State v. McCutcheon

633 So. 2d 1338, 1994 WL 86307
CourtLouisiana Court of Appeal
DecidedMarch 11, 1994
Docket93 KA 0488
StatusPublished
Cited by7 cases

This text of 633 So. 2d 1338 (State v. McCutcheon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McCutcheon, 633 So. 2d 1338, 1994 WL 86307 (La. Ct. App. 1994).

Opinion

633 So.2d 1338 (1994)

STATE of Louisiana
v.
William McCUTCHEON.

No. 93 KA 0488.

Court of Appeal of Louisiana, First Circuit.

March 11, 1994.

*1340 Dist. Atty's Office, Livingston, for State-appellee.

Public Defender's Office, Livingston, for defendant-appellant.

Before LOTTINGER, C.J., and CRAIN and LeBLANC, JJ.

LeBLANC, Judge.

William McCutcheon was indicted with aggravated kidnapping, a violation of La.R.S. 14:44. He pled not guilty and not guilty by reason of insanity and, after trial by jury, was convicted as charged. The trial court sentenced him to serve a term of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Defendant has appealed, urging five assignments of error.

FACTS

On November 28, 1990, the victim was abducted while she was on her way to work. At about 3:00 a.m., the victim was traveling on Linder Road in Livingston Parish when she heard a siren. Knowing that she had not been speeding, the victim was concerned. When the other car pulled in front of her and stopped, the victim also stopped her vehicle. The man who was driving the other car, later identified as being defendant, brandished a gun and ordered the victim out of her vehicle. When she refused, the man broke the window to the victim's car, asked about her purse and money, and forced her out of her vehicle. He then handcuffed her hands behind her back and made her get into the passenger side of his car. After he retrieved her purse, he got into the car with his pants unzipped and forced her to perform oral sex on him while he held a gun.

The man then drove the victim to East Baton Rouge Parish. During the trip, the victim was down and unable to see where they were going. When she saw a knife pointed at her, she convinced the man to move it. She also pleaded with the man not to kill her because of her children and grandchildren. Defendant promised her that, if she would do as he said, he would take her either to work or back to her car. When the man finally stopped the car, he made the victim get out of the car, pull down her pants, and lean over the car, as he inserted his penis from behind into her vagina. With the victim crying, the man removed his penis from the victim's vagina, masturbated himself, got into his car, and drove off, taking the victim's purse and leaving her standing there.

The victim was not familiar with her surroundings. She walked to the first house she saw and contacted the authorities. When the police arrived, she gave them a description of her attacker and of his vehicle. In particular, she was able to describe a unusual type of console found in the man's car.

Detective Hollis Haley, with the Livingston Parish Sheriff's Office, investigated the kidnapping. Early in the morning on December 17, a woman who had been traveling on Linder Road reported that someone had attempted to stop her. The description of the vehicle provided by this woman was similar to the description given by the victim of the instant case. After the woman's complaint, two deputies stopped defendant on a side street off Linder Road. When Haley arrived at defendant's car, he observed a Raven pistol in plain view on the floorboard and a knife on the backseat. At the scene of the stop, the victim of the instant case identified the interior of the vehicle as being that of the car in which she had been transported. Haley then arrested defendant and secured a search warrant to search defendant's residence and vehicle. During the search, another knife and gun were found in defendant's *1341 car. Additionally, numerous items belonging to the victim were found in a drawer and under a nightstand in defendant's bedroom.

Haley testified that he did not do a physical lineup after defendant's arrest because the victim had told him she would not be able to identify her assailant. He also did not recall showing defendant to the victim after the arrest. However, the victim testified that she was shown defendant sometime in mid-December. At that time she was not able to identify defendant as being her assailant. At the trial, she identified defendant as being the man who kidnapped and raped her. She also identified items seized from defendant's residence as being her property; and she identified the knife (S-1) which had been seized in plain view from the backseat of defendant's car as being the knife held on her during the trip. Further, she identified a picture of a peculiar handmade console contained in defendant's car as being like the one she saw in the car in which she was abducted.

ALLOTMENT OF CASE

In assignment of error number one, defendant claims the allotment of his case improperly allowed the district attorney to select the judge who would preside over the trial. Defendant relies on State v. Simpson, 551 So.2d 1303, 1304 (La.1989) (on rehearing; per curiam), wherein the Louisiana Supreme Court held that a criminal case allotment system, which allows the state to choose the judge who presides over a criminal case, violates due process.

In the instant case, before the jury was selected, the prosecutor explained that the case originally was allotted to Division "A" and assigned for trial August 10. Because the judge presiding over that division had a conflict with the trial date, the judge moved the trial to July. When one of the state's witnesses (traveling from Canada) had a conflict with the date in July, the state asked the judge to maintain the original trial date. The judge granted the state's request, and the case was transferred to another section of court. The prosecutor explained that the original judge moved the case to another section of court, rather than delaying the trial for a later date, because defendant had filed a motion for speedy trial.

In response to these comments by the state, defendant argued he had been denied the right to a speedy trial. He did not object to the allotment of the case. Thus, defendant did not preserve the issue for appeal. See La.C.Cr.P. art. 841; State v. Wisinger, 618 So.2d 923, 933 (La.App. 1st Cir.), writ denied, 625 So.2d 1063 (1993). Accordingly, he is barred procedurally from advancing this assignment of error on appeal. Furthermore, the record does not establish that the state selected the section of court which presided over the trial. The only information in the record concerning the reallotment of the case is the statement made by the prosecutor before jury selection. According to these comments, the original trial judge moved the case to another section, not the state.

The assignment of error is meritless.

SUFFICIENCY OF SEARCH WARRANT

In assignment of error number two, defendant argues the evidence seized from his residence and car pursuant to a search warrant should have been suppressed because the warrant did not "particularly" describe the items to be seized.

In the motion to suppress, defendant sought the suppression of all evidence on the ground it was unconstitutionally seized. Neither in the written motion nor in arguments before the trial court at the suppression hearing did defendant urge the grounds he now advances in his appellate brief as a basis for suppression of evidence. Thus, he has forfeited the right to appeal the court's denial of his motion to suppress on this ground.[1]*1342 See La.C.Cr.P. art. 703; State v. Wright, 441 So.2d 1301, 1303 (La.App. 1st Cir.1983).

Even if defendant had properly preserved this issue, there would be no merit to his claims.

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Bluebook (online)
633 So. 2d 1338, 1994 WL 86307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccutcheon-lactapp-1994.