
    STATE of Louisiana v. Rickey E. FERNANDEZ.
    No. KA-4737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1986.
    Writ Granted March 26, 1987.
    
      William J. Guste, Jr., Atty. Gen., New Orleans, Daryl W. Bubrig, Sr., Dist. Atty., Pointe A La Hache, Gilbert V. Andry, III, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    William A. Roe, Belle Chasse, for defendant-appellant.
    Before SCHOTT, BARRY and WILLIAMS, JJ.
   SCHOTT, Judge.

The defendant was convicted of aggravated crime against nature in violation of LSA-R.S. 14:89.1 and sentenced to twelve years at hard labor without benefit of parole, probation or suspension of sentence.

On March 29, 1983 the defendant had a fight with his former girlfriend and broke her hand. When her eight year old daughter heard about the incident she told her mother that she had also been “hurt” by the defendant. She said that during an earlier visit with the defendant’s stepdaughter she and the defendant were left alone in his trailer, and he forced her to have oral sex. The mother estimated the incident happened around November 17, 1982.

Defendant and his wife testified that the child, her mother, and several others attended a party at their trailer on November 18, 1982 but the child was never alone with the defendant. Defendant also testified that he and the mother had lived together prior to the child’s birth, that she had told him he was the child’s father, and that she forced the child to lie because of her animosity toward him.

ASSIGNMENTS OF ERROR 1, 2, 3 and 4

By these assignments defendant complains of statements and rulings made by the trial judge during counsel’s voir dire examination of the prospective jurors. Specifically he complains because the judge interrupted him and ruled his statements out of order while he was apologizing to the jurors for being late; because the judge interrupted a lengthy question or statement of counsel and referred to it as a “Fourth of July speech”; and because the judge indicated to the jurors that the prosecutor’s explanation of the law was superior to defense counsel’s with the result that there was a suggestion by the judge that defendant was guilty.

The scope of voir dire examination is within the discretion of the judge. C.Cr.P. art. 786. Nonetheless, defense counsel must be affored an opportunity to probe the minds of the jurors to assist him in exercising challenges. State v. Ford, 489 So.2d 1250 (La.1986). In order to determine whether defendant’s right to a fair voir dire was violated the appellate court must examine the entire voir dire.

While it is arguable that the trial judge afforded less latitude to defense counsel when he began his voir dire than he afforded the prosecutor, as the voir dire went on he allowed defense counsel to question the jurors freely. The transcript as a whole demonstrates that defendant was not deprived of a complete and fair voir dire. As to the specific incidents mentioned above, the judge’s reaction to counsel’s apology for being late and his reference to the “Fourth of July” speech may have been inappropriate and intemperate, but they did not produce reversible error. Coming as they did at the very beginning of the voir dire long before the trial commenced and even longer before the jury began deliberating; and considering the relatively trivial nature of these remarks in the context of a trial in which the defendant was charged with such a serious and shocking offense; these rulings had no effect on the trial’s outcome. As to counsel’s assertion that the judge suggested the defendant was guilty, the record does not support this charge. The judge did curtail counsel’s discourse to the jury on the law but with no suggestion whatsoever as to defendant’s guilt. The judge’s curtailment of counsel’s remarks was a legitimate exercise of the discretion vested in the trial judge to control voir dire. C.Cr.P. art. 786.

ASSIGNMENTS OF ERROR 7 and 8

By these assignments defendant contends the trial court erred by refusing to allow defense counsel to question his own witness about a prior inconsistent statement.

The victim’s mother testified that she had an argument with defendant and he broke her hand the night before her daughter told her about defendant’s attack on her. She also admitted that nine or ten years previously she had lived with him. However, she testified the relationship was “completely over with” and she characterized herself as “friends with him and his wife.” She also admitted she went trawling with him in November, the month when the crime allegedly occurred. At this point she was asked whether she had sex with him when they were out trawling and she denied it. Defense counsel next asked, “Do you recall giving a signed statement to ...”; and he was cut off by an objection by the prosecutor and the court’s sustaining the objection.

