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The Court finds beyond a reasonable doubt the defendant is guilty. As the Court in Mc Zeal stated: "The Constitution of the state has provided different tribunals for the trial of capital offenses, offenses necessarily punishable by imprisonment at hard labor, etc., and such procedure necessarily constitutes due process of law, and cannot be changed in any class of cases by a mere act of the Legislature." Id. It follows, therefore, that the defendant's right to all of the procedural safeguards which accompany a capital charge remained intact. Here, Lionel Serigne had no jury to render any verdict. On its own motion, on November 22, 2013, the trial court amended its verdict on count 1, finding William Serigne guilty of the lesser and included offense of forcible rape. Rich, 368 So.2d 1083, 1084-85 (La.1979), found reversible error patent when the trial of an alleged August 31, 1977 aggravated rape did not result in a unanimous verdict. Williams, the Court reaffirmed its holding in Rich and rejected an aberrational holding in State v. Carter attempted to distinguish Mc Zeal on the basis that, by the time of trial, the Legislature's September 9, 1977 amendment had become effective; in other words, it attempted to treat the statutory change in punishment as a procedural change with retroactive effect. These necessarily included his right to be tried before a jury of twelve, all of whom must concur to render a verdict, and his right to have quashed an indictment joining this offense with another offense not triable by the same mode of trial. A.), sexual battery on or about October 31, 2004 (B. On September 28, 2011, the State moved to amend both of the indictments. Also in 2010, William Serigne was indicted on three charges, aggravated rape during the year 1981(D. The defendants filed various motions including Motions to Quash and Motions for Bills of Particular.
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.
The sexual contact finally culminated by the defendant forcefully holding the victim with two hands and placing down hard enough to allow his penis to penetrate her vagina.
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 defendant turned 17 years of age on March 22, 1983.
The court finds beyond a reasonable doubt that after the defendant turned 17 years of age he committed a sexual act involving vaginal penetration upon the victim, D. The victim did not give her consent to the sexual intercourse and her resistance to the penetration was overcome by force of the physical actions of the defendant on the day of the rape and by the years of the defendant overcoming her with force making sure the victim knew her resistance to any and all sexual acts would do no good.