State v. Smith

• Decision Date: 23 February 1983
• Docket Number: No. 82-KA-0409,82-KA-0409
• Citation: 430 So.2d 31
• Parties: STATE of Louisiana v. Bennie G. SMITH.
• Court: Louisiana Supreme Court

Page 31

430 So.2d 31

STATE of Louisiana v. Bennie G. SMITH.

No. 82-KA-0409.

Supreme Court of Louisiana.

Feb. 23, 1983.

Concurring Opinion Feb. 24, 1983.

Rehearing Denied May 13, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Cecelia A. Bonin, Julie Cullen, Rene Salomon, Asst. Dist. Attys., for plaintiff-appellee.

Milton Osborne, Jr., Baton Rouge, for defendant-appellant.

BLANCHE, Justice.

Defendant Bennie Smith was charged and convicted of aggravated burglary (La.R.S. 14:60) and forcible rape (La.R.S. 14:42.1). He was sentenced by the trial court to thirty years hard labor on the forcible rape conviction and ten years hard labor on the aggravated burglary conviction, to run concurrently. Defendant appeals advancing eleven arguments. ¹

The state's account of the commission of the crimes is as follows:

On the morning of April 24, 1980, between nine and ten o'clock a.m., the victim answered a knock on her front door. At her front door was a man who represented himself as a census taker. The victim agreed to answer his questions, and the two spoke through the locked screen door. At the apparent conclusion of the questioning, the victim retreated to the rear of the house to care for her infant. Upon returning to the living room, she discovered the man at the door had somehow found his way into her home. At first the man stated he needed more information for the census but then he demanded money and started to walk toward the victim. She screamed once but her mouth was covered, and she was forced into the bedroom where she was raped.

After the act of rape was completed, the man left the house hurriedly. The victim threw on her robe and watched the assailant leave the house. She noticed his walk and profile. She then called her husband to tell him of the incident, and the police were notified when he arrived. A subsequent physical examination of the victim confirmed that she had had sexual intercourse within the last twelve hours.

The defendant was arrested on July 21, 1980 following a spontaneous encounter on the streets of Hammond. The victim, accompanied by her husband, saw a man whom she believed was the man who had raped her. After communicating the man's license plate number to the police, defendant herein was arrested. The Hammond Police Department conducted both a photo and physical lineup at which the victim identified the defendant.

At trial, the victim testified that she was certain it was the defendant who had entered her house and raped her. In addition, she made several positive in-court identifications.

The defendant testified in his own behalf denying he had committed the crimes and presented alibi witnesses to establish his whereabouts during the time the offenses occurred. Obviously rejecting the defense, the jury convicted defendant as charged.

ARGUMENT NO. 1

(Assignments of Error No. 1 and 2)

By these assignments, the defendant urges that the trial court erred by refusing to issue an order to compel the victim and her husband to submit to pretrial interviews. Defendant argues that since he did not have the information he would have obtained from such interviews, he could not intelligently conduct the voir dire examination, exercise peremptory challenges and formulate challenges for cause. Thus, defendant asserts that he was effectively denied to his right to full voir dire examination guaranteed by La. Const. art. 1, § 17.

Prior to trial, the state advised the victim that she could speak to defense counsel if she so desired. She declined. On the first day of trial, prior to selecting the jury, the defendant moved for the court to issue an order compelling the victim to submit to an interview. Out of fairness to the defendant, the trial judge stated that he would contact the victim before ruling on the motion and ask her if she would agree to be interviewed. The victim refused the judge's request. The prosecutor also called the victim to ask if she would answer specific questions posed by defense counsel. Although the victim again refused to be interviewed, she did state that she had moved to Hammond ten months before the incident and had never worked or attended school in the area.

Defense counsel's argument, while novel, is unfounded. This court has held that the witness alone shall decide whether he or she shall speak to opposing counsel. State v. Harris, 367 So.2d 322 (La.1979); State v. Hammler, 312 So.2d 306 (La.1975). Defense counsel attempts to transform the right to full voir dire examination guaranteed by La. Const. art. 1, § 17 into a general right to pretrial discovery. Voir dire examination is not a discovery right, but a trial right. See State v. Straughter, 406 So.2d 221 (La.1981); State v. Monroe, 329 So.2d 193 (La.1975). Its purpose is to afford the defendant wide lattitude in questioning prospective jurors in order that the defendant may intelligently exercise the substantial right to exercise peremptory challenges or challenges for cause. State v. Holmes, 347 So.2d 221 (La.1977); State v. Monroe, 329 So.2d 193 (La.1976). The right to full voir dire examination, a trial right, cannot be extended to compel state's witnesses to submit to pretrial interviews.