Since this witness was called by defendant he was precluded from impeaching her unless he was surprised or she showed hostility toward him. R.S. 15:487. Hostility turns on a showing that the witness’s interest is on the side opposite the party who called her. State v. West, 437 So.2d 256 (La.1983). Under this test there can be no question but that this witness was hostile to defendant. Thus, defense counsel was entitled to impeach her by means of the prior statement. R.S. 15:493 enumerates the steps to be taken when this device is used, and defense counsel was embarking on this procedure when he was cut off. However, R.S. 15:494 provides that it is not competent to impeach a witness as to collateral facts or irrelevant matter.

This witness had not been called by the state which was relying wholly upon the testimony of the victim to prove the case. Defendant’s purpose in calling the witness was to establish that she was so antagonistic toward him that she led her daughter to make this charge against him. If we suppose that the statement (which was not proffered and is not a part of our record) contained an admission by the witness that she did have sex with the defendant around the time of the offense, this would prove she lied when she denied having sex with him at that time. But would this destroy her credibility otherwise? And, if so, how would this help the defendant since he called her as his witness anyway. In the final analysis it is difficult to view the matter of her having or not having sex with defendant in November as anything but a collateral fact or an irrelevancy. Thus, it was properly excluded.

ASSIGNMENT OF ERROR 9

By this assignment defendant contends the trial court committed prejudicial error by allowing a police officer to testify as to what the victim told him about the assault on her. This officer interviewed the child on the afternoon of the day when she reported the assault to her mother. The alleged crime had occurred four months previously.

In State v. Anderson, 450 So.2d 684 (La.App. 4th Cir.1984), writ den. 452 So.2d 696 (La.1984) we examined and discussed at length the admissibility of testimony by a third person of statements made to him by a child-victim. We found that the state failed to prove that this was the child’s first reasonable opportunity to make the complaint or that the complaint was the product of a shocking episode even though the time lapse between the incident and the complaint was four days. In the instant case where the time lapse was four months between incident and complaint and the child was continuously with her mother there is no basis to reach a conclusion unlike Anderson’s. The testimony was inadmissible and should have been excluded.

However, as in Anderson the inquiry does not end here. If the officer’s testimony was merely cumulative of other evidence there is no justification for a reversal of the conviction. For us to conclude that the admission of the statement constituted harmless error we must be able to conclude, beyond a reasonable doubt, that the improperly admitted hearsay did not contribute to the verdict. State v. Banks, 439 So.2d 407 (La.1983).

In the instant case, this child, who was ten years, nine months of age at the time of the trial, was the first and only fact witness called by the state. She gave detailed testimony about the things she was made to do and those defendant did to her. The officer was called as a witness for the defendant and was asked a number of questions about the child’s statement to him which brought her close in time and at the scene of the alleged crime but which stopped short of what happened. On cross examination the prosecutor picked up with the child’s statements to the officer of the details of the attack. Pretermitting the question of whether the defendant had waived his right to object to the prosecutor’s questions once he opened the door to the officer’s statement in the first place, there can be no reasonable doubt that the officer’s statement did not contribute to the verdict. It was a repetition of what the child testified to in person. The jury had to be convinced by the child’s live description of these sordid events. The officer’s testimony added nothing.

We reached the opposite result in Anderson because the child-victim herself admitted that the adults around her had told her how to testify and had rehearsed her testimony a number of times; and because the timing of the hearsay testimony at the trial was the same as in the Banks case. These considerations are not present here. This assignment is without merit.

ASSIGNMENT OF ERROR 12

This assignment concerns this statement by the trial judge during defense counsel’s argument: “If the court made an error, it would be subject to review on appeal.” Although this was an improper, objectionable comment, no objection was made in accordance with C.Cr.P. art. 841; so that it cannot be considered on appeal.

ASSIGNMENT OF ERROR 14

By this assignment defendant argues there was insufficient evidence to convict him of an aggravated crime against nature. He points to the child’s uncertainty about the date and some minor inconsistencies and inaccuracies in her testimony, and argues the jury should have believed him and his wife and not the child. Nonetheless, this child gave a detailed description of acts of cunnilingus and fellatio she was forced to engage in by the defendant. It was within the province of the jury to determine credibility. Our role is to determine whether, viewing the evidence in the light most favorable to the prosecution, the jury could have found defendant guilty beyond a reasonable doubt. State v. Rosiere, 488 So.2d 965 (La.1986). From our review of the testimony we are satisfied that the evidence was sufficients» support the conviction.

