State v. Jenkins

456 So. 2d 174
Louisiana Court of Appeal·Decided August 22, 1984·No. 16197-KA·Published·Cited by 21 cases

Opinion

456 So.2d 174 (1984)

STATE of Louisiana, Appellee,
v.
Lamar JENKINS, Appellant.

No. 16197-KA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 1984.
Rehearing Denied September 21, 1984.
Writ Denied November 26, 1984.

*177 C. Joseph Roberts, III, West Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, J. Carl Parkerson, Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.

Before PRICE, MARVIN and NORRIS, JJ.

NORRIS, Judge.

Defendant, Lamar Jenkins, appeals a jury conviction of attempted aggravated rape in violation of La.R.S. 14:27 and 42 respectively and a resulting sentence of 21 years at hard labor contending that the trial court erred in:

(1) ... failing to allow the defense to question a potential witness, Thomas Roy, concerning the character of the victim-prosecutrix as to general veracity;
(2) ... failing to allow the defense to question a potential witness, Tim Collins, concerning the reputation of the victim-prosecutrix as to chastity where consent was an issue in the case;
(3) ... failing to allow the defense to question the victim-prosecutrix relative to her reputation for chastity where consent was an issue in the case;
(4) ... allowing the prosecution to question defense witnesses, Margaret Wright, Linda Fitch, James Jenkins and Shirley Powell as to whether the same four persons have previously testified in court in favor of Lamar Jenkins;
(5) ... [jury] returning a verdict of guilty to attempted aggravated rape in that the evidence did not support a rational juror in returning such a verdict; [and]
(6) ... imposing a sentence of 21 years imprisonment at hard labor, said sentence being unconstitutionally excessive.

FACTS

During the evening hours of January 6, 1982, defendant, his brother and the victim [his brother's girlfriend], went to the Pyramid Lounge. After the lounge closed, they returned to the apartment of defendant's brother and remained in the apartment together long enough to drink a quart of beer. At approximately 1:15 a.m. on January 7, 1982, defendant left. Thereafter, defendant's brother also left leaving the victim in the apartment alone. A short time later, the defendant knocked on the door of the apartment. The victim dressed and left with the defendant at his urging. When they reached a nearby cemetery, the defendant grabbed the victim, fought with her, threatened to kill her and raped her, first under a tree and then behind a tombstone.

The victim managed to escape, returned to the apartment, cleaned herself up and went to bed. When her boyfriend returned to the apartment later that morning, she told him what had occurred and he called the police.

After interviewing the victim and viewing the scene of the crime, the defendant was arrested at the apartment of his girlfriend where he was found hiding in a closet. He was charged with aggravated rape, tried by a jury, found guilty of attempted aggravated rape and sentenced to 21 years imprisonment at hard labor.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, the defendant argues that it was error for the trial judge to disallow a witness to respond to a direct question calling upon the witness to state the reputation of the victim.

*178 Thomas Roy was called to testify on behalf of the defense. During questioning it was brought out that prior to August, 1982 [when he was incarcerated], he had lived in Monroe. He testified that during this time period he had frequented bars on a daily basis and that he "used to see [the victim] regular." He stated that he had heard "some" people discuss her reputation stating that "I have talked with a few people." He stated that the people with whom he had talked were in bars. The state objected on the grounds that no proper foundation had been laid for the witness to answer the question, and the trial judge sustained the objection.

La.R.S. 15:479 defines proof of character:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not what particular persons think of him.

Character testimony has been jurisprudentially defined as the opinion by a member of the community exposed over an extended period of time to hearing the discussion by other members of the community shared by himself and the person whose reputation is at issue. Before being permitted to testify, the reputation witness must be shown to be qualified to testify on the subject as a member of the community in a position to speak with authority on the subject. State v. Deaton, 412 So.2d 586 (La.1982).

One of the requirements for laying a proper foundation to allow the admissibility of such testimony is that the discussion was heard over an extended period of time because the legislative aim of this statute is to restrict evidence of repute to reputation among those who know the person well. State v. Clark, 402 So.2d 684 (La.1981). Proof may be made not only of the reputation of the person where he lives but also of his repute, which is general and established in any substantial community of people among whom he is well known, such as the group with whom he works, does business, or goes to school. State v. Clark, supra.

At best, the testimony of this witness was to the effect that he had known the victim, had frequented bars himself, had seen the victim at bars, and had heard "some" or a "few" unidentified people talk about her reputation without specificity as to whom he had heard talking, how many times he had heard them discussing the victim, over what length of time he had heard these conversations, and how well the people who had discussed her were known to either the victim or this witness. Clearly, this was an insufficient foundation to determine that this evidence of repute was based on reputation of the victim among those who knew her well. Compare State v. Trosclair, 350 So.2d 1164 (La. 1977), where it was held that evidence of reputation among a small group, bar owners, was not admissible.

Moreover, a trial judge is given wide discretion in controlling the examination of witnesses. La.R.S. 15:275. Unless an abuse of this discretion is shown, a conviction will not be reversed. State v. Trosclair, supra. We find no such abuse here and conclude that the trial judge did not err in holding that an insufficient foundation had been laid to admit this testimony.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

This assignment of error contends that the trial court erred in failing to allow the defense to question Tim Collins concerning the reputation of the victim as to chastity. Our review of his testimony initially reveals that the line of questioning pursued by defense counsel with this witness was related to the victim's reputation for truthfulness and honesty and that defense counsel specifically instructed this witness to limit his comments to this subject matter. Although this witness spontaneously and unresponsively answered "Hooker" when defense counsel asked him what was the victim's reputation as to truthfulness and honesty, it is apparent that the line of questioning was not undertaken *179 to establish the victim's reputation for chastity.

Furthermore, defense counsel did not object to any of the rulings of the trial court made in connection with this witness.

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