STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-1082
STATE OF LOUISIANA
VERSUS
LAWRENCE LAFLEUR
**********
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 90440-FA HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and James T. Genovese, Judges.
CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR RESENTENCING.
Trent Brignac District Attorney Julhelene E. Jackson Assistant District Attorney Post Office Drawer 780 Ville Platte, LA 70586 (337) 363-3438 COUNSEL FOR APPELLEE: State of Louisiana Brent A. Hawkins Louisiana Appellate Project Post Office Box 3752 Lake Charles, LA 70602-3752 (337) 502-5146 COUNSEL FOR DEFENDANT/APPELLANT: Lawrence Lafleur
Lawrence Lafleur Pine Prairie Correctional Center Post Office Box 650 Pine Prairie, LA 70576 IN PROPER PERSON AMY, Judge.
The defendant was convicted of forcible rape and sentenced to thirty years at
hard labor. The defendant appeals. For the following reasons, we affirm the
defendant’s conviction, vacate his sentence, and remand for resentencing.
Factual and Procedural Background
In April of 1994, the victim, J.T., 1 was alone in a washateria in Mamou,
Louisiana, when she was approached by a masked man who demanded money.
Although J.T. attempted to give the man her washing money, he instead forced her
into the washateria bathroom and raped her. J.T. drove immediately to the Mamou
police and reported the rape. However, she was unable to identify her attacker.
A sexual assault examination was performed, and J.T.’s sexual assault
examination kit was forwarded to the Acadiana Criminalistics Laboratory.
Seminal fluid was identified on J.T.’s vaginal swabs, on some socks she had been
holding during the rape, and on J.T.’s pants. At the time, the lab was unable to
process DNA, so J.T.’s sexual assault examination kit was stored. Eventually, the
vaginal swabs were sent to a lab, Orchid Cellmark, in Dallas, Texas, where they
were processed for DNA. The results were sent back to the Acadiana
Criminalistics Laboratory for analysis. Thereafter, an analyst determined that the
DNA results from J.T.’s sexual assault examination kit matched a profile in the
DNA database. That profile belonged to the defendant, Lawrence Lafleur.
After the analyst notified the Mamou police about the match, the defendant
was arrested. While in custody, the defendant made several inculpatory statements
to the police and signed a permission to search form allowing the police to take a
blood sample. The defendant’s blood sample was sent to the Acadiana
1 The victim’s initials are used pursuant to La.R.S. 46:1844(W). Criminalistics Laboratory where testing confirmed that the defendant’s DNA
matched the DNA retrieved from J.T.’s vaginal swabs.
The State subsequently charged the defendant with forcible rape, a violation
of La.R.S. 14:42.1. After a trial, the defendant was found guilty of that charge.
Thereafter, the trial court sentenced the defendant to thirty years at hard labor.
The defendant appeals, asserting in his counseled brief that:
1. The trial court erred in admitting expert testimony based on a report where the Appellant was not given the opportunity to confront and cross-examine the person who prepared the report, in violation of his constitutional rights of confrontation and cross-examination.
2. The trial court erred in sentencing the offender to a 30-year sentence without articulating a factual basis for its sentence and for failing to consider aggravating and mitigating circumstances as required by La. Code Crim. P. art. 894.1.
3. The trial court committed an error patent by failing to give offender credit for time served as part of his sentence.
The defendant has also filed a pro se brief, asserting as error therein:
1. The trial court erred by not allowing the jury to hear the original statement of the defendant from November 7, 2011[,] in violation of La.C.E. art. 901.
2. The trial court erred when it failed to order a mistrial when the Assistant District Attorney, Marcus Fontenot, made a prejudicial statement in the presence of the jury, in violation of La.C.Cr.P. art. 771 and 774.
3. The trial court erred when it failed to grant a motion for mistrial when defense attorney Kelly Tate made an objection to a state actor alleged prior crimes[sic], in violation of La.C.Cr.P. art. 771.
4. The trial court erred when it allowed expert witness, Caroline Booker, to testify about facts that she had no personal knowledge of, in violation of La.C.E. art. 703.
5. The trial court erred when it allowed the use of stipulations to deprive the defendant of his right of confrontation, in violation of U.S. Const. Amend. Six.
2 6. The trial court erred when it allowed the State to file an amended Bill of Information during the trial and denied the defense’s motion for continuance, in violation of U.S. Const. Amend. Six.
