State v. Napoli

428 So. 2d 957
CourtLouisiana Court of Appeal
DecidedFebruary 22, 1983
Docket82 KA 0792
StatusPublished
Cited by13 cases

This text of 428 So. 2d 957 (State v. Napoli) 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. Napoli, 428 So. 2d 957 (La. Ct. App. 1983).

Opinion

428 So.2d 957 (1983)

STATE of Louisiana
v.
Charles NAPOLI.

No. 82 KA 0792.

Court of Appeal of Louisiana, First Circuit.

February 22, 1983.

*958 Ossie Brown, Dist. Atty. by Brett L. Grayson, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

Lewis Unglesby, Baton Rouge, for defendant-appellant.

Before COVINGTON, LANIER and ALFORD, JJ.

LANIER, Judge.

The defendant, Charles Napoli, was charged with forcible rape, in violation of La.R.S. 14:42.1, and aggravated crime against nature, in violation of La.R.S. 14:89.1. After a trial by jury, he was convicted of attempted forcible rape and attempted aggravated crime against nature. On the attempted forcible rape charge, he was sentenced to serve 4 years at hard labor in the custody of the Department of Corrections with 1 year of the sentence to be served without benefit of probation, parole, or suspension of sentence. On the attempted aggravated crime against nature charge, he was sentenced to serve 4 years at hard labor in the custody of the Department of Corrections with ½ years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The trial judge ordered that the two sentences be served concurrently.

I. CLOSING ARGUMENTS BY THE STATE

A. FACTS. The victim testified on direct examination that the defendant pulled *959 a gun and stuck it in her face during the attack upon her and she felt a knife against her neck. On cross-examination, counsel for the defendant brought out that the victim did not say anything about a knife in her testimony given at a "hearing" held in August of 1981.[1]

On direct examination, counsel for the state propounded the following question to Jerry Callahan, one of the investigating officers:

"During the course of your discussion with or interviewing Miss Landry with regard to her alleged assault, did she at any time have occasion to relate to you information with regard to what weapons, if any, her assailant possessed?"[2]

Counsel for the defendant objected to this question on the ground that it was hearsay. The trial court overruled the objection. Thereafter, the counsel for the defendant asked for a copy of the police report. Argument commenced on this request. The jury was subsequently retired and further extensive argument took place. Ultimately, counsel for the state indicated that he had no further questions of the witness and terminated the direct examination.

During his closing argument, counsel for the defendant, in pertinent part, made the following observations:

"I asked the lady specifically yesterday, standing right there, if she remembered testifying in this courtroom a year ago and never saying a word about a knife. She said, yeah, that's true; that she didn't say anything about the knife last year because she didn't think it was important because she never saw it.
. . . . .
"Talk about statements, Mr. Grayson got up here and said stuff. I have yet—I've asked and asked and asked and still haven't seen it and neither have you what was said that day by Miss Landry. All I've heard is what she claims. I don't know what she told the police. You don't either. You don't know if she said knife or didn't say a knife, a holster or no holster. You don't know what—whether that's brand-new. We know it wasn't here a year ago, but we don't know what happened in October. And they don't want me to know."

Immediately after the close of the defense oral argument, the prosecutor had the police report marked as State Exhibit 22 and offered to introduce it into evidence and show it to the jury if counsel for the defendant had no objection. Counsel for the defendant requested and received the right to make a motion outside of the presence of the jury. The court ruled that the evidence had been closed, that no additional evidence would be introduced, and ordered counsel for the state to proceed with his rebuttal argument.

Counsel for the state commenced his rebuttal argument and made the following statement:

"Let's go back when the defense counsel—when I was talking to the detective, Detective Callahan. I sought to ask him some questions about what the victim told him. He objected. He don't want you to know—"

Counsel for the defendant objected to this statement on the basis that "it's improper to argue to the jury when the court rules in my favor, you know." The court ruled that counsel for the state "has the right to argue in response to what you argued in your closing arguments" and overruled the objection. Counsel for the state then made the following statement:

"If he really wanted you to know what she told the police, if he really thought that she had not said anything about a knife or any of those other things that he *960 tries to assert she did not, then all he had to do was let me ask her or he could call—ask the detective did she say anything about the knife when you interviewed her on the 2nd, the 2nd of October—"

Counsel for the defendant objected to this statement on the basis that "he's arguing something that is not part of the evidence." At this point, the trial judge retired the jury. Counsel for the defendant asked for a mistrial because of the "deliberate effort of the prosecutor to introduce an inadmissible police report during rebuttal argument" and objected to the prosecutor making a response to his argument about the statement given by the victim to Officer Callahan. After an extensive hearing out of the presence of the jury, the trial judge denied the motion for a mistrial, but agreed to give an admonition to the jury concerning the admissibility of the police report. The trial judge also overruled the objection concerning the state's reply to the defense's argument about the statement given by the victim to Officer Callahan.

The trial judge then gave the following admonition to the jury:

"I will now admonish you that any reference made prior to the state's rebuttal argument to any offering or additional evidence was improper. It was not a proper comment made by the prosecutor that the subject item of the offering which was held by Mr. Grayson is not admissible in evidence under any circumstances in this case even were it offered during the state's case or the defense case. And you are not to consider it as any evidence in this case. The evidence which you should consider consists of the testimony of the witnesses and of those items which have been introduced into evidence and shown to you. Furthermore, the law does not allow in any trial the additional evidence to be presented after closing argument has begun. So in no event in any trial after closing argument has begun may additional evidence ever be presented to the jury. For that reason, you are instructed to disregard anything which you may have inferred from the state's offer to introduce additional evidence. It was an improper offer. You should disregard it and not consider anything that you feel may or may not be in—whatever it was that's offered. It's not a subject for your concern. It's outside the evidence. Disregard it."

Thereafter, in pertinent part, the prosecutor made the following statements to the jury:

"To return now to the points that the defense counsel raised during his portion of the closing statements. Again, he objected to the evidence, the testimony of Detective Callahan, that we sought to elicit relating to Sharon Landry's having told someone previously, before this date, about a knife.

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State v. Jackson
439 So. 2d 622 (Louisiana Court of Appeal, 1984)
State v. Thomas
439 So. 2d 629 (Louisiana Court of Appeal, 1983)
State v. Napoli
437 So. 2d 868 (Supreme Court of Louisiana, 1983)
State v. Williams
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State v. Montgomery
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Bluebook (online)
428 So. 2d 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-napoli-lactapp-1983.