STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-456
STATE OF LOUISIANA
VERSUS
JOENELL RUBIN
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 12-K-1661-C HONORABLE ALONZO HARRIS, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.
Thibodeaux, Chief Judge, dissents and assigns written reasons.
AFFIRMED WITH INSTRUCTIONS. Edward John Marquet Attorney at Law 405 West Main Street, Suite 104 Lafayette, Louisiana 70501 (337) 237-6841 COUNSEL FOR DEFENDANT/APPELLANT: Joenell Rubin
Earl B. Taylor District Attorney – 27th Judicial District Court Jennifer Ardoin Assistant District Attorney – 27th Judicial District Court Post Office Drawer 1968 Opelousas, Louisiana 70571 (337) 948-0551 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.
On July 19, 2012, Defendant, Joenell Rubin, was charged by grand jury
indictment with the May 21, 1988, first degree murder while in the commission of
the aggravated rape of Brenda Dupont, in violation of La.R.S. 14:30(A)(1).
On January 27, 2016, a 10-2 jury found Defendant guilty of the first degree
murder of Brenda Dupont. On February 18, 2016, Defendant was sentenced to life
imprisonment at hard labor without benefits and with credit for time served from
the date of arrest.
Defendant now appeals his conviction and sentence, alleging two errors.
For the following reasons, we affirm Defendant’s conviction and sentence. We
instruct the trial court to inform Defendant of the provisions of La.Code Crim.P.
art. 930.8 by sending appropriate written notice to Defendant within ten days of the
rendition of the opinion and to file written proof in the record that Defendant
received the notice.
FACTS AND PROCEDURAL HISTORY
Defendant’s jury trial began on January 25, 2016. The State’s first witness
was Ms. Linda Nicholas, the victim’s sister. Ms. Nicholas testified that on May
21, 1988, her sister, the victim Brenda Dupont, was living in an apartment that was
only about ten feet directly behind her own apartment. Ms. Nicholas testified that
on the afternoon before her sister was murdered, Defendant was at Ms. Nicholas’
home visiting her daughter, Michelle. Ms. Nicholas stated that she had an
altercation with Defendant and kicked him out of her house because he had
brought a knife to her house. Defendant claimed that he was just “playing” with
the knife, but Ms. Nicholas said, “We don’t play.” She testified that she last saw
Brenda that night before Brenda went back to her apartment, around 6:30 or 7:00
p.m. Ms. Nicholas testified that the following morning, she made breakfast and
sent her six-year-old son to wake Ms. Dupont, but that they were unable to rouse
her. Ms. Nicholas got worried when there was no response by 11:30 a.m. She
eventually called the police, who discovered Ms. Dupont’s body and would not
allow Ms. Nicholas to enter the apartment.
Ms. Nicholas stated that she knew Defendant because he went to school with
her children and liked her daughter, Michelle, but that she did not always allow
him to visit because he liked to fight with her sons. She testified that at the time of
her sister’s murder, she was living with her children and a man named Dicker Ray
Chavis.
Ms. Nicholas testified that she had not seen anyone go into or out of her
sister’s apartment the evening she died, noting that Brenda was married but was
separated from her husband. Ms. Nicholas testified that although she slept around
ten or twelve feet from the side door to her sister’s apartment, she did not hear
anything because the weather was stormy that night.
The State’s next witness was Rene Speyer, an employee of the St. Landry
Parish District Attorney’s Office who was previously employed by the St. Landry
Parish Sheriff’s Office for thirty-eight years, including at the time of Ms. Dupont’s
death. Mr. Speyer videoed the crime scene in 1988, and that video was presented
to the jury without sound as State’s Exhibit 2. Mr. Speyer testified that the video
and a photograph showed the area between Ms. Dupont’s apartment and the fence
behind it. There was damage to the vegetation and footprints on the side of the
apartment, indicating that the point of exit was the bedroom window near where
the footprints were discovered, as the bedroom door had been locked from the
inside.
Defendant’s cross-examination of Mr. Speyer was mainly asking him to
identify specific items that can be seen on the video. However, Mr. Speyer
2 acknowledged that he never determined an entry point into the apartment, that he
did not recall seeing any windows which appeared to be pried open or broken, and
that most of the windows had undisturbed items on the windowsills. Mr. Speyer
also noted that the only area of the house, other than the bed, that appeared to have
been disturbed was a dresser drawer in the bedroom, which was pulled out and
overturned onto the floor.
