STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-720
STATE OF LOUISIANA
VERSUS
ROBERT W. BELL
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 8208-08 HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion, Judges.
AFFIRMED.
John F. DeRosier District Attorney, Fourteenth Judicial District Court P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana
Carla S. Sigler Karen C. McLellan Alberto Dupuy Assistant District Attorneys, Fourteenth Judicial District Court P. O. Box 3206 Lake Charles, LA 70602 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana Edward King Alexander, Jr. Calcasieu District Defender P. O. Box 3757 Lake Charles, LA 70602 (337) 436-1718 COUNSEL FOR DEFENDANT/APPELLANT: Robert W. Bell GREMILLION, Judge.
Defendant, Robert W. Bell, was indicted by a grand jury on March 6, 2008,
for aggravated rape, a violation of La.R.S. 14:42, and sexual battery, a violation of
La.R.S. 14:43.1. The indictment alleged Defendant engaged in oral sexual
intercourse with H.N., a juvenile born March 16, 1994, and made H.N. touch his
penis with her hand during a period of time from January 1, 1997, to December 31,
2003.1 Defendant filed a motion for discovery and inspection and two motions for
bill of particulars on May 2, 2008. The State filed a motion for production of
physical evidence on May 22, 2008. The trial court granted the State‟s motion on
June 10, 2008, and ordered Defendant to “provide all physical evidence of
photographs of his penis to the State of Louisiana for comparison through
Calcasieu Parish Sheriff‟s Office on June 11, 2008.” Photographs of Defendant‟s
penis were taken on June 11, 2008, by Corporal Tim Soileau.
The State responded to Defendant‟s motion for bill of particulars on June 18,
2008, by furnishing a copy of the indictment and by responding, “The answers can
be obtained by reading the Discovery materials.” The State objected to furnishing
a further response.
The jury found Defendant not guilty on the first count of aggravated rape
and guilty of attempted sexual battery as a responsive verdict on the second count.
He was sentenced to five years at hard labor with credit for time served.
Defendant filed a motion in arrest of judgment, a motion for judgment of acquittal,
and a motion for new trial, which were denied. He alleges eight assignments of
error on appeal. We affirm.
1 Initials of the victim are used throughout to protect her identity pursuant to La.R.S. 46:1844(W). FACTS
H.N. was sixteen years old at the time of trial. She had never seen or lived
with her biological father. H.N. has three brothers, two older and one younger than
she. In 1997, H.N. was three years old, and Defendant was her stepfather.
At trial, H.N. testified Defendant made her “touch him in bad ways
whenever [she] was a little girl.” The first time occurred when H.N. was three or
four years old. She peeked in the bathroom door, and Defendant told her to come
in. His pants were down, and “he had [her] feel him . . . with [her] hand.” She
touched his penis with her hand. The touching always occurred in the bathroom
when her two older brothers were at school and her mother was at work.
When H.N. touched Defendant‟s penis, she noticed “a bump” on it;
Defendant told her “he swallowed a banana Runt [candy], and it got stuck.” His
penis felt “kind of hard, kind of squishy . . . the same at one time.” Defendant
would tell H.N. “to try and hang on it.” Defendant continued to make H.N. touch
his penis until she was around eight or nine years old.
On one occasion, Defendant “grabbed a rag and then he said he needed to
clean [her]. And he brought me to momma‟s room and laid me down and put his
hand down there. And the rag, it wasn‟t the rag . . . . Because it was warm and
slimy and a rag is rough.” She recalled seeing the rag on his hand, and she did not
look down. This incident occurred before H.N. started attending school.
H.N. said she told Defendant she wanted to tell someone about what
happened to her. Defendant “told [her] to tell . . . over and over again,” but she
never did until she told her friend, Brittany Campbell, around age thirteen. H.N.
also told Brittany‟s sister, Brooke; she asked them not to tell anyone because she
“was scared.”
