The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
05-218
STATE OF LOUISIANA
VERSUS
ROBERT S. WILLIS
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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 01-0983(A) AND 01-1112
HONORABLE LEO BOOTHE, DISTRICT JUDGE
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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.
PICKETT, J., DISSENTS IN PART AND WOULD AFFIRM THE
CONVICTIONS FOR FORCIBLE RAPE.
AFFIRMED IN PART; REVERSED IN PART.
CONVICTION AND SENTENCE FOR
AGGRAVATED RAPE AFFIRMED. CONVICTIONS
FOR FORCIBLE RAPE FOR THE YEARS 1992, 1993,
AND 1994 VACATED; JUDGMENTS OF GUILTY OF
SEXUAL BATTERY FOR THE YEARS 1992, 1993,
AND 1994 ENTERED AND CASE REMANDED FOR
SENTENCING. CONVICTION FOR FORCIBLE
RAPE FOR 1995 VACATED AND JUDGMENT OF
ACQUITTAL ENTERED.
John Frederick Johnson
District Attorney - 7th Judicial District Court
Bradley Rex Burget
Assistant District Attorney
4001 Carter Street - Suite 9
Vidalia, LA 71373
Telephone: (318) 336-5526
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana
L. J. Hymel, Jr.
Judge, 19th Judicial District Court
222 St. Louis Street
Baton Rouge, LA 70801
COUNSEL FOR:
Defendant/Appellant - Robert S. Willis
Michael Reese Davis
Stephen H. Shapiro
Sharp, Hymel, Cerniglia, Colvin, Weaver & Davis, L.L.C.
15171 South Harrel’s Ferry Road
Baton Rouge, LA 70816
Telephone: (225) 755-1060
COUNSEL FOR:
Defendant/Appellant - Robert S. Willis
THIBODEAUX, Chief Judge.
The Defendant, Robert Willis, appeals his convictions for aggravated
rape for which he received a mandatory life sentence and four counts of forcible rape
for which he received a forty-year sentence on each count, consecutive to each other
and consecutive to the life sentence. He asserts twelve assignments of error,
including insufficiency of the evidence.
For the following reasons, we affirm the Defendant’s conviction and
sentence for aggravated rape, vacate the Defendant’s convictions of forcible rape for
the years 1992, 1993, and 1994, and enter judgments of guilty of sexual battery for
the years 1992, 1993, and 1994. We remand for sentencing on these convictions.
Finally, because of insufficiency of the evidence, we vacate the Defendant’s
conviction for forcible rape for the year 1995.
Insufficiency of the Evidence
The Defendant contends the evidence presented was insufficient to
support the jury’s verdict. State v. Hearold, 603 So.2d 731 (La.1992) stated that,
because a finding of insufficient evidence may result in an outright acquittal,
sufficiency challenges should be addressed before other claims.
In reviewing the sufficiency of the evidence to support a conviction,
[T]he appellate court must determine that the
evidence, viewed in the light most favorable
to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements
of the crime had been proved beyond a
reasonable doubt. State v. Captville, 448
So.2d 676, 678 (La.1984).
State v. Williams, 03-3514, p. 5 (La. 12/13/04), 893 So.2d 7, 12.
1
The Defendant was convicted of one count of aggravated rape and four
counts of forcible rape. At the time of the offenses, aggravated rape was defined as
follows:
A. Aggravated rape is a rape committed where the
anal or vaginal sexual intercourse is deemed to be without
lawful consent of the victim because it is committed under
any one or more of the following circumstances:
(1) When the victim resists the act to
the utmost, but whose resistance is overcome
by force.
(2) When the victim is prevented from
resisting the act by threats of great and
immediate bodily harm, accompanied by
apparent power of execution.
(3) When the victim is prevented from
resisting the act because the offender is armed
with a dangerous weapon.
(4) When the victim is under the age of
twelve years. Lack of knowledge of the
victim’s age shall not be a defense.
(5) When two or more offenders
participated in the act.
La.R.S. 14:42.
At the time of the offenses, forcible rape was defined as follows:
a rape committed where the anal or vaginal
sexual intercourse is deemed to be without the
lawful consent of the victim because the
victim is prevented from resisting the act by
force or threats of physical violence under
circumstances where the victim reasonably
believes that such resistance would not
prevent the rape.
La.R.S. 14:42.1.
2
J. W.1 had two children, C.M., born January 10, 1980, and R.M., born
January 28, 1978. J.W. met the Defendant in June of 1990, and he moved in with her
family during the first part of 1991. The two were married on March 3, 1994.
OFFENSES INVOLVING C.M.
During 1990, for a period of eight to nine months, the Defendant told
C.M. to feel the knife in his pocket and forced her hands between his legs. This abuse
progressed and, in 1991, the Defendant had sexual intercourse with C.M., who was
eleven years old. C.M. testified that she did not voluntarily participate in this sex act
and was held down by the Defendant. When asked how many times this act occurred
in 1991, C.M. testified that she could not count the number and “[t]his was every
day.” During sexual intercourse, the Defendant would choke C.M. until she lost her
breath. Additionally, the Defendant threatened to kill her if she told her mother what
occurred.
J.W. became aware of the sexual activity when C.M. was twelve as this
activity began to occur in J.W.’s presence. According to C.M., J.W. began to
purchase condoms for the Defendant’s use when having sex with her when she was
eleven or twelve, which would have been in 1991 or 1992; however, J.W. testified
that this practice began in 1992 or 1993.
Eventually, C.M. began sleeping in bed with the Defendant and J.W.
The Defendant then had sex with C.M. in J.W.’s presence and with J.W. in C.M.’s
presence. C.M. participated in sex with her mother, J.W., once when the two
performed oral sex upon each other. C.M. could not recall the date of this incident,
but J.W. testified that this act occurred on March 3, 1994, the day she married the
1
In accordance with La.R.S. 46:1844(W), the initials of the victim and those of certain family
members are used throughout this opinion.
3
Defendant.2 When asked if she agreed to perform a sexual act upon her mother, C.M.
testified that she had no choice. She explained that the Defendant threatened to kill
her if she refused to cooperate and that she feared him because he had beaten both her
and her mother. C.M. also testified that she was constantly reminded not to tell
anyone what was happening to her and that if she reported the incidents she would
be killed.
While on vacation in 1994, C.M., who was fourteen, discovered she was
pregnant with the Defendant’s child. Defendant and J.W. took C.M. to Baton Rouge
where she had an abortion.
The Defendant ceased having sex with C.M. in late 1995, when she was
fifteen years old. C.M. reported these events to police on April 4, 2001.
The above testimony is the only direct evidence the State presented
regarding sexual intercourse between C.M. and the Defendant. In its closing
argument, the State indicated that it relied upon proof of other beatings to satisfy the
force element of the forcible rape offenses.
BEATINGS AND OTHER MALTREATMENT
C.M. testified that the Defendant once beat her with a bull whip and
threatened her with a gun when he thought he contracted a rash from her because she
was having sex with boys at school. Although there was no testimony regarding the
date of this incident, C.M. was home schooled after she completed the seventh grade.
J.W. testified that C.M. was taken out of school in 1993 or 1994.
C.M. witnessed the Defendant kick, stomp, and punch J.W. C.M.
testified that the Defendant badly beat J.W. twice and other times he would hit and
2
As a result of her actions, J.W. pled guilty to one count of aggravated oral sexual battery on
October 12, 2002. At the time of trial, she had not been sentenced.
4
slap her. C.M. testified that she could not count the number of times she witnessed
the Defendant hit J.W.
C.M. testified that on one occasion the Defendant returned from hunting
and he and J.W. argued. During that incident, the Defendant threw J.W. down and
kicked, stomped, and hit her. The Defendant then dragged J.W. into the house.
When C.M. tried to stop the Defendant, he hit her, splitting her lip. Once C.M. and
J.W. were on the floor, the Defendant took out his pocket knife and told them he
would rather see them lying by C.M.’s father, who was deceased, than to look at
them. During this episode, the Defendant also beat a gun over a chair until the chair
and the gun were broken. J.W. corroborated this testimony, indicating this incident
occurred while she worked at Four Rivers Home Care. Although J.W. did not testify
as to what time period she was employed at Four Rivers Home Care, R.M. testified
this incident occurred in 1993. During another altercation, C.M. saw the Defendant
put J.W. in a headlock and hit her in the stomach.
C.M. also saw the Defendant beat R.M. She indicated this occurred
“pretty often” until R.M. moved out. J.W. also testified that the Defendant physically
and verbally abused R.M. R.M. testified that while he hunted with the Defendant, the
two sometimes fought and the Defendant would give him a knot on the head. R.M.
moved out the day after the incident in 1993.
J.W. testified that the Defendant began to use force or violence against
her in the latter part of 1990 and that this was a routine practice from 1991 until
March 1999. J.W. further testified that she was beaten by the Defendant “pretty
often.” When asked to explain what that meant, she stated “it didn’t have any
particular scheduling. It would be like maybe one week and then it may be okay for
a couple of weeks and then it would happen again.”
5
One winter the Defendant returned from hunting and hit J.W. and C.M.
with his fists. During that altercation, J.W. instructed C.M. to run to the neighbor’s
house for protection. J.W. did not testify as to what year this event took place.
J.W. further testified that after the Defendant moved into the home, she
placed padlocks on the bedroom doors of C.M. and R.M. because the Defendant told
her C.M. and R.M. were having sex. R.M. testified that he was not told why padlocks
were put on his door. R.M. indicated the locks were put on in 1997 or 1998. Neither
C.M. nor J.W. testified regarding the date the locks were installed. C.M. testified that
the Defendant accused her of having sex with her brother and she went out of her way
to avoid her brother. However, R.M. testified that he was not aware of any
prohibition against C.M. looking at him.
C.M. was shown several pictures of the family home that depicted
padlocks on her bedroom door and that of R.M. Additionally, C.M. identified
photographs reflecting holes in the wall of the home. She testified the holes were the
result of the Defendant pushing R.M. into the wall.
Robbie Edwards testified that his home was approximately one hundred
yards from the Willis home. It appeared to him that C.M. was not allowed to go
anywhere after the Defendant moved in. While the Defendant resided with J.W., Mr.
Edwards saw J.W. and her face was beaten to the point that he barely recognized her.
On another occasion, C.M. went to his residence saying that the Defendant “was on
her and her mother” and she wanted a safe place to go. Mr. Edwards later testified
that he did not remember when these events occurred.
Angie Lancaster worked with J.W. for approximately two years, from
“maybe 1995 to 1998.” Ms. Lancaster testified that the week that J.W. and the
Defendant were married, J.W. had two black eyes and was holding her side. On two
or three other occasions, J.W. wore sunglasses to hide black eyes. One occasion was
6
prior to J.W.’s wedding, and the others occurred later. Ms. Lancaster did not testify
as to who beat J.W. Ms. Lancaster further testified that C.M. appeared to be insecure
and afraid of men. She would “hug up against” the wall when a male employee
passed her in the hall. Ms. Lancaster guessed that C.M. was fourteen or fifteen at
that time. Ms. Lancaster did not testify as to the reason for C.M.’s insecurity. Ms.
Lancaster testified that, less than one year after J.W. married the Defendant, she gave
J.W. and C.M. a place to stay so the Defendant would not find them.
Several witnesses, including James Poole, Travis Pritchard, Buster Reed,
and Robbie McMillin, testified they never observed any bruises that would indicate
that J.W. and her children had been abused, nor had they ever seen the Defendant
physically abuse anyone.
PAST VICTIMS
During the State’s case-in-chief, it called two sisters, Charlotte
Lockwood and Judy Chisom, to testify regarding acts committed upon them by the
Defendant. Additionally, the State submitted evidence that the Defendant entered a
plea of guilty to three counts of carnal knowledge of a juvenile and one count of
indecent behavior with a juvenile on October 19, 1981. However, two of the
Defendant’s three convictions for carnal knowledge of a juvenile were set aside by
the trial court in 1985, when his application for post-conviction relief was granted in
part.
Ms. Lockwood testified that when she was four years old the Defendant
began to touch her and perform oral sex upon her, and she was made to touch his
penis. The Defendant began having sexual intercourse with her when she was
approximately ten years old. If Ms. Lockwood refused to have sex with the
Defendant, he would beat her and her family. Eventually Ms. Lockwood started
7
sleeping in bed with the Defendant and her mother, and the Defendant would have
sex with both her and her mother. Additionally, the Defendant attempted to have Ms.
Lockwood’s mother perform oral sex upon her, but her mother refused. Ms.
Lockwood testified that the Defendant had sexual intercourse and oral sex with all her
brothers and sisters. Additionally, the Defendant shot at her mother, hung her mother
from a tree, and all members of the family had black eyes and bruises at various
times.
Ms. Lockwood became pregnant when she was thirteen and had the
Defendant’s child at age of fourteen. At one point, the Defendant threatened to beat
Ms. Lockwood while she was pregnant because he thought she was having sex with
her brother. In 1978, Ms. Lockwood ran away with her baby. She returned home and
married the Defendant in November 1979 because he told her he would stop abusing
her sister if she did so.
Ms. Chisom testified that when she was five or six the Defendant told
her and her sisters to feel the knife in his pocket. However, the girls were actually
rubbing the Defendant’s penis. On March 3, 1971, the Defendant performed oral sex
on Ms. Chisom and her sisters and made them perform oral sex on him. If Ms.
Chisom refused to perform oral sex on the Defendant, he would slap her and, if she
continued to say no, the Defendant would beat the entire family. Ms. Chisom
testified that the Defendant first had sexual intercourse with her ten days after her
twelfth birthday.
Between the time of Ms. Chisom’s first sexual encounter with the
Defendant on September 24, 1976 until the time Ms. Lockwood left in 1978, Ms.
Chisom had sexual intercourse with the Defendant at least twice a week. Once when
Ms. Chisom was fifteen, she refused to have sex with the Defendant and he slapped
8
her, hit her, and choked her until she became unconscious. After Ms. Chisom came
to, the Defendant performed oral sex on her and made her perform oral sex on him.
