STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-589
STATE OF LOUISIANA
VERSUS
QUANTELL DERELL ANDERS
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 276283 HONORABLE DONALD THADDEUS JOHNSON, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J. David Painter, Judges.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.
James C. Downs District Attorney - Ninth Judicial District Court P. O. Drawer 1472 Alexandria, LA 71309 Telephone: (318) 473-6650 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 Telephone: (337) 436-2900 COUNSEL FOR: Defendant/Appellant - Quantell Derell Anders Harold A. Van Dyke, III First Assistant District Attorney P. O. Box 1472 909 6th Street Alexandria, LA 71309 Telephone: (318) 473-6650 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
The Defendant, Quantell Derell Anders, appeals his jury conviction for
the lesser included offense of sexual battery in violation of La.R.S. 14:43.1. He was
charged with forcible rape. The Defendant complains about the propriety of denying
a motion in limine, the allowance of a special jury charge requested by the State, and
the alleged error of the trial court in ordering the jury to continue to deliberate and
return a verdict.
For the following reasons, we affirm.
LAW AND DISCUSSION
Motion in Limine
The Defendant contends the trial court erred when it denied his motion
in limine. The Defendant filed a motion in limine on February 14, 2006, seeking to
have the trial court determine the extent and nature of the testimony to be allowed
regarding D.H.’s attire at the time of the offense. Therein, the Defendant asserted
D.H. allowed him into her home between the hours of 1:00 and 2:00 a.m. while
dressed “only in underwear and wrapped in a blanket.”
At the hearing on the motion, defense counsel informed the trial court
that D.H. and the Defendant acknowledged, in their statements to police, that the
Defendant was admitted into D.H.’s home between 1:00 and 2:00 a.m. and D.H. had
gotten out of bed, was in her underwear, and had wrapped a blanket around herself.
Additionally, D.H. remained that way for approximately an hour, at which time the
alleged offense occurred. Defense counsel argued that the information regarding
D.H.’s attire should be available to the jury “to judge consent, simply because it’s the
hour and the location. This is not at a bar. This is her home under two o’clock in the
morning, and that’s the way she allows somebody to come into the -- to her home, and stays that way for at least an hour.” Defense counsel then insisted the Defendant’s
constitutional right to present a defense should preempt the exclusion of evidence
mandated by La.Code Evid. art. 412.1. The trial court then denied the motion, stating
it was the court’s intention to strictly construe Article 412.1. As a result, defense
counsel informed the court that he would proffer the recorded statements of D.H. and
the Defendant. However, the statements were not proffered and are not part of the
record in this matter.
Louisiana Code of Evidence Article 412.1 provides as follows:
When an accused is charged with the crime of aggravated rape, forcible rape, simple rape, sexual battery, or second degree sexual battery, the manner and style of the victim’s attire shall not be admissible as evidence that the victim encouraged or consented to the offense; however, items of clothing or parts thereof may be introduced in order to establish the presence or absence of the elements of the offense and the proof of its occurrence.
There is no jurisprudence interpreting this article.
The Defendant contends La.Code Evid. art. 412.1 was not designed to
cover situations similar to the present case; therefore, the trial court erred in strictly
construing the article and denying his right to present testimony concerning D.H.’s
lack of attire other than her underwear. The Defendant further contends D.H.’s lack
of attire would have supported his assertion that she consented to sexual intercourse
and, as he was not allowed to present testimony regarding her attire, he was deprived
of his constitutional right to due process and the right to confront his accuser. The
Defendant also asserts that, had the jury heard evidence of how D.H. was clothed, it
would have been in a better position to weigh the credibility of D.H. and himself.
The Defendant contends that, once D.H. realized there was no emergency, she had
ample opportunity to either end the conversation with him or excuse herself to dress
2 in more appropriate clothing, as the blanket D.H. used to cover herself cannot be
considered attire for purposes of Article 412.1.