Discussion
Errors Patent
Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for
errors patent on the face of the record. We observe one error patent which requires
vacating the defendant’s sentence and remanding for resentencing. The defendant
was convicted of forcible rape, a violation of La.R.S. 14:42.1. The sentencing
provisions of La.R.S. 14:42.1(B) state that “[w]hoever commits the crime of
forcible rape shall be imprisoned at hard labor for not less than five nor more than
forty years. At least two years of the sentence imposed shall be without benefit of
probation, parole, or suspension of sentence.” The record indicates that, when
asked what portion of the sentence was “without benefit,” the trial court stated that
“Well I think it is, it’s certainly the 85%, whatever it is, that’s what it is.”
As it is unclear how many years of the defendant’s sentence were actually
imposed without the benefit of probation, parole, or suspension of sentence, we
find that the defendant’s sentence is indeterminate. See La.Code Crim.P. art. 879.
Accordingly, we vacate the defendant’s sentence and remand for resentencing.2
Admissibility of Expert Testimony
The defendant asserts that the trial court erred in permitting Caroline
Booker, an analyst with the Acadiana Criminalistics Laboratory, to testify
concerning the results of DNA analysis that was conducted by another analyst.
The record reflects that, during her testimony, the State questioned Ms. Booker
2 Having vacated the defendant’s sentence, we do not address his assignments of error concerning his sentence.
3 about DNA testing that was done on the vaginal swabs from J.T.’s sexual assault
examination kit. The defendant objected on the basis that the testing had been
done by Orchid Cellmark, a private laboratory, and that because Ms. Booker had
not done the testing herself, she had no knowledge of the testing and that the
testimony would violate the defendant’s Sixth Amendment right to confrontation.
The trial court overruled the objection.
Thereafter, Ms. Booker testified that Orchid Cellmark sent the data to her,
that she reviewed it, drew her own conclusions, and inputted the resulting profile
into the DNA database. According to Ms. Booker’s testimony, the male profile
obtained from the vaginal swabs matched a profile in the DNA database. Ms.
Booker testified that the matching profile belonged to the defendant. Thereafter,
the police obtained a blood sample from the defendant, and Ms. Booker performed
additional testing to confirm that the DNA profile obtained from the defendant’s
blood sample matched the profile obtained from the vaginal swabs from J.T.’s
sexual assault examination kit.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the United
States Supreme Court held that the admission of “testimonial” hearsay violates the
Confrontation Clause found in U.S. Const. amend. VI. In Bullcoming v. New
Mexico, __ U.S. __, 131 S.Ct. 2705 (2011), the Court held that a forensic report
that contained a certification concerning the defendant’s blood alcohol level
constituted testimonial hearsay and that, because the testifying expert had neither
signed the certification, nor observed nor performed the test, the admission of the
report through the testimony of the expert violated the Confrontation Clause.
However, in Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221 (2012), the Supreme
Court found no violation of the Confrontation Clause where an expert testified that
4 the defendant’s DNA profile matched a DNA profile which belonged to the
perpetrator of a sexual assault and which was developed by another non-testifying
expert. In State v. Bolden, 11-2435, pp. 4-5 (La. 10/26/12), 108 So.3d 1159,
1161-62, the Louisiana Supreme Court addressed the admissibility of such
testimony, stating:
No error under the Confrontation Clause occurs when a DNA expert testifies that in his or her opinion the DNA profile developed from a sample taken from defendant matches the DNA profile developed by other, non-testifying technicians from biological samples taken from the victim of a sexual assault if: the tests on the victim’s samples were conducted before the defendant was identified as the assailant or targeted as a suspect, [Williams, __ U.S. __], . . . the tests are conducted by an accredited laboratory, . . . and the report of the test results itself is not introduced as a certified declaration of fact by the accredited laboratory.
Our review of the record indicates that the expert in this case, Ms. Booker,
testified that the defendant’s DNA profile matched the DNA profile developed by
other, non-testifying technicians. Ms. Booker testified that she performed
confirmatory testing after the DNA database initially indicated that the DNA
profile identified from the victim’s vaginal swabs was a match to the defendant’s
DNA profile. The record does not indicate that the defendant had been identified
as a suspect before the DNA database match. Further, the report of the test results
was not introduced into evidence at trial. Although Ms. Booker offered no
testimony or evidence concerning Orchid Cellmark’s accreditation status, our
reading of the record reveals that neither the Acadiana Criminalistics Laboratory
nor Orchid Cellmark’s accreditation status was at issue during the trial. In
particular, we observe that Ms. Booker was qualified as an expert without any
questioning concerning the Acadiana Criminalistics Laboratory’s accreditation
status and that the defendant did not cross-examine Ms. Booker on this issue. See
5 also State v. Grimes, 11-984 (La.App. 4 Cir. 2/20/13), 109 So.3d 1007, writ
denied, 13-625 (La. 10/11/13), 123 So.3d 1216.
Further, Confrontation Clause errors are subject to a harmless error review.