Sergeant Loretta Etienne, a twenty-two year veteran of the Opelousas Police
Department who is the current evidence custodian, next took the stand. She
testified that evidence is secured in a combination lock vault, but that the evidence
custodian is not responsible for keeping investigative reports. Sergeant Etienne
noted that she has only been the department’s evidence custodian for about six
months, and that she had not even joined the force yet at the time of Brenda
Dupont’s death.
The State next called Dr. Dawn Young, a professor at Bossier Parish
Community College and former Lab Director at the North Louisiana Forensic
Pathology Lab. Dr. Young was also the Deputy Coroner of Bossier Parish for
twelve years and the Coroner for four years, from 1996-2000. She was also Dr.
George McCormick’s 1 assistant for twenty-two years, and was accepted as an
expert in Medical/Legal Death Investigation. Dr. Young was Dr. McCormick’s
assistant during the autopsy of the victim Brenda Dupont on May 21, 1988. Dr.
Young testified that the victim had defensive wounds on both hands. Additionally,
the victim had incisions on her chest, neck, and upper arms, as well as a potential
bite mark. She also testified that a vaginal swab was collected which contained
semen, but stated they did not do any testing on the semen to try and determine
potential donors.
1 Dr. George McCormick was the coroner who performed the autopsy on Ms. Dupont. He was deceased at the time of trial. 3 Dr. Young noted smear samples taken from the vaginal, nasal, oral, and
rectal cavities, were tested, and that sperm was found in the vaginal smear, as well
as occasional degenerative sperm heads being present in the oral and rectal smears.
Dr. Young also testified she could not conclusively determine whether or not the
victim was raped or had consensual sex, specifically stating that “[t]ypically you
can’t [determine rape] from an external examination” of a woman of child-bearing
years. She further noted that after Dr. McCormick performed the autopsy, the
evidence recovered was submitted to Patrick Lane with the State Police Crime
Lab.
Mr. Lane, a thirty-eight year employee and crime lab analyst of the
Louisiana State Police Crime Lab (LSPCL), was the next witness to testify. Mr.
Lane testified that he recalled receiving evidence from Dr. McCormick and
subsequently transported those items to the LSPCL for testing. He also
enumerated all of the evidence that was submitted to the LSPCL in this case. Mr.
Lane also went through multiple pages of reports describing fingerprint analysis
done by the LSPCL around the time of Ms. Dupont’s death, noting that over
twenty people’s fingerprints were tested against the prints in the apartment. Mr.
Lane then confirmed that State’s Exhibit 7A appeared to be a fingerprint analysis
form which indicated Defendant’s fingerprints were tested on May 25, 1988.
Defendant’s fingerprints did not match any of the prints taken from the apartment.
The next witness to take the stand was Mr. Jude Victorian, who spent
roughly ten years as an employee of the Opelousas Police Department. Mr.
Victorian testified that he brought photographs of the bite marks on the victim to a
Dr. Bill Lagattuta in Washington, D.C., along with a cast of Clint Thompson’s2
teeth. Dr. Lagattuta, an expert in odontology, did not believe Mr. Thompson’s
2 Clint Thompson was a suspect during the initial investigation. He was deceased by the time Defendant was brought to trial. 4 teeth matched the marks on the victim. Mr. Victorian further testified that he could
not recall specifics of what he did during the course of the investigation or who he
interviewed, but that he would have written reports that would have been included
in the case file.
The State’s next witness was Mr. Ronnie Trahan, a St. Landry Parish
Sheriff’s Office employee who was previously with the Opelousas Police
Department for twenty-eight years, including May 1988. Mr. Trahan testified that
a few years after Ms. Dupont’s death, he spoke with Dr. Lagattuta at his office in
Baton Rouge while retrieving evidence that was still in Dr. Lagattuta’s possession.
Mr. Trahan testified that Dr. Lagattuta informed him that he was never able to
make a match between the photos submitted and Clint Thompson’s teeth. Mr.
