State v. Murphy

515 So. 2d 558
CourtLouisiana Court of Appeal
DecidedOctober 14, 1987
DocketKA 87 0418
StatusPublished
Cited by8 cases

This text of 515 So. 2d 558 (State v. Murphy) 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. Murphy, 515 So. 2d 558 (La. Ct. App. 1987).

Opinion

515 So.2d 558 (1987)

STATE of Louisiana
v.
Ralph MURPHY.

No. KA 87 0418.

Court of Appeal of Louisiana, First Circuit.

October 14, 1987.

*559 Bryan Bush, Dist. Atty., Baton Rouge, by Brenda Creswell, Asst. Dist. Atty., for plaintiff/appellee.

*560 Office of the Public Defender, Baton Rouge, David E. Stanley, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

ALFORD, Judge.

Defendant, Ralph Murphy, was charged by bill of information with indecent behavior with a juvenile, in violation of La.R.S. 14:81. He pled not guilty and, following trial by jury, was convicted as charged. The trial court sentenced defendant to a term of three years imprisonment at hard labor. Defendant appeals urging nine assignments of error.

FACTS

The female child involved lives with her mother and stepfather and was four years old at the time of the incident. In 1985 and early 1986, her mother and stepfather worked on Saturdays and left her with a babysitter. On the morning of April 5, 1986, at 8:30 a.m., the mother took the child to the babysitter's (Gwen Murphy's) house. The mother had been bringing her daughter there regularly on Saturdays for approximately ten months. The child's stepfather picked her up at the Murphy's house shortly before 6:00 p.m. and returned home.

That evening, the family ate dinner, the child had her normal playtime and her mother bathed her between 8:00 and 8:30 p.m. and put her to bed. Minutes later, the child started whimpering and crying. Her mother asked what was wrong and the child stated that her "tee-tee" hurt because Mr. Ralph (her name for the defendant who is Gwen Murphy's husband) had been fooling with it. When questioned by her stepfather, the child related that Mr. Ralph stuck his finger in her "tee-tee." The mother looked at the child's vaginal area and observed redness, but no abrasions or blood. The mother telephoned several organizations for advice and then notified the police.

Sergeant Stan Easley with the Baker Police Department responded to the complaint at 10:07 p.m. and took their statements. He related the information to Detective Jesse Bourgoyne, who visited the family's residence the next evening. Pursuant to Detective Bourgoyne's suggestion, the parents took the child to the Baker Police Department that night. At the station, Detective Bourgoyne interviewed the child and then took a taped statement from her. This statement duplicated the story she had told her parents. Based on the information provided by the child, a warrant was issued for defendant's arrest.

Defendant was telephoned in connection with the warrant, and he voluntarily went to the police station. Detective Bourgoyne advised defendant of his Miranda rights, and defendant signed a waiver of the same. Detective Bourgoyne then specifically advised defendant what the charges were against him.

Detective Bourgoyne testified at trial concerning several statements made by defendant at the station. Defendant stated that he was "very much attracted" to the child and that he kissed on her and tickled her "all over." He stated that he had grabbed her leg, and she jumped around so much that he could have touched her vaginal area. Defendant maintained that, if he did, it was unintentional.

Defendant testified on his own behalf at trial. He denied making these exact statements to Detective Bourgoyne, except for the assertion that any touching of the child's vaginal area was unintentional. He maintained that, on the day the alleged offense occurred, he left town at 7:30 a.m., before the child arrived at his house. He did not return until approximately 5:50 p.m., shortly before the child's stepfather picked her up. Defendant testified that, when the stepfather arrived, his wife, two sons, a daughter-in-law, and his granddaughter were present in the living room with him and the child. He denied that the child was sitting on his lap that afternoon.

The child's mother testified that when she dropped her daughter off on that Saturday morning, she went into the house and saw the defendant sitting in his recliner chair in the living room. The child's *561 stepfather testified that as he walked up to the open door that evening to pick the child up, he saw the child sitting in the defendant's lap in the recliner. He also stated he did not see anyone else in the room.

DENIAL OF CONTINUANCE

In defendant's first assignment of error, he contends that the trial court erred in refusing to grant his motion for continuance. On the morning of the trial, court-appointed defense counsel made an oral request for continuance in order for defendant to hire a private attorney. The court refused to grant the continuance and proceeded with the selection of the jury.

A motion for continuance must be in writing and allege specifically the grounds upon which it is based. La. Code Cr.P. art. 707; State v. Spencer, 444 So.2d 354 (La.App. 1st Cir.1983), writ denied, 488 So.2d 694 (La.1986). An oral motion for continuance presents nothing for review upon appeal. State v. Penny, 486 So.2d 879 (La.App. 1st Cir.), writ denied, 489 So.2d 245 (La.1986). However, this rule may be disregarded whenever the circumstances arise unexpectedly and defense counsel has no opportunity to prepare a written motion. State v. Penny, 486 So.2d at 888. We find the present situation one in which the standard rule should be applied.

A review of the record shows that the appointed defense counsel was aware that the private counsel defendant had attempted to obtain had refused the case. Since counsel discussed this situation with the prosecutor on the day before trial, counsel had sufficient opportunity to prepare a written motion and could not claim he was surprised by unexpected circumstances. Moreover, a trial court's ruling on a motion for continuance will not be disturbed absent a showing of clear abuse of discretion. State v. Spencer, 444 So.2d at 356. We find no such showing; therefore, this assignment is without merit.

JURY INSTRUCTION ON POTENTIAL PENALTIES

By means of assignment of error number two, defendant argues that the trial court committed reversible error in reading the authorized sentencing provisions contained in LSA-R.S. 14:81 in its opening remarks to the members of the jury venire. Defendant claims that the court's statements may have been construed by the jurors as a comment on defendant's guilt.

Where the sentence is not mandatory and the court has the discretion to impose a sentence anywhere within the statutorily authorized range, the trial judge is not required to charge the jury on the authorized sentence, but may do so in his discretion. See State v. Jackson, 450 So.2d 621 (La.1984). Moreover, defendant failed to enter a contemporaneous objection to the court's remarks to the jury venire. Accordingly, he is prevented from raising such issue on appeal. La. Code Cr.P. art. 841; See State v. Jackson, 450 So.2d at 634. This assignment of error is without merit.

IMPROPER ARGUMENT

In assignment of error number three, defendant urges that the trial court erred in failing to grant an automatic mistrial when the prosecutor, in both her opening and closing statements, expressed her personal belief that defendant was guilty of the crime charged. See La. Code Cr.P. art. 774.

In her opening statement, the prosecutor remarked as follows:

"...

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Bluebook (online)
515 So. 2d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-murphy-lactapp-1987.