The Defendant then discusses La.Code Evid. art. 404. He concedes that
it is not directly on point. He notes that Article 404 prohibits the introduction of
character evidence and other criminal acts, except in limited circumstances. The
Defendant then cites the following from the Official Comments to Article 404:
(b) Paragraph A codifies the general rule prevailing in Louisiana and throughout the country that, with certain exceptions, character evidence is inadmissible to prove that a person did or did not do a particular act on a particular occasion. Evidence falling within one of the exceptions listed in this Article must nevertheless pass the balancing test of Article 403. In some cases overriding constitutional principles may necessitate admission of evidence not falling within the categories listed in this Article. See U.S. Const.Amend. 6; La.Const. Art. 1, § 16 (1974). See State v. Ludwig, 423 So.2d 1073 (La.1982); State v. Vaughn, 431 So.2d 358 (La.1983). For example, in an appropriate case, constitutional principles may require the admission of evidence tending to show the character of a third person who[] the accused contends committed the offense.1
The Defendant asserts the legislature realized, when enacting Article 404, that the
constitutional rights of a defendant could outweigh the legislative intent. It,
therefore, recognized that a balancing test was necessary in deciding the admissibility
of evidence under Article 404. The Defendant then notes that the legislature did not
provide for a balancing test when enacting Article 412.1, which specifically prohibits
the introduction of evidence of a sexual assault victim’s attire to prove consent.
The Defendant asserts the legislature and the courts cannot protect the
victim of a sexual assault at the expense of a defendant’s right to present a defense.
In support of his argument, the Defendant cites State v. Vaughn, 431 So.2d 358
(La.1982), as follows:
1 We have not cited the exact quote found in appellate counsel’s brief, as it contains information not found in the Official Comments to La.Code Evid. art. 404.
3 Defendants were constitutionally entitled to offer relevant evidence in support of the defense of consent.3 They were also constitutionally entitled to impeach the credibility of their accuser with relevant evidence.4
....
. . . The evidence was certainly relevant to the defense theory.6 . . .
When “prejudice” to the prosecution is balanced against defendant’s constitutional right to present relevant evidence in support of his defense, the balance should be weighed in favor of admissibility in those cases in which the prejudice is minimal.
____________ 3 The right to offer relevant and nonprivileged evidence in one’s defense of a criminal charge is protected by both the Sixth Amendment and La.Const. Art. I, § 16 (1974). See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). 4 See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The right to cross-examine and to impeach is an indispensable aspect of the right protected by the Sixth Amendment and La.Const. Art. I, § 16 (1974). See State v. Toledano, 391 So.2d 817 (La.1980); State v. Hillard, 398 So.2d 1057 (La.1981). See also State v. Dawson, 392 So.2d 445 (La.1980). 6 Relevant evidence is defined by the Federal Rules of Evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. See also James, Relevancy, Probability and the Law, 29 Calif.L.Rev. 689 (1941). For a scholarly discussion of the concept of relevancy in Louisiana, see State v. Ludwig, 423 So.2d 1073 (La.1982).
Id. at 370.
The Defendant then asserts that, by denying the admissibility of evidence
regarding D.H.’s attire solely on the ground that Article 412.1 does not permit it,
without exception, violates his right to present a defense. The Defendant also argues
that he was deprived of his right to cross-examine D.H. concerning her lack of attire
and why she spoke to him for approximately an hour while in a state of undress. In
support of his argument, the Defendant cites State v. Hall, 02-1701 (La.App. 4 Cir.
6/25/03), 851 So.2d 330, writ denied, 03-2305 (La. 2/6/04), 865 So.2d 738, as
follows:
4 A criminal defendant has the constitutional right to present a defense. Due process affords the defendant the right of full confrontation and cross-examination of the state’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La. 6/30/95), 658 So.2d 198, 201.
[D]efense should be allowed substantial freedom in cross-examining state witnesses. But the trial court may curtail such freedom when the questions asked are irrelevant or immaterial to the case. Questions are of material issue if they are of importance to the case. Questions are relevant if they tend to prove or negate the commission of the offense and the intent. Such rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. (Citations omitted)
State v. Short, 94-0233, p. 4 (La.App. 4 Cir. 5/16/95), 655 So.2d 790, 792-793, [writ denied, 95-1520 (La. 11/17/95), 633 So.2d 719].
Id. at 333.
The Defendant asserts that, if the trial court’s interpretation of Article
412.1 is found to prohibit the testimony at issue, Article 412.1 was not only
unconstitutionally applied in the case at bar but is also unconstitutional on its face.
D.H. testified that during the rape the Defendant pulled her shirt over her
head and held it by the neck. The Defendant testified that D.H. started undressing
herself and he helped her. This is the only evidence in the record regarding the way
D.H. was dressed at the time of the offense. However, in brief to this court, the
Defendant asserts D.H. wore only underwear and draped herself in a blanket. The
State asserts D.H. was dressed in a T-shirt and “boy shorts” and covered herself with
a blanket when answering the door. The assertions made by the Defendant and the
State cannot be verified in the record.