ARGUMENT NO. 2

(Assignments of Error No. 3 and 29)

Several months before trial, the state filed a motion for notice of alibi in accordance with La.C.Cr.P. art. 727. The defendant did not respond, and, consequently, the state filed a motion to compel compliance. After a hearing on the motion, the court ordered the defendant to furnish the state with its notice of intent to offer an alibi. Two weeks before trial, the defendant did send the state written notice of the witnesses he planned to call to support his alibi. At no time before or during trial did the prosecution reciprocate by serving the defendant with written notice that listed the witnesses it intended to rely upon to establish the defendant's presence at the scene of the offense or to rebut testimony of the defendant's alibi witnesses.

At trial, the prosecution called the victim to testify. Defense counsel objected and asked the court to exclude the testimony of the victim on the basis that she was an alibi witness, and the state failed to serve notice, as required by La.C.Cr.P. art. 727, that it intended to rely upon the victim's testimony establishing the defendant's presence at the scene of the offense. The trial court overruled the motion stating that the purpose of art. 727 was to prevent surprise. Here, the defense was not surprised by the victim's testimony.

By these assignments, the defendant urges that the trial court committed reversible error in permitting the victim to testify following the state's noncompliance with the notice of alibi discovery provisions, namely art. 727(B).

We assume, without deciding, that art. 727 requires the state to furnish the defendant with written notice of its intent to use the testimony of the victim of a rape to establish the defendant's presence at the scene of the offense. Even so, we do not find that the trial judge abused the discretion afforded to him in La.C.Cr.P. art. 727(D) by allowing the victim to testify.

The factors to be considered in determining whether the trial court properly exercised its discretionary power to exclude undisclosed alibi evidence were enumerated in United States v. Myers, 550 F.2d 1036 (5th Cir.1977).

[A] district court could consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant's guilt, and (5) other relevant factors rising out of the circumstances of the case. Cf. Advisory Committee Notes on rule 16 of the Proposed Rules of Criminal Procedure, 39 F.R.D. 69, 178 (1966). (footnote omitted). 550 F.2d at 1043. State v. Brown, 414 So.2d 689 (La.1982). State v. Bias, 393 So.2d 677 (La.1981).

Here, there was no prejudice resulting from the state's failure to disclose the victim's name and address in a written notice of alibi. The defendant knew the name of the victim eleven months before trial, for it was included in the bill of information. Nine months before trial, the defendant was aware of the allegations of the victim, for Sargeant Domiano testified at the preliminary examination as to the details of the offenses related to him by the victim. Furthermore, since the victim refused on several occasions to submit to a pretrial interview, the defendant cannot contend that he was deprived of his opportunity to interview the victim. In short, the defendant has failed to show that he suffered prejudicial surprise from the use of unexpected testimony. United States v. Portillo, 633 F.2d 1313 (9th Cir.1980).

ARGUMENT NO. 3

(Assignments of Error No. 4, 5 and 27)

The defendant maintains that the trial court erred in refusing to quash the petit jury venire. He alleges that the high absenteeism of prospective jurors and the prosecutor's systematic exclusion of blacks from the jury panel through the use of peremptory challenges deprived him of a jury composed of a fair cross-section of the community.

A defendant is not denied equal protection by the state's use of peremptory challenges against blacks unless there is systematic exclusion of blacks over a period of time. State v. Straughter, 406 So.2d 221, 222 (La.1981); State v. Allen, 380 So.2d 28 (La.1980); State v. Washington, 375 So.2d 1162 (La.1979). The burden is on the defendant to establish a prima facie case of such exclusion. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Allen, 380 So.2d 28 (La.1980).

The trial judge in this case granted an evidentiary hearing to the defendant to allow him to make a prima facie showing of systematic exclusion. At the hearing, defense counsel attempted to show that the prosecutor had systematically...