“It is well settled that a new basis for an objection cannot be raised for the first time on appeal.”
How later courts described this case
- “It is well settled that a new basis for an objection cannot be raised for the first time on appeal.”
Written by the judges who cited it.
The opinion
STATE OF LOUISIANA * NO. 2021-KA-0118
VERSUS *
COURT OF APPEAL
KENNETH J. SESSION *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 531-099, SECTION “DIVISION D”
Judge Kimya M Holmes,
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Tiffany Gautier Chase)
BELSOME, J., CONCURS WITH REASONS
Meghan Harwell Bitoun
LOUISIANA APPELLATE PROJECT
P.O. Box 4252
New Orleans, LA 70178--4252
COUNSEL FOR DEFENDANT/APPELLANT
Jason Rogers Williams
DISTRICT ATTORNEY
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119
G. Benjamin Cohen
Chief of Appeals, DISTRICT ATTORNEY
619 S. White Street
New Orleans, LA 70119
David B. LeBlanc
ASSISTANT DISTRICT ATTORNEY
Appeals Division
619 S. White Street
New Orleans, LA 70119
COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA
AFFIRMED
DECEMBER 14, 2021
TGC
1
DLD
This is a criminal appeal. The defendant, Kenneth Session (hereinafter
“defendant”), seeks review of his conviction and sentence for sexual battery of a
victim under the age of thirteen. For the reasons that follow, we affirm.
PROCEDURAL HISTORY
On October 31, 2016, the State of Louisiana (hereinafter “the State”) filed a
bill of information charging defendant with molestation of a juvenile under the age
of thirteen, a violation of La. R.S. 14:81.2, and sexual battery of a victim under the
age of thirteen, a violation of La. R.S. 14:43.1(C)(2). At arraignment, defendant
pled not guilty to both counts. The case proceeded to trial on November 26, 2018,
but ended with a hung jury. The State chose to try defendant again, on only the
count of sexual battery of a victim under the age of thirteen.
Defendant was found guilty by a unanimous jury following his second trial.
On February 5, 2020, defendant was sentenced to fifty years imprisonment at hard
labor with credit for time served. The court ordered the defendant to serve thirty
years without the benefit of probation, parole, or suspension of sentence. On that
1
same date, the trial court denied defendant’s motion to reconsider sentence and
granted his motion for appeal.
STATEMENT OF THE FACTS
Defendant was tried and convicted for the sexual battery of C.R., his niece. 1
C.R., aged eighteen at the time of trial but eight years old when the abuse occurred,
described the incidents during which defendant abused her in detail at trial. She
disclosed the abuse to a friend, who told C.R.’s mother. C.R. also testified that she
had initially denied the allegations when asked about them by her mother and
grandmother.
C.R.’s cousin (“witness 2”), twenty-three years old at the time of trial,
testified pursuant to La. C.E. art 412.2 that defendant had raped her when she was
seventeen, after he discovered her with a boy against “house rules.”
Another relative (“witness 3”), also provided evidence of defendant’s lustful
disposition, describing two incidents. During the first incident, defendant forcibly
removed her bedcovers when she was spending the night with witness 2. On the
second, defendant raped her when she was twelve years old and babysitting
defendant’s children among others. Witness 3 reported the incident when she was
sixteen years old and the offense was prosecuted in Jefferson Parish. Witness 3’s
boyfriend also testified, confirming that she had reported the rape to him about a
year after it occurred.
A friend of C.R.’s (“witness 4”) corroborated her testimony. Witness 4
testified that she and C.R. discussed the allegations made by witness 3, which had
1
In accordance with La. R.S. 46:1844(W)(1)(a), to keep confidential the identities of the persons
who were minors at the time of the offenses, initials have been used in place of their names.
2
been made public by that time, and that C.R. then tearfully told her that defendant
had molested her too. Witness 4 informed C.R.’s mother, who contacted police.
