State v. Lamark

• Decision Date: 27 June 1991
• Docket Number: No. KA,KA
• Citation: 584 So.2d 686
• Parties: STATE of Louisiana v. Kirby LAMARK. 90 1030. 584 So.2d 686
• Court: Court of Appeal of Louisiana — District of US

Page 686

584 So.2d 686

STATE of Louisiana v. Kirby LAMARK.

No. KA 90 1030.

584 So.2d 686

Court of Appeal of Louisiana First Circuit.

June 27, 1991.

Writ Denied Oct. 11, 1991.

Bryan Bush, Dist. Atty. by Glenn Lorio, Asst. Dist. Atty., Baton Rouge, for plaintiff/appellee.

Office of Public Defender, Baton Rouge, for defendant/appellant.

Before EDWARDS, WATKINS and LeBLANC, JJ.

LeBLANC, Judge.

Defendant, Kirby Lamark, was charged by indictment with (Count I) aggravated rape, a violation of LSA-R.S. 14:42; (Count II) aggravated crime against nature, a violation of LSA-R.S. 14:89.1; and (Count III) aggravated burglary, a violation of LSA-R.S. 14:60. Following trial by jury, defendant was convicted as charged on all three counts. Subsequently, the trial court sentenced defendant to terms of imprisonment at hard labor as follows. Defendant received a sentence of life without benefit of parole, probation or suspension of sentence for the aggravated rape; fifteen years without benefit of parole, probation or suspension of sentence for the aggravated crime against nature; and thirty years for the aggravated burglary. The court ordered that the sentences for the aggravated rape and aggravated burglary be served concurrently and that the sentence for the aggravated crime against nature run consecutively to those sentences. Defendant has appealed his convictions and sentences, urging nine assignments of error:

1. The trial court erred by finding defendant competent to proceed.

2. The trial court erred by denying defendant's motion to suppress statements.

3. The trial court erred by denying defendant's motion to quash.

4. The trial court erred by denying defendant's motion for mistrial.

5. The trial court erred by allowing the state to introduce defendant's taped statement into evidence.

6. The trial court erred by allowing the state to introduce evidence over defense counsel's objection.

7. The trial court erred by denying defendant's motion for mistrial.

8. The trial court erred by denying defendant's motion for a new trial.

9. The trial court erred by imposing excessive sentences and failing to comply with the sentencing guidelines in LSA-C.Cr.P. art. 894.1.

The record reflects that on June 13, 1985, at some time shortly after 2:00 a.m., Jane Doe ¹ was alone in her home in Baton Rouge. At that time, while asleep in bed in her bedroom, she was awakened when she heard a noise. She turned on a bedside lamp, looked around and assumed the noise was from the street because due to the hot weather she had left the windows to her house open with the window screens apparently latched. Doe turned off the lamp and lay back down on her bed. A minute or two later she heard another noise from a different direction. She sat up and turned on the lamp again. When she looked around, she saw a man on the side of her bed. The man stood up and ran around the bed. Doe jumped out of bed, yelled, and grabbed a cane ("like a walking stick") that was on the side of her bed. Wielding the cane, Doe struck the man over his shoulder with the cane. However, he responded by putting a single blade, folding knife to her throat, grabbing her wrists, pushing her against the bedroom wall; and threatening to kill her if she screamed or did anything.

According to Doe, the man was wearing a shirt, a bandanna around his face, socks and either shoes or tennis shoes. When she struck the man, the blow apparently caused the bandanna that he was wearing around his face to slip down, but the man quickly raised the bandanna and turned off the light in the bedroom. He kept his hand pressed against her and told her to get on the bed. Doe did as she was told. The man pulled off her underpants and told her he would kill her if she did not do what he wanted her to do. She believed that he could have carried out this threat.

The man then vaginally raped Doe. When he finished raping her, he straddled her over her stomach, picked up the knife which he had laid on the bed and forced Doe to perform oral sex on him.

