Case Number: 51,781-KA

Judge: Gay Gaskins

Court: STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT

Plaintiff's Attorney: JAMES E. STEWART, SR.
District Attorney

JASON W. WALTMAN
JOSHUA K. WILLIAMS
REBECCA A. EDWARDS
Assistant District Attorneys

Defendant's Attorney: Christopher Hatch

Description: Kurz was born August 25, 1952. He was indicted by grand jury for
the aggravated rape of the male victim,1 who was born on July 7, 1965, and
who testified that he was under the age of 12 at the time of the rapes. The
indictment alleges that Kurz committed the rapes between July 7, 1975, and
July 7, 1977, when the victim was 10 or 11 years old, and the defendant was
approximately 23 or 24 years old. The original indictment was returned
August 20, 2014; the amended indictment was returned that same day, but
was not filed until May 9, 2016. At trial, Kurz was 64 years old and the
victim was 51 years old.
In December 2016, this matter went to trial. The state presented the
testimony of the victim and five other male witnesses who claimed to have

1 Pursuant to La. R.S. 46:1844(W), we do not disclose the name of the victim or the art. 412.2 witnesses, who were themselves victims.
2

been sexually victimized by Kurz. The state also presented the testimony of
James Moore, the detective to whom the victim initially reported the rapes,
as well as Shelly Anderson, the forensic computer expert who testified that
she found child pornography on Kurz’s computer.
Victim’s testimony
The victim was born on July 7, 1965. Kurz is related to the victim
and 12 years his senior.2 The victim identified Kurz at trial. He remembers
seeing Kurz at family gatherings at his parents’ and grandmother’s houses.
These are his earliest memories of Kurz. The victim was four years old
when Kurz touched his genital area (over his clothes) for the first time, in a
bedroom at the victim’s grandmother’s house. Kurz continued this type of
fondling over the years, mostly at family gatherings at the victim’s
grandmother’s or his parents’ houses. At some point, Kurz began fondling
the victim’s genitalia under his clothing; from there, Kurz escalated to
performing oral sex on him. When the victim was older, Kurz had the
victim perform oral sex on him. During this time frame, Kurz initially lived
with the victim’s grandmother, but eventually moved to a trailer several
miles away on Linda Lane.
At the Linda Lane trailer, Kurz anally penetrated the victim
approximately a dozen times, beginning when the victim was 11 years old.
The victim reiterated that he was 11 years old when the anal penetration
began, and remembered this by two markers: he was in elementary school at
the time, and it was “at least a year to a year and half… prior to Elvis’s
death, which was in ’77.”

2 The victim also testified regarding his familial relationship with four of the five article 412.2 witnesses.
3

It was not until the late 1980s that the victim initially revealed what
Kurz had done to him. He first told his parents, and did not seek counseling
or otherwise discuss it with anyone else. When asked how he tried to cope
with Kurz raping and sexually abusing him, he testified:
I pushed it down as far as I could in the back of my mind. It was always there, but it was not a constant thought at that time like it was before when I was younger. I just tried to bury it as deep as I could.

The victim maintained his silence from the late 1980s until 2014,
when he learned that Kurz had been arrested for sexual involvement with an
underage male. This spurred him to “come forward because this had to stop.
This couldn’t go on with any other kids. This could not happen again.” The
victim contacted the Caddo Sheriff’s Office, and eventually gave a recorded
Skype interview to Detective Moore.3
On cross-examination, the defense attempted to use the Skype
interview to discredit the victim’s testimony that he was 11 years old when
Kurz began anally raping him.4 The victim said he did not recall telling
Detective Moore in the interview that he did not remember how old he was
when Kurz anally raped him. Then defense counsel played the portion of
the recording of the Skype interview, starting at approximately 8′54″ into the
interview and ending at approximately 9′36″. Referring to the anal
penetration, Detective Moore asked, “Do you remember how old you were,
about?” The victim responded, “I don’t.” Detective Moore then asked if he