Ms. Chisom testified that after Ms. Lockwood ran away from home, the
Defendant tore up the house, set it on fire, then made the children put out the fire.
Ms. Chisom slept in the Defendant’s bed until Ms. Lockwood’s return. Ms. Chisom’s
mother told her that if she did not sleep with the Defendant, he would kill the family.
DEFENSE
At trial, the Defendant attempted to persuade the jury that C.M., who
knew about the Defendant’s prior convictions, fabricated the allegations of sexual
abuse because the Defendant and J.W. got C.M.’s partner fired from her job. The
Defendant also attempted to persuade the jury that J.W.’s brother, Jerry Rainey,
assisted C.M. because he wanted to put the Defendant’s competing company out of
business. Additionally, he asserted the only reason J.W. testified against the
Defendant and entered a guilty plea was so she would spend less time in jail.
C.M. married Calvin Deason on February 19, 2000. In December 2000,
she went to work at Wal-Mart. While there, she met Tess Desourmeaux, her
supervisor. C.M. separated from Mr. Deason in February 2001 in order to be with
Ms. Desourmeaux. Mr. Deason told the Defendant and J.W. that C.M. was involved
in a relationship with Ms. Desourmeaux. C.M. then reunited with Mr. Deason and,
at the request of the Defendant and J.W., filed a sexual harassment claim against Ms.
Desourmeaux. C.M. later recanted her story of sexual harassment and J.W. filed a
complaint with Wal-Mart. As a result of J.W.’s complaint, Ms. Desourmeaux was
fired. C.M. told J.W. she would get even with her someday for getting Ms.
Desourmeaux fired.
9
C.M. went to work for Jerry Rainey, J.W.’s brother and the Defendant’s
business competitor in March 2001. After C.M. went to work for Mr. Rainey, she
told him of the abuse she suffered at the hands of J.W. and the Defendant. C.M.
testified that she had known about the Defendant’s prior convictions since she was
twelve, but she did not tell Mr. Rainey about the Defendant’s past and he never spoke
of the matter in her presence. However, R.M. testified that a letter from one of the
Defendant’s prior victims was faxed to Mr. Rainey’s business. R.M. did not know
if it was C.M. or Mr. Rainey that had been in contact with them. However, he was
sure that Mr. Rainey read the fax.
Eula Deason, Calvin Deason’s mother, testified that C.M. told her she
had spoken to one of the Defendant’s prior victims and C.M. believed “it happened
like the girl told her.” This conversation occurred while C.M. was working at Wal-
Mart, which would have been after December 2000.
During her stay in jail, J.W. maintained her innocence. She wrote and
received letters from the Defendant daily, and the two spoke on the phone three times
a day. Although she told her doctors, counselors, and the Defendant’s attorneys that
she was falsely accused, J.W. entered a plea of guilty to one count of aggravated oral
sexual battery.
LAW AND DISCUSSION
On appeal, the Defendant argues there was insufficient evidence to
convict him of the offenses. The Defendant contends that C.M. and J.W. were not
credible. He points out J.W.’s prior proclamation that she was falsely accused, the
fact that J.W. was upset that C.M. was a lesbian, and that C.M. was angry at J.W. and
the Defendant for getting her partner fired. He also asserts that the Defendant’s
business competitor, Jerry Rainey, was driving the prosecution in order to eliminate
10
the Defendant as a business competitor. Additionally, the Defendant points out that
J.W. testified that she had sex with C.M. on only one occasion, whereas C.M. testified
this occurred more than once. The Defendant also alleges that C.M.’s testimony
regarding the date the offenses began to occur was inconsistent and that C.M. testified
inconsistently regarding the date that her sexual relationship with her female lover
began. Additionally, he contends that C.M. did not report the abuse until she became
angry at the Defendant and J.W., told them she would get even with them, and began
to work for the Defendant’s competitor.
In order to convict the Defendant of aggravated rape the State must
prove the Defendant had sexual intercourse with C.M. when she was under the age
of twelve. La.R.S. 14:42. C.M.’s testimony revealed the Defendant had sexual
intercourse with her in 1991, when she was eleven years old. Accordingly, a
reasonable trier of fact could conclude that the elements of aggravated rape were
proven beyond a reasonable doubt.
In order to convict the Defendant of each count of forcible rape, the State
had to prove: (1) an act of vaginal or anal intercourse; (2) lack of consent of the
victim; (3) the victim was prevented from resisting the act by force or threats of
physical violence; and (4) the victim reasonably believed that such resistance would
not prevent the rape. La.R.S. 14:42.1; State v. Schexnaider, 03-144 (La.App. 3 Cir.
6/4/03), 852 So.2d 450.
The Defendant was charged with one count of forcible rape for each year
from 1992 through 1995. C.M. testified that the Defendant had sex with her from
1991 to 1995. There were no details regarding the number of times the Defendant
had sexual intercourse with C.M. or the dates that these offenses occurred, with the
exception of the testimony regarding March 3, 1994. C.M. testified that J.W. began
11
to buy condoms for the Defendant’s use in 1991 or 1992 and J.W. testified that this
began in 1992 or 1993.
The State failed to prove that C.M. did not consent to sexual intercourse
with the Defendant, that the Defendant’s acts of force or threats of physical violence
prevented her from resisting the act, and that she reasonably believed that such
resistance would not prevent the rape.
The State relied upon evidence that the Defendant beat C.M. and her
family members to support the elements of forcible rape. In its opening statement,
the State informed the jury that the Defendant committed forcible rape and explained
that forcible rape was sexual intercourse by “force or violence or threats of force or
violence or reoccurring implied threats of force or violence.” In its closing argument,
the State made the following comments:
What happened to [C.M.]? Constantly getting beat. Mom
getting beat. If she didn’t submit. He had sex with her
from the time she was eleven years old until the time she
was sixteen. Did she fight him or resist him every time?
No. Not every time. Because she knew if she resisted, she
was going to be beaten.
There was no direct evidence that either J.W. or C.M. was beaten
constantly. J.W. testified that the Defendant beat her on a regular basis, which she
indicated might mean she would be beaten one day, then again two weeks later. The
evidence showed the Defendant beat C.M. twice, once when he thought she was
having sex with boys from school and a second time when she got involved in an
altercation he was having with J.W. Furthermore, there are no exact dates in the
record regarding beatings received by C.M. or J.W. Also, none of the beatings
discussed in the record occurred prior to or after a sexual act between C.M. and the
Defendant or because of C.M.’s refusal to participate in a sexual act with the
Defendant. C.M. did testify that she performed oral sex upon her mother because if
12
she refused the Defendant would beat her. This comment was in reference to a
refusal to perform a sexual act by C.M. upon her mother and had nothing to do with
a sexual act involving the Defendant.
The State brings out the fact that padlocks were placed on C.M.’s door.
However, J.W. placed the padlocks on the bedroom doors of her children. The only
testimony regarding the dates the locks were placed on the bedroom doors was by
R.M. who indicated this was done in 1997 or 1998, which was after the Defendant
stopped having sexual intercourse with C.M.
C.M. was never asked whether she consented to have sexual intercourse
with the Defendant, why she had sexual intercourse with the Defendant, or if she was
afraid the Defendant would beat her if she refused to have sexual intercourse with
him. Viewing the evidence in the light most favorable to the prosecution, the State
failed to prove the elements sufficient to support the Defendant’s four convictions for
forcible rape.
Under La.Code Crim.P. art. 821(C), “an appellate court that finds ‘the
evidence, viewed in a light most favorable to the state, supports only a conviction of
a lesser included responsive offense . . . may modify the verdict and render a
judgment of conviction on the lesser included responsive offense.’” State v. Teague,
04-1132, p. 9 (La.App. 3 Cir. 2/2/05), 893 So.2d 198, 205. We must, therefore,
determine whether any responsive offense was proven.
Sexual battery is a responsive offense to forcible rape. La.Code Crim.P.
art. 814(A)(10). At the time of the offenses, sexual battery was defined as follows:
A. Sexual battery is the intentional engaging in any
of the following acts with another person, who is not the
spouse of the offender, where the offender acts without the
consent of the victim, or where the other person has not yet
attained fifteen years of age and is at least three years
younger than the offender:
13
(1) The touching of the anus or genitals of the victim
by the offender using any instrumentality or any part of the
body of the offender; or
(2) The touching of the anus or genitals of the
offender by the victim using any instrumentality or any part
of the body of the victim.
La.R.S. 14:43.1. Accordingly, the State had to prove beyond a reasonable doubt that
the Defendant touched the anus or genitals of C.M. using any part of his body and this
occurred when C.M. was under the age of fifteen.
C.M. testified that the Defendant had sexual intercourse with her on a
continual basis from 1991 to 1995. Accordingly, the State proved the Defendant
touched C.M.’s genitals with a part of his body. C.M. turned fifteen on January 10,
1995. Therefore, she was under the age of fifteen when the offenses in 1992, 1993,
and 1994 were committed. The Defendant’s age was not an element of the offenses
of aggravated rape or forcible rape. Consequently, no testimony regarding the
Defendant’s age was presented. However, the Defendant’s age at the time of his
daughter’s birth in 1977 appears on that child’s birth certificate, which was submitted
into evidence. State exhibit 10 lists the Defendant’s age as thirty on December 14,
1977. Accordingly, at the time of the offenses, the Defendant was more than three
years older than C.M. Therefore, the State proved that C.M. was under the age of
fifteen and the Defendant was three years older than her when the offenses in 1992,
1993, and 1994 were committed. Accordingly, the evidence, when viewed in the
light most favorable to the prosecution, establishes that the Defendant committed
sexual battery against C.M. in 1992, 1993, and 1994. Therefore, a reasonable trier
of fact could conclude that the evidence warrants convictions for sexual battery
occurring in 1992, 1993, and 1994.
14
C.M. turned fifteen on January 10, 1995. Whether any sexual acts were
committed by the Defendant upon C.M. between January 1, 1995 and January 10,
1995 is not demonstrated by the evidence. Although there was testimony that the
Defendant had sexual intercourse with C.M. on a continual basis, that is not sufficient
to prove that the Defendant had sexual intercourse with C.M. during that time period.
Additionally, the State would have to prove that any sexual intercourse that occurred
in 1995 was without the consent of C.M. The State failed to ask C.M. if she
voluntarily had sexual intercourse with the Defendant in 1995. The only evidence
regarding this issue was C.M.’s testimony that she did not voluntarily have sex with
the Defendant in 1991. Accordingly, the State failed to prove that the Defendant
committed an offense in 1995. The Defendant’s conviction for forcible rape
occurring in 1995 is vacated.
Although the Defendant points out inconsistencies in the testimony of
C.M. and J.W., the jury’s verdict indicates that it believed the testimony of C.M.,
notwithstanding any inconsistencies in the testimony presented at trial. Additionally,
“[t]he credibility of a witness, including the victim, is within the discretion of the trier
of fact, who may accept or reject, in whole or in part, the testimony of any witness.
‘[T]he Jackson standard does not serve as a vehicle for a reviewing court to second
guess the rational credibility determinations of the fact finder at trial.’” Schexnaider,
852 So.2d at 457 (citations omitted), quoting State v. Williams, 00-981, p. 7 (La.App.
5 Cir. 4/11/01), 786 So.2d 805, 810, writ denied, 01-1377 (La. 3/20/02), 812 So.2d
646. Furthermore, the testimony of the victim alone is sufficient to establish the
elements of a sexual offense. Id.
15
Retroactive Application of La.Code Evid. art. 412.2
The Defendant contends the trial court’s retroactive application of
La.Code Evid. art. 412.2 violated the ex post facto clause.
At the time the offenses at issue were committed, La.Code Evid. art.
404(B) governed the admissibility of evidence regarding other crimes, wrongs, or
acts. In 2001, the legislature enacted Article 412.2.3 The Defendant contends the
application of this article to his case was a violation of the ex post facto clause. At
the time of the Defendant’s trial, Article 412.2 provided as follows:
A. 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 sexual offense 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.
B. In a case in which the state intends to offer
evidence under the provisions of this Article, the
prosecution shall, upon request of the accused, provide
reasonable notice in advance of trial of the nature of any
such evidence it intends to introduce at trial for such
purposes.
C. This Article shall not be construed to limit the
admission or consideration of evidence under any other
rule.
The Louisiana Supreme Court has not decided whether the retroactive
application of Article 412.2 is a violation of the ex post facto clause. In footnote two
of State v. Morgan, 02-3196 (La. 1/21/04), 863 So.2d 520, the supreme court noted
3
The Louisiana legislature enacted La.Code Evid. art. 412.2 after the supreme court decisions
in State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, superceded by statute as stated in
State v. Brown, 03-1747 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, writ denied, 04-1413 (La.
11/8/04), 885 So.2d 1118, and State v. Kennedy, 00-1554 (La. 4/3/01), 803 So.2d 916, superceded
by statute as stated in State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So.2d 113, writ denied,
02-1280 (La. 11/27/02), 831 So.2d 269. In McArthur, the supreme court held that evidence of a prior
sexual assault involving an adult was inadmissible under the “lustful disposition” exception of
La.Code Evid. art. 404(B). In Kennedy, the supreme court held that aggravated rape was a general
intent crime; therefore, the only issue pertinent was whether penetration occurred. As the evidence
regarding other crimes did not bear upon an essential element of the offense, it was inadmissible.
16
that the retroactive applicability of Article 412.2 “remains an open question.” Id. at
521. However, we conclude the retroactive application of Article 412.2 does not
constitute a violation of the ex post facto clause.
The United States Supreme Court has interpreted the ex post facto clause
of the United States Constitution as prohibiting four types of laws. In Carmell v.
Texas, 529 U.S. 513, 120 S.Ct. 1620 (2000), the court cited Calder v. Bull, 3 U.S.
