NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-442
STATE OF LOUISIANA
VERSUS
AUSTIN MOTT, JR.
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 25857-15 HONORABLE RONALD F. WARE, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED. John F. DeRosier District Attorney Carla S. Sigler Karen C. McLellan Cynthia Killingsworth Assistant District Attorneys 901 Lakeshore Drive, Suite 800 Lake Charles, Louisiana 70601 (337) 437-3400 Counsel for Appellee: State of Louisiana
Paula Corley Marx Louisiana Appellate Project Post Office Box 82389 Lafayette, LA 70598-2389 (337) 991-9757 Counsel for Defendant/Appellant: Austin Mott, Jr. KEATY, Judge.
On November 12, 2015, Defendant, Austin Mott, Jr., was charged by bill of
indictment with one count of aggravated rape, a violation of La.R.S. 14:42.
Defendant filed a motion to waive his right to a jury trial, which the trial court
granted by order dated May 27, 2016. At the conclusion of a one-day bench trial
held on February 13, 2017, Defendant was found guilty as charged. Four days
later, the trial court sentenced Defendant to life imprisonment at hard labor without
benefit of probation, parole, or suspension of sentence.
Defendant timely appealed. His appellate counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), alleging that the
record contains no non-frivolous issues for appeal and requesting that she be
allowed to withdraw as counsel of record. Defendant was advised, via certified
mail, that counsel filed an Anders brief, and he was given until August 2, 2017, to
file a pro se brief; to date, he has not done so. After review, we affirm Defendant’s
conviction and sentence and grant appellate counsel’s motion to withdraw.
DISCUSSION
TESTIMONY AND EVIDENCE PRESENTED AT TRIAL1
The victim, M.P.,2 testified that she had gone for a run near the Lake Charles
Civic Center around 9:30 a.m. on October 5, 1999, after she finished her shift as a
registered nurse at Lake Charles Memorial Hospital (LCMH or the hospital). She
was thirty-nine years old at the time. She had planned to run with her co-worker
Katie, but Katie had to work late. After her run, M.P. went to a nearby bathroom
and was washing her hands when a man ran in behind her, putting his arm on her
1 We have omitted portions of the testimony not relevant to resolution of this appeal. 2 The victim’s initials are used to protect her identify. See La.R.S. 46:1844(W). throat and his hand over her mouth. She fought and tried to get away from him for
a long time. M.P. described the incident as follows:
I was trying to get his hand off of my throat. I remember biting him. When I bit him, he let go and he hit me. I felt my nose crack, and I fell.
When I fell on the cement in front of the lavatory, he straddled me; and he got on top of me and he just started beating me and beating me and beating me. I remember turning my face this way so that I wouldn’t get a direct hit.
I don’t remember how I got from laying on the floor in front of the sink to in the stall. I just remember that I had to have been thrown because I popped my head real hard between the toilet - - the wall and the toilet.
And I don’t - - I remember my face was turned; and I kept thinking if I didn’t look at him, he wouldn’t kill me. And then he grabbed my legs and pulled me, and he started taking my pants - - I had on underwear, leggings, and shorts; and I had on a t-shirt and a sweatshirt.
He started pulling my clothes down, and the next think I remember is he pulled me to him, and he was on his knees in front of me. I remember the warmth of the front of his legs, hitting the back of my legs, because he had my legs up and I was on my back.
He said, “You are going to like this.” And then I - - and the next thing I remember, I was looking up and I couldn’t breathe. I felt like somebody was standing over me like pouring something warm in my mouth, and I kept gasping, and I couldn’t catch my breath, and he grabbed me by the hair, and he threw me over the toilet.
M.P. testified that after Defendant left the bathroom, she must have gotten
herself dressed, but she did not remember doing so. She was covered in blood
when she exited the bathroom. She asked the first man she saw for help, but he
refused. Then two men in a truck offered to bring her to the hospital. She did not
want to get into their truck, so she asked them to lower the tailgate and give her a
ride to her car. The men did so and then followed her to the hospital. M.P. stated
that she called her friend Katie to tell her that she had been attacked. When she
arrived at LCMH, her friend, Liz, was waiting there for her, although M.P. did not
2 remember calling her. M.P. told Liz that she wanted to go home, but Liz
persuaded her to go into the Emergency Room (ER). The ER was full of people
who were asking her what happened. At first, she was embarrassed so she told
everyone that she had only been beaten up. Later, a police officer arrived, ordered
everyone out of the ER, and assured her that whatever had happened was not her
fault. M.P. then told the officer “what really happened.” A full rape kit
examination was done, which included having her vagina and hands swabbed.
M.P.’s nose was broken and had to be stitched up. Three days later, a stint was put
in to straighten her nose, but surgery could not be performed at that time because
her face was too swollen. M.P. eventually had two facial surgeries which helped
her to breathe better.
M.P. later gave a statement to police and described her attacker to a sketch
artist. The resulting sketch was displayed across town, but her attacker was not
identified at that time. M.P. acknowledged that when she initially gave her
statement to the police, she did not want to believe that she had been raped, and
she could not definitively say whether she had been penetrated by her attacker.
M.P. stated that she changed her mind due to the DNA results from the swabs
taken from her vagina.
The two friends, who M.P. referred to in her testimony, also testified at trial.
Elizabeth Katchur stated that she received a call from M.P. the morning of
October 5, 1999. M.P. was hysterical, so Ms. Katchur left work to join her at the
hospital. When they met, M.P. was covered in blood and disoriented. Ms. Katchur
stayed at the hospital with M.P. most of the day before bringing her to the police
department and finally home. Katie Maddox also testified at trial. She explained
that she was not able to go running with M.P. as planned on October 5, 1999,
because of work obligations. Around lunchtime that day, Ms. Maddox noticed that 3 her answering machine was blinking. When she played the message, she heard
M.P. screaming that she had been attacked and needed help, and that she was going
to the hospital because her nose was broken and there was blood everywhere.
Sergeant Jason Derise with the Lake Charles Police Department (LCPD)
testified that he was dispatched to LCMH in reference to a battery committed on
October 5, 1999. When Sergeant Derise first spoke to M.P., she told him that she
had been beaten, but he thought “there was more to the story.” M.P. was crying
and appeared scared and embarrassed so he made everyone leave the room before
asking “point blank exactly what happened.” According to Sergeant Derise, M.P.
stated that she was in a bathroom near the civic center when a white male came in
and began punching her in the face. She described what her attacker “looked like,
his height, his weight, his eye color, [and] the clothing that he was wearing,” and
she estimated that he was between twenty and thirty years old. Although M.P. did
not know whether she had been penetrated, Sergeant Derise called in detectives to
interview her because her pants had been pulled down and she had been beaten so
badly. Sergeant Derise described M.P.’s face as swollen as that of “a boxer that
had just gotten beat.” Sergeant Derise completed a police report in conjunction
with his investigation. He noted therein the names of the men that had followed
M.P. to the hospital.
Lieutenant David Streva, an officer in the LCPD crime scene division,
testified that he was dispatched to LCMH to take photographs to document the
victim’s injuries. After doing so, he brought the sexual assault kit that had been
done on M.P. to the evidence room at the police department. He then went to the
crime scene where he took photographs that showed blood on the restroom floor
both inside and outside of a stall. In conjunction with Lieutenant Streva’s
4 testimony, the State offered into evidence, without objection, the eighteen
photographs that he took in this matter, along with M.P.’s sexual assault kit.
Tammy Vincent, a sexual assault nurse examiner (SANE), testified that she
took care of M.P. at the hospital. She did a complete physical exam, documenting
M.P.’s injuries and collecting evidence in the process. Nurse Vincent took several
swabs from deep inside M.P.’s vaginal canal, underneath her cervix. She did not
swab the outside of M.P.’s vaginal area. Nurse Vincent also swabbed M.P’s hands
and collected her clothing to put into the rape kit. When questioned on cross-
examination as to whether “a quantity of bodily fluids that are not inside the vagina
initially [can] find their way into the vagina,” Nurse Vincent stated that it is
“unlikely.”
Lieutenant Kevin Kirkum testified that he pulled M.P.’s case in December
2014, while reviewing cold cases as commander of the sex crimes unit of the
LCPD. After getting M.P.’s approval to reopen the case, Lieutenant Kirkum
interviewed her and obtained a new DNA sample from her mouth. He sent that
sample, along with the DNA samples contained in the rape kit, to a lab for
retesting. A DNA profile was obtained from one of the samples. When the profile
was put into CODIS, a national crime database system, Defendant was reported as
a match. Defendant was located in Texas, and Lieutenant Kirkum traveled there
with evidence officer Jordan Ashworth to take swabs from the inside of
Defendant’s mouth. Defendant was arrested after the samples revealed a positive
DNA match. According to Lieutenant Kirkum, Defendant was twenty-eight years
old when this crime occurred. As part of his investigation, Lieutenant Kirkum
obtained a duplicate of the police sketch that had been drawn in 1999, which was
accepted into evidence.
5 Philip Simmers, a DNA analyst with the Louisiana State Police Crime Lab,
was accepted at trial as an expert in DNA analysis. Mr. Simmers tested the DNA
in the rape kit and compared it to the reference samples that Lieutenant Kitchum
had recently obtained from M.P. and Defendant. Thereafter, Mr. Simmers
concluded that Defendant could not be excluded as the major contributor to the
DNA profile obtained from a swab taken from M.P.’s left hand. That hand swab
generated a “STR” DNA profile, meaning that the chance of the DNA coming
from an individual other than Defendant was approximately one in 270 quintillion
for the Caucasian population, one in 167 sextillion for the black population, and
one in 31.5 sextillion for the southwest Hispanic population. The swabs taken
from M.P.’s vagina and her left hand also generated the same “Y-STR” DNA
profile, meaning that the DNA on those two swabs came from the same male or
any of his male paternal relatives. On cross-examination, Mr. Simmers explained
that the Y-STR of Defendant and his father, Austin Mott, Sr., would be the same.
In his questioning of Mr. Simmers, Defendant’s trial counsel noted, without
objection, that Austin Mott, Sr., died in 2005.
After being advised by the trial court of his right to testify, Defendant stated
that he did not wish to testify. Thereafter, the trial court, from the bench, found
Defendant guilty of aggravated rape.
ANDERS ANALYSIS
As stated previously, Defendant’s appellate counsel has filed a brief
pursuant to Anders, 386 U.S. 738, alleging the record contains no non-frivolous
issues for appeal and requesting this court grant his accompanying motion to
withdraw. In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the
fourth circuit explained the analysis based on Anders:
6 When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.
While it is not necessary for Defendant’s counsel to “catalog tediously every
meritless objection made at trial or by way of pre-trial motions with a labored
explanation of why the objections all lack merit[,]” counsel’s Anders brief must
“‘assure the court that the indigent defendant’s constitutional rights have not been
violated.’” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (citing
Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983), and quoting McCoy v. Court
of Appeals of Wisconsin, 486 U.S. 429[, 442], 108 S.Ct. 1895[, 1903] (1988)).
Counsel must fully discuss and analyze the trial record and consider “whether any
ruling made by the trial court, subject to the contemporaneous objection rule, had a
significant, adverse impact on shaping the evidence presented to the jury for its
consideration.” Jyles, 704 So.2d at 241 (citing United States v. Pippen, 115 F.3d
422 (7th Cir. 1997)). Thus, counsel’s Anders brief must review the procedural
history and the evidence presented at trial and provide “a detailed and reviewable
assessment for both the defendant and the appellate court of whether the appeal is
worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653
So.2d 1176, 1177.
7 Defendant’s appellate counsel filed a brief outlining her assessment of the
appellate record. We will discuss each of the issues raised in that brief.
Sufficiency of the Evidence
Appellate counsel notes that trial counsel urged that the responsive verdict of
forcible rape was applicable since the element of resistance was not established.
More specifically, trial counsel argued that the State failed to prove that M.P.
resisted the rape to the utmost, but her resistance was overcome by force.
Appellate counsel points out that the trial court found M.P. to be credible. She
testified that she fought her attacker for a long time and received a broken nose as
a result of violent physical force exerted upon her in the attack.
Appellate counsel contends that although M.P. was not certain that
penetration occurred, the physical evidence showed otherwise. DNA was found on
a vaginal swab taken from M.P., and the nurse who took the swab indicated the
unlikelihood of bodily fluids getting so deep within a vagina if not directly
deposited there. In addition, the DNA on swabs taken from M.P.’s left hand and
vagina exhibited a strong match to Defendant. Finally, the trial court stated that
the sketch drawn from M.P.’s description of her perpetrator strongly resembled
Defendant.
The analysis for insufficiency of the evidence claims is well settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 8 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
In 1999, when the present offense was committed, aggravated rape was
defined, in pertinent part, as follows:
A. Aggravated rape is a rape committed upon a person sixty- five years of age or older or 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.
La.R.S. 14:42.
This court has stated the following regarding the proof necessary for
aggravated rape as compared to forcible rape:
The difference between aggravated rape and forcible rape is the “degree of force employed and the extent to which the victim resists.” State v. Parish, 405 So.2d 1080, 1087 (La.1981); State v. Puckett, 02-997, p. 10 (La.App. 5th Cir.1/28/03), 839 So.2d 226, 231. A greater degree of force is necessary to justify the more serious punishment imposed for aggravated rape. The degree of force employed and the determination of the grade of rape is for the jury to decide. State v. Cepriano, 00-213, p. 9 (La.App. 5th Cir.8/29/00), 767 So.2d 893, 899. Nonetheless, the mere fact the defendant was unarmed and the victim suffered no extensive physical pain or injury does not negate the possibility that an aggravated rape occurred.
State v. Pitts, 11-1020, p. 7 (La.App. 3 Cir. 4/4/12), 87 So.3d 306, 313 (some
citations omitted), writ denied, 12-980 (La. 10/26/12), 99 So.3d 639 (quoting State
9 v. Berniard, 03-484, p. 10 (La.App. 5 Cir. 10/15/03), 860 So.2d 66, 73, writ
denied, 03-3210 (La. 3/26/04), 871 So.2d 345).
In State v. Price, 40,408, pp. 8-10 (La.App. 2 Cir. 12/16/05), 917 So.2d
1201, 1207 (quoting State v. Stevens, 33,700, pp. 8-9 (La.App.2d Cir.8/23/00), 766
So.2d 634, 640), writ denied, 06-156 (La. 6/16/06), 929 So.2d 1284, the second
circuit discussed the difference between aggravated and forcible rape, noting:
[T]here is no essential difference between the specific results required by each crime definition. Both require that the victim be prevented from resisting the act by threat of great harm under circumstances where the victim reasonably believes that resistance would be futile. Forcible rape is merely a lesser degree of the crime of aggravated rape and is a responsive verdict to that crime. The only distinction between aggravated and forcible rape is the degree of force employed and the extent to which the victim resists. However, the [fact finder] is authorized to subject a guilty defendant to more severe punishment by convicting him of aggravated rape rather than forcible rape.
....
In this case, the evidence of record clearly supports the jury’s determination that when the defendant forced S.C. to perform oral sex on him, she was prevented from resisting the act by threats of great and immediate bodily harm, accompanied by the defendant’s apparent power to execute the threats. S.C. testified that when she attempted to escape, the defendant picked her up and slammed her to the floor. He then dragged her into the restroom where he threatened to “snap” her neck. As such, the defendant’s actions were clearly tantamount to threats of placing S.C. in fear of great bodily harm. Had S.C. further resisted the defendant, she had every reason to believe that he would continue to physically abuse her. In addition, the defendant was physically much larger than S.C. For these reasons, we find that the evidence before the jury was sufficient to convict the defendant of aggravated rape. Consequently, the trial court did not err in denying the defendant’s motion for post-verdict judgment of acquittal.
See also State v. Davis, 09-1061 (La.App. 3 Cir. 4/7/10), 36 So.3d 351, writ
denied, 11-1908 (La. 4/27/12), 86 So.3d 623, where this court found the victim’s
resistance was sufficient to satisfy the element of aggravated rape when the
10 defendant repeatedly hit the victim in the head and dragged her between rooms
while striking her.
In State v. Parish, 405 So.2d 1080 (La.1981), on rehearing, the supreme
court found the verdict of attempted aggravated rape was not supported by the
evidence. The defendant gained entry into the victim’s home under false
pretenses, grabbed her by the throat, clasped her mouth, told her he wanted to
make love, threatened to kill her if she screamed, and dragged her toward a
bedroom. The defendant outweighed the victim by approximately 130 pounds and
was almost a foot taller than the victim. For unknown reasons, the defendant
discontinued his actions, apologized to the victim, and left. The court concluded:
The evidence does not constitutionally justify, however, the jury’s election to return a verdict of aggravated rape rather than forcible rape. Within the range of attempted coercive sexual acts, the offense in this case clearly falls among those involving a minimal use of force. Although the victim was frightened and perhaps disturbed psychologically, she was released substantially unharmed. The defendant abandoned his attempt for no reason other than a change of mind. He did not fondle the victim or subject her to any sexual indignity. The evidence viewed from the perspective most favorable to the prosecution does not support a finding beyond a reasonable doubt that the degree of force employed warrants punishment in the greater degree as attempted aggravated rape, rather than in the lesser degree as attempted forcible rape.