3 The defense introduced this video recording of the interview as exhibit D-1.

4 The defense played for the jury a segment of the Skype interview, which started at 8′54″ (on the tape) of the interview and ended with the victim saying he was definitely under 14 at the time of the anal rape.
4

remembered being “definitely under a certain age when that happened?”
The victim answered, “I was under 14 for sure.”5
After the Skype interview, the victim, in an effort to remember more
details, “relived” Kurz’s rape and abuse of him “a million times.” He
explained that it was during the approximate 2½ years between the Skype
interview and the trial that he recalled that, at the time the anal rape began,
he was in elementary school. Also during that time, he remembered it
beginning at least a year to a year and a half prior to the death of Elvis
Pressley.
On cross-examination, the victim explained that he continued to spend
time with Kurz despite Kurz anally raping him because he trusted Kurz as a
close family member. Additionally, Kurz took the victim fishing, let him
shoot guns, and helped work on the victim’s car.
The victim admitted that he did not remember ever having blood in
his underwear from Kurz anally penetrating him. He also admitted that his
mother washed his underwear at that time, and that he did not think she ever
noticed any blood in his underwear.
The victim also admitted that, prior to disclosing the matter to his
parents in the late 1980s, they had asked him whether he had sexual contact
with Kurz, and he denied it at that time.
APPLICABLE LAW
During the date range alleged in the indictment, aggravated rape was
defined, in relevant part:
Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be

5 Also, earlier in the interview, Detective Moore made the same inquiry, and the victim responded that he was, 10, 11, 12 or something like that.
5

without the lawful consent of the victim because it is committed under any one or more of the following circumstances: … (3) Where the victim is under the age of 12 years. Lack of knowledge of the victim’s age shall not be a defense [.]

La. R.S. 14:42 (as amended by 1975 La. Acts No. 612 §1); State v. Carter,
2014-926 (La. App. 3 Cir. 4/1/15), 160 So. 3d 647, 651-52.
During the time Kurz raped the victim, La. R.S. 14:42 provided a
mandatory death penalty. See, e.g., State v. Selman, 300 So. 2d 467 (La.
1974). However, on July 6, 1976, the U.S. Supreme Court abrogated the
mandatory death penalty provision of La. R.S. 14:42 as cruel and unusual
punishment. Selman v. Louisiana, 428 U.S. 906, 96 S. Ct. 3214, 49 L. Ed.
2d 1212 (1976). On remand, the Louisiana Supreme Court held that “the
appropriate sentence to be imposed upon a valid conviction for aggravated
rape is the most severe constitutional penalty established by the legislature
for a lesser included offense at the time the crime was committed,” i.e.,
attempted aggravated rape. State v. Selman, 340 So. 2d 260 (La. 1976).
At all relevant times, La. R.S. 14:27 defined the crime of “attempt”
and prescribed penalties therefor. However, on September 12, 1975, the
maximum penalty for attempted aggravated rape changed from 20 to 50
years of incarceration at hard labor. La. R.S. 14:27(D)(1), as amended by
Acts 1975, No. 132, § 1.
DISCUSSION
Sufficiency of the evidence
When the defendant challenges the sufficiency of the evidence, “the
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
6

essential elements of the crime [proven] beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781 (1979); State v.
Lynch, 436 So. 2d 567 (La. 1983). This standard, now legislatively
embodied in La. C. Cr. P. art. 821, does not provide the appellate court with
a vehicle to substitute its own appreciation of the evidence for that of the
fact finder. State in Interest of D.R., 50,594 (La. App. 2 Cir. 2/24/16), 188
So. 3d 1116, 1120. Furthermore, the appellate court does not assess the
credibility of witnesses or reweigh evidence. Id.; State v. Smith, 94-3116
(La. 10/16/95), 661 So. 2d 442. A reviewing court must accord great
deference to the fact-finder’s decision to accept or reject the testimony of a
witness in whole or in part. State v. Eason, 43,788 (La. App. 2 Cir. 2/25/09),
3 So. 3d 685, writ denied, 09-0725 (La. 12/11/09), 23 So. 3d 913.
One witness’s testimony, if believed by the trier of fact, is sufficient
support for a requisite factual conclusion, provided it does not bear internal
contradiction or irreconcilably conflict with physical evidence. State in
Interest of D.R. at 1120.
Kurz makes two arguments regarding the sufficiency of the evidence.
First, in his pro se brief, he claims that the state failed to prove that he anally
penetrated the victim. However, the victim unequivocally testified that Kurz
did anally penetrate him; there was no internal contradiction or conflicting
physical evidence on this point. The fact that the victim did not see any
blood in his underwear as a result of the anal penetration constitutes neither
an internal contradiction nor conflicting physical evidence. This assignment
of error lacks merit.
Second, through counsel and in his pro se brief, Kurz argues that the
state failed to prove that he anally penetrated the victim prior to the victim’s
7