Dr. Anne Troy, qualified as an expert in the field of child sexual abuse,
interviewed C.R. Nothing during the interview suggested to the expert that C.R.
had been untruthful when she provided her account of abuse.
Defendant’s wife testified on his behalf. She admitted that witness 3 had
accused defendant of molesting her but maintained that she later retracted those
allegations. She also claimed that all the State’s fact witnesses had lied about her
husband’s conduct. She denied drinking with defendant before her night shift
working at a Bridge City correctional facility. However, her testimony was
impeached by rebuttal testimony from her sister, suggesting that defendant would
be left alone with witness 3 at night, when his wife went to work.
ERRORS PATENT
A review of the record reveals no errors patent.
DISCUSSION
Evidentiary Rulings
Assignment of Error No. 1: The Admission of Witness 2’s Testimony
In his first assignment of error, defendant avers that the trial court erred
when it admitted other crimes evidence whose probative value was outweighed by
its prejudicial effect, specifically witness 2’s testimony that defendant raped her
when she was seventeen. Witness 2 did not testify during defendant’s first trial
and the State filed a notice of intent to introduce her testimony as evidence of
similar crimes pursuant to La. C.E. art. 412.2. After a hearing, the trial court
determined that the probative value of witness 2’s testimony outweighed its
3
prejudicial effect.2 We review the trial court’s ruling under an abuse of discretion
standard. State v. Wright, 2011-0141, pp. 10-11 (La. 12/6/11), 79 So.3d 309, 316.
Defendant argues that the probative value of the evidence is outweighed by
the possibility of prejudice to him because the incident involving C.R. differs from
that involving witness 2. Defendant asserts that while C.R. was eight years old
when he inappropriately touched her, witness 2 was seventeen years old when her
alleged rape occurred. Defendant cites to State v. Parker, 42,311, p. 13-14 (La.
App. 2 Cir. 8/15/07), 963 So.2d 497, 507, wherein the Second Circuit determined
that evidence of sexual misconduct with adults was inadmissible in connection
with a charge of sexual misconduct with a minor. As in Parker, defendant
maintains that witness 2’s testimony should have been found inadmissible given
her age when she was raped. Defendant contends that another distinction between
the two incidents is that while the incident with C.R. was premeditated, the
incident with witness 2 was “an isolated instance of opportunity.” Defendant also
questions the reliability of witness 2’s testimony regarding her rape, as she did not
report the alleged offense until six years after it transpired.
The governing statutory provision regarding the admission of “prior bad
acts” evidence is La. C.E. art. 412.2(A), which provides:
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.
2
The trial court also ruled that another incident, where defendant was accused of inappropriately
touching C.R. over her clothing in Jefferson Parish, was inadmissible.
4
In order for any evidence within the parameters of La. C.E. 412.2 to be deemed
admissible, it must be analyzed through the balancing test of La. C.E. art. 403,
which provides that “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the dangers of unfair prejudice, confusion of
the issues, misleading the jury, or by considerations of undue delay, or waste of
time.”
Our Louisiana Supreme Court, in addressing the meaning of “unfair
prejudice,” has noted that “[a]ny inculpatory evidence is ‘prejudicial’ to a
defendant, especially when it is ‘probative’ to a high degree.” State v. Rose, 2006-
0402, p.13 (La. 2/22/07), 949 So.2d 1236, 1244. The Court further noted that “[a]s
used in the balancing test, ‘prejudicial’ limits the introduction of probative
evidence of prior misconduct only when it is unduly and unfairly prejudicial.” Id.
Unfair prejudice, in this context, results when the evidence being offered has an
undue tendency to suggest a decision by the trier of fact on an improper basis,
which is commonly an emotional one. State v. Henry, 2011-1137, p. 9 (La.App. 4
Cir. 10/24/12), 102 So.3d 1016, 1022 (citations omitted).
Article 412.2 has been consistently applied to allow evidence of prior
uncharged misconduct to be introduced in cases where a defendant has engaged in
sexually inappropriate behavior, similar to the charged misconduct, with minor
individuals. Parker, 42,311, pp. 13-14, 963 So.2d. at 507. However, La. C.E. art.