Id. at 1087 (footnote omitted).
Unlike in Parish, Defendant herein did not release the victim unharmed or
discontinue his actions before raping her. M.P. was overcome by Defendant from
behind when Defendant put his hand over her mouth and arm on her throat. M.P.
tried to free herself from Defendant by biting him. When she bit Defendant, he hit
her and caused her to fall and hit her head between the wall and the toilet.
Defendant then grabbed M.P.’s legs, took her pants off, grabbed her by the hair,
and threw her over the toilet. M.P.’s nose was broken and had to be stitched, set
with a stint, and eventually corrected by surgery. Considering the foregoing, we 11 find that the evidence presented at trial was sufficient to prove that M.P. resisted to
the utmost, but her resistance was overcome by force.
With regard to penetration, we conclude that M.P.’s initial uncertainty about
whether she had been raped was understandable given the beating she received and
the shock and embarrassment that she was suffering at that time. On the other
hand, the DNA expert determined that there was “a very strong match” between
Defendant’s DNA and the DNA found on the swabs taken from M.P.’s vagina and
left hand. Moreover, the nurse who examined M.P. at the hospital explained the
improbability of DNA from ejaculation outside of the vagina working its way into
where she swabbed deep within M.P.’s vagina. Coupling the DNA evidence
linking Defendant to the offense, we conclude that the evidence was sufficient to
prove penetration and Defendant’s identity as the perpetrator.
Waiver of Jury Trial
Louisiana Code of Criminal Procedure Article 780, titled “Right to waive
trial by jury,” states, in pertinent part:3
The waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial. The motion shall be signed by the defendant and shall also be signed by defendant’s counsel unless the defendant has waived his right to counsel.
In the instant case, the motion to waive jury trial was signed by both
Defendant and his trial counsel, and it contained a statement that Defendant fully
understood his right to a jury trial but waived that right knowingly, voluntarily, and
intelligently. The motion was filed prior to the forty-five day cut-off set forth in
Article 780. Thus, we find that Defendant validly waived his right to jury trial.
3 This version of La.Code Crim.P. art. 780 was in effect at the time of Defendant’s waiver. 12 Hearsay Objection
Appellate counsel notes that during trial, defense counsel objected when the
State asked Sergeant Derise what M.P. told him about the incident. Defense
counsel argued the question called for hearsay. The State responded to the
objection by stating, “No. This is the first officer involved in the investigation,
Your Honor.” When the trial court stated it believed Sergeant Derise was the first
reporter, defense counsel responded, “Not the friend she called, Your Honor?”
The trial court overruled the objection, noting that what M.P. may have told her
friends did not rise “to the level of [] a detailed report.” Defense counsel objected
to the ruling.
Appellate counsel contends that even if the trial court erred in admitting
Sergeant Derise’s testimony about what the victim told him, the error would be
harmless. Thus, appellate counsel asserts there is no appealable error in the trial
court’s overruling of trial counsel’s hearsay objection.
Louisiana Code of Evidence Article 801(D)(1)(d) provides, in pertinent part:
D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(d) Consistent with the declarant’s testimony and is one of initial complaint of sexually assaultive behavior.
Use of inadmissible hearsay is subject to the harmless error analysis. State v.
Chapman, 96-152 (La.App. 3 Cir. 10/9/96), 683 So.2d 1236, writ denied, 97-583
(La. 9/5/97), 700 So.2d 505. The standard for harmless error is “whether the
verdict was surely unattributable to the error.” Id. at 1244.
