The defendant, Charles Napoli, was charged with forcible rape, in violation of La.R.S. 14:42.1, and aggravated crime against nature, in violation of La.R.S. 14:89.1. After a trial by jury, he was convicted of attempted forcible rape and attempted aggravated crime against nature. On the attempted forcible rape charge, he was sentenced to serve 4 years at hard labor in the custody of the Department of Corrections with 1 year of the sentence to be served without benefit of probation, parole, or suspension of sentence. On the attempted aggravated crime against nature charge, he was sentenced to serve 4 years at hard labor in the custody of the Department of Corrections with ½ years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The trial judge ordered that the two sentences be served concurrently.
I. CLOSING ARGUMENTS BY THE STATE
A. FACTS. The victim testified on direct examination that the defendant pulled
On direct examination, counsel for the state propounded the following question to Jerry Callahan, one of the investigating officers:
Counsel for the defendant objected to this question on the ground that it was hearsay. The trial court overruled the objection. Thereafter, the counsel for the defendant asked for a copy of the police report. Argument commenced on this request. The jury was subsequently retired and further extensive argument took place. Ultimately, counsel for the state indicated that he had no further questions of the witness and terminated the direct examination.
During his closing argument, counsel for the defendant, in pertinent part, made the following observations:
Immediately after the close of the defense oral argument, the prosecutor had the police report marked as State Exhibit 22 and offered to introduce it into evidence and show it to the jury if counsel for the defendant had no objection. Counsel for the defendant requested and received the right to make a motion outside of the presence of the jury. The court ruled that the evidence had been closed, that no additional evidence would be introduced, and ordered counsel for the state to proceed with his rebuttal argument.
Counsel for the state commenced his rebuttal argument and made the following statement:
Counsel for the defendant objected to this statement on the basis that "it's improper to argue to the jury when the court rules in my favor, you know." The court ruled that counsel for the state "has the right to argue in response to what you argued in your closing arguments" and overruled the objection. Counsel for the state then made the following statement:
Counsel for the defendant objected to this statement on the basis that "he's arguing something that is not part of the evidence." At this point, the trial judge retired the jury. Counsel for the defendant asked for a mistrial because of the "deliberate effort of the prosecutor to introduce an inadmissible police report during rebuttal argument" and objected to the prosecutor making a response to his argument about the statement given by the victim to Officer Callahan. After an extensive hearing out of the presence of the jury, the trial judge denied the motion for a mistrial, but agreed to give an admonition to the jury concerning the admissibility of the police report. The trial judge also overruled the objection concerning the state's reply to the defense's argument about the statement given by the victim to Officer Callahan.
The trial judge then gave the following admonition to the jury:
Thereafter, in pertinent part, the prosecutor made the following statements to the jury:
B. MISTRIAL. Closing arguments shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. La.C.Cr.P. art. 774. If oral argument goes beyond these limits, it may fall within
C. OBJECTION TO IMPROPER ARGUMENT. The defendant contends that the reply by the state to the remarks by defense counsel in closing argument about the failure of the state to reveal what the victim told the police constituted prejudicial comment on matters not in evidence and requires a reversal.
A conviction will not be reversed because of improper closing argument unless a court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Dupre, 408 So.2d 1229 (La.1982).
In his closing argument, counsel for the defendant stressed the point that the victim did not mention a knife in her prior court testimony. He indicated that he asked several times to see what she said to the police, but did not get to see it. He pointed out that all that was heard was the victim's claim, and that neither he nor the jury knew what she told the police. He further pointed out that "we don't know what happened in October. And they don't want me to know." (Emphasis added).
In his rebuttal argument, the prosecutor pointed out that the objection to the testimony was made by the defense counsel, and that it was the defense counsel who didn't want the jury to know what the testimony was. The prosecutor implied that if the defense counsel wanted the jury to know what was in the report, he should not have objected. He then explained to the jury that he gave defense counsel all the evidence he was required to give under the constitution and law.