Trahan stated that he did not actually retrieve any evidence from Dr. Lagattuta, as
the evidence had already been returned to Mr. Victorian, and that he did not recall
writing a report on his trip for the case file. Mr. Trahan remembers speaking with
Defendant and Mr. Dicker Chavis during the investigation, but is not clear who
else, if anyone, he spoke to in connection with this case.
The State then called Mr. George Schiro, the lab director at Scales
Biological Laboratory in Mississippi, who previously worked for the Acadiana
Crime Lab, the Louisiana State Police Crime Lab, and the Jefferson Parish
Sheriff’s Office Crime Lab. It was stipulated that Mr. Schiro is an expert in
forensic science with specialties in serology and DNA analysis. Mr. Schiro
testified that “[i]n 1988 there were no public crime laboratories doing DNA in the
state and I’m not sure if there was a private lab called Gentest but I don’t recall if
they had started in 1988.” Mr. Schiro noted that in 1988, DNA testing was not
commonly used by Louisiana law enforcement and that they were essentially
limited to blood-typing and cross-referencing a small number of genetic markers.
Mr. Schiro testified that in 2012 during the cold case investigation, they discovered
5 a DNA profile in the vaginal swab taken from the victim, which was subsequently
found to be a match to the DNA profile provided by Defendant. He testified that
“the probability of selecting an unrelated individual was approximately one in
thirteen billion.” He further testified that by testing the Y-chromosome of the
seminal fluid found, the chance of incorrectly identifying Defendant was about one
in three hundred billion, barring identical twins.
Mr. Schiro testified, much like Dr. Young, that there was no way to
conclusively tell whether the sexual intercourse between Defendant and Brenda
Dupont was consensual or rape. Mr. Schiro noted that, based on the presence of
acid phosphates and a protein called P30, they determined that there was seminal
fluid on the rectal swabs, however, there were no spermatozoa present, whereas
they found sperm heads on the vaginal swab. Mr. Schiro noted that studies have
found sperm can survive for as long as nineteen days in the female cervix, and
specifically noted that “there’s really no, no way to time when the sperm got there;
how long it’s been there or anything like that.” Mr. Schiro also acknowledged that
there were other items which had been tested for DNA evidence:
We had already run the other test on some of those other items that had generated profiles and those were put into CODIS. So, we already had unknown profiles that were in CODIS. Just because they didn’t match anyone we, there [sic] was no point in going further and doing the Y testing unless we had someone to compare them to.
Mr. Doris Hoffpauir, an employee of the St. Tammany Parish Coroner’s
Office and former employee of the Louisiana State Police Crime Lab, was
stipulated to be a DNA expert. She testified that the only sample she was asked to
match in this case was the profile that matched Defendant.
Next, Dr. Christopher Tape took the witness stand. The parties stipulated
that Dr. Tape is a medical doctor with a specialty in forensic science. Dr. Tape
agreed with the original autopsy report of Dr. McCormick and confirmed that the
cause of death was the thirty-one stab wounds/incisions found on the victim’s
6 body. He also agreed that the numerous wounds to the victim’s hands were
consistent with defensive wounds. With regard to the bite mark found on the
victim, Dr. Tape acknowledged that trying to make a match based on bite marks is
rarely used, as it is very difficult to make said match or to exclude someone as
having made the mark, noting that “[a] lot of our teeth are the same.” There was
also a discussion of some of the medication reported in the autopsy to be in the
victim’s system at the time of her death, namely phenothiazines, a type of
tranquilizer used as antipsychotic medication used to treat schizophrenia and other
mental disorders. Dr. Tape testified that none of the medicines in the victim’s
system worried him, as they were all within therapeutic ranges.
The next witness to take the stand was Mr. Greg Leblanc, a Lieutenant and
supervisor of investigative services with the Opelousas Police Department.
Lieutenant Leblanc testified that he obtained the search warrant for Defendant’s
DNA to confirm the profile match from CODIS.
The State then called Sergeant Crystal Leblanc of the Opelousas Police
Department’s investigations unit. Sergeant Leblanc testified that she personally
obtained the DNA sample from Defendant and sealed it for evidence before giving
the bag containing the sample to Sergeant Jody White, the evidence custodian, who
in turn transported the evidence to the Acadiana Crime Lab.
