State v. Thompson

• Decision Date: 13 November 1978
• Docket Number: No. 61735,61735
• Citation: 364 So.2d 908
• Parties: STATE of Louisiana v. Charles THOMPSON.
• Court: Louisiana Supreme Court

Page 908

364 So.2d 908

STATE of Louisiana v. Charles THOMPSON.

No. 61735.

Supreme Court of Louisiana.

Nov. 13, 1978.

Nesib Nader, Shreveport, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

SUMMERS, Justice.

By an indictment returned on February 15, 1977 the Grand Jury of Caddo Parish charged that on January 5, 1977 Charles Thompson committed aggravated rape upon a nine-year-old girl. La.Rev.Stat. 14:42. In a jury trial in November 1977, Thompson was found guilty as charged. After a sentencing hearing the jury recommended that Thompson be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Whereupon, the trial judge sentenced Thompson accordingly.

All assignments of error briefed and argued on Thompson's appeal are considered in this decision.

The victim testified that on the morning of January 5, 1977, while she was walking to the bus stop on her way to school, the defendant grabbed her and forced her into a nearby house on Douglas Street where he had sexual intercourse with her. Eyewitnesses confirmed the abduction.

Assignment 1: In its case in chief the State sought to establish that Reginal Wilson, a child of eight, had sufficient understanding to be a witness. After examination by the prosecutor, the trial judge and defense counsel, objection was made by defense counsel to any testimony from the child because of his age, his hesitation, and his inability to respond to questions. Argument was that the events in question occurred too long ago to expect such a young child to remember. And defense counsel felt that because of the nature of the case, a child's testimony should not be received.

The trial judge did not agree. It was his opinion that the responses to the questions and the level of the child's understanding were sufficient to permit him to testify.

Without the benefit of observing his demeanor on the stand on this appeal, a reading of the transcript pertaining to the examination of the child confirms the correctness of the ruling of the trial judge. Reginal's subsequent testimony also supports a finding that he had sufficient understanding to testify as a witness. There is no indication that his answers to questions were hesitant. Nor does the written transcript support the defense claim that the child was unable to respond to questions. To the contrary, the transcript indicates that he was alert, forthright and accurate in his replies. He was in the third grade at the time of the trial. His responses to questions concerning his name and address, the school he attended, his mother's name and his brother's age all manifest the clarity of his expression and reliability of his recall. He knew what it meant to lie, he attended Sunday School at times, believed in God and understood that God wanted him to tell the truth. And, apparently, there was no evidence of confusion in the taking of the oath.

Section 469 of Title 15 of the Revised Statutes sets the standard to be observed when a child is called upon to testify:

"Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness."

An important consideration in the determination of a child's competency to testify is his demeanor on the witness stand. In this respect the judgment of the trial judge should be given great weight, for the effect of the importance of witnesses' manner where children are testifying cannot be overstated. It is a factor this record does not supply. Nothing in this record leads us to believe that the trial judge erred in finding Reginal qualified as a witness.

In State v. Francis, 337 So.2d 487 (La.1976), criteria were suggested which could be applied in deciding whether a child has the "sufficient understanding" required by Section 469. These criteria were substantially complied with in this case. Decisions of this Court support a finding that this assignment has no merit. State v. Noble, 342 So.2d 170 (La.1977); State v. Sharp, 338 So.2d 654 (La.1976); State v. Johansen, 332 So.2d 270 (La.1976); State v. Pace, 301 So.2d 323 (La.1974); State v. Milford, 225 La. 611, 73 So.2d 778 (1954).

Assignment 2: After Shirley Cogas was qualified as an expert criminalist, particularly in the field of serology, she testified for the State. During direct examination two glass slides with the name of the victim and the date January 5, 1976 (corrected to January 5, 1977) written thereon, were presented to the witness. She testified that she had examined the slides and found microscopically that there was spermatozoa present and she also determined that they contained seminal fluid.

She was then asked by the prosecutor, "The presence of spermatozoa would indicate what in a case involving an alleged rape?"

In reply, she stated, "Well, spermatozoa would indicate specifically that there was seminal fluid there, that there was that type of body secretion."

A defense objection was then made that the witness could not testify that a rape had occurred in this case. The objection was overruled.

Initially it should be noted that the question had been answered when the objection was made. Notwithstanding the trial judge's inability to rule on a question already answered, the question propounded and the answer that followed simply meant that the witness found seminal fluid and that seminal fluid is present in a sex act. The testimony does not mean, as defense counsel claims, that the expert witness was testifying that a rape had occurred. Previously the witness had testified that the presence of seminal fluid on undergarments would indicate that a sexual act had occurred. Thereafter her testimony was qualified. She testified that the presence of seminal fluid on the undergarments indicated that a sex act had occurred, but she could not say that it was completed. She did not say, and we are convinced that the jury did not understand from her testimony, that a rape had occurred.

It was undoubtedly within the expertise of the witness to testify, as she did, that the presence of seminal fluid was associated with a sex act. Such a conclusion is a matter of common knowledge. La.Rev.Stat. 15:466. There is, therefore, no merit to this assignment.

Assignment 4: Emma Lee Manigo was living in Shreveport with appellant Thompson prior to and during January 1977 when the alleged rape occurred. The child victim lived with her at times. She testified for the defense that about 8 o'clock on the morning of January 5, 1977 she was awakened by her mother and told that the child had been raped. She dressed and went in search of Thompson. First she went to the house of a friend of Thompson; then she called Thompson's mother who told her where Thompson could be found. With this information she proceeded to the Castle Hotel on Sprague Street. At first the desk clerk refused to tell her if he was there, but when she told the clerk what she wanted to see Thompson about he telephoned Thompson's room. When Manigo stated that Thompson came down the stairs in the hotel, defense counsel asked her, "Did you talk to him?"

She answered,

"Well, I was hollering at him, 'Charles, did you do it?' And he said, 'What you talking about?' And I just kept hollering at him. That's all I could do, and we got down the street across the street on the other side of Douglas and that's when the police arrested both of us."

Defense counsel then asked,

"He never did answer you?"

Before Manigo could reply, the State's attorney objected and requested that the witness be instructed not to say what Thompson said to her, arguing that it would be impermissible hearsay testimony.

The trial judge sustained the objection, unless the answer was to be a declaration against interest, an exception to the hearsay rule. He required that defense counsel lay a foundation to this testimony which would remove it from the hearsay rule.

The defense contends that the answer Thompson would give was part of the res gestae and as such admissible as an exception to the hearsay rule. The contention is without merit. "To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction." La.Rev.Stat. 15:448. See also La.Rev.Stat. 15:447. ¹

It is a tenuous argument indeed to take the position that Thompson's statement to Manigo at the hotel was made "under the immediate pressure of the occurrence through the instructive, impulsive and spontaneous words and acts of the participants." Nor were his statements at the hotel "necessary incidents of the criminal act, or immediate concomitants of it," nor did they "form in conjunction with it one continuous transaction."

Elapsed time between the alleged rape and the intended statement was appreciable. After the assault the child walked to her grandmother's house and told her what had happened. The grandmother then reported the matter to Manigo, who dressed and went in search of Thompson. Her search consumed considerable time a call at the house of Thompson's friend, a telephone call to Thompson's mother, and then a trip to the hotel and a conversation with the clerk all before Thompson appeared to talk to her, hardly a conversation forming a necessary incident of the criminal act, or part of a continuous transaction.

However broadly the rule of res gestae may have been applied in the past, in no instance cited has it been as liberally applied as the defense urges in the instant case. La.Rev.Stat. 15:447-48; State v. Drew, 360 So.2d 500...