State v. McCloud

• Decision Date: 10 April 1978
• Docket Number: No. 61049,61049
• Citation: 357 So.2d 1132
• Parties: STATE of Louisiana v. Michael McCLOUD.
• Court: Louisiana Supreme Court

Page 1132

357 So.2d 1132

STATE of Louisiana v. Michael McCLOUD.

No. 61049.

Supreme Court of Louisiana.

April 10, 1978.

Rehearing Denied May 19, 1978.

Jerry A. Kirby, Kirby & Anzalone, Monroe, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Stephanie W. Dawson, Asst. Dist. Atty., for plaintiff-appellee.

DENNIS, Justice.

Defendant, charged with aggravated rape, was found guilty after trial by jury of forcible rape and sentenced to serve twenty years at hard labor. For reversal of his conviction and sentence defendant relies upon twelve assignments of error.¹ Finding no reversible error we affirm.

ASSIGNMENT OF ERROR NO. 1

In this assignment defendant claims the trial court erred in denying his motion for a preliminary examination which had been filed approximately four weeks before the grand jury indicted him. When the motion came up for hearing after the return of the grand jury indictment, the trial court declined to hear it on the ground that probable cause to charge the defendant had been determined by the grand jury.

A preliminary examination is designed primarily to determine whether probable cause exists to charge the accused. When a valid indictment is returned by a properly constituted grand jury, the existence of probable cause is conclusively presumed. Absent a showing that the failure to afford defendant a preliminary examination resulted in specific prejudice leading to an unfair trial, the issue becomes moot after a verdict of conviction is rendered. State v. Redfud, 325 So.2d 595 (La.1976); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970).

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In assignment of error number two defendant complains of the trial court's initial refusal to set bail prior to trial and that when a bail hearing was actually held it was not heard until immediately before the first trial of this case.² It is well settled that on appeal after conviction these issues become moot. Defendant's appropriate avenue for review was to invoke this Court's supervisory jurisdiction at the time bail was denied. State v. Passman, 345 So.2d 874 (La.1977); State v. Jones, 332 So.2d 267 (La.1976); La.C.Cr.P. art. 322.

In assignment of error number three defendant contends the trial court erred in refusing to allow him a free transcript of the bail hearing held prior to the first trial in this case which ended in a mistrial. Defendant argues the transcript should be made available as of right for the purpose of aiding in the trial. There is no such authority requiring the State to furnish defendant a transcript of a bail hearing solely for this purpose.

Absent a showing of specific prejudice leading to an unfair trial, these assignments lack merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

In these assignments defendant contends two police officers were allowed to testify that he exercised his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that from such testimony the jury could adversely infer guilt.

In oral statements to two police officers defendant initially denied that he knew the victim. Upon further questioning the defendant admitted he had sexual intercourse with the victim but contended it was with her consent. After agreeing to give a recorded statement the defendant requested the presence of an attorney and the interrogation ceased. A recorded statement was never obtained.

During a conference held out of the presence of the jury defense counsel and the prosecuting attorney agreed that the officers would be permitted to testify that a recorded statement was not obtained from the defendant but that defendant's request for an attorney would not be mentioned. The record is unclear as to whether defense counsel agreed or objected to testimony by the officers that the defendant did not desire to give a recorded statement.³

When the jury returned the officers fully related defendant's oral statements in their testimony. The officers did not mention that defendant requested the presence of an attorney. The witnesses testified in two separate instances, however, that defendant refused to repeat his oral statement so that it could be recorded. No objection was made by the defense on either of these occasions.

Under these circumstances the defendant's contention that this testimony was inadmissible and prejudicial is not reviewable after verdict because he failed to apprise the court of his objection and the grounds therefor. La.C.Cr.P. art. 841.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 6

Defendant contends the trial court erred in allowing the victim's mother to testify that her daughter told her she had been raped shortly after the incident because such testimony was inadmissible hearsay.

As we recently stated in State v. Elzie, 351 So.2d 1174 (La.1977):

"The statement of which defendant complains is certainly hearsay because it is the out of court, unsworn statement of a third person offered for the truth of its contents. State v. Jacobs, 344 So.2d 659 (La.1976); McCormick, Law of Evidence § 225 at 449 (Hornbook ed. 1954). But we have long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. State v. Brown, 302 So.2d 290 (La.1974); State v. Hills, 241 La. 345, 129 So.2d 12 (1961). When there is no unexplained lapse of time between the rape and the victim's complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. McCormick, supra § 272 at 580; Weinstein's Evidence, § 803(2)(01) at 803-79."

Less than twenty minutes after the incident occurred, the victim, who was upset and nervous, related to her mother that she had been raped. The statement, which was made under the pressure of the rape and soon after its occurrence, was properly admissible.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

These assignments relate to remarks made by the prosecutor during his closing argument. In rebuttal argument the prosecutor referred to a statement made by defense counsel in his closing argument that rapes were being committed nightly in the victim's neighborhood. Defendant objected to the prosecutor's statement on the ground that there was no testimony to the effect that rapes were occurring nightly. The objection was overruled and forms the basis of assignment of error number ten. In his per curiam the trial judge stated that the remarks of the prosecutor were a response to statements made by defense counsel in his closing argument that the police had been investigating rapes daily and were within the scope of fair rebuttal argument. We find no error in this ruling. La.C.Cr.P. art. 774.

Assignment of error number eleven deals with the prosecutor's statement that the defendant did not initially admit to the police that he had a knife. Defendant objected to this statement on the basis that it was unsupported by the record. The record reveals that the defendant first told the police he did not know the victim and had not raped her. When he later admitted having intercourse he stated he had a knife. The remark made by ...