source: Caselaw Access Project

author: DIXON, Justice. SANDERS, C. J., SUMMERS, J., MARCUS, J., SANDERS, Chief Justice SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Cordell LEE.
    No. 57716.
    Supreme Court of Louisiana.
    Oct. 14, 1976.

      Carol B. Hart, Milton E. Brener, Garon, Brener & McNeely, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On June 12, 1974 at approximately 12:30 a. m. the victim, Marguerite Santenac, got off the bus on Paris Avenue and proceeded toward her home in the Parkchester Apartments. At this time the defendant, Cordell Lee, approached her, put a knife to her throat, brought her to an abandoned unit in the Parkchester housing complex and forced her, at knife-point, to submit to the crime of aggravated rape. The victim notified the police who brought her to the coroner’s office for an examination that same night. On October 28, 1974 the defendant was arrested. From photographs brought to her by the police, the victim positively identified the defendant as the man who raped her. She subsequently made a second positive identification of the defendant at a police lineup.

On March 27, 1975 the Orleans Parish Grand Jury indicted Cordell Lee for the aggravated rape of Marguerite Santenac, a violation of R.S. 14:42. A twelve man jury convicted the defendant of aggravated rape by a unanimous verdict. Later, the trial judge imposed the mandatory death sentence.

Assignment of Error No. 1

Prior to trial, the defendant attacked the validity of the indictment by way of a motion to quash. The trial court denied the motion. In that motion, the defendant attacked the make-up and manner of selection of the grand and petit juries and the venires of both. In his brief though, the defendant offers no grounds for these objections. He merely argues that the motion to quash was the proper procedural vehicle by which to attack the makeup of the grand and petit juries and the venires of both. The defendant is correct in that assertion. C.Cr.P. 532, 533; State v. Wilson, 315 So.2d 646 (La.1975). However, since the defendant neither briefed nor argued the substance of these attacks, they are deemed abandoned. State v. Matthews, 292 So.2d 226 (La.1974); State v. Edwards, 261 La. 1014, 261 So.2d 649 (1972).

Defendant’s principal assignment of error as initially presented in the motion to quash is that R.S. 14:42 (aggravated rape) is unconstitutional in that the imposition and the carrying out of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. On July 6, 1976 the Supreme Court of the United States handed down the decision in Selman v. Louisiana, - U.S.-, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). In that case the defendant had been convicted of aggravated rape and sentenced to death. This court affirmed both the conviction and the sentence. State v. Selman, 300 So.2d 467 (La.1974). The Supreme Court’s opinion in the Selman case is as follows:

“The petitioners in these cases were sentenced to death. The imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the 8th and 14th Amendments. Roberts v. Louisiana, 428 U. S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The motions for leave to proceed in forma pauperis and the petitions for writs of certiorari are granted. The judgments are therefore vacated insofar as they leave undisturbed the death penalty imposed, and the cases are remanded to the Supreme Court of Louisiana for further proceedings.” (Emphasis added).

Therefore, although Selman and Roberts mandate a reversal of the death sentence, since the record reveals no other reversible error, the conviction is affirmed. State v. Thomas, 310 So.2d 517 (La.1975); State v. Franklin, 263 La. 344, 268 So.2d 249 (1972); State v. Singleton, 263 La. 267, 268 So.2d 220 (1972).

In order to fix the appropriate sentence in this case it is necessary to determine what other responsive verdicts the jury might have returned at the time the crime was committed. In 1973 the legislature amended Article 814 of the Code of Criminal Procedure to provide that the only responsive verdicts to aggravated rape are guilty, guilty of attempted aggravated rape, guilty of simple rape and not guilty. La. Act No. 126 (1973). Similarly, C.Cr.P. 817 was amended to delete the provision authorizing the qualifying verdict “guilty without capital punishment.” La. Act No. 125 § 1 (1973).

At the time this crime was committed, attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years, R.S. 14:27(D)(1), and simple rape was punishable by imprisonment at hard labor for not less than one nor more than twenty years, R.S. 14:43. Therefore, we cannot accept the State’s recommendation that the defendant be given a sentence of life imprisonment, since no lesser included offense of the crime of aggravated rape carried such a penalty at the time of the commission of this crime.

Thus, we will follow this court’s decision in State v. Craig, 340 So.2d 191 (La.1976), and remand the case for the resentencing of the defendant to the most serious penalty for a lesser included offense. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor. The conviction will be affirmed and the case remanded for resentencing.

Assignment of Error No. 4

Defendant contends the trial court erred by denying his motion for a directed verdict made at the close of the State’s case in chief. Defendant bases this contention on the judge’s explanation (in his per cu-riam) of his refusal to grant the motion:

“Pursuant to C.Cr.P. Art. 778, it is to be the function of the trial judge to determine, in his sound discretion, if there is sufficient evidence to warrant the direction of a not guilty verdict for a defendant. If there is insufficient evidence, the Motion for the Directed Verdict of Acquittal will be denied and the defendant may offer his evidence in his defense at that time. In the absence of a showing of abuse of his discretion, the trial judge’s ruling on the Motion for the Directed Verdict will not be disturbed.”

Defendant contends the trial court called upon defendant to prove his innocence rather than affording him the presumption of innocence. We disagree.

According to C.Cr.P. 778 as it read at the time of trial, a directed verdict was available in a jury trial only where there was no evidence of an essential element of the crime. State v. Douglas, 278 So.2d 485 (La. 1973). The trial court’s per curiam does not expressly mention this standard, but a reading of it shows he understood and applied this test. Indeed, this is what he meant when he said, “if there is sufficient evidence to warrant the direction of a not guilty verdict for a defendant.”

Even if the trial court misconstrued the test to be applied, defendant has no complaint. The victim testified she was forced to submit to an act of intercourse performed against her will by a man threatening her with a knife. She identified this man as defendant. Thus a directed verdict could not be granted.

This assignment lacks merit.

Assignment of Error No. 5

Defendant contends that the trial court erred by refusing to allow his witness, Paulette Davis, to testify on his behalf. The record reveals, however, that the witness took the stand, but was asked no questions which the trial court would allow.

Paulette Davis had been raped in the area of the Parkchester Apartments on August 10, 1974. Cordell Lee had been tried and acquitted of that rape before he was tried for the June 12, 1974 rape of Ms. Santenac. The defense effort was to establish that there was a rapist in the area who resembled Cordell Lee.

The witness Davis was examined during a motion for a new trial, and she persisted in her identification of the defendant as her rapist, in s.pite of the fact that he was not convicted. If she had been allowed to testify fully at the trial, it is probable that her testimony would have assisted the prosecution instead of the defense.

Nevertheless, we cannot say from the record before us that the trial court erred. Two months separated the two incidents. The location of the second rape is identified (and then only by defense counsel in argument) as being “in that area.” There is not sufficient factual basis in the record to find that the questions asked by the defense were relevant to the issues in the case.

There is no merit in this assignment.

Assignment of Error No. 6

Defendant contends that the trial court erred in sustaining an objection made by the prosecutor to a statement of defense counsel in the closing argument. The accused had taken the stand and the prosecutor did not cross-examine him. The following exchange took place during defense counsel’s closing argument:

“DEFENSE COUNSEL: ... The prosecutor elected not to ask any questions. I can think of a hundred which the prosecutor could have asked; do you own a yellow bike? and I guess the prosecutor will say he does not own a yellow bike. What were you doing in the neighborhood? Were you visiting people there? .
“DISTRICT ATTORNEY: I did not ask any questions, but not for reasons given by the defense attorney.
“COURT: Sustained.”

The trial judge is accorded wide discretion in confining the arguments to the scope of the evidence. State v. Dorsey, 262 La. 785, 264 So.2d 644 (1972), and Article 774 of the Louisiana Code of Criminal Procedure provides:

“The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
“The argument shall not appeal to prejudice.
“The state’s rebuttal shall be confined to answering the argument of the defendant.”