The man then lay down beside Doe and started talking. He told her that he needed five hundred dollars and that he wanted her to give it to him. Doe answered that she had some change in her purse, which she could get for him; but he would not let her go get the purse. When he questioned Doe as to whether or not she would tell anyone what he had done, she repeatedly told him she would not and asked him not to hurt her. The man vaginally raped Doe again before resuming his conversation with her. During the conversation which followed, the man told her he could not decide if he would let her live but that, if he did allow her to live, he would probably cut her eyes and blind her. He rolled over on his back, rolled Doe over on her back, put his arm over her throat and again told Doe he wanted money. The man started saying he had decided he did not think he could let Doe live; he kept talking and mumbling and finally fell asleep. Doe tried to move from the bed. He awoke and told her to be still and pressed down on her throat. Once again, the man fell asleep. When he moved his arm, which had apparently still been positioned over Doe's throat, Doe slowly began moving off the bed in a manner so as not to awaken the man. After she successfully moved from the bed, Doe slowly and quietly moved to the bedroom door. Once she reached the threshold of the bedroom door, Doe ran through her house to the back of her neighbors' house. Doe told the neighbors she had been raped, and the police were summoned. ²

According to Doe, it was almost dawn when she ran to her neighbors. About three hours elapsed from the time the rapist entered her home until the time Doe successfully fled from his control.

When the police arrived, they talked to Doe. ³ Thereafter they entered Doe's home and found defendant on the bed in the bedroom. Defendant was wearing a shirt and a red bandanna, which partially covered the bottom of his face. He was wearing neither pants nor underwear and was apparently asleep. The police apparently made enough noise to awaken defendant, who then lunged from the bed toward the officers with the knife in his hand. A struggle between defendant and the officers ensued. It lasted several minutes before defendant was subdued, disarmed, and placed under arrest. The police then took defendant to a hospital for treatment of minor injuries he sustained during the struggle. After defendant received treatment, officers transported him to the detectives' office.

That same morning, after being advised of his Miranda rights from a written advice of rights and consent to questioning form, defendant made an oral, unrecorded statement to Baton Rouge City Police Officers Isabel P. Banks and Elbert Hill. Shortly after giving this statement, defendant made a taped statement to Banks and Hill.

Although the taped statement contains considerable detail, it essentially reveals that on the morning in question, defendant entered Doe's home through her bedroom window after removing the window screen. After entering, defendant went back outside, replaced the window screen and reentered the residence. He went in the bedroom, removed his pants and placed them in the hallway. When Doe apparently became aware there was someone in the room, she turned on the light. He pulled out a knife, asked Doe not to holler, and turned off the light. Defendant started talking to Doe. He got into the bed with the knife in his hand and began having sex with her. He asked her to have oral sex; she complied because she was frightened. Defendant stated that he continued to have sex with Doe. Then defendant asked Doe for money and asked her if she would tell anyone that they had sex. Doe stated that she would keep what had happened between him and her. Defendant then fell asleep in the bed. Although defendant admitted that he pointed the knife at Doe, he denied that he ever threatened to kill her.

ASSIGNMENTS OF ERROR NOS. ONE AND THREE:

By means of these assignments, defendant contends that the trial court erred by denying his motion to quash the indictment. Defendant argues that the motion should have been granted because the trial court's May 5, 1986 determination under LSA-C.Cr.P. Art. 648 B(3) that he lacked capacity to stand trial and the court's order of civil commitment based on that determination precluded any resumption of the instant prosecution.

The record reflects that at a July 15, 1985 sanity hearing, the trial court found defendant lacked mental capacity to proceed and committed defendant to the East Louisiana State Hospital Forensic Section. Subsequently, after notification by the Forensic Section that defendant would not become competent to proceed in the foreseeable future, the trial court conducted a hearing on May 5, 1986, pursuant to LSA-C.Cr.P. Art. 648 B(1). At this hearing, (in accordance with LSA-C.Cr.P. Art. 648 B(3)) the trial court determined that defendant was incapable of proceeding, that he was a danger to himself and others, and that he "never" would be able to regain his capacity to proceed in the foreseeable future. Consequently, the court issued an order of civil commitment, pursuant to Art. 648 B(3), committing defendant to the East Louisiana State Hospital (Hospital) for care and treatment. The order included provisions for periodic review of defendant's capacity and for notification by the superintendent of the Hospital to the court of any discharge or conditional discharge of defendant.

Thereafter, by letter dated May 8, 1989, the Hospital reported to the trial court that defendant was fully capable of participating in his criminal defense and would be discharged in thirty days. On July 28, 1989, defendant filed the motion to quash, at issue in these assignments, asserting that his May 5, 1986 civil commitment precluded further criminal prosecution of the instant offenses. On October 16, 1989, the trial court held another sanity hearing. At this hearing, ...