State v. Spitz

650 So. 2d 271, 93 La.App. 1 Cir. 2070, 1994 La. App. LEXIS 3642, 1994 WL 739216
CourtLouisiana Court of Appeal
DecidedDecember 22, 1994
DocketNo. 93 KA 2070
StatusPublished
Cited by3 cases

This text of 650 So. 2d 271 (State v. Spitz) 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. Spitz, 650 So. 2d 271, 93 La.App. 1 Cir. 2070, 1994 La. App. LEXIS 3642, 1994 WL 739216 (La. Ct. App. 1994).

Opinion

JaCRAIN, Judge.

The defendant, Raymond Spitz, and a co-defendant, Richard Thornberry, were jointly charged by grand jury indictment with two counts of aggravated kidnapping, in violation of LSA-R.S. 14:44, one count of aggravated rape, in violation of LSA-R.S. 14:42, two counts of armed robbery, in violation of LSA-R.S. 14:64, and one count of aggravated crime against nature, in violation of LSA-R.S. 14:89.1. Subsequently, pursuant to the State’s motion to sever, the charges against Thornberry were severed from the original indictment and tried separately.

The defendant pled not guilty and, after a jury trial, was found guilty as charged on all six counts. For the two aggravated kidnapping convictions and the aggravated rape conviction, the defendant received three sentences of life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. For the two armed robbery convictions, the defendant received two sentences of fifty years at hard labor, without benefit of parole, probation, or suspension of sentence. For the aggravated crime against nature conviction, the defendant received a sentence of fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence. The trial court ordered all of the sentences to run concurrently and gave the defendant credit for time served.

Thereafter, the State filed a habitual offender bill of information seeking to enhance the aggravated crime against nature sentence and the two armed robbery sentences. After a hearing, the trial court found the defendant to be a third felony habitual offender. The original aggravated crime against nature sentence and the two armed robbery sentences were vacated; and the trial court resentenced the defendant to sixty-six years at hard labor, without benefit of parole, probation, or suspension of sentence, for each of the two armed robbery convictions, and fifteen years at hard labor, without benefit of parole, probation, or suspension of sentence, for the aggravated crime against nature conviction. The | atrial court again ordered all of the sentences to run concurrently and gave the defendant credit for time served.

The defendant has appealed, alleging three assignments of error, as follows:

1. The trial court erred in permitting the prosecutor to tell the jury venire during voir dire that appellate courts had determined that fellatio is an unnatural sex act.

2. The trial court erred in allowing State Exhibit 73 (a bag containing two revolvers) to be introduced into evidence and shown to the jury over his objections.

3. The trial court erred in enhancing three sentences in the habitual offender proceeding when the underlying convictions arose on a single day from a single criminal episode.

FACTS

On July 31,1991, the victims, a mother and her daughter, were looking at a house for rent located between Abita Springs and Tal-isheek, Louisiana. The victims were approached by two white males, later identified as the defendant and Richard Thornberry. The men, who appeared to have guns in their waistbands, demanded a ride to a nearby location. When they arrived at a trailer in a wooded area of St. Tammany Parish, the men pulled out their guns and tied up the victims. The defendant forced the daughter to perform fellatio on him and then he raped her. Before leaving the scene in the victims’ car, the men gagged the victims and locked them inside the trailer home.

The victims managed to untie themselves, break a window, climb out, and flee to a nearby house, where they telephoned the authorities. Meanwhile, the defendant and Thornberry fled into Mississippi in the vie-[273]*273tims’ car, where they subsequently were arrested.

ASSIGNMENT OF ERROR NO. ONE:

In this assignment of error, the defendant contends that the trial court erred in permitting the prosecutor to tell the jury venire during voir dire that appellate courts had determined that fellatio is an unnatural sex act.

The defendant argues that the jurors, as the triers of fact, should have been left to decide what conduct constitutes unnatural carnal copulation. He further argues that the prosecutor Improperly attempted “to obtain a commitment from the jurors that they would find oral sexual activity as an unnatural carnal copulation without regard to what the evidence might be and without any regard to the experiences of the jurors.”

Initially, we note that the defendant’s allegations are inaccurate. The prosecutor never stated during voir dire examination that fellatio is an unnatural sex act or that fellatio constitutes unnatural carnal copulation. Instead, the prosecutor indicated that Louisiana courts routinely have held that fellatio is a crime against nature. This observation by the prosecutor is a correct statement of the law. Forcing a member of the opposite sex to submit to oral-genital sex has been found to constitute aggravated crime against nature. See State v. Winn, 412 So.2d 1337, 1348 (La.1982). Although the defendant relies upon State v. Pruitt, 449 So.2d 154 (La.App. 4th Cir.), writ denied, 450 So.2d 1309 (La.1984), his reliance thereon is misplaced. State v. Pruitt held that the defendant’s right to present a defense required that he be allowed to present expert testimony concerning whether or not oral sex between a man and a woman is unnatural. State v. Pruitt, 449 So.2d at 156. However, Pruitt involved a situation where the defendant was charged with crime against nature by soliciting heterosexual oral sex from an undercover assistant district attorney posing as a prostitute. See LSA-R.S. 14:89A(2). It is obvious that the holding in Pruitt should be limited to the particular facts contained therein. Furthermore, Pruitt dealt with a purely evidentiary question and in no way changed the substantive criminal law. See State v. Yancy, 465 So.2d 48, 52 (La.App. 4th Cir.), writ denied, 469 So.2d 985 (La.1985).

For the above reasons, this assignment of error is meritless.

ASSIGNMENT OF ERROR NO. TWO:

In this assignment of error, the defendant contends that the trial court erred in allowing State Exhibit 73 (a bag containing two revolvers) to be introduced into evidence and shown to the jury over his objections. Specifically, he contends that a proper foundation was never established. While the defendant does not ^contest the chain of custody, he argues that the guns were linked to him only through some hearsay evidence.

Louisiana Code of Evidence Article 401 provides:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Louisiana Code of Evidence Article 901A provides:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding .-¿that the matter in question is what its proponent claims.

To be admitted at trial, demonstrative evidence must be identified. This identification can be visual, that is, by testimony at trial that the object exhibited is the one related to the case.

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Bluebook (online)
650 So. 2d 271, 93 La.App. 1 Cir. 2070, 1994 La. App. LEXIS 3642, 1994 WL 739216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spitz-lactapp-1994.