State v. Ashley

569 So. 2d 276, 1990 WL 166884
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
Docket21873-KA
StatusPublished
Cited by5 cases

This text of 569 So. 2d 276 (State v. Ashley) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ashley, 569 So. 2d 276, 1990 WL 166884 (La. Ct. App. 1990).

Opinion

569 So.2d 276 (1990)

STATE of LOUISIANA, Appellee,
v.
Johnny Ray ASHLEY, Appellant.

No. 21873-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1990.

*278 Jerry L. Jones, Monroe, for appellant.

James A. Norris, Jr., Dist. Atty., Mark Donahoe, Asst. Dist. Atty., Monroe, for appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Johnny Ray Ashley, appeals his conviction and sentence for forcible rape, a violation of LSA-R.S. 14:42.1. The defendant was ordered to serve fifteen years at hard labor, five years of which are to be served without benefit of parole, probation or suspension of sentence. We affirm.

FACTS

On the evening of February 14, 1989, the defendant invited a group of people to his apartment to watch a rented movie on his video cassette recorder. Among this group was the victim of this offense, a 33-year-old divorced mother of three children. The victim was not well-acquainted with the defendant, but agreed to attend the movie because others were present with whom she was acquainted. The victim took her seven-year-old and four-year-old daughters to the defendant's apartment. Her fifteen-year-old son went upstairs to watch television with another tenant of the apartment complex.

During the course of the evening, the victim's four year-old daughter fell asleep and was placed in one of the bedrooms in the defendant's apartment. The victim's seven-year-old daughter fell asleep beside her mother on the sofa.

After the movie ended, the victim and other guests in the apartment began preparing to depart. The defendant asked the victim to stay for a moment because he wanted to talk to her. The victim sat down on the sofa beside her child. The defendant then began making advances toward the victim which the victim resisted. The defendant then picked up the victim, who weighed approximately ninety-five pounds, carried her to his bedroom and raped her. The victim claimed that, due to her small size, she was overpowered by the much larger and stronger defendant.

The seven-year-old child awakened and saw her mother attempting to resist the defendant and saw the defendant carry the victim to the bedroom. The seven-year-old child became upset, went upstairs and persuaded her brother to come with her to the defendant's apartment. The victim's son testified that he could hear his mother crying in the defendant's bedroom but was *279 prevented from rendering aid because he was afraid of the defendant's dog. After some time, the defendant came out of the bedroom. The victim then came out of the room, disheveled and upset, gathered up her children and fled the apartment.

The victim did not have a telephone in her apartment and was not able to report the incident to the police until the day after the attack, February 15, 1989. The victim was examined by her doctor on February 16, 1989. The doctor testified that the victim exhibited symptoms of traumatic sexual intercourse.

On May 9, 1989, the defendant was indicted by a grand jury for forcible rape. On July 11, 1989, he was tried by jury and found guilty as charged. The defendant appeared before the court for sentencing on October 26, 1989. The defendant was sentenced to serve fifteen years at hard labor, five years of which must be served without benefit of parole, probation or suspension of sentence. The defendant has appealed his conviction and sentence. The defendant argues that the trial court erred in failing to grant a continuance, that there was insufficient evidence upon which to base a conviction and that the sentence imposed was excessive.

MOTION FOR CONTINUANCE

The defendant was represented by retained counsel.[1] When the defendant and his counsel appeared for trial on July 11, 1989, numerous other cases were also on the docket for trial. However, the defendant's case was the one ultimately chosen to be tried. Defense counsel filed a written motion for continuance on the morning of trial. Defense counsel asserted that defense witnesses had not been subpoenaed and that since this was the first trial date set for this case, he did not expect the case to be tried and therefore he was not prepared for trial.

The trial court determined that the witnesses the defendant claimed were necessary had in fact been subpoenaed by the prosecution and were present to testify. The court denied the defendant's motion to continue and ordered that the trial proceed.

On appeal, the defendant contends that the trial court erred in denying the motion for continuance. Defense counsel claims he did not have time to confer with his client prior to trial. He also argues that he was not unreasonable in failing to prepare for this trial date because, he claims, it is rare for a case to actually be tried on the first date set for trial. Defense counsel contends that the trial court's action in forcing him to go forward with a trial for which he was not prepared denied the defendant his right to a fair trial. Defendant's arguments are meritless.

LSA-C.Cr.P. Art. 712 provides:

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

The granting or denial of a motion for continuance rests within the trial court's sound discretion. Whether refusal to grant a continuance was justified depends primarily on the circumstances of the particular case. State v. Sensley, 460 So.2d 692 (La.App. 1st Cir.1984), writ denied 464 So.2d 1374 (La.1985). Denial of a motion for continuance will not be disturbed on appeal absent an abuse of discretion and a showing of specific prejudice resulting from the denial. State v. Knighton, 436 So.2d 1141 (La.1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1330, 465 U.S. 1051, 79 L.Ed.2d 725 (1984); State v. Benoit, 440 So.2d 129 (La.1983); State v. Robinson, 423 So.2d 1053 (La.1982); State v. Hall, 549 So.2d 373 (La.App. 2d Cir.1989), writ denied 556 So.2d 1259 (La.1990).

Where a motion for continuance is based upon the want of time for preparation by counsel, this specific prejudice requirement has been disregarded only in cases where the preparation time was so minimal as to call into question the basic fairness of the proceeding. State v. Jones, 395 So.2d 751 (La.1981); State v. Sampson, 480 So.2d 952 (La.App. 2d Cir.1985).

*280 In the present case, it cannot be said that the time afforded defense counsel to prepare for trial was so minimal as to undermine the basic fairness of the proceeding. Defense counsel was retained by the defendant shortly after his arrest. He appeared in court with the defendant on May 15, 1989. At that time, defense counsel formally enrolled on behalf of the defendant. The defendant entered a plea of not guilty. A hearing on pre-trial motions was set for June 8, 1989 and the defendant's trial was set for July 10, 1989.

After arraignment, defense counsel unsuccessfully attempted to negotiate a plea bargain agreement for the defendant. Defense counsel knew of the trial date approximately two months in advance. Further, he was informed on Friday before the Monday trial date that the case was a priority case which would probably be called for trial on Monday. This afforded defense counsel the type notice required in State v. Ray, 474 So.2d 954 (La.1985). Therefore, these facts show that defense counsel was not surprised as to the trial date or the fact that the case most probably would go to trial on the date originally set.

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Related

State v. Johnson
778 So. 2d 706 (Louisiana Court of Appeal, 2001)
State v. Cannon
658 So. 2d 728 (Louisiana Court of Appeal, 1995)
State v. Smith
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State v. Williams
605 So. 2d 686 (Louisiana Court of Appeal, 1992)
State v. Ashley
575 So. 2d 387 (Supreme Court of Louisiana, 1991)

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Bluebook (online)
569 So. 2d 276, 1990 WL 166884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ashley-lactapp-1990.