State v. Neal

550 So. 2d 740, 1989 WL 100432
CourtLouisiana Court of Appeal
DecidedAugust 23, 1989
Docket20707-KA
StatusPublished
Cited by8 cases

This text of 550 So. 2d 740 (State v. Neal) 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. Neal, 550 So. 2d 740, 1989 WL 100432 (La. Ct. App. 1989).

Opinion

550 So.2d 740 (1989)

STATE of Louisiana, Appellee,
v.
Jeffery Dale NEAL, Appellant.

No. 20707-KA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1989.
Writ Denied January 12, 1990.

*741 Larry D. Jefferson, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., James A. Norris, Jr., Dist. Atty., Charles Brumfield, John P. Spires, Asst. Dist. Attys., for appellee.

Before FRED W. JONES, Jr., NORRIS and LINDSAY, JJ.

FRED W. JONES, Jr., Judge.

Defendant Neal was charged with aggravated rape and aggravated kidnapping. He was first tried on the aggravated rape charge and convicted of sexual battery, and then tried for aggravated kidnapping and found guilty as charged. On the aggravated kidnapping charge, he was sentenced to the mandatory term of life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence, with this sentence to run concurrently with the sentence imposed for the sexual battery conviction. This appeal is from defendant's conviction and sentence for aggravated kidnapping.

The defendant argued four assignments of error.

Factual Context

On October 24, 1986, the victim asked her friend Bud Madison to take her out that evening. He agreed and they dropped the victim's children off at her sister's house. After they left, Madison changed his mind about going out, and the victim got out of the truck and began walking in the neighborhood.

She soon heard someone approaching and was suddenly grabbed from behind by the defendant. He held a knife to her throat, asked her if she "had ever been cut" and told her not to scream. He dragged her to an area behind a vacant house approximately 150 feet off the main highway. The victim told the defendant she would do anything if he wouldn't hurt her. Defendant again threatened to kill her unless she was quiet. He ordered her to undress, forced her to engage in oral sex, and raped her. She testified that she complied with his demands because she was afraid he would kill her.

The victim then asked if she could leave, but the defendant refused, stating that he had a gun and would shoot her if she tried to escape. The victim testified at trial that defendant then initiated a conversation with her, and the idea of her making money for him by prostituting herself was discussed. He told her if she would make money for him in this way he would release her. She testified that she went along with his ideas in order to appease him and to hasten her release. He then allowed her to dress but did not allow her to put on her bra or panties.

They began walking again and defendant led her to a park where he raped her and forced her to engage in oral sex again. They then left the park and headed towards a bar. The defendant told her she was going to prostitute for him, and sent her into the bar alone. Once inside, the victim told the owner of the bar that there was a man outside who was going to kill her.

*742 The police were called. While waiting for the police to arrive, several customers entered the bar, including the defendant Neal. The victim identified him to the bar owner, and she asked him to go back outside. The police arrived, and she identified Neal to them. She went with them to the police department and told them about the rapes. They asked her to retrace the route taken by the defendant and herself, and to point out the locations where she had been raped. They found her bra and panties which she had not put back on after the first rape. They then took her to the hospital for an examination.

When the police arrived at the bar, the defendant was standing around outside. A description of the defendant, and of a white jacket he was wearing, had been given the police over the radio. Neal was wearing a white jacket. The defendant denied having a weapon, but when he was searched the police found a knife in his pocket.

Double Jeopardy

In his first assignment of error, the defendant asserts that the conviction for aggravated kidnapping constitutes double jeopardy and that the trial court erred in denying his motion in arrest of judgment based on these grounds.

A person cannot twice be put in jeopardy for the same offense. U.S. Const. Amend. 5th; La.Const. 1974, Art. 1, § 15; La. C.Cr.P. Art. 591; State v. Knowles, 392 So.2d 651 (La.1980). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court established the following test for determining whether two offenses are the same for purposes of double jeopardy:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not...."

This rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Knowles, supra.

Louisiana also uses the "same evidence" test:
"... If the evidence required to support a finding of guilt of one crime would also have supported a conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all the evidence introduced at trial."

State v. Coody, 448 So.2d 100, 102, 103 (La.1984). State v. Knowles, supra. However, the "same evidence" test does not preclude a prosecution for more than one offense of a defendant who "goes on a crime spree and violates more than one criminal statute within a short time span." State ex rel. Smith v. Phelps, 345 So.2d 446, 450 (La.1977).

The crime of aggravated rape is defined by La.R.S. 14:42, which provides as follows:

A. Aggravated rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
2) When the victim is prevented from resisting the acts by threats of great and immediate bodily harm, accompanied by apparent power of execution.
3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
4) When the victim is under the age of twelve years. Lack of knowledge of the victim's age shall not be a defense.
5) When two or more offenders participated in the act.
B. For purposes of Paragraph (5), "participate" shall mean:
1) Commit the act of rape.
2) Physically assist in the commission of such act.
C. Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit *743 of parole, probation, or suspension of sentence.

The crime of aggravated kidnapping is set forth in La.R.S. 14:44, which provides as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
550 So. 2d 740, 1989 WL 100432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neal-lactapp-1989.