12th birthday. In particular, Kurz argues that the victim’s initial statement to
Sgt. Moore contradicted the victim’s trial testimony. In the recorded
interview with Sgt. Moore, the victim initially stated that he could not recall
exactly how old he was at the time of the anal penetration, but he was 10, 11,
12, or something like that, and definitely under the age of 14. At trial, the
victim testified that he was sure that he was 11 years old at the time of the
anal penetration, because in the 2½ years since the initial interview, he had
been trying to recall as many details as possible, and thus now recalled that
he was still in elementary school, at least a year before Elvis Presley died.
There is no internal contradiction in the victim’s testimony regarding his
being age 11 at the time of (at least one of) the rapes, and his testimony does
not conflict with physical evidence. Accordingly, the victim’s testimony
was sufficient to prove that he was age 11 when Kurz raped him.
Admission of five article 412.2 witnesses
Kurz argues that the trial court abused its discretion in admitting five
article 412.2 witnesses. The thrust of his argument is that five witnesses,
each accusing Kurz of molesting him as a juvenile, is too great a burden for
the defense, and created an undue risk of luring the jury into deciding the
case on grounds other than proof of the offense charged.
In relevant part, La. C.E. art. 412.2 states:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
8


Article 412.2, supra, was added to the Louisiana Code of Evidence in 2001,
and was amended in 2004.6
In turn, La. C.E. art. 403 provides: “Although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, or waste of time.” The defendant bears the
burden of proving that he was unfairly prejudiced by the admission of
evidence of other crimes, wrongs, or acts, i.e., that the evidence should be
(have been) excluded pursuant to article 403. State v. Johnson, 15-528 (La.
App. 5 Cir. 12/9/15), 182 So. 3d 378, writ denied, 2016-0028 (La. 2/24/17),
216 So. 3d 61; State v. Vail, 2014-436 (La. App. 3 Cir. 11/5/14), 150 So. 3d
576, writ denied, 2014-2553 (La. 8/28/15), 176 So. 3d 401; State v. Jones,
2003-0829 (La. App. 4 Cir. 12/15/04), 891 So. 2d 760, writ denied, 2005
0124 (La. 11/28/05), 916 So. 2d 140.
A trial court’s ruling on the admissibility of evidence of similar
crimes, wrongs, or acts in a sex offense case will not be overturned absent an
abuse of discretion. State v. Preston, 47, 273 (La. App. 2 Cir. 8/8/12), 103
So. 3d 525. A trial court is vested with much discretion in determining
whether the probative value of relevant evidence is substantially outweighed
by its prejudicial effect. State v. Spratt, 2013-0158 (La. App. 4 Cir.
11/20/13), 129 So. 3d 741, writ denied, 2013-2960 (La. 5/30/14), 140 So. 3d
1173.

6 Initially, article 412.2 applied to the accused’s commission of other “sexual offense[s]”; however, the 2004 amendment removed the phrase “sexual offense[s],” and replaced it with “crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children.”
9

