Defendants, Milton Dickinson and John McNemar, were tried pursuant to a four count indictment charging them jointly with the attempted aggravated rapes and aggravated kidnappings of two young women. The jury found both defendants guilty as charged on all four counts. The court imposed on Dickinson consecutive life sentences for the aggravated kidnappings, and two forty year sentences for the attempted aggravated rapes, the two rape sentences to run concurrently with each other and with the first life sentence for aggravated kidnapping. McNemar was given life sentences for each of his aggravated kidnapping convictions and five year sentences for each of his attempted aggravated rape convictions, all four sentences imposed to run concurrently. In seeking reversal of his convictions and sentences, Dickinson argues to this Court seven of the twelve errors assigned in the lower court. In support of his appeal, McNemar urges seventeen of the twenty-three errors asserted on his behalf.
One of the more serious issues presented upon this appeal concerns the claim that the court erroneously allowed joint trial of the two counts charging the February, 1976, kidnapping-attempted rape of one woman with the two counts charging the same offenses against another woman in February, 1977 (Dickinson's assignment one, McNemar's assignments nine and seventeen). Two other serious issues are whether the court improperly restricted the defense's voir dire examination of the prospective jurors (Dickinson's assignment two, McNemar's assignments two and four) and whether the trial judge abused his discretion by denying a recess sought when a subpoenaed defense witness became ill and was unable to appear and testify (McNemar's assignment twenty-four).
Louisiana Code of Criminal Procedure article 493 governs joinder and provides:
The record in this case amply establishes parallels between the two jointly tried criminal episodes sufficient to indicate that the transactions are strikingly similar. Therefore, the question of the propriety of joint trial of charges arising out of similar criminal transactions separated by a year chiefly resolves itself into an inquiry of whether the criminal transactions here are so separated by the passage of time that their character as crimes of the same modus operandi is impaired or destroyed.
Crimes exhibiting identical modus operandi may be tried simultaneously, even in the face of defense objection, when evidence thereof is mutually admissible as "other crimes" evidence, that is, when the
The distinct similarities between the criminal episodes bear heavily upon a seriously disputed issue, identity.
During voir dire, by means of questions the trial judge deemed hypothetical, Dickinson's counsel asked whether, this being a rape case, prospective jurors would ". . . feel like he [defendant] ought to prove it a little bit stronger that it wasn't him" in a situation where the victim and the defendant would both take the stand. Because the inquiry assumed a situation where both victim and accused would testify, the query was ruled improperly hypothetical and defense was precluded from addressing it to other prospective jurors. Counsel for both defendants urge that the court erred when it foreclosed further use of the inquiry which was calculated to provide a basis for the intelligent exercise of the right to challenge for cause and the constitutionally guaranteed right of peremptory challenge.
It appears that the question defense sought to propound was not the kind of hypothetical question our jurisprudence prohibits. In State v. Clark, 325 So.2d 802 (La.1975), it is noted that questions which seek the prospective jurors' opinion concerning evidence to be presented at trial or
In his fourth assignment McNemar outlines another instance of curtailment of voir dire and argues that in connection therewith the court committed reversible error. During voir dire examination of a panel of prospective jurors, when McNemar's counsel was assertedly preparing to delve into an inquiry relating to a prospective juror's kinship with a law officer and the effect that relationship might have on the juror's ability to fairly judge he asked that juror, ". . . you heard the court talk about reasonable doubt. What does reasonable doubt constitute to you? Could you tell us in your own words what reasonable doubt is?" The judge disallowed that inquiry (because it sought to have a prospective juror define a legal principle, when the duty to instruct the jurors as to the law was his).
Regardless of the purpose of defense counsel's inquiry, whether he sought to discover bias flowing from this juror's association with police officers, from personal disagreement with the stringent burden placed upon the state to prove its case, or from some other source, it is clear that a criminal defendant ought to be allowed wide latitude in his attempts to discover jurors' subtle or subconscious attitudes by seeking responses which will reveal nuances felt to bear upon his impartiality and ability to accept the law as given to him. See State v. Hayes, 364 So.2d 923 (La.1978). Nevertheless, McNemar's counsel's straightforward question seeking to have the prospective juror say (albeit in his own words) what constitutes reasonable doubt is not the only way to exercise the right to inquire into a juror's subconscious inclinations or predispositions. Much like the inquiry in State v. Crochet, 354 So.2d 1288 (La.1978), where defense counsel attempted to have prospective jurors express their concept of reasonable doubt in terms of a percentage of proof, an answer to the inquiry had the potential of confusing or misleading those who ultimately would be responsible for trying the case, especially where (as here) the trial judge had not already instructed on reasonable doubt.
Under these circumstances, and because the voir dire examination as a whole reveals that McNemar's counsel was permitted other inquiry in the area of the effect a relationship with a law officer might have on a juror's inclinations, we are not prepared to say that there existed curtailment which undermined the defendant's constitutional rights to voir dire and peremptory challenges. The circumstances of this case are distinguishable from those present in State v. Hayes, supra, where defense sought to explore the subtleties of the jurors' attitudes toward the presumption of innocence only after the judge had explained the legal meaning of the presumption and defense counsel had painstakingly reiterated the legal standard. Language set forth in our opinion in State v. Kelly, 367 So.2d 832 (La.1979) is applicable here: "No explanation of applicable legal principles was given this prospective juror prior to defense counsel's inquiry; at that point the prospective juror was uncounseled, and possibly even unaware of what her role as a juror would be." For the reasons stated, we determine that the assignment lacks merit.
Actually the delay McNemar's counsel sought is properly denominated a recess, it having been sought mid-trial.