386, 390 (1798), listing the four types of ex post facto laws as follows:
“1st. Every law that makes an action done before the
passing of the law, and which was innocent when done,
criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when
committed. 3d. Every law that changes the punishment,
and inflicts a greater punishment, than the law annexed to
the crime, when committed. 4th. Every law that alters the
legal rules of evidence, and receives less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the
offender.” Id., at 390 (emphasis in original).
Carmell, 529 U.S. at 522, 120 S.Ct. at 1627. The court also stated that it has
“repeatedly endorsed this understanding, including, in particular, the fourth
category.” Id. at 525, 120 S.Ct. at 1629.
Louisiana Constitution Article 1, § 23 also prohibits the enactment of
any ex post facto law. In State ex rel. Olivieri v. State, 00-172, 00-1767 (La.
2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566 (2001), the
Louisiana Supreme Court followed the current federal approach to the ex post facto
analysis and held that the basis of the analysis should be whether the law alters the
definition of criminal conduct or increases the penalty and not whether the change in
a law operates to the disadvantage of an individual. Id. The court stated in footnote
twenty that its exclusion of the fourth category set out in Calder, 3 U.S. 386, should
not be interpreted as a rejection of that category. Olivieri, 779 So.2d at 735.
17
The Defendant argues that Article 412.2 is an ex post facto law of the
fourth federal category. In Carmell, 529 U.S. at 532-33, 120 S.Ct. at 1632-33
(footnote omitted), the Supreme Court affirmed the use of the fourth ex post facto
category and declined to limit its application to statutes that alter the burden of proof,
explaining:
A law reducing the quantum of evidence required to
convict an offender is as grossly unfair as, say,
retrospectively eliminating an element of the offense,
increasing the punishment for an existing offense, or
lowering the burden of proof (see infra, at 1636-1639). In
each of these instances, the government subverts the
presumption of innocence by reducing the number of
elements it must prove to overcome that presumption; by
threatening such severe punishment so as to induce a plea
to a lesser offense or a lower sentence; or by making it
easier to meet the threshold for overcoming the
presumption. Reducing the quantum of evidence necessary
to meet the burden of proof is simply another way of
achieving the same end. All of these legislative changes,
in a sense, are mirror images of one another. In each
instance, the government refuses, after the fact, to play by
its own rules, altering them in a way that is advantageous
only to the State, to facilitate an easier conviction.
Additionally, the Court mentioned that it does not distinguish between
statutes that are procedural or substantive. The Court stated:
The better understanding of Collins’ discussion of
the Ex Post Facto Clause is that it eliminated a doctrinal
hitch that had developed in our cases, which purported to
define the scope of the Clause along an axis distinguishing
between laws involving “substantial protections” and those
that are merely “procedural.” Both Kring v. Missouri, 107
U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson
v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898)-
-the two cases Collins overruled--relied on just that
distinction. In overruling them, the Court correctly pointed
out, “the prohibition which may not be evaded is the one
defined by the Calder categories.” 497 U.S. at 46 [110
S.Ct. 2715]. Accordingly, Collins held that it was a
mistake to stray beyond Calder’s four categories, not that
the fourth category was itself mistaken.
Id. at 539, 120 S.Ct. at 1636 (citing Collins v. Youngblood, 497 U.S. 37, 110 S.Ct.
2715 (1990)).
18
This court must determine whether the application of Article 412.2 to
this case required the State to present less or different testimony than the law required
at the time the offenses at issue were committed. The Defendant argues that the
admission of evidence pursuant to Article 412.2 significantly relaxed the standard
under which prior sex crimes and alleged acts may be admitted and the admission of
such evidence is likely to “predispose the jury into believing that the defendant
committed the crime for which he is presently on trial, rather than evaluating the
present facts and rendering a verdict based on those facts.” The Defendant contends
this effectively lowers the State’s burden of proof and allows for the presentation of
evidence vastly different than that allowed when the offenses were committed.
Accordingly, the Defendant argues the admission of evidence pursuant to Article
412.2 violates the ex post facto clause.
The State contends the supreme court allowed evidence of an accused’s
commission of other sexual offenses prior to the effective date of Article 412.2 in
State v. Williams, 02-898, 02-1030 (La. 10/15/02), 830 So.2d 984. In Williams, the
offenses at issue did occur prior to the enactment of Article 412.2. However, the
issue presented to the court was whether the requirements of State v. Prieur, 277
So.2d 126 (La.1973), were applicable to Article 412.2. The court was not called upon
and did not address the retroactive application of Article 412.2.
We recognize that jurisprudence from other states is not binding upon
us. We refer to it for instructive and persuasive purposes only. For example, in
McCulloch v. State, 39 S.W.3d 678 (Tex.App.-Beaumont 2001), the defendant was
convicted in January 2000 of aggravated sexual assault of his stepdaughter. The
offense occurred in August 1988 and was reported to police in November 1997.
Between the time of the alleged offense and the time of trial, the Texas legislature
enacted Article 38.37 of its Code of Criminal Procedure which provided that:
19
evidence of other crimes, wrongs, or acts committed by the
defendant against the child who is the victim of the alleged
offense . . . shall be admitted for its bearing on relevant
matters, including:
(1) the state of mind of the defendant and the
child; and
(2) the previous and subsequent relationship
between the defendant and the child.
Id. at 679. Pursuant to Article 38.37, the state offered evidence of other sexual
assaults committed by the defendant against the victim before and after the charged
offense. On appeal, the defendant argued that the application of Article 38.37 in his
case was a violation of the ex post facto clause of the United Sates Constitution. The
defendant specifically alleged that Article 38.37, as it was enacted after the charged
offense was committed, altered the legal rules of evidence and required less or
different testimony than the law required at the time of the commission of the offense.
The defendant cited Carmell, 529 U.S. 513, in support of his argument.
The court found that Carmell was distinguishable, indicating that the
statute in Carmell “defined the evidence by which a conviction was ‘supportable.’”
McCulloch, 39 S.W.3d at 683. The court noted that Article 38.37 did not lower the
quantum of evidence necessary to support a conviction, but simply provided that a
specific type of evidence would be admissible on certain relevant matters. The court
went on to state the following:
Though it is correct to say that the admissibility of
evidence under article 38.37 runs in the State’s favor, the
retrospective application of the statute cannot be said to
violate the ex post facto clause on this basis alone. The
statute does not lower the quantum of proof required for
conviction. Before article 38.37, the child victim’s
testimony concerning prior “acts” committed by the
defendant against the child was not admissible unless such
evidence fell within an exception under Rule 404(b). In
removing the restrictions on that testimony, the statute
enlarges the scope of the child’s admissible testimony, but
leaves untouched the amount or degree of proof required
20
for conviction. Article 38.37 pertains to what kind of
evidence may be introduced at law; unlike article 38.07,
the statute at issue in Carmell, article 38.37 is not a
sufficiency of the evidence rule. Here, the question is the
admissibility of the evidence, not whether the properly
admitted evidence is sufficient to convict McCulloch. See
Carmell, 529 U.S. at 546 [, 120 S.Ct. 1620]. While the
evidence is probative, the evidence is not required for
conviction of the offense.
In short, article 38.37 eliminates the necessity of showing
the evidence falls within one of the Rule 404(b)
exceptions. In that sense, it relaxes the strictness
associated with Rule 404(b), but, in no way does it alter the
quantum of proof required by law to support the
conviction. As the court noted in Thompson v. Missouri,
171 U.S. 380 388, 18 S.Ct. 922, 43 L.Ed. 204 (1898), we
“cannot adjudge that the accused had any vested right in
the rule of evidence which obtained prior to the passage of
the [statute], nor that the rule established by that statute
entrenched upon any of the essential rights belonging to
one put on trial for a public offence.”
Id. at 684-85 (footnotes omitted).
In U.S. v. Johnson, 354 F.Supp.2d 939 (N.D. Iowa 2005), the defendant
was charged in connection with the murder of a witness to alleged drug-trafficking
activity by her sometime boyfriend. The government filed a pre-trial motion seeking
the admission of out-of-court statements by several decedents. The defendant argued
that the ex post facto clause barred the admission of statements made by Terry
DeGues pursuant to Rule 804(b)(6) of the Federal Rules of Evidence, because the
“forfeiture by wrongdoing”exception to Rule 804(b)(6) was added by an amendment
in 1997, four years after the murders. The court held that Rule 804(b)(6) simply
changed what evidence was competent in a criminal prosecution and its application
to the defendant’s case was not an ex post facto violation.
In People v. Dolph-Hostetter, 664 N.W.2d 254 (Mich.App. 2003),
appeal denied, 674 N.W.2d 380 (Mich. 2004), the defendant, her husband Ronald
Hostetter, and Dale Smith were arrested for the murder of a woman occurring in
21
1996. In 2000, Hostetter pled guilty in exchange for agreeing to testify against the
defendant at trial. The defendant filed a motion to exclude her husband’s testimony
on the grounds that its admission would violate the ex post facto clause. Prior to its
amendment, M.C.L. § 600.2162 specified that a married person or a person that had
been married previously could not be examined regarding any communications made
between that person and his/her spouse or former spouse during the marriage. In
2001, the statute was amended to allow for testimony regarding prior communications
between spouses or former spouses with the consent of the person being examined.
The court noted that the amendment at issue was not analogous to the amendment at
issue in Carmell, 529 U.S. 513. The court held that the amendment to the marital-
communications privilege did not alter the quantum of evidence necessary to convict
a person, but simply affected what evidence may be introduced at trial and did not
violate the ex post facto clause.
The retroactive application of Article 412.2 to the Defendant’s case did
not constitute an ex post facto violation. Article 412.2 did not alter the amount of
proof required in the Defendant’s case as it merely pertains to the type of evidence
which may be introduced. Prior to the enactment of Article 412.2, the testimony at
issue was admissible if it fell within an exception under La.Code Evid. art. 404(B).
Article 412.2 merely removed that restriction.
La.Code Evid. arts. 404(B) and 412.2 Issues
The Defendant contends the trial court erred in failing to exclude
evidence of his other crimes or past bad acts pursuant to La.Code Evid. art. 404(B).
He further contends the trial court erred in failing to exclude evidence of his other
crimes or past bad acts pursuant to La.Code Evid. art. 412.2. Finally, the Defendant
contends the trial court erred in permitting the State to exceed the scope of its notice
22
given pursuant to Articles 404(B) and 412.2. Inasmuch as these three assignments
relate to the same evidence, we will address them together.
The Defendant specifically argues that the State’s notice under Article
404(B) was inadequate in that it failed to specifically advise the Defendant of the
name of the alleged perpetrator, the name of the alleged victim, the date upon which
the alleged acts occurred, and the specific location where the alleged acts occurred.
Further, the notice did not inform the Defendant of the applicable section of Article
404(B). For the same reasons, the Defendant alleges the State’s notice was
inadequate under Article 412.2.
The Defendant also contends he was unable to determine whether the
evidence was relevant, fit within an exception to Article 404(B), or whether the
probative value of the evidence outweighed its prejudicial effect pursuant to La.Code
Evid. art. 403 because the trial court failed to conduct a Prieur hearing. Additionally,
because there was no Prieur hearing, the State failed to satisfy its burden of proving
the alleged prior acts were admissible under Article 404(B). The Defendant also
avers that a Prieur hearing should have been held under Article 412.2 as he was
“ambushed by non-charged and acquitted conduct which dated back as far as 33 years
prior to trial.”
The Defendant further asserts that evidence of other crimes and bad acts
was not admissible under both Articles 404(B) and 412.2 pursuant to State v.
Kennedy, 00-1554 (La. 4/3/01), 803 So.2d 916, superceded by statute as stated in
State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So.2d 113, writ denied, 02-1280
(La. 11/27/02), 831 So.2d 269. The Defendant also asserts the admission of the
evidence was unfairly prejudicial. Additionally, the Defendant contends the State’s
evidence went well beyond the scope of the notice it filed and the trial court abused
23
its discretion in permitting the admission of the evidence and refraining from
admonishing the jury to disregard the evidence.
The State contends that it did not introduce any evidence pursuant to
Article 404(B) and that all evidence of prior offenses was introduced under Article
412.2. The State additionally contends that it provided adequate notice to the
Defendant of the prior sexual offenses from LaSalle Parish.
The Defendant filed a Motion to Exclude Evidence of “Other Crimes”
or “Past Bad Acts” on September 28, 2001, in anticipation of the State’s desire to use
evidence of other crimes or bad acts. The court held a hearing on October 16, 2001,
where the matter was taken under advisement. The State filed its Notice of Intent to
Defendant on November 2, 2001, stating its intention to introduce at trial evidence
of prior convictions and numerous other prior sexual offenses. The trial court denied
the Defendant’s motion to exclude on December 4, 2001; however, the State was
ordered to describe the acts and offenses it intended to use with more particularity.
The Defendant sought review of this decision in a writ filed on December 21, 2001.
On March 18, 2002, in State v. Willis, an unpublished writ opinion bearing docket
number 01-1662 (La.App. 3 Cir. 3/18/02), writ denied, 02-1132 (La. 6/14/02), 818
So.2d 780, this court held:
WRIT DENIED: The hearing at issue before this court
was held on the Defendant’s motion to exclude evidence
which he anticipated the State to introduce. Thus,
Defendant bore the burden of proof at this hearing and he
failed to meet this burden. Therefore, we find no error in
the trial court’s ruling denying the Defendant’s motion.
However, this ruling should not be interpreted as
permitting the introduction of the alleged other crimes or
bad acts evidence without conducting the required Prieur
hearing. See State v. Prieur, 277 So.2d 126 (La.1973)....
Accordingly, the Defendant’s writ application is denied.
On March 26, 2003, the Defendant filed a Motion for Prieur Hearing.
At a hearing on April 22, 2003, the trial court ruled that the State had provided the
24
necessary evidence. The Defendant sought review of this decision in a writ filed on
May 23, 2003. On June 12, 2003, in State v. Willis, an unpublished writ opinion
bearing docket number 03-648 (La.App. 3 Cir. 6/12/03), this court held:
WRIT DENIED: In State v. Willis, an unpublished writ
opinion bearing docket number 01-1662 (La.App. 3 Cir.
