State v. Mills
| Decision Date | 01 April 1987 |
| Docket Number | No. 18447-KA,18447-KA |
| Citation | 505 So.2d 933 |
| Parties | STATE of Louisiana, Appellee, v. Jesse MILLS, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Culpepper, Teat, Caldwell & Avery by Jimmy C. Teat, Jonesboro, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Charles B. Bice, Dist. Atty., Winnfield, for appellee.
Before HALL, JASPER E. JONES and NORRIS, JJ.
The defendant, Jesse Mills, was charged by grand jury indictment with one count of aggravated burglary in violation of LSA-R.S. 14:60, nine counts of aggravated rape in violation of LSA-R.S. 14:42, two counts of aggravated crime against nature in violation of LSA-R.S. 14:89.1, one count of armed robbery in violation of LSA-R.S. 14:64 and two counts of attempted second degree murder in violation of LSA-R.S. 14:30.1 and LSA-R.S. 14:27. A jury found defendant guilty as charged on each count. The trial judge imposed the maximum sentence for each offense and ordered the sentences for each offense to be served consecutively with each other sentence imposed. Defendant appeals relying upon forty-six assignments of error for reversal of his convictions and sentences. We affirm.
In the early morning hours of June 2, 1985 the defendant entered the victim's mobile home by removing a screen and climbing through an unlocked window. After entering, defendant proceeded to a bedroom where he observed the victim asleep. Defendant obtained a butcher knife from the kitchen and returned to the victim's bed where he got on top of her and covered her head with a pillow. When the victim attempted to escape, defendant cut her hand and face, threatened to kill her and told her to remove her panties. The victim again resisted and defendant cut her several times on the leg. Thereafter the defendant, while in various rooms of the mobile home vaginally raped the victim seven times, anally raped her two times and forced her to commit two acts of fellatio upon him. The defendant also robbed the victim. In addition, defendant brutally attacked the victim two times with the knife inflicting multiple and severe wounds to her arms, head and face. Defendant subsequently fled and the victim summoned help from a neighbor. She was taken to a local hospital and subsequently transported by air ambulance to a hospital in Alexandria where she underwent about thirteen hours of surgery.
While at the local hospital in Winnfield, the victim was examined by Dr. Iglesias. Analysis of a vaginal swab and vaginal washings revealed the presence of fresh spermatozoa.
Defendant was arrested on July 2, 1985 and gave a recorded statement to Deputy Greg Davies of the Winn Parish Sheriff's Department wherein he confessed to the crimes.
The victim identified defendant as her assailant at trial and in pre-trial photographic and physical line-ups.
By these assignments of error, defendant contends the trial court erred in denying his motion to quash the indictment on the following grounds:
1) LSA-R.S. 14:89 is unconstitutional;
2) the indictment fails to allege with specificity which subsection of LSA-R.S. 14:42 he was charged with;
3) the crimes charged constitute double jeopardy; and
4) the indictment fails to state the essential facts constituting the offense charged, contains a misjoinder of offenses and is duplicitous.
Unconstitutionality of LSA-R.S. 14:89
Defendant argues the definition of crime against nature in LSA-R.S. 14:89 as "the unnatural carnal copulation by a human being with another of the same sex or opposite sex" is vague, ambiguous and unconstitutional.
LSA-R.S. 14:89 has consistently been held constitutional. State v. Bonanno, 163 So.2d 72 (La.1964); State v. Bluain, 315 So.2d 749 (La.1975); State v. Picchini, 463 So.2d 714 (La.App. 4th Cir.1985), writ den., 468 So.2d 1202 (La.1985). For this reason, the trial judge committed no error in denying defendant's motion to quash on this ground.
Specificity of Indictment Under LSA-R.S. 14:42
Defendant argues the indictment fails to allege with specificity which subsection of LSA-R.S. 14:42 he was being charged with.
LSA-R.S. 14:42 defines aggravated rape. The record reflects the rape charges were in accordance with the short form indictment under LSA-C.Cr.P. art. 465(A)(39). In addition, the state responded to defendant's motion for a bill of particulars indicating the prosecution was based on LSA-R.S. 42(A)(1), (2) and (3).
Therefore, defendant was adequately informed of the nature and cause of the accusations against him. State v. Baylis, 388 So.2d 713 (La.1980); State v. Kohler, 434 So.2d 1110 (La.App. 1st Cir.1983). The trial judge was correct in denying defendant's motion to quash on this ground.
Defendant contends the use of a dangerous weapon is an integral part of each of the offenses with which he was charged and conviction of any one offense would bar prosecution for any other offense on the basis of double jeopardy.
No person can twice be put in jeopardy for the same offense. Amendment V, U.S. Const.; Article I, § 15, La. Const. (1974); LSA-C.Cr.P. art. 591; State v. Knowles, 392 So.2d 651 (La.1980).
Whether two offenses are the same for the purposes of double jeopardy is determined by the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932):
"... The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not...."
This rule is constitutionally required by the states, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and is embodied in LSA-C.Cr.P. art. 596:
Louisiana uses both the "Blockburger test" and the "same evidence test." State v. Steele, 387 So.2d 1175 (La.1980); State v. Knowles, supra.
The Louisiana Supreme Court explains the "same evidence test" in State v. Steele, supra, as follows:
Double jeopardy provisions protect an accused not only from a second prosecution on the same offense, but also from multiple punishments for the same criminal conduct. State v. Vaughn, 431 So.2d 763 (La.1983).
In the instant case, defendant was charged with nine counts of aggravated rape, one count of aggravated burglary, two counts of aggravated crime against nature, one count of armed robbery and two counts of attempted second degree murder.
Aggravated burglary is defined in LSA-R.S. 14:60 as follows: Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with intent to commit a felony or any theft therein, if the offender,
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.
Aggravated rape is defined in LSA-R.S. 14:42 as follows:
A. "Aggravated rape is a rape commited where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
(5) When two or more offenders participated in the act."
In order to prove the crime of aggravated burglary, the state must prove beyond a reasonable doubt defendant made an unauthorized entry of the victim's home with the intent to commit a theft or felony. Additionally, the state must prove beyond a reasonable doubt one of the three aggravating circumstances listed in LSA-R.S. 14:60.
As the state need only prove intent to commit a felony within the victim's home at the moment of unauthorized entry and not the actual felony itself, it is apparent that the crimes of aggravated burglary and aggravated rape do not contain identical elements. State v. Anderson, 343 So.2d 135 (La.1977); State v. Kirkley, 470 So.2d 1001 (La.App. 1st Cir.1985), writ den., 475 So.2d 1105 (La.1985). In addition, in this case, evidence necessary to support a finding of guilty of aggravated burglary would not also have supported conviction of aggravated rape. The state was only required to prove one of the three aggravating circumstances listed in LSA-R.S. 14:60 and the record clearly indicates defendant entered the victim's residence and armed himself with a dangerous weapon after entering.
Although the crimes of aggravated crime against nature, armed robbery and attempted second degree murder also involved the use of a dangerous weapon, the evidence required to support a finding of guilt...
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