State v. Hatcher

Gerald Hatcher was charged in the same information in separate counts with forcible rape in violation of La.R.S. 14:43.1 and aggravated crime against nature in violation of La.R.S. 14:89.1. After trial by jury, he was found guilty of aggravated crime against nature and sentenced to serve ten years at hard labor. The jury was unable to agree on a verdict as to the charge of forcible rape. On appeal, defendant relies on fifteen assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing the state to introduce hearsay evidence at the hearing on the state’s notice of intent to introduce similar acts of defendant to prove system, knowledge or intent. He argues that the introduction of such hearsay evidence deprived him of the right to cross-examine the victims of the alleged prior offenses.

At the pretrial hearing on the state’s notice of intent to introduce similar acts of defendant to prove system, knowledge or intent, an assistant district attorney testified, over defendant’s objection on the ground of hearsay, as to interviews he had conducted with the victims of the three prior offenses and the victim of the offense forming the basis of the instant prosecution. He recited in detail the facts and circumstances of the offenses as described to him by the victims during their interviews. He was cross-examined by defendant. The testimony of the assistant district attorney was the only evidence adduced at the hearing. The trial judge, finding that the offenses exhibited identical modus oper-andi, ruled the evidence of the other crimes admissible.

As a prerequisite to the admissibility of evidence.of other crimes, the state must within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. State v. Prieur, 277 So.2d 126 (La.1973). The state must also make a showing that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered. State v. Prieur, supra. However, a pretrial evidentiary hearing as to whether extraneous other-crime evidence may be admissible is not required. State v. Lukefahr, 363 So.2d 661 (La.1978).

Clearly, the evidence offered by the state at the pretrial Prieur hearing was hearsay. However, we are satisfied that the testimony of the assistant district attorney adequately informed defendant of the nature and factual content of the other-crime evidence sought to be introduced by the state. Moreover, the testimony of the victims of the prior offenses at trial conforms substantially to the details of the offenses as described by the assistant district attorney. . Additionally, this testimony afforded the trial judge a sufficient basis from which he could rule on the admissibility of the other-crime evidence. Accordingly, we are unable to say that the trial judge erred in overruling defendant’s objection to the testimony of the assistant district attorney at this pretrial Prieur hearing.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 5 AND 14

Defendant contends the trial judge erred in overruling his objections to the state’s introduction of evidence of other crime allegedly committed by defendant (Assignments of Error Nos. 2 and 5) and in denying him motion for a new trial grounded on the contention that, even if the evidence of other crimes was relevant to prove forcible rape, it was irrelevant to prove aggravated crime against nature, thereby causing prejudice to defendant (Assignment of Error No. 14).

In order for evidence of similar acts committed by defendant to be admissible under La.R.S. 15:445 and 446, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976). The proof of the other crimes must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Mitchell, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crimes must outweigh any prejudicial effect. State v. Jackson, supra; State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).

At trial, X, a victim of the crimes charged, testified that as she was walking home from school on August 30, 1976, she was approached by defendant who asked her name and age (she was fourteen years old at the time) and whether she would be interested in being in the movies. Defendant informed her that he was a talent scout looking for people to be in movies that were being made in New Orleans. He showed her a newspaper containing a photograph of himself talking to a local disc jockey and an application form to be filled out by those interested in obtaining parts in movies. X indicated that she was interested. He then convinced her to go with him in his car to his aunt’s house. No one was in the house when they arrived. Defendant handed X an application form for her inspection as well as a pad on which he told her to write certain information. Although defendant knew she was fourteen years old at the time, he instructed her to write down that she was twenty, explaining that this would help her get the job. Thereafter, defendant ordered X to remove her clothes and lie on the bed in a certain position in the nude. When she refused, he threatened her with physical violence. As a result, she complied with his instructions. Defendant then produced a camera and ordered her to smile while he photographed her. After the photographs were taken, defendant raped her and forced her to perform an act of fellatio upon him. The victim maintained that she was constantly threatened with physical violence if she refused to comply with defendant’s demands.