Since counsel for the defendant argued to the jury that he was not given an opportunity to find out what statements were given by the victim to the police and that the state did not want him to know what they were, he cannot complain that the state was allowed to reply that it was he who made the objection to the testimony of Detective Callahan about the victim's statement, that it was he who did not want the jury to know, and that the state gave the defense all evidence it was legally required to under the law. Prior to the commencement and at the end of the trial, the trial judge instructed the jury that the statements of the attorneys were not evidence and that the only valid evidence in the case was the testimony of the witnesses and the items introduced into evidence. Considering all of these factors, we cannot say that the trial judge was wrong by allowing the prosecutor to reply to the statements by the defense counsel. Further, we are not thoroughly convinced that the remarks by the state influenced the jury and contributed to the verdict. This assignment of error is without merit.
II. JURY INSTRUCTION ON POTENTIAL PENALTIES
The authorized sentence for forcible rape is imprisonment at hard labor for not less
The Louisiana Supreme Court has ruled that when a penalty imposed by statute is a mandatory one, that the trial judge must inform the jury of the penalty on the request of the defendant. State v. Washington, 367 So.2d 4 (La.1978) (distribution of heroin with mandatory life imprisonment —La.R.S. 40:966[A]).
A. LEGALITY. The defendant contends that his sentences are illegal because portions of them are without benefit of probation, parole, or suspension of sentence and that such is not authorized on an attempt verdict, citing State v. Green, 391 So.2d 833 (La.1980).
In Green, supra, the defendant was found guilty of attempted aggravated rape, in violation of La.R.S. 14:27 and 42, and was sentenced to serve 35 years at hard labor without benefit of parole. The penalty for aggravated rape is life imprisonment without benefit of parole, probation, or suspension of sentence. La.R.S. 14:42. However, the penalty for attempted aggravated rape is prescribed by La.R.S. 14:27(D)(1) as imprisonment "at hard labor for not more than fifty years." This portion of the attempt statute does not provide that imprisonment shall be without parole, probation, or suspension of sentence and, accordingly, the sentence imposed on Green could not be without benefit of parole.
La.R.S. 14:27(D)(1) is applicable when the offense attempted is punishable by death or life imprisonment. La.R.S. 14:27(D)(3) is applicable in the instant case and provides as follows:
The offenses attempted in the instant case require that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence. If the defendant
The trial court sentenced the defendant on the charge of attempted aggravated crime against nature to serve 4 years at hard labor in the custody of the Department of Corrections with ½ years of the sentence to be served without benefit of probation, parole, or suspension of sentence. This is an illegal sentence. La.R.S. 14:89.1 provides that the sentence for aggravated crime against nature is as follows:
This authorized sentence is different from that of forcible rape in that it requires that all of the sentence be without benefit of suspension of sentence, probation or parole, whereas that for forcible rape requires only that at least 2 years of the sentence be imposed without benefit of probation, parole, or suspension of sentence. The entirety of a sentence for attempted aggravated crime against nature must be without benefit of probation, parole or suspension. An illegal sentence may be corrected at anytime by the court that imposed the sentence. La.C.Cr.P. art. 882. The trial court always retains jurisdiction to correct an illegal sentence and is the proper court to do so. La.C.Cr.P. art. 916(3). Accordingly, the sentence imposed on the defendant on the charge of attempted aggravated crime against nature must be vacated and that matter shall be remanded to the trial court for the imposition of a legal sentence.
A review of the testimony of the victim, which was apparently accepted by the jury, indicates that forcible rape, rather than attempted forcible rape, was actually committed. Although the victim did not suffer any permanent injuries from this encounter, she was bruised, scratched, and threatened with a knife and a gun. The trial judge's reasons for sentence show that the defendant had the following previous convictions: (1) speeding and improper passing, January 22, 1973; (2) speeding, February 5, 1973; (3) violation of a water safety regulation, May 26, 1974; (4) criminal mischief, October 8, 1974; (5) reckless operation of a motor vehicle, 1974; (6) simple battery, 1977; and (7) disorderly intoxication in Florida, 1979.
Because the evidence indicates that a rape was actually committed and since the sentence imposed is in the lower range of
For the foregoing reasons, the defendant's convictions of attempted forcible rape and attempted aggravated crime against nature and his sentence on the charge of attempted forcible rape are affirmed. The sentence imposed on the charge of attempted aggravated crime against nature is vacated, and the case is remanded for resentencing in accordance with law.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART.