State v. Turnbull
Decision Date | 12 November 1979 |
Docket Number | No. 64909,64909 |
Citation | 377 So.2d 72 |
Parties | STATE of Louisiana v. Leo TURNBULL. |
Court | Louisiana Supreme Court |
Brian M. Begue, Robert Barnard, Orleans Indigent Defender Program New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise S. Korns, Brian G. Meissner, Asst. Dist. Attys., for plaintiff-appellee.
From a jury conviction of the offense of attempted simple rape, pursuant to a bill of information charging attempted forcible rape, defendant appeals his conviction and sentence.
Two specifications of error are relied upon by defendant in support of his appeal. It is urged that the trial court erred in admitted inculpatory statements by defendant notwithstanding his refusal to waive his Miranda rights and also because of his continued interrogation by arresting officers after indicating his desire to have counsel present. Secondly, it is urged that the verdict of guilty of attempted simple rape is not responsive to the charge of attempted forcible rape and that the verdict rendered lacks evidentiary support.
The alleged offense occurred on the night of November 21, 1977, when the prosecuting witness, Inez Navarro, was returning to her home in the Desire Housing Project in New Orleans. She related the following account of the incident. As she approached the door of her apartment, her keys in one hand and a small purse in the other, she was greeted by defendant from the doorway of defendant's nearby apartment. Such a greeting had become customary because, for several weeks prior to the incident in question, defendant had been near her doorway and greeted her on her return home. She responded hello to defendant's similar salutation. While attempting to unlock her door defendant suddenly grabbed her with one hand while simultaneously holding his other hand over her mouth. She was then dragged into defendant's apartment screaming, crying and pleading with defendant to leave her alone. After being wrestled into defendant's residence she was thrown to the floor onto what she believed to be a mattress or some kind of bed. Defendant continued to pull at her clothes with one hand, during which entire procedure she continued to attempt to yell and plead with defendant to leave her be. Defendant eventually let her go whereupon she started toward her own apartment. While attempting to unlock her door, defendant continued to touch her and further molested her by interfering with her effort to unlock her door. She asked defendant what was the matter with him and he replied that he was lonesome. Defendant then grabbed her again and she again requested to be let alone and added that she was expecting her boyfriend to appear momentarily. Defendant responded that she had no boyfriends because he had been watching her for some time and continued to take hold of her and interfere with her efforts to unlock her door. To calm defendant, she offered to make him some coffee. Defendant permitted her to enter her apartment and attempted to come in with her. She managed to keep defendant out and after remaining in her apartment for some time deciding on which course to follow, she called the police.
Defendant was arrested in his apartment approximately one hour or so following the encounter. The arresting officers related that defendant told them he would have had intercourse with the prosecuting witness if "she wouldn't have resisted him so much".
Defendant neither denied the encounter nor repudiated his statement to the arresting officers. In response to interrogation during trial defendant stated: In answer to the question of whether he intended rape defendant replied:
Assignment Number 1.
Error is alleged in the trial court's admission in evidence of defendant's oral inculpatory statement. It is contended that the failure of the arresting officers to read and explain defendant's Miranda rights and their alleged continuation of interrogation after defendant indicated his desire to have counsel present, vitiated and rendered his inculpatory remarks inadmissible in evidence.
The arrest was made by officers Anthony Cusimano and Salvadore Zanco. Officer Zanco testified that defendant was given his Miranda warnings before interrogation began and appeared to understand fully what was told him. He conceded that defendant refused to sign a waiver form but added that after being fully warned and not having been threatened, intimidated or made any promises whatsoever, defendant freely and voluntarily submitted to interrogation. He denied emphatically that defendant requested counsel at any time before or during interrogation.
Officer Cusimano testified virtually the same as did Officer Zanco except that on initial examination defendant was told that a lawyer would be appointed to represent defendant at trial. Under further examination Cusimano indicated he was not certain that defendant was advised that counsel would be appointed to represent him. Ultimately, in response to the specific question of whether defendant requested counsel Cusimano replied:
The defense contends the accused's request for counsel should have terminated the interrogation and that this fact, coupled with the refusal to sign a waiver of Miranda rights rendered inadmissible all statements given to the arresting officers.
