State v. Vaughn

• Decision Date: 17 May 1982
• Docket Number: Nos. 81-KA-2606,81-KA-2609,s. 81-KA-2606
• Citation: 431 So.2d 358
• Parties: STATE of Louisiana v. Jonathan VAUGHN. STATE of Louisiana v. Edwin MONTGOMERY.
• Court: Louisiana Supreme Court

Page 358

431 So.2d 358

STATE of Louisiana v. Jonathan VAUGHN.

STATE of Louisiana v. Edwin MONTGOMERY.

Nos. 81-KA-2606, 81-KA-2609.

Supreme Court of Louisiana.

May 17, 1982.

Dissenting Opinion June 8, 1982.

On Rehearing April 4, 1983.

Rehearing Denied May 13, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Ralph Roy, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee in both cases.

Mary Olive Pierson, of Cooper, Thompson & Pierson, Baton Rouge, for defendant-appellant in No. 81-KA-2606.

Ralph Brewer, Baton Rouge, for defendant-appellant in No. 81-KA-2609.

LANIER, Associate Justice Pro Tem. ^*

The defendants, Jonathan Vaughn and Edwin J. Montgomery, were jointly indicted for the offense of aggravated rape in violation of La.R.S. 14:42. After a trial by jury, each defendant was found guilty of forcible rape and was subsequently sentenced to serve ten (10) years at hard labor with the Louisiana Department of Corrections, the first two years of each sentence to be without benefit of probation, parole or suspension of sentence.

At approximately 10:00 A.M. on November 27, 1979, the complainant in this case left her real estate office in the Parish of East Baton Rouge, Louisiana, and went to the Embers Lounge. She had several drinks at the lounge and remained there until about 1:00 A.M. She left the lounge at that time and decided to walk the three blocks back to her office and telephone her sister for a ride because she was concerned about being arrested for driving while intoxicated. In the vicinity of her office, she was picked up on the street by the defendants, whom she did not previously know, and brought to the Vel Rose Motel in Baton Rouge. At the motel Vaughn had sexual intercourse with her. Montgomery attempted to have sexual intercourse, but was unable to complete the act. The complainant maintains she was forcefully abducted into the defendants' vehicle and resisted their sexual advances but was eventually overcome by force and threats of force. The defendants maintain that the complainant entered their vehicle of her own free will and consented to having sex with them.

ASSIGNMENT OF ERROR NO. 1 ¹

The defendants maintain that they were denied a trial by a jury representative of the community because of the systematic exclusion of blacks from the jury by the prosecutor through the exercise of peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Washington, 375 So.2d 1162 (La.1979); State v. Brown, 371 So.2d 751 (La.1979); State v. Bias, 354 So.2d 1330 (La.1978); State v. Trudell, 350 So.2d 658 (La.1977). During the course of the jury selection, whenever the prosecutor exercised a peremptory challenge to a prospective black juror, the defendants entered objections, and motions to quash, for mistrial and for evidentiary hearings. All of these objections and motions were overruled and denied by the trial court.

A review of the record indicates that the twelve person jury was selected from forty-two prospective jurors, thirty-three of whom were white (79%) and nine of whom were black (21%). ² Of the thirty-three white prospective jurors questioned, fourteen were excused by peremptory challenges by the defendants (43%), two were excused by peremptory challenges by the State (6%), eight were excused by the court (24%), and nine served on the jury (27%). Of the nine black prospective jurors questioned, five were excused by peremptory challenges by the State (56%), three served on the jury (33%), and one was excused by the court (11%). The final racial composition of the jury was nine white (75%) and three black (25%). The verdict was ten to two for guilty of forcible rape, with nine whites and one black voting guilty and two blacks voting not guilty. Article I, Section 17, Louisiana Constitution of 1974.

