State v. Smith

600 So. 2d 745, 1992 WL 103500
Louisiana Court of Appeal·Decided May 13, 1992·No. 23501-KA·Published·Cited by 51 cases

Opinion

600 So.2d 745 (1992)

STATE of Louisiana, Appellee,
v.
Jason Mandell SMITH, Appellant.

No. 23501-KA.

Court of Appeal of Louisiana, Second Circuit.

May 13, 1992.

*747 Hunter, Scott, Blue, Johnson & Ross by Louis G. Scott, Monroe, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Jerry L. Jones, Dist. Atty., Madeleine M. Slaughter, Asst. Dist. Atty., Monroe, for appellee.

Before SEXTON, HIGHTOWER and VICTORY, JJ.

SEXTON, Judge.

The defendant, Jason Mandell Smith, was charged with two counts of aggravated rape, in violation of LSA-R.S. 14:42, and two counts of aggravated burglary, in violation of LSA-R.S. 14:60. The state amended one of the aggravated rape charges to attempted aggravated rape and the amended charge was severed from the original indictment. Defendant was tried by a jury and convicted as charged on the remaining three original charges. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on the aggravated rape charge. On the aggravated burglary convictions, defendant was sentenced to 30 years and 15 years at hard labor. The trial court ordered the three sentences to be served consecutively. On appeal, the defendant asserts three assignments of error; that the trial court erred in denying his motions for severance and for a new trial and that the sentences imposed are excessive. A fourth assignment of error, alleging insufficient evidence to support one of the aggravated burglary convictions, has not been briefed and will therefore be deemed abandoned. State v. Schwartz, 354 So.2d 1332 (La.1978); URCA 2-12.4. Finding none of the remaining assignments of error to have merit, we affirm defendant's convictions and sentences.

On May 19, 1990, at approximately 1:30 a.m., victim J.K. heard her screen door squeak. Expecting her boyfriend, J.K. opened the door to find the defendant, who forced his way inside. The defendant began striking J.K. in the face with his fists and then picked up an iron and struck her in the head. After severely beating J.K., the defendant raped her. The defendant then cut J.K.'s telephone cord with a pocketknife, took at least $100 from her purse, and departed. This incident resulted in defendant's conviction for aggravated rape and the first aggravated burglary conviction.

On June 3, 1990, at approximately 3:00 a.m., the second victim, T.P., awoke to find the defendant in her home. The defendant threw T.P. to the floor, began striking her with his fists, cut her face with a knife, and put his hand into her vagina. T.P.'s husband, who had been asleep in another room, was awakened by his wife's screams and chased the defendant out of the house. This incident resulted in defendant's other aggravated burglary conviction.

MOTION TO SEVER

By this assignment of error, defendant argues that the trial court erred in refusing to grant his motion to sever. Specifically, defendant argues that he was unduly prejudiced by the trial of the May 19 aggravated rape and aggravated burglary charges together with the June 3 aggravated burglary charge. Implicit in defendant's argument is his concession that the May 19 aggravated rape and aggravated burglary charges were properly tried together. We note that the trial court ordered that the attempted aggravated rape charge of June 3 be severed from the other three counts.

Two or more offenses may be charged in the same indictment in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or forming parts of a common scheme, provided that the offenses joined must be triable by the same mode of trial. LSA-C.Cr.P. Art. 493.

In the instant case, the two criminal episodes are of the same or similar character. Each crime occurred at a similar time, in a similar manner, and in the same neighborhood. *748 Testimony revealed that the two crime scenes are approximately six to seven blocks apart. In each case, the crimes occurred during the early morning hours of a weekend some two weeks apart. In each case, the defendant gained unauthorized entry to the victim's home, threw the victim to the ground, and began to beat her. Although T.P. was not raped as J.K. was, but only sexually battered, it may be inferred that this was due to the presence of T.P.'s husband and not due to any intent on the part of the defendant.

Further, the punishment for both aggravated rape and aggravated burglary is necessarily confinement at hard labor. LSA-R.S. 14:42, 14:60. Accordingly, the mode of trial, a 12-member jury, 10 of whom must concur to render a verdict, is the same. LSA-C.Cr.P. Art. 782. The offenses were properly charged in the same indictment under LSA-C.Cr.P. Art. 493.

An accused charged in the same indictment with two or more offenses pursuant to LSA-C.Cr.P. Art. 493 may nevertheless apply for severance of the offenses pursuant to LSA-C.Cr.P. Art. 495.1, which provides:

Art. 495.1. Severance of offenses

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or provide whatever other relief justice requires.

A defendant has a heavy burden of proof when he alleges prejudicial joinder of offenses. State v. Machon, 410 So.2d 1065 (La.1982); State v. Gray, 556 So.2d 661 (La.App.2d Cir.1990). Motions to sever under LSA-C.Cr.P. Art. 495.1 are addressed to the sound discretion of the trial court and should not be disturbed on appeal in the absence of an abuse of discretion. State v. Celestine, 452 So.2d 676 (La.1984); State v. Gray, supra.

A severance is not mandated simply because the respective offenses would not be admissible at separate trials if the defendant is not prejudiced by the joinder. State v. Celestine, supra; State v. Baker, 535 So.2d 861 (La.App.2d Cir.1988).

In determining whether prejudice may result from a joinder of offenses, a trial court should consider whether the jury would be confused by the various counts, whether the jury would be able to segregate the various charges and evidence, whether the defendant would be confounded in presenting his various defenses, whether the crimes charged would be used by the jury to infer a criminal disposition, and whether, especially considering the nature of the charges, the charging of several crimes would make the jury hostile. State v. Washington, 386 So.2d 1368 (La.1980); State v. Gray, supra. A severance need not be granted if prejudice may effectively be avoided by other safeguards. State v. Celestine, supra; State v. Gray, supra.

In the instant case, we find no indication that the jury was confused by the various counts or was unable to segregate the various charges and evidence. The evidence against the defendant was not complex and was presented in an orderly fashion, allowing the jury to segregate the charges and the evidence. The majority of the witnesses testified to either the May 19 crimes or the June 3 crime, but not both. The trial court specifically instructed the jury that it was to consider each of the three counts individually and was to render a separate verdict as to each count. The jury was given and returned separate verdict forms as to each count. Although defendant argues that the number of responsive verdicts for both aggravated rape (eight responsiv

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