State v. Miles

• Decision Date: 08 November 1976
• Docket Number: No. 57907,57907
• Citation: 339 So.2d 735
• Parties: STATE of Louisiana v. Xavier MILES.
• Court: Louisiana Supreme Court

Page 735

339 So.2d 735

STATE of Louisiana v. Xavier MILES.

No. 57907.

Supreme Court of Louisiana.

Nov. 8, 1976.

Rehearing Denied Dec. 10, 1976.

Orleans Indigent Defender Program, Robert J. Zibilich, 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.

SANDERS, Chief Justice.

The State charged Xavier Miles with aggravated rape in violation of LSA-R.S. 14:42. After a trial by jury, the defendant was found guilty as charged. The trial judge imposed the mandatory death sentence. He appeals his conviction and sentence, relying upon six assignments of error. ¹

ASSIGNMENT OF ERROR NO. 13

In Assignment of Error No. 13 defendant complains of the trial court's refusal to grant him a continuance when one of his witnesses could not be located.

At the outset of the defendant's trial, prior to the State's commencement of its opening argument, it was noted that defense witness, Mildred Smith, was not present. Defense counsel stated that without the witness, the defense was not ready for trial and asked 'the court to reserve our rights.' Responding to the defense, the court issued an instanter subpoena and ordered that the neighborhood be canvassed. In response to the court's inquiry about the return, the deputy sheriff noted the return showed the address was an empty house. Defense counsel countered that the address was 'good.' The court ordered the case to proceed, over a defense objection. The State then made its opening statement, and the court adjourned.

The next day the defense moved for reissuance of the instanter subpoena, again informing the court that the address given was correct. The court ordered the reissuance; without further objection, trial testimony commenced.

In brief, defendant argues that this assignment of error deals with the denial of a defense motion for a continuance to procure the presence of Mildred Smith and urges that the trial judge abused his discretion in failing to grant the motion. Citing State v. Thornhill, 186 La. 447, 172 So. 522 (1937), defendant argues that he was entitled to the continuance because he showed the witness could be procured readily. He argues that the refusal to grant the continuance resulted in a denial of the constitutional right to compulsory process.

Louisiana Code of Criminal Procedure Articles 707 and 709 provide, respectively:

'An application for a continuance shall be (made) by written motion alleging specifically the grounds upon which it is based, and when made by a defendant, must be verified by his or his counsel's affidavit.'

'A motion for a continuance based upon the absence of a witness must state:

'(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;

'(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and

'(3) Facts showing due diligence used in an effort to procure attendance of the witness.'

Defense counsel's request that the court 'reserve . . . (defendant's) rights' does not qualify as a motion for continuance. Moreover, if construed as an oral motion for a continuance, it does not satisfy the requirements of the above articles.

Assignment of Error No. 13 is without merit.

ASSIGNMENT OF ERROR NO. 15

In Assignment of Error No. 15, defendant complains that the trial court erroneously granted the State's challenge for cause of prospective juror Robert Pullet based on Pullet's opposition to capital punishment. He relies upon Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

When asked by the State if he 'could . . . consider' the verdict of guilty as charged (which would automatically result in the imposition of the death sentence), Pullet answered, 'Yes, I could consider it but I don't believe in capital punishment.'

The State correctly argues that this 'Witherspoon-type' issue is no longer valid in light of the recent United States Supreme Court decisions, Roberts v. Louisiana, --- U.S. ---, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); and Selman v. Louisiana, --- U.S. ---, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), holding the Louisiana death penalty for rape unconstitutional. We have consistently held that a defendant insulated from the death penalty has no valid Witherspoon complaint. See, e.g., State v. Rester, La., 309 So.2d 321 (1975); State v. Adams, La., 302 So.2d 599 (1974); State v. Brown, La., 302 So.2d 290 (1974).

Assignment of Error No. 15 is without merit.

ASSIGNMENT OF ERROR NO. 16

In Assignment of Error No. 16, the defendant complains of the trial court's denial of his motion for a mistrial. Defense counsel's motion is based on the State's reference in its opening statement to what defendant told the victim's boyfriend, that is, 'Wait, wait. I had to do it. I had to do it. Let me explain. You'll understand what she was going (sic, doing) to my family. Wait.'

