State v. Jenkins

• Court: Louisiana Supreme Court
• Writing for the Court: DENNIS; SANDERS; PER CURIAM
• Citation: State v. Jenkins, 338 So.2d 276 (La. 1976)
• Decision Date: 21 June 1976
• Docket Number: No. 57479,57479
• Parties: STATE of Louisiana v. Jerry JENKINS.

Page 276

338 So.2d 276

STATE of Louisiana v. Jerry JENKINS.

No. 57479.

Supreme Court of Louisiana.

June 21, 1976.

On Rehearing Oct. 19, 1976.

Bobby L. Culpepper, Donald C. Brown, Baker, Culpepper & Brunson, Jonesboro, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ragan D. Madden, Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendant, Jerry Jenkins, was charged by bill of indictment with aggravated rape, in violation of La.R.S. 14:42. He pleaded not guilty, and after trial by jury was convicted of attempted aggravated rape. He was sentenced to twenty years at hard labor and appealed his conviction on the basis of twenty assignments of error.

At approximately 2:30 in the morning on Sunday, July 27, 1975, the victim and a friend of hers, a Mr. Church, were conversing in her home in Ruston, Louisiana. The victim testified that she heard a noise which may have been the defendant entering her house through a window, but concluded that the sound was from the railroad tracks that ran near the house. When she got up to go to the bathroom, the defendant confronted her. She recognized him as a person she had seen at her place of business and at other locations in Ruston.

Defendant told the prosecuting witness that he had just committed a robbery and needed somewhere to stay. She testified that defendant appeared to be nervous, and so the victim, the defendant, and Mr. Church sat down in the living room. They talked for ten to fifteen minutes, and the defendant then told the victim to accompany him to the back of the house. The victim said that she hesitated, but finally complied when he pulled out a gun, keeping it out of Mr. Church's sight. They victim testified that the defendant then forced her to have sexual intercourse with him in her bedroom, during which he continued to hold the gun. She stated that she submitted to the act because of fear for her safety and defendant's specific threat to kill Mr. Church if she resisted.

After the forced sexual encounter the defendant and the victim returned to the living room, where they talked and drank some coffee with Mr. Church. The victim testified that defendant shortly thereafter expressed a desire that she return to the bedroom with him. He again pulled the gun out and on this occasion aimed it at the back of Mr. Church's head. Church testified that he heard a clicking sound, but didn't see the weapon since his back was to the defendant. Once again the prosecuting witness accompanied the defendant into the bedroom and had intercourse with him. They returned to the living room and talked with Mr. Church until 8:00 a.m., when defendant finally left.

The victim testified that, despite her emotional distress, she probably would not have reported the event to the police, except that the defendant began calling her at work. Thus, two days after she was allegedly raped, she complained to police and the instant charges were filed.

ASSIGNMENTS OF ERROR NOS. 1 THROUGH 9

Defendant's first eight assignments of error complain of various procedural defects in the conduct of the preliminary examination held after arrest and before the filing of the bill of information. His ninth assignment contends that the trial court erred in finding that the State established at the preliminary examination probable cause to detain defendant for committing aggravated rape. The various allegedly erroneous rulings of the trial judge include the following: allowing the prosecuting witness to testify that the defendant, before raping her, said that he had committed a robbery earlier that night; refusing to sequester the investigating officer; allowing the district attorney to ask the prosecuting witness leading questions; permitting the victim to testify as to telephone calls she believed were made to her by defendant after the rape; and sustaining the State's objection of irrelevancy to two defense questions asked the victim.

Although all of the procedural safeguards of a criminal jury trial need not be afforded at a preliminary examination, the accused has a right to a hearing that insures a fair and impartial determination of the issue of probable cause. Absent an intelligent waiver thereof, the hearing may not be conducted without benefit of counsel for the defendant. La.C.Cr.P. art. 293; Art. I, § 13, La.Const. 1974; see Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The hearing is to be full-blown and adversary, and one in which the defendant is entitled to confront witnesses against him and to have full cross-examination of them. La.C.Cr.P. art. 294. These provisions were fashioned after the A.L.I. Code of Criminal Procedure, §§ 46, 49, and generally comport with the more recent A.L.I. Model Code of Pre-Arraignment Procedure, 330.4(4), which would apply all the rules of evidence for trial in criminal cases to the preliminary examination, with some limited exceptions to the rule against admitting hearsay evidence.