412.2 “does not limit the admissibility of prior acts only to those identical or
similar in nature.” Wright, 2011-0141, pp. 9-10, 79 So.3d at 315. In addition,
“the fact that the prior sex offenses occurred many years before trial is not
significant as the legislature did not set forth a time limitation in Art. 412.2.”
Henry, 2011-1137, p. 10, 102 So.3d at 1022 (citation omitted).
5
Witness 2 was seventeen, and thus, like C.R., a minor when she was raped
by defendant. The evidence indicates that in contrast to defendant’s assertion, his
sexual misconduct with witness 2, like that with C.R., was premeditated: defendant
threatened to have intercourse with witness 2 and later followed through with his
threat. Additionally, the fact that witness 2 did not report defendant’s behavior for
six years was known to the jury, and presumably the jury evaluated this
information when it assessed her credibility. Considering all the facts and
circumstances of this case, we find that the trial court did not abuse its discretion in
allowing witness 2 to testify. The probative value of her testimony is not
outweighed by its prejudicial effect.
We also note that even if the trial court erred in admitting the evidence at
issue, the error is subject to the harmless error analysis. See Chapman v.
California, 386 U.S.18, 87 S.Ct. 824, 17 L.Ed.2d. 705 (1967). In the harmless
error analysis, “[t]he inquiry…is not whether, in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.” State
v. Trung Le, 2017-0164, p. 20 (La.App. 4 Cir. 4/11/18), 243 So.3d 637, 657-58.
The State’s case against defendant was substantial and included the
testimony of five fact witnesses along with that of an expert who opined as to
C.R.’s truthfulness. In this situation, we also find the guilty verdict rendered by
this jury was “surely unattributable” to any error by the trial court in admitting
witness 2’s testimony, as the record before this Court overwhelmingly established
defendant’s guilt. This assignment of error is without merit.
6
Assignment of Error No. 2: The Admission of “Prior Bad Acts” Evidence
without Prior Notice to Defendant
In defendant’s second assignment of error, he asserts that the trial court
erroneously admitted testimony regarding prior bad acts for which notice had not
been given. This occurred when the trial court allowed the State to elicit testimony
from C.R. on redirect examination. Defendant avers that the trial court erred in
ruling that defense counsel “opened the door” to C.R.’s redirect testimony and
admitting this evidence. Defendant argues that C.R.’s statement should have been
ruled inadmissible as it was unresponsive to defense counsel’s question.
At trial, the testimony defendant complains of was elicited as the result of
the following colloquy during the defense’s cross-examination of C.R.:
Q. Did anybody […] ask you any […] kinds of questions about
[defendant behaving inappropriately]?
A. My grandma asked me…But she asked me like a while ago.
Q. You said your grandmother?
A. She had heard something else too. So that’s why she asked me.
On redirect examination by the State, the following exchange occurred:
Q. [D]efense counsel asked you about your grandmother. And you
had mentioned that your grandmother had asked you if
[defendant] had done anything inappropriate with you; is that
correct?
A. Yeah.
Q. And you mentioned that your grandmother said that he had
been doing – that she had told you that he had been doing
inappropriate things?
A. Yes.
Q. What were those things and who were they to?
A. She told me that he had –
Defense counsel then objected and argued that the State was attempting to
introduce evidence that had been ordered excluded under La. C.E. art. 412.2. The
State responded that the defense had opened the door to the evidence through its
7
cross-examination and the court overruled the objection on that basis. C.R. then
continued,
She told us that she heard about him doing something to somebody on
his side of the family, probably like one of his nieces or I don’t know
something like that. And she said she had heard about something like
that. So she asked me.
Q. One of [defendant’s] nieces?
A. I don’t know if it was his niece or I don’t know who it was.
Q. Do you know what [defendant] had done to that person?
A. She said like he touched her inappropriately or like he told her
something inappropriate or something like that.