In his citation to Vaughn, 431 So.2d 358, the Defendant failed to set
forth the facts of the case and address what evidence the defendant in Vaughn sought
5 to have admitted at trial. In Vaughn, a white woman was allegedly raped by two
black males. The defendants claimed the victim encouraged their advances and
consented to sexual intercourse. The defendants specifically testified that the victim
called out her brother-in-law’s name when the defendants stopped and asked if she
needed assistance; mentioned her brother-in-law several more times; and informed
them of her very special feeling for him, stating he was also a black man. The victim
denied, under oath, that her brother-in-law was black or held himself out to be black.
The defense attempted to introduce the brother-in-law’s marriage license as evidence
of his race in order to impeach the victim. The state objected on the basis that race
was a collateral fact and an irrelevant matter which was not competent for use in
impeaching the victim. The trial court excluded the evidence.
The supreme court found that the trial court abused its discretion and
committed reversible error in disallowing impeachment evidence on the victim on the
issue of her brother-in-law’s race. The court held that the evidence was relevant to
the defense theory that the victim’s inclination to display affection for the defendants,
black males, in her somewhat intoxicated condition stemmed from her strong
attachment to her brother-in-law. The court went on to conclude that:
the trial judge should have exercised his discretion in favor of admissibility of the evidence, which (1) tended to prove a fact that was relevant and probative of the defense theory (but that had little prejudicial effect upon the prosecution’s theory) and (2) was so inextricably tied to [the victim’s] credibility that it bore significantly on the determination of whether [the victim’s] version was accurate and truthful.
Id. at 371.
The situation in Vaughn is clearly distinguishable from the case at bar.
Vaughn addressed the admissibility of impeachment evidence under La.R.S. 15:494,
which was repealed effective January 1, 1989. Additionally, the evidence at issue in
6 Vaughn was clearly relevant to the victim’s credibility and whether she lied under
oath. This case involves the admissibility of evidence regarding the attire of a sexual
assault victim, which is clearly inadmissible pursuant to La.Code Evid. art. 412.1.
As noted by the State, it appears the Defendant is taking the exact
position La.Code Evid. art. 412.1 prohibits—that women wearing certain clothing are
“‘asking for it’ and consent to sex via a wardrobe.” Article 412.1 clearly prohibits
testimony regarding D.H.’s attire at the time of the offense in order to prove consent.
On that basis, the trial court properly excluded any testimony regarding D.H.’s attire.
Although testimony regarding D.H.’s attire at the time of the offense is
inadmissible, the clothing worn by D.H. would be admissible pursuant to Article
412.1, if it were being used to prove the presence or absence of an element of the
offense. Therefore, the clothing worn by D.H. may have been admissible to show the
condition of the clothing after the offense. However, the Defendant did not seek to
have any of D.H.’s clothing admitted into evidence at trial.
The Defendant was able to present a defense in this matter without
referencing D.H.’s attire at the time of the offense. The Defendant testified, giving
his version of the events that occurred the night of the offense, and called several
witnesses to testify on his behalf. The Defendant’s ability to cross-examine D.H.
regarding the offense was properly curtailed, as evidence regarding D.H.’s attire at
the time of the offense was irrelevant and immaterial to the case.
The trial court properly excluded testimony regarding D.H.’s attire at the
time of the offense pursuant to La.Code Evid. art. 412.1. Furthermore, any claims
regarding the unconstitutionality of Article 412.1 were not raised in the trial court and
are, therefore, not properly before this court. See State v. Smith, 04-1442, 04-1470
7 (La.App. 3 Cir. 2/2/05), 894 So.2d 564. For these reasons, this assignment of error
lacks merit.
Special Jury Charges
The Defendant contends the trial court erred in giving the special jury
charge requested by the State. The State requested and the trial court gave the
following special instruction to the jury: “The testimony of the victim alone is
sufficient to prove the elements of the offense, if believed by the jury.” Defense
counsel objected to the instruction.
The Defendant contends that, although the requested charge was a
statement of law and not an abstract principle of law, the charge was improper
because it required further explanation. Additionally, the Defendant contends the
charge was a direct comment on the evidence, as the jury was advised that the
elements of the crime were proven through the testimony of D.H. and, if it believed
her, was sufficient for a finding of guilt. The Defendant further contends the giving
of the charge cannot be harmless error, as it took from the jury its basic function—to
determine whether each element of the offense was proven. The Defendant maintains
the jury was merely called upon to determine whether it believed all or part of D.H.’s
testimony.
Louisiana Code of Criminal Procedure Article 807 provides, in pertinent
part, as follows: “A requested special charge shall be given by the court if it does not
require qualification, limitation, or explanation, and if it is wholly correct and
pertinent. It need not be given if it is included in the general charge or in another
special charge to be given.”