We also note that the right to a preliminary examination has been accorded the status of a constitutional right in felony cases in Louisiana by the adoption of Art. I, § 14, La.Const. of 1974. The convention in drafting this article contemplated the type of formal, adversary proceeding provided for by our Code, including the right to subpoena and cross-examine witnesses. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 49 (1974). The elevation of the right to a preliminary examination to a constitutional guarantee reflects a recognition by the people of Louisiana of the importance of according an accused a prompt and thorough determination that there is sufficient cause to deprive him of his liberty.

At the same time, our La.Code of Criminal Procedure has specifically incorporated the concept that inconsequential defects in the conduct of the preliminary examination will not mandate release of the accused or rendering the proceeding invalid. La.C.Cr.P. art. 298 provides:

'A person ordered held in custody following a preliminary examination shall not be discharged on a writ of habeas corpus or by other process because of any informality or error in the commitment or the proceedings prior thereto that does not substantially prejudice him. No preliminary examinaion shall be held invalid for any purpose because of an informality or error that does not substantially prejudice the defendant.'

This provision is substantially the same as § 60(1) of the A.L.I. Code of Criminal Procedure. The Official Revision Comment to our article 298 states that, although the redactors felt this provision was probably unnecessary since it is merely a restatement of the harmless error rule which applies to all proceedings, '* * * it was thought advisable to codify this basic principle.'

We have reviewed the trial court rulings during the preliminary examination which were assigned as errors by the defendant. Each ruling complained of was either correct or, if technically inaccurate, did not prevent a full and fair hearing on the issue of probable cause. The State placed both the alleged rape victim and her companion, Mr. Church, on the stand, and they were subjected to thorough cross-examination by defense counsel. Defendant was offered an opportunity to present evidence but chose not to do so. We have also examined the record in light of defendant's allegation that the trial court consistently allowed the State greater latitude than the defense in questioning witnesses during the preliminary examination. This serious allegation, if proven, would affect the basic validity of the preliminary examination; however, our review of the record does not reveal such partiality on the part of the trial judge, and we find that his rulings were generally correct and impartial. We conclude, therefore, that the proceeding was free of any informality or error that would have substantially prejudiced the defendant, and that the trial judge's finding of probable cause was not erroneous.

For the foregoing reasons, we conclude that Assignments of Error Nos. 1 through 9 are without merit.

ASSIGNMENT OF ERROR NO. 10

This assignment of error is based upon the defendant's allegations that the warrant issued for his arrest was defective and that his arrest was therefore illegal. We note, first of all, that an illegal arrest does not, in and of itself, void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

However, we have examined defendant's complaints as to the warrant's validity and find them to be without merit. The motion to quash the arrest attacked the warrant on the grounds that (1) it was issued upon an affidavit executed by the Police Chief of the City of Ruston rather than by the complaining witness, and was therefore based on hearsay rather than direct evidence; and (2) the judge issuing the warrant was the judge of the City Court, the jurisdiction of which does not extend to offenses prohibited by state law.

Louisiana Code of Criminal Procedure article 202 provides:

'A warrant of arrest may be issued by any magistrate, and, except where a summons is issued under Article 209, shall be issued when:

'(1) The person making the complaint executes an affidavit specifying, to his best knowledge and belief, the nature, date, and place of the offense, and the name and surname of the offender if known, and of the person injured if there be any; and

'(2) The magistrate has probable cause to believe that an offense was committed and that the person against whom the complaint was made committed it.

'When complaint is made before a magistrate of the commission of an offense in another parish, the magistrate shall also immediately notify the district attorney of the parish in which the offense is alleged to have been committed.'

The terms of the article clearly do not require that the person executing the affidavit upon which the warrant is...