La. C.E. art. 412.2(B) provides that when the State intends to offer evidence
of other sexually assaultive behavior or acts which indicate a lustful disposition
toward children at trial, it shall provide reasonable notice in advance of trial of the
nature of any such evidence. A well-settled exception to this rule occurs when one
side has gone partially (“opened the door”) into such a matter on examination of a
witness; thereafter, the other side may go into it fully during its own examination
of the witness. See State v. Edwards, 420 So.2d 663, 675 (La. 1982). While our
Louisiana Supreme Court has ruled that when a witness testifies to information
which is unresponsive to an examiner’s question, that unresponsive information
cannot be said to have “opened the door” to otherwise inadmissible evidence. See
State v. Davis, 351 So.2d 771, 773 (La. 1977). In the case sub judice, defense
counsel asked C.R. on cross-examination whether anyone had questioned her about
defendant’s past sexual conduct. C.R. responded that her grandmother had. The
defense then asked again whether it was her grandmother who had spoken to her.
C.R. supported her statement that her grandmother had questioned her about
defendant by explaining why her grandmother had done so. We find that C.R.’s
testimony was responsive to defense counsel’s questions; thus, the trial court did
not err in admitting it.
8
We also again note that any error in admitting C.R.’s testimony was
harmless. The State presented testimony from several of defendant’s relatives,
including C.R., witness 2, and witness 3, that defendant had sexually assaulted
them. Defendant’s guilty verdict was “surely unattributable” to C.R.’s testimony
regarding rumors that defendant had possibly abused yet another female relative.
Thus, this assignment of error is without merit.
Assignment of Error No. 3: The Admission of
“Hearsay within Hearsay” Testimony
In defendant’s third assignment of error, he complains about the hearsay
nature of the testimony described above. Defendant notes that C.R. testified that
her grandmother heard these rumors from another, unnamed person; as such, her
testimony was hearsay within hearsay. Defendant asserts that C.R.’s testimony did
not fall under any exception to the hearsay rule, and that the trial court’s admission
of the testimony violated his fundamental right to confront a witness at trial and to
test the reliability of his claims through cross examination. U.S. Const. amend. VI,
XIV; La. Const. art. 1, § 16.
As a threshold matter, defendant did not object to admission of the testimony
on the basis that it constituted hearsay and accordingly this issue is not properly
before the Court. See State v. Sims, 426 So.2d 148, 155 (La. 1983) (“It is well
settled that a new basis for an objection cannot be raised for the first time
on appeal.”); see also State v. Boys, 2019-0675, p. 11 (La. App. 4 Cir. 5/26/21),
321 So.3d 1087, 1100.
In any event, because defendant opened the door, an objection based on
hearsay would no longer appear viable. State v. Hankton, 1996-1538 (La.App. 4
Cir. 9/16/98), 719 So.2d 546, 550; State v. Moseley, 587 So.2d 46, 55-56 (La.App.
9
2 Cir. 1991); State v. Lapworth, 517 So.2d 485, 486 (La.App. 1 Cir. 1987).
Finally, as discussed above, even if the court erred in admitting the evidence,
considering the overwhelming evidence presented of defendant’s guilt, the error
was harmless.
Rulings Related to the Jury
Assignment of Error No. 4: The Disposition of Defendant’s Batson Challenge
In defendant’s fourth assignment of error, he avers that the trial court
committed legal error in addressing his motion pursuant to Batson v. Kentucky, 476
U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d. 69 (1986), by authorizing the proffer of the
State’s race-neutral reasons for removing the jurors but failing to allow the proffer
of defense’s evidence of discriminatory intent. Defendant asserts that the trial court
should have allowed him to respond to the reasons proffered by the State.
Under Batson, if a party exercises a peremptory challenge to exclude a
prospective juror on the basis of his or her race, a violation of the Equal Protection
Clause of the United States Constitution occurs. Id. La. C.Cr.P. art. 795(C)
codifies this principle, stating in pertinent part that no peremptory challenge shall
be motivated in substantial part on the basis of the race of the juror.