When considering an allegedly improper jury instruction, a reviewing court must determine whether it is “reasonably likely” that the jury applied the challenged
8 instruction in an unconstitutional manner, not whether it is possible that the jury misapplied the instruction. In determining whether it is reasonably likely that the jurors misapplied the instruction, the challenged terms are considered in relation to the instructions as a whole. State v. Bunley, 2000-0405, p. 14 (La.App. 4 Cir. 12/12/01), 805 So.2d 292, [302-]303, [writ denied, 02-505 (La. 1/24/03), 836 So.2d 141]. The test is whether, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge. Bunley, 2000-0405, p. 14, 805 So.2d at 303, citing State v. West, 568 So.2d 1019, 1023 (La.1990). A conviction will not be reversed on the ground of an erroneous jury charge unless the disputed portion, when considered in connection with the remainder of the charge, is erroneous and prejudicial. Bunley, 2000-0405, p. 14, 805 So.2d at 303, citing State v. Motton, 395 So.2d 1337 (La.1981), [cert. denied, 454 U.S. 850, 102 S.Ct. 289 (1981)] and State v. Jordan, 97-1756 (La.App. 4 Cir. 9/16/98), 719 So.2d 556, [writ denied, 98-2595 (La. 1/15/99, 736 So.2d 207.]
State v. Juarbe, 01-2250, p. 14 (La.App. 4 Cir. 7/31/02), 824 So.2d 1240, 1250-51,
writ denied, 02-2846 (La. 10/31/03), 857 So.2d 467; see also State v. McMillan, 02-
181 (La.App. 3 Cir. 6/12/02), 819 So.2d 503.
The charge at issue is not erroneous, as it is the state of the law and is
frequently cited by this court when reviewing the sufficiency of the evidence. See
State v. Gauthier, 04-1608 (La.App. 3 Cir. 11/2/05), 916 So.2d 314; State v. Rideaux,
05-446 (La.App. 3 Cir. 11/2/05), 916 So.2d 488; State v. M.J.S., 05-380 (La.App. 3
Cir. 11/2/05), 916 So.2d 1215; State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915
So.2d 365, writ denied, 06-186 (La. 6/23/06), 930 So.2d 973. Furthermore, the
Defendant concedes the charge at issue follows jurisprudence.
Further, the trial court informed the jury that the Defendant was
presumed innocent until each element of the crime necessary to constitute his guilt
was proven beyond a reasonable doubt and that the burden of proof was on the State.
The court went on to instruct the jury that its determination of whether or not a fact
had been proven was to be based solely on evidence presented or on the lack thereof.
9 The jury was further instructed that it alone determined the credibility of each of the
witnesses and the weight their testimony deserved. Twice, the trial court defined the
offense and all responsive verdicts. Additionally, the jury was instructed a third time
regarding the definitions of the responsive verdicts of attempted forcible rape and
sexual battery. The trial court never informed the jury that it should believe the
testimony of D.H. over that of the Defendant.
As the jury was instructed regarding the offense and the responsive
verdicts numerous time, it was unlikely that the jury applied the charge at issue in an
unconstitutional manner. Additionally, when taken in the context of the instructions
as a whole, reasonable persons would understand the charge at issue.
The jury charge at issue was not erroneous, and the Defendant was not
prejudiced by the charge. Accordingly, this assignment of error lacks merit.
Continuation of Deliberation
The Defendant contends the trial court erred when it ordered the jury to
continue to deliberate and return a verdict.
The jury retired to deliberate at 2:00 p.m. The jury returned to the
courtroom for further instructions regarding the offense and the responsive verdicts
at 2:39 p.m. The court then stated, “You must retire and return a verdict.” The jury
again retired to deliberate at 2:43 p.m. Court reconvened at 3:05 p.m. At that time,
the foreman told the court that the jury could not “get a 10/2 vote.” The following
exchange then occurred:
BY THE COURT:
Did you understand the law that I read to you?
BY THE FOREPERSON FALKS:
Yes, sir.
10 BY THE COURT:
And did you have full discussion in -- as part of your deliberation?
BY FOREPERSON FALKS:
Some of us think we had full discussion. Yes, sir.
Okay. Well, I -- I -- I don’t believe that’s acceptable at this time. I’m going to order you back to deliberate and return a verdict. Okay.
Court again recessed at 3:07 p.m. and at 3:11 p.m. Defense counsel objected to the
court’s remarks stating, “I looked up -- I thought it was kind of borderline a problem.
