State v. Hebert

443 So. 2d 613
Louisiana Court of Appeal·Decided November 9, 1983·No. CR83-164·Published·Cited by 12 cases

Opinion

443 So.2d 613 (1983)

STATE of Louisiana, Plaintiff-Appellee,
v.
Glenn Allen HEBERT, Defendant-Appellant.

No. CR83-164.

Court of Appeal of Louisiana, Third Circuit.

November 9, 1983.
Writ Denied January 6, 1984.

*614 L. Paul Gianfala, Lafayette, for defendant-appellant.

Jack Derrick Miller, Asst. Dist. Atty., Acadia Parish, Crowley, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

CUTRER, Judge.

The defendant, Glenn Allen Hebert, was indicted for aggravated rape, in violation of LSA-R.S. 14:42. Defendant's jury trial resulted in a verdict of guilty as charged. The trial judge imposed the mandatory statutory penalty of life imprisonment at hard labor without benefit of probation, parole or suspension of sentence. Defendant appealed his conviction on the basis of eleven assignments of error. Two of the assignments of error were abandoned and will not be considered by us. The remainder are submitted for consideration.

*615 FACTS

The incident upon which the defendant was convicted occurred during the early morning hours of April 26, 1981, as the sixteen year old victim, Carla Jean Tupper, and defendant were returning to Crowley in an automobile driven by Carla's boyfriend, Wayne Courville.

On Friday, April 24th, Courville had introduced Ms. Tupper to his friend, the defendant. Courville, Ms. Tupper and defendant decided to do some partying by patronizing some of the local night clubs the following night.[1]

The partying began on the evening of April 25th (Saturday). There were initially three other individuals with the defendant, Courville and Ms. Tupper. However, several hours and several lounges later, the party had been reduced to the latter three. While they were at a lounge in Duson, Louisiana, the defendant, according to Ms. Tupper, made her very uneasy by his constant staring at her and by his remarks that he wished that he had someone like her. At approximately 4:00 A.M. (April 26th), the trio were returning to Crowley, when defendant asked Courville to stop the car on the side of the road in order for him to respond to a call of nature. Courville stopped and both he and defendant went to the rear of the car for the same purpose. By this time the party-goers had consumed an undetermined amount of beer and had smoked several "joints" of marijuana. Ms. Tupper testified that she was waiting in the front seat of the car for the two to return, when the defendant suddenly appeared at the front passenger side of the vehicle. The defendant then pushed her on her back and ripped off her pants, threatening to kill her if she refused to submit to him sexually.

According to Ms. Tupper, the defendant then proceeded to rape her. Courville had remained behind the car after defendant proceeded to the front of the car. After hearing Ms. Tupper's cries for help, Courville went around to the driver's side of the car and attempted to pull the defendant away from the victim. Defendant was a large man physically. Courville, being a small man, was unable to remove defendant. Courville then ran for help to a nearby house.

When the defendant heard Courville returning to the car, he struggled briefly with the victim, who was able to free herself and jump from the car. Hebert then fled the scene in Courville's car. Ms. Tupper's testimony was corroborated by Courville's; the State also produced the testimony of the two men from whom Courville had sought aid and who had called the sheriff's office.

The defendant's version of what occurred naturally differed from the above-mentioned account, and it was, obviously rejected by the jury. Defendant testified that the victim had been promising him a "good time" all evening and that she was fulfilling that promise when, for a reason unknown to him, she began screaming "Rape." He stated that her cries caused him to panic, that he pushed her from the car and that he then fled in Courville's car. The defendant was arrested several hours later in Lafayette.

ASSIGNMENT OF ERROR NUMBER 1[*]

By this assignment the defendant alleges that the trial court erred in allowing the State, just before the beginning of trial, to notify the defendant of its intention to introduce an oral inculpatory statement made by the defendant upon his arrest. The defendant contends that such a short period of notice violated the spirit and intent of Article 768 and 2 of the Code of Criminal Procedure.[2]

*616 As the record fails to indicate that the defendant had access to any pretrial discovery, art. 768 requires the State to provide the defendant with notice of its intent to use his oral inculpatory statement prior to the beginning of the State's opening statement. In the instant case, the notice was given on July 15, 1982, prior to the selection of the jury. The State's opening statement was not given until the next day—July 16th. The statutory protections imposed by art. 768 were, therefore, clearly complied with by the State.

We choose, however, to decide this issue, not on the grounds of adequate compliance with C.Cr.P. art. 768 but, on the basis that the defendant failed to timely object as required by LSA-C.Cr.P. art. 841.[3] The record reflects that the defendant failed to raise his notice objection either at the time notice was given or at the time his statement was introduced.[4] This issue, being raised for the first time upon appeal, is not, therefore, properly before us. State v. Williams, 346 So.2d 181 (La.1977). This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER 2

Defendant contends that the trial court erred in failing to allow him to fully and completely cross-examine the victim on her prior sexual conduct and reputation for chastity. Defense counsel, in his brief, urges that the trial court indicated, early in the proceedings, that the victim's prior sexual conduct and reputation for chastity were not to be inquired into by the defendant.

In response to the State's motion in limine based upon LSA-R.S. 15:498,[5] the trial judge stated that he would not make a ruling on such evidence prior to trial. He informed counsel that he would rule on such issues as they may arise during trial.

Also, defense counsel was allowed at trial to question Ms. Tupper about the fact that she was living with Wayne Courville. The defense did not carry its questioning any further. It is clear that the trial judge had not automatically ruled against such testimony prior to trial. Defense counsel simply did not seek to elicit any further testimony on the subject. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 4

Defendant alleges that the trial court erred, on the basis of LSA-R.S. 15:451, in allowing into evidence the inculpatory statement made by the defendant. LSA-R.S. 15:451 requires the State prior to its introduction into evidence of any inculpatory statement to affirmatively show that the statement "was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises."

Pursuant to R.S. 15:451, a hearing was held outside the presence of the jury to establish the voluntariness of the defendant's *617 statements to the arresting officers. Deputies Johnny Meyer and Wayne Melancon stated that the defendant, after being informed of his Miranda rights, had freely spoken with the officers, but he had refused to sign anything.[6]

Determinative

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State v. Hebert, 443 So. 2d 613 (La. Ct. App. 1983).

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