State v. McGraw
| Decision Date | 20 June 1990 |
| Docket Number | No. 21538-KA,21538-KA |
| Citation | 564 So.2d 727 |
| Parties | STATE of Louisiana, Plaintiff-Appellee, v. Mark Douglas McGRAW, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Steven R. Thomas, Mansfield, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, William R. Jones, Dist. Atty., Coushatta, for plaintiff-appellee.
Before HALL, JONES and LINDSAY, JJ.
After a jury trial, defendant, Mark Douglas McGraw, was found guilty as charged of aggravated rape, LSA-R.S. 14:42, and was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. He appealed, asserting four assignments of error. For the reasons stated below, we affirm.
The victim, age 49, and her grandchild, Jessica, age six, checked into the Worth Motel in Coushatta, Louisiana on August 12, 1988 at approximately 5:30 p.m. After dinner, the victim and her grandchild returned to the motel room. According to the victim, she locked the door by pushing and turning the door handle and securing the night chain. Around midnight, she got up to use the rest room. Before returning to bed, she checked the door to be sure it was locked. At this time, Jessica was asleep in her own double bed.
The next thing the victim realized, a man was on top of her holding a tire tool in his right hand. The assailant covered the victim's mouth with his left hand and told her to "do as I say, or I am going to hurt your daughter." The victim told her assailant that the child was her granddaughter "and for God's sakes, don't hurt her." The assailant demanded the victim remove her gown or he would gash her head open with the tire tool if she did not cooperate. He explained he had a knife and a gun inside his boots. However, the victim only noticed his boots and did not notice a weapon other than the tire tool.
After the victim took her gown off, her assailant pulled his pants down to his knees and raped her. The victim told her assailant she was expecting her husband and son to arrive at any moment. The assailant told the victim he would kill her or any member of her family if they showed up at the door.
After allowing the victim to dress, the assailant demanded the victim drive him to the other side of town. He shoved her inside the car through the driver's door. The victim attempted to crawl out the passenger door, but was stopped by the assailant. She was able to wedge her hand in the passenger door. The assailant drove the car, a 1986 blue Ford Escort, out of the parking lot and onto the main road. The victim was screaming. As the assailant released her arm in order to shift the car into fifth gear, the victim bailed out of the car. She ran and screamed for help. She hid behind a building and watched the blue Escort head toward the bridge. She then ran into the middle of the street and attempted to stop a moving car. When she looked up, the victim saw the blue Escort make a U-turn and head toward the motel. Fearing the assailant was driving to the motel to get her granddaughter, the victim ran into Christine Florane's yard and beat on the front door. The Floranes called the police. Officer Scotty Hill arrived and took the victim to the motel.
When Officer Hill and the victim arrived at the motel, Officer Adams, Deputy Clift, and Capt. Rhodes were already present. The officers entered Room 4 and found a small female child asleep in the first bed. The second bed was in disarray. The door was unlocked, the air conditioner was running, the window in the front of the room closest to the door was halfway open and its screen was off. The officers collected the items lying on the second bed, such as the victim's nightgown, the bedspread and the sheets.
After the victim put Jessica into Officer Hill's patrol unit, the three of them drove to the hospital, where Dr. Hanna, the coroner, performed a sex crime examination on the victim. After the test, Hill and the victim drove to Shreveport. Officer Hill dropped the victim off at the Shreveport Police Department while he drove to the crime lab to deposit the results of the sex crime examination, along with the bedspread, sheets, pillowcases and the metal screen from the motel window for analysis. During this time, the victim worked with Officer Cheryl Jeter at the Shreveport Police Department and made a composite of her assailant. When Officer Hill picked up the victim at the police station, he received a photocopy of the composite.
Meanwhile, Officer Jodie Lester was filling out an arrest warrant for Mark McGraw, the defendant in this case. Based on the description the victim gave Officer Hill of her assailant and the description of Mark McGraw, a guest at the Worth Motel, from Mr. Patel, the owner, Mark McGraw became a suspect.
Next, the victim, Capt. Rhodes and Officer Lester drove to Jasper, Texas. At Jasper, the victim was shown a photographic lineup consisting of five photographs. She identified No. 2 as her assailant. Approximately two hours later, the victim was asked to identify, if possible, her assailant in a physical lineup. She identified No. 3 as her assailant. On both occasions, the victim chose Mark McGraw.
