STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-1403
STATE OF LOUISIANA
VERSUS
CHARLES PAUL CELESTINE AKA PAUL CHARLES CELESTINE AKA CHARLES P. CELESTINE AKA PAUL C. CELESTINE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 111,552 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Michael Harson District Attorney Keith A. Stutes Assistant District Attorney Post Office Box 3306 Lafayette, Louisiana 70502-3306 (337) 232-5170 Counsel for Appellee: State of Louisiana
Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 Counsel for Defendant Appellant: Charles Paul Celestine KEATY, Judge.
Defendant, Charles Paul Celestine, was convicted by a jury of aggravated
rape and sentenced to life imprisonment without benefit of probation, parole, or
suspension of sentence. Defendant appeals his conviction only, alleging
ineffective assistance of counsel in failing to request a Daubert1 hearing relative to
the evidentiary chain of custody and in failing to retain a DNA expert. For the
following reasons, we affirm Defendant’s conviction.
FACTS AND PROCEDURAL HISTORY
On August 29, 1989, D.C. 2 started walking home from an area known as the
“Strip” in Lafayette after an argument with her boyfriend. As she walked down
Bendel Road, a man offered D.C. a ride, but she refused.3 D.C. encountered a
police officer on Pinhook Road, and he asked if she needed a ride. She again
refused. D.C. encountered a second police officer near the intersection of Pinhook
Road and Kaliste Saloom Road and again refused a ride home. D.C. continued to
walk and turned onto Silverbell Parkway. D.C. testified she then noticed someone
following her. The man chased her, caught her, threw her into a ditch, and raped
her. D.C. testified that she thought the man who raped her was the first person
who offered her a ride.
D.C. was brought to the hospital. A sexual assault examination was
performed, and a sexual assault kit was delivered to the Acadiana Crime Lab.
However, DNA profiles and comparisons were not being performed by the
Acadiana Crime Lab in 1989.
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). 2 The initials of the victim are being used to protect her identity in accordance with La.R.S. 46:1844(W). The indictment lists the victim as D.A. The victim has since married; thus, her initials at the time of trial are used in this opinion. 3 A map of the area was introduced as State’s Exhibit 1. In 2003, evidence from unsolved rape cases was sent by the Acadiana Crime
Lab to other labs for DNA analysis. In 2003, one of the analyzing labs, Orchid
Cellmark, generated a DNA profile from the sperm fraction of vaginal swabs taken
from D.C. That DNA profile was entered into the Combined DNA Index System
(CODIS). A CODIS hit matching Defendant’s DNA profile with that found in the
vaginal swabs subsequently occurred. A DNA sample was taken from Defendant
in April 2006. The DNA profile from the sperm fraction of the vaginal swab
matched the reference sample taken from Defendant in April 2006.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. There are two errors patent.
First, the trial court failed to state that the sentence for the aggravated rape
conviction was to be served at hard labor. La.R.S. 14:42(D)(1). In State v. Loyden,
04-1558, p. 6 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 172, this court explained, in
pertinent part:
[W]e find that the sentences imposed for the defendant’s two aggravated rape convictions in this case are illegally lenient, because the trial court did not indicate that they were to be served at hard labor. Under the authority of La.Code Crim.P. art. 882, we amend the sentences imposed by the trial court to affirmatively indicate that the sentences for aggravated rape be served at hard labor. The district court is directed to make an entry in the minutes reflecting this amendment.
Consequently, the trial court’s failure to order the sentence for aggravated rape to
be served at hard labor renders it illegally lenient. However, this court will not
consider an illegally lenient sentence unless it is a raised error. State v. Jacobs, 08-
1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23
So.3d 931.
2 The second errors patent concerns the trial court’s reference to Defendant’s
post-conviction relief. The transcript of sentencing indicates the trial court,
referring to post-conviction relief, informed Defendant that he has two years to file
for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8
provides the defendant has two years after the conviction and sentence become
final to seek post-conviction relief. Because the trial court’s advisement was
insufficient, the trial court is instructed to inform Defendant of the provisions of
La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant
within thirty days of the rendition of this opinion and shall file written proof in the
record that it issued the notice to Defendant. State v. Roe, 05-116 (La.App. 3 Cir.