After X’s testimony, the victims of three prior forcible rapes or aggravated crimes against nature allegedly perpetrated by defendant testified. This testimony reveals that these prior offenses and the attack upon X occurred within a three-month period of time. All of the victims were teenagers and were attacked in the same general area of New Orleans. Defendant told each victim that he was a talent scout for the movies and that he was going to assist them in obtaining a part in the movies. To substantiate this claim, he showed each victim a newspaper containing a photograph of himself talking to a local disc jockey. Each victim was taken to a secluded place and, by use of force and threats, forced to remove her clothes. Defendant photographed each victim and instructed each to smile while the photographs were being taken. All of the victims were either raped by defendant or forced to perform an act of fellatio upon him. Each victim maintained that defendant constantly employed acts of physical violence and -threats during the occurrences.

The evidence of other crimes introduced by the state described in clear and simple terms occurrences extraordinarily similar in nature to the incident forming the basis of the instant prosecution. We consider that the modus operandi of all the described offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, i. e., they are “signature crimes.”

Next, we must determine whether the evidence of the other crimes- is relevant to prove a fact of consequence to defendant’s innocence or guilt.

Forcible rape is defined as

sexual intercourse without the lawful consent of the victim where the victim is prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believes such resistance would be useless.

La.R.S. 14:43.1. Defendant testified that he knew all of the victims of the alleged forcible rapes or aggravated crimes against nature. He also stated that he had had sexual intercourse with each of the victims but maintained that all had freely and voluntarily given their consent (defendant denied that fellatio was performed with any of the victims) and that no force or threats of physical violence was ever employed by him. Defendant also offered testimony of witnesses who indicated that several of the victims were seen in public places with defendant and appeared friendly and relaxed with him.

Clearly, the testimony offered by defendant sought to contradict the proof offered by the state that sexual intercourse in the instant case had occurred without the lawful consent of the victim where the victim was prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believed that such resistance would be useless. The use of force or threats of physical violence is an essential element of the crime of forcible rape. The evidence of other crimes introduced by the state relative to the force used by defendant in the prior acts strengthens the testimony of the victim in the instant case on that issue. Hence, the evidence of the prior offenses was relevant to prove facts of consequence (use of force) to defendant’s guilt or innocence of the crime of forcible rape in the instant case. State v. Mitchell, supra; see also State v. Cass, 356 So.2d 936 (La.1977).

In addition, we believe the probative value of the evidence of other crimes relating to the use of force in the instant case clearly outweighs any prejudicial effect. Hence, the evidence offered by the state relating to prior offenses committed by defendant was admissible as similar acts pursuant to La. R.S. 15:445 and 446. Accordingly, the trial judge did not err in overruling defendant’s objections to the introduction of such evidence.

Finally, in his motion for a new trial, defendant argues that, even if the evidence of other crimes was relevant to prove forcible rape, it was irrelevant to prove aggravated crime against nature, thereby causing prejudice to defendant.

This contention should have properly been raised in a motion for severance of offenses brought either before trial or during the trial. See La.Code Crim.P. art. 495.1. As defendant did not bring the requisite motion for severance, we consider this contention to have been waived. Cf. State v. Mallett, 357 So.2d 1105 (La.1978).

Assignments of Error Nos. 2, 5 and 14 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in finding the state’s answers to his motion for a bill of particulars sufficient. He argues that he was not adequately informed of the location of the other crimes that he allegedly committed.

Prior to trial, defendant filed a motion for a bill of particulars requesting, inter alia, information as to the time and place defendant allegedly committed the prior offenses. In answer to defendant’s motion for a bill of particulars, the state provided the dates and times of the prior offenses and indicated the locations of the three prior offenses as: “Uptown by the river,” “around Annunciation-Bridge,” and “Terpsichore.” At a pretrial hearing on the bill of particulars, defendant expressed dissatisfaction with the specificity of the locations provided in the state’s answers. The state, in response, indicated that the victims of the prior offenses were unable to provide a more exact description of the locations of the prior offenses. The trial judge ruled the state’s answers designating the general locations of the prior offenses sufficient. Defendant objected to this ruling.

In State v. Prieur, 277 So.2d 126 (La.1973), this court held that, as a prerequisite to the admission of evidence of other crimes, the state must within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. The place of the commission of the offense need not be alleged in the indictment or information unless the place of commission is essential to the offense. La.Code Crim.P, art. 469; State v. Hamilton, 307 So.2d 329 (La.1975).