Mark McGraw was subsequently arrested and was indicted on August 29, 1988 by the grand jury with aggravated rape, LSA-R.S. 14:42. He was also charged by bill of information with aggravated kidnapping, LSA-R.S. 14:44, and unauthorized use of a movable, LSA-R.S. 14:68. On October 14, 1988, defendant and others escaped from prison in Red River Parish. As a result of T.V., newspaper and radio publicity, defendant filed a motion for change of venue. He also filed a motion to suppress the photographs and out-of-court identification. The motion for change of venue was referred to the merits to determine if a jury could be selected. The motion to suppress was denied. Defendant then filed a motion in limine to reurge his motion to change venue and, alternatively, requested voir dire be conducted with a "dummy" jury venire, or individually. The voir dire requests were denied.
After trial on the aggravated rape charge, defendant was convicted by jury as charged. He was sentenced to life imprisonment. Defendant now appeals his conviction and sentence based on four assignments of error.
Defendant first assigns as error the trial court's failure to grant his motion for change of venue based on prejudicial pre-trial publicity. Defendant argues the trial court erred in failing to grant his pre-trial motion and referring the ruling to the merits "to determine if a jury can be selected." He further argues that the trial court erred in failing to grant individualized voir dire of prospective jurors, or voir dire with a dummy panel to determine if prospective jurors had been influenced by the pre-trial publicity. Defendant asserts that the method of jury selection denied him an opportunity to conduct a full and complete voir dire.
The trial court deferred the ruling on the motion to change venue until the attempt to pick the jury had occurred. Whether a defendant has made the requisite showing for a change of venue to be granted is a question addressed to the sound discretion of the trial court. State v. Edwards, 406 So.2d 1331 (La.1981), cert. denied 456 U.S. 945, 102 S.Ct. 2011, 72 L.Ed.2d 467 (1982). Postponing final action on a motion for change of venue until completion of voir dire is also proper. State v. Brogdon, 426 So.2d 158 (La.1983); State v. Ware, 478 So.2d 790 (La.App. 3d Cir.1985). The grounds for a change of venue are provided in LSA-C.Cr.P. Art. 622:
In determining whether or not a change of venue should be granted, the trial court should consider a number of factors. State v. Bell, 315 So.2d 307 (La.1975) held:
Other factors relevant to the inquiry include the degree to which the publicity has circulated in the areas to which venue could be changed, the care exercised, and the ease encountered in the selection of the jury, the familiarity with the publicity complained of and the resultant effect upon the prospective jurors, and the peremptory challenges and challenges for cause exercised by the defendant in jury selection. State v. Berry, 329 So.2d 728 (La.1976); State v. Henry, 446 So.2d 1308 (La.App. 2d Cir.1984).
In order to warrant a change of venue, defendant must show more than mere public knowledge of the facts surrounding the offense. They must show that such prejudice exists in the collective mind of the community that a fair trial is impossible. State v. Henry, supra; State v. Coutee, 545 So.2d 571 (La.App. 2d Cir.1989) writ denied 551 So.2d 1335 (La.1989).
In the instant case, the publicity complained of...
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State v. Savage
...procedure. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Cotton, 511 So.2d 1207 (La.App.2d Cir.1987); State v. McGraw, 564 So.2d 727 (La.App.2d Cir.1990), writ denied, 567 So.2d 1126 (La.1990). A lineup is unduly suggestive if the procedure focuses attention on the defendant. State v......
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Ledbetter v. Concord General Corp.
...the rapist given by Ms. Ledbetter. He was subsequently convicted of aggravated rape and sentenced to life imprisonment. State v. McGraw, 564 So.2d 727 (La.App.2d Cir.), writ denied, 567 So.2d 1126 Ms. Ledbetter, along with her son and daughter (as natural tutrix of Jessica Veara), filed sui......
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...McGraw was apprehended, prosecuted for the offense and was convicted. He was sentenced to serve life in prison. See State v. McGraw, 564 So.2d 727 (La.App. 2d Cir.1990), writ denied 567 So.2d 1126 On December 30, 1988, suit was brought against Balvantrai Govindji Patel, his wife, Manjulaven......
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