6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.
DISCUSSION
In his only assignment of error, Defendant contends trial counsel was
ineffective in failing to request a Daubert hearing, in failing to object to the chain
of custody, and in failing to retain a DNA expert.
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990); State v. Sparrow, 612 So.2d 191 (La.App. 4th Cir.1992); State v. Petta, 496 So.2d 390 (La.App. 4th Cir.1986). However, in the interest of judicial economy, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim. State v. Seiss, 428 So.2d 444 (La.1983); State v. Haywood, 516 So.2d 196 (La.App. 4th Cir.1987); State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888. Such is the case here.
To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). A claim of ineffective assistance may be disposed of based upon a finding that either one of the two Strickland criteria have not been established.
3 State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989); State v. Frazier, 599 So.2d 419, 421 (La.App. 4th Cir.1992).
State v. Robinson, 11-66, pp. 11-12 (La.App. 4 Cir. 12/7/11), 81 So.3d 90, 96-97.
Defendant sets forth the following in brief to this court:
Randy Vincent, a former investigator with the Lafayette Police Department, testified he was dispatched on October 29, 1989 to the University Medical Center in reference to a sexual assault.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-1403
STATE OF LOUISIANA
VERSUS
CHARLES PAUL CELESTINE AKA PAUL CHARLES CELESTINE AKA CHARLES P. CELESTINE AKA PAUL C. CELESTINE
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 111,552 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Michael Harson District Attorney Keith A. Stutes Assistant District Attorney Post Office Box 3306 Lafayette, Louisiana 70502-3306 (337) 232-5170 Counsel for Appellee: State of Louisiana
Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 Counsel for Defendant Appellant: Charles Paul Celestine KEATY, Judge.
Defendant, Charles Paul Celestine, was convicted by a jury of aggravated
rape and sentenced to life imprisonment without benefit of probation, parole, or
suspension of sentence. Defendant appeals his conviction only, alleging
ineffective assistance of counsel in failing to request a Daubert1 hearing relative to
the evidentiary chain of custody and in failing to retain a DNA expert. For the
following reasons, we affirm Defendant’s conviction.
FACTS AND PROCEDURAL HISTORY
On August 29, 1989, D.C. 2 started walking home from an area known as the
“Strip” in Lafayette after an argument with her boyfriend. As she walked down
Bendel Road, a man offered D.C. a ride, but she refused.3 D.C. encountered a
police officer on Pinhook Road, and he asked if she needed a ride. She again
refused. D.C. encountered a second police officer near the intersection of Pinhook
Road and Kaliste Saloom Road and again refused a ride home. D.C. continued to
walk and turned onto Silverbell Parkway. D.C. testified she then noticed someone
following her. The man chased her, caught her, threw her into a ditch, and raped
her. D.C. testified that she thought the man who raped her was the first person
who offered her a ride.
D.C. was brought to the hospital. A sexual assault examination was
performed, and a sexual assault kit was delivered to the Acadiana Crime Lab.
However, DNA profiles and comparisons were not being performed by the
Acadiana Crime Lab in 1989.
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). 2 The initials of the victim are being used to protect her identity in accordance with La.R.S. 46:1844(W). The indictment lists the victim as D.A. The victim has since married; thus, her initials at the time of trial are used in this opinion. 3 A map of the area was introduced as State’s Exhibit 1. In 2003, evidence from unsolved rape cases was sent by the Acadiana Crime
Lab to other labs for DNA analysis. In 2003, one of the analyzing labs, Orchid
Cellmark, generated a DNA profile from the sperm fraction of vaginal swabs taken
from D.C. That DNA profile was entered into the Combined DNA Index System
(CODIS). A CODIS hit matching Defendant’s DNA profile with that found in the
vaginal swabs subsequently occurred. A DNA sample was taken from Defendant
in April 2006. The DNA profile from the sperm fraction of the vaginal swab
matched the reference sample taken from Defendant in April 2006.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. There are two errors patent.