Furthermore, the “harmless error” rule applies to the erroneous
admission of other crimes evidence. State v. Johnson, 94-1379 (La.
11/27/95), 664 So. 2d 94. In this context, the proper analysis for harmless
error review is “to determine whether the guilty verdict actually rendered at
trial was surely unattributable to the erroneous admission of La. C.E. art.
412.2 evidence.” State v. Dale, 50, 195 (La. App. 2 Cir. 11/18/15), 180 So.
3d 528, 537, writ denied, 2015-2291 (La. 4/4/16), 190 So. 3d 1203.
In State v. Spratt, supra at 751-2, the defendant was convicted of the
aggravated rape and aggravated kidnapping of three individual victims. The
trial court allowed five article 412.2 witnesses to testify. Each such witness
recounted being raped by the defendant, and each identified him as her rape
perpetrator at trial. The Fourth Circuit found no error in admitting as
witnesses five prior rape victims of the rape defendant, and noted that this
article 412.2 testimony was probative because it showed a “similar modus
operandi.”
In State v. Jackson, 625 So. 2d 146 (La. 1993), the defendant was
charged with molesting his 7-year-old and 10-year-old granddaughters – by
fondling their breasts and kissing them on the mouth. The court held that the
testimony of the defendant’s three daughters – that the defendant had kissed
them and fondled their breasts when they were between ages 8 and 15 – was
admissible, even though those events occurred 15 to 24 years before the
trial. In doing so, the court reasoned that the granddaughters and daughters
were both members of the defendant’s family, and were similar ages at the
time of the molestations. Id. at 151-2. However, the court excluded
testimony that the defendant had raped one daughter, showed his penis to
another, and had fondled their vaginas. Because of their more serious nature
10

and dissimilarity from the charged acts, the court found that the article 403
balancing test required exclusion. Id. at 152.
In this case, all of the lewd acts attested to by the article 412.2
witnesses are of lesser seriousness than the offense with which Kurz is
charged. Accordingly, Jackson’s rationale for excluding some of the article
412.2 testimony is inapplicable here.
We note preliminarily that all of the article 412.2 witnesses are males,
and they all identified Kurz at trial.
Testimony of four article 412.2 witnesses related to the victim

Three of the four article 412.2 witnesses who are related to the victim
ranged in age from 8 to 13 years old at the time their sexual encounters with
Kurz began, which was as early as 1978 and through 1985. These
witnesses’ experiences with Kurz included reciprocal fondling of genitalia,
performance of oral sex on Kurz, and the use of a sex toy on Kurz’s penis.
One of these witnesses could not recall his age at the time the molestations
began, but remembered Kurz physically picking him up and fondling his
genitalia, and remembered not knowing this was wrong at the time it
happened.
These incidents occurred both in the victims’ homes and at Kurz’s
home, and the pattern usually began at family gatherings or in the witnesses’
homes, with Kurz surreptitiously touching the witness’ penis and or having
the witness touch his. Additionally, Kurz enticed at least two of them to his
residence by offering traditional male recreational activities – e.g., shooting
guns, hunting, or fishing. There he showed at least one of the witnesses
pornography, then reached over and manually stimulated the witness to
ejaculation. Two of the witnesses performed oral sex on Kurz there. One
11

also reported stimulating Kurz’s penis with his hand, and with a sex toy
called a “vibrator.” One witness reported being around 13 or 14 years old
when Kurz stopped molesting him; another stated that he could only
remember that he was under 17 when Kurz stopped molesting him.
Testimony of the article 412.2 witness unrelated to the victim
This witness was 15 or 16 years old when he began spending time
alone with Kurz at Kurz’s residence, approximately three years before the
indictment. They started by doing “normal” things together: Kurz taught
him to drive and how to work on cars; they also shot guns recreationally.
When the witness was 16 years old, Kurz manually stimulated him to the
point of ejaculation multiple times, and once tried to insert his penis in the
witness’s anus, but the witness successfully resisted. However, Kurz was
successful in sticking an object in the witness’s anus.
When this witness was approximately 19 years old, he wanted to stop
having contact with Kurz. However, Kurz continued trying to contact him
by email. Eventually, the witness’s aunt notified the authorities, and Kurz
was arrested. The arrest was publicized in the newspaper, which prompted
the victim and the other article 412.2 witnesses to notify the authorities that
Kurz had also sexually abused them as children. This is when the
investigation culminating in this conviction began.
We hold that the trial court did not abuse its discretion in admitting
the testimony of the article 412.2 witnesses. Their testimony clearly proves
Kurz’s lustful disposition toward children, and demonstrates his pattern of
molesting his young family members at their own houses. It shows that
Kurz had a pattern of enticing boys to his house by offering them traditional
male recreational activities – i.e., letting them shoot guns, taking them
12