State v. Hawkins, 96-766 (La. 1/4/97), 688 So.2d 473. In Hawkins, 688 So.2d at
478 (alteration in original), the supreme court addressed harmless error review,
stating:
An error is harmless if the verdict rendered was surely unattributable to the error. La.Code Crim.P. art. 921. The correct standard of review is as follows:
Confrontation errors are subject to a Chapman [v. State of Cal., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)] harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross- examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt. Id. at 684, 106 S.Ct. at 1438. Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross- examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. at 684, 106 S.Ct. at 1438.
State v. Wille, 559 So.2d 1321 (La.1990).
Our review of the record reveals that, even if the trial court erred in
permitting Ms. Booker to testify about the lab work done by Orchid Cellmark, that
error was harmless. The record indicates that, although Ms. Booker’s testimony
was important to the prosecution’s case, in that the defendant was identified as a
suspect because of the database match from the defendant’s DNA profile to the
unknown male profile obtained from J.T.’s vaginal swabs, the defendant made
several statements in which he confessed his involvement in the crime. In
6 particular, the defendant corroborated several details of J.T.’s account of the events
of April 22, 1994. The defendant admitted that when J.T. told him that she didn’t
have any money, he told her “if you can’t give me no money then you know, you
know, let’s have sex[,]” and that he forced J.T. into the washateria bathroom.
Further, the defendant admitted that even though J.T. asked him to stop, he had
intercourse with her. Thus, based on our review of the record, even if the trial
court erred in admitting the testimony about the lab results obtained by Orchid
Cellmark, any such error would be harmless.
This assignment of error is without merit.
Recording of November 7, 2011 Interview
The defendant argues that the trial court erred in failing to have the
recording of his custodial statement taken on November 7, 2011, played for the
jury. According to the defendant, if the recording had been played, the jury would
have heard him make an allegedly exculpatory statement. Our review of the record
does not reveal that the defendant requested that the recording be played for the
jury. Additionally, the record indicates that Chief Greg Dupuis testified about the
defendant’s November 7, 2011 statement without any objection by the defendant
concerning the recording. We also observe that the transcript of the November 7,
2011 statement was not introduced into evidence and was not submitted to the jury.
Accordingly, we find that the defendant has failed to preserve this issue for review
and has waived this assignment of error. See La.Code Crim.P. art. 841.
Testimonial Remarks by the Prosecutor
The defendant also asserts that the trial court erred in failing to order a
mistrial after the prosecutor impermissibly made testimonial remarks during
7 closing arguments.3 However, our review of the record indicates that the defendant
did not object to the allegedly impermissible statements. Thus, the defendant has
not preserved this issue for appellate review. See La.Code Crim.P. art. 841 and
State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied,
10-2682, 10-2706 (La. 4/25/11), 62 So.3d 85, 89.
Other Crimes Testimony
The defendant contends that the trial court erred in failing to grant a mistrial
on the basis of impermissible statements concerning other crimes evidence elicited
from Chief Dupuis, one of the State’s witnesses.
According to the record, the following colloquy occurred during the State’s
questioning of Chief Dupuis:
Q: Well Chief Dupuis[,] did the defendant have a different version of the facts on the November 8th statement?
A: Yes sir he did.
Q: What did he tell you at that time?
A: At that [time] he said that there was no drugs involved as he stated earlier. . . .
The defense objected to this statement and speculated that a mistrial might
be appropriate. Outside the presence of the jury, the State argued that there was no
“other crime” because Chief Dupuis had stated that there were “no drugs involved”
(emphasis added). The defendant argued that the jury would make the inference
that at one time he had said there were drugs involved. The trial court overruled
the objection.
3 The defendant specifically points to a statement made by the prosecuting attorney during closing arguments about the prosecutor’s aunt’s propensity to dye her hair.
8 Louisiana Code of Evidence Article 404(B) provides, in relevant part, that
“evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show that he acted in conformity therewith.” Our review of
the record reveals that Chief Dupuis’ statement does not constitute evidence of any
“other crimes, wrongs, or acts[.]” Thus, we find no error in the trial court’s
decision to overrule the defendant’s objection. Further, the admission of other
crimes evidence is subject to a harmless error analysis, and, absent a reasonable
possibility that any erroneous admission contributed to the verdict, reversal is not
required. State v. Stevens, 11-175 (La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ
denied, 11-2496 (La. 3/30/12), 85 So.3d 115. Even if the trial court’s admission of
the statement was erroneous, we find that, after reviewing the record, there is
sufficient evidence to support the defendant’s conviction. The record indicates
that, although J.T. was unable to identify her attacker, the defendant’s DNA profile
was consistent with the DNA profile recovered from the vaginal swabs in J.T.’s
sexual assault examination kit. Notwithstanding the DNA evidence, the defendant
made inculpatory statements wherein he corroborated the victim’s statement and
details of the crime. The defendant admitted that he attempted to rob the victim,
and that when she told him she didn’t have any money, he told her that they could
have sex instead. Further, the defendant admitted that he forced the victim into the
washateria bathroom and had intercourse with her even though she told him to
stop. Accordingly, we find that any potential error was harmless.
