State v. Moore
| Decision Date | 28 November 1972 |
| Docket Number | No. 52720,52720 |
| Citation | 278 So.2d 781 |
| Parties | STATE of Louisiana v. Napoleon MOORE. |
| Court | Louisiana Supreme Court |
Murphy W. Bell, Baton Rouge, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., LeRoy A. Hartley, Sp. Asst. Gen., Sargent Pitcher, Jr., Ossie B. Brown, Dist. Attys., Ralph L. Roy, Asst. Dist. Atty., for plaintiff-appellee.
Defendant, Napoleon Moore, was tried by jury for the crime of aggravated rape (R.S. 14:42). The defendant was found guilty without capital punishment and sentenced to life imprisonment in the State Penitentiary. On this appeal, the accused relies on two bills of exceptions involving the state's use of another, separate incident of aggravated rape which allegedly occurred September 14, 1971 in Foster Hall on the Louisiana State University campus. The crime for which the defendant was tried occurred September 18, 1971 in the Life Science Center Building also on the same campus.
Both bills of exceptions pertain to the same issue, that is, the allegation that the defendant was denied a fair trial and due process of law by reason of the prosecution's introduction of extensive evidence relating to the prior extraneous crime (the aggravated rape of September 14th), although no prior conviction for this act had been achieved against the defendant. In his first bill, defense counsel objected to the Assistant District Attorney's assertion in his opening statement of his intent to offer evidence of the prior assault to proof up the charge for which the defendant was on trial, and asked for a mistrial which the trial judge denied. The second bill was taken to a denial of defendant's Motion for a New Trial on essentially this same ground, including objections to later references throughout the trial to this same prior extraneous crime.
Also in his motion for a new trial, defense counsel listed additional grounds but does not argue them in his brief, therefore we may consider them abandoned. Consequently, we address ourselves to his major specification of error concerning the State's use of the prior offense in the prosecution of this case.
Under the provisions of La.R.S. 15:441, 445 and 446, and recent jurisprudence, this Court has repeatedly held that in sexual offenses, such as rape, evidence of similar acts of the defendant is admissible especially when as here the offense referred to occurred closely related by time, method and in the same neighborhood as the offense charged. State v. Crook, 253 La. 961, 221 So.2d 473 (1969); State v. Hills, 259 La. 436, 250 So.2d 394 (1971); and State v. Smith, 259 La. 515, 250 So.2d 724 (1971).
The defendant was positively identified at the trial by the victim of the first rape (R--182, R--186--188) which allegedly occurred September 14th. He was also positively identified by the victim of the rape four days later for which he is here prosecuted.
We do not find the defendant's contention tenable. These bills are without merit.
For these reasons, the conviction and sentence are affirmed.
BARHAM, J., dissents and will assign reasons.
TATE, J., concurs and assigns reasons.
The writer believes that the proof of the other crimes under La.R.S. 15:445 and 446 is not admissible to prove intent in crimes other than those in which specific intent is required. See his dissent in State v. Bolden, 257 La. 60, 241 So.2d 490 (1970); see also the dissent by my brother Barham in that case and in State v. Crook, 253 La. 961, 221 So.2d 473 (1969). See also 30 La.L.Rev. 321--22 (1969) and Note, 46 Tul.L.Rev. 336 (1971). Neither Specific intent nor Knowledge is an element of the present crime for which the defendant would be properly convicted upon proof simply that he committed the Act of rape, La.R.S. 14:42.
However, since a majority of the present court has rejected the opinion thus expressed, the writer concurs in the decision in the present affirmance.
Nevertheless, I must once again express the view that this court has misinterpreted the legislative intent of La.R.S. 15:445 and 446 and my strong belief it should reconsider the application of 446 so as to exclude proof of other crimes in any prosecution not requiring proof of specific intent. An examination of the facts of this case will disclose the serious prejudice to the accused.
Here, the rape for which the accused was on trial allegedly took place in the Life Science Building on the LSU Baton Rouge Campus in the afternoon. Supposedly to show intent, full evidence was admitted in regard to another rape which allegedly occurred four days earlier in Foster Hall, on the same campus. The modus operandi was disserent; in one, for instance, the rapist posed as a janitor and talked with the victim before the assault, in the second (for which the defendant is tried), the rapist just grabbed the victim and dragged her down the hall.