Generally, to establish that such a prohibited use of peremptory challenges
has occurred under Batson, the party raising the claim must first make a prima
facie case of purposeful racial discrimination. See State v. Williams, 2013-0283, p.
16 (La.App. 4 Cir. 9/7/16), 199 So.3d 1222, 1232. If a prima facie showing is
made, the burden shifts to the proponent of the strike to articulate a race-neutral
explanation for the challenge. State v. Nelson, 2010-1724, 2010-1726, p. 9 (La.
3/13/12), 85 So.3d 21, 29. The trial court must then determine whether the
opponent of the strike carried the burden of proving purposeful discrimination. Id.
10
However, our Louisiana Supreme Court has held that once a jury has been sworn
and all venire members dismissed, any Batson challenge is untimely. State v.
Tucker, 2013-1631, pp. 47-49 (La. 9/1/15), 181 So.3d 590, 625-626.
In the case sub judice, the voir dire transcript indicates that after the trial
court had sworn in all jurors and alternates and dismissed the remaining jury
venire, defendant raised his objection under Batson. The trial court found the
Batson challenge was made untimely, after it had already excused the jurors who
had not been selected for service. The trial court stated that there was “no way of
making a record to my knowledge, a contemporaneous record right now, of how
many African-Americans were in the venire and were presented to determine what
sort of proportions were in effect.” Therefore, the trial court did not rule that a
prima facie case of discrimination had been shown. However, for the purpose of
protecting the record, the trial court allowed defendant to make a proffer of his
Batson claim, and ordered the State to provide race-neutral reasons to support its
peremptory challenges of those jurors.
As defendant’s challenge was untimely, he did not make a prima facie case
of purposeful racial discrimination. Defendant’s Batson challenge failed at step
one of the analysis. Therefore, the burden never shifted to the State to explain any
racial exclusion. Nevertheless, the trial court allowed defendant to proffer his
Batson challenge, and ordered the State to articulate its race-neutral peremptory
challenge reasons to protect the record. The State’s reasons were proffered for
appellate purposes only.3 As such, defendant had no right to respond, and we find
3
See State v. Allen, 2003-2418, pp. 17-18 (La. 6/29/05), 913 So.2d 788, 802 (“[I]t is obvious
from the district court’s ruling that defense’s Batson challenge had already failed when the State
proffered its reasons for appellate purposes only, because the court clearly found no discernible
pattern of discriminatory intent demonstrated. Therefore, the defense’s Batson challenge failed
11
that the trial court did not err in failing to allow him to do so. This assignment of
error is without merit.
Assignment of Error No. 5: The Trial Court’s Ex Parte
Communications with Certain Jurors
In defendant’s fifth assignment of error, he argues that the trial court erred in
conducting ex parte examinations of potential jurors. During voir dire, jurors 1, 8,
11, 12 and 49 approached the bench to privately communicate the reasons they
could not serve on the jury to the judge. The trial court spoke to each juror off the
record.4 La. C.Cr.P. art. 831 states in pertinent part that a defendant “shall be
present…at the calling [and] examination of the jury, and at any subsequent
proceedings for the discharge of the jury or the juror.” Defendant argues that his
exclusion from this portion of voir dire violates his rights and entitles him to a new
trial.
A defendant is limited on appeal to those grounds articulated at trial,
meaning he must have pointed during trial to the specific error, so that there was an
opportunity for the trial court to make the proper ruling and prevent or cure that
error. State v. Baker, 582 So.2d 1320, 1336 (La.App. 4 Cir. 5/30/91). Without a
contemporaneous objection at trial, the appellate court will not consider an
assignment of error, raised for the first time on appeal. Trung Le, 2017-0164, p.
18, 243 So.3d at 656.