3/18/02), this court ordered a Prieur hearing be held to
determine the admissibility of the Defendant’s other crimes
evidence pursuant to La.Code Evid. art. 412.2. However,
before the trial court held the hearing, the Louisiana
Supreme Court ruled that a pretrial determination of the
admissibility of article 412.2 evidence is not required, and
the procedural requirements of Prieur are inapplicable.
See State v. Williams, 2002-1030 (La. 10/15/02); 830 So.2d
984.
At the hearing, the trial court stated that the other
crimes evidence is admissible “at this time”; leaving open
the final determination of the admissibility of the evidence
at trial. Therefore, the trial court’s ruling is not a final
definitive ruling. Additionally, the hearing previously
ordered by this court was no longer necessary and the issue
concerning the admissibility of the evidence at issue may
be raised during the trial of this matter.
Furthermore, at the hearing held in this matter, the
trial court found that because La.Code Evid. art. 412.2 is
procedural, and not substantive, it can be applied
retroactively without violating ex post facto prohibitions.
We note this distinction is no longer valid. See Collins v.
Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990) and
Carmel[l] v. Texas, 120 S.Ct. 1620, 529 U.S. 513 (2000).
However, as this case is not in a procedurally proper
posture, this court does not reach the issue of whether
La.Code Evid. art. 412.2 violates ex post facto prohibitions.
Accordingly, we do not reach the merits of the
claims raised by Defendant and we deny his application.
The Defendant filed a Motion and Incorporated Memorandum for Prieur
Hearing on June 4, 2004. The Defendant’s motion was denied on July 8, 2004. On
June 18, 2004, the State filed a letter wherein it listed five witnesses and informed
defense counsel that the necessary details of the past crimes could be obtained by
interviewing the listed witnesses and by reviewing files from LaSalle Parish.
25
Additionally, a comparison of the crimes committed in LaSalle Parish and Catahoula
Parish was filed in the record in June 2004.
ARTICLE 412.2
Pursuant to La.Code Evid. art. 412.2, “evidence of the accused's
commission of another sexual offense 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.” The clear wording of the statute covers evidence of other sexual
offenses and anything that forms an integral part of that act. Integral act evidence
is evidence that is “‘related and intertwined with the charged offense to such an extent
that the state could not have accurately presented its case without reference to it.’”
State v. Colombo, 98-2813, p. 3 (La. 10/1/99), 747 So.2d 1074, 1075 (quoting State
v. Brewington, 601 So.2d 656, 657 (La.1992)).
The Defense limits the issue regarding prior offenses to evidence
involving the Defendant’s prior victims. The evidence presented by the State in its
case included testimony involving physical abuse to Ms. Lockwood, Ms. Chisom,
their mother, and their brothers and sisters. There was testimony that the Defendant
had sex with all children in the family and, if the girls refused to have sex with him,
he beat the entire family. There was additional testimony that the Defendant beat and
hung the mother from a tree and that he set fire to their home. Evidence regarding
beatings received in relation to a sexual act or the refusal to commit such an act
would be admissible under Article 412.2 as an integral part of the offense. Evidence
regarding maltreatment not related to a sexual offense and evidence that the
Defendant set the house on fire would be admissible if the requirements of Article
404(B) were met. Accordingly, the State’s assertion that it did not present any
evidence pursuant to Article 404(B) is incorrect.
26
The supreme court in Williams, 830 So.2d 984, held that Article 412.2
does not require the trial court to hold a pre-trial hearing before admitting the
evidence. “Whether or not we would be inclined to disagree with that holding is
irrelevant, because the appellate court is bound to follow Louisiana Supreme court
opinions. Pelican State Association v. Winder, 253 La. 697, 219 So.2d 500
(La.1969).” State v. Serio, 94-131, p. 4 (La. 5 Cir. 7/01/94), 641 So.2d 604, 607, writ
denied, 94-2025 (La. 12/16/94), 648 So.2d 388. Accordingly, this court cannot say
the trial court erred in failing to hold a pre-trial hearing regarding the admissibility
of evidence pursuant to Article 412.2.
In Kennedy, 803 So.2d 916, the supreme court held that absent a dispute
as to whether the accused intended to commit the crime, evidence of other crimes was
prohibited to show intent when the crime charged was a general intent crime. The
Defendant argues that Kennedy is applicable in the case at bar. However, the decision
in Kennedy was implicitly overruled by the legislature’s enactment of Article 412.2.
Even so, the trial court in this case was required to determine whether the probative
value of the evidence of prior sex offenses was “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.” La.Code Evid. art. 403; La.Code
Evid. art. 412.2.
In State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, the
fifth circuit compared Article 412.2 to Federal Rule of Evidence 413 inasmuch as the
supreme court has noted that the two are similar. The court made the following
remarks:
Although the wording of the federal rule differs from the
Louisiana rule, as observed by the Louisiana Supreme
Court in Williams, [830 So.2d 984,] a review of federal
jurisprudence reveals the two rules are virtually identical
in application. In particular, the federal courts have held
27
that evidence introduced under Federal Rule of Evidence
413 is subject to the Federal Rule of Evidence 403
balancing test. United States v. Mound, 149 F.3d 799, 800
(8th Cir.1998), cert. denied, 525 U.S. 1089, 119 S.Ct. 842,
142 L.Ed.2d 697 (1999); United States v. Guardia, 135
F.3d 1326, 1330 (10th Cir. 1998). . . .
....
. . . The federal courts have noted that “Rule 413 is
based on the premise that evidence of other sexual assaults
is highly relevant to prove propensity to commit like
crimes, and often justifies the risk of unfair prejudice.”
United States v. Enjady, [ 134 F.3d 1427, 1430-1431 (10th
Cir. 1998), cert. denied, 525 U.S. 887, 119 S.Ct. 202, 142
L.Ed.2d 165 (1998)]. The courts have concluded that
“Rule 413 supersedes Rule 404(b)’s restriction and allows
the government to offer evidence of a defendant’s prior
conduct for the purpose of demonstrating a defendant’s
propensity to commit the charged offense.” United States
v. Guardia, supra at 1329. Furthermore, the courts have
noted there is no inherent error in admitting evidence under
Rule 413 that would be inadmissible under Rule 404(b).
United States v. Mound, supra at 802.
In discussing the effect Federal Rule 403 has on
Rule 413, the federal courts have stated that propensity
evidence is relevant. United States v. Guardia, supra at
1328. The courts caution that, in applying the 403
balancing test, careful attention must be given to “both the
significant probative value and the strong prejudicial
qualities inherent in all evidence submitted under 413.” Id.
at 1330. The United States Tenth Circuit observed that
“[i]f Rule 413 evidence were always too prejudicial under
403, Rule 413 would never lead to the introduction of
evidence.” Id. The federal courts have recognized “the
strong legislative judgment that evidence of prior sexual
offenses should ordinarily be admissible” and have read
Rule 413 to create somewhat of a presumption that the
evidence is admissible. United States v. LeCompte, 131
F.3d 767, 769 (8th Cir.1997); United States v. Enjady,
supra at 1431.
In United States v. Enjady, supra, defendant was
convicted of aggravated sexual abuse. During trial, the
State introduced evidence under Federal Rule 413 of a
prior rape defendant allegedly committed through the
testimony of the alleged victim. The defendant appealed
claiming prejudicial error in the admission of the evidence
of the prior rape. The United States Tenth Circuit found
the trial court properly ruled the evidence admissible under
28
Rule 413 and properly considered Rule 403 in balancing
the probative value of the evidence against prejudice to the
defendant. The court noted “the exclusion of relevant
evidence under Rule 403 should be used infrequently,
reflecting Congress’ legislative judgment that the evidence
‘normally’ should be admitted.” United States v. Enjady,
134 F.3d at 1432.
In discussing “unfair prejudice” as contemplated by
Rule 403, the United States Eighth Circuit stated, “Rule
403 is concerned only with ‘unfair prejudice, that is, an
undue tendency to suggest decision on an improper basis.’”
United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001),
quoting United States v. Yellow, 18 F.3d 1438, 1442 (8th
Cir. 1994). The court noted that evidence under Federal
Rule 414 is prejudicial for the same reason it is probative,
it shows the defendant’s propensity to molest young
children. The court concluded that “because propensity
evidence is admissible under Rule 414, this is not unfair
prejudice.” Id. at 960.
Id. at 217-18 (footnote omitted).4
The court went on to hold that evidence of the prior rape by the
defendant was “highly relevant to show defendant’s propensity to sexually assault
women as they tend to matters near their vehicles and to attempt to kidnap the women
and drive away in their vehicles.” Id. at 218-19. The court noted that for the same
reasons the evidence was probative, it was also prejudicial to the defendant. The
court then made the following comments:
Like Congress, the Louisiana Legislature saw a need
to lower the obstacles to admitting propensity evidence in
sexual assault cases. Considering the purpose behind
Article 412.2, the evidence is not so prejudicial as to
warrant exclusion. There is no indication evidence of the
prior rape confused or misled the jury. The evidence was
presented in an orderly manner with evidence of the prior
rape being presented at the end of the trial, clearly and
succinctly through two witnesses. Thus, there was little
chance the jury could confuse the facts of the two crimes.
Additionally, the fact that approximately twelve years
4
Federal Rule of Evidence 414(a) provides as follows: “In a criminal case in which the
defendant is accused of an offense of child molestation, evidence of the defendant’s commission of
another offense or offenses of child molestation is admissible, and may be considered for its bearing
on any matter to which it is relevant.”
29
passed between the prior rape and the current rape, does
not mandate the exclusion of the evidence. The
Legislature, like Congress, did not see fit to impose any
time limit on the admission of prior sex offenses. See,
United States v. Gabe, supra at 960.
Id. at 219.
In State v. Brown, 03-1747 (La.App. 3 Cir. 5/12/04), 874 So.2d 318, writ
denied, 04-1413 (La. 11/8/04), 885 So.2d 1118, this court noted that the
determination of the admissibility of the defendant’s prior conviction was a very close
call and turned upon the extent and quality of the trial court’s limiting instruction to
the jury. The defendant twice requested a limiting instruction regarding other crimes
evidence. This court held that the trial court’s failure to give the instruction was not
harmless error. This court stated that the only evidence of the crime was the
“somewhat inconsistent testimony of an eleven-year-old girl” and without a
qualifying instruction, it could not be “ruled out that the jury found the defendant
guilty because they decided he was a bad man who had committed a forcible rape in
the past.” Id. at 331-32. The court noted that unlike Olivieri, 860 So.2d 207, the
record indicated “the jury was confused and the evidence may have been presented
in such a manner so as to cause confusion when the facts of the 1987 conviction were
read to the jury just prior to the victim’s testimony.” Id. at 328. During deliberations,
the jury sent two notes to the trial court. In the first, the jury asked for the victim's
testimony. The second note questioned the number of votes necessary to reach a
verdict. The trial court informed the jury that testimony could not be repeated and
sent them back to continue deliberations. The jury voted ten to two to convict.
Brown, 874 So.2d 318.
The evidence of prior sex crimes in this case was admissible under
Article 412.2, and C.M. is the type of victim the legislature sought to protect when
it enacted the article. The evidence was permissible to prove propensity and was not
30
unfairly prejudicial, as the trial court gave an instruction to the jury at the close of
trial indicating that
[s]uch evidence is not admissible to prove that Mr. Willis
is a ‘bad person’ or that, in committing the charged
offenses, he acted in conformity with prior crimes or prior
bad acts. However, this evidence may be admissible for
such purposes as motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident.
Additionally, 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 Article 412.2.
ARTICLE 404(B)
The evidence of beatings not involving a sexual offense and the setting
of the house on fire are not covered by Article 412.2. For that evidence to be
admissible, it would have to fall within one of the exceptions set out in Article
404(B), which provides, in pertinent part, as follows:
B. Other crimes, wrongs, or acts. (1) Except as
provided in Article 412, evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person
in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident,
provided that upon request by the accused, the prosecution
in a criminal case shall provide reasonable notice in
advance of trial, of the nature of any such evidence it
intends to introduce at trial for such purposes, or when it
relates to conduct that constitutes an integral part of the act
or transaction that is the subject of the present proceeding.
Before other crimes evidence can be admitted under Article 404, the
requirements of Prieur, 277 So.2d 126, must be met. Pursuant to Prieur,
the state must, within a reasonable time before trial,
provide written notice of its intent to use other acts or
crimes evidence and describe these acts in sufficient detail.
The state must show the evidence is neither repetitive nor
cumulative, and is not being introduced to show the
defendant is of bad character. Further, the court must, at
31
the request of the defendant, offer a limiting instruction to
the jury at the time the evidence is introduced. The court
must also charge the jury at the close of the trial that the
other crimes evidence serves a limited purpose and that the
defendant cannot be convicted for any crime other than the
one charged or any offense responsive to it.
State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, superceded by statute
as stated in State v. Brown, 874 So.2d 318, writ denied, 885 So.2d 1118. Even if the
above requirements are not met,
[N]ot every Prieur violation mandates reversal. State v.
Pardon, 97-248 (La.App. 5 Cir. 10/15/97), 703 So.2d 50,
57, writ denied, 97-2892 (La.3/20/98), 715 So.2d 1207.
Before a defendant can complain of a Prieur violation, he
must first show prejudice. Id. In State v. Lee, 25,917
(La.App. 2 Cir. 5/4/94), 637 So.2d 656, 662, writ denied,
94-1451 (La.10/7/94), 644 So.2d 631, the Second Circuit
explained that “the rules of Prieur were not meant to be
used as additional, technical procedures sacramental to a
valid conviction” and noted that substantial compliance
with Prieur is all that is required.
State v. Temple, 01-655, p. 20 (La.App. 5 Cir. 12/12/01), 806 So.2d 697, 709-10, writ
denied, 02-0234 (La. 1/31/03), 836 So.2d 58.
In any event,
[t]he erroneous admission of other crimes evidence is
subject to harmless error analysis under the standard set out
in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). See State v. Gibson, 391 So.2d 421
(La.1980). Under Chapman, an appellate court must
decide “whether there is a reasonable possibility that the
evidence complained of might have contributed to the
conviction,” and “the court must be able to declare a belief
that [the error] was harmless beyond a reasonable doubt.”
Chapman, 386 U.S. at 24, 87 S.Ct. 824.
The Chapman standard was later refined in Sullivan
v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124
L.Ed.2d 182 (1993), as follows:
“Consistent with the jury-trial guarantee, the
question [Chapman ] instructs the reviewing
court to consider is not what effect the
constitutional error might generally be
expected to have upon a reasonable jury, but
32
rather what effect it had upon the guilty
verdict in the case at hand . . . . The inquiry,
in other words, 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.”
(emphasis in original).
State v. Bell, 99-3278, pp. 5-6 (La. 12/8/00), 776 So.2d 418, 421-22.
Regardless of whether a Prieur hearing was held, the Defendant was not
prejudiced. Evidence of the Defendant’s commission of prior sexual offenses was
before the jury pursuant to Article 412.2. Accordingly, the introduction of evidence
relating to beatings not involving a sexual offense and the setting of the house on fire
was surely unattributable to the verdict.
In summary, the evidence of prior sexual offenses and beatings that
formed an integral part of those offenses was admissible under Article 412.2. The
remainder of the other crimes evidence, if improperly admitted, was harmless error.
NOTICE
The Defendant avers that the State’s Article 412 notice was inadequate.
Additionally, because the Sate failed to provide reasonable notice, defense counsels
allege they did not have the ability to cross-examine Judy Chisom or Charlotte
Lockwood.
The State’s notice read, in pertinent part, as follows:
In accordance with the provisions of Article 412 of
the Louisiana Code of Evidence, you are hereby notified of
the State’s intention to introduce into evidence of
convictions in LaSalle Parish:
1. Indecent Behavior with a Juvenile.
2. Three (3) counts of Carnal Knowledge
of a Juvenile on Charlotte, Judy and
Cheryl Bates.
33
Also the State intends to introduce evidence of other
offenses in LaSalle Parish including:
1. Forcible Rape of Judy Bates on April
29, 1981.
2. Various other acts or offenses against
Jimmy, Charlotte, Judy and Cheryl
Bates in that during the years of 1973,
1974, 1975, 1976, 1977, 1978, 1979,
1980 and 1981 he did engage in a
reoccurring course of conduct, wherein
he did wilfully and unlawfully violate
the laws of Simple Assault, Aggravated
Assault, Simple Battery, Aggravated
Battery, Aggravated Rape, Forcible
Rape, Sexual Battery, Aggravated Oral
Sexual Battery, False Imprisonment,
Carnal Knowledge of a Juvenile,
Molestation of a Juvenile, Cruelty of
Animals, and Simple Criminal Damage
to Property.
At a hearing held on April 22, 2003, the State informed defense counsel
that it intended to prove the offenses as follows:
I intend to offer and introduce his guilty pleas to the Bill
number 24269, Indecent Behavior With a Juvenile; 24904,
Carnal Knowledge of a Juvenile; 24905, Carnal
Knowledge of a Juvenile; 24906, Carnal Knowledge of a
Juvenile; plus the State intends to offer evidence in form
of, the victims of each of these offenses, sworn testimony.
And witnesses to those occurrences by other victims.
The State additionally informed the court and defense counsels that it
intended to introduce the birth certificate wherein the Defendant was listed as the
father of a baby born to a juvenile. Admitted into evidence at the hearing held on
April 22, 2003 was State exhibit 2. Included therein was a time-line which indicated
acts of molestation by the Defendant upon Charlotte, Judy, and Cheryl. Additionally,
the exhibit indicated that Charlotte Lockwood was forced to sleep in bed with the
Defendant, the Defendant had sexual intercourse with the writer of the list,5 the
5
We assume that Judy Chisom wrote the list.
34
mother was hung from a tree, and the entire family was beaten. Ms. Lockwood
became pregnant, had the Defendant’s child, and eventually ran away. When she ran
away the Defendant set the house on fire and Judy Chisom took Ms. Lockwood’s
place. Ms. Lockwood agreed to come back for the sake of her sister and eventually
married the Defendant. Additionally, on June 18, 2004, the State sent a letter to
defense counsel informing them that the details of the crimes could be obtained by
interviewing J.W., Charlotte Lockwood, Judy Chisom, R.M., and Jimmy Bates, and
that further information could be obtained by examining the record of the proceedings
in LaSalle Parish.
We cannot say the Defendant was prejudiced by the notice. The notice
contained the names of the Defendant’s prior victims, the years in which the alleged
acts occurred, and indicated the offenses occurred in LaSalle Parish. The Defendant
was also provided with information regarding the testimony of Ms. Lockwood and
Ms. Chisom, as evidenced by State exhibit 2 introduced on April 22, 2003.
Additionally, the defense could have reviewed the file from LaSalle Parish and
interviewed various witnesses.
The Defendant is correct in his assertion that the notice did not contain
the section of Article 404(B) relied upon by the State. However, Article 404(B) does
not require that information to be set forth in the notice. Additionally, all evidence
of prior sexual offenses was admissible under Article 412.2, and there is no
requirement in that article wherein the State must lay out the basis for the
admissibility of such evidence.
The Defendant set forth examples of the testimony he felt went beyond
the scope of the State’s notice. He cites the testimony of Ms. Lockwood wherein she
stated that the Defendant frequently physically beat her and her family. She
additionally testified that the Defendant molested “all my brothers and sisters.” The
35
Defendant avers that the notice contains no information regarding homosexual
activity.
The Defendant contends he objected to the testimony regarding the
Defendant’s involvement with males. We find no such objection. Ms. Lockwood
was asked whether she had any personal knowledge of “any of this type of activity”
between the Defendant and her brothers and sisters. Ms. Lockwood testified that the
Defendant molested “all my brothers and sisters.” She then indicated she meant the
Defendant “had sexual intercourse, oral sex, made them have oral sex on him.” She
indicated this happened to Jimmy, Judy, Cheryl, and herself. Four other questions
were asked then the State asked Ms. Lockwood to tell the jury how the Defendant
beat her. Defense counsel then objected, stating the following: “I would like to
impose an objection. That goes outside the scope of 412 and 404B and for reasons
previously stated, we have not had appropriate notice. We have not had appropriate
pretrial prieur hearings and for these reasons I want to state the objection for the
record.” The objection referred to beatings received by Ms. Lockwood, and the
Defendant failed to object to the testimony regarding males. Accordingly, the
Defendant failed to preserve this issue for review. La.Code Crim.P. art. 841.
These assignments lack merit.
Mistrial Request
The Defendant contends the trial court erred in failing to declare a
mistrial because, he says, the State misled the jury regarding the law under Articles
404(B) and 412.2 during its opening statement.
During opening statements, the State made the following comments:
Defense counsel in its voir dire indicated there may be
something in his past that the State may bring out that you
might should exclude. I’m not going to go into that now,
but I am going to tell you I am going to introduce evidence
36
of what he has done in his past in an attempt to prove what
occurred in this case. The law allows that under two or
three different codal articles. The State does intend to
introduce evidence of that effect. I wish I had ten people
that had just gotten out of church that could say yes, I saw
this. I haven’t because this happened under the privacy of
the bedroom. But I’ve got two that’s going to tell you, and
I don’t think the two people’s tales are going to be word for
word identical.
This assignment is without merit. The Defendant failed to move for a
mistrial or make an objection at the time these comments were made. Accordingly,
he waived his right to have this issue addressed on appeal. See State v. Davis, 02-
2059 (La.App. 4 Cir. 1/22/03), 839 So.2d 176; State v. Clark, 02-1463 (La. 6/27/03),
851 So.2d 1055, cert. denied, 540 U.S. 1190, 124 S.Ct. 1433 (2004).
Challenge for Cause
The Defendant asserts that the trial court erred in failing to grant a
challenge for cause to the defense for juror Ashley Book. Louisiana Code of
Criminal Procedure Article 797 states, in pertinent part:
The state or the defendant may challenge a juror for
cause on the ground that:
....
(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;
(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.
The Defendant asserts that the trial court erred in denying his challenge
for cause because Ms. Book had contact with the prosecutor before this case began
37
as well as on the first night of the instant trial. Further, the Defendant alleged that the
juror had domestic issues that would cause her to be unacceptably sympathetic to the
State’s witnesses.
The issues with the juror first came to light during trial, on the morning
of Wednesday, July 21, when the district attorney disclosed that Ms. Book had called
his cell phone on the previous night. Ms. Book made the call in order to inform him
that she would be late in arriving for the following day’s trial. When he realized she
was a juror in an ongoing trial, the State’s attorney immediately informed Ms. Book
that he could not speak with her and ended the conversation.
Ms. Book had previously contacted the district attorney’s private law
office in order to determine whether he could represent her in a domestic matter. This
conversation was limited to a discussion of the costs and the need for an office
appointment, but the record does not show that Ms. Book made any further
arrangements to retain his legal services.
Louisiana Code of Criminal Procedure Article 796 states:
If it is discovered after a juror has been accepted
and sworn, that he is incompetent to serve, the court may,
at any time before the first witness is sworn, order the juror
removed and the panel completed in the ordinary course.
In the application of Article 796, the jurisprudence indicates that whether a juror
should be dismissed is a matter subject to the discretion of the trial court. In State v.
Fuller, 454 So.2d 119 (La.1984), a juror was dismissed during a capital trial for
violating the judge’s sequestration order. The decision to replace that juror with an
alternate juror was made following an evidentiary hearing at which all parties were
present, and held in order to determine the existence, nature and extent of the juror’s
violation and the proper action to take. In affirming the trial court’s decision, the
supreme court recognized that “[t]he judge . . . considered alternative courses of
38
action” and ruled that “[r]eplacing the juror with the alternate under the overall
circumstances was a proper exercise of the trial judge’s discretion.” Id. at 123.
The trial judge did not abuse his discretion in denying the Defendant’s
challenge of juror Ashley Book for cause. The trial judge determined that the
minimal contacts between the juror and the district attorney, occurring prior to the
trial, and on the night following the first day of trial, were not sufficient to call into
question the impartiality of that juror. This conclusion was not an abuse of discretion.
Accordingly, this assignment is denied.
Prosecutorial Misconduct
The Defendant contends the trial court erred in failing to declare a
mistrial for prosecutorial misconduct during closing argument and rebuttal.
Additionally, the Defendant contends the trial court failed to admonish the jury to
disregard the improper comments.
The scope of proper closing argument is confined to
“evidence admitted, to the lack of evidence, to conclusions
of fact that the state or defendant may draw therefrom and
to the law applicable to the case.” La.Code Crim. Proc.
Ann. art. 774 (West 1998). However, a prosecutor is
afforded considerable latitude in making closing
arguments. State v. Byrne, 483 So.2d 564 (La.1986), cert.
denied, 479 U.S. 871, 107 S.Ct. 243, 93 L.Ed.2d 168
(1986); State v. Morris, 404 So.2d 1186 (La.1981). As a
general rule, the prosecutor may not use closing argument
as a vehicle to express his personal opinions about the
defendant when his opinion is expressed in a manner that
the jury may understand has been formed from evidence
outside of the record. State v. Procell, 365 So.2d 484, 489
(La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164, 60
L.Ed.2d 1046 (1979). Such an opinion is permissible if the
prosecutor refers to, or it is apparent that his opinion is
based on, the evidence of record. Id. See also State v.
Hicks, 395 So.2d 790, 797-98 (La.1981); State v. Bretz,
394 So.2d 245, 248 (La.1981), cert. denied, 454 U.S. 820,
102 S.Ct. 102, 70 L.Ed.2d 91 (1981).
This Court has recognized as a matter of well-settled
law that the prosecutor has the right to “press upon the jury
39
any view of the case arising out of the evidence--the
Supreme Court is bound to credit jurors with common
intelligence, conscientiousness, and sense of duty.” State
v. Alexander, 215 La. 245, 40 So.2d 232, 234 (La.1949).
Even when we have found the prosecutor to have exceeded
the proper bounds of argument, this Court has often
criticized the improper arguments without finding that they
constituted reversible error. See, e.g. Byrne, supra; State
v. Jarman, 445 So.2d 1184 (La.1984); State v. Messer, 408
So.2d 1354 (La.1982). The standard by which this Court
determines whether improper closing argument constitutes
reversible error is whether it is “firmly convinced that the
jury was influenced by the remarks and that they
contributed to the verdict.” State v. Sanders, 93-0001 p.
16-17 (La.11/30/94), 648 So.2d 1272, 1285-86, cert.
denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194
(1996); Byrne, 483 So.2d at 572; Messer, 408 So.2d at
1357.
State v. Frost, 97-1771, p. 18-19 (La. 12/1/98), 727 So.2d 417, 432-33, cert. denied,
528 U.S. 831, 120 S.Ct. 87 (1999), superceded by statute on other grounds as stated
in State v. Gomez, 00-0566 (La. 1/17/01), 778 So.2d 549.
During closing arguments, the State made the following comments:
She pled guilty to the appropriate crime and Judge Boothe
is going to sentence her. That’s it. We’re not forcing
[J.W.] to come in here and testify. She did that of her own
free will. She is going to pay the price and the Judge is
going to sentence her. So what’s the offensive, ladies and
gentlemen? I mean there is not doubt in my mind that this
man committed this crime.
Defense counsel objected to the comments. However, the court denied the objection.
On appeal, the Defendant contends that in making these comments the prosecutor
expressed his personal opinion as to the Defendant’s guilt and put his “stamp of
approval” on J.W.’s credibility.
The State continued its closing argument, making the following
statements:
If you find this person not guilty you’ve got to call all those
ladies right there liars. You think they’re lying? That’s
what you’ve got to do. When you come back in here and
say not guilty, you’re calling them a liar. That’s what you
40
have to do. And I submit to you, ladies and gentlemen,
there is no way those ladies would submit themselves to
this type of cross examination, this type of public
humiliation. You talk about something that personal, that
devastating, what this man did to her. He victimized them
over and over and over and over and over again for years.
During rebuttal, the State made the following remarks:
Of course, in my job I represent the state. I represent the
people of Catahoula Parish. I don’t represent criminal
defendants. I did at one time. Didn’t like it so I went the
other way. And I can tell you this, I’d have to be awful,
awful sure of somebody’s innocence before I would ever
defend anyone myself.
Defense counsel moved for a mistrial after these comments, indicating the Defendant
had a constitutional right to representation and the prosecutor was using the authority
and credibility of the District Attorney’s Office to try to win his case. The motion
was denied. The Defendant contends that with these remarks, the prosecutor
inappropriately used the authority and credibility of the District Attorney’s Office to
sway the jury. Additionally, the prosecutor impugned the presumption of innocence
as well as the Defendant’s right to counsel.
The State continued its rebuttal, making the following comments:
Beyond a reasonable doubt, that’s all we have to prove.
And you did see me stand up before you and dismiss an
indictment. The reason the state did that is because there
was not, in my opinion there was not reasonable cause after
hearing all of that testimony to do. I would not call upon
you as a juror to consider a charge of this magnitude if I
wasn’t fully convinced of it and if I couldn’t prove it
beyond a reasonable doubt.
Defense counsel again sought to stop the prosecutor from giving what he felt was the
prosecutor’s opinion. The court instructed the prosecutor to refrain from giving his
“personal feelings and private thoughts.” On appeal, the Defendant argues that with
these comments, the prosecutor “injected his personal opinion while armed with the
cloak of authority of the district attorney’s office.”
41
The State continued, making the following remarks:
Well, there’s one thing else and I took offense to
this, Mr. Davis’ spoken statement. He said that [J.W.]
would do or say anything to get out of jail. I don’t know if
you resent that or not but as a person, I do. Because it
means that I would have to promote this, condone this.
And there’s even a line in the –
Defense counsel then objected. The trial court cautioned the State, making the
following statements: “But there was a strong implication in the defendant’s closing
argument of this type of situation. I want to caution Mr. Johnson to avoid using
personal credibility or the credibility of the office. Just - - stay away from that. All
right.” The Defendant contends the prosecutor advised the jury that he believed in
the credibility of a witness and placed his authority behind the credibility of that
witness.
The Defendant cites State v. Duke, 358 So.2d 293 (La.1978), in support
of his arguments. In Duke, the prosecution made the following comments during
closing argument:
“(The defense counsel) tells you that I'm harassing him (the
accused) because I’m prosecuting him. Well, let me tell
you, Gentlemen, like I said before. I’m doing my job, and
my job is to convict people that I feel are guilty. And
that’s exactly what I’m doing. I’ve nol-prossed many,
many cases. I’ve dismissed cases, Gentlemen.”
Id. at 294. The court held these remarks were improper and stated the following:
[O]ur jurisprudence has regarded this type of error as
prejudicial, if the prosecutor’s argument clearly indicates
that it is an expression of his personal belief of the
accused’s guilt not expressly or impliedly based on the
evidence in the record, or if (in derogation of the
constitutional presumption of innocence) the argument
invokes the influence of the prosecutor’s official position
by a clear implication that the defendant would not have
been prosecuted unless he were in fact guilty.
In isolated excerpt, the portion of the argument
quoted appears to fall within that category of prejudicial
prosecutorial argument which requires mistrial.
42
....
Ultimately, we conclude that, under the
circumstances and in the context of the entire argument, the
admonition instead of a mistrial was sufficient to assure a
fair trial. La.C.Cr.P. art. 771. These circumstances
include: the isolated context of the comment in the light of
the entire argument; the prompt objection to it, promptly
sustained with an admonition to the jury to disregard it;
That the brief comment only by implication indicated the
prosecutor’s improper suggestion that he himself believed
the accused guilty and only prosecuted guilty persons-an
implication which (due to the brevity of the comment and
the swiftness of curative admonition by the judge) was
unlikely to have been deduced by the jury; and the
non-improper intended nature of the comment, which (in
the context of the entire argument by both counsel) was
only to respond to a defense argument contending there
was improper harassment of the accused by the
prosecution.
Id. at 294-95.
The Defendant also cites State v. Smith, 554 So.2d 676 (La.1989), and
State v. Kaufman, 304 So.2d 300 (La.1974), for the proposition that a “prosecutor
cannot vouch for the credibility of a witness or use the credibility and prestige of the
district attorney’s office to bolster its case.”
The Defendant points out the following language from Smith, 554 So.2d
676:
[I]t has consistently been held to be reversible error for the
prosecutor to express his belief in the guilt of the accused,
or the credibility of a key witness, where doing so implies
that he has additional knowledge or information about the
case which has not been disclosed to the jury.
Id. at 681 (emphasis added).
In Kaufman, 304 So.2d 300, the prosecutor made the following
comments:
‘I don’t believe that Willie Holmes, a friend of Kaufman,
confessed to robbery and murder, unless it was true’
(objection made by defendant), then immediately a
reference to Delores Williams as yet a third participant in
the killing (objection), then, ‘Gentlemen, my argument,
43
when I speak in a personal way, my argument is based on
the evidence, and believe me, that’s right, I personally feel
from the evidence that I have a case; Otherwise, I wouldn't
be here, because it’s within my power to be here or not be
here’ (objection).
Id. at 307 (emphasis added). The supreme court noted that the basis for the
defendant’s objection was that the prosecutor was expressing his personal opinion as
to the defendant’s guilt. The court concluded the prosecutor’s argument went
“beyond the permissible bounds” and constituted an attack on the presumption of
innocence. Id. at 308. Additionally, the prosecutor’s comments emphasized his
function as an officer of the government and tended to exploit it. The court noted that
such an argument was “almost universally held to be objectionable.” Id. The court
went on to hold that the improper and prejudicial argument was an additional reason
for reversal. Id. The Defendant points out the following language in Kaufman, 304
So.2d 300: “‘Adds to the probative force of the testimony adduced upon the trial the
weight of the prosecutor’s personal influence, knowledge, professional opinion, or
the influence of his official position.’ (italics ours.)” Id. at 308, quoting 5 Wharton’s
Criminal Law and Procedure (Anderson ed., 1967).
Additionally, the Defendant cites State v. Jones, 98-1165 (La.App. 3 Cir.
2/3/99), 734 So.2d 670. In Jones, the prosecution made the following comments:
How is it that he’s a self-confessed liar when what he is
saying totally coincides with what Mr. LeJeune said took
place that day? The problem is that this self-confessed liar
took responsibility for what he did and pled guilty. Mr.
Jones does not want to take responsibility for his actions.
Id. at 671-72. This court held that the comments by the prosecutor were improper and
violated the defendant’s constitutional right to the presumption of innocence.
However, the court found that a constitutional error did not automatically require
reversal and that a reversal was warranted only when the substantial rights of the
accused are affected. The court went on to find that the comments had a “high
44
probability of allowing the jury to impose a lesser standard than guilt beyond a
reasonable doubt.” Id. at 673. Furthermore, the comments were “unrelated to any
truth-seeking function and aborted the presumption of innocence and right to a fair
trial” guaranteed by the constitution. Id. This court ordered a mistrial and remanded
the matter for a new trial.
In State v. Plaisance, 32,489 (La.App. 3 Cir. 10/27/99), 745 So.2d 784,
writ denied, 99-3609 (La. 6/2/00), 763 So.2d 594, the prosecutor made the following
comments: “It only gets here if the case is presented to grand jury and the person is
indicted for murder and brought to trial.” Id. at 790. The state argued that the
comment was in response to the defendant’s closing argument which included the
following statement: “It doesn’t take much to accuse someone of a crime. Any time
someone dies, somebody is going to be accused of killing them. Somebody is going
to be accused of murder.” Id. The defendant relied on the statement made by the
prosecution in Kaufman, 304 So.2d 300. The court concluded that the state’s
comments were not “nearly as clear and direct an expression of personal opinion as
those in Kaufman.” Id. As the state’s comments were made to rebut those of the
defendant, the court noted that the remarks could be interpreted as an explanation of
the criminal process as much as an expression of the prosecutor’s personal belief in
the defendant’s guilt. However, the court held that the state’s comments were an
explanation of the prosecutorial process offered to rebut the defendant’s argument.
The court went on to state that even if the comments amounted to a personal belief
in the defendant’s guilt, it was an isolated comment.
In State v. May, 339 So.2d 764 (La.1976), the prosecutor made the
following comments in closing argument: “Now, so far as I’m concerned, after
hearing that evidence, he is guilty, and there is no question in my mind about it.” Id.
at 775. The court noted that these comments were preceded by a lengthy recitation
45
of facts proven at trial. The court held that, taken in context, the statement was not
the type that required reversal, as the attorney did not imply that he had personal
knowledge of facts not presented to the jury that indicated the defendant’s guilt.
In State v. Cuchinelli, 261 La. 789, 261 So.2d 217 (La.1972), the
prosecutor stated the following: “‘I don’t know, but I’m firmly convinced that at
10:30 on April 13, 1970, Frances Cuchinelli murdered Judy McManus on that gravel
road.’” Id. at 221. The court held that after reading the state’s entire argument, it was
persuaded that the prosecutor did not intend to convey his personal opinion that the
defendant was guilty. The court went on to find that, taken in context, the prosecutor
meant that based on the evidence he was convinced that the defendant killed the
victim at the time and place stated.
In State v. Theard, 527 So.2d 393 (La.App. 4 Cir.), writ denied, 533
So.2d 372 (La.1988), the prosecutor stated, “It’s clear as a bell and that’s why the
Grand Jury indicted him for second-degree murder because the evidence show it was
a second-degree murder.” Id. at 398. The court noted that “[i]t is impermissible for
the prosecutor to abandon his argument on the evidence and express his opinion as
to the guilt of the defendant by commenting that he would not prosecute if he did not
have a case. C.Cr.P. Art. 774: State v. Hamilton, 356 So.2d 1360 (La.1978); see also
State v. Procell, 365 So.2d 484 (La.1978); State v. Sawyer, 350 So.2d 611
(La.1977).” Although the prosecutor’s comments were improper, the court did not
reverse the defendant’s conviction because the improper comments did not materially
contribute to the verdict based on the fact that the jury deliberated for only nine
minutes, three eyewitnesses testified that the defendant shot the victim in the back
without physical provocation as the victim was attempting to flee, and the defendant
admitted shooting the victim. Id.
46
The prosecutor in this case stated, “there is no doubt in my mind that this
man committed this crime.” This comment, when taken alone, appears to be an
improper reference to the guilt of the Defendant and would require that a mistrial be
ordered. However, when taken in context, this comment does not appear to be
improper. This comment was made after a long recitation of the facts, a discussion
regarding J.W.’s guilty plea, and the fact that it was up to the judge to sentence J.W.,
not the District Attorney’s Office. This comment is almost identical to the one made
by the prosecutor in May, 339 So.2d 764. As in May, the prosecutor’s comments in
this case came after a discussion of the testimony at trial and the prosecutor did not
imply that he had personal knowledge of facts not presented to the jury which
indicated the Defendant’s guilt.
The prosecutor further commented that he once represented defendants
but could not now defend someone unless he was “awful sure” of their innocence.
Prior to these comments, the prosecutor pointed out the fact that defense counsel did
not call several witnesses to support theories he used to “put a little seed of doubt”
in the mind of the jury. The prosecutor stated that defense counsel used a “pretty
good trick” and he would have to remember “that one.” He then made the comments
at issue. Taken in context, the prosecutor’s comments may be viewed as his attempt
to inform the jury that his function was different than that of a defense attorney and
he was no longer interested in defending anyone. These remarks were not as clear
and distinct as those in Duke, 358 So.2d 293, Kaufman, 304 So.2d 300, Jones, 734
So.2d 670, and May, 339 So.2d 764. Additionally, the prosecutor’s comments did not
contain any reference to evidence outside the record.
The prosecutor stated, when discussing a dismissed charge, that he
would not ask the jury to consider a charge unless he was fully convinced of it and
could prove the charge beyond a reasonable doubt. During the defense’s closing
47
argument, the following remarks were made: “Some evidence was presented to the
Grand Jury. I assume it was [C.M.] That’s how they got the indictment. Well
something different must have happened from this witness stand because now they
dropped one of those very serious aggravated rape charges which carries a life in
imprisonment penalty.” Defense counsel later made the following comments: “I
submit that you will receive very clear doubts, reasonable doubts in this case. The
same type of doubts that apparently occurred when they dismissed the first count in
the middle of the trial.” As in Plaisance, 745 So.2d 784, the comments by the
prosecutor were made in order to rebut the statements made by defense counsel and
appear to explain the prosecutorial process and the burden of proof.
The comments complained of by the Defendant were not improper and
this assignment of error lacks merit.
“[A]n argument with regard to the credibility of a witness is proper
where the credibility of the witness is in question and the facts bearing on the
witness’ credibility appear in the record. State v. Sayles, 395 So.2d 695 (La.1981);
State v. Procell, 365 So.2d 484 (La.1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2164,
60 L.Ed.2d 1046 (1979); State v. May, 339 So.2d 764 (La.1976); State v. West, 319
So.2d 901 (La.1975).” State v. Brewer, 38,515, pp. 9-10 (La.App. 2 Cir. 8/20/04),
880 So.2d 1005, 1011, writ denied, 04-2509 (La. 2/18/05), 896 So.2d 27. The
credibility of J.W. and C.M. was clearly at issue in this case. The defense attorney
pointed this out in his closing argument when he informed the jury that the case
hinged on the credibility of C.M. and J.W. Accordingly, a comment by the prosecutor
in reference to their credibility was not improper.
In conclusion, any reference by the prosecutor to the credibility of the
State’s witnesses was proper.
