ROBERT L. LOBRANO, Justice Ad Hoc.
Defendant Lionel Talbert was charged by grand jury indictment with aggravated rape, a violation of R.S. 14:42, and armed robbery, a violation of La.R.S. 14:64, which occurred on July 27, 1978. On November 6, 1978, defendant pleaded not guilty. His motion to suppress the photographic lineup was denied on December 10, 1980. On May 29, 1981, a unanimous 12 person jury found defendant guilty of aggravated rape. He was sentenced on October 22, 1981 to life
On July 27, 1978 the victim testified that she had just gone to bed when she heard a knock at the front door. She got up, went to the front room, turned on the light, and asked "who is it?" A man's voice responded "Doc". She recognized the voice as belonging to the man who had raped her one month earlier, so she immediately ran back to the bedroom to get her gun. As she was returning with the gun, she heard a loud crash. The front door had been kicked down and was laying in the middle of the living room floor. She remembers hearing several clicking sounds from defendant's gun before it fired once. Terrified for her six year old child who had been sleeping next to her, the victim laid her gun down and told defendant not to enter the bedroom. Defendant told her to come in the living room and lie down on the floor, which she did. He then raped her and took $60.00 in cash from her wallet.
Approximately one month prior, a similar incident had occurred, except on that occasion she voluntarily opened the door after the man identified himself as "Doc". "Doc" (Herman Wright) was a friend of hers and it was not unusual for him to visit her late at night. However, the man at the door was not the man she knew as "Doc". He entered the house, and although he did not have a gun, raped her. He told her he would return and kill her if she told anybody. She explained that she did not report this first incident to the police because she believed she would not be able to prove it was rape since she opened the door voluntarily.
Defendant denies any involvement in the first incident, but does admit to sexual intercourse with the victim on the other occasion. However, he asserts that she consented to have sex with him.
ASSIGNMENT OF ERROR NO. 1
Appellant argues that the trial court committed error in admitting evidence of a prior crime allegedly committed by appellant. This, he urges made it impossible to receive a fair trial.
Generally, evidence of other crimes committed by the defendant is inadmissible due to "substantial risk of grave prejudice to the defendant". State v. Prieur, 277 So.2d 126 (La.1973). However, there are certain exceptions to this exclusionary rule. Under La.R.S. 15:445 and 446,
In the instant case, evidence of defendant's alleged prior rape of the victim was admissible either to prove intent under R.S. 15:445, or under the modus operandi exception to the "other crimes" exclusionary rule.
With respect to intent, it was the defendant who put the question of intent at issue by contending that he only intended to, and did, pay Ms. James to have intercourse with him. He claims that after he kicked the door down, he told her to either give him his money back, or "do what you supposed to do." Normally if the act is proved, there can be no real question as to intent. However, under the facts of this particular case there is a real issue of the defendant's intent to have intercourse without the victim's consent. Defendant's argument that intent is not an issue because he admits to having intercourse with the victim is incorrect. The issue is intent to perform the act without the victim's consent. Evidence of the prior incident is admissible to prove that intent.
We are of the opinion that the evidence is also admissible under the modus operandi exception. Analyzing the evidence in accordance with the pronouncements of State v. Hatcher, supra we find: (1) that there was clear evidence defendant committed the prior rape; (2) that the modus operandi employed by defendant, i.e., identifying himself as "Doc", was so distinctive as to logically say they are the work of the same person; (3) and (4) that the evidence of the prior rape was relevant to show that defendant had intercourse without the victim's consent on the second occasion, and further to prove the defendant's identity;
Therefore, we reject this assignment of error.
ASSIGNMENTS OF ERROR NOS. 2 and 3
By these assignments, defendant contends the trial court erred in allowing the prosecution to question him about prior convictions, and not granting a mistrial. The following testimony by the defendant is pertinent to this issue:
Evidence of a prior conviction is permissible for impeachment purposes as set forth in La.R.S. 15:495, which provides:
Further, this Court has held that the state may cross-examine a witness as to the details of an offense for which the witness was convicted for purposes of establishing the true nature of the offense. State v. Jackson, 307 So.2d 604 (La.1975); State v. Elam, 312 So.2d 318 (La.1975). However care must be taken to avoid prejudice to the rights of the accused by expansive reference to details of a former conviction. State v. Oliver, 387 So.2d 1154 (La.1980).
Defendant maintains that the cross-examination by the prosecutor went beyond the bounds of an aggressive prosecution. He argues that the prosecutor named the victim, the date, and the place the offense occurred, and in so doing prejudiced the jury to such an extent as to deny defendant a fair trial. He asserts that the trial court should have granted a mistrial. We disagree. A review of the questions by the prosecutor and the responses by the defendant convinces us that the trial court was correct in its ruling. The defendant's credibility was under attack, and he consistently failed to reveal a vital element of the crime for which he had been previously convicted. It is apparent to this court that he made every effort to avoid the direct questions of the prosecutor. Had he told the truth when first asked about the felony he was alleged to have intended upon entering the structure, there would have been no need for the prosecutor to go any further in his questioning. However, by failing to be straightforward the prosecutor was obligated to pursue the matter to get to the truth.
Accordingly we find no merit to assignments 2 and 3.
ASSIGNMENT OF ERROR NO. 4
Defendant argues that the mandatory life sentence imposed pursuant to La.R.S. 14:42 was excessive under the circumstances of this case. In support thereof he cites the case of Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) which set forth certain factors to be considered in determining whether the sentence is constitutionally disproportionate to the offense. A similar argument was made in State v. Prestridge, 399 So.2d 564 (La.1981), where this Court stated:
In light of Prestridge, this assignment lacks merit.
Although given no assignment of error, defendant argues in his brief that the pre-trial photographic lineup was so tainted that it rendered the in-court identification of defendant completely unreliable. If there was any error in the identification process, such error was harmless in view of the fact that defendant admitted to having intercourse with the victim.
For the reasons assigned, the conviction and sentence are affirmed.
DIXON, C. J., concurs with reasons.
LEMMON, J., dissents and assigns reasons.
I respectfully concur. "Other crimes" evidence must be relevant to a real issue in the case before it is admissible. "Intent" is not an issue in a rape case. "Modus operandi" is an issue only to prove identification of the offender. The real issue in this case is whether the prosecuting witness consented to the sexual act. Evidence of the prior rape was relevant to this issue.
LEMMON, Justice, dissenting.
The evidence of a prior attempted rape should not have been admitted. When a defendant takes the stand and places his credibility at issue, the fact of a prior conviction may be used in cross-examination to indicate his bad character as to credibility. Here, the fact of a prior conviction was properly admitted. However, the prosecutor's hammering away at the details underlying the former conviction had nothing to do with impeaching defendant's credibility. The sole purpose was to show that defendant had a tendency to commit rape, and the inquiry into the expansive details of the conviction (an inquiry unrelated to credibility) should have been curtailed in order to avoid the overwhelming prejudice which ultimately occurred. See State v. Oliver, 387 So.2d 1154 (La.1980).
This issue involves a basic question of fairness. Since I cannot say that the jury would have convicted defendant of rape without the disclosure that he had attempted a rape once before, I cannot say that he received a fair trial.