The voir dire transcript reflects that no contemporaneous objection was
urged by defendant at the time the trial court spoke to these jurors. As defendant
at step one of the analysis, thus the burden never shifted to the prosecution to explain the racial
exclusion.”)
4
None of these jurors were chosen to serve.
12
lodged no contemporaneous objection, we find that this alleged error was not
preserved for appellate review. Thus, this assignment of error lacks merit.
Assignment of Error No. 9: The Denial of Defendant’s
Voir Dire Challenge for Cause
Defendant’s ninth assignment of error is that the trial court erred in denying
a defense challenge for cause. The challenge was directed at prospective juror
number 44 (hereinafter “Juror 44”). Defendant avers that during voir dire, Juror 44
revealed that she had been a victim of childhood sexual abuse and described its
lingering effects. Juror 44 also stated that an individual accused of sexual assault
should be “required to answer questions directly.” Defendant asserts that neither
the trial court nor the State rehabilitated Juror 44 after she made these statements.
As such, whether she would have been able to serve as an impartial juror was
never determined. Regardless, the trial court denied defendant’s challenge for
cause, and defendant asserts he thereafter exhausted his peremptory challenges.
Defendant argues that he is therefore entitled to a new trial.
In trials of offenses punishable by imprisonment at hard labor, the defendant
and the State are each entitled to twelve peremptory challenges. La. C.Cr.P. art.
799. When a defendant must use all twelve of his peremptory challenges, a trial
court’s erroneous ruling on a defendant’s challenge for cause that resulted in the
deprivation of one of those peremptory challenges constitutes a substantial
violation of his constitutional and statutory rights, and a reversal of his conviction
and sentence is required. State v. Juniors, 2003-2425, pp. 7-8 (La. 6/29/05), 915
So.2d 291, 304. “Prejudice is presumed when a challenge for cause is erroneously
denied by a trial court and a defendant has exhausted his peremptory challenges.”
Juniors, 2003-2425, p. 8, 915 So.2d at 305. Therefore, to establish reversible error
13
regarding the denial of one of his challenges for cause, a defendant need only show
that (1) he has exhausted all of his peremptory challenges, and (2) the trial court
erred in refusing to grant one of his cause challenges. Id.
In the case sub judice, the transcript does not indicate that defendant
exhausted all twelve of his peremptory challenges.5 After two rounds of voir dire,
the trial court stated that the prosecution had exercised eight total peremptory
challenges, and the defense had exercised a total of five.6 After the trial court
allowed the parties to backstrike certain jurors, the State exhausted all twelve of its
peremptory challenges. However, the trial court noted that the defense used only
eleven peremptory challenges before a twelve-person jury was selected. As such,
defendant has not shown that the first prong of the Juniors test was met to warrant
the presumption of prejudice.
As to the second prong of the Juniors test, defendant also fails to meet his
burden. Defendant asserts that the trial court should have granted his cause
challenge under La. C.Cr.P. art. 797(2), on the ground that Juror 44 was not
impartial, based upon her life experience; or alternatively, under La. C.Cr.P. art.
797(4), on the ground that Juror 44 would not have accepted the law as given to
her by the court, because she wanted defendant to testify.7
5
The trial court’s minute entry of January 27, 2020 does state that defendant used twelve
peremptory challenges. However, where a conflict exists between a minute entry and a
transcript, the transcript controls. State v. Fortenberry, 2011-0022, p. 5 (La.App. 4 Cir. 7/27/11),
73 So.3d 391, 394. Further, the record contains a “Judge’s List” from that same date, which
shows only 11 defense peremptory challenges commemorated in handwriting by the trial court.
6
The defense used its fourth peremptory challenge to strike Juror 44.