The prosecution is under no duty to cross-examine a defendant who takes the stand and presumably refrained from doing so here for tactical reasons. Defense counsel had ample opportunity to question the accused on these matters during his direct examination. Furthermore, whether any evidence might have been adduced if the prosecutor had cross-examined the defendant is purely a matter of speculation and does not fit within the language “lack of evidence” as used in C.Cr.P. 774. This situation is distinguishable from that in State v. George, 312 So.2d 860, 863-864 (La.1975). There, defense counsel sought to comment on the prosecution’s failure to introduce a confession or inculpatory statement of the defendant; that argument should have been permitted, noted the dissent, as it does constitute argument on the “lack of evidence.” C.Cr.P. 774.

Lastly, even if it may have been error for the trial court to cut short defense counsel’s closing argument, no prejudice to the defendant has been demonstrated. C.Cr.P. 921. This is particularly true since defense counsel amply demonstrated to the jury that the prosecutor had failed to cross-examine the defendant.

This assignment lacks merit.

Assignment of Error No. 7

Defendant contends that the trial court erred in overruling defense counsel’s objection to statements by the prosecutor during his rebuttal argument and in failing to admonish the prosecutor before the jury. The prosecutor’s rebuttal argument included the following language:

“. . . if we think about this in terms of our community, where we live today in the City of New Orleans, we have to consider Marguerite Santenac’s feelings in this case, whether you think she is ignorant, ugly, poor or what you think about her, I think you do have to think she is truthful. I would submit to you that if you would go upstairs and return a verdict of not guilty and turn Cordell Lee back on the streets of New Orleans, then you should think about your elderly mother, your grandmother . .

Defendant contends that this line of argument was inflammatory and appealed to prejudice in violation of C.Cr.P. 774 and therefore constituted reversible error. This court does not condone the type of argument used by the prosecutor in this case and it is questionable whether these statements fall within the permissible scope of rebuttal argument as defined in C.Cr.P. 774. But see State v. Brown, 288 So.2d 339 (La. 1974), holding such argument permissible. But even if such language was impermissible, its use does not necessarily constitute reversible error.

“Under the jurisprudence of this Court, before a verdict approved by the-judge is set aside on the ground of improper argument, this Court must be thoroughly convinced that the jury was influenced by the remarks, and that they contributed to the verdict.” State v. Jackson, 227 La. 642, 80 So.2d 105, 109 (1955).

This same language was approved in State v. Chaffin, 324 So.2d 369, 373 (La. 1975) and State v. Dennis, 250 La. 125, 139, 194 So.2d 720, 725 (1967). Accordingly, we cannot agree with the defendant that he was so prejudiced by these statements that his conviction must be overruled. See State v. Daniels, 262 La. 475, 263 So.2d 859 (1972); State v. Dennis, supra.

While Article 774 of the Code of Criminal Procedure defines the permissible scope of argument, it provides no sanction for its violation. Therefore, the proper remedy is to be found in Articles 770 and 771 of the Code of Criminal Procedure. C.Cr.P. 774 Official Revision Comment (C); State v. Clark, 332 So.2d 236, 237 (La.1976).

In order to invoke the remedy of mistrial or admonition, though, the State or the defendant must have made a request for such relief. Article 771 provides:

“In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when- the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
“(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
“(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
“In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.”

This court has consistently held that the trial court commits no error in failing to admonish the prosecutor if there has been no request for an admonition. State v. Larue, 324 So.2d 384, 387 (La.1975); State v. Knight, 323 So.2d 765, 768-769 (La.1975); State v. Sonnier, 317 So.2d 190, 195 (La. 1975); State v. Johnson, 261 La. 620, 641, 260 So.2d 645, 652 (1972). In the instant case, the defendant did not request an admonition nor did he move for a mistrial. Therefore, the defendant’s contention that it was error for the judge to fail to admonish the prosecutor before the jury is without merit.

Assignment of Error No. 9

In his last assignment of error, defendant contends that the trial court erred in refusing to grant his motion for a new trial and in arrest of judgment, and his supplemental motion for a new trial and arrest of judgment. A hearing on these motions was held on August 5, 1975 and the trial judge denied these motions. A second supplemental motion for a new trial and arrest of judgment was filed by defendant and a hearing on the motion was held on August 19, 1975. This motion was also denied. These motions relied on various grounds contained in the assignments of error and have already been discussed above. The following additional grounds in support of these motions were offered:

(1) The verdict is contrary to the law and the evidence.

A memorandum setting forth the specific errors was submitted. While such a motion requires the trial judge to pass upon the sufficiency of the evidence, State v. Washington, 292 So.2d 234, 236 (La.1974), it is clear that the trial judge did so in this case and determined that the verdict was correct.

The power to grant the defendant a new trial if the jury verdict is contrary to the law and the evidence is exclusively that of the trial judge when the issue is the sufficiency of the evidence (as opposed to no evidence at all). State v. Vincent, 284 So.2d 563 (La.1973); State v. Plummer, 281 So.2d 716 (La.1973). Since the alleged error here regards the sufficiency of the evidence, this court is precluded from reviewing the record on questions of fact. La. Const, of 1921, Art. VII, § 10; La.Const. of 1974, Art. 5, § 8(C). Therefore, the assignment of error relative to the refusal of the trial judge to grant a motion for a new trial based on C.Cr.P. 851(1) presents nothing for review. State v. Plummer, supra.

(2) Newly discovered evidence.

At the hearing on the motions for a new trial, the defense presented three witnesses who offered “new evidence.” Connie Gard-ley, co-chairman of the Parkchester Development Committee, testified that he interviewed the victim on the morning after the rape and that she identified her attacker as “Rung Fu,” a friend of Gardley. However, Gardley did nothing about Rung Fu although he was supposedly engaged in the investigation of a number of alleged rapes at the Parkchester Apartments. John Joseph, a resident of the area, stated in his affidavit (accepted in lieu of his testimony) that the victim told him only hours after the alleged rape that she had seen the rapist before, and again between the time he raped her and the time of their conversation. This testimony was offered to contradict the victim’s testimony to the effect that she did not know the perpetrator and had never seen him before or after. Simpson Wright, the stepbrother of Connie Gardley, had seen a man, distinctively dressed like the alleged rapist, engaging in sexual activity with a dog in the Parkches-ter area, some months after the rape. Both Wright and Mrs. Santenac witnessed the police lineup (separately). Wright claims that he did not identify the defendant as the one who had engaged in the sexual acts with the dog. Wright and the victim drove home from the lineup together. Wright testified that the victim denied having identified any one at the lineup, but Mrs. Sante-nac, in her testimony at the trial, stated that she picked the defendant out immediately at the lineup.

The trial judge denied the motion for a new trial on the ground that there was a lack of reasonable diligence in producing the newly discovered evidence either before or during the trial and for the further reason that he found the newly discovered evidence suspicious or incredible. C.Cr.P. 851 provides in part:

“The court, on motion of the defendant, shall grant a new trial whenever:
“(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.”

At trial the defendant was represented by appointed counsel, who was an attorney of the Orleans Indigent Defender Program. Defense counsel now contends that that organization had neither the funds nor the manpower to conduct a thorough investigation and that it was not until counsel was retained that these new witnesses could be discovered. While the fact of appointed counsel, in itself, would not satisfy the “reasonable diligence” test of Article 851, this court has recognized that notwithstanding a possible failure to exercise reasonable diligence a “defendant, as an indigent, should not be made to suffer because of a possible shortcoming of counsel provided by the court.” State v. Gilmore, 332 So.2d 789, 793 (La.1976). Therefore we cannot agree with the trial judge that a new trial should have been denied because of a lack of reasonable diligence.

