to smile while he photographed her. After the photographs were taken, defendant raped her and forced her to perform an act of fellatio upon him. The victim maintained that she was constantly threatened with physical violence if she refused to comply with defendant's demands.
After X's testimony, the victims of three prior forcible rapes or aggravated crimes against nature allegedly perpetrated by defendant testified. This testimony reveals that these prior offenses and the attack upon X occurred within a three-month period of time. All of the victims were teenagers and were attacked in the same general area of New Orleans. Defendant told each victim that he was a talent scout for the movies and that he was going to assist them in obtaining a part in the movies. To substantiate this claim, he showed each victim a newspaper containing a photograph of himself talking to a local disc jockey. Each victim was taken to a secluded place and, by use of force and threats, forced to remove her clothes. Defendant photographed each victim and instructed each to smile while the photographs were being taken. All of the victims were either raped by defendant or forced to perform an act of fellatio upon him. Each victim maintained that defendant constantly employed acts of physical violence and threats during the occurrences.
The evidence of other crimes introduced by the state described in clear and simple terms occurrences extraordinarily similar in nature to the incident forming the basis of the instant prosecution. We consider that the modus operandi of all the described offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, I. e., they are "signature crimes."
Next, we must determine whether the evidence of the other crimes is relevant to prove a fact of consequence to defendant's innocence or guilt.
Forcible rape is defined as
sexual intercourse without the lawful consent of the victim where the victim is prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believes such resistance would be useless.
La.R.S. 14:43.1. Defendant testified that he knew all of the victims of the alleged forcible rapes or aggravated crimes against nature. He also stated that he had had sexual intercourse with each of the victims but maintained that all had freely and voluntarily given their consent (defendant denied that fellatio was performed with any of the victims) and that no force or threats of physical violence was ever employed by him. Defendant also offered testimony of witnesses who indicated that several of the victims were seen in public places with defendant and appeared friendly and relaxed with him.
Clearly, the testimony offered by defendant sought to contradict the proof offered by the state that sexual intercourse in the instant case had occurred without the lawful consent of the victim where the victim was prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believed that such resistance would be useless. The use of force or threats of physical violence is an essential element of the crime of forcible rape. The evidence of other crimes introduced by the state relative to the force used by defendant in the prior acts strengthens the testimony of the victim in the instant case on that issue. Hence, the evidence of the prior offenses was relevant to prove facts of consequence (use of force) to defendant's guilt or innocence of the crime of forcible rape in the...
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