State v. Presley

499 So. 2d 465, 1986 La. App. LEXIS 8471
CourtLouisiana Court of Appeal
DecidedDecember 3, 1986
DocketNo. 18164-KA
StatusPublished
Cited by2 cases

This text of 499 So. 2d 465 (State v. Presley) 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. Presley, 499 So. 2d 465, 1986 La. App. LEXIS 8471 (La. Ct. App. 1986).

Opinion

JASPER E. JONES, Judge.

The defendant, Joseph Presley, was convicted by a jury of aggravated rape, violations of LSA-R.S. 14:41, 42.1 He was sentenced to life imprisonment at hard labor without the benefit of parole, probation or suspension of sentence. The defendant appeals the conviction asserting two assignments of error.

We affirm.

FACTS

On March 12,1985, Jennifer Presley, age 9, informed her mother that the defendant, the natural father, had sexually assaulted her. The child was taken that day to see Dr. W.L. Dillard but an examination was deferred until March 14, 1985, due to the emotional condition of the child. On this latter date Dr. Dillard discovered that the lower part of the child’s vagina had been dilated and enlarged in excess of what would be expected for a virginal state but that the hymenal ring, approximately ¾" — ½" from the edge of the organ, had not been broken. Dr. Dillard reported his findings to the, Office of Child Protection of the Department of Health and Human Resources. A subsequent investigation of the child’s allegations resulted in the defendant’s arrest, indictment, conviction, and sentence.

The defendant appeals the conviction and asserts the following two assignments of error:

[467]*467(Assignment of Error # 1) — The court erred in denying defense counsel’s request to be allowed to have the defendant present during questioning of defense witnesses after the witnesses had been sequestered under LSA-C.Cr.P. art. 764.
(Assignment of Error # 2) — The state failed to prove beyond a reasonable doubt that the crime occurred in DeSoto Parish, Louisiana, the venue for the trial.

{Assignment of Error #1) — Did the trial court err in excluding the defendant from participating in questioning his witnesses who were sequestered?

The record shows counsel for the defendant subpoenaed a number of prospective witnesses for trial. One week later, at the voir dire of the potential jurors, counsel for the defendant asked that only the state’s witnesses be sequestered. The court, upon request by the state, placed all witnesses under the rule. Defense counsel then requested the court modify its order to allow the defendant to participate with his attorney in the pretrial direct questioning of the defense witnesses. When the judge asked why the defendant’s presence was necessary counsel responded that the defendant had indicated basically what the potential witnesses would say but that defendant’s presence was needed to ascertain more clearly what their testimony would be as some of the defense witnesses might not be needed. The court ruled that such conduct might constitute a group discussion in violation of the law and denied the request.

Law On Sequestration of Witnesses

Upon request by the state or defendant the court shall order that witnesses ... refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice. LSA-C. Cr.P. art. 764.2 The purpose of the rule of sequestration is to assure that a witness will testify from his own knowledge without being influenced by prior witnesses and to strengthen the role of cross-examination in developing facts. Cf. State v. Jackson, 452 So.2d 1225 (La.App.2d Cir.1984). The trial court is vested with much discretion in modifying a sequestration. State v. Marchese, 430 So.2d 1303 (La.App. 1st Cir. 1983).

Should the defendant have been excluded?

The defendant argues the court’s refusal to modify the sequestration order to permit his presence with his witnesses while his attorney interviewed them prevented his attorney from properly preparing the testimony of the witnesses for trial. This contention has no merit because the defense attorney knew the identity of these witnesses a week before trial and for this reason he could have interviewed them well in advance of trial after full consultation with the defendant. Any poor preparation of the defense witnesses for trial cannot be attributed to the trial judge’s refusal to modify the sequestration order. We further note the defendant makes no specific contention that the refusal of the trial judge to modify the sequestration order affected the testimony of any of his witnesses in any manner which caused him any substantial prejudice.

The defendant also contends that because there had been no decision made that he would take the stand as a witness in his own defense at the time the trial judge refused to modify the sequestration order, that the trial judge erred in refusing to let him participate with his attorney in discuss[468]*468ing with the witnesses their proposed testimony. This contention has no merit because whether or not the defendant was to be a witness at his own trial is not the sole consideration for denying him the right to discuss his case with his witnesses who are under sequestration. One purpose of preventing a witness from discussing the case with others is to assure that the witness will testify only from his own memory uninfluenced by a discussion of the facts with someone else familiar with the case. A discussion of the case by a sequestrated witness with the defendant would create a real possibility that the defendant would influence the testimony of the witness. The trial judge did not abuse his discretion when he refused to modify the sequestration order arid this assignment of error has no merit.

(Assignment of Error #2) — Did the state fail to prove that the crime occurred in Desoto Parish?

Law On Proving Venue in Criminal Trials

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. LSA-C.Cr.P. art. 611.3 The state shall have the burden of proving proper venue beyond a reasonable doubt. LSA-C.Cr.P. art. 615.4 When a defendant alleges the state did not prove venue an appellate court examines the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could reasonably have concluded, beyond a reasonable doubt, the crimes charged did occur in the parish where the trial was conducted. State v. Hayes, 414 So.2d 717 (La.1982).

The defendant argues the central witness who testified as to the occurrence of the crime was the victim and her testimony does not support that element of the conviction.

The record shows the trial was held in Desoto Parish, that the jury was properly selected and accepted by the defendant. The victim testified at trial as follows:

Q. Okay. Now, first of all, can you tell me where you all were living when this happened?
A. Grand Cane.
Q. Grand Cane, Louisiana? Okay. Did you live right in Grand Cane?
A. Yes, sir.
Q. Downtown Grand Cane.
A. There is not a downtown Grand Cane.
Q. There is not a downtown Grand Cane? Okay. Did you know about what time of night this happened?
A. No, Sir.
Q. Well, tell me this. Was it day or was it night?

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Related

State v. Young
902 So. 2d 461 (Louisiana Court of Appeal, 2005)
State v. Presley
542 So. 2d 1171 (Louisiana Court of Appeal, 1989)

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Bluebook (online)
499 So. 2d 465, 1986 La. App. LEXIS 8471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-presley-lactapp-1986.