The place of commission of the offense is not an essential element of the crimes"of forcible rape or aggravated crime against nature. See La.Code Crim.P. art. 469, Official Revision Comment (c). Hence, a designation of the general location of the prior offenses does not constitute insufficient compliance with the guidelines established in State v. Prieur, supra. See State v. Flowers, 337 So.2d 469 (La.1976). Moreover, the victims of the prior offenses were unable to recall the exact locations of the prior offenses and their testimony at trial corresponded to the locations provided by the state in its answers. It is thus apparent that the state did not withhold this information from defendant and then introduce it at trial to defendant’s surprise; rather, the state supplied defendant with all available information concerning the place of commission of the prior offenses. See State v. Cramer, 358 So.2d 1277 (La.1978). Defendant was able to adequately prepare his defense with the information supplied him. Accordingly the trial judge did not err in finding the state’s answers as to locations of the prior offenses sufficient.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in denying his motions for a mistrial grounded on the state’s introduction of evidence of other crimes not mentioned in the Prieur notice.

At trial, Y, victim of a prior offense allegedly committed by defendant, testified that on July 10, 1976, she met defendant who, during the course of a conversation, identified himself as a talent scout for the movies. Defendant showed her a newspaper containing a photograph of himself talking to a local disc jockey and asked her if she wanted to be in the movies. Thereafter, defendant induced her to accompany him to a secluded location and, by use of force and threats of violence, ordered her to remove her clothing and pose for nude photographs. Defendant then forced her to perform an act of fellatio upon him. Y further testified that the next day she again encountered defendant who, by use of force and threats of violence, forced her to have sexual intercourse with him. Defendant moved for a mistrial, contending that Y’s testimony related to evidence of another crime not mentioned in the Prieur notice, i. e., that Y was forced to have sexual intercourse with defendant on a date after that indicated in the Prieur notice. The trial judge denied the motion (Assignment of Error No. 7).

The Prieur notice filed by the state prior to trial indicated the state’s intent to introduce evidence that defendant took Y to a secluded location where “he forced her to pose for nude photographs, undergo sexual intercourse and perform an act of oral copulation upon the person of the defendant.” It is thus apparent that the state’s notice adequately informed defendant of the state’s intent to produce evidence showing that defendant had forced Y to perform acts of sexual intercourse and fellatio. It is true that the notice gives no indication that the acts of sexual intercourse and fellatio occurred on separate days. However, a review of the record convinces us that defendant suffered no prejudice from the introduction of evidence at trial establishing that the acts of fellatio and sexual intercourse occurred a day apart. Defendant fully cross-examined Y as to both offenses. We do not find that defendant was surprised or misled in any way by the evidence adduced at trial concerning the offenses allegedly committed by defendant against Y. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial.

Z, another victim of a prior offense allegedly committed by defendant, testified that defendant informed her that he was a talent scout for the movies and requested her name, address and telephone number. Thereafter, defendant telephoned her and requested that she accompany him to meet a movie producer. When she refused, defendant threatened to kill her little sister if she continued to refuse. At this point, defendant moved for a mistrial, contending that Z’s testimony related to evidence of another crime not listed in the Prieur notice, L e., threats made to Z to kill her sister. The trial judge denied the motion (Assignment of Error No. 8). Thereafter, Z testified that she accompanied defendant in his car to a' secluded location where he forced her to remove her clothes and smile as he photographed her in the nude. He then forced her to have sexual intercourse with him and perform an act of fellatio upon him.

The Prieur notice filed by the state indicated its intent to introduce evidence showing that defendant took Z to a secluded location where “he forced the victim to pose for nude photographs, undergo sexual intercourse and perform an act of oral copulation.”

We first note that Prieur notice is required only where the state intends to offer evidence of other offenses under the exceptions provided in La.R.S. 15:445 and 446. Here, the evidence of defendant’s threat was not introduced for the purpose of any of these exceptions. Rather, the evidence was part of the proof necessary to establish that defendant used force or threats of physical violence to compel Z to have sexual intercourse with him and perform an act of fellatio upon him.' Hence, it was a part of that offense and consequently, no Prieur notice was required. See State v. McDaniel, 336 So.2d 841 (La.1976).

Assignments of Error Nos. 7 and 8 are without merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

Defendant contends the trial judge erred in overruling his objections to certain testimony of state witnesses grounded on the claim that the testimony was hearsay.