Nevertheless, we conclude that the defendant McNemar was not prejudiced by the denial of the motion seeking recess until Beech could be present to testify. We conclude on the basis of the record that McNemar's attorney did not show an actual need for the presence of the witness. While arguing the motion counsel conceded that just the evening before he had notified the court that he no longer intended to call Beech to testify.
Furthermore McNemar's counsel did not establish for the record that Beech's testimony would have materially supported the defense or undermined any element of the state's case. By Beech's testimony McNemar sought to show that Beech appeared in two line-ups with him and that in one of these identification procedures Beech was chosen by a woman who viewed the show-up; such testimony would be of little help when, as here, neither Beech nor McNemar were able to say that the line-up at which this identification of Beech took place was the one viewed by the two women who are the victims in this case. (Because of a cheesecloth-like drop or curtain which separated the stage on which the line-up participants stood from the audience section from whence victims and witnesses viewed those on stage, neither Beech nor McNemar could see the woman said to have identified Beech.) Accepting the showing of defendant McNemar that there were two line-ups in which both he and Beech participated, and in view of the unshaken testimony of the two victims in this case that they viewed only one line-up (which testimony was corroborated by the state's police officer witnesses who participated in the investigation of these crimes), it is not unreasonable to conclude (as even defense counsel apparently did when he decided to forego presenting Beech's testimony) that Beech's testimony would fall far short of establishing that the line-up about which Beech was to testify was that which was viewed by the victims in this case. Accordingly, the trial judge did not abuse the large discretion he has in ruling on a motion for recess. See State v. Charles, 350 So.2d 595 (La.1977). This assignment of error is without merit.
The other assignments presented, which the court has determined are lacking serious
The defense claim that the court erred in denying a mistrial sought when the judge admonished counsel with a threat of contempt is without merit. Mistrial is a drastic remedy warranted only when error substantially prejudices the defendant. The record fails to demonstrate such prejudice flowing from the exchange between the court and counsel which culminated in the threat of sanction. (Dickinson's Assignment No. 3)
The court is asserted to have erred in denying the defense access to taped statements of the victims made prior to trial. A pre-trial conversation between the defense counsel and the district attorney was initially urged to have revealed discrepancies in descriptions of the perpetrators which alone would have cast doubt on the veracity of the victims' trial testimony. However, defense finally conceded that only the tape's contents would reveal whether there was in fact some exculpatory evidence. There was no showing that there were discrepancies such as would mandate the disclosure of the statements by the prosecution. This assignment is without merit. (Dickinson's Assignment No. 7)
The argument that other crimes evidence (evidence of a kidnapping of another woman, apparently not connected with the offenses which are the subject of this appeal) was improperly elicited by the state during cross-examination of Dickinson and during rebuttal is without merit. The evidence was introduced to impeach Dickinson's trial testimony bearing upon a seriously contested issue at trial. Its probative value outweighed its prejudicial effect because it could only properly be used for impeachment purposes and not as substantive evidence to prove the commission of the crime it admitted. In a case of this nature, where credibility is such a crucial issue (as it is conceived to be in most rape cases) and where impeachment is invited by testimony of the defendant, such highly relevant evidence is not erroneously admitted. (Dickinson's Assignments Nos. 10 and 11)
The jury instruction illustrating the legal concept of "anything of value" was not an impermissible comment on the facts of this case. Basing its instructions on the rationale and holding of State v. Felton, 339 So.2d 797 (La.1976) the court instructed that forcing sexual activity through threats for purposes of attaining sexual gratification satisfied the "anything of value" requirement which forms a part of the elements of the crime of aggravated kidnapping. By this instruction the court merely sought to comply with the requirement of Article 802 of the Code of Criminal Procedure that the judge charge the jury as to the law applicable to the case. (Dickinson's Assignment No. 12)
The defense claims that the court erred in granting the state's motion for continuance of McNemar's trial. It is urged that the delay in trial violated the constitutional right to a speedy trial. The court did not abuse its discretion in granting the continuance. The state's interest in continuing McNemar's trial in order that joint trial with Dickinson could be had was entirely legitimate. The delay is not shown to have improperly prejudiced McNemar. (McNemar's Assignments Nos. 1 and 5)
The court did not err in denying McNemar's challenge for cause of a prospective juror whose cousin had been a rape victim some years prior to the trial of this case. Taken as a whole the voir dire examination of the prospective juror amply supports the trial judge's conclusion that she could fairly and impartially serve, notwithstanding her relationship with one who had previously been a victim of the crime of rape. (McNemar's Assignment No. 7)
The trial court is asserted to have improperly admitted into evidence photographs of the apartment at which the rapes occurred. The photographs were relevant evidence in the case of the 1976 rape, notwithstanding they reflected changes in the apartment since the time of that rape (having been taken in 1977), because they corroborated portions of the first victim's
McNemar's argument that the court erred in denying numerous motions for mistrial and severance, predicated on the frequent clashes which occurred between the court and counsel for co-defendant Dickinson, is without merit. Only if these exchanges deprived defendant of a fair trial would they warrant reversal. Our review of the exchanges reveals that they provide no basis for the drastic remedy of mistrial or for the severance sought. (McNemar's Assignments Nos. 3, 14, 18 and 19)
The defense claims that a mistrial and a severance he sought were warranted by Dickinson's counsel's reference to a search of McNemar's apartment. The argument is unavailing. The reference was not to another crime and there was no indication that any evidence was seized as a result of the search. Admonition, had it been sought, may have been in order but the argument that the remark entitled McNemar to a mistrial or a severance is without substantial merit. (McNemar's Assignment No. 20)
For all of the foregoing reasons, the convictions and sentences of the defendants, Milton Dickinson and John McNemar, are affirmed.
CONVICTIONS AND SENTENCES AFFIRMED.