State v. Smith
| Decision Date | 28 June 1971 |
| Docket Number | No. 51008,51008 |
| Citation | 259 La. 515,250 So.2d 724 |
| Parties | STATE of Louisiana v. Lawrence Joseph SMITH. |
| Court | Louisiana Supreme Court |
Airhart & Copenhaver, Teddy W. Airhart, Jr., Harris D. Copenhaver, Jr., Baton Rouge, for defendant-appellant.
Jack P. F. Gremillion, Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Sargent Pitcher, Jr., Dist. Atty., Walter L. Smith, Jr., Asst. Dist. Atty., for plaintiff-appellee.
The defendant was indicted for aggravated rape, tried, convicted of attempted aggravated rape, and sentenced to 15 years in the Louisiana State Penitentiary. He relies on 39 perfected bills of exception in this appeal. Many of the bills of exception have been grouped or consolidated in both brief and argument because they present common issues.
On the evening of December 16, 1967, while the complaining witness was walking down Terrace Street in the City of Baton Rouge, a man put a knife to her throat, covered her eyes with a scarf, walked her several blocks, took her into an apartment, and there raped her. He then led her blindfolded from the apartment, continued for a distance down the street, and then disappeared. The victim ran home and called the police, but upon returning to the general area was unable to identify the house she had been taken into. The defendant was arrested on January 13, 1968.
In detailing her activities immediately following the incident, the victim testified that while at the hospital she was asked whether anything was wrong, and she replied that she was then four months pregnant. On cross-examination defense counsel asked: 'And you say you were four months pregnant at the time of the incident?' She answered: 'Yes, I was.' The State objected to further questioning in this regard on the grounds that the issue of her pregnancy was immaterial and irrelevant, had not been raised by the State, but had come into the case as an unsolicited statement by the witness. The defense's argument for further cross-examination upon that point was that it would test the truth and veracity of the witness's testimony. The trial court ruled that the unsolicited statement by the witness that she was pregnant was irrelevant to the trial of the defendant under the charge of aggravated rape, and that any further cross-examination on that point would be equally irrelevant. Bill of Exception No. 1 was reserved to this ruling. On argument before us counsel for defendant urge that had the court permitted the cross-examination, it would have revealed that the witness was to bear an illegitimate child and thus would have shown her lack of chastity, which would have been an important issue in the case.
The trial court correctly ruled upon the issue as presented to it by the district attorney and defense counsel. State v. Bolden, 257 La. 60, 241 So.2d 490. Moreover, it is the law of this state as well as the majority view throughout the country that unless consent is pleaded or put at issue as a defense in a prosecution for aggravated rape, evidence as to the chastity of the prosecuting witness is inadmissible. State v. Hodgeson, 130 La. 382, 58 So. 14; State v. Perrine, 156 La. 855, 101 So. 243; State v. Borde, 209 La. 905, 22 So.2d 736; 3 Underhill's Criminal Evidence § 766 (5th ed. 1957); 1 Wharton's Criminal Law and Procedure § 302 (Anderson Ed. 1957). The defendant's contention that cross-examination was permissible to establish lack of chastity cannot prevail, and the bill of exception is without merit.
Bills of Exception Nos. 2 through 5 are based upon objections to the testimony, and to identification of physical evidence in connection with that testimony, of a witness who stated that the defendant raped her on January 12, 1968. The same modus operandi was used in the rape of this witness as was used with the prosecuting witness, and the rape occurred in the same neighborhood. However, this witness was made to undress on the side porch of a house which she was later able to identify for the police. Some of her clothing and her umbrella were found there which she identified at the trial. She was also able to identify the voice of the defendant as that of the man who had raped her, and identified a pair of shoes and a coat belonging to the defendant which were like those worn by her assailant.
Bills of Exception Nos. 6 through 10 are based upon objections to testimony and to identification of physical evidence by a witness who lived next door to the building in which the defendant had an apartment. Testifying about the occurrence of January 12, she said that she saw a man holding a girl and trying to unlock the back apartment, which was the apartment occupied by the defendant and so identified by the witness. After turning on the light, the witness and her mother went out in the alleyway and found a girl's clothes by the apartment. The witness further identified in court the clothing and an umbrella she had seen in the alley, which were the same as those identified by the witness who had been raped on the night of January 12.
The bases of Bills of Exception Nos. 11 through 14 are similar objections to the testimony and physical evidence identified by the mother of the preceding witness, who testified essentially as had her daughter. She also identified the items which had been found near the door of the apartment of the defendant after the disturbance.
Bills of Exception Nos. 15 through 30 are based upon objections to testimony, and identification of physical evidence in connection with that testimony, by a police officer who investigated the rape of January 12 and who made the arrest of the defendant at his apartment on January 13. The officer detailed his part in the investigation and arrest of the defendant, identified the defendant, identified the evidence taken at the scene and in connection with the offense of January 12 as well as photographs taken in connection with the investigation. The evidence identified by the officer was offered over the objection of the defendant.
Bill of Exception No. 34 is based upon objection to the testimony of a police officer who assisted in the investigation of the January 12 rape.
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