7
La. C.Cr.P. art. 797 provides in toto:
The state or the defendant may challenge a juror for cause on the ground that:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or
impression as to the guilt or innocence of the defendant shall not of itself be
sufficient ground of challenge to a juror, if he declares, and the court is satisfied,
that he can render an impartial verdict according to the law and the evidence;
14
However, reversal is appropriate only where it appears, upon review of the
voir dire examination as whole, that the trial court’s exercise of its discretion in
denying a cause challenge has been arbitrary or unreasonable, and resulted in
prejudice to the accused. State v. Dotson, 2016-0473, p. 17 (La. 10/18/17), 234
So.3d 34, 45. Additionally, an appellate court should accord great deference to the
trial court’s ruling on a challenge for cause which is necessarily based, at least in
part, upon the trial court’s personal observations during questioning. State v.
Mickelson, 2012-2539, p. 12 (La. 9/3/14), 149 So.3d 178, 186-87.
The record does not support the conclusion that Juror 44 was unduly biased
or could not follow the law. When asked by defense counsel whether she
considered the burden of proof beyond a reasonable doubt “kind of unfair to
victims or survivors of sexual assault,” Juror 44 stated that the burden of proof was
“perfectly attainable.” After describing her work with the Me Too movement,
Juror 44 was asked by defendant whether this would be prominently in her mind as
she was deciding the case, and she responded that she would listen with
compassion to all sides of the story. Juror 44 testified that she would not be
ashamed to tell her co-workers that she found someone not guilty in a sexual
assault case. She also revealed that although listening to the evidence would be
difficult for her, years of therapy would assist her in being able to hear defendant’s
case.
(3) The relationship, whether by blood, marriage, employment, friendship, or
enmity between the juror and the defendant, the person injured by the offense, the
district attorney, or defense counsel, is such that it is reasonable to conclude that it
would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury
that once tried the defendant for the same or any other offense.
15
Considering Juror 44’s comments in the context of the voir dire record as a
whole, and giving great deference to a ruling based in part upon the observation of
Juror 44’s demeanor, it does not appear that an abuse of the trial court’s broad
discretion occurred when it denied defendant’s challenge to her service for cause.
Thus, this assignment of error is without merit.
Rulings Related to Opening Statement and Closing Argument
Assignment of Error No. 6: The Closure of the Courtroom
In defendant’s sixth assignment of error, he avers that the trial court erred in
denying his right to a public trial by closing the courtroom during closing
arguments. Defendant asserts that he is entitled to a new trial on that basis.
“In a criminal case, the accused is afforded the right to enjoy a public trial
by both the United States Constitution and the Louisiana Constitution.” State v.
Baumberger, 2015-1056, p. 29 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 837, citing
U.S. Const. amend. VI; La. Const. art. 1, § 16. In the absence of a
contemporaneous objection, the defendant is foreclosed from seeking a new trial
based on the fact that the courtroom was closed during counsel’s closing
arguments. See State v. Loyden, 2004-1558, p. 19 (La.App. 3 Cir. 4/6/05), 899
So.2d 166, 179 (citing La. C.Cr.P. art. 841).
Defendant did not make a contemporaneous objection at trial to the
courtroom closure. On this basis alone, defendant’s assignment of error is
meritless. However, in addition, the record does not establish that the trial court
closed the courtroom to the public during the closing arguments in defendant’s
case. There is no evidence that the trial court prevented anyone from observing the
closing arguments. Instead, it directed that the doors be closed during their
duration to prevent individuals from coming in and going out, as a courtesy to the
16
lawyers on both sides. Anyone who wished to observe the entirety of the
arguments was free to do so. Thus, we find this assignment of error without merit.
Assignment of Error No. 7: The Disposition of Defendant’s
Objections During Opening Statement
In his seventh assignment of error, defendant avers that the trial court erred
in overruling the defense objection to prejudicial remarks during the prosecutor’s
opening statement. Defendant asserts that the trial court’s failure to sustain his
objection to the prosecution’s comments entitles him to a new trial.