2 When H.N.‟s mother first questioned her about whether Defendant had done
anything to her, she told her no “because [she] didn‟t want them to know.” H.N.
and her mother went to the sheriff‟s office the day after H.N. “talked to her about
everything,” and over the next couple of days H.N. told them things she
remembered as she “would get nerve enough where [she] was able to tell
them―tell her.” She told how she would wake up and Defendant “would have a
porno in; and he would have [her] sit down and watch it with him,” how Defendant
“would tell [her] to go get a knife, and he said that it was too big and he needed to
cut it off now,” and “how [they] used to take showers together.”
At trial, H.N. explained she used pictures of a girl and a man at the child
advocacy interview to show what happened to her. She circled the vagina
“because he licked me down there,” and she circled the hands because he touched
her with them. On the picture of a man, she circled the penis “[b]ecause he made
[her] touch him there,” and she circled the mouth “[b]ecause he touched [her] with
that.”
H.N. testified she told the truth at trial and did not lie to get back at
Defendant, her stepfather, for anything. She did not tell her mother sooner
“[b]ecause [she] was scared. [She] thought [she] was going to get in trouble. And
[Defendant] was [her] dad. [She] didn‟t want him going anywhere.”
Brittany Campbell was eighteen at the time she testified at trial. She had
known H.N. since the third grade, and they were good friends. When Brittany was
around age twelve or thirteen in the fifth grade, H.N. told her Defendant had made
her watch dirty movies with him and made her touch him when she was younger.
H.N. asked Brittany not to tell anyone, and Brittany told H.N. she should tell her
mom when she was ready. Brittany did not believe H.N. would lie about
something like this; when H.N. told Brittany, “She was like crying . . . . She was 3 very upset. She didn‟t want to tell me at first.” Brittany promised H.N. she would
not say anything, but she encouraged H.N. to tell her mother. From her point of
view, Brittany believed Defendant was a good man, based on how he treated her
personally.
April Bell, Defendant‟s former wife and H.N.‟s mother, testified that she
met Defendant in July 1996. Defendant watched H.N. after school several times,
and he moved into a trailer with April in August 1997. In January 1999, April
began attending school, and Defendant took care of H.N. while April was in class.
April and Defendant were married on May 12, 2000. Throughout 2001 and 2002,
Defendant watched H.N. after school.
April‟s divorce from Defendant became final in October 2005. Their
custody agreement involved visitation of their child together, but H.N. would also
visit Defendant sometimes. Defendant and April reconciled around March 2006,
and were together for about a year, and H.N. spent time with Defendant in 2007.
In January 2008, April‟s son asked H.N. if something had happened to her
after a discussion of possible abuse involving H.N.‟s younger half-brother. H.N.
was eating, and she put her head down and burst into tears. April then asked her
about exactly what happened; she called the sheriff‟s department and made an
appointment for the next day.
Detective Michael Primeaux, of the Calcasieu Parish Sheriff‟s Office,
received an arrest warrant for Defendant on January 24, 2008, and arranged for
Defendant‟s arrest in Beauregard Parish. Detective Primeaux first asked
Defendant how many times H.N. had touched his penis with her hand. Defendant
said, “never, never happened, couldn‟t have happened, didn‟t happen.” Detective
Primeaux then asked Defendant “about the time when she had disclosed to [them]
about the oral sex when he would wipe her with a rag.” Defendant said “that 4 never happened, he the [sic] never did oral sex on her, never could have happened,
didn‟t happen.” Defendant also denied H.N. could have walked into the bathroom
after he had taken a shower. Defendant did say he was urinating in the restroom on
one occasion when H.N. walked in on him. He was able to turn away, and H.N.
probably saw his penis for probably one to two seconds.
After Defendant denied the allegations, Detective Primeaux asked him how
H.N. could know about a specific characteristic of his penis. Defendant then
became very uncomfortable, pale, and “just almost deflated.” He mentioned for
the first time he had been sick with pneumonia. Defendant began to talk about
childhood abuse at the hands of his father. He then related an incident where he
was masturbating in the shower when H.N. came in and asked what he was doing.
