State v. Talbert
| Decision Date | 21 June 1982 |
| Docket Number | No. 81-KA-3268,81-KA-3268 |
| Citation | 416 So.2d 97 |
| Parties | STATE of Louisiana v. Lionel TALBERT. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Ralph L. Roy, Asst. Dist. Attys., for plaintiff-appellee.
Vincent Wilkins, Jr., Asst. Public Defender, David Randall Buckley, Bonnie P. Jackson, Appellant Counsel, Baton Rouge, for defendant-appellant.
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Defendant Lionel Talbert was charged by grand jury indictment with aggravated rape, a violation of R.S. 14:42, and armed robbery, a violation of La.R.S. 14:64, which occurred on July 27, 1978. On November 6, 1978, defendant pleaded not guilty. His motion to suppress the photographic lineup was denied on December 10, 1980. On May 29, 1981, a unanimous 12 person jury found defendant guilty of aggravated rape. He was sentenced on October 22, 1981 to life imprisonment, without benefit of probation, parole, or suspension of sentence. On appeal, he urges four assignments of error.
On July 27, 1978 the victim testified that she had just gone to bed when she heard a knock at the front door. She got up, went to the front room, turned on the light, and asked "who is it?" A man's voice responded "Doc". She recognized the voice as belonging to the man who had raped her one month earlier, so she immediately ran back to the bedroom to get her gun. As she was returning with the gun, she heard a loud crash. The front door had been kicked down and was laying in the middle of the living room floor. She remembers hearing several clicking sounds from defendant's gun before it fired once. Terrified for her six year old child who had been sleeping next to her, the victim laid her gun down and told defendant not to enter the bedroom. Defendant told her to come in the living room and lie down on the floor, which she did. He then raped her and took $60.00 in cash from her wallet.
Approximately one month prior, a similar incident had occurred, except on that occasion she voluntarily opened the door after the man identified himself as "Doc". "Doc" (Herman Wright) was a friend of hers and it was not unusual for him to visit her late at night. However, the man at the door was not the man she knew as "Doc". He entered the house, and although he did not have a gun, raped her. He told her he would return and kill her if she told anybody. She explained that she did not report this first incident to the police because she believed she would not be able to prove it was rape since she opened the door voluntarily.
Defendant denies any involvement in the first incident, but does admit to sexual intercourse with the victim on the other occasion. However, he asserts that she consented to have sex with him.
Appellant argues that the trial court committed error in admitting evidence of a prior crime allegedly committed by appellant. This, he urges made it impossible to receive a fair trial.
Generally, evidence of other crimes committed by the defendant is inadmissible due to "substantial risk of grave prejudice to the defendant". State v. Prieur, 277 So.2d 126 (La.1973). However, there are certain exceptions to this exclusionary rule. Under La.R.S. 15:445 and 446, 1 evidence of acts similar to that charged is admissible to show intent, knowledge, or system. Beyond the literal terms of these statutes, this Court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operandi or system, committed in close proximity in time and place. State v. Ballard, 351 So.2d 484 (La.1977). In State v. Hatcher, 372 So.2d 1024 (La.1979), this Court discussed fully the requirements for admissibility of other crimes evidence under the modus operandi exception.
In the instant case, evidence of defendant's alleged prior rape of the victim was admissible either to prove intent under R.S. 15:445, or under the modus operandi exception to the "other crimes" exclusionary rule.
With respect to intent, it was the defendant who put the question of intent at issue by contending that he only intended to, and did, pay Ms. James to have intercourse with him. He claims that after he kicked the door down, he told her to either give him his money back, or "do what you supposed to do." Normally if the act is proved, there can be no real question as to intent. However, under the facts of this particular case there is a real issue of the defendant's intent to have intercourse without the victim's consent. Defendant's argument that intent is not an issue because he admits to having intercourse with the victim is incorrect. The issue is intent to perform the act without the victim's consent. Evidence of the prior incident is admissible to prove that intent.
We are of the opinion that the evidence is also admissible under the modus operandi exception. Analyzing the evidence in accordance with the pronouncements of State v. Hatcher, supra we find: (1) that there was clear evidence defendant committed the prior rape; (2) that the modus operandi employed by defendant, i.e., identifying himself as "Doc", was so distinctive as to logically say they are the work of the same person; (3) and (4) that the evidence of the prior rape was relevant to show that defendant had intercourse without the victim's consent on the second occasion, and further to prove the defendant's identity; 2 and (5) that the probative value of the evidence outweighed its prejudicial effect.
Therefore, we reject this assignment of error.
By these assignments, defendant contends the trial court erred in allowing the prosecution to question him about prior convictions, and not granting a mistrial. The following testimony by the defendant is pertinent to this issue:
"Q. Yea. Now, you stated you were convicted of what?
A. Agg burglary.
Q. Agg burglary. Now agg burglary, of course, as you know, is the unauthorized entering of a structure, among other things, either while armed with a dangerous weapon or arming yourself after you get into a structure or committing what we call a battery on a person, that is hitting somebody while you're in there, with the intent of either stealing something or with the intent of committing a felony therein. I want you to--before you answer this question--I don't want you to answer it right away because I have my own reasons. My question is, what was the felony involved in that aggravated burglary case?
A. What was the what?
Q. My question is this; you have said you were convicted of aggravated burglary. Now, aggravated burglary, under our law, is the unauthorized entering into a structure, either armed with a dangerous weapon or arming yourself after you get in or committing a battery on a person after you're in there, accompanied with the intent, that is the intention, of either stealing or else of committing some other felony, and there are many of those. Now, my question is, what was the felony involved in your case that you were convicted of; what was the felony that you intended to commit in this unauthorized entry, the case that you have been convicted of?
A. Well, I was convicted of it but I don't even know nothing about that case.
Q. Where--
A. I was convicted, you understand, sure.
Q. But, I want to know--you were sitting--you were tried?
A. Yea, I was tried.
Q. You were convicted and you were sitting there and you heard the case like you're sitting here the last day or two, right?
A. Right.
Q. Now, I want to know what it was that--your intention--what was the intention that was ascribed to you in that case?
A. The only thing I can gather look like they was trying to see whether I committed a battery.
Q. A what?
A. A battery or whatever you call it.
Q. Isn't it a fact that the felony that you were charged with having intended when you made this unauthorized entry was attempted aggravated rape?
A. No sir.
Q. You deny that?
A. I don't know what they call it.
Q. I mean, do you deny--do you deny--well, let's see, maybe I can help you out. The commission that you're talking about allegedly or did occur on June 3, 1978, in that you committed aggravated burglary of a structure located at 1628 Bynum, belonging to Willie M. Mitchell, Now, do you know Willie M. Mitchell?
A. Yes, I do.
Q. And she is who--she's a female?
A. Yes.
Q. Now, in that case, were you not--were you not convicted factually of breaking in that place, being armed and attempting to rape her? Wasn't that the charge in that case, to break it down factually?
A. Uh--see, I don't--
Q. Wasn't that the State's case?
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Q. My question again, I...
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