The testimony at trial discloses that the aggravated rape occurred during the daylight hours when the defendant, the victim's first cousin, sought entrance to her apartment ostensibly to use the bathroom facilities. After he entered the apartment, he overcame the victim, removed handcuffs from a paper bag he was carrying and secured her wrists, taped her mouth with adhesive tape, which was also in the bag which he brought, threatened her with a kitchen knife and raped her. During the commission of the offense, the victim's boyfriend attempted to admit himself to the apartment by using a key which the victim had given him. The defendant had engaged the safety chain, however, and he could not gain entry. Realizing that the victim's boyfriend was attempting to enter the apartment, defendant released her, instructing her to 'get rid' of her friend. The victim seized the opportunity to escape, telling her boyfriend of the offense as soon as she approached him and admitted him to the apartment. The two men scuffled and the victim ran to a neighbor's house to call the police. Before the police arrived on the scene, the defendant told the victim's boyfriend, 'Wait, wait. I had to do it. I had to do it. Let me explain. You'll understand what she was going (sic, doing) to my family. Wait.'

Defense counsel cites the prohibition of Louisiana Code of Criminal Procedure Article 767, which provides:

'The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.'

The State argues in brief that the statements of the defendant to the victim's boyfriend were res gestae and, hence, not subject to the rules governing confessions and inculpatory statements.

In State v. Fink, 255 La. 385, 231 So.2d 360 (1970), where defendant moved for a mistrial because in the opening statement the district attorney referred to a conversation in which arrangements to purchase contraband were made without having given prior written notice as required by Louisiana Code of Criminal Procedure Article 768, the Court stated:

'In the conversation objected to, the officers made arrangements to purchase marijuana from the defendant. The out-of-court utterances were incident to the criminal conduct and formed part of the res gestae. As such, the conversation was admissible in evidence. LSA-R.S. 15:448; State v. Fernandez, 157 La. 149, 102 So. 186; State v. Terry, 128 La. 680, 55 So. 15; State v. Gessner, 44 La.Ann. 93, 10 So. 404.'

'As used in Article 768, the term Inculpatory statement refers to the out-of-court admission of incriminating facts made by a defendant after a crime has been committed. It relates to past events. See State v. Clark, 102 Mont. 432, 58 P.2d 276; 23 C.J.S. Criminal Law § 816, p. 151. Thus the article was no application to the coversation resulting in the sale of marijuana in the present case.'

Later, this Court applied Fink to a factual situation in which the district attorney in his opening statement referred to a defendant's statement 'Give me the knife,' which statement defense counsel argued was a confession. Although the State had not given written notice of intent of use the confession prior to trial, we admitted the statement as part of the res gestae. State v. Crockett, 262 La. 197, 263 So.2d 6 (1972).

Similarly, Xavier Miles's statement is res gestae. Defendant made this statement at the scene of the crime a minute or two after the rape to the victim's boyfriend who discovered the defendant naked and the victim partially unclothed and hysterical. LSA-R.S. 15:447, 448; State v. Batiste, La., 318 So.2d 27 (1975); State v. Reese, 250 La. 151, 194 So.2d 729 (1967).

Assignment of Error No. 16 is without merit.

ASSIGNMENT OF ERROR NO. 17

The defendant asserts that the trial judge committed reversible error by overruling his hearsay objection to the following statements EXAMINATION BY MR. McKAY: (District Attorney)

'Q. While you were in the room, Mr. Ross, did you notice--did you have a chance to notice anything on the floor or anything out of the ordinary in the room when you went in where the defendant, Xavier Miles, was standing with no clothes on?

'A. Well, I noticed the pants on the floor. They had a knife on the floor also. She had told me about the handcuffs and during the time we was waiting for the officers . . .

BY MR. ZIBILICH:

'Object to what she told him, if your honor pleases.

BY THE COURT:

'When did she tell you whatever this was?

'A. When she came back from calling the officers, calling the police. She was explaining things to me then.

BY THE COURT:

'objection overruled.

MR. ZIBILICH:

'Note an assignment of error.'

Defense counsel correctly contends that this testimony is hearsay and should have been excluded. LSA-R.S. 15:434. However, we do not believe that the defendant was prejudiced by its admission for this testimony tended to corroborate...