The State’s next witness was Ms. Sybil Guidry, who previously spent thirty
years working in the “Latent Section” of the Louisiana State Police. Ms. Guidry
was stipulated to be an expert in “Forensic Science with a specialty in fingerprint
identification.” Ms. Guidry testified that she did all of the fingerprint comparisons
in this case when the murder originally occurred in 1988 and then had them peer-
reviewed by a coworker. She also testified that the only identification they were
able to make, after testing twenty-six sets of known prints against the prints
recovered from the crime scene, was Monica Bergeron, the victim’s daughter. She
7 confirmed that none of the prints she tested from the crime scene matched
Defendant’s prints.
The State then recalled Ronnie Trahan in order to introduce an audio
recording of a statement Defendant gave on May 23, 1988, to Mr. Trahan and
Detective Willie Smith, who had since died. In this initial interview, Defendant
denied even knowing the victim, even though he had been present at Ms. Nicholas’
home the afternoon before the victim was murdered. The recording was played for
the jury. Mr. Trahan noted that there were scratch marks on Defendant’s neck at
the time of the interview, but he did not recall ever trying to confirm that those
scratches came from the victim’s niece, Stephanie Keys, as Defendant claimed
they did. He also did not recall whether he took photographs of the scratches. Ms.
Keys denied that she had ever scratched the defendant.
The next witness to take the stand was Dwain Grimmett, a private
investigator who retired in 2013 after twenty-two years as a member of the
Opelousas Police Department. Mr. Grimmett testified that he was assigned this
case as a cold case in 2012, at which time he retrieved all of the information the
department had on the case. Mr. Grimmett testified that he could never locate the
original paper file in this case, as parts of the original case file had been lost or
discarded, but he located videos, recordings, and physical evidence. Mr. Grimmett
testified that he has never been able to find the entirety of the original case file.
The State then introduced a video of Mr. Grimmett’s March 23, 2012, interview
with Defendant wherein Defendant again denied ever having sex with the victim.
The State also introduced a video of Mr. Grimmett’s March 29, 2012, interview
with Defendant that was also played for the jury. Defendant once again denied
ever having sex with the victim. Mr. Grimmett testified that Defendant stated that
he “had no idea who the victim was. He didn’t know her.” Mr. Grimmett was
shown photos of the victim and the crime scene and testified that based on his
8 twenty-two plus years’ experience in law enforcement, it made him immediately
think the victim was raped. The scene did not look anything like a consensual act
had taken place.
Mr. Grimmett also testified that he interviewed a Ms. Irma Robinson in
April 2012, and that she had previously given a statement in 1988 that she was
across the street from the victim’s residence at Papillion’s Grocery at three o’clock
in the morning on May 21, 1988, heard a woman screaming, and called 9-1-1,
which put her on hold. He could not confirm whether or not Ms. Robinson called
9-1-1, as there were no phone records going back far enough to confirm. He also
specifically noted that he never requested that Mr. Schiro test any of the other
remaining evidence from the crime scene, including the victim’s clothing, to see if
there was DNA that matched Defendant on any of those items.
The State’s final witness was Jean Harrison (inadvertently spelled “Gene” in
the transcript), an investigator for the St. Landry Parish District Attorney’s Office
who previously spent twenty-five years with the Opelousas Police Department.
Ms. Harrison testified that she was the first officer on the scene. She testified that
she thought the exit point was the window on the back of the house as all the doors
on the home were locked from the inside. Ms. Harrison stated that after the
landlord gave her permission to kick in the door, Mr. Dicker Chavis was the one
who actually kicked in the door. Ms. Harrison testified that she could see there
was blood on the bed and on the wall, and the victim was dead on the floor with a
pillow on her face.
The first witness called by Defendant was Mr. Jim Churchman, who retired
from the Louisiana State Police Crime Lab after thirty-eight years. Mr.
Churchman testified that as the physical evidence custodian, he had received
evidence that led to his deciding that another suspect was responsible for the
murder and that the evidence would resolve the case. After this conclusion, Mr.
9 Churchman decided to return any untested evidence to the Opelousas Police
Department, informing the Chief of Police of his decision via letter. 3 Mr.
