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A.] based on the victim being under the age of twelve. providing that the penalty for aggravated rape was life imprisonment, created a circumstance where only one year of the timespan (1976) charged in the indictment fell into the realm of a capital offense. Hypolite did not involve a question of waiver of a jury. Further, Goodley has not been overturned and thus remains our authority. turns upon the determination of when the offense is alleged to have occurred in the indictment. The Constitution and law of this state require capital/non-capital decisions to be made before a case is tried. The Court finds beyond a reasonable doubt the defendant is guilty. The State argues that the United States Supreme Court's ruling in 1976 declaring the death penalty for aggravated rape unconstitutional, and the 1977 amendment to La. The State therefore argues that the change in the law permits the State to choose between trying the case as either a capital or a non-capital offense. Rather, it dismissed the defendant's argument as to the constitutionality of Louisiana's scheme of allowing non-unanimous jury verdicts in cases where life imprisonment must be imposed. We adhere to the Supreme Court's consistent analysis and review of this issue, which extends from Holmes through Goodley in its determination that La. As Justice Crichton observed, "It is imperitive to note that the bill of information sets the parameters and dictates the mode of trial." State v. In its written reasons for amending the verdict, the trial court stated: The court finds that the testimony of the victim proved that the sexual contact progressed throughout the years and got more severe until it finally reached full sexual penetration. Hunter illustrates the reasoning of such application: Whereas Furman judicially invalidated the application of the death penalty, the Louisiana Legislature's intent that serious crimes (first degree murder, aggravated rape) should be punished by death remained firm, and, therefore, so did its conviction that these serious allegations deserved capital safeguards. The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Consequently, the misjoinder of offenses in this case was not cured or rendered benign by Selman. "[T]he error must be recognized as `prejudicial to the substantive rights of the accused (and) a substantial violation of a ... At the end of the progression of sexual contact, the victim was at least 12 years old and maybe 13 years old and the defendant was 17 years old and possibly 18 years old. 700, 269 So.2d 212, 213-14 (1972) (refusing to ignore constitutional capital case classification provisions simply because Furman was decided; "[t]hose offenses classified as capital before Furman are still classified as capital offenses"). Whatley, 320 So.2d 123, 125 (La.1975) (rejecting defendant's claim that Furman declassified first degree murder from being a capital offense and that he could not be tried as an adult); State v. The capital classification and rules of proceeding were also applied to a 1972 aggravated rape that predated the 1973 criminal code amendments that reinvigorated Louisiana's ability to execute the death penalty post-Furman. Hunter, 306 So.2d 710, 711-12 (La.1975) (Justice Calogero writing and noting the majority's continued adherence to the Holmes rule, id. Post-Furman, the Legislature took steps to make its desired penalty (death) again enforceable. Mc Zeal, 352 So.2d 592, 604 (La.1977), an alleged October 1974 aggravated rape also was deemed subject to the capital rules of proceeding. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict. Therefore, applying the above precedent to the facts of this case, the indictment start date of January 1, 1976, clearly places the charge against Lionel Serigne into the capital case classification. After a bench trial, brothers, Lionel Serigne, Jr., and William Serigne, Sr., were convicted of sex crimes committed against juvenile family members. On April 7, 2010, Lionel Serigne was indicted on a single charge of violation of La. The trial court denied the State's motion to consolidate. when two offenders participated in the act, the second offender being WILLIAM R. [sic]; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R. , to-wit: AGGRAVATED RAPE[.] did commit aggravated rape upon D. .1, to wit: SEXUAL BATTERY, by fondling the genitals of the minor victim, Count 5) ... A(5), which was the sole basis for the defendants being tried together. Both defendants argue on appeal that there was insufficient evidence to convict them. Lionel Serigne was convicted of the aggravated rape of his cousin, D. He was sentenced to serve a total of forty-four years at hard labor without benefit of parole, probation or suspension of sentence. S., who thereafter reported that sex crimes were committed against them by William Serigne, the uncle of B. Being precluded from consolidating the two trials, the State convened a second grand jury and obtained a new indictment on May 30, 2012. A., date of birth December 27, 1970, by having sexual intercourse with D. between October 22, 2004 and November 1, 2004, WILLIAM R. M., date of birth July 25, 1996, in violation of LA. during the years 1983[sic], 1994, 1995, 1996, 1997, 19, WILLIAM R. stated unequivocally that Lionel Serigne and William Serigne did not participate together in connection with the alleged rapes, thus disproving the State's charge pursuant to La. Although the motions were not entitled "Motion to Quash," the re-urged motions to sever nonetheless had the same substantive complaint. A(5), that was not substantiated by the trial testimony. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. A.'s grand jury testimony taken prior to the 2010 indictments and prior to the 2012 indictments. Section 17 and Article 782 specifically state that the jury cannot be knowingly and intelligently waived in a capital case. The requested transcripts were provided to this Court under seal.
This penetration occurred without the consent of the victim and with the victim's resistance being met with force, which force was overcome on this occasion as happened on so many previous occasions. The Court [sic] beyonds [sic] a reasonable doubt the defendant is guilty. The United States Supreme Court's July 6, 1976 invalidation of the death penalty for rape in Selman neither affected this legislative classification nor application of the capital rules of proceeding. Likewise, the waiver of the jury is strictly forbidden in capital cases. Court [sic] 4 before the Court is William Serigne, Sr., charged with a sexual battery pursuant to Louisiana Revised Statute .1 of a minor. See Davies, 350 So.2d at 589 (Selman's invalidation of the death penalty has no effect upon our Legislature's classification of aggravated rape as a capital crime for purposes of Louisiana law.); Mc Zeal, 352 So.2d at 604-05 (rejecting State's position that post-Selman, the alleged 1974 rape became "de-capitalized," and holding capital rules of proceeding apply to crime classified as capital at the time it allegedly occurred); Rich, 368 So.2d at 1084 (accord). Thus, Lionel Serigne's "agreement" to a bench trial was not "knowing and intelligent" and the resulting judge decision is "invalid and illegal." Id.; see Lott, supra; State v. Also, in response to motions in limine filed by defendants regarding the State's use of "other crimes" evidence, the State responded that until its motion to consolidate all matters for trial was granted, it could not state which "other crimes" would be before the trier of fact as part of its case in chief. Therefore, we find the State was bound to follow the rules of procedure in a capital case. The indictment read: [Lionel Serigne] committed aggravated rape upon a juvenile, where the vaginal sexual intercourse is deemed to be without lawful consent of the victim, to-wit: The victim is under the age of twelve years, in violation of 1950 La. M.), and, aggravated incest during the year 1998 (M. The indictment as to the charge of aggravated rape read: [William Serigne] committed aggravated rape upon a juvenile, where the oral sexual intercourse is deemed to be without lawful consent of the victim, to-wit: the victim is under the age of twelve years, in violation of 1950 La. Specifically, the State moved to amend Lionel Serigne's indictment as follows: The State moved to consolidate the indictments for trial. The classification cannot be an after-the-fact assessment. In this case, however, we decline to review the record as to Lionel Serigne for sufficiency of the evidence, as we consider the patent error to be a structural defect, which is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v.