State v. Brown

507 So. 2d 304
Louisiana Court of Appeal·Decided May 13, 1987·No. CR 86-1191·Published·Cited by 13 cases

Opinion

507 So.2d 304 (1987)

STATE of Louisiana
v.
Gregory BROWN.

No. CR 86-1191.

Court of Appeal of Louisiana, Third Circuit.

May 13, 1987.

*305 J. Lyle DeBellevue, Crowley, for defendant-appellant.

Jane Bode, Robert T. Cline, Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.

Before GUIDRY, FORET and CULPEPPER[*], JJ.

GUIDRY, Judge.

Defendant, Gregory Brown, was charged by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42. A jury of twelve (12) found defendant guilty as charged. Defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant appeals his conviction based on four assignments of error.

FACTS

On October 6, 1984, Crystal Langlinais and her friend, Janet Habetz, met an acquaintance, Andre Franques, at the Crowley Rice Festival in Crowley, Louisiana. At 11:00 p.m., Crystal and Andre held a private conversation at the corner of a building which was adjacent to an alley, only a one-half block from where the festivities were taking place. Janet waited for them several feet away. While waiting, Janet was approached by three black youths, one of whom she was positively *306 able to identify. Frightened, Janet ran to the corner where Andre and Crystal were standing, told them of the encounter and asked them to hurry. Crystal told her to go stand where she could see her and that she would only be a few more minutes. Approximately five minutes later, over Andre's shoulder, Crystal saw three black youths approaching them from the inside of the alley. The three boys confronted the couple, hit Andre and then robbed him at knife point. Andre was then forced to kneel and face the wall, while Crystal was beaten, dragged back into the alley and raped by each youth. The assailants then grabbed Crystal's purse and quickly exited back into the alley. After helping Crystal dress, Andre left her and Janet in a public area and sought help from a nearby police officer, Raymond Lavergne. Officer Lavergne transmitted a description of the suspects over his radio, i.e., three black males, all wearing blue jeans, two wearing baseball caps, and one wearing a maroonish-colored shirt. On patrol nearby, Officer Ronald Arceneaux heard the transmission. He saw three white youths and asked them if they had lately seen three black males fitting the description. They responded yes and pointed north. Following these directions, Officer Arceneaux spotted three black youths walking in a park about 3.5 blocks from the rape/robbery. At first glance, it appeared that two were wearing caps and two were wearing maroon shirts. As he looked closer, he saw that one youth's hat was all black and had no bill on it so that he did not appear to be wearing a hat. However, all three boys were wearing caps. Defendant was one of these three.[1]

The three boys were stopped and brought to the police station. Later, police found the contents of Crystal's purse strewn in a trail-like manner between the area where the youths were picked up and where the crime occurred. Additionally, two knives precisely fitting the description given by Andre were found in the park within six feet of where the youths were walking when Officer Arceneaux drove past.

At the station, defendant surrendered his outer and inner clothing to police officers for analysis. Medical and forensic experts testified at trial that analysis revealed semen stains found on the victim's underwear, which were consistent with the defendant's blood and salvic reference groups. It was determined that less than one-half of one percent of the black population could have contributed to this stain. Thus, the defendant could not be eliminated as a possible contributor of the stains. Additionally, pubic hairs found in defendant's underwear, shirt and blue jeans were of Caucasian origin, and these hairs were microscopically indistinguishable from the victim's pubic hair. The victim had four negro pubic hairs in her pubic combings, and defendant could not be eliminated as being a possible donor of these pubic hairs. Additionally, defendant and the victim had the same plant and algae material on their clothing. This material was microscopically compatible with the plant and algae material found at the scene of the crime. Woody material found in defendant's underwear and particleboard found on defendant's clothes matched the particleboard the victim was placed on when the rapes occurred, and which was found on the victim's jeans. Upsom board, which is no longer manufactured, was found on defendant's and the victim's clothing, and was found at the scene of the rapes. All board fibers and paint chips found were identical to each other.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant claims that the trial court erred in denying his motion to suppress the clothing seized from him at the Crowley Police Station. Defendant makes two arguments in support of this assignment. First, he urges that by seizing his clothes the police compelled him to give evidence against himself, thus violating his right against self-incrimination. He relies upon State In The Interest of Dino, 359 So.2d 586 (La. *307 1978), to argue that as a juvenile defendant he had not validly waived his privilege against self-incrimination.[2] Secondly, he complains that the seizure of his clothes violated his Fourth Amendment right to be free from unreasonable searches and seizures.

In denying defendant's motion to suppress, the trial judge found that there was probable cause to arrest the defendant and that his clothes were seized incident to a valid arrest. Secondly, he found that the defendant voluntarily consented to turning over his clothes to the police.

Appellant's argument that the taking of his clothes violated his right against self-incrimination is misguided. The privilege afforded by the Fifth Amendment protects an accused only from being compelled to testify against himself; as such, it applies only to evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Carthan, 377 So.2d 308 (La.1979); State v. Palmer, 447 So.2d 1159 (La.App. 3rd Cir. 1984). The taking of the defendant's clothes is not evidence of a testimonial or communicative nature and is thus not protected by the Fifth Amendment.

Turning to defendant's second argument, that the taking of his clothes violated his constitutional rights guaranteed by the Fourth Amendment, it is axiomatic that a search conducted without a warrant issued upon probable cause is per se unreasonable, unless it falls within one or more of the few specifically established exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). One of these exceptions is the search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

La.C.Cr.P. art. 213 provides in part that:

"A peace officer may, without a warrant, arrest a person when: ...(3) the peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; ..."

Thus, for a warrantless arrest to be

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