Churchman, however, testified that knowing what he knows now about the
additional evidence, scientific reliability, and testimony presented to the jury, he
would not have made the same decision; however, that decision was “the best
decision based on the information that was before [him] at that time.”
The next witness to take the stand was Howard Zerangue, Jr., who was the
Chief of Police in Opelousas during the initial investigation of this case. Mr.
Zerangue testified to his limited involvement in the case, and that the lead
detective would have been responsible for the case file.
After the aforementioned extensive testimony presented to the jury and
closing arguments, the jury returned a 10-2 verdict of guilty of first degree murder
during the commission of an aggravated rape.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that
there is one error patent.
The court minutes of sentencing indicate the defendant was provided written
notice of his right to seek post-conviction relief. However, this notice does not
appear in the record and the trial court clerk’s office verified that no written notice
was filed in the record. The sentencing transcript contains no mention of the
written notice. In a similar situation, this court required the notice to be given. See
State v. Richard, 94-1263 (La.App. 3 Cir. 5/17/95), 657 So.2d 258. Thus, we
instruct the trial court to inform Defendant of the provisions of La.Code Crim.P.
3 This letter, not in evidence, stated that Dr. Lagattuta had conclusively identified the bite marks on the victim as having been made by another suspect, Mr. Clint Thompson, and was the subject of extensive pre-trial litigation, with the supreme court ultimately ruling that it was inadmissible hearsay. See State v. Rubin, 15-1753 (La. 11/6/15), 183 So.3d 490.
10 art. 930.8 by sending appropriate written notice to Defendant within ten days of the
rendition of this opinion and to file written proof in the record that Defendant
received the notice. 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.
ASSIGNMENTS OF ERROR
On appeal, Defendant asserts the following as error:
1. The circumstantial evidence presented failed to support a conviction for First Degree Murder and/or Aggravated Rape.
2. The trial court erred in admitting an exculpatory and self-serving statement of the defendant offered by the State which was inadmissible hearsay.
DISCUSSION
Assignment of Error One
In his first assignment of error, Defendant alleges that the evidence was
insufficient to support his conviction. The insufficiency of evidence analysis is
well-established. The supreme court recently stated in State v. Reed, 14-1980, p.
20-21 (La. 9/7/16), ___ So.3d ___:
In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Captville, 448 So.2d 676, 678 (La. 1984). Applying the Jackson standard, the appellate court must determine 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. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Captville, 448 So.2d at 678.
To obtain a conviction for first-degree murder in this case, the State was required to prove beyond a reasonable doubt that defendant killed a human being when he had the specific intent to kill or to inflict great bodily harm upon more than one person. La. Rev. Stat. 14:30(A)(3). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. Rev. Stat. 14:10(1); State v. Butler, 322 So.2d 189, 192–93 (La. 1975). Specific intent to kill may also be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Williams, 383 So.2d 369, 373 (La. 1980); State v. Procell, 365 So.2d 484, 492 (La. 1978).
11 A panel of our court also most recently stated in State v. Smith, 16-188, p. 6
(La.App. 3 Cir. 10/12/16), ___ So.3d ___:
In State v. Dotson, 04–1414, p. 1 (La.App. 3 Cir. 3/2/05), 896 So.2d 310, 312, (quoting State v. Chesson, 03–606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 174, writ denied, 03– 2913 (La. 2/13/04), 867 So.2d 686), this court has explained the insufficiency analysis as follows:
In considering questions of sufficiency of the evidence, a reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00–1629 (La. 4/3/02), 815 So.2d 50.
Further, our court has provided:
In State v. Jackson, 14–9, p. 4 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 634–35, writ denied, 14–1544 (La. 2/27/15), 159 So.3d 1066, this court noted:
It is well settled that the fact finder’s role is to weigh the credibility of witnesses. State v. Ryan, 07–504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. An appellate court should not second guess the credibility conclusions of the trier of fact, but rather, should defer to the rational credibility and evidentiary determinations of the jury. Id. The appellate court may impinge on the fact finder’s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental protection of due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). As stated herein, upon viewing evidence in the light most favorable to the prosecution, the question for the appellate court is whether, on the evidence presented at trial, “‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” State v. Strother, 09–2357, p. 10 (La. 10/22/10), 49 So.3d 372, 378 (quoting Jackson [v. Virginia], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 [1979]).