The sister of the victim of the instant prosecution testified that, after the occurrence of the crimes charged, the victim came to her home crying and told her that a man had done something to her. When she asked her what had happened, defendant objected on the ground of hearsay. The objection was overruled (Assignment of Error No. 11). The sister then testified that the victim told her that a man had attacked her.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertor. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434.

This court has consistently recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. State v. Elzie, 351 So.2d 1174 (La.1977); State v. Brown, 302 So.2d 290 (La.1974); State v. Pace, 301 So.2d 323 (La.1974). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. State v. Eizie, supra.

The record herein reflects that, after the alleged incident, the victim (age fourteen) rode a bus home, took a bath, and lay down on her mother’s bed for a short period of time. Her mother testified that the victim appeared noticeably upset, but would not respond to the mother’s inquiries. Thereafter, the victim immediately went next door to her sister’s home. Her sister testified that, when the victim arrived at her house, she was upset and crying. The testimony of the victim and the sister indicates that approximately one-half to one hour elapsed from the time the victim first arrived home until she informed her sister of the incident.

We are convinced that the complaint of this fourteen-year-old victim of sex offenses to her sister was spontaneous and made under the immediate pressure of the occurrence. Under these circumstances, the sister’s testimony as to the victim’s statement was properly admitted into evidence.

A second sister of the victim testified that, after learning what had happened to her sister, she drove off on her bicycle in search of defendant. She stated that initially she went to the wrong location, but when her sister told her “where it happened,” she found defendant. Defendant objected on the ground of hearsay. The trial judge overruled the objection (Assignment of Error No. 10). The witness then testified that she returned home and reported defendant’s description to the police.

A well-known rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterance occurred. State v. Drew, supra; State v. Mitchell, 356 So.2d 974 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975). The statement of the victim’s sister was not hearsay because, although it related to what another person told her, it was not offered to prove the truth of the facts recited but rather that the utterance occurred, demonstrating how she was able to locate defendant. Hence, the trial judge did not err in overruling defendant’s objection.

Assignments of Error Nos. 10 and 11 are without merit.

ASSIGNMENT OP ERROR NO. 12

Defendant contends the trial judge erred in sustaining the state’s objection to testimony defendant sought to elicit from a defense witness.

Theresa Watson was called as a defense witness. Ms. Watson testified that she had previously met defendant who told her that he was a talent scout for the movies. At this point, the state objected to any further testimony, contending that it was irrelevant. Defendant then indicated that Ms. Watson would testify that, in addition to informing her that he was a talent scout, defendant instructed her to. write down some information on a pad, and Ms. Watson falsified her age in order to impress defendant. Defendant also indicated that she would testify that she voluntarily allowed defendant to photograph her in the nude. Defendant argued that such testimony was relevant as to the state’s use of other-crime evidence. The trial judge sustained the state’s objection.

La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.

Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977). We are satisfied that neither defendant’s commission of the offenses in question nor the requisite intent would have been negatived by testimony as to what occurred between defendant and Ms. Watson. See State v. Shuff, 198 La. 67, 3 So.2d 278 (1941). Accordingly, the trial judge did not abuse his discretion in sustaining the state’s objection to Ms. Watson’s testimony on the ground that it was irrelevant.

Assignment of Error No. 12 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

DIXON and CALOGERO, JJ., dissent.

Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

. Defendant has neither briefed nor argued Assignments of Error Nos. 4, 6, 9, 13 and 15. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

. La.R.S. 15:445 provides:

In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.

La.R.S. 15:446 provides:

When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

. At the. pretrial Prieur hearing, the assistant district attorney indicated that the acts of sexual intercourse and fellatio had occurred “somewhere around July 9, 1976.” In answer to defendant’s motion for a bill of particulars, the state indicated that the offenses had occurred on July 10, 1976. At trial, during cross-examination, Y admitted that she was uncertain as to the exact dates of the offenses. We note that State v. Prieur, 277 So.2d 126 (La.1973) requires only that the state describe the prior acts or offenses with the general particularity required of an indictment or information. The date or times of the commission of the offenses need not be alleged in the indictment, unless the date or time is essential to the offense. La.Code Crim.P. art. 468. The date of the offense is not an essential element of either the crime of forcible rape or aggravated crime against nature.