48
Racially-Biased Statements
The Defendant contends the trial court erred in failing to declare a
mistrial when the State induced inappropriate racially-biased statements. The
Defendant contends the State induced testimony from C.M. that the Defendant did not
want her to go to school because there were “blacks” and “niggers” there. The
Defendant contends these statements were irrelevant and immaterial to the State’s
case and were highly inflammatory; yet, the trial court declined to admonish the jury
or declare a mistrial.
The State contends the testimony at issue was not immaterial or
irrelevant and was evidence of force or threats of physical violence used against C.M.
The State also avers the Defendant used the “inhumane tactics and intimidation”
testified to in order to repeatedly forcibly rape C.M.
During the testimony of C.M., the State asked her what she did to
deserve a bull whipping. She responded, in pertinent part, as follows: “he thought
I was sleeping . . . with niggers at school . . . .” Defense counsel did not object to this
testimony.
The State later asked C.M. if the Defendant ever used guns to threaten
her. C.M. responded as follows: “he held a pistol to my head and told me that it
would be better for my brains to be blowed out than me to sleep with niggers at
school.” The State asked C.M. four more questions and then indicated its questioning
of her was complete.
Defense counsel then asked for a sidebar conference wherein he
informed the court that he thought the use of the “N” word by C.M. was improper and
was an attempt to inflame the jury. The trial court informed defense counsel there
was no contemporaneous objection. Defense counsel told the court that “once it’s
out, it’s out.” Although the transcript does not indicate that defense counsel moved
49
for a mistrial, the trial court made the following comments: “Well, the Court will
note your objection. Deny your motion for mistrial.”
Pursuant to La.Code Crim.P. art. 771, the trial court may:
[G]rant a mistrial if an admonition is not sufficient to
assure the defendant of a fair trial when a witness makes an
irrelevant or immaterial remark or comment of such a
nature that it might create prejudice against the defendant
in the mind of the jury. When the trial court is satisfied
that an admonition to the jury is sufficient to protect the
defendant, that is the preferred remedy. A trial court’s
ruling denying a mistrial will not be disturbed absent an
abuse of discretion. State v. Narcisse, 426 So.2d 118, 133
(La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78
L.Ed.2d 176 (1983).
State v. Givens, 99-3518, p. 12 (La. 1/17/01), 776 So.2d 443, 454.
The Defendant alleges there were four African-Americans on the jury.
However, that information is not found in the record. The information may have been
given in a sidebar conference, as there are numerous sidebar conferences in the record
wherein portions of the conferences are inaudible. During the sidebar conference
following C.M.’s testimony, the following comments were made by defense counsel:
“For the record (inaudible) members of the jury.”
In State v. Mayeaux, 570 So.2d 185 (La.App. 5 Cir. 1990), writ denied,
575 So.2d 386 (La.1991), the defendant moved for a mistrial when a recorded
conversation between himself and the victim was played to the jury. During that
conversation, the defendant referred to blacks as “niggers.” The mistrial was denied.
On appeal, the defendant argued that this reference was highly prejudicial. The court
reviewed the matter under La.Code Evid. art. 403 and found the reference was not
racially-motivated, but was characteristic of the defendant’s manner of expressing
himself. The conclusion was supported by the fact that the defendant used numerous
expletives during the conversation and the term at issue was no more prejudicial or
inflammatory than the other expletives used.
50
In State v. Tran, 98-2812 (La.App. 1 Cir. 11/5/99), 743 So.2d 1275, writ
denied, 99-3380 (La. 5/26/00), 762 So.2d 1101, a police officer testified that the
defendant was arrested by the Asian Gang Task Force. On this basis, the defendant
moved for a mistrial, alleging that the use of the word “gang” was highly prejudicial
and served only to inflame the jury. The trial court noted there had been a pre-trial
ruling excluding the use of the word at trial and the prosecutor had informed officers
not to use the word. Additionally, the prosecutor maintained there was no intent to
show the defendant was in a gang. The motion was then denied. The appellate court
held there was no showing of clear prejudice and there was no indication the
defendant was unable to obtain a fair trial because of the officer’s statement.
Additionally, the use of the word was not deliberately obtained by the prosecutor in
order to prejudice the defendant’s rights.
In State v. Kaufman, 278 So.2d 86 (La.1972), the state asked a witness
the following question on re-direct:
‘Do you deny that you told Patricia Butler that there were
just two White honkys who got killed, and if it had been
two colored people they would have forgotten about it?
Do you deny that you told her that?’ (The witness replied:
‘Yes, I do.’)
Id. at 96 (emphasis added).
Ms. Butler was called as a witness and testified that the prior witness “said something
about honkys.” The state inquired about the prior witness’ remarks. Ms. Butler then
testified that “She said something about the honkys.” The state again inquired, asking
Ms. Butler what the prior witness said about white honkys. Ms. Butler testified as
follows: “She just kept saying the white honkys. She said something about the
honkys, these two men that was killed.” During closing arguments, the prosecutor
stated: “She denies that she told her [i.e., Patricia Butler] don’t worry about these two
51
white honkys.” Id. at 97. Defense counsel made several objections regarding the
above quoted comments. These objections were denied.
The appellate court went on to hold that whether or not the witness
mentioned anything about honkys was irrelevant to the guilt or innocence of the
defendant. The court held that a mistrial should have been granted because the
repeated emphases of the derogatory epithet used by an associate of the defendant
“could have only the effect of inflaming the white jury.” Id. at 98.
In the case at bar, the prosecutor informed the trial court of the following
once defense counsel objected to C.M.’s testimony: “On the fact that it was just a
recitation by the witness. I wasn’t expecting on more than one occasion she would
say that, but so be it. There’s a lot of things that could inflame a jury.”
The testimony at issue does not rise to the level of that in Kaufman, 278
So.2d 86. The case at bar is most similar to Mayeaux, 570 So.2d 185, and Tran, 743
so.2d 1275. However, the case at bar is distinguishable from Mayeaux in that it
appears the prosecutor in this case did not deliberately elicit the testimony at issue.
Accordingly, the trial court did not abuse its discretion when denying the Defendant’s
motion for mistrial regarding C.M.’s testimony. Additionally, the Defendant did not
request an admonishment to the jury; therefore, the trial court did not err in failing to
give one. State v. Texada, 99-1009 (La.App. 3 Cir. 2/2/00), 756 So.2d 463, writ
denied, 00-2751 (La. 6/29/01), 794 So.2d 824.
This assignment lacks merit.
Prosecutorial Abuse of Grand Jury Power
The Defendant argues that the trial court erred in denying his October
8, 2001 motion to dismiss the indictment based on the prosecutorial abuse of grand
jury power. The Defendant alleges that the prosecution abused the grand jury system
52
by using post-indictment grand jury subpoenas to force witnesses to testify in order
to prepare the State’s case for trial. The Defendant claims that the use of the grand
jury system to obtain the testimony of Judy Chisom and Cheryl Bates was improper
because their testimony would not have led to any further indictments due to double
jeopardy prohibitions.
On October 16, 2001, the district court conducted a hearing on
Defendant’s motion to dismiss the indictment. At the hearing, the Defendant argued
that the prosecution abused the grand jury process under La.Code Crim.P. arts. 437
and 439 because there was no offense being investigated in Catahoula Parish in
September 2001 when the women were subpoenaed to testify before the grand jury.
The Defendant claimed that the investigation against him concerning C.M. had been
completed when the grand jury returned its indictment and that the women could only
testify to incidents occurring between ten and fifteen years prior to the hearing.
Based on those assertions, the Defendant asked the trial court to either dismiss the
indictment or to exclude the testimony at issue from the trial.
The State responded that the record did not support the Defendant’s
arguments because the grand jury was allowed to investigate other crimes and
because the grand jury could have issued other indictments based on the women’s
testimony. The State contended that the original indictment only charged the
Defendant with aggravated rape based on the victim being under the age of twelve,
but, following the women’s testimony, the grand jury then amended the indictment
to charge the Defendant with aggravated rape under La.R.S. 14:42 in its entirety, not
just under subsection (A)(4). After listening to the arguments presented by both
sides, the district court granted the prosecution seven days to file a memorandum in
support of its arguments.
53
The State filed its answer to the Defendant’s motion. In its answer, the
State responded that the Defendant’s allegations were mere speculation and reiterated
that, subsequent to the testimony of Judy Chisom and Cheryl Bates, the indictment
was amended to broaden the grounds for the charges; the charges then encompassed
La.R.S. 14:42 instead of citing to specific sections of the statute. The trial court
issued a ruling, which found that the law was in favor of the prosecution and denied
the Defendant’s motion to dismiss the indictment.
The Defendant claims that the prosecutor improperly subpoenaed Judy
Chisom and Cheryl Bates to testify before the grand jury because no further
indictments against him were being contemplated at that time. The Defendant
contends that the women’s testimony was improper because they would have only
been able to testify about prior offenses, which had already been prosecuted.
However, no indictment shall be quashed or conviction reversed because the grand
jury based its indictment, in whole or in part, on illegal evidence. La.Code Crim.P.
art. 442. Therefore, this claim is insufficient to merit a quashed indictment or
reversed conviction.
The Defendant argues that prosecutorial misconduct is grounds for
dismissing the indictment if it constituted a due process violation and affected the
decision of the grand jury when considering the issuance of the indictment.
Prosecutorial misconduct may warrant a quashed indictment if it, by nature, misled
or unfairly affected the integrity of the grand jury as an independent and unbiased
body. State v. Walker, 567 So.2d 581 (La.1990).
The ultimate issue in a motion to dismiss an
indictment on the basis of prosecutorial misconduct is
whether the proved misconduct warrants such a drastic
remedy. The remedy for prosecutorial misconduct should
generally be tailored to the injury suffered from the
misconduct. . . . Absent demonstrable prejudice, dismissal
of the indictment is plainly an inappropriate remedy for
54
misconduct by the prosecutor’s attempting to obtain
evidence illegally.
Id. at 586-87. In cases of obvious prejudice, the supreme court has quashed
defendants’ indictments; such prejudice occurs when an accused is compelled to
testify against himself before the grand jury. State v. Smalling, 240 La. 915, 125
So.2d 409 (La.1960); State v. Harrell, 228 La. 434, 82 So.2d 701 (La.1955).
The Defendant did not demonstrate either the occurrence of prosecutorial
misconduct or sufficient prejudice to merit the dismissal of the indictment because
he failed to show that the State could not have prepared its case for trial without the
women’s grand jury testimony. The Defendant did not allege that the women would
have refused to voluntarily submit to questioning at the district attorney’s request.
Also, under La.Code Crim.P. art. 66(A), the prosecution may move for the issuance
of a subpoena ordering the person named in the motion to submit to questioning
concerning any offense being investigated by the prosecutor’s office. Thus, the
Defendant failed to show that the State obtained information through the grand jury
subpoena process that would have otherwise been protected.
Alternatively, the Defendant asserts that the women’s testimony should
have been suppressed because, even if the prosecutorial misconduct does not amount
to a due process violation, the court may suppress the evidence gathered as a result
of the prosecutorial misconduct because it is the fruit of the prosecutor’s
transgression. Walker, 567 So.2d 581. However, because the information in this case
was readily available to the prosecutor through other means, the women’s testimony
was not demonstrably the fruit of any transgression by the prosecutor. Id. Also, as
the grand jury had already indicted the Defendant for aggravated rape, there was no
indication that the testimony misled or unfairly affected the integrity of the grand
jury. Id.
55
Thus, this assignment of error is without merit.
Request for Production of C.M.’s Grand Jury Testimony
The Defendant contends the trial court erred by not granting his request
for production of C.M.’s grand jury testimony to show inconsistencies between it and
her trial testimony.
In his July 28, 2004 “Motion for Production of Videotaped Interview and
Grand Jury Testimony of [C.M.],” the Defendant sought the victim’s grand jury
testimony so that he could show inconsistencies between the testimony given at the
grand jury hearing and that given at trial. The Defendant claimed that C.M. must
have testified before the grand jury that her first sexual encounter with the Defendant
was in 1990 because the grand jury returned an indictment for a 1990 aggravated
rape. At the September 7, 2004 hearing, the Defendant argued that he should have
had access to the grand jury testimony for impeachment purposes because her trial
testimony stated that the first encounter occurred in 1991. The Defendant asserted
that the denial of his motion deprived him of a meaningful opportunity for cross-
examination.
At the post-trial hearing, the State responded that La.Code Crim.P. art.
434(a) preserved the secrecy of grand jury proceedings. The State averred that it had
dropped the 1990 aggravated rape charge because C.M.’s trial testimony stated that
she did not know for certain that the aggravated rape had occurred in 1990. The State
further asserted that, during pretrial, the district court had examined the victim’s
grand jury testimony for Brady material. After viewing the statement, the trial court
concluded that it contained no Brady material. The State argued that, even if the
testimony could be used for impeachment, it still was not Brady material because it
56
was not material evidence that would have made a difference in the outcome of the
case because the State had dismissed the 1990 aggravated rape indictment.
After listening to both sides, the trial court balanced the Defendant’s
interest in impeaching the victim’s credibility against the State’s duty to preserve the
secrecy of grand jury proceeding, and denied the Defendant’s motion. The
Defendant now contends that the trial court erred by not granting his request for
production of C.M.’s grand jury testimony.
Louisiana Code Criminal Procedure Article 434 provides only two
exceptions to the grand jury secrecy rule:
A. Members of the grand jury, all other persons
present at a grand jury meeting, and all persons having
confidential access to information concerning grand jury
proceedings, shall keep secret the testimony of witnesses
and all other matters occurring at, or directly connected
with, a meeting of the grand jury. However, after the
indictment, such persons may reveal statutory irregularities
in grand jury proceedings to defense counsel, the attorney
general, the district attorney, or the court, and may testify
concerning them. Such persons may disclose testimony
given before the grand jury, at any time when permitted by
the court, to show that a witness committed perjury in his
testimony before the grand jury. A witness may discuss his
testimony given before the grand jury with counsel for a
person under investigation or indicted, with the attorney
general or the district attorney, or with the court.