However, a new trial will not be granted unless this new evidence is of such a nature that it would probably have changed the verdict. C.Cr.P. 851(3); State v. Barfield, 292 So.2d 580 (La.1974); State v. Jackson, 253 La. 205, 217 So.2d 372 (1968). Additionally, the trial court has discretion to grant or deny a new trial when it is sought on the ground of newly discovered evidence which is suspicious or incredible. State v. Griffin, 288 So.2d 636 (La.1974); State v. Jackson, supra. In such situations the decision to grant or deny a new trial will not be disturbed on appeal. State v. Cander, 252 La. 380, 211 So.2d 298 (1968). We find no abuse of discretion here. The trial judge found the evidence to be incredible and he did not err in denying the motion for a new trial.

Finally, the defendant relies on C.Cr.P. 851(5) entitling the defendant to a new trial whenever “(t)he court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.” A fair reading of the' testimony adduced at the trial and at the two hearings on the motions for a new trial shows no injustice to the defendant. Therefore, the failure of the trial judge to grant the motions for a new trial did not amount to an error of law and the decision will not be set aside. C.Cr.P. 858.

Accordingly, the conviction is affirmed and the case is remanded for resentencing.

SANDERS, C. J.,

concurs in the conviction, but dissents from the sentence and assigns written reasons.

SUMMERS, J.,

concurs in the conviction, but dissents from the holding on penalty for the reasons assigned.

MARCUS, J.,

concurs in affirmance of defendant’s conviction, but dissents from penalty directed by majority for reasons assigned in his concurring and dissenting opinion in State v. Craig, 340 So.2d 191 (La.1976).

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence).

I agree with Mr. Justice Summers that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

Absent majority agreement on the jury hearing procedure, however, I would order the trial judge to impose a sentence of life imprisonment. Reduction of the sentence for aggravated rape from death to twenty years is a far too drastic reduction. In my opinion, such a change does violence to legislative policy.

For the reasons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence.

SUMMERS, Justice

(dissenting).

This case involves the imposition of the death penalty for the crime of aggravated rape. La.R.S. 14:42. A constitutional challenge to this statute’s mandatory death penalty provision was rejected in State v. Selman, 300 So.2d 467 (La.1974). Our decision was based upon the fact that Articles 814 and 817 of the Code of Criminal Procedure had been revised to conform with the rationale set forth in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) by fixing standards to guide the jury in imposing the death penalty or not. Thus the Furman decision finding that our previous statute gave the jury unfettered discretion in imposing the death penalty or not was corrected.

As the majority opinion points out in the instant case, on July 6, 1976 the Supreme Court of the United States declared Louisiana’s mandatory death penalty in the aggravated rape statute unconstitutional in Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212. The Selman decision is based upon the reasons assigned in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) and Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, rendered July 2, 1976.

It was Louisiana’s contention in Roberts that Louisiana’s Legislature had adopted satisfactory procedures to comply with Fur-man’s requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences. But the Court held that objective had not been realized by the responsive verdict procedure relied upon. Not only did Louisiana’s statutory plan lack standards to guide the jury in selecting among first degree murderers the Roberts Court held, but the responsive verdict plan invited the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they felt that the death penalty was inappropriate.

“The constitutional vice of mandatory death sentence statutes — lack of focus on the circumstances of the particular offense and the character and propensities of the offender — ,” the Court said, “is not resolved by Louisiana’s limitation of first degree murder to various categories of killings.” They “afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.” It was also the Court’s opinion in Roberts that Louisiana’s statute prescribed no meaningful appellate review of the jury’s decision on the penalty the statute made mandatory.

To comply with the Cruel and Unusual Clause of the Eighth Amendment to the Federal Constitution, the Court said in Woodson, there must be a determination of contemporary standards regarding the infliction of capital punishment. These contemporary standards as approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), involve indicia of societal values identified in prior opinions and include history, traditional usage, legislative enactments and jury determinations.

In each case affected by the Furman decision, the United States Supreme Court vacated the judgment insofar as it left undisturbed the death penalty imposed and remanded the case to this Court for further proceedings. 408 U.S. 932, 933, 92 S.Ct. 2852, 2861, 2870, 2846, 33 L.Ed.2d 745. This Court construed those decrees to require the imposition in each case of a sentence other than death. State v. Singleton, 263 La. 267, 268 So.2d 220 (1972). Accordingly, the death sentence imposed upon defendant was annulled and set aside, and the case was remanded to the trial court for sentencing the defendant to life imprisonment.

In the instant case we construe the mandate of the United States Supreme Court to invalidate the mandatory death penalty only. The conviction stands. Unlike the Furman decision, which held the imposition of the death penalty to be cruel and unusual punishment because of the jury’s unfettered choice to impose it or not, here the infirmity in Louisiana’s statute is that no review of the penalty upon the jury verdict is provided for or permitted.

Following the procedure we adopted in State v. Singleton, supra, therefore, we should, in compliance with the rationale of Roberts and Woodson, remand the case to the trial court for a sentencing hearing before a jury empaneled for that purpose.

This sentencing hearing should focus on the circumstances of the offense and the character and propensities of the offender. The hearing should be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances should be considered relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure should be the same as that prescribed for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at the trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant’s testimony shall not be admissible except for purposes of impeachment.

A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed. The jury should be furnished with a copy of the statutory aggravating and mitigating circumstances.

The following should be considered aggravating circumstances:

(a)The offender was engaged in the perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, or armed robbery;
(b) The victim was a fireman or peace officer engaged in his lawful duties;
(c) The offender was previously convicted of an unrelated murder, aggravated rape, or aggravated kidnapping;
(d) The offender knowingly created a risk of death or great bodily harm to more than one person;
(e) The offender offered or has been offered or has given or received anything of value for the commission of the offense;
(f) The offender at the time of the commission of the offense was imprisoned after sentence for the commission of an unrelated forcible felony;
(g) The offense was committed in an especially heinous, atrocious or cruel manner.

The following shall be mitigating circumstances:

(a) The offender has no significant pri- or history of criminal activity;
(b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance;
(c) The offense was committed while the offender was under the influence or under the domination of another person;
(d) The offense was committed under circumstances which the offender reasonably believed to provide a moral justification or extenuation for his conduct;
(e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication;
(f) The youth of the offender at the time of the offense;
(g) The offender was a principal whose participation was relatively minor;
(h) Any other relevant mitigating circumstance.

A sentence of death, under this disposition, would be imposed only upon the unanimous recommendation of the jury. If the jury finds the sentence of death inappropriate, it should recommend a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.

The defendant would then be sentenced in accordance with the unanimous recommendations of the jury; otherwise, in the case of a verdict which is not unanimous, a sentence of life imprisonment without the benefit of probation, parole or suspension of sentence would be imposed. The sentence would then be reviewed by this Court to determine whether it is excessive under rules it would prescribe. Compare Act 694 of 1976, La.Code Crim.Pro. art. 905-905.9.

In my view this recommended disposition of this and like cases affected by the Roberts and Selman decisions more nearly comports with reason and logic. The suggested disposition is procedural in nature, while the Court in the case at bar makes a substantive change when it selects another and lesser included offense in order to find what it considers to be an appropriate penalty. The dispositions I propose, on the contrary, retain the verdict of guilty for the crime charged which the jury has found. Only the penalty is to be reconsidered and only a procedure is outlined for accomplishing that result. No substantive change is suggested such as that suggested by the majority. Moreover, the procedure suggested is in accordance with standards approved by the United States Supreme Court in Roberts and Woodson.

This suggested procedure is, furthermore, in keeping with the public policy as declared by the Legislature in repeatedly prescribing the death penalty for this offense. The suggested procedure does not discard the death penalty but, to the contrary, leaves it open to be imposed in accordance with standards approved by the Roberts and Woodson holdings.

On the other hand, the majority opinion offends these principles. A new crime is engrafted on the jury verdict and a new penalty is imposed. And this is done by judicial decree contrary to the jury verdict and without complying with any standards approved for mitigation by the United States Supreme Court. In this case the majority decree and instructions to the trial court fly in the face of the expressed objection to the responsive verdict procedure in Roberts. And finally the majority holding does not carry out the public policy of the State as expressed by the Legislature.