hunting or fishing, letting them drive cars, and teaching them to work on
cars. Kurz’s aggravated rape of the victim was a part of this pattern. The
testimony of the article 412.2 witnesses who are related to the victim shows
that Kurz was acting on his lustful disposition toward underage males during
the 1970s and into the 1980s, the time frame during which Kurz abused the
victim. Their testimony also proves that Kurz had a pattern of victimizing
boys in a certain age range, roughly from age 4 to age 17.
The testimony of the article 412.2 witness who is unrelated to the
victim shows that Kurz has a lustful disposition toward children and used
traditional male recreational activities to lure juvenile boys to his house.
This unrelated witness’s testimony provides corroboration of Kurz’s lustful
disposition toward the victim and the other article 412.2 witnesses.
In the charge to the jury, the trial court gave the jury a cautionary
instruction regarding the article 412.2 evidence:
When a prior accusation of sexual assault is alluded to during trial, it is incumbent upon the jury to segregate the prior accusation from the instant charges in evidence. Evidence that the defendant was involved in the commission of an offense or act other than the offenses for which he is on trial is to be considered only for a limited purpose. The purpose[s] for which such evidence may be considered are: whether it demonstrates a disposition towards sexually assaultive behavior, or a lustful disposition toward children. You may consider such evidence for these purposes, but you may not find him guilty of the offense merely because he may have committed another offense or act.

The probative value of the article 412.2 witnesses’ collective
testimony outweighed any risk of unfair prejudice it imposed on Kurz,
especially in light of the above cautionary instruction. Accordingly, this
assignment of error lacks merit.

13

Capital trial procedure
Kurz argues that his trial should have been conducted under capital
trial procedure because the aggravated rape statute provided a mandatory
death penalty at the time of the crime. (However, as stated above, that death
penalty provision was constitutionally invalid). In particular, Kurz asserts
that the jury should have been sequestered and should have been instructed
that, to reach a verdict, they had to be unanimous. He relies on the so-called
“capital classification” jurisprudence, which held that defendants were
entitled to the additional safeguards of capital trial procedure if the statute
under which they were prosecuted provided for the death penalty – even if
that death penalty was constitutionally unenforceable. See, e.g., State v.
Rich, 368 So. 2d 1083 (La. 1979); State v. Lott, 325 So. 2d 576 (La. 1976).
These additional procedural safeguards included sequestration of the jury
and the requirement of jury unanimity to reach a verdict. Id.
Jury sequestration. In State v. Schrader, 518 So. 2d 1024 (La. 1988),
the defendant was charged with murder pursuant to La. R.S. 14:30 as it was
in effect in 1970, which provided a constitutionally unenforceable death
penalty. “Nevertheless,” the Supreme Court stated, “this homicide
prosecution retained for procedural purposes its ‘capital’ classification,” and
“a defendant may take advantage of the ‘classification theory’ to insist on
sequestration under these circumstances,” Id. at 1036, 1037. The court,
however, went on to limit the effects of this fictitious classification.
Specifically, it held that “the jurisprudential presumption of prejudice for
‘capital cases’ does not apply to a ‘capital case’ where the defendant never
faced the prospect of the death penalty and where counsel failed to press the
14

point in the trial court, or object to the lack of sequestration. In the absence
of actual prejudice, this right to sequestration is waived.” Id. at 1037.
In State v. Serigne, 2016-1034 (La. 12/6/17), __ So. 3d __, 2017 WL
6031884, the Supreme Court held that, where the defendant was prosecuted
pursuant to a statute which provided a constitutionally unenforceable death
penalty, the defendant could and did validly waive his right to a jury trial,
despite a defendant’s inability to do so in a “capital case.” The defendants
argued that Schrader “should be narrowly construed as applying only to jury
sequestration (and not any other procedural protections afforded a capital
defendant).” The court rejected that argument, stating, “[i]nstead, we find
Schrader more broadly rejected the ‘capital classification’ jurisprudence.”
Serigne at 7.
The purpose of the additional procedural safeguards that the
legislature prescribed for capital trials is to protect defendants who are
actually facing the possibility of the death penalty. The mere presence of a
constitutionally unenforceable death penalty in a statute does not entitle the
defendant to the heightened protections of a capital trial. Rather, we hold
that a defendant must actually be exposed to the risk of the death penalty in
order to be automatically entitled to jury sequestration. Because Kurz was
not exposed to a potential death penalty, he was not entitled to automatic
jury sequestration. Accordingly, this assignment of error lacks merit.
Furthermore, even if Kurz was entitled to automatic jury
sequestration, this assignment would still be meritless. That is because
Kurz: (1) never faced the possibility of the death penalty; (2) failed to
request sequestration of the jury, and failed to object to the unsequestered
jury; and (3) has not shown any actual prejudice. Schrader at 1037.
15