In those cases relying on circumstantial evidence, the fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there
12 is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). Id. at 8.
When reviewing a jury’s conviction based on circumstantial evidence, the
supreme court recently reiterated that “in effectuating the Jackson standard, [the
court] has found that ‘[w]hen a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by [defendant], that
hypothesis falls, and the defendant is guilty unless there is another hypothesis
which raises a reasonable doubt.’” State v. Ellis, 14-1511, p. 2 (La. 10/14/15), 179
So.3d 586, 588 (citing State v. Captville, 448 So.2d 676, 680 (1984)). Further,
“[t]he test of the sufficiency of circumstantial evidence is not whether it produces
the same conviction as the positive testimony of an eyewitness, but whether it
produces moral conviction such as would exclude every reasonable doubt.” State
v. Shapiro, 431 So.2d 372, 385 (La.1982) (citing State v. Jenkins, 134 La. 185, 63
So. 869 (1913)).
During the two-day jury trial, the jury heard extensive testimony recreating
the scene of this over two-decade old murder. At the very least, the jury heard
about Defendant’s violent tendencies from Ms. Nicholas, the victim’s sister.
Further, Ms. Nicholas testified that the victim and Defendant knew each other, as
they had both been at Ms. Nicholas’ house on the afternoon prior to the discovery
of the victim’s body. Ms. Nicholas testified that she threw Defendant out of her
house because he was brandishing a knife, and that previously, Defendant had
fought with her sons.
Dr. Young testified that Defendant’s sperm was found on the victim’s
vaginal smear. Mr. Schiro testified that in 2012, a DNA profile in the vaginal
swab was found to be a positive match to the DNA profile provided by Defendant.
Mr. Schiro also testified that “the probability of selecting an unrelated individual
was approximately one in thirteen billion.” In addition, he stated by testing the Y-
13 chromosome of the seminal fluid found, the chance of incorrectly identifying
Defendant was about one in three hundred billion, barring identical twins. Yet
Defendant told the investigators on at least three occasions that he had not had
intercourse with the victim and had stated that he did not even know the victim.
Dr. Tape testified that the victim’s cause of death was thirty-one stab
wounds and/or incisions, confirming Dr. McCormick’s initial autopsy report.
Further, Dr. Tape stated that there were defensive wounds on the victim’s hands.
The jury also watched the 2012 video interview that Mr. Grimmett had with
Defendant, wherein Defendant denied ever having intercourse with the victim,
again claiming he did not know her. The jury was able to see video of the crime
scene with blood on the mattress and walls and the overturned dresser drawer. In
addition, Defendant had scratch marks on his neck noted by Mr. Trahan which
Defendant said came from the victim’s niece, Stephanie Keys. However, Ms.
Keys testified that she had no recollection of ever scratching the defendant.
Most importantly, Defendant’s DNA was found in the seminal fluid from the
victim’s vaginal swab. Defendant previously denied in several prior statements
played for the jury that he knew the victim and denied he had ever had sex with
her.
According to Mr. Grimmett, the video and crime scene photos presented to
the jury depict an obvious rape and murder scene where the victim was killed
during a violent rape, having been stabbed or cut thirty-one times. The victim was
found naked with most wounds concentrated around her face, head and chest and
multiple defensive wounds evidencing her attempt to fight back during her rape
and murder. Mr. Grimmett’s testimony was based on his twenty-two plus years
experience in law enforcement. The jury had an opportunity to see him and
evaluate his credibility. The jury also was able to review first hand the videos and
pictures of the crime scene.
14 Proof of murder during the commission of an aggravated rape satisfies the
essential elements of the crime of first degree murder. Louisiana Revised Statutes
14:30 (emphasis added) provides, in pertinent part:
A. First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.
The jury considered the evidence in totality, made credibility determinations
and concluded that the essential elements of the crime had been proven beyond a
reasonable doubt. As provided in the jurisprudence, it is not our role to second-
guess the jury’s credibility decisions. Thus, viewing the evidence in a light most
favorable to the prosecution, we find that Defendant’s assignment of error lacks
merit.