I respectfully dissent.

      . Notwithstanding this abandonment, the trial judge was correct in denying the motion to quash on these grounds as these assignments of error lack merit. Paragraph III of the motion to quash contends that C.Cr.P. 798(2) is unconstitutional, in that excusing jurors pursuant to that article eliminates an identifiable cross-section of the community. Article 798(2) provides:
      “The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.”
      The dismissals for cause that occurred in this case were proper and were not in violation of the guidelines set down in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See State v. Washington, 321 So.2d 763 (La.1975). Paragraphs IV and V of the motion to quash alleged that the grand jury that indicated Cordell Lee did not include citizens between the ages of eighteen and twenty-one years and therefore the defendant was deprived of his constitutional right that the grand jury be a body truly representative of the community. The defendant makes no allegation that the eighteen-twenty-one year olds were systematically excluded from the venire, and absent such a showing the venire will be upheld. State v. Morgan, 315 So.2d 632, 636 (La.1975); State v. Williams, 310 So.2d 528, 532 (La.1975): State v. McKinney, 302 So.2d 917 (La.1974).

      . There was a question as to whether the trial judge considered the motion to quash to be the correct procedural vehicle to challenge the constitutionality of that statute. Clearly, it was. C.Cr.P. 532 provides:
      “A motion to quash may be based on one or more of the following grounds:
      “(1) The indictment fails to charge an offense which is punishable under a valid statute.”

      . To do so would constitute judicial legislation of an ex post facto law in violation of the United States Constitution, Art. I, § 10, Cl. 1, the Louisiana Constitution of 1921, Art. IV, § 15 and the Louisiana Constitution of 1974, Art. 1, § 23.

      . The prerequisites for a mandatory mistrial under Article 770 have not been met in this case:
      “Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      “(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      “(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      “(3) The failure of the defendant to testify in his own defense; or
      “(4) The refusal of the judge to direct a verdict. “An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.”

      . A trial judge may admonish the jury without being requested to do so if he deems it necessary to protect the rights of the defendant. State v. Clark, 288 So.2d 612, 614 (La.1974). But, it is not reversible error to fail to do so when no request has been made.

      . There is some question as to whether Wright did, in fact, identify Cordell Lee as that person at the lineup.


author: DIXON, Justice. SANDERS, C. J., SUMMERS, J., MARCUS, J., SANDERS, Chief Justice MARCUS, Justice

text:
    STATE of Louisiana v. Charlie J. CRAIG.
    No. 57706.
    Supreme Court of Louisiana.
    Oct. 14, 1976.

      Nesib Nader, Samuel V. Prunty, Jr., Sheveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Albert S. Lutz, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Charlie J. Craig, was charged by grand jury indictment with the crime of aggravated rape in violation of R.S. 14:42. After a sanity commission reported that Craig could not assist counsel in his defense, he was committed to the East Louisiana State Hospital for treatment. After two and one-half months of treatment another sanity commission found that Craig was capable of assisting counsel in the defense of his case and that he understood the nature of the proceedings against him. He pleaded not guilty and not guilty by reason of insanity. After a jury trial he was found guilty and sentenced to death. We affirm the conviction but remand for resentencing.

Assignment of Error No. 1

The defendant contends that the trial judge erred in denying a motion for a new trial on the grounds that the verdict was contrary to the law and evidence. This court has consistently held that such an allegation presents nothing for review. State v. Woods, 327 So.2d 405 (La.1976).

Assignment of Error No. 1 is without merit.

Assignment of Error No. 2

The defendant contends that the verdict was contrary to the medical evidence in the case. Two psychiatrists testified that, in their opinion, the defendant was insane at the time the crime was committed.

When a defendant pleads “not guilty and not guilty by reason of insanity” the court is prohibited from determining the defendant’s sanity at the time of the offense: this question is reserved for the jury. State v. Link, 301 So.2d 339 (La. 1974); State v. Eisenhardt, 185 La. 308, 169 So. 417 (1936), cert. den., 299 U.S. 512, 57 S.Ct. 49, 81 L.Ed. 378. The defendant has the burden of establishing the defense of insanity. C.Cr.P. 652.

In the instant case the jury considered all of the evidence and found the defendant guilty. While the defendant’s contention that the verdict is contrary to the medical evidence presents nothing for our review (State v. Woods, supra), we nonetheless note that there was other evidence tending to show that the defendant was in control of his faculties on the night of the crime. For example, the guard at the building where the rape occurred spoke with the defendant that night and testified that he appeared normal and spoke rationally. The police officer who gave defendant his Miranda warnings testified that defendant spoke and acted normally.

Assignment of Error No. 2 is without merit.

While we affirm Craig’s conviction, we must remand for resentencing. In Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court declared Louisiana’s mandatory death penalty for first degree murder unconstitutional, because the jury is given no chance to consider aggravating or mitigating circumstances:

“The constitutional vice of mandatory death sentence statutes- — lack of focus on the circumstances of the particular offense and the character and propensities of the offender — is not resolved by Louisiana’s limitation of first-degree murder to various categories of killings. The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana’s enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.” 428 U.S. 325, at page 333, 96 S.Ct. 3001, at page 3006.

Louisiana’s mandatory death penalty for aggravated rape suffers the same constitutional infirmities. The jury is given no opportunity to consider mitigating or aggravating circumstances. Therefore, the death penalty for aggravated rape is unconstitutional under Roberts v. Louisiana, supra.

The defendant has thus been convicted of a crime whose penalty has been declared unconstitutional. This problem is not a new one, however. After the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which declared the death penalty as then applied unconstitutional, this court remanded murder and rape cases where death had been imposed for resentencing to life imprisonment. See e. g. State v. Franklin, 263 La. 344, 268 So.2d 249 (1972), a murder case; State v. Singleton, 263 La. 267, 268 So.2d 220 (1972), an aggravated rape case. The precedent for such action had been established in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971), where the problems were discussed, and State v. Duplessis, 260 La. 644, 257 So.2d 135 (1971), following the reversal by the United States Supreme Court of our judgment “insofar as it imposes the death sentence” for a “ Witherspoon ” violation. Duplessis v. Louisiana, 403 U.S. 946, 91 S.Ct. 2282, 29 L.Ed.2d 856 (1971).

However, a different situation exists now than at the time of Franklin and Singleton, supra. At the time those cases were decided, C.Cr.P. 814 provided for a responsive verdict of “guilty without capital punishment” for murder and aggravated rape. C.Cr.P. 817, at that time, also authorized the “qualified” verdict of “guilty without capital punishment,” in which case the sentence would be life imprisonment. Thus, reasoning that the responsive verdict of guilty without capital punishment was the next authorized verdict for the crime, we remanded for resentencing as if that verdict has been returned, and, under C.Cr.P. 817, life imprisonment was called for.

The situation has changed. In an attempt to overcome Furman's objections to the death penalty, the legislature amended the murder statute to provide for first and second degree murder, making death mandatory for first degree murder. Likewise, the death penalty for aggravated rape was mandatory. To accomplish this, the legislature amended C.Cr.P. 814 to do away with the responsive verdict of “guilty without capital punishment” for first degree murder and aggravated rape. Thus, at the time this crime was committed, November 26, 1974, the only responsive verdicts to a charge of aggravated rape were guilty; guilty of attempted aggravated rape; guilty of simple rape; not guilty. Additionally, C.Cr.P. 817 was amended to delete the provision authorizing the qualifying verdict “guilty without capital punishment.” Thus there is no longer any authority for us to remand an aggravated rape case for resentencing to life.

At the time (November 26, 1974) this crime was committed, attempted aggravated rape was punishable by imprisonment for not more than twenty years. R.S. 14:27 D(l). Simple rape carried a penalty of one to twenty years. R.S. 14:43. Thus, following the reasoning of Franklin and Singleton, supra, we remand this case for resentencing of- defendant to the most serious penalty for the next lesser included offense. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

Accordingly, the conviction is affirmed and the case is remanded for resentencing.

