State v. Lee

• Decision Date: 14 October 1976
• Docket Number: No. 57716,57716
• Citation: 340 So.2d 180
• Parties: STATE of Louisiana v. Cordell LEE.
• Court: Louisiana Supreme Court

Page 180

340 So.2d 180

STATE of Louisiana v. Cordell LEE.

No. 57716.

Supreme Court of Louisiana.

Oct. 14, 1976.

Carol B. Hart, Milton E. Brener, Garon, Brener & McNeely, 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.

DIXON, Justice.

On June 12, 1974 at approximately 12:30 a.m. the victim, Marguerite Santenac, got off the bus on Paris Avenue and proceeded toward her home in the Parkchester Apartments. At this time the defendant, Cordell Lee, approached her, put a knife to her throat, brought her to an abandoned unit in the Parkchester housing complex and forced her, at knife-point, to submit to the crime of aggravated rape. The victim notified the police who brought her to the coroner's office for an examination that same night. On October 28, 1974 the defendant was arrested. From photographs brought to her by the police, the victim positively identified the defendant as the man who raped her. She subsequently made a second positive identification of the defendant at a police lineup.

On March 27, 1975 the Orleans Parish Grand Jury indicted Cordell Lee for the aggravated rape of Marguerite Santenac, a violation of R.S. 14:42. A twelve man jury convicted the defendant of aggravated rape by a unanimous verdict. Later, the trial judge imposed the mandatory death sentence.

Assignment of Error No. 1

Prior to trial, the defendant attacked the validity of the indictment by way of a motion to quash. The trial court denied the motion. In that motion, the defendant attacked the make-up and manner of selection of the grand and petit juries and the venires of both. In his brief though, the defendant offers no grounds for these objections. He merely argues that the motion to quash was the proper procedural vehicle by which to attack the makeup of the grand and petit juries and the venires of both. The defendant is correct in that assertion. C.Cr.P. 532, 533; State v. Wilson, 315 So.2d 646 (La.1975). However, since the defendant neither briefed nor argued the substance of these attacks, they are deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972). ¹

Defendant's principal assignment of error as initially presented in the motion to quash is that R.S. 14:42 (aggravated rape) is unconstitutional in that the imposition and the carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. ² On July 6, 1976 the Supreme Court of the United States handed down the decision in Selman v. Louisiana, --- U.S. ---, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). In that case the defendant had been convicted of aggravated rape and sentenced to death. This court affirmed both the conviction and the sentence. State v. Selman, 300 So.2d 467 (La.1974). The Supreme Court's opinion in the Selman case is as follows:

'The petitioners in these cases were sentenced to death. The imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the 8th and 14th Amendments. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The motions for leave to proceed In forma pauperis and the petitions for writs of certiorari are granted. The judgments are therefore vacated Insofar as they leave undisturbed the death penalty imposed, and the cases are remanded to the Supreme Court of Louisiana for further proceedings.' (Emphasis added).

Therefore, although Selman and Roberts mandate a reversal of the death Sentence, since the record reveals no other reversible error, the Conviction is affirmed. State v. Thomas, 310 So.2d 517 (La.1975); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972); State v. Singleton, 263 La. 267, 268 So.2d 220 (1972).

In order to fix the appropriate sentence in this case it is necessary to determine what other responsive verdicts the jury might have returned at the time the crime was committed. In 1973 the legislature amended Article 814 of the Code of Criminal Procedure to provide that the only responsive verdicts to aggravated rape are guilty, guilty of attempted aggravated rape, guilty of simple rape and not guilty. La. Act No. 126 (1973). Similarly, C.Cr.P. 817 was amended to delete the provision authorizing the qualifying verdict 'guilty without capital punishment.' La. Act No. 125 § 1 (1973).

