On September 25, 1975 the East Baton Rouge Parish Grand Jury indicted Clarence Willis for aggravated rape, a violation of R.S. 14:42. Since the crime with which defendant was charged was committed on September 13, 1975, the law applicable was that enacted by Act 612 of 1975, which provided a penalty of death in the event of conviction. However, Willis' trial did not
ASSIGNMENT OF ERROR NO. 2
While the voir dire examination of prospective jurors was being conducted the court upheld twenty-eight state challenges for cause. The challenges were based on these jurors' stated inability to find the defendant guilty as charged, even in the event that the state satisfied its burden of proof, in light of the fact that such a finding would lead to the imposition of the death penalty. The defense objected to the dismissal of the prospective jurors for cause, arguing that the death penalty under the aggravated rape statute was unconstitutional.
In arguing this assignment defendant points out that the prospective jurors' attitude toward capital punishment should have been irrelevant because the death penalty was not available at the time of his trial in the event of a conviction on the charged offense. The State concedes that Selman held the mandatory death penalty for aggravated rape constitutionally invalid, but argues that the Selman ruling was not final as of the September 1976 date of Willis' trial, there having been pending at that time a rehearing application which was not denied by the United States Supreme Court until October 12, 1976.
Our law provided at that time, as it does now, for a state challenge for cause in the event a prospective juror in a capital case has conscientious scruples against infliction of capital punishment which would preclude a vote in favor of conviction of the crime charged regardless of the evidence developed at trial, or would prevent an impartial decision as to a defendant's guilt.
As noted hereinabove, the United States Supreme Court determined in Selman, supra, that the death penalty in aggravated rape cases in Louisiana was unconstitutional. That opinion was rendered on July 6, 1976. Rule 58 of the United States Supreme Court pertinently provides: ". . . A petition for rehearing of judgments or decisions other than those denying or granting certiorari, may be filed with the clerk in term time or in vacation, within twenty-five days after judgment or decision, unless the time is shortened or enlarged by the court or a justice thereof.. . ." In Selman, within twenty-five days following rendition of the decision of July 6, 1976, a motion for extension of time within which to file a petition for rehearing was filed by the state and was granted, allowing the state until September 1, 1976 in which to file the petition for rehearing.
However, unlike here in Louisiana, where a decision of this Court upon a criminal appeal becomes final only after a timely filed application for rehearing is denied
In Selman, supra, which was decided on the day of adjournment, the state applied for a stay of mandate at the time that it requested time within which to petition for rehearing. The stay of mandate sought by the state was denied, and the United States Supreme Court's mandate was issued, (prior to the date [October 12, 1976] when the state's application for rehearing was denied), on August 11, 1976. Thus the mandate of the United States Supreme Court in Selman, supra, by which the United States Supreme Court apprised this Court that its judgment in State v. Selman,
The state was allowed twenty-eight challenges for cause to which they were not legally entitled. Coupled with the four peremptory challenges which they also exercised, the effect of the rulings was the exercise by the state of more than the twelve peremptory challenges (C.Cr.P. art. 799) to which they were entitled. The negative implication of the second paragraph of C.Cr.P. art. 800 (see footnote three) is that these erroneous rulings do afford the defendant a ground for complaint.
Inasmuch as the error constitutes a substantial violation of a statutory right we are required to reverse defendant's conviction. C.Cr.P. art. 921; State v. Lemelle, 353 So.2d 1312 (La.1978). Defendant's conviction and sentence are thus reversed and set aside and the case remanded for re-trial.
REVERSED AND REMANDED.