The state could not have tried the defendant for both crimes under the joinder articles, La.C.Cr.P. Art. 490 et seq. The obvious legislative motive in requiring severance is to prevent prejudice to a defendant where he might be convicted for a crime of which he is innocent on evidence that he committed a different crime.
Here, even if there were a reasonable doubt of his guilt of the present rape, the jury may have convicted the defendant because it believed him guilty of the other rape not charged here. Or the evidence in each case, if separately and independently tried, might be insufficient to convict the defendant. It is impossible on appellate review to distinguish between the strong case and the weak case, where there is a whisper of evidence, for on appellate review where there is any evidence at all, this court cannot disturb the verdict.
I should add, that on a variety of technical legal justifications, the State also introduced evidence that the defendant was a sneak thief (or suspected of being one), where the prejudice to the defendant greatly outweighed the probative value in determining whether he was guilty of the rape for which he is presently charged.
A review of the record indicates that, while the defendant may have been guilty of the rape for which charged, the record contains so much emphasis upon greatly prejudicial testimony relating to other misconduct as to make the fairness of the trial greatly subject to question.
In the record before us, about 66 out of 300 pages of trial testimony--i.e., about 20%--was devoted to proof of the other crimes. Further, of the 150 lines of the state's opening statement about 77 lines (50%) were dedicated to the other rape, about 40 lines (25%) being devoted to his alleged role as a sneak thief, and the remainder (about 23%) being devoted to describing the crime of rape and the rape with which charged. Similarly, about 38% Of the state's closing argument, and its Entire rebuttal argument, concerned the other crimes and misconduct. The prosecutor's argument is replete with emphasis upon the defendant's committing two crimes. 1
It is not unimaginable to me that convictions such as the present, founded to a great degree upon prejudicial testimony of other activities not really probative of whether or not the accused committed the crime with which charged, may be regarded as so fundamentally unfair as to amount to a denial of due process. In my opinion, the conscientious prosecutor desiring to convict the guilty, but only after a fair trial, and then to safeguard such conviction, will do well to avoid reliance upon tactics such as the present. Almost certainly this court will in the future have to reexamine its interpretations of the statute permitting such tactics, which in my opinion are beyond any legislative intent and which verge on a denial of due process.
Reviewing the whole record, it is difficult to believe that the defendant received a fair trial in the traditional American sense--that he was convicted on a trial based solely on evidence relevantly directed toward his guilt or innocence of the offense with which charged, rather than upon proving that he was a bad, bad man who should be put away. Under the present doubtful interpretations of the admissibility of evidence of other crimes, and considering the limited nature of appellate review, however, I concur in this affirmance; but with great reservations.
Under the facts as given by Mr. Justice Tate in his concurrence I must dissent. See my dissents in State v. Crook, 253 La. 961, 221 So.2d 473 (1969); State v. Bolden, 257 La. 60, 241 So.2d 490 (1970); and State v. Hills, 259 La. 436, 250 So.2d 394 (1971).
We granted a rehearing in this case because of the use of evidence of other criminal acts by the prosecution.
The defendant was indicted for the aggravated rape of a married woman on September 18, 1971. In his opening statement, the prosecutor stated that he would produce evidence of another rape committed on the LSU campus on September 14, 1971, 'in an effort to prove . . . intent, guilty knowledge and mode of operation, and not for the purpose of proving this crime charged . . .'
The prosecution relied on numerous prior decisions of this court, in which the use of such evidence has been approved. 1
Our prior cases interpreted R.S. 15:441, 445 and 446 2 as permitting the introduction of extraneous offenses by the prosecution. This interpretation was reached despite the provisions of R.S. 15:444:
'If a statute has made it a crime to do a particular act, no further proof of intent is required than that accused voluntarily did the act; and any evidence that he did not know such act to be forbidden by law is inadmissible.'
We find that no proof of intent 3 was required in this prosecution, and that it was error to admit evidence of other offenses.
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