ASSIGNMENT OF ERROR 15

By this final assignment defendant contends his sentence was excessive. The record shows that the trial judge considered defendant’s presentence investigation and a medical report on his physical condition; and he enumerated aggravating as well as mitigating factors so that C.Cr.P. art. 894.1 was complied with.' Defendant’s twelve year sentence was three years less than the maximum authorized by R.S. 14:89.1, but it is not disproportionate when compared to other similar cases such as State v. Vanderhoff, 415 So.2d 190 (La.1982) where defendant was sentenced to ten years upon conviction for forcing a nine year old girl to perform oral sex; and State v. Foster, 467 So.2d 1254 (La.App. 2d Cir. 1985) where defendant was sentenced to ten years upon conviction for enticing a young boy to commit oral sex. We have likewise concluded that the sentence was within the discretion afforded the trial judge in sentencing.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

BARRY, J., dissents with reasons.

BARRY, Judge,

dissenting with reasons.

There were several rulings and comments by the court, the totality of which prevented the defendant from having a fair trial.

The defendant argues the trial court erred (a) by depriving him of a complete and fair voir dire; (b) by ruling that the prosecutor’s explanation of the law was superior to that of his counsel; (c) when the judge called his voir dire examination a “Fourth of July” speech. He submits the court indicated he was guilty and the State’s case had more merit.

An accused has a right to a full and complete voir dire examination of prospective jurors and to the exercise of peremptory challenges. La. Const. Art. I § 17. The purpose of the voir dire examination is to determine the qualifications of the prospective jurors by testing their competency and impartiality. State v. Williams, 457 So.2d 610 (La.1984).

The scope of examination of prospective jurors is within the discretion of the trial court. C.Cr.P. Art. 786. However, to determine whether that discretion has been exceeded, the reviewing court must examine the entire voir dire transcript. State v. Ford, 489 So.2d 1250 (La.1986).

The defendant attacks two rulings during voir dire. After the prosecutor made introductory remarks, read and explained the law and questioned prospective jurors, the defense apologized because the defendant was an hour late. He stated: “It is really no one’s fault and please don’t look for someone to blame for us starting late.” The court sustained the prosecutor’s objection responding: “Mr. Roe, this is voir dire and I think you are out of order.”

Defense counsel contends he was attempting to determine whether the prospective jurors were prejudiced against the defendant because of his late arrival, but never asked whether they were prejudiced. The trial court properly sustained the State’s objection.

Defense counsel explained that he would be asking questions in order to ascertain the jurors’ qualifications. He told them to be impartial, that the judge would instruct them as to the law, and that they were not to consider the defendant guilty merely because he was charged. The State objected noting that defense counsel had not asked a single question during his explanation. The court responded:

The Court is going to sustain the objection. Mr. Roe, the Court feels that the instructions as to the law, the charge with (sic) the defendant is charged in this matter, has been explained to the jury by the District Attorney. The Court also feel (sic) that you should have some latitude, Mr. Roe, but the Court also feels that you can influence the jury by statements that you make which are overly extensive in length and that you should restrict yourself to voir dire which properly determines whether a jury is capable of sitting or not in this matter. The Court is going to ask you to restrict your Fourty (sic) of July speech to that extent.

Defense counsel’s motion for a mistrial was denied and the Court continued:

I said that you would be granted some lattitude (sic) but the Court is going to restrict the lattitude (sic) which you are granted in your voir dire and the voir dire consists of asking questions of the jurors to determine whether they are qualified. You ask a question that goes on or you make a statement that goes on for eight or nine minutes and the Court feels that your desertation (sic) or explanation of the law is much more exaggerated than is required on a voir dire.