9 Expert Testimony Concerning Receipt and Testing of Sexual Assault Examination Kit in 1994
The defendant next complains that the trial court erred in permitting Ms.
Booker to testify as to events for which she had no personal knowledge. The
defendant specifically points to Ms. Booker’s testimony about the crime lab’s
processing of the sexual assault examination kit in 1994, including who submitted
and received the kit, and that semen was identified on the vaginal swabs from the
kit. Our review of the record indicates that, not only did the defendant fail to
object to this testimony, but that defense counsel questioned Ms. Booker about the
starting date of her employment at the crime lab and who actually received the
sexual assault examination kit. Accordingly, we find that the defendant has failed
to preserve this issue for appellate review. See La.Code Crim.P. art. 841.
Use of Stipulations
Additionally, the defendant argues that the trial court erred in permitting the
attorneys to stipulate about the testimony of former Assistant Chief of Police
Roland Reed, who passed away before trial. The defendant contends that this
stipulation violated his right to confrontation under U.S. Const. amend. VI. The
record indicates that the prosecutor and the defense stipulated that Asst. Chief
Reed delivered the sexual assault examination kit to the Acadiana Criminalistics
Laboratory in 1994. The record also indicates that, having stipulated to this
testimony, the defense did not object to it. Thus, we find that the defendant failed
to preserve this issue for appellate review. See La.Code Crim.P. art. 841.
As previously discussed, Confrontation Clause errors are subject to a
harmless error review. Hawkins, 688 So.2d 473. Although the stipulation
concerned evidence which ultimately led to the defendant’s identification as a
10 suspect in the rape of J.T., the record indicates that the defendant admitted that he
forced J.T. into the washateria bathroom and raped her. Thus, even if the trial
court erred in allowing the stipulation, we find that any such potential error was
harmless.
Amended Bill of Information
The defendant asserts that the trial court erred in permitting the State to file
an Amended Bill of Information and in denying the defendant’s motion for
continuance. The record indicates that, immediately before the start of voir dire,
the State moved to file an Amended Bill of Information which changed the date of
the alleged offense from April 24, 1994, to April 22, 1994. The defendant objected
to the amendment and, on the basis that the amendment might prejudice the
defendant, the defense moved for a continuance. The trial court permitted the
amendment and denied the motion for continuance.
In State v. Williams, 44,418, p. 8 (La.App. 2 Cir. 6/24/09), 15 So.3d 348,
353-54, writ denied, 09-1746 (La. 3/26/10), 29 So.3d 1250, the second circuit
addressed the State’s authority to amend indictments, stating:
The prosecutor has the authority under La. C. Cr. P. art. 487 to make substantive amendments to an indictment at any time before the beginning of trial, subject to the defendant’s right under La. C. Cr. P. art. 489 to move for a continuance if the amendment led to his prejudice. State v. Crochet, 05–0123 (La. 6/23/06), 931 So.2d 1083. The purpose of a continuance is to protect defendant from surprise or prejudice which may result from such amendment. State v. Cleveland, 25,628 (La.App. 2d Cir. 1/19/94), 630 So.2d 1365. When the state requests an amendment to the bill of information before the first prospective juror is called, the defendant’s remedy is a motion for continuance, not an objection to the amendment. State v. Ignot, 29,745 (La.App. 2d Cir. 8/24/97), 701 So.2d 1001, writ denied, 99– 0336 (La. 6/18/99), 745 So.2d 618.
11 Accordingly, the defendant’s remedy was to seek a continuance, not an objection
to the amendment to the bill of information. Granting or denying a continuance is
within the broad discretion of the trial court. State v. Martin, 93-285 (La.
10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252 (1995).
Absent an abuse of that discretion, the trial court’s decision will not be overturned.
State v. Ray, 42,096 (La.App. 2 Cir. 6/27/07), 961 So.2d 607. Our review of the
record indicates that defense counsel only posited that the amendment “may
prejudice the defendant[,]” and offered no specific explanation of the possible
prejudice. Thus, we find no abuse of discretion on the part of the trial court in
permitting the amendment and denying the defendant’s motion for continuance.
DECREE
For the foregoing reasons, the conviction of the defendant, Lawrence
Lafleur, for forcible rape is affirmed. The defendant’s sentence is vacated and the
matter is remanded for resentencing.
CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR RESENTENCING.