“The trial judge has broad discretion in controlling the scope of the opening
and closing arguments. However, even if the prosecutor exceeds those bounds, the
court [should] not reverse a conviction if not ‘thoroughly convinced’ that the
argument influenced the jury and contributed to the verdict.” State v. Hollins,
2011-1435, pp. 37-38 (La.App. 4 Cir. 8/29/13), 123 So.3d 840, 866 (internal
citations omitted). “[M]uch credit should also be accorded to the good sense and
fairmindedness of jurors who have seen the evidence and heard the arguments, and
have been instructed repeatedly by the trial court that the arguments of counsel are
not evidence.” State v. Martin, 1993-0285, p. 18 (La. 10/17/94), 645 So.2d 190,
200.
In its opening statement, the State referred to the fact that defendant did not
have many supporters in the courtroom. Specifically, the State pointed out that
although defendant has several daughters, “not one of them stood by him.”
The comment during the opening statement was not inaccurate to the extent
that the only witness who testified on defendant’s behalf was his wife. Thus,
considering the evidence presented for the jury’s consideration after opening
statement and according credit to the “jury’s good sense and fairmindedness,” we
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are not “thoroughly convinced” that the State’s declaration about the absence of
support from defendant’s daughters during its opening statement influenced the
jury such that it contributed to the verdict. Accordingly, we find defendant has not
demonstrated that he is entitled to reversal of his conviction on this basis. The
assignment of error is without merit.
Assignment of Error No. 8: The Disposition of Defendant’s
Objections During Closing Argument
In his eighth assignment of error, defendant contends that the trial court
erred in overruling the defense’s objection to the State’s improper closing
argument. Defendant argues that the State asserted facts not in evidence and
improperly referred to his future dangerousness and the necessity of protecting
community safety by convicting and imprisoning him. Defendant asserts that the
trial court’s failure to sustain his objections to these comments entitles him to a
new trial.
The scope of closing argument is confined by La. C.Cr.P. art. 774 “to
evidence admitted, to the lack of evidence, to conclusions of fact that the state or
defendant can draw therefrom, and to the law applicable to the case.” Asserting
facts not in evidence during closing argument has been found to be prejudicial
error by Louisiana appellate courts. See State v. Duplessis, 457 So.2d 604 (La.
1984) Prosecutors are also discouraged from turning closing argument into a
plebiscite on crime by making overt references to community sentiment. State v.
Deboue, 552 So.2d. 355, 364 (La. 1989). However, prosecutors have wide
latitude in choosing closing argument tactics. Henry, 2011-1137, p. 15, 102 So.3d
at 1025. Even if the prosecutor exceeds the scope of La. C.C.P. art. 774, an
appellate court must be thoroughly convinced that the argument influenced the jury
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to the extent that it contributed to the verdict in order to reverse his conviction. See
Martin, 1993-0285, p. 18, 645 So.2d at 200.
During closing argument, the prosecutor stated:
[Defendant] is not going to stop. He’s not going to stop until someone
puts a stop to him. [M]ultiple lives of multiple citizens will be in your
hands…Because if it goes wrong up there, it will keep going wrong
out there…The only entity standing between that man and that door is
you. And he has made it abundantly clear he’s not going to stop. So
stop him or watch him walk out that door back into your city. Your
choice.
The record reveals that, rather than improperly referring to community
crime, the prosecutor was presenting a conclusion of fact properly drawn from the
evidence when he stated that defendant’s sexual predation would not stop. The
evidence against defendant included the testimony of two family members he
victimized in addition to C.R. Further, defendant’s abuse of C.R. and witness 3
occurred on more than one occasion. We find that the trial court did not abuse its
broad discretion in overruling defendant’s objections to the State’s closing
comments.
We must also give credit to the jury’s objectivity and fairmindedness in
evaluating the evidence presented in this case, and consider that its members were
instructed that argument is not evidence. In doing so, we are not convinced that
the comments made by the State in closing argument influenced the jury and
contributed to the verdict such that reversal is warranted, even if the comments
exceeded their proper scope. Thus, we find that this assignment of error is without
merit.
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DECREE
For the foregoing reasons, we affirm defendant’s conviction and sentence for
sexual battery on a victim under the age of thirteen.
AFFIRMED
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