STATE v. DUPRE

LEMMON, Justice.*

This is an appeal from a conviction of attempted aggravated rape and a sentence of 50 years imprisonment. The principal assignments of error involve the denial of a motion for continuance and the denial of a motion for mistrial based on improper closing argument by the prosecutor.1

Defendant and Richard Dunn abducted a young woman at gunpoint as she entered her automobile in the parking lot of a Baton Rouge shopping center. Defendant then drove the victim's car to a lonely country road in Livingston Parish, threatening on several occasions to kill her and to force her to take drugs. After defendant and Dunn both raped the victim, they forced her to accompany them as they continued to drive around. Defendant eventually departed, leaving the victim in Dunn's company. Dunn brought her back to the site of the initial rape and again raped her before he finally released her. The victim then drove back to Baton Rouge, where she sought medical attention and reported the incident to the police.

Eventually, defendant and Dunn were arrested and were identified by the victim at a line-up. After both confessed, they were indicted by the East Baton Rouge Parish grand jury for aggravated kidnapping and by the Livingston Parish grand jury for aggravated rape.2 The state later amended the indictment to charge attempted aggravated rape.3 Defendant principally relied on the defense of insanity, which was rejected by the jury.4

Denial of Motion for Continuance

Defendant was indicted on June 22, 1976, and counsel was appointed to represent defendant prior to the June 30 arraignment. At an October 25, 1976, hearing on defendant's capacity to stand trial, the court ordered defendant committed to a mental hospital in accordance with a joint stipulation.

In February, 1977, the court ordered that defendant be returned to the Livingston Parish jail. On September 28, 1977, defendant was tried in Baton Rouge and convicted of aggravated kidnapping.

The rape case was set for trial on December 6, 1977. Although the minutes do not reflect the date of the setting for trial, counsel asserted in a motion for continuance, filed on the date of trial, that he was not notified of the prospective trial date until a week before the December 6 date. Counsel contended he did not have adequate time to prepare for trial because defendant was shuffled back and forth to East Baton Rouge Parish in connection with the kidnapping charges and to the East Louisiana State Hospital in connection with proceedings to determine his capacity to stand trial.5

If the assertions by appellate counsel (who did not represent defendant at trial) are accurate, there was indeed a very short period of time between the notice of trial and the date of trial. Nevertheless, trial counsel had been representing defendant for over a year prior to the trial and had made several court appearances in connection with the insanity defense. Therefore, the actual preparation of the insanity defense was ongoing over a period of time, and trial counsel, who was familiar with the medical examinations and treatments, apparently had only to subpoena the experts and their records in order to present this sole defense.

Counsel has not made any specific allegations of prejudice resulting from the denial of the continuance, nor has he shown how the defense or the preparation of evidence was in any way impaired because the case was brought to trial on December 6. When the defendant does not allege specific prejudice, a conviction will not be overturned because of the denial of a continuance, unless the preparation time was so minimal as to cast doubt on the basic fairness of the proceedings. State v. Durio, 371 So.2d 1158 (La.1979).

Here, defendant failed to carry his burden of showing that the trial court abused its discretion in denying the motion for a continuance. See C.Cr.P. Art. 712; State v. Durio, above. Compare State v. Winston, 327 So.2d 380 (La.1976); State v. Benson, 368 So.2d 716 (La.1979). There was no serious dispute as to the identity of the rapist or the facts of the rape. Trial counsel for defendant had ample "preparation time" to develop the insanity defense for the trial which was held more than one year after his appointment following defendant's indictment. The rather short notice of trial, under these circumstances and in the absence of an allegation or showing of specific prejudice, did not amount to a denial of due process, insofar as this record shows.

