State v. Reaves

• Decision Date: 31 October 1990
• Docket Number: No. 21,894-KA,21,894-KA
• Citation: 569 So.2d 650
• Parties: STATE of Louisiana, Appellee, v. Broderick Raynard REAVES, Appellant. 569 So.2d 650
• Court: Court of Appeal of Louisiana — District of US

Page 650

569 So.2d 650

STATE of Louisiana, Appellee, v. Broderick Raynard REAVES, Appellant.

No. 21,894-KA.

569 So.2d 650

Court of Appeal of Louisiana Second Circuit.

Oct. 31, 1990.

Charles A. Smith, Minden, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry R. Brown, Dist. Atty., James M. Bullers, Asst. Dist. Atty., Bossier City, for appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

HIGHTOWER, Judge.

Defendant, Broderick Raynard Reaves, was charged with forcible rape, LSA-R.S. 14:42.1, and found guilty by a jury. After receipt of a presentence investigation report, the trial judge ordered incarceration at hard labor for 25 years. Defendant now appeals and relies upon six assignments of error. Finding no merit to his contentions, we affirm the conviction and sentence.

FACTS

Around 5:00 a.m. on April 26, 1989, defendant approached the home of his next door neighbor, E.A., a 47-year-old single female, and rapped on her bedroom window. After identifying himself, he requested to use her phone, claiming an emergency. Having previously allowed defendant to make calls, and being concerned that defendant's grandmother with whom he resided possibly needed medical assistance, E.A. let him into her home.

Expecting defendant to use the phone in the living room, E.A. returned to her bedroom and sat on her bed. She next noticed defendant in the doorway of the room with a butcher knife in his hand. Holding the instrument aloft, he advanced toward her, warning he would kill her if she shouted. A struggle ensued, during which her hand was cut. Overcoming E.A., defendant used the knife to rip off her shorts and underpants, and then raped her. He left a few minutes later, heading toward his house.

Locking the door behind him, E.A. immediately called her employer, Mrs. Mildred Woodard, advising of the attack and asking that she contact Mark Wise, a Minden police officer and son-in-law of Mrs. Woodard.

After receiving a call at approximately 5:45 a.m., two officers reported to the victim's home. Two other policemen soon arrived, interviewed E.A., collected evidence, and then arrested defendant, who was asleep at his residence. Returning later, the investigating officers searched the grandmother's house pursuant to her written consent. From behind a freezer in the kitchen, they recovered a bloody knife matching the description given by the victim.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, defendant claims the court erred in refusing to allow him to ask the victim if she was a virgin. His attorney stated the purpose of this question as follows:

MR. HARRINGTON: She has alleged that there was a penetration here. I believe that I have a right to determine whether or not she was a virgin, because whether or not she was had an effect on whether or not there was a penetration and what her physical feelings were at the time and I think I'm entitled to know that.

Finding the inquiry did not meet either of the exceptions provided by LSA-C.E. Art. 412, the court sustained the state's objection to the question.

LSA-C.E. Art. 412 provides, in pertinent part:

B. Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:

(1) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or

(2) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.

....

F. Past sexual behavior defined. For purposes of this Article, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged.

Defense counsel's question sought to elicit information concerning the victim's past sexual behavior for reasons other than those sanctioned by statute. Thus, the trial court properly sustained the state's objection.

It cannot seriously be contended that only nonvirgins are capable of recognizing penile penetration. Thus, the chastity of the victim had no bearing on the issue stated by defense counsel. Certainly, the penetration element of the crime could have been explored without resorting to, as intended to be precluded by Article 412, an attack upon the victim's character by subterfuge. Moreover, defendant was allowed considerable latitude in educing details of the rape, including whether or not the victim observed defendant insert his penis, or whether she could have been assaulted by digital penetration.

No error is disclosed; this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant next contends the lower court erred in admitting hearsay statements made by the victim to her employer and a neighbor. Determining the statements to be excited utterances, the trial judge allowed their introduction.

LSA-C.E. Art. 803 sets forth numerous exceptions to the hearsay rule, one being an excited utterance, defined as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." LSA-C.E. Art. 803(2). This exception requires an occurrence or event sufficiently startling to render an observer's normal reflective thought processes inoperative. Further, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. State v. Henderson, 362 So.2d 1358 (La.1978); State v. Holland, 544 So.2d 461 (La.App. 2d Cir.1989).

Of the many factors that enter into determining whether a declarant was under the stress of an exciting event, probably most important is the time factor. The trial court must decide whether the interval between the event and the statement was long enough to permit a subsidence of emotional upset and a restoration of a reflective thought process. Additional factors which may indicate that a statement was the result of reflective thought, but do not automatically justify exclusion, are as follows: evidence that the statement was self-serving or made in response to an inquiry; expansion of the excited utterance beyond a description of the event and into past or future facts; and proof that, between the event and the statement, the declarant performed tasks requiring reflective thought processes. State v. Henderson, supra.

Being raped at knife point is certainly an event startling enough to have deprived E.A. of her reflective thought process. Accordingly, it must be determined whether sufficient time had lapsed between the rape and the statements so that her emotional upset would have subsided.

Testimony established that the incident occurred between 5:00 and 5:15 a.m. Within minutes, E.A. called her employer. Crying, she stated that "the Reaves boy" had come to her residence armed with a knife, had "forced himself" on her, and had cut her in the process. As previously stated, two officers reached the house around 5:45 a.m. Shortly thereafter, a neighbor, Mrs. Mattie Flournoy, arrived to find the victim very upset, moaning and crying. E.A. related the event to her and identified defendant as the rapist. Later, between 7:00 and 8:00 a.m., Mrs. Woodard, the employer, drove the victim to the coroner's office for the rape test. During the drive, E.A. recounted the incident in slightly more detail.

No contemporaneous objection arose to testimony of the telephone conversation, which the defense brief admits to have ensued within minutes of the attack. With respect to the statement to Mrs. Flournoy, the trial judge concluded that the assertions transpired under influence of the exciting event. The evidence reasonably supports that factual determination. Less than an hour, probably about 45 minutes, had elapsed between the incident and the statement. Mrs. Flournoy described E.A. as "very upset, and moaning, crying." Arriving at the home after the neighbor, Mrs. Woodard found the victim still nervous, upset, and pacing the floor. Although well acquainted for over 17 years, her employer had never seen the victim cry or become so emotional before, even after the death of her parents.

Two hours or more had passed, however, before the statements were made during the trip to the coroner's office. Considering that factor and that the victim had given detailed statements to the police in the interim, the trial court erred in treating the remarks made in the automobile as excited utterances. Nevertheless, earlier testimony revealed that basically the same story had already been related to Mrs. Flournoy and Mrs. Woodard. On the latter occasion, the victim only added that defendant had knocked on her bedroom window.

An error committed during trial does not warrant the setting aside of a verdict unless it is of such grave import as to give rise to the belief that, except for such error, the results would be different. To require reversal, the error must be substantial. LSA-C.Cr.P. Art. 921; State v. Brumfield, 329 So.2d 181 (La.1976).

Defense counsel ascertained that Mrs. Woodard did not possess independent knowledge of how the rape occurred and was only relating what the victim had told her. The recitation of the statement made during the drive to the coroner's office provided no information concerning the crime which had not previously been testified to by E.A., or already basically related by the employer or the neighbor. Thus, exclusion of the remarks imparted in the automobile would not have changed the verdict. Clearly, the action of the trial...