The defendant argues that the court “deprecated the defendant’s presumption of innocence and ability to present evidence on his own behalf by implying that the District Attorney’s explanation of law was sufficient and superceded defense counsel’s attempt to do the same.” Even though I do not find any suggestion of guilt, the court adopted the State’s explanation of the law and limited the defendant’s voir dire. The jury could have concluded that the defense’s comments were improper or unnecessary.

The defendant contends the Court’s reference to the “Fourth of July speech” prejudiced the jury and that “defense counsel was forced to proceed only superficially towards selection of the jury.” Although the court’s comment did not support a mistrial, C.Cr.P. Art. 770 , it was unwarranted and could have affected defendant’s substantial rights when considered with the other comments. See C.Cr.P. Art. 921.

The defendant contends the trial court erred by refusing to allow questions about a prior inconsistent statement by the victim’s mother. His defense is that the charge was fabricated by her because of personal animosity and he was entitled to attempt to impeach her credibility.

The defense questioned the mother about her contact with the defendant in November, 1982. She admitted that they had an affair eight/nine years earlier, but denied any sexual encounter in 1982 when she was with him on his boat. The defense sought to impeach her testimony but the State’s objection was sustained.

It is not competent to impeach a witness as to collateral facts or irrelevant matters. R.S. 15:494. However, the mother’s personal relationship and contacts with the defendant shortly before this alleged crime has a direct bearing on her credibility since the defense is based on her animosity.

The defendant contends it was error to allow testimony from a police officer on the child’s statement taken four months after the offense because it was not her first complaint.

The defense called the officer and questioned him about specific portions of the statement, i.e., the time, date and location of the offense. The State initially objected on hearsay, but after defense counsel explained his intent to impeach the victim by showing a prior inconsistent statement, the State withdrew its objection. On cross, the State sought to elicit additional details of the assault and the court overruled the objection.

Although Louisiana recognizes a “first complaint” exception to the prohibition against hearsay, there cannot be an unexplained lapse of time between the attack and the complaint, and the utterance must be spontaneous. State v. Middlebrook, 409 So.2d 588 (La.1982).

This child’s statement was not her first complaint and was certainly not spontaneous since there was a four month delay between the attack and the statement. Thus, the officer’s testimony regarding the statement was inadmissible.

The standard of review to determine the effect of improper evidence is whether we can conclude, beyond a reasonable doubt, that the hearsay did not affect the defendant’s substantial rights by contributing to the verdict. C.Cr.P. Art. 921; State v. Banks, 439 So.2d 407 (La.1983).

I am unable to do so. The only evidence of sexual conduct between the child and the defendant was the child’s testimony. There was no physical, medical, or laboratory evidence to support the charge. The officer’s testimony bolstered the child’s recollection of the incident to the extent that it certainly weighed heavily with the jury and contributed to the verdict. The testimony was improperly admitted.

Defendant contends the trial court erred by commenting that its ruling sustaining an objection was subject to review on appeal.

During closing argument defense counsel mentioned the court’s ruling on the mother’s attempted impeachment. The State’s objection was sustained, defense counsel noted his objection, then the court remarked: “If the court made an error, it would be subject to review on appeal.”

Defendant argues that the remark was “so gratuitous, unnecessary and prejudicial as to lead the jury to believe that its responsibility was lessened ... as a result, the defendant was denied a fair trial.”

This comment does not fall within the mandatory mistrial provisions of C.Cr.P. Art. 770 and was not a comment or an opinion as to the facts which is prohibited by C.Cr.P. Art. 772. However, the jury could have reasonably concluded that its decision was insulated from error. The remark was prejudicial.

A charge of aggravated crime against nature involving a child stirs emotions and requires a diligent effort by all parties to proceed with caution. Considering the nature of the charge and any jury’s strong reliance on the trial judge, the court’s demeanor and comments have a heavy influence on the verdict. The above cited erroneous rulings coupled with the court’s prejudicial comments had a cumulative negative effect which, in totality, substantially violated defendant’s right to a fair trial. 
      
      . C.Cr.P. Art. 770 in pertinent part provides: Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge. district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
      
        (1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
      (2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
      (3) The failure of the defendant to testify in his own defense;
      (4)The refusal of the judge to direct a verdict.
     
      
      . C.Cr.P. Art. 921 provides:
      A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.
     