Despite some discrepancy in the statements of the arresting officers, the record contains ample evidence to support the conclusion that defendant's statements were given after full explanation of his rights and defendant, understanding these rights, made no request for counsel before undergoing further interrogation. The record also supports the conclusion that the statements were given freely and voluntarily without intimidation, threats, promises or any other untoward influence or conduct on the part of the arresting officers.
Failure to obtain the accused's signature to a written Miranda waiver does not mandate a determination of involuntariness in deciding whether a confession or inculpatory statement is admissible in evidence. State v. Yates, 357 So.2d 541 (La.1977).
While the signature of the accused is an important factor in a determination of this nature, State v. Yates, supra, the absence of a signed waiver is not an indispensable prerequisite to introduction of a confession or other statement made while the accused was detained. Absent a written waiver, the state may, by appropriate showing, discharge its burden of proving voluntariness by proving that the defendant was read his rights, stated that he understood them and then made a statement. State v. Myles, --- So.2d ----, Number 63,567.
The trial court's ruling that defendant implicitly waived his Miranda rights including the right to counsel and thus surrendered his Fifth Amendment privilege, is amply supported by the record.
This assignment has no merit.
Assignment Number 2.
This assignment urges error on the part of the trial court in denying defendant's motion for new trial not based on objection raised during trial, but predicated on error allegedly patent on the record, namely, that the verdict of attempted simple rape is not responsive to a charge of attempted forcible rape.
The trial court instructed the jury that it could render one of three verdicts: guilty as charged; guilty of simple rape; and not guilty. Defendant did not object to the charge and the jury returned a verdict of guilty of attempted simple rape. Defendant challenged the verdict by means of a motion for new trial. In support of the motion defendant alleged in boiler-plate fashion, that the verdict is contrary to the law and the evidence. Ordinarily such a challenge presents nothing for appellate review where the record contains some evidence to support a conviction. State v. Hatter, 350 So.2d 149 (La.1977). The state contends such a defense is unavailable absent an objection made during trial affording the trial court an opportunity to correct the alleged error.
In State v. Craddock, 397 So.2d 343 (La.1975), we held that alleged error concerning sufficiency of responsive verdicts given a jury is not error patent on the face of the record and therefore reviewable pursuant to La.C.Cr.P. Article 920(2) which admits of review only when objection is made during trial. In Craddock, however, the verdict was responsive.
More recently, in State v. Cook, 372 So.2d 1202, Number 63,724, we held an unresponsive verdict to be error patent on the face of the record...
To continue reading
Request your trial-
State v. Sims
..."error patent on the face of the record and therefore reviewable on appeal despite absence of an objection during trial." State v. Turnbull , 377 So. 2d 72 (La. 1979) ; State v. Campbell , 1995-1409 (La. 3/22/96), 670 So. 2d 1212 (although defendants "acquiesced in the list of responsive ve......
-
State v. Simmons
...offense. La.R.S. 14:5; State v. Dauzat, 392 So.2d 393 (La.1980); State v. Booker, 385 So.2d 1186 (La.1980) on rehearing; State v. Turnbull, 377 So.2d 72 (La.1979); State v. McCoy, 337 So.2d 192 (La.1976); State v. Roberts, 213 La. 559, 35 So.2d 216 (1948). Criminal trespass includes the una......
-
State v. West
...rights were. Failure to sign the waiver provision in and of itself does not require suppression of defendant's statement. State v. Turnbull, 377 So.2d 72 (La.1979). Defendant initiated conversation with and volunteered statements to McCarty. He was allowed to confer with counsel when he req......
-
State v. Price
...patent on the face of the record and therefore reviewable on appeal despite absence of an objection during trial." State v. Turnbull , 377 So.2d 72, 75 (La. 1979) ; State v. Mayeux , 498 So.2d 701, 703 (La. 1986) ; State v. Campbell , 95–1409, p. 3 (La. 3/22/96), 670 So.2d 1212, 1213 (altho......