State v. Landry

359 So. 2d 99
CourtSupreme Court of Louisiana
DecidedMay 22, 1978
Docket61087
StatusPublished
Cited by7 cases

This text of 359 So. 2d 99 (State v. Landry) 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. Landry, 359 So. 2d 99 (La. 1978).

Opinion

359 So.2d 99 (1978)

STATE of Louisiana
v.
Billy J. LANDRY.

No. 61087.

Supreme Court of Louisiana.

May 22, 1978.
Rehearing Denied June 15, 1978.

*100 J. Minos Simon, J. Minos Simon, Ltd., Lafayette, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appellee.

DIXON, Justice.

On December 7, 1973 at approximately 10:20 p.m. a man drove up to a fireworks stand in Scott, Louisiana. He forced the woman attendant, who was then six months pregnant, into his car at gunpoint and drove off to a small cabin-like house. There he raped her. The man then drove the victim back to Scott and released her. The defendant, Billy Landry, was arrested early the next morning. He was thereafter indicted for aggravated rape, tried before a jury and found guilty as charged. He was sentenced to serve twenty years imprisonment at hard labor. On appeal the defendant relies on five arguments on assignments of error for reversal.

Assignments of Error Nos. 1 and 2

Through these assignments the defendant contends that the State improperly used a statement made by the defendant after his arrest for impeachment purposes.

At trial Billy Landry testified in his own defense. According to his testimony, he left his work as manager of a mobile home business on the night of the offense at approximately 8:00 p.m. He went to a nearby store for groceries, then returned home and began preparing his supper. At around 9:00 p.m. he telephoned his wife, who was then living in New Iberia, and talked to her for approximately one hour. He then went to his employer's room and asked him if he wanted to share the supper he had prepared. The employer told the defendant that he had already eaten so the defendant again returned to his room. He changed shoes and jogged approximately two miles to the Anchor Lounge, arriving at approximately 10:15 p.m. He stated that he had two drinks at the lounge before he jogged back home and went to bed.

On cross-examination the prosecuting attorney attempted to impeach defendant's credibility through use of inconsistent statements made by the defendant to a police officer at the time of the arrest.

Defendant first argues that the State violated the mandate of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), by asking the defendant: "You didn't tell him (Deputy Barnett) about the Anchor Lounge. Is that correct?"

Defendant's reliance on Doyle v. Ohio, supra, is misplaced. In that case defendants Doyle and Wood were arrested for selling marijuana to an undercover agent. They were advised of their Miranda rights and apparently invoked those rights after the arrest. At trial the defendants offered an exculpatory version of the events which led to their arrests. In an attempt to impeach their credibility at trial, the prosecutor asked them why they had not offered their explanation to the police officer at the time of the arrest. The United States Supreme Court reversed their convictions, holding:

*101 ". . . the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.. . ." 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98.

In the present case the prosecutor was not making use of the defendant's silence after arrest. After the defendant was arrested he was advised of his rights, but he chose not to exercise them. Instead, he gave Deputy Barnett a version of his actions on the night of the offense which was inconsistent with that offered at trial. Specifically, according to Barnett's notes, defendant stated that he snacked for supper then retired shortly after 10:00 p. m.— the time at which he testified that he was jogging to the Anchor Lounge and having a couple of drinks.

The prosecutor's question at trial was a proper inquiry into the inconsistency between his statements. In addition, the question was proper cross-examination, because on direct examination defense counsel propounded the identical question, and the defendant responded that he had told Deputy Barnett about the trip to Anchor Lounge. The State, armed with Barnett's notes on the defendant's statement, had the right to question this assertion.

Defendant next argues that the trial court erred in allowing the State, on rebuttal, to introduce for impeachment purposes testimony of Barnett about defendant's oral statement. Defendant argued that only the contradictory portion of the statement should be admitted.

The State sought to show that defendant did not mention going to the Anchor Lounge in the statement he gave to Barnett after his arrest. This could have been proved by direct questions to Barnett, or, as the State chose, by having Barnett relate the contents of the brief statement given by defendant, describing his actions of the evening. To the extent that the statement purported to account for defendant's actions of the entire evening, it contradicted his trial testimony.

These assignments are without merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in overruling his objections to certain questions asked by the prosecutor during the cross-examination of a defense witness. The witness was the employer of the defendant and the owner of the car allegedly used by the defendant in the perpetration of the offense. The witness testified that on the night of the rape he had gone to the Tonga Isle Lounge with a friend for a few beers, returning home shortly before 10:00 p. m. He stated that he did not hear his car start after he returned home and that it did not appear to have been moved from the time he arrived home until he was awakened by the investigating officers. On cross-examination the State, in an attempt to attack the credibility of the witness, asked the following questions:

"Q. . . . Do you drink?
A. Yes sir.
Q. Drink what, whiskey, beer?
A. Beer.
Q. Beer, been drinking all your life?
A. Yea.
Q. Yea, okay, what kind of drinker are you?
A. I would say moderate.
Q. Moderate?
A. Yea.
Q. Okay, you drink 6, 7, 8 beers every day?
A. No, no.
Q. Do you drink 6 or 7 beers at a time though?
A. Uh, on occasion, yea.
. . . . . .
Q. Do you drink 6 or 7 beers on occasions?
A. Yes sir.
Q. How old are you now, 60?
A. Yes sir.
Q. How long have you been drinking, since you're how old?
. . . . . .
A. 20, 21, or 22.
*102 Q. So about 40 years.
A. Yea.
Q. Okay, during that period of time, have you drunk to excess on many occasions?
A. On some occasions.
Q. Some occasions, okay, now the night you went to Tonga Isle Lounge, that's by Duson, right? About 7 (seven) or 8 (eight) miles away from your home?
A. Yes sir.
Q.

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