....
C. Any person who violates the provisions of this
article shall be in constructive contempt of court.
The Louisiana Supreme Court has consistently held that grand jury
testimony may not be used to impeach a witness; instead, grand jury testimony may
only be used in prosecutions for perjury, when a witness has admitted to committing
perjury, and in order to show statutory irregularities in the grand jury proceedings.
State v. Barker, 628 So.2d 168 (La.App. 2 Cir. 1993), writ denied, 93-3194 (La.
3/25/94), 635 So.2d 236; State v. Neslo, 433 So.2d 73 (La.1983); State v. Trosclair,
57
443 So.2d 1098 (La.1983), cert. dismissed, 468 U.S. 1205, 104 S.Ct. 3593 (1984);
State v. Ates, 418 So.2d 1326 (La.1982); State v. Prestridge, 399 So.2d 564
(La.1981); State v. Sheppard, 350 So.2d 615 (La.1977); State v. O’Blanc, 346 So.2d
686 (La.1977); State v. Ivy, 307 So.2d 587 (La.1975); State v. Terrebonne, 256 La.
385, 236 So.2d 773 (La.1970). Thus, Defendant was not entitled to the victim’s
grand jury testimony for impeachment purposes.
Therefore, this assignment of error is without merit.
Recusal of Trial Judge
The Defendant contends that the trial court erred in refusing to recuse
Judge Boothe after he made several “off the record” comments indicating the
Defendant was guilty. During trial, defense counsel made an oral motion for the
recusal of Judge Boothe, relying on La.Code Crim.P. art. 671(A)(1) as support. Judge
Bennett conducted a hearing on the motion.
At the hearing, Judge Boothe admitted that on the day prior to the
hearing, he commented that he would not bet his children’s lives, but he would bet
his life that Willis committed the crimes.6 He testified that during discussions in
chambers, he indicated he felt the Defendant was guilty based on his evaluation of the
witnesses and evidence. When asked if he made similar statements prior to the
presentation of evidence in the case, Judge Boothe stated that he had made similar
statements earlier, although he could not confirm exactly when they were made.
However, he denied forming an opinion regarding the Defendant’s guilt during
pretrial proceedings and explained that it was not until hearing some of the witnesses’
trial testimonies that he reached this conclusion.
6
This comment was made at a hospital the day prior to the hearing. In questioning the judge,
defense counsel said that a video deposition had been taken the previous afternoon at Rapides
Regional Medical Center. Presumably, the judge was there and this is the hospital he was referring
to.
58
Judge Boothe also admitted that during a “bull session,” he made
comments indicating his belief that the victim was telling the truth. For example, he
explained that the fact that the victim, when locked in her room, would use her
bedroom trash can as a toilet to avoid having to go through the Defendant’s bedroom
to get to the bathroom indicated she was being truthful in her allegations. Judge
Boothe also admitted to saying that in his opinion, the D.A. was pitching a shutout.
At the hearing, Judge Boothe testified that he has a ten-year-old
daughter, the same age as the victim in the case. Judge Booth explained that the
Defendant’s wife was involved to some degree in the offenses against her daughter.
He admitted that he made the comment that he did not think his wife would tolerate
behavior such as the Defendant’s if she was placed in the same situation. He also
acknowledged that during an in-chambers conversation with counsel, he got choked
up while making a comparison of the victim to his ten-year-old daughter.
When asked if he expressed horror and outrage at what the Defendant
was accused of, Judge Boothe explained that he would express horror and outrage at
any individual accused of acts such as those allegedly committed by the Defendant.
During the course of trial, Judge Boothe ruled that other crimes evidence
from 1981 offenses in LaSalle Parish was admissible. This was a hotly-contested
issue. According to Judge Boothe, after ruling on that issue and after the two victims
from those offenses testified, he made the comment that he thought the Defendant got
a “cakewalk” in LaSalle Parish and he acknowledged making a statement similar to
“it ain’t going to happen here.” However, Judge Boothe did not recall saying that the
Defendant was going to get the maximum sentence.
To put the “cakewalk” comment in context, the prosecutor, on cross-
examination, established that Judge Boothe knew that the Defendant was a trustee in
LaSalle Parish and that he was allowed to drive deputy cars out of state. The State
59
additionally pointed out that in this case, the Defendant was facing a mandatory life
sentence.
Despite the comments and opinions expressed by Judge Boothe, he
maintained that he could put everything aside and give the Defendant a fair and
impartial trial. In further support of his statement, Judge Boothe explained:
As a lawyer, Mr. Hymel, I represented, and argued
outspokenly, with passion, on behalf of clients who were
accused of despicable and horrible things. Some of them
which they did. I was professional enough to put aside my
personal feelings and do my job as an attorney representing
someone, my client, that I had severe, personal outrage at.
Horror at their acts. I represented them with effectiveness
and enthusiasm, putting aside my personal feelings. I did
that as an attorney. I can do the same thing as a judge.
During cross-examination, the State pointed out that Judge Boothe had
ruled in favor of the defense on several motions filed in conjunction with the case.
For example, Judge Boothe testified that he had granted a defense motion to suppress
as well as a defense motion to quash (on the basis that the time limitations had run).
He also denied a State motion to exclude hearsay and acknowledged that he
incorporated “almost verbatim” jury instructions proposed by the defense.
Additionally, on motion of the defense, Judge Boothe removed a juror after the jury
was sworn and he allowed the video deposition of a defense witness the day prior
because he felt the Defendant’s “defense was entitled to that man’s testimony.” On
redirect examination, the defense readdressed some of these rulings, noting the
judge’s actions were supported legally.
Judge Bennett ruled that the defense fell “woefully short” of meeting its
burden. Although the defense presented evidence that Judge Boothe has an opinion
which he expressed, Judge Bennett noted that Judge Boothe does not make the
decision as to the Defendant’s guilt or innocence. He further noted that even in light
60
of Judge Boothe’s belief that the Defendant is guilty, he went beyond the call of duty
in driving to Alexandria for a defense deposition the previous day.
On appeal, the Defendant contends that the statements made by Judge
Boothe reflect his bias and prejudice against the Defendant. He contends it is clear
that Judge Boothe could not and did not conduct a fair and impartial trial in that his
bias affected his rulings and the comments made throughout the trial.
Louisiana Code of Criminal Procedure Article 671(A)(1) provides:
A. In a criminal case a judge of any court, trial or
appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in
the cause to such an extent that he would be unable to
conduct a fair and impartial trial.
“A trial judge is presumed to be impartial. The burden is on the
defendant to prove otherwise.” State v. Dooley, 38,763, pp. 23-24 (La.App. 2 Cir.
9/22/04), 882 So.2d 731, 745, writ denied, 04-2645 (La. 2/18/05), 896 So.2d 30. In
State v. Battieste, 597 So.2d 508 (La.App. 1 Cir.), writ granted in part on other
grounds, 604 So.2d 960 (La.1992), on the second day of trial, during a hearing
concerning a request for self-representation by the defendant, the judge commented
outside the presence of the jury that he knew the defendant was guilty because his
fingerprint was found at the crime scene. The defense filed a motion to recuse the
judge from presiding over the motion for new trial hearing. The motion alleged that
the judge could not be fair and impartial due to his opinion that the defendant was
guilty. At the recusal hearing, the judge maintained that he could be fair and
impartial and that he would recuse himself if he had any bias prejudice or personal
interest. He explained that the statement he made was the best way for him to impress
upon the defendant the strength of the evidence against him. He further said that he
61
wanted the defendant to have the assistance of counsel because he felt the defendant
would be convicted. The first circuit held:
The statement at issue, which was not communicated
to the jury, is not a ground to recuse the trial judge from
hearing and deciding the motion for a new trial. Cf. State
v. Tyler, 342 So.2d 574 (La.1977). Although a trial judge’s
preconception of the defendant’s guilt in a bench trial is
probably grounds for recusation, such is not necessarily the
case in a jury trial. State v. Littleton, 395 So.2d 730
(La.1981); State v. Manning, 380 So.2d 54, 58 n. 6
(La.1980).
Id. at 514.
In State v. Collins, 288 So.2d 602 (La.1974), after the close of jury
selection, defense counsel informed the judge that his client had been charged with
three offenses since his arrest on the charge being tried. The following day, the judge
repeated this information to the clerk of court in the presence of another person.
Upon learning that the person was a juror, the judge removed him from the jury and
instructed him not to relate the information to any other panel members. The juror
testified outside the presence of the jury that he had not shared this information with
any other jurors.
After this incident occurred, the defendant filed a motion to recuse the
judge, asserting the following grounds:
On the following morning the defendant filed a
written motion setting forth that the trial judge was biased,
prejudiced and personally interested in the cause to such an
extent that he was unable to conduct a fair and impartial
hearing, as demonstrated by the court’s conduct in
essentially two areas. The first was the judge’s statement
made in the presence of the juror on the morning of the
second day of trial and related more particularly
hereinabove. The second had to do with the judge’s
conduct during the course of the trial, i.e., in the manner in
which he had overruled defendant’s objections and
sustained the State’s objections, his facial expressions to
the court reporter and to the jury, and his disparaging
remarks about defendant’s objections and motions. A third
assertion having to do with the court’s ruling excluding
62
certain testimony on cross examination from a State
witness, as a means for demonstrating the court’s bias
hardly warrants discussion. If the Judge ruled incorrectly
defense counsel should have perfected a bill of exceptions
rather than here complain that the Judge’s adverse ruling
indicates bias on his part.
Id. at 603.
The supreme court, in finding that the judge did not err in refusing to
refer the recusal motion to another judge for consideration, held:
It does not logically follow that a judge, who has
passed on information furnished him by defense counsel as
to defendant’s crimes allegedly committed by defendant
after the crime for which he is being tried, has a personal
interest in seeing the defendant convicted. It is at least as
likely if not more so that a judge is fully capable of
performing his duties impartially, notwithstanding his
receiving information from defense counsel and his
repeating same in private conversation outside of court. A
judge is presumed to be impartial. Beland v. United States,
117 F.2d 958 (5th Cir.) cert. denied, 313 U.S. 585, 61 S.Ct.
1110, 85 L.Ed. 1541 (1941). In State v. Laborde, 214 La.
644, 38 So.2d 371 (1949), where a stronger allegation was
made, this Court said that even a judge’s remark that the
defendant charged with attempting to steal hogs would
have a better chance before a jury than before the court did
not show that court was prejudiced against the defendant or
would be unable to give him a fair and impartial trial so as
to require the judge to sustain the motion for recusation or
refer it to another judge for trial.
As to defense counsel’s other allegations in the
motion to recuse, “(1) the manner in which he has
overruled defendant’s objections and sustained the state’s
objections; and (2) knowing facial expressions to the court
reporter and the jury, (3) disparaging remarks about
defendant’s objections and motions,” we failed to see that
the defendant has substantiated any of these allegations of
the judge’s bias, prejudice or interest. Those allegations
are mere conclusions of defense counsel, and represent his
personal opinion of the judge’s courtroom demeanor.
Therefore, we conclude that the trial judge properly
overruled the motion as no legal cause for recusation,
factually supported to our satisfaction, was set forth in the
motion. State v. Angel, 141 La. 921, 75 So. 843 (1917).
Id. at 604-05.
63
The court concluded that the factual allegations were unsupported by the
record. Further, the judge’s removal of the juror who overheard his comment and
determination that he had not informed other panel members of the information
reflected a desire to run a fair, impartial and orderly trial.
In the present case, there is no indication that any of Judge Boothe’s
comments regarding the Defendant’s guilt were made in the presence of the jury.
Additionally, although no specific adverse rulings are mentioned in support of the
Defendant’s argument on appeal, we note the only unfavorable ruling mentioned by
the Defense at the recusal hearing was the judge’s ruling allowing the introduction
of other crimes evidence. As noted by the supreme court in Collins, this unfavorable
ruling does not establish bias. Judge Bennett did not err in denying the motion to
recuse Judge Boothe in this case. Accordingly, this assignment of error should be
denied.
CONCLUSION
For the foregoing reasons, the Defendant’s conviction and sentence for
aggravated rape are affirmed. The Defendant’s convictions and sentences for forcible
rape for the years 1992, 1993, and 1994 are vacated and judgments of guilty of sexual
battery are entered. The matter is remanded for sentencing in accordance with this
court’s opinion. We determine that the Defendant’s conviction for forcible rape for
the year 1995 is vacated for lack of evidence.
AFFIRMED IN PART; REVERSED IN PART.
CONVICTION AND SENTENCE FOR AGGRAVATED RAPE
AFFIRMED.
CONVICTIONS FOR FORCIBLE RAPE FOR THE YEARS 1992,
1993, AND 1994 VACATED; JUDGMENTS OF GUILTY OF SEXUAL
64
BATTERY FOR THE YEARS 1992, 1993, AND 1994 ENTERED AND CASE
REMANDED FOR SENTENCING.
CONVICTION FOR FORCIBLE RAPE FOR 1995 VACATED
AND JUDGMENT OF ACQUITTAL ENTERED.
65
NUMBER 05-218
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
STATE OF LOUISIANA
VERSUS
ROBERT S. WILLIS
Pickett, Judge, dissenting in part.
I concur in the majority’s opinion to the extent that it affirms the defendant’s
conviction for aggravated rape. I disagree with the majority’s conclusion that the
convictions for forcible rape committed in the years 1992, 1993, and 1994 should be
vacated. I would find that the evidence, when viewed in the light most favorable to
the prosecution, supports the defendant’s convictions for forcible rape in those years.
Further, I would find that the evidence supports a jury’s conclusion that the victim
failed to consent to having sexual intercourse with the defendant in 1995, and would
affirm the defendant’s conviction for the forcible rape committed in 1995. I would
also affirm the sentences imposed for all of the convictions for forcible rape. For
these reasons, I respectfully dissent.