SANDERS, C. J.,

concurs in the conviction but dissents from the sentence and assigns written reasons.

SUMMERS, J.,

concurs with the holding on conviction, but dissents from the holding on penalty for the reasons assigned in my dissent in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs in part and dissents in part and assigns reasons.

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence).

I agree with Mr. Justice Summers that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

Absent majority agreement on the jury hearing procedure, however, I would order the trial judge to impose a sentence of life imprisonment, Reduction of the sentence for aggravated rape from death to twenty years is a far too drastic reduction. In my opinion, such a change does violence to legislative policy.

For the reasons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction; however, I dissent from sentencing him to the most serious penalty for the next lesser included offense at the time of commission of the crime, simple rape, which crime carries a penalty of imprisonment at hard labor for not less than one nor more than twenty years. In my view, once the United States Supreme Court declared the imposition of the death penalty under Louisiana law unconstitutional, it left the crime of aggravated rape (La.R.S. 14:42) without a penalty. No matter what action this court takes, it constitutes imposing a penalty for a crime, aggravated rape, not fixed by the legislature. The legislature has designated certain of the most serious crimes as requiring the most severe penalty, i. e., mandatory death. Therefore, now that the death penalty has been declared unconstitutional by the United States Supreme Court in Roberts and Selman, (Selman v. Louisiana, - U.S. -, 96 S.Ct. 3214, 49 L.Ed.2d 1212), we should substitute a penalty reflecting, as closely as possible, the intent of the legislature. In the instant case, the lesser included offenses of attempted aggravated rape and simple rape are crimes of a materially different nature from the crime of aggravated rape with which the defendant in this case was charged and found guilty. For this reason, it is inappropriate in my opinion to impose the substantially reduced sentence authorized for commission of either one of those offenses. More in keeping with the legislative intent would be imposition of life imprisonment, which common sense dictates as the next logical choice of sentences when the mandatory death sentence is no longer available. This approach is supported by the intent manifested in La.R.S. 14:44 which provides for life imprisonment in lieu of mandatory death when the victim of an aggravated kidnapping is released unharmed. Accordingly, in the absence of another sentence more appropriate in terms of legislative intent to the specific offense charged, I would remand this case to the trial judge to impose a sentence of life imprisonment. To do otherwise is to invite the anomalous result that a defendant convicted of an offense for which the legislature has directed the most severe of punishments, may now receive a sentence less onerous than some penalties mandated for other crimes considered less heinous than the offense for which the defendant in this case was prosecuted and found guilty.


author: MARCUS, Justice. SUMMERS, J., DENNIS, J., CALOGERO, Justice

text:
    STATE of Louisiana v. Carvel Frank MORRIS, Jr.
    No. 57775.
    Supreme Court of Louisiana.
    Oct. 14, 1976.

      Elodie K. Parker, Jena, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., George F. Griffing, Special Counsel, Jonesville, for plaintiff-appel-lee.
   MARCUS, Justice.

Carvel Frank Morris, Jr. was indicted by the grand jury of the Parish of Catahoula for the crime of aggravated rape on September 28, 1974, in violation of La.R.S. 14:42. After trial by jury, he was found guilty as charged and was subsequently sentenced to death. On appeal, defendant relies upon nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial judge erred in denying his motion to quash grounded on the allegation that he was denied the right to a speedy trial.

Defendant was arrested on September 28, 1974 for aggravated rape committed on the same date. He was indicted by the grand jury on October 31,1974. Upon defendant’s request, arraignment was delayed until November 14, 1974. A motion for change of venue was heard on January 6, 1975. On the same date, a motion to quash the indictment, based upon the unconstitutionality of the selective process by which women were excluded from the grand jury, and a motion to suppress evidence were filed and set for hearing on February 17, 1975. In view of the decisions handed down by the United States Supreme Court in Taylor v. Louisiana and Daniel v. Louisiana in January of 1975, the state decided to present this matter to a new grand jury to be convened on February 20, 1975. On February 17, 1975, defendant applied for a writ of habeas corpus in which he again attacked the indictment returned on October 31, 1974 on the ground of systematic exclusion of women from the grand jury. Hearing set for that date on the motions to quash and suppress were upset by mutual consent of the state and defendant. The grand jury returned a new indictment on February 20, 1975. On February 27, 1975, defendant’s application for habeas corpus was heard and denied; defendant entered a plea of not guilty and not guilty by reason of insanity; and the state moved for the appointment of a sanity commission. Due to conflict in the opinions of the members of the sanity commission, the state moved, on March 17, 1975, for an additional examination; on March 20, 1975, defendant sought an independent examination by a psychiatrist. Hearing on defendant’s mental capacity to proceed was held on April 7, 1975, and the trial judge ruled that he was presently sane and able to stand trial. Trial was set for May 12, 1975. On April 24, 1975, defendant filed a motion to quash the indictment returned on February 20, 1975, alleging that the delay occasioned by having a new indictment returned deprived him of a speedy trial. Motions for change of venue and suppression of evidence were also filed on April 24, 1975. These motions were heard and denied on May 5,1975. The court also ruled on the sufficiency of the state’s answers to defendant’s motion for a bill of particulars on that date. Trial commenced on May 12, 1975.

Determination of whether defendant’s sixth amendment right to a speedy trial has been violated cannot be determined by an inflexible rule based upon a fixed time period, but rather on a balancing test, in which the conduct of both the prosecution and the defendant are weighed. Four of the factors to be assessed by the courts in determining, in each instance, whether a defendant has been denied a speedy trial are: (1) length of delay, (2) reason for delay, (3) defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Brown, 326 So.2d 839 (La.1976); State v. Harris, 297 So.2d 431 (La.1974).

In the instant case, the delay of eight months between arrest and trial was not unreasonable, especially in light of the seriousness of the crime and the various pretrial motions filed by defendant. The reasons for the delay were not shown to have been occasioned by any procrastination or unwillingness on the part of the state to try the case. The delay was at least partly caused by defendant’s motion to quash the October indictment. This action precipitated his reindictment in February, 1975, by a grand jury selected pursuant to the newly enacted provisions contained in article 5, section 33 of the Louisiana Constitution of 1974. No complaint was registered, despite the filing and hearing of many motions urged on defendant’s behalf, until April 24, 1975, at which time the trial had already been set for May 12, 1975. All of defendant’s motions were considered promptly after filing. Defendant neither showed nor claimed any prejudice by reason of the delay. The delay itself is the only claim of prejudice.

Considering the facts of this case, we find no violation of defendant’s sixth amendment right to a speedy trial. Hence, the trial judge correctly denied defendant’s motion to quash.

Assignment of Error No. 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motions for a change of venue. The victim of the aggravated rape was a retired school teacher who was prominent and highly respected in the community. Consequently, defendant argues that the pretrial publicity precluded him from obtaining a fair and impartial trial in the Parish of Catahoula.

There were two hearings conducted on these motions, at which defendant called a number of witnesses, most of whom were either related to him or were his friends. The witnesses generally testified that, based upon their conversations with people in the area, they did not believe that defendant could get a fair trial. The main reason given for this conclusion was the prominence of the victim in the community. Many of the witnesses admitted their bias in favor of defendant because of their friendship with him. The testimony was that, while many people thought he was guilty, some could not believe that defendant could commit such a terrible crime. Most of the witnesses were unable to express an opinion as to what the attitude of the people would be if confronted with the actual evidence of the case. All agreed that, although they had read about the offense in the newspaper, they had not seen or heard any coverage of it on television or radio.