And I wanted to put an objection to -- on the record, just to -- in case.” Defense
counsel then told the court that it should have instructed the jury to “try to reach a
verdict.” Court reconvened at 4:26 p.m., and the court gave further instructions
regarding attempted forcible rape and sexual battery. The jury retired again at 4:29
p.m. and returned a verdict at 4:38 p.m.
The Defendant contends that it is clear from the record that rather than
declare a mistrial, as warranted by the law and facts of the case, the trial court gave
the jury a very modified Allen charge, which was improper and mandates reversal.
The Defendant additionally contends the trial court’s comments may have caused the
jury to think that the law would not allow a mistrial and that a verdict was required.
The Defendant further contends the actual words used by the court, not the time frame
within which the jury deliberated, are important.
This court has discussed Allen charges as follows:
In [State v.] Nicholson, 315 So.2d 639 [(La.1975)], the supreme court set limits to the instructions that a trial judge can give to a jury after the jury announces it cannot reach a verdict. In Nicholson, the court held when a trial court gives a deadlocked jury an instruction that rises to the
11 level of being an “Allen charge” or any “coercive modification” of an Allen charge, the trial court has committed reversible error. The Allen charge originated in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), where the United States Supreme Court approved a charge designed to break a jury deadlock and accomplish jury unanimity. One characteristic of an Allen charge is an admonition to the jurors in the minority to reconsider their opinion in favor of the majority in order to reach a decision. State v. Schamburge, 344 So.2d 997 (La.1977); State v. Washington, 93-2221 (La.App. 1 Cir. 11/10/94); 646 So.2d 448; State v. Caston, 561 So.2d 941 (La.App. 2 Cir.1990); State v. Campbell, 606 So.2d 38 (La.App. 4 Cir.1992). A second characteristic is the trial court implying to the jury that it must reach a decision because the trial court will not accept a mistrial. Id.
The Louisiana Supreme Court has banned the use of Allen charges and “modified” Allen charges to ensure that juror verdicts are not the product of coercion. Schamburge, 344 So.2d 997; Nicholson, 315 So.2d 639. “When the duty to reach a verdict is coupled with the trial court’s admonition that those in the minority should reconsider their position, there exists an almost overwhelming pressure to conform to the majority’s view.” Washington, 646 So.2d at 454-455.
State v. James, 96-472, pp. 3-4 (La.App. 3 Cir. 12/11/96), 687 So.2d 485, 487, writ
denied, 97-69 (La. 5/16/97), 693 So.2d 796.
“There is no requirement that a judge declare a mistrial at the initial sign
of trouble. State v. Lowenfield, 495 So.2d 1245 (La.1985), cert. denied, 476 U.S.
1153, 106 S.Ct. 2259, 90 L.Ed.2d 704 (1986).” State v. Worthen, 550 So.2d 399, 404
(La.App. 3 Cir. 1989). Additionally, it is also within the discretion of the trial court
to urge jurors to come to an agreement. In State v. Governor, 331 So.2d 443
(La.1976), the Louisiana Supreme Court stated:
It is safe to state as a settled proposition that when the court is informed by a jury that they cannot agree, it is not error for the court to impress upon them the importance of the case, urge them to come to an agreement, and send them back for further deliberation . . . .
Id. at 453.
12 The trial court’s comments merely indicate it felt it was much too soon
in deliberations for the jury to conclude that it could not reach a verdict, as the jury
deliberated for one hour and five minutes before informing the court that it could not
reach the required vote. Furthermore, the foreman merely indicated that some of the
jurors felt there had been a full discussion as part of their deliberations. The trial
judge did not tell the jurors holding the minority view to reconsider their positions in
light of the majority’s stance in order to reach a verdict, nor did the trial court state
that it would not accept a mistrial. Accordingly, the charge at issue was not coercive
in its context and did not rise to the level of an Allen charge. Therefore, this
assignment of error lacks merit.
ERROR PATENT
The record does not indicate that the trial court advised the Defendant
of the prescriptive period for filing post-conviction relief as required by La.Code
Crim.P. art. 930.8. Thus, the trial court is directed to inform the Defendant of the
provisions of Article 930.8 by sending appropriate written notice to the Defendant
within ten days of the rendition of this opinion and to file written proof that the
Defendant received the notice in the record of the proceedings. See 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.
CONCLUSION
We affirm the Defendant’s conviction. However, the case is remanded
and the trial court is directed to inform the Defendant of the provisions of La.Code
Crim.P. art. 930.8 by sending appropriate written notice to the Defendant within ten
13 days of the rendition of this opinion and to file written proof that the Defendant
received the notice in the record of the proceedings.