State v. Day

391 So. 2d 1147
CourtSupreme Court of Louisiana
DecidedDecember 15, 1980
Docket67359
StatusPublished
Cited by46 cases

This text of 391 So. 2d 1147 (State v. Day) 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. Day, 391 So. 2d 1147 (La. 1980).

Opinion

391 So.2d 1147 (1980)

STATE of Louisiana
v.
Alvin Lee DAY.

No. 67359.

Supreme Court of Louisiana.

December 15, 1980.

M. Michele Fournet, Asst. Public Defender, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.

LEMMON, Justice.

In this appeal from a conviction of aggravated burglary and attempted simple rape the principal issue involves defendant's right to testify on the voluntariness of his confession without being subjected to cross-examination *1148 on the entire case. Also at issue are the sufficiency of the evidence and the excessiveness of the sentence.

I.

The elderly female victim in this case was awakened in the early morning hours by a loud noise and saw a figure standing in her bedroom doorway. The intruder struck her on the head and continued to beat her until she lapsed into intermittent periods of unconsciousness. At one point she regained consciousness and found that her pajama bottoms had been removed. The intruder demanded to know where her money and valuables were, telling her he would kill her unless she revealed their location. Her assailant at some point during the attack also made a statement to the effect that he was going to impregnate her.

When the victim regained consciousness, she was rushed to the hospital, complaining of severe pelvic pain and stating she had been raped. Both her eyeballs were ruptured by the severity of the blows to her face, and she is now permanently blind.

The officer who initially responded to the call for help testified that the victim was covered with bruises and blood. He found her bed saturated with blood.

Approximately three weeks after the offense an acquaintance of the defendant gave police information implicating him in the crime. Officers procured a warrant to search defendant's house and discovered several items of jewelry which had been stolen from the victim's residence. Defendant was arrested and subsequently admitted the burglary of the victim's residence. However, he denied the severe beating, telling officers that the victim assaulted him after he entered her house and that he struck her with his fist because he feared that she was armed. Defendant also denied raping the victim, but admitted he had placed his finger in her vagina.

Charged with aggravated burglary and attempted aggravated rape, defendant was convicted of aggravated burglary and attempted simple rape. The trial judge imposed consecutive sentences of 30 years imprisonment at hard labor (aggravated burglary), and 12½ years imprisonment at hard labor (attempted simple rape).

II.

Defendant's principal assignment of error concerns his request to testify before the jury, regarding the free and voluntary nature of his confession, without being cross-examined concerning other aspects of the case. His request was denied, and he did not testify before the jury.[1]

Defendant essentially contends that the so-called "narrow rule" of cross-examination is constitutionally mandated when the accused takes the stand on his own behalf to testify concerning the conditions surrounding his confession, arguing that the subject matter of cross-examination cannot exceed the scope of direct examination (except as to matters affecting credibility). See Federal Rules of Evidence 611(b). He further claims that the Louisiana statutory rules of cross-examination on "the whole case" deny him the right to a fair trial, inasmuch as due process requires that he be given an opportunity to testify before the jury as to his confession without waiving his privilege against self-incrimination and exposing himself to the truth-testing crucible of cross-examination on the whole case.

Louisiana's statutory provisions require the defendant to waive his privilege against self-incrimination as to the "whole case" and not merely as to the subject matter of his direct testimony. R.S. 15:280; C.Cr.P. art. 703. The issue presented is whether this statutory scheme infringes upon defendant's privilege against self-incrimination and his right to a fair trial.

The issue of limited cross-examination has gone through various stages of development *1149 in Louisiana. Prior to 1928, an accused who testified waived his right against self-incrimination only as to the matters about which he testified on direct examination and as to matters properly affecting his credibility. See State v. Bellard, 132 La. 491, 61 So. 537 (1913). This approach was changed by the Code of Criminal Procedure in 1928, which provided that any witness, including the accused, who voluntarily took the stand could be cross-examined upon the whole case. See R.S. 15:280 and R.S. 15:462.

Until State v. Lovett, 345 So.2d 1139 (La. 1977), Louisiana courts construed these statutes to preclude an accused from taking the stand in the presence of the jury for the limited purpose of testifying as to the voluntariness of his confession without subjecting himself to cross-examination on the whole case. State v. Sears, 298 So.2d 814 (La.1974); State v. Cripps, 259 La. 403, 250 So.2d 382 (1971); State v. Goins, 232 La. 238, 94 So.2d 244 (1957). In State v. Lovett, above, this court reconstrued the relevant statutes to reach a contrary result:

"Upon consideration, we have determined that, for the same reasons that an accused is so permitted to testify in the judge-hearing, he should be permitted at the jury trial for the jury's determination as to the weight of a confession, to take the stand for the limited purpose of testifying as to the voluntariness and validity of the confession sought to be introduced. If he does so, he is not subject to cross-examination on the case as a whole, but only as to the validity of the confession. He may also, of course, be cross-examined as to his credibility, including by impeaching him on the basis of prior convictions.
"If an accused cannot do so without waiving his constitutional self-incrimination rights as to guilt or innocence, he must abandon his statutory right to have the jury consider any lesser weight it should give to the confession due to the circumstances under which it was confected. If an accused cannot do so, his evidence as to the weight of the confession (which the jury is entitled to hear) cannot be given unless the accused subjects himself to cross-examination on merit-issues irrelevant to the validity of the confession and which infringe upon his constitutional right not to incriminate himself.
"As a matter of (at the least) statutory interpretation, a statutory right to have the jury hear evidence going to the weight of a confession should not reasonably be conditioned upon requiring an accused to sacrifice his constitutional rights in order to exercise the right so given.
"Preferably, the defense evidence as to involuntariness (or at least the accused's testimony there as to) should be permitted to be introduced contemporaneously with the state's predicate providing voluntariness of the confession. The issue thus segregated is more readily presented to the jury for its determination of the contents of the confession and the weight to be given to it." 345 So.2d at 1142-1143

Though affording the defendant in Lovett

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Bluebook (online)
391 So. 2d 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-day-la-1980.