Unanimous verdict. The applicable legislation clearly invalidates
Kurz’s claim that he was entitled to a unanimous verdict despite not having
been exposed to the risk of the death penalty. Specifically, La. R.S.
14:42(D)(2)(b) provides that where, as here, the district attorney does not
seek a capital verdict, “[t]he provisions of C. Cr. P. art. 782 relative to cases
in which punishment is necessarily confinement at hard labor” (i.e.,
noncapital procedure) “shall apply.”7 In relevant part, La. C. Cr. P. art. 782
provides that “[c]ases in which punishment is necessarily confinement at
hard labor shall be tried by a jury composed of 12 jurors, 10 of whom must
concur to render a verdict.”
The legislature made these amendments in 1997, after the instant
offense, but that does not matter because the amendments are retroactive.
State v. Kinsel, 00-1610 (La. App. 5 Cir. 3/28/01), 83 So. 2d 532, writ
denied, 2001-1230 (La. 3/28/02), 812 So. 2d 641; see also, State v. Kaigler,
2010-1839 (La. App. 1 Cir. 6/10/11), 2011 WL 3244803. Accordingly,
Kurz was not entitled to a unanimous verdict, and this assignment of error is
meritless.
Additionally, the logic of Schrader and Serigne extends to Kurz’s
argument that he was entitled to a unanimous verdict: if he had that right, he
waived it when he waived polling of the jury. Furthermore, because the jury
was not polled, he cannot show prejudice resulting from the trial court’s
instruction that only 10 jurors’ concurrence was necessary for a verdict. For
these reasons as well, Kurz’s argument regarding verdict unanimity lacks
merit.

7 Conversely, if the district attorney does seek the death penalty, the unanimous verdict requirement set forth in article 782 is applicable. La. R.S. 14:42(D)(2)(a).
16


Legality of sentence
The trial court sentenced Kurz to life in prison without parole. Kurz
argues that this sentence is illegal because it is based on a retroactive
application of the 1977 amendment to La. R.S. 14:42. We agree.
The Louisiana Supreme Court “has consistently held that the law in
effect at the time of the commission of the offense is determinative of the
penalty which the convicted accused must suffer.” State v. Sugasti, 2001
3407 (La. 6/21/02), 820 So. 2d 518, 520. The convict must be sentenced
under sentencing provisions in effect at the time of the commission of the
crime. Id.
The amended indictment charged Kurz with one count of aggravated
rape, committed between July 7, 1975, and July 6, 1977. The jury convicted
on this indictment.
Between 1970 and September 11, 1975, La. R. S. 14:27(D) provided:
D. Whoever attempts to commit any crime shall be punished as follows:

(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than 20 years.

Acts 1970, No. 471 §1. On September 12, 1975, that provision was
amended by increasing the maximum period of incarceration to 50 years.
Acts 1975, No. 132 §1.
In 1977, but after July 6 of that year, the legislature amended La. R.S.
14:42 to provide a mandatory life sentence for aggravated rape. Acts 1977,
No. 343 §1. In imposing the life sentence on Kurz, the trial court
17

