State v. Carter

412 So. 2d 540
CourtSupreme Court of Louisiana
DecidedApril 5, 1982
Docket81-KA-0042
StatusPublished
Cited by49 cases

This text of 412 So. 2d 540 (State v. Carter) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Carter, 412 So. 2d 540 (La. 1982).

Opinion

412 So.2d 540 (1982)

STATE of Louisiana
v.
Travis Raymond CARTER.

No. 81-KA-0042.

Supreme Court of Louisiana.

April 5, 1982.

*542 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Carmouche, Dist. Atty., Dale Cox, Robert W. Gillespie, Asst. Dist. Attys., for plaintiff-appellee.

Tommy J. Johnson, Shreveport, for defendant-appellant.

MARCUS, Justice.

Travis Raymond Carter was charged by the grand jury in the same indictment with two counts of aggravated crime against nature (La.R.S. 14:89.1), two counts of aggravated rape (La.R.S. 14:42), one count of armed robbery (La.R.S. 14:64) and one count of attempted first degree murder (La. R.S. 14:27 and 14:30). After trial by jury, defendant was found guilty as charged on one count of aggravated rape and on the count of attempted first degree murder. He was found not guilty on the other counts. Defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for his conviction of aggravated rape and to imprisonment at hard labor for fifty years for his conviction of attempted first degree murder. The court expressly directed that the sentences be served consecutively. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences.

FACTS

The victim of the charged crimes testified to the following facts at trial. On the morning of June 7, 1979, the victim left work between the hours of 2:00 and 3:00 a. m. After going home to check on her four children and taking her eldest son out for a sandwich, the victim drove to a friend's house. On the way, she noticed someone following her. When she arrived at her friend's house, a truck pulled up at the house next door. As she got out of her car, defendant yelled to her that she had a gas leak. The victim leaned over to check her car, whereupon defendant produced a gun and forced her into his truck. Defendant drove the victim to a secluded area where *543 he ordered her to disrobe. At gunpoint, defendant forced the victim to submit to two acts of aggravated crime against nature and raped her twice, anally and vaginally. Defendant then allowed the victim to dress and drove her to another area. At gunpoint, defendant took the victim's keys and cigarette case which contained $60 in cash. He then told her to get out of the truck and walk toward a "woodsy" area. Fearing that she was going to be killed, the victim, while getting out of the truck, first refused to start walking. Defendant then pointed the gun at her head and pulled the trigger but the gun did not fire. At this point, the victim started running and defendant fired several shots at her, one of which hit her in the left side. She was able to make her way to a nearby residence where the police and an ambulance were called. The victim made a positive identification of defendant as the perpetrator of these crimes.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in denying his motion for severance of offenses. He argues that he was prejudiced by the joinder thereof.

At the outset, we note that two or more offenses may be charged in the same indictment under La.Code Crim.P. art. 493 if the offenses charged

are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.

In the instant case, the offenses met the test set forth in the above article and since the punishment for each offense is necessarily confinement at hard labor, the mode of trial (jury composed of twelve jurors, ten of whom must concur to render a verdict) is the same. La.Code Crim.P. art. 782. Hence, the offenses were properly joined in the same indictment. La.Code Crim.P. art. 493.

When an accused has been charged in the same indictment with two or more offenses pursuant to art. 493, he may apply for severance of offenses under La.Code Crim.P. art. 495.1, which provides:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

We first note that the problem of possible prejudice resulting from joinder of offenses considered in State v. Washington, 386 So.2d 1368 (La.1980), is not present here since evidence of the crimes committed by defendant, as part of a continuous criminal transaction, would each be admissible at trial because it is part of the res gestae. La.R.S. 15:447, 448; State v. Kaufman, 331 So.2d 16 (La.1976). Consequently, when evidence of the offenses would otherwise be admissible as part of the res gestae, the possibility of prejudice would in no way be enlarged by the fact of joinder of offenses. State v. Carter, 352 So.2d 607 (La.1977).

Hence, where the offenses joined are part of the same transaction, as here, the critical question which must be determined by the trial judge presented with a motion for severance of offenses is whether, in view of the number of offenses charged and complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. La.Code Crim.P. art. 495.1; State v. Carter, 362 So.2d 510 (La. 1978).

In the instant case, defendant was charged in one six-count indictment with four types of offenses, aggravated crime against nature, aggravated rape, armed robbery and attempted first degree murder. All of the offenses were connected in a continuous series of events occurring within one and one-half hours during which defendant drove the victim around in a truck. All of the crimes took place in defendant's truck except for the attempted first degree murder which occurred as the victim attempted *544 to escape therefrom. Only one victim was involved, whose testimony constituted the essence of the state's case. The victim related in simple terms the consecutive events constituting each of the crimes charged and the elements thereof. Only four types of offenses were at issue, and the trial judge carefully and clearly explained the elements of each to the jury. We, therefore, conclude that in this case, the trier of fact could compartmentalize the events and apply the law intelligently to each offense and that defendant was not unfairly convicted on the basis of prejudice or confusion instead of on the evidence of the crimes. Accordingly, the trial judge did not err in denying defendant's pretrial motion for a severance of offenses.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial judge erred in denying his motions for a mistrial on the ground that the testimony of two police officers referred to inadmissible evidence of other crimes.

On direct examination, Cecil Carter, one of the detectives involved in the investigation of the case, was asked by the state:

On June the 11th, 1979, Detective Carter, did you again get involved in this investigation?

He responded:

Yes, sir. At that time I attempted to put Travis Carter in a physical line-up.

Defendant objected.

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412 So. 2d 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carter-la-1982.