At the time this crime was committed, attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years, R.S. 14:27(D)(1), and simple rape was punishable by imprisonment at hard labor for not less than one nor more than twenty years, R.S. 14:43. Therefore, we cannot accept the State's recommendation that the defendant be given a sentence of life imprisonment, since no lesser included offense of the crime of aggravated rape carried such a penalty at the time of the commission of this crime. ³

Thus, we will follow this court's decision in State v. Craig, 340 So.2d 191 (La.1976), and remand the case for the resentencing of the defendant to the most serious penalty for a lesser included offense. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor. The conviction will be affirmed and the case remanded for resentencing.

Assignment of Error No. 4

Defendant contends the trial court erred by denying his motion for a directed verdict made at the close of the State's case in chief. Defendant bases this contention on the judge's explanation (in his per curiam) of his refusal to grant the motion:

'Pursuant to C.Cr.P. Art. 778, it is to be the function of the trial judge to determine, in his sound discretion, if there is sufficient evidence to warrant the direction of a not guilty verdict for a defendant. If there is insufficient evidence, the Motion for the Directed Verdict of Acquittal will be denied and the defendant may offer his evidence in his defense at that time. In the absence of a showing of abuse of his discretion, the trial judge's ruling on the Motion for the Directed Verdict will not be disturbed.'

Defendant contends the trial court called upon defendant to prove his innocence rather than affording him the presumption of innocence. We disagree.

According to C.Cr.P. 778 as it read at the time of trial, a directed verdict was available in a jury trial only where there was no evidence of an essential element of the crime. State v. Douglas, 278 So.2d 485 (La.1973). The trial court's per curiam does not expressly mention his standard, but a reading of it shows he understood and applied this test. Indeed, this is what he meant when he said, 'if there is sufficient evidence to warrant the direction of a not guilty verdict for a defendant.'

Even if the trial court misconstrued the test to be applied, defendant has no complaint. The victim testified she was forced to submit to an act of intercourse performed against her will by a man threatening her with a knife. She identified this man as defendant. Thus a directed verdict could not be granted.

This assignment lacks merit.

Assignment of Error No. 5

Defendant contends that the trial court erred by refusing to allow his witness, Paulette Davis, to testify on his behalf. The record reveals, however, that the witness took the stand, but was asked no questions which the trial court would allow.

Paulette Davis had been raped in the area of the Parkchester Apartments on August 10, 1974. Cordell Lee had been tried and acquitted of that rape before he was tried for the June 12, 1974 rape of Ms. Santenac. The defense effort was to establish that there was a rapist in the area who resembled Cordell Lee.

The witness Davis was examined during a motion for a new trial, and she persisted in her identification of the defendant as her rapist, in spite of the fact that he was not convicted. If she had been allowed to testify fully at the trial, it is probable that her testimony would have assisted the prosecution instead of the defense.

Nevertheless, we cannot say from the record before us that the trial court erred. Two months separated the two incidents. The location of the second rape is identified (and then only by defense counsel in argument) as being 'in that area.' There is not sufficient factual basis in the record to find that the questions asked by the defense were relevant to the issues in the case.

There is no merit in this assignment.

Assignment of Error No. 6

Defendant contends that the trial court erred in sustaining an objection made by the prosecutor to a statement of defense counsel in the closing argument. The accused had taken the stand and the prosecutor did not cross-examine him. The following exchange took place during defense counsel's closing argument:

'DEFENSE COUNSEL: . . . The prosecutor elected not to ask ans questions. I can think of a hundred which the prosecutor could have asked; do you own a yellow bike? and I guess the prosecutor will say he does not own a yellow bike. What were you doing in the neighborhood? Were you visiting people there? . . .

'DISTRICT ATTORNEY: I did not ask any questions, but not for reasons given by the defense attorney.

'COURT: Sustained.'

The trial judge is accorded wide discretion in confining the arguments to the scope of the evidence. State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972), and Article 774 of the Louisiana Code of Criminal Procedure provides:

'The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

'The argument shall not appeal to prejudice.

'The state's rebuttal shall be confined to answering the argument of...