According to the managing editor of the Catahoula News-Booster, who was also employed by the Concordia Sentinel, four news items covering this offense, which occurred on September 28, 1974, appeared in the News-Booster. The first one appeared on page 11 of the first section on October 3. It contained a factual account of the events leading up to defendant’s arrest. The article also mentioned three other incidents under investigation. The second article (dated October 10) appeared on page 7 and was entitled “Grand Jury Meets Here Monday.” The article gives equal prominence to three matters which the district attorney intended to present to the grand jury (the present case was second mentioned). On October 31, another article appeared on page 1, stating that the grand jury would hear additional witnesses in two cases when it reconvened, one of which was the case herein. Finally, on November 7, an article appeared on page 6 in which it was stated that the grand jury had indicted defendant for aggravated rape and attempted murder. The article also covered another matter being investigated by the grand jury. On October 23, the Concordia Sentinel (circulation in Catahoula Parish of only fifty or sixty) also carried a story of the offense.

It was brought out at the hearings on these motions that Catahoula is a rural parish consisting of several diverse and separate communities. The witnesses who did not consider that defendant could obtain a fair trial were generally not familiar with other portions of the parish. Rather, their opinions were primarily based upon conditions existing around Harrisonburg where the offense occurred. On the other hand, the editor of the newspaper testified that he was in contact with other parts of the parish and, in his opinion, there was no prejudice in the public mind in the parish as a whole. The jury was selected from the entire parish.

The grounds for change of venue are set out in article 622 of the Code of Criminal Procedure as follows:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.
In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

To warrant a change of venue, the burden is upon the defendant to establish that he cannot obtain a fair trial in the parish where the prosecution is pending. Article 622 requires a showing of more than mere knowledge by the public of facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained. State v. Stewart, 325 So.2d 819 (La.1976); State v. Dillard, 320 So.2d 116 (La.1975); State v. Monk, 315 So.2d 727 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973); State v. Richmond, 284 So.2d 317 (La. 1973). Moreover, the granting or denial of a change of venue rests in the sound discretion of the trial judge, and his ruling denying a venue change will not be disturbed unless evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Stewart, supra; State v. Dillard, supra.

In denying the change of venue, the trial judge noted that it must be considered that Catahoula is a small rural parish and any crime of this magnitude would be known to the people. However, he correctly found no proof of prejudice in the public mind that a fair and impartial trial could not be obtained in that parish. The newspaper articles were not inflammatory or sensational in nature. Rather, they were factual accounts of the offense and the grand jury action. Accordingly, under the evidence presented, we cannot say that the trial judge abused his discretion in denying the motion for change of venue.

Assignment of Error No. 2 is without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 6

Defendant contends that the trial judge erred in denying his motion to suppress clothing (shirt and pants) worn by him on the night of the alleged rape and given to the sheriff by his mother. Defendant alleges that this evidence, secured without a search warrant, was inadmissible because his mother was ignorant and uneducated and did not know the consequence of giving his clothing, containing blood, to the sheriff.

At the hearing on the motion to suppress the clothing, the sheriff testified that he went to the home of defendant’s mother on the day of the arrest. Defendant had been temporarily residing there. Defendant’s mother told the sheriff that he did not need a search warrant, as “anything she could help with she would be happy to.” She voluntarily gave him the shirt and pants worn by defendant on the night of the crime. On the next morning after the arrest, defendant’s mother called the sheriff and asked him to come and exchange one of the articles of clothing she had previously given to him for the reason that she had given him the wrong article. The sheriff then returned to the mother’s home, and she gave him the “right garment.” The mother was not called to testify at the hearing. It is evident that no “search” was in fact conducted. Rather, the clothing was voluntarily given to the sheriff by the mother at her home. Defendant’s claim of his mother’s lack of education does not affect the uncontradicted testimony of the sheriff that she was cooperative and wished to give her son’s clothing to the authorities.

First, it is doubtful that a “search and seizure” occurred on the day the sheriff came to the defendant’s mother’s house and accepted the clothing at the good-faith invitation of a person with dominion over the premises and property. State v. Chase, 329 So.2d 434 (La.1976). Even if it were a search, consent is one of the well-recognized exceptions to the search warrant requirement of the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The search was made on the basis of the lawful consent given by defendant’s mother in her own home. State v. Chase, supra; State v. Bartley, 329 So.2d 431 (La.1976); State v. Forbes, 310 So.2d 569 (La.1975).

For the foregoing reasons, we conclude that the trial judge correctly denied defendant’s motion to suppress the clothing given to the sheriff by defendant’s mother.

Assignments of Error Nos. 3 and 6 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 7

Defendant contends that the trial judge erred in overruling his objections to the admission of evidence of the beating inflicted on the victim by the assailant. Specifically, he refers to his objections to the testimony of the victim at the preliminary hearing and to that of the coroner at trial relating to the injuries sustained by the victim during the course of the rape. Defendant argues that this evidence was not relevant to the charge of aggravated rape for which he was being tried. Rather, it was relevant only to the pending charge against him for attempted murder.

We find no merit in this contention. Testimony of the beating of the victim was relevant to corroborate the victim’s testimony that the rape was conducted by force, an essential element of aggravated rape. Hence, the objected-to testimony was admissible in evidence. La.R.S. 14:42; La. R.S. 15:435 and 441. In addition, the evidence of the beating, occurring during the course of the rape, was also a part of the res gestae. 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.” What forms part of the res gestae is always admissible in evidence. La.R.S. 15:447-448; State v. Curry, 325 So.2d 598 (La.1976); State v. Hatch, 305 So.2d 497 (La.1975). The rulings of the trial judge were correct.

Assignments of Error Nos. 4 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 5

The objection which forms the basis of this assignment of error arose in the following context. A deputy sheriff testified that he had found a small piece of wood on the doorstep of the victim’s house. Although the piece of wood appeared to come off of one of the three dining room chairs in the victim’s house, his examination of the chairs revealed that it did not. A fourth chair (in a broken condition) had been found in a ditch about a mile and a half from where defendant lived. On cross-examination, defense counsel asked the deputy sheriff the following questions:

Q. What is your explanation of what became of the whole chair? That the piece came off of?
A. I didn’t quite understand you.
Q. You said there were three chairs there and a piece of a chair out on the steps and you sent a good chair and that piece of chair—

At this point, the trial judge removed the jury. It was his impression that perhaps the question might necessitate an answer that part of the chair was used in the beating of the victim, and this might be a violation of State v. Prieur, 277 So.2d 126 (La.1973) because it referred to another offense. Defendant argued that, since the answer might create reversible error, the trial judge erred in depriving him of a reversal. For the first time on appeal, defendant urges that the court commented on the evidence.

Initially, there was no comment on the evidence, for the jury was removed while the colloquy occurred. Defendant’s argument that he was deprived of a reversible error by the trial judge’s action in not allowing the answer to the question is without merit. In any event, any reference to the beating of the victim (if such had been elicited by the question) would have been admissible as being relevant to the crime charged, as well as part of the res gestae. (See discussion in previous assignment of error.)

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends that the trial judge erred in permitting the bloody clothes of the victim to be introduced in evidence. Defendant does not attack the foundation laid by the state, but rather the prejudicial effect of its admission.

There is no merit in this contention. The victim testified that she was beaten during the course of the crime. The clothes were properly identified as being related to the crime. They were offered in evidence to corroborate the victim’s testimony that her resistance was overcome by force, an essential element of the crime charged. La.R.S. 14:42. The clothing was thus relevant and its probative value outweighed any prejudicial effect it might have had on the jury. La.R.S. 15:435 and 441; State v. Groves, 311 So.2d 230 (La.1975); State v. Edgecombe, 275 So.2d 740 (La.1973); State v. Alexander, 252 La. 564, 211 So.2d 650 (1968). The ruling of the trial judge was correct.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends that the trial judge erred in denying his motion for a new trial. First, defendant reurges a number of objections which have been reviewed under previous assignments of error. For the reasons set forth therein, we find no merit in these contentions. It is additionally urged that the trial judge erred in finding that defendant had sufficient mental capacity to understand the proceedings against him or to assist in his defense. Defendant also alleges that there was no evidence that a rape had been committed. Finally, it is urged that, in view of the fact that the jury had to be transported to a motel in Jones-ville because of the remodeling of the courthouse in Harrisonburg, it was possible for someone to have contacted the jurors while the deputies in charge were asleep.