The racial make-up of the panel of jurors questioned was 79% white and 21% black. The racial make-up of the jury that judged this case was 75% white and 25% black, essentially the same as the make-up of the total panel. The record shows 33% of the black prospective jurors questioned served on the jury and 27% of the white prospective jurors questioned served. In view of these facts, we cannot say that the defendants were denied a trial by a jury representing a fair cross-section of the community.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendants contend that during the voir dire, while defense counsel was questioning prospective jurors about the relative credibility that they would accord prosecution and defense witnesses and the role race would play in determining the witnesses' credibility, that the trial judge erroneously sustained the prosecutor's objection to this line of inquiry and thereby inferred that more weight should be given to State witnesses and that this constituted an improper comment on the evidence by the trial judge in violation of Article 772 of the Code of Criminal Procedure. ³

A review of pages 88 through 92 of the voir dire transcript, attached hereto as Appendix 1, shows that counsel for the defendants questioned prospective jurors without objection on whether or not they had preconceived notions about the possibility of a white woman consenting to intercourse with two black men, and about whether they had any preconceived idea of the credibility of the white victim as opposed to the two black defendants. Apparently, in anticipation of a hypothetical question, the prosecutor objected to the defense counsel posing hypothetical questions to prospective jurors. The trial judge ruled that asking hypothetical questions during voir dire was not proper and sustained the objection. Thereafter, defense counsel proceeded to question prospective jurors concerning preconceived notions of credibility based on race.

The ruling of the trial judge was not a comment on the evidence. It was merely a declaratory ruling that hypothetical questions were not proper in voir dire. The purpose of a voir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality. Louisiana Code of Criminal Procedure, Article 786. Hypothetical questions aimed at determining in advance a juror's opinion concerning the weight of certain evidence are inadmissible. State v. Nero, 319 So.2d 303 (La.1975); State v. Corbin, 285 So.2d 234 (La.1973). Defense counsel were not precluded from asking questions concerning racial bias and prejudice.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

At the trial the victim testified that while in front of her real estate office when approached by the defendants, she yelled the name "Bertell" (Bertell Cook) to make the defendants believe that she was calling to someone in the office. She further testified that after she was released by the defendants that she first informed her sister and her sister's live-in companion and subsequent husband, Bertell Cook, of the incident. The defendants testified that the victim said the name "Bertell" several times while entering their vehicle and also when going to the Vel Rose Motel. ⁴

During cross-examination by defense counsel, the victim denied that her brother-in-law, Bertell Cook, was a black man. Defense counsel then asked the victim if Cook ever held himself out to be a black man and the State objected on the grounds that the race of the victim's brother-in-law was not relevant. The court sustained this objection. During the presentation of the defense portion of the trial, the defendants called a deputy clerk of court to identify and introduce into evidence the marriage certificate of the victim's sister and Bertell Cook. This document purportedly showed that the victim was a witness to the wedding, and showed the race of Bertell Cook as black. This document was offered to contradict the testimony of the victim and, thus, attack her credibility. The State objected to the offer on the grounds that this was an attempt to impeach the witnesses' credibility on a collateral issue and was prohibited. The trial judge sustained the State's objection and ruled the marriage certificate inadmissible.

The defendants assert that Bertell Cook's race is relevant on the issues of consent and credibility. They urge that "A substitution of sorts could have taken place that night in the mind of" the victim, and that the defendants might have been Bertell Cook to her. They urge that since Bertell Cook was the dominant male figure in the life of the victim, that this "raised a reasonable doubt as to her credibility and as to her allegation that the two accused did not have her consent." They urge that this evidence would assist the jury "in overcoming any subconscious feeling that they may have had that it is not possible for a white woman to desire sexual intercourse with a black man..." and that it would corroborate the testimony of the defendants that the victim "had mentioned that her sister had a black husband and that she had several black friends."

When a witness has been intentionally sworn and has testified to any single fact in his examination in chief, he or she may be cross-examined upon the whole case. La.R.S. 15:280. The cross-examination, however, to be admissible in a criminal proceeding, must be relevant to a material issue. La.R.S. 15:435; State v. Stevenson, 390 So.2d 1292 (La.1980); State v. Johnson, 343 So.2d 155 (La.1977). Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent. La.R.S. 15:441. The relevancy of proffered evidence depends on whether it tends to prove or disprove a material fact at issue. State v. James, 394 So.2d 1197 (La.1981); State v. Constantine, 364 So.2d 1011 (La.1978). A trial judge's determination regarding the relevancy of evidence will not be overturned absent a clear abuse of...