First, the trial court failed to state that the sentence for the aggravated rape
conviction was to be served at hard labor. La.R.S. 14:42(D)(1). In State v. Loyden,
04-1558, p. 6 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 172, this court explained, in
pertinent part:
[W]e find that the sentences imposed for the defendant’s two aggravated rape convictions in this case are illegally lenient, because the trial court did not indicate that they were to be served at hard labor. Under the authority of La.Code Crim.P. art. 882, we amend the sentences imposed by the trial court to affirmatively indicate that the sentences for aggravated rape be served at hard labor. The district court is directed to make an entry in the minutes reflecting this amendment.
Consequently, the trial court’s failure to order the sentence for aggravated rape to
be served at hard labor renders it illegally lenient. However, this court will not
consider an illegally lenient sentence unless it is a raised error. State v. Jacobs, 08-
1068 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, writ denied, 09-755 (La. 12/18/09), 23
So.3d 931.
2 The second errors patent concerns the trial court’s reference to Defendant’s
post-conviction relief. The transcript of sentencing indicates the trial court,
referring to post-conviction relief, informed Defendant that he has two years to file
for post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8
provides the defendant has two years after the conviction and sentence become
final to seek post-conviction relief. Because the trial court’s advisement was
insufficient, the trial court is instructed to inform Defendant of the provisions of
La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant
within thirty days of the rendition of this opinion and shall file written proof in the
record that it issued the notice to Defendant. State v. Roe, 05-116 (La.App. 3 Cir.
6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.
DISCUSSION
In his only assignment of error, Defendant contends trial counsel was
ineffective in failing to request a Daubert hearing, in failing to object to the chain
of custody, and in failing to retain a DNA expert.
Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed initially in the district court where a full evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Johnson, 557 So.2d 1030 (La.App. 4th Cir.1990); State v. Sparrow, 612 So.2d 191 (La.App. 4th Cir.1992); State v. Petta, 496 So.2d 390 (La.App. 4th Cir.1986). However, in the interest of judicial economy, an appellate court can consider an ineffective assistance claim if the record on appeal contains sufficient evidence to evaluate the merits of the claim. State v. Seiss, 428 So.2d 444 (La.1983); State v. Haywood, 516 So.2d 196 (La.App. 4th Cir.1987); State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888. Such is the case here.
To succeed on an ineffective assistance of counsel claim, a defendant must establish two criteria: (i) that his trial counsel’s performance was deficient and (ii) that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d 119 (La.1984). A claim of ineffective assistance may be disposed of based upon a finding that either one of the two Strickland criteria have not been established.
3 State v. James, 555 So.2d 519, 524 (La.App. 4th Cir.1989); State v. Frazier, 599 So.2d 419, 421 (La.App. 4th Cir.1992).
State v. Robinson, 11-66, pp. 11-12 (La.App. 4 Cir. 12/7/11), 81 So.3d 90, 96-97.
Defendant sets forth the following in brief to this court:
Randy Vincent, a former investigator with the Lafayette Police Department, testified he was dispatched on October 29, 1989 to the University Medical Center in reference to a sexual assault. Officer Vincent met with D.C. and sexual assault counselors at the hospital. Officer Vincent then took possession of the sexual assault kit D.C. submitted to. Officer Vincent then delivered the evidence to the Acadiana Crime Lab. The form entered into evidence, S-4, indicates M. Marlette delivered the evidence to Joey Verret, and the person who performed the examination was David Epstein. David Epstein was not called as a witness nor was there an objection as to the chain of custody. S-8 indicates that ACL then sent the evidence by Airborne Express to Orchid Cell Mark [sic]. Once again there was no objection to the chain of custody nor did Defense counsel request a Daubert hearing or independent examination of the DNA evidence.
A review of the record shows evidence of the DNA matches was the only evidence linking Charles Celestine to the D.C. rape.
The State asserts DNA testing and its methodology have long been accepted
in Louisiana courts. The State also asserts Defendant fails to argue the justification
for a Daubert hearing. In support of its argument, the State cites State v.
Quatrevingt, 93-1644 (La. 2/28/96), 670 So.2d 197, cert. denied, 519 U.S. 927,
117 S.Ct. 294 (1996), wherein the supreme court held that the principles of DNA
profiling and Restriction Fragment Length Polymorphism analysis were both
relevant and reliable and were, therefore, admissible. The State also cites La.R.S.
