State v. Bibbens

525 So. 2d 255, 1988 WL 35499
CourtLouisiana Court of Appeal
DecidedApril 19, 1988
DocketKA 87 1199
StatusPublished
Cited by5 cases

This text of 525 So. 2d 255 (State v. Bibbens) 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. Bibbens, 525 So. 2d 255, 1988 WL 35499 (La. Ct. App. 1988).

Opinion

525 So.2d 255 (1988)

STATE of Louisiana
v.
Gene BIBBENS.

No. KA 87 1199.

Court of Appeal of Louisiana, First Circuit.

April 19, 1988.

*256 Bryan Bush, Dist. Atty. by Sue Bernie, Asst. Dist. Atty., Baton Rouge, for plaintiff/appellee.

Office of the Public Defender, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

EDWARDS, Judge.

Gene Bibbens was convicted of aggravated rape and aggravated burglary, in violation of LSA-R.S. 14:42 and 60, respectively. He was sentenced to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, for the aggravated rape conviction. He received a concurrent sentence of thirty years at hard labor for the aggravated burglary conviction. The defendant has appealed, alleging five assignments of error.

FACTS

At approximately 2:00 a.m. on June 25, 1986, the victim, a thirteen year old girl, was raped at knifepoint. She identified the defendant as her assailant. When the attack occurred, the victim was spending the *257 night with her aunt, Judy Tasco, who lived in an apartment complex. The victim's bedroom was on the second floor of the apartment. Apparently, the defendant climbed a pole outside her window, opened it, placed the box fan on the floor, and entered the bedroom. The victim testified that she awoke as the defendant jumped in through the window, but he immediately placed a knife to her throat and threatened to kill her if she moved. After the defendant raped her, he took a small radio belonging to her cousin and exited through the window.

When the defendant left, the victim immediately told her aunt what had happened and her aunt called the police. The victim gave the police a physical description of her assailant, and she told them what he was wearing. She also informed them that he had taken the radio. While the police were still questioning the victim, a suspect, Walter Jackson, was brought to the apartment. However, the victim informed the police that Walter Jackson was not her assailant. Shortly thereafter, Baton Rouge Police Officer Robin Davis stopped the defendant, who was walking on Highland Road three to four blocks from the scene of the rape. Officer Davis observed that the physical description given by the victim matched the defendant. The defendant was also wearing a red and white striped shirt and had a gold earring, both of which matched the description given by the victim. The defendant was also carrying a small, portable radio. Officer Davis brought the defendant back to the victim's apartment. The victim came outside and identified the defendant, who was seated in the back of a police car, as being the same man who had raped her approximately one hour earlier.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment of error, the defendant contends that the trial court erred in granting the State's motion to compel blood and saliva samples.

It is well established that the Fifth Amendment restriction against selfincrimination applies only to testimonial evidence. Identifying physical characteristics, such as fingerprints, blood, urine, breath, etc., are outside the protection afforded by this privilege. State v. Taylor, 422 So.2d 109, 116 (La.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1803, 76 L.Ed.2d 367 (1983); State v. Robertson, 509 So.2d 95, 97 (La.App. 1st Cir.1987). Defendant argues that because the trial court allowed the prosecution to retake his blood and saliva samples during the course of the trial,[1] his constitutional right against selfincrimination was violated and his defense was prejudiced and disrupted. We disagree.

The record shows that the samples were taken during the lunch recess. The delay of approximately forty-five minutes was not unreasonable. The record also reflects that the jury was told that the recess was caused by difficulty in scheduling and producing certain witnesses.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, the defendant contends that the trial court erred in admitting into evidence, over defense objection, State Exhibits 1, 2, 3, 13, 14, 18, and 19.[2] The defendant argues that these photographic exhibits should have been excluded because it was never established who took the pictures.

Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to correctly represent the subject in controversy, and when they shed light upon the matter before the court. State v. Robertson, 454 So.2d 205, 210 (La.App. 1st Cir.), cert. denied, *258 458 So.2d 487 (La.1984). A proper foundation for admission in evidence of a photograph is laid when a witness having personal knowledge of the subject depicted by the photograph identifies it as such. State v. Jones, 496 So.2d 638, 640 (La.App. 1st Cir.1986). It is well settled that the photograph need not be identified by the person who took it to be admissible in evidence. State v. Leggett, 363 So.2d 434, 439 (La.1978).

State Exhibits 1, 2, 3, and 18 depict the back of the victim's apartment and the window through which the assailant entered. The record reflects that these pictures were identified by the victim. State Exhibits 13 and 14 are pictures of the victim's bedroom. These pictures were taken by the crime scene investigator, Baton Rouge Police Officer Ted Day. The record reflects that Officer Day identified these photographs and testified that they accurately depicted the scene of the crime.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, the defendant contends that the trial court erred in sustaining a State objection to the questioning of a defense witness, Carla Thompson.

During the trial, defense counsel questioned both the victim and her aunt, Judy Tasco, about an alleged altercation between the victim and Judy Tasco's boyfriend. After the State rested its case, the defense called Carla Thompson to the stand. Ms. Thompson testified that she lived in the same apartment complex as the victim. She also testified that the defendant lived in these apartments with his sister. However, when the prosecutor attempted to question Ms. Thompson about the alleged altercation between the victim and Judy Tasco's boyfriend, the prosecution objected.

Out of the jury's presence, the trial court asked defense counsel to explain the relevance of this line of questioning. Defense counsel explained that this alleged altercation had resulted in threats against the victim by Judy Tasco's boyfriend. Defense counsel stated: "[T]he testimony of this witness will link up—will link up the credibility of the victim and the possibility of some other reasons why the victim named this defendant because of the threats that was (sic) created by the aunt's boyfriend." Defense counsel also suggested that the scratch on the victim's neck could have resulted from the altercation between the victim and Judy Tasco's boyfriend, rather than from the defendant's knife during the rape. However, the trial court was not impressed with these reasons, concluded that the line of questioning was irrelevant, and sustained the prosecution's objection.

While evidence of bias in the particular case on trial is admissible, LSA-R.S. 15:492, such bias on the part of a witness must be shown to be direct or personal against the defendant, rather than indirect or general in nature. State v. Raymond, 447 So.2d 51, 54 (La.App. 1st Cir.), cert. denied,

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Bluebook (online)
525 So. 2d 255, 1988 WL 35499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bibbens-lactapp-1988.