Assignment of Error Two
In his second assignment of error, Defendant contends that the trial court
“erred in admitting an exculpatory and self-serving statement of Defendant offered
by the State which was inadmissible hearsay.” Defendant argues that the State
should have been prohibited from introducing multiple heresay statements given to
law enforcement by Defendant in which he claimed he had never had sex with the
victim. Defendant’s argument is based primarily on his claim that said statements
were “exculpatory” statements that should have been excluded under La.Code
Evid. art. 804(B)(3), as the statements were not inculpatory or made against his
own interest. In State v. Alexander, 03-167, pp. 8-9 (La.App. 3 Cir. 9/10/03), 854
So.2d 456, 462, writ denied, 03-2822 (La. 3/12/04), 869 So.2d 815, this court
quoted La.Code Evid. art. 804(B)(3) in stating that an inculpatory statement is:
15 [A] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.
Defendant argues that his statements that he never had sex with the victim,
though proven to be false, were in no way contrary to Defendant’s interest at the
time they were made. The State argued to both the trial court and this court that
because Defendant said he did not have sex with the victim, consensual or
otherwise, the fact that he was demonstrably lying means the statement was
actually inculpatory. In the alternative, the State contends that because defense
counsel did not object to Mr. Grimmett’s testimony that Defendant had denied
having sex with the victim on his interview with Defendant, it was harmless error
because the content of the statements have been admitted anyway.
The arguments presented to this court by both Defendant and the State
assume the statements are hearsay, and therefore the admissibility of said
statements hinges upon whether or not they fall into one of the exceptions listed in
La.Code Evid. art. 804. However, under La.Code Evid. art. 801(D)(2)(a), a party’s
own statement, offered against him, is by definition NOT hearsay. Accordingly,
the argument over whether or not the statements fall under an exception to the
prohibition against hearsay is irrelevant.
Additionally, the second circuit cited the supreme court’s decision in State v.
Roshto, 222 La. 185, 62 So.2d 268 (1952), when it noted “that evidence of
exculpatory, but false, statements is competent and admissible to establish some
inference of guilt. The prosecution may prove such declarations of the accused,
and then prove their falsity.” State v. McFadden, 476 So.2d 413, 419 (La.App. 2
Cir. 1985), writ denied, 480 So.2d 739 (La.1986). The State introduced the
statements in order to show that Defendant had lied about the fact that he did not
know the victim and never had had sex with her, which was proven conclusively
16 by the DNA testimony presented at trial. Accordingly, the trial court did not err in
admitting Defendant’s prior “exculpatory” statements.
DISPOSITION
We find that Defendant’s assignments of error lack merit. Thus, we affirm
Defendant’s conviction and sentence. 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 ten days of the rendition of this opinion and to
file written proof in the record that Defendant received the notice.
AFFIRMED WITH INSTRUCTIONS.
17 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, dissenting.
I disagree with the majority’s affirmance of Defendant’s jury conviction on
very scant circumstantial evidence. I simply do not think the circumstantial
evidence excluded every other reasonable hypothesis.
The State provided no evidence which could actually place Defendant at the
crime scene beyond a reasonable doubt. The only witness to state the victim was
raped was the detective whose first involvement in the case was more than twenty
years after the victim’s death. Both Doctors Young and Tape refused to say that
the victim was raped. The State’s DNA expert, Mr. Schiro, also refused to say that
the victim was raped. The State’s entire argument for rape and murder was that
Defendant lied about having sex with the victim. Because the State had DNA
proof that Defendant did have sex, there was no other explanation but that
Defendant raped and murdered the victim in her home, the State contends.
However, there was much countervailing evidence. There were more than
twenty fingerprints. None belonged to Defendant. The only evidence placing
Defendant at the crime scene was that his DNA was inside the victim. However,
that does not show that he must have been in her apartment at the time of her
death. The expert testimony indicated that sperm could exist for nineteen days.
There was no testimony that anyone had ever seen Defendant enter or exit the
victim’s apartment. In summary, the State provided no evidence, forensic or otherwise, that could place Defendant inside the victim’s home at any point, let
alone at the time of her death.
For the foregoing reasons, I respectfully dissent.