15:441, which was repealed effective January 1, 1989. We presume the State
meant to cite La.R.S. 15:441.1, which provides: “[e]vidence of deoxyribonucleic
acid profiles, genetic markers of the blood, and secretor status of the saliva offered
to establish the identity of the offender of any crime is relevant as proof in
conformity with the Louisiana Code of Evidence.”
4 The State asserts the chain of custody goes solely to the weight of the
evidence and need only be established by a preponderance of the evidence. The
State also asserts that:
the evidence is clear from the testimony of D.[C]., from whom the vaginal swabs were taken, from Detective Vincent who retrieved the sexual assault kit containing the swabs, and who delivered the swabs to the Acadiana Crime Lab, from Chemist Joey Verret who received the swabs and found them to contain semen, from DNA experts Winnie Kurowski and Carolyn Booker who confirmed the presence of semen in the sex assault kit swabs and who confirmed and adopted the DNA profiles generated from the sex assault kit swabs, from Sgt. Monde Potier who personally obtained DNA samples from the defendant Charles Paul Celestine and who delivered the defendant’s samples to the Acadiana Crime Lab, and from DNA experts Kurowski and Booker who derived a DNA profile from the samples from the defendant, who compared the defendant’s DNA profile to the male sperm DNA from the sex assault kit swab taken from the victim D.[C]., and who confirmed them to be a match.
Daubert
Defendant notes the only evidence linking him to the rape of D.C. was DNA
evidence, and trial counsel failed to object to the validity of the test methodology
under a Daubert analysis regarding the testing done by Acadiana Crime Lab or
Orchid Cellmark. Defendant asserts there can be no explanation why trial counsel
failed to request a Daubert hearing.
Defendant does not declare any error in the methodology used by Acadiana
Crime Lab and/or Orchid Cellmark. General statements and conclusory allegations
will not suffice to prove a claim of ineffective assistance of counsel. State v.
Camp, 46,052 (La.App. 2 Cir. 3/16/11), 59 So.3d 548, writ denied, 11-954 (La.
12/16/11), 76 So.3d 1199. Thus, this claim of ineffective assistance of is without
merit.
Chain of Custody
Defendant notes that trial counsel did not object to the chain of custody for
DNA recovered from vaginal swabs taken from D.C. on the night of the alleged 5 offense. Defendant asserts there can be no legitimate trial strategy as to why trial
counsel did not object to the chain of custody for the vaginal swabs taken from
D.C. He contends that without establishing who performed the sexual assault kit,
how his DNA was recovered from the vaginal swabs, and who turned the sexual
assault kit over to Officer Randy Vincent, the State was allowed to circumvent the
chain of custody. He asserts trial counsel was ineffective in failing to object to the
chain of custody from the initial evidence collected to the transfer to Orchid
Cellmark by Airborne Express.
To admit demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody from the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Holden, 45,038 (La.App.2d Cir.01/27/10), 30 So.3d 1053, writ denied, 2010-0491 (La.09/24/10), 45 So.3d 1072. It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. The state need only establish by a preponderance of the evidence that the object is the one connected with the case. State v. Toney, 26,711 (La.App.2d Cir.03/01/95), 651 So.2d 387. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Jackson, 629 So.2d 1374 (La.App. 2d Cir.1993), writ denied, 1994- 0201 (La.05/06/94), 637 So.2d 1046.
State v. Booker, 46,256, pp. 8-9 (La.App. 2 Cir. 5/18/11), 70 So.3d 818, 823.
D.C. testified that a rape kit was performed on her. Captain Randy Vincent
came into possession of the sexual assault kit at University Medical Center and
completed the property record admitted as State’s Exhibit 3. Captain Vincent
made a request that the sexual assault kit be delivered to the crime lab. He also
gave instructions to the crime lab as indicated by State’s Exhibit 4. Captain
Vincent testified that State’s Exhibit 5 bore the signature of the lab personnel who
received the evidence, which included one sexual evidence collection kit, one
brown bag containing the victim’s clothing and shoes, and one brown envelope
containing fingernail samples from the victim. The person who received the 6 evidence was Joey Verret. Captain Vincent testified that the sexual assault kit was
in fact delivered to the Acadiana Crime Lab. Additionally, State’s Exhibit 5
appears to display the signature of Marlette as the person delivering the sexual
assault kit to the lab.