Following defendant’s plea of not guilty and not guilty by reason of insanity, the court appointed a sanity commission composed of two members to determine defendant’s mental capacity to proceed. La. Code Crim.P. art. 643. Due to conflict of opinion expressed in the reports filed with the court by the two members of the commission, both the state and defendant moved for the appointment of an additional expert. In accordance with article 647, a contradictory hearing was held to determine defendant’s mental capacity to proceed.

Dr. Julien C. Kennedy, member of the sanity commission, found defendant to have “a lowered level of intelligence either borderline normal or mild mental retardation.” He determined defendant’s IQ in the area from 52 to 67. While finding that defendant could distinguish between right and wrong at the time of the offense, he did not believe that he was able to assist his counsel in his defense. Dr. Walter L. Guillot, Jr., the other member of the sanity commission, was of the opinion that defendant was able to understand the charges against him and could most probably assist in his defense. He opined that defendant could distinguish between right and wrong at the time of the offense. He estimated defendant’s IQ in the range of 65 to 70. Dr, Chester A. Williams, Jr., the expert who examined defendant for the state, had formerly been coroner for East Baton Rouge Parish for seventeen years and worked eight years with the Mental Health Center in Baton Rouge. He concluded that defendant was not mentally retarded and was able to understand the proceedings against him and to assist in his defense. He estimated his IQ in the range from 80 to 90. Dr. W. Sidney Easterling, defendant’s expert, did not testify, but his report was filed in evidence. The report indicates that Dr. East-erling found defendant to be “mildly mentally retarded” and, while finding that he was able to distinguish right from wrong at the time of the offense, he did not consider that he was able to assist counsel in his defense. Lay testimony was introduced at the sanity hearing consisting of people who had recently been in contact with defendant. The lay testimony consisted of the following: the jailer; the jailer’s wife, who served two meals a day to defendant in his cell; the pastor of the Baptist Church, who had frequent personal contact with defendant while he was incarcerated; the sheriff, who stated that when arrested defendant gave an alibi; the registrar of voters, who testified that defendant himself filled out a form to register to vote; and the principal of the high school, who testified that the records show defendant at age twelve had an IQ of 70, received grades which were generally satisfactory and passed to the fourth grade. This testimony was to the effect that his behavior had been normal in all respects. After the hearing, the trial judge stated that, while defendant might be slightly retarded, it was his opinion that he was capable of understanding the proceedings against him and assisting in his defense.

Under the provisions of article 641 of the Code of Criminal Procedure:

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense.

Mere weakness of mentality or subnormal intelligence does not of itself constitute legal insanity. State v. Augustine, 252 La. 983, 215 So.2d 634 (1968). A conclusion that one is mentally retarded, defective or diseased does not of itself establish present insanity. It is only when the retardation, defect or disease, alone or in combination, is so severe that an accused is unable to understand the proceedings against him and to assist in his defense that an accused is, within the contemplation of law, presently insane and unable to stand trial. State v. Flores, 315 So.2d 772 (La. 1975); State v. Augustine, supra. The burden is on the accused to establish by a clear preponderance of the evidence that he is so mentally deficient that he lacks capacity to understand the proceedings against him and to assist in the conducting of his defense in a rational manner. State v. Marks, 252 La. 277, 211 So.2d 261 (1968). It is well recognized that the trial judge’s determination of mental capacity to assist at trial is entitled to great weight, especially where the evaluation of credibility or the resolution of conflicting well-founded medical testimony is concerned. State v. Flores, supra.

After carefully reviewing both the medical and lay testimony, we cannot say that the trial judge abused his discretion in concluding that defendant failed to establish by a clear preponderance of the evidence that he was so mentally deficient that he lacked capacity to understand the proceedings against him and to assist in his defense. Hence, the trial judge correctly determined that defendant was presently able to stand trial.

The contention that there is no proof that a rape had been committed is equally without merit. The victim testified that she believed she had been raped. The testimony of the doctor who examined her substantiated this testimony, and the vaginal smear taken from the victim showed evidence of sperm. Certainly, this constitutes some evidence that the victim had been raped.

Defendant’s final contention that someone might have contacted the jurors at the motel while the deputies in charge were asleep is likewise without merit. At the hearing on the motion for a new trial, several of the deputies in charge of the sequestered jury testified that, because of the remodeling of the courthouse in Harrison-burg, they transported the jurors in vehicles driven by deputy sheriffs to the Catahoula Courts, a motel about ten miles away in Jonesville, where the jurors spent the two nights that the trial was in progress. Two male jurors were assigned to a room, while the female juror was given a room to herself. The doors of the motel rooms were locked and the phones disconnected. The deputies were with the jurors at all times except when the jurors retired to their rooms, at which time the deputies took shifts guarding the rooms from positions where they could fully observe the entrances to the rooms. The testimony was that there was at least one deputy on duty at all times. There was no evidence contrary to the testimony of these deputies. Hence, defendant’s contention has no basis in fact and is rejected as being without substance.

In sum, Assignment of Error No. 9 is without merit.

After the appeal was taken in this matter, the United States Supreme Court decided Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) declaring unconstitutional the mandatory death sentence for first degree murder. La.R.S. 14:30. The crime of aggravated rape also imposes a mandatory death penalty. La.R.S. 14:42. In Selman v. State of Louisiana,-U.S.-, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the United States Supreme Court held that Louisiana mandatory death penalty for aggravated rape suffers from the same constitutional infirmities as set forth in Roberts. In State v. Craig, No. 57,706, 340 So.2d 191 (La.1976) and State v. Lee, 340 So.2d 180 (La.1976) this court under the mandate of Selman and Roberts set aside and vacated the death sentences, but finding no other reversible error, affirmed the convictions. For reasons set forth in these opinions, we remanded the cases to the trial court for resentenc-ing of defendants to the most serious penalty for a lesser included offense at the time of the commission of the crime which, in those cases, was simple rape (La.R.S. 14:43) carrying a penalty of imprisonment at hard labor for not less one nor more than twenty years. In the instant case, the crime was committed on September 28,1974. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor. Therefore, in accordance with our decisions in Craig and Lee, we must vacate and set aside the imposition of the death penalty even though we affirm the conviction and remand the case to the trial court for resen-tencing.

DECREE

For the reasons assigned, the conviction is affirmed and the case is remanded for resentencing of the defendant.

SUMMERS, J.,

concurs in the conviction but dissents from the holding on penalty for the reasons assigned in my dissent in State v. Lee, La., 340 So.2d 180.

DIXON, J., dissents as to sanity issue.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J.,

dissents from the majority opinion on the issue of the defendant’s mental capacity to stand trial, but concurs in the holding respecting the penalty imposed.

CALOGERO, Justice

(dissenting).

In its affirmance of this conviction, the majority finds no1 merit in "defendant’s complaint that the trial judge erred when he overruled defendant’s motion for a new trial, a motion grounded on the fact that he lacked the mental capacity to understand the proceedings against him or to assist in his defense. I believe that the trial judge erred in his decision, and that the defendant’s conviction should be overturned.

Defendant was examined by three psychiatrists. Two of them unequivocally stated that Morris would be unable to communicate with his counsel in a meaningful manner, that he would be unable to testify in his own behalf, and that he would be unable to assist reasonably and rationally in a defense of the charge against him. The third psychiatrist testified that he considered defendant retarded, with a mental disease or defect. He could not say that he was sure Morris had the capacity to proceed, but felt it was “possible” that he could understand the proceedings against him. He stated that he felt Morris “had some capacity” to help in his own defense, but did not have a “substantial amount of capability” to do so. The only doctor who was certain that Morris could understand the charge against him and assist in his defense was the coroner of East Baton Rouge Parish who is not a psychiatrist. Even he admitted that Morris was “not very bright,” had a short attention span, and seemed indifferent to his situation.