Denial of Motion for Mistrial

In his closing argument the prosecutor (who is not the prosecutor representing the state in this appeal) assailed the defense of not guilty by reason of insanity. Under the guise of explaining the consequences of such a verdict, he ridiculed the law pertaining to the commitment of an accused to a mental hospital. Interspersed in the prosecutor's reading of the statute were "folksy" comments which were apparently designed to convey the impression that the legislative scheme in practice is a farce.6

When defense counsel belatedly objected at the end of the prosecutor's disparaging remarks about the insanity defense, the trial court sustained the objection and admonished the jury to disregard the prosecutor's comments. No motion for a mistrial was urged. Therefore, these comments present nothing for this court to review. See State v. Williams, 375 So.2d 364 (La. 1979). See also State v. Cumbie, 380 So.2d 1031 (Fla.1980).

Later, in rebuttal argument, the prosecutor characterized defendant's lack of attention to the proceedings as a trick to feign insanity. The prosecutor used a joke to compare defendant's behavior to that of a young soldier who tricked an army psychiatrist into certifying him to be insane, thereby obtaining a discharge.7 The objection following the prosecutor's joke was overruled.8

Although the prosecutor's use of a joke was arguably an acceptable method of illustrating his theory that defendant's lack of attention during the trial was "part of an act" to support his insanity defense, the prosecutor had previously made disparaging remarks about psychiatrists and about legislative and judicial efforts to deal with the complex problem of criminal behavior by insane persons. The joke in all probability was a further effort to demean the legislative scheme. Nevertheless, we cannot say that the story was so prejudicial as to warrant the drastic remedy of mistrial or reversal.

Finally, the prosecutor quoted an editorial writer's comments about the repugnance of the crime of rape.9 The trial court also overruled defense counsel's objection to these comments as an attempt to inflame the jury.

The prosecutor's comments constituted arguments outside the record. Arguments which allude to facts outside of the record are not permitted by C.Cr.P. Art. 774.10 Similarly, while counsel may argue "the law applicable to the case", he should not endeavor to influence the jury's verdict by making the legislative scheme appear ridiculous or overly protective of a defendant's rights (as opposed to society's rights).11 Although this court has admonished prosecutors not to argue outside of the record12 and not to demean the law in closing argument13, we have also repeatedly adhered to the theory that a conviction will not be reversed because of improper closing argument unless this court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. See State v. Prestridge, 399 So.2d 564 (La.1981); State v. Bretz, above.

Since we do not believe the comments contributed to the verdict, we affirm the conviction. Nevertheless, as Chief Justice Dixon pointed out in State v. Michelli, 301 So.2d 577 (La.1974) (dealing with an unrelated issue), there is some danger that trial judges and lawyers, being practical men and women, may misread a rather consistent application of "harmless error" principles to certain types of erroneous rulings involving misconduct as tacit approval by this court of such practices. We here reemphasize that such practices must be avoided and that reversals will be rendered, if necessary to curb misconduct.

We are not unsympathetic to the fact that closing statements are made in the "heat of battle". Some prosecutors (and some defense counsel) are fond of conveying colloquial wisdom to jurors, and they feature themselves (often accurately) as masters of oratory skills. Indeed, a forceful and thought-provoking closing statement by a skillful lawyer is an important tool in convincing a jury that the evidence presented is (or is not) sufficient. Nevertheless, the restrictions imposed by the Legislature (basically confining argument to the law and the facts and to the inferences to be drawn therefrom) are not unreasonable and do not involve undue limitations. Each counsel has ample latitude without extending his comments beyond the bounds of propriety.

In terms of precious judicial time spent retrying cases which (like the present case) fulfill the essential demands of fairness and justice, the reversal of a conviction after a fair trial is generally regarded as too high a price to exact for rigid and unyielding enforcement of Art. 774. Furthermore, a great deal of credit should be accorded to the good sense and fairmindedness of jurors who have heard the evidence and who know what was and what was not proven. In light of these considerations, we have adopted a reasonable standard for review, leaving academic standards of enforcement to the sound judgment of trial judges, as well as to self-restraint which ought to be practiced by the bar. We decline to reject that standard in this case, but we stand ready to do so if prosecutorial misconduct may affect the determination of guilt or if a prosecutor continues a practice of disregarding the statutory limitations on argument.

Defendant's conviction and sentence are affirmed.

DIXON, C. J., concurs.