Joey Verret worked as a serologist at the Acadiana Crime Lab in 1989.
Verret testified that he received the evidence listed on State’s Exhibit 5. The
Acadiana Crime Lab report admitted as State’s Exhibit 6 indicated he took
possession of the sexual assault kit. The report stated the evidence was delivered
to the lab by M. Marlette. Verret testified he examined the sexual assault kit for
semen stains. Verret issued the report, which was admitted as State’s Exhibit 7,
regarding the vaginal smear slide and swab.
Carolyn Booker, a DNA analyst and DNA database administrator at the
Acadiana Crime Lab, testified that as part of the search for a serial killer in 2003,
DNA from unsolved rape cases was sent to other labs for testing. Orchid Cellmark
performed the DNA analysis in the case at bar and forwarded the results to the
Acadiana Crime Lab. When the results were received by the Acadiana Crime Lab,
the results were reviewed and she “made sure that the data look[ed] good and that
they followed all the perimeters that [were] set out in the contract and all the
protocols were followed properly.” A report was then written by Acadiana Crime
Lab based on the data provided by Orchid Cellmark.
Winnie Kurowski, a forensic chemist at the Acadiana Crime Lab, testified
that the Acadiana Crime Lab sent a sealed envelope containing reference blood
from D.C. and a sealed envelope containing vaginal swabs to Orchid Cellmark.
Kurowski testified the two items were obtained from the sexual assault kit.
Kurowski also testified that when the evidence was sent to Orchid Cellmark, the
Acadiana Crime Lab requested the type of kits Orchid Cellmark was to use and the 7 method used to analyze the DNA. Kurowski further testified that once the results
were received, the Acadiana Crime Lab “go[es] through that data, make[s] sure
that it matches up to that table that’s generated and to ensure that the quality . . . is
met that everything was done correctly. The controls were performed correctly.”
State’s Exhibit 8, a forensic case report issued by Orchid Cellmark, indicated
that Orchid Cellmark received a sealed envelope containing a victim reference
blood sample from D.C. and a sealed envelope containing vaginal swabs via
Airborne Express on August 26, 2003. Testimony indicated that David Epstein,
who was not called to testify, tested the victim’s blood for alcohol.
The State did not present testimony regarding who performed the sexual
assault examination and collected evidence found in the sexual assault kit.
However, D.C. was subjected to an examination, and Captain Vincent came into
possession of the sexual assault kit at the hospital. Also, the State did not present
any evidence regarding transmittal/receipt of the items from the sexual assault kit
by Airborne Express to Orchid Cellmark. However, Orchid Cellmark’s report
indicated it received the same evidence that Kurowski testified Acadiana Crime
Lab sent to Orchid Cellmark, and DNA from the reference blood sample matched
DNA from the non-sperm fraction of the vaginal swab.
The record supports a finding that it is more probable than not that the tested
scientific evidence was connected to the case at bar. Additionally, there is no
indication in the record of evidence tampering or that evidence was compromised
in any way. Furthermore, any defect in the chain of custody goes to the weight of
the evidence, not its admissibility. For these reasons, trial counsel was not
ineffective for failing to object to the chain of custody regarding the collection of
evidence from D.C. through its testing at Orchid Cellmark.
8 Expert
Defendant contends trial counsel was also ineffective for failing to retain an
expert in DNA analysis or ask for independent testing of the DNA recovered.
Defendant does not set forth a reason why trial counsel should have obtained
an expert in DNA analysis or asked for independent testing of the DNA recovered.
General statements and conclusory allegations will not suffice to prove a claim of
ineffective assistance of counsel. Camp, 59 So.3d 548. Thus, this claim of
ineffective assistance of counsel is also without merit.
CONCLUSION
Defendant’s claims of ineffective assistance of counsel lack merit, and his
conviction is affirmed. The trial court’s advisement regarding the time Defendant
has for filing an application for post-conviction relief was insufficient. The trial
court shall inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by
sending appropriate written notice to Defendant within thirty days of the rendition
of this opinion and file written proof in the record that it issued notice to
Defendant.