13 At trial, defense counsel objected to Sergeant Derise’s testimony based on
the fact that the victim first called her friend. Thus, defense counsel asserted that
the victim’s initial complaint was made to her friend, not Sergeant Derise. Two of
the victim’s friends testified at trial, and defense counsel did not specify which
friend was the friend to whom the victim initially reported. Our appreciation of the
trial testimony is that Sergeant Derise was the first person to whom the victim
reported the details of her attack. Even if Ms. Katchur heard from the victim
before the victim gave a statement to Sergeant Derise, Ms. Katchur apparently
heard only generalities. Additionally, although the victim apparently left a phone
message for Ms. Maddox prior to giving her statement to Sergeant Derise, the
message reported only generalities.
Even if, however, Sergeant Derise was not the first person to whom the
victim reported and his testimony was inadmissible, we find the error to be
harmless. In this case, the victim’s testimony alone established the element of
resistance needed for aggravated rape. Additionally, Defendant’s identity was
established through DNA evidence. Finally, the element of penetration was also
established through the victim’s testimony, the SANE’s nurse’s testimony, and the
DNA evidence. If anything, Sergeant Derise’s testimony regarding penetration
favored the defense since Sergeant Derise testified that the victim did not
remember if she was penetrated. For these reasons, we conclude that the
admission of Sergeant Derise’s testimony, even if erroneous, was harmless.
Motion to Recuse
Appellate counsel notes that on July 19, 2016, Defendant filed a pro-se
Motion to Recuse Attorney. The grounds for recusal listed in the motion were that
Defendant’s attorney was pushing for a life sentence, had refused any plea deals,
had refused to talk to Defendant, and had lied to Defendant. The trial court denied 14 the motion, stating that the allegations in the motion did not require recusal of
Defendant’s court-appointed attorney. Appellate counsel asserts that the record
does not support the allegations made in the motion and that Defendant went to
trial in 2017 with his appointed counsel with no further objection.
Because there is no procedure for recusing defense counsel, we will analyze
Defendant’s motion as we would a motion seeking the appointment of new
counsel. The fifth circuit has stated the following regarding a defendant’s right to
new appointed counsel:
The Sixth Amendment to the United States Constitution and Louisiana Constitution Article 1, § 13 guarantee that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. If a defendant is indigent, he has the right to court-appointed counsel. State v. Reeves, 06-2419 (La.5/5/09), 11 So.3d 1031, 1057, cert. denied, ––– U.S. –––, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009). The right of a defendant to counsel of his choice has been implemented by La.C.Cr.P. art. 515, which provides in pertinent part that, “Assignment of counsel shall not deprive the defendant of the right to engage other counsel at any stage of the proceedings in substitution of counsel assigned by the court.” However, an indigent defendant does not have the right to have a particular attorney appointed to represent him. An indigent’s right to choose his counsel only extends to allowing the accused to retain the attorney of his choice if he can manage to do so, but that right is not absolute and cannot be manipulated so as to obstruct orderly procedure in courts and cannot be used to thwart the administration of justice. Reeves, 11 So.3d at 1057.
The question of withdrawal or substitution of counsel largely rests within the discretion of the trial judge, and his ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. See State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, 142, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007).
In the absence of an adequate showing that the court appointed attorney is inept or incompetent to represent the accused, the court cannot be called upon to appoint counsel other than the one originally appointed merely to please the desires of the indigent accused.
State v. Gorman, 11-491, pp. 11-14 (La.App. 5 Cir. 2/14/12), 88 So.3d 590, 598-
99. 15 The record in the present case does not show that Defendant’s court-
appointed counsel was inept or incompetent to represent him. Defendant’s
attorney filed pre-trial motions, made objections at trial, and cross-examined
witnesses. Thus, we find the trial court did not abuse its discretion in refusing to
appoint Defendant another attorney.
This Court’s Review of the Record
Pursuant to Anders and Benjamin, this court has performed a thorough
review of the record, including the pleadings, the minute entries, the charging
instrument, and the transcripts. Defendant was present and represented by counsel
at all crucial stages of the proceedings. The verdict was correct, and Defendant
received a mandatory life sentence without benefit of probation, parole, or
suspension of sentence. In reviewing the transcripts to determine if any other
ruling provides an arguable basis for appeal, we note that defense counsel made
several objections, most of which were discussed in appellate counsel’s brief. Our
review of the record reveals no issues that would support an assignment of error on
appeal beyond the potential issues raised by counsel and addressed in this appeal.
Therefore, we grant appellate counsel’s motion to withdraw.
CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.