Certainly this expert testimony establishes that defendant Morris lacked the capacity to understand the proceedings against him and to assist in the conduct of his defense. The trial judge erred when he ruled otherwise, and I believe that this Court should reverse Morris’ conviction.

      . 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

      . 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975).

      .The effective date of this new constitution was midnight, December 31, 1974.

      . According to the discussion outside the presence of the jury, the trial judge was concerned that the answer to defense counsel’s question might put the answer in the posture of the answer given to defense counsel’s questioning in State v. Foss, 310 So.2d 573 (La.1975) which was held to be reversible error.

      . The members of this commission were also appointed to examine defendant as to his mental condition at the time of the offense. This is a matter for the jury to decide and is not at issue in this assigned error which concerns solely defendant’s mental capacity to understand the proceedings against him or to assist in his defense.

      . The views herein expressed as to the proper penalty to be imposed represent that of the majority of this court. They do not reflect the views of the author of this opinion. See my dissent in State v. Craig, No. 57, 706, 340 So.2d 191 (La.1976).


author:
DENNIS, Justice. SANDERS, C. J.,
      SUMMERS, J., MARCUS, J., SANDERS, Chief Justice

text:
    STATE of Louisiana v. Willie SLEDGE.
    No. 57776.
    Supreme Court of Louisiana.
    Oct. 14, 1976.
    Rehearing Denied Nov. 18, 1976.

      Carl P. Walker, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant was indicted by the Grand Jury for the Parish of Ouachita for the crime of aggravated rape, a violation of La.R.S. 14:42. He was tried by a jury, convicted, and sentenced to the mandatory penalty of death. On appeal, he urges two assignments of error which we will not consider for the reasons appearing below. We affirm the conviction, but annul the sentence and remand the case for resen-tencing of defendant.

At the outset of the trial, defendant informed his attorney that he wished to plead guilty to a lesser offense. Defense counsel then approached the bench and communicated this desire to the court and the prosecuting attorney, whereupon the jury was retired to a separate room. After counsel had negotiated an acceptable plea in a private room, defense counsel conferred with defendant and reported that he would plead guilty to attempted aggravated rape; however, when the defendant was interrogated by the court it appeared that he did not wish to waive his rights and plead guilty. The jury was then returned to the courtroom and the matter proceeded to trial. Defense counsel did not complain of any irregularity or error in the proceedings at the time, but later concluded, “on reflection,” that the jury was “undoubtedly aware” of defendant’s proposed guilty plea and prejudiced thereby.

By failing to make a timely objection, defendant waived his right to attack the judgment of conviction on these grounds. State v. Marcell, 320 So.2d 195 (La.1975). La.C.Cr.P. art. 841 provides:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence . It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

However, while the alleged error is not subject to this Court’s review, we note that it is wholly without merit. The record does not reflect, and defendant in argument does not specifically allege, that anything was said within the hearing of the jury to indicate what had taken place. On the contrary, it appears that every precaution was taken to shield the plea negotiations from the jury.

We find it unnecessary to consider defendant’s second contention, that the imposition of the death penalty in this case constitutes cruel and unusual punishment, since we find that it must be set aside. After the appeal was taken, the United States Supreme Court decided Roberts v. State of Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), declaring unconstitutional the mandatory death sentence for first degree murder. La.R.S. 14:30. In this case our nation’s highest court held:

“ * * * The constitutional vice of mandatory death sentence statutes — lack of focus on the circumstances of the particular offense and the character and propensities of the offender — is not resolved by Louisiana’s limitation of first-degree murder to various categories of killings. The diversity of circumstances presented in cases falling within the single category of killings during the commission of a specified felony, as well as the variety of possible offenders involved in such crimes, underscores the rigidity of Louisiana’s enactment and its similarity to the North Carolina statute. Even the other more narrowly drawn categories of first-degree murder in the Louisiana law afford no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular crime or by the attributes of the individual offender.
“Louisiana’s mandatory death sentence statute also fails to comply with Furman’s [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] requirement that standardless jury discretion be replaced by procedures that safeguard against the arbitrary and capricious imposition of death sentences. * * *. (Footnote omitted).
il * * *
“Under the current Louisiana system, however, every jury in a first-degree murder case is instructed on the crimes of second-degree murder and manslaughter and permitted to consider those verdicts even if there is not a scintilla of evidence to support the lesser verdicts. See La. Code Crim.Proc.Ann., Arts. 809, 814 (Supp.1975). And, if a lesser verdict is returned, it is treated as an acquittal of all greater charges. See La.Code Crim. Proc.Ann., Art. 598 (Supp.1975). This responsive verdict procedure not only lacks standards to guide the jury in selecting among first-degree murderers, but it plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate. There is an element of capriciousness in making the jurors’ power to avoid the death penalty dependent on their willingness to accept this invitation to disregard the trial judge’s instructions. The Louisiana procedure neither provides standards to channel jury judgments nor permits review to check the arbitrary exercise of the capital jury’s de facto sentencing discretion. See Woodson v. North Carolina, ante, 428 U.S. 280, 96 S.Ct. [2978] 2990-2991 [49 L.Ed.2d 944].” (Footnote omitted).

The statute requiring a mandatory death sentence for aggravated rape, La.R.S. 14:42, suffers from constitutional deficiencies similar to those identified in the first degree murder statute by the United States Supreme Court. The diversity of cases falling within the category of aggravated rape, as well as the variety of possible offenders involved in such crimes, is just as great as under the first degree murder statute. Louisiana law affords no meaningful opportunity for consideration of mitigating factors presented by the circumstances of the particular case of aggravated rape, or by the attributes of the individual offender. As in murder cases, Louisiana jurors in aggravated rape prosecutions are instructed on several lesser included offenses and permitted to consider those verdicts even if there is no evidence to support the lesser verdicts. La.C.Cr.P. arts. 809, 814.

In accordance with Roberts, therefore, the imposition of the death penalty herein must be reversed, even though we may affirm the conviction. In accordance with our decisions in State v. Lee, 340 So.2d 180 (La.1976), and State v. Craig, 340 So.2d 191 (La.1976), we find that the case must be remanded for resentencing of defendant to the most serious penalty for the next lesser included offense at the time the crime was committed (July 27, 1975). At that time attempted aggravated rape was punishable by imprisonment for not more than twenty years. La.R.S. 14:27(D)(1). Simple rape carried a penalty of one to twenty years. La.R.S. 14:43. The legislature obviously intended to impose the most serious penalty available under the law. In this case, although there is a range of from one to twenty years, the most serious penalty is twenty years at hard labor.

For the reasons assigned, the conviction of the defendant is affirmed, but the death sentence imposed upon him is annulled and set aside, and the case is remanded to the district court for resentencing.

Affirmed in part, remanded in part.

SANDERS, C. J.,

concurs in the conviction but dissents from the sentence and will assign written reasons.

SUMMERS, J.,

concurs in the conviction but dissents from the penalty holding for the reasons assigned in my dissent in State v. Lee, La., 340 So.2d 180.

MARCUS, J.,

concurs in affirmance of defendant’s conviction, but dissents from penalty directed by majority for reasons assigned in his concurring and dissenting opinion in State v. Craig, 340 So.2d 191 (La.1976).

SANDERS, Chief Justice

(concurring in affirmance of conviction but dissenting from the sentence).

I agree with Mr. Justice Summers that in adjusting to the decision of the United States Supreme Court in Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), we need only remand the case for a sentence hearing by a jury to determine whether capital punishment should be imposed. In 1971, I advocated such a procedure following the United States Supreme Court decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). See my dissent in State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971).

Absent majority agreement on the jury hearing procedure, however, I would order the trial judge to impose a sentence of life imprisonment. Reduction of the sentence for aggravated rape from death to twenty years is a far too drastic reduction. In my opinion, such a change does violence to legislative policy.

For the reasons assigned, I respectfully concur in the affirmance of conviction but dissent from the sentence. :