retroactively applied the 1977 amendment. Because the amendment was
substantive, this was error.
Pursuant to Selman, we resentence Kurz to 50 years of imprisonment
at hard labor under 14:27(D) as amended September 12, 1975. The victim
testified that he was 11 years old when Kurz raped him, and the jury
believed this testimony.8 During that time period, La. R.S. 14:27(D)
provided a 50-year maximum sentence for the attempt of a crime punishable
by death or by life imprisonment.
Limitations upon institution of prosecution
During the date range charged in the indictment, La. C. Cr. P. art. 571
(“article 571”) provided: “There is no time limitation upon the institution
for any crime for which the death penalty may be imposed.”9 We
acknowledge that, after the mandatory death penalty for aggravated rape was
held unconstitutional, article 571could not strictly apply in this case.
However, we reject such a reading of article 571, and hold that it continued
to apply to aggravated rape despite the unconstitutionality of the mandatory
death penalty prescribed for that crime.
This holding gives the effect to article 571 that our legislature
intended and is in accord with jurisprudence. State v. Smith, 2001-1027 (La.
App. 1 Cir. 2/15/02), 809 So. 2d 556, 561-2, held that article 571 applied to
aggravated rape prosecution despite the invalidity of the death penalty the

8 The intended meaning of this statement in the victim’s testimony, judged through common usage, was a reference to the period starting on his 11th birthday and ending the day before his 12th birthday, i.e., from July 7, 1976, until July 6, 1977. Therefore, Kurz must be sentenced pursuant to the law in effect during that time.

9 The only amendments to article 571 have been to expand it to include a broader array of crimes among those for which there is no time limitation on prosecution, namely, crimes for which a life sentence may be imposed, forcible rape and second degree rape. Acts 1984, No. 926 §1; Acts 2001, No. 207, §1; Acts 2015, No. 184, §6.

18

legislature sought to impose on that crime, and State v. Fraise, 350 So. 2d
154 (La. 1977), held that despite the unconstitutionality of the mandatory
death penalty for aggravated rape, article 571 applied to the crime of
aggravated rape.
The legislature clearly manifested its intention that there be no time
limit on the institution of prosecution for aggravated rape, by enacting: (1)
the mandatory death penalty provision of the aggravated rape statute in
effect at the time of the offense; and (2) La. C. Cr. P. art. 571, which
affirmatively states that there is no time limitation for instituting prosecution
of a crime for which the death penalty is possible. We hold that it is the
penalty prescribed by the legislature that determines the applicability or
inapplicability of article 571; for this purpose, enforceability of that penalty
is immaterial. At the time Kurz committed aggravated rape, the legislature
prescribed a mandatory death penalty for that crime. Therefore, the
aggravated rape statute invoked article 571.
Our holding is rooted in the fundamental principles of time limitations
on instituting prosecution for crime. “In the absence of a statute of
limitations, the State retains the right to prosecute for crimes indefinitely.”10
State v. Ferrie, 243 La. 416, 427, 144 So. 2d 380, 384 (1962), rev’d on other
grounds, State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So. 2d
735. The U.S. Supreme Court’s invalidation of the mandatory death penalty
in Selman, supra, did not affect the legislature’s constitutional authority to
set no time limitation on instituting prosecution for aggravated rape. Selman

10 It follows as a corollary that any crime not covered in legislation imposing time limitations on instituting prosecution, is not subject to any time limitation (except what may be implied in the Constitution). In light of this precept, La. C. Cr. P. art. 571 is perhaps redundant.
19

likewise did not constitute a manifestation of the legislature’s intent to
subject the prosecution of aggravated rape to time limitations. Without such
manifestation, it must be held that article 571 continued to apply to crimes
for which the legislature had prescribed the death penalty. Accordingly,
Kurz’s assignment lacks merit.
Finally, we note that article 571 is designed protect the state’s interest
in the safety and welfare of its citizens; it is quite the opposite of a protection
for defendants accused of crimes for which the legislature has prescribed the
death penalty. In contrast, capital trial procedures – such as mandatory jury
sequestration and unanimity of verdicts – are designed to protect defendants
when they are actually exposed to the death penalty. This distinction guides
our decision.

Outcome: Kurz’s conviction for aggravated rape is affirmed. However, the life
sentence imposed by the trial court is illegal. We amend the sentence to 50
years of incarceration at hard labor.

Plaintiff's Experts:

Defendant's Experts:

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