When asked again about allegations of oral sexual intercourse, Defendant
responded “that was so, so, so long ago, he doesn‟t remember that incident, that he
used to drink a lot in the past.”
Detective Primeaux had received information about a bump on top of
Defendant‟s penis. H.N. had “disclosed that [Defendant] told her that he had
swallowed a Runt banana candy and it got stuck down there.” After a hearing, the
State obtained an order to take photographs of Defendant‟s penis. Corporal Tim
Soileau took photographs that were introduced at trial as State Exhibits 8 through
11. In the first group of photographs, the bump was “not quite distinctive.”
Defendant was asked “to start massaging or rubbing his penis to maybe have some
blood circulate through it. And as he did that, the lump progressed a little bit
higher than what it was earlier.” At trial, the State introduced a box of Runt candy
for the jury‟s reference.
Prior to Defendant‟s arrest, April had informed the sheriff‟s department that
Defendant “had numerous weapons in his residence, handguns, a shotgun, and 5 swords that were supposed to be extremely sharp.” Detectives tried unsuccessfully
to contact Defendant twice on January 22 and once on January 23, 2008, before
seven officers, including a four-man SWAT team for purposes of officer safety,
went to Defendant‟s home on January 24, 2008. Officers tried twice to summon
Defendant using a loud speaker and tried to call his cell phone. Defendant
answered the call and was told to come outside with his hands up. After “maybe a
minute or two,” Defendant did not come outside. Detective Primeaux called
Defendant‟s cell phone a second time; Defendant came to the door and was
immediately grabbed and taken to the ground. From the time of the ride from
Defendant‟s home to Detective Primeaux‟s conversation with Defendant at the
Beauregard Parish Sheriff‟s Office, Defendant never said anything about being ill.
Alyson Meisner Dooley, Case Investigator with Child Protection Services
from Beauregard Parish, received a report on January 22, 2008, about two sexual
abuse allegations by H.N. against Defendant. The first allegation was that H.N.
had touched Defendant‟s penis. The second allegation was that Defendant had told
H.N. “he was going to wash her with a cloth, but that he had put his tongue
between her legs instead.”
Dooley met with Detective Primeaux and Defendant on January 24, 2008.
Defendant denied that H.N. had ever seen or touched his penis. He said he had
been in the bathroom once when H.N. walked in; Defendant realized she was there
after a second or two and turned away so that H.N. could not see his “private part.”
Defendant said that H.N. would have never been in the bathroom while he was
taking a shower. He denied performing oral sex on H.N., and “[h]e denied ever
telling her that he was going to wash her with a cloth and then instead put his
tongue between her legs. And he also denied ever telling her to go and get a
kitchen knife to cut his penis off because it had grown too big.” 6 At first, Defendant “was very gregarious and talkative.” About two hours
into the interview, around 9:00 p.m., Defendant was told H.N. had identified “a
lump on the top of his penis.” Defendant seemed “to suddenly fall ill . . . You
could see a physical change in his appearance. He became pale, said he didn‟t feel
good, that he had been suffering from pneumonia, hung his head down and started
to gag and said that he was really tired because he wasn‟t used to being―wasn‟t
used to being up that late.”
Defendant waived his Fifth Amendment rights and testified at trial. He
stated he was involved in H.N.‟s toilet training and hygiene during the time he
babysat her. When asked whether he had put his tongue on her crotch or made her
put her hands on his penis, Defendant responded, “Absolutely not.”
Discord regarding H.N. and her younger half-brother around the time of the
allegations included H.N. “being hateful towards her brother, by kicking him in the
groin whenever she got mad at him . . .” Defendant had no control over April‟s
household because he was not living there. April had threatened H.N. with “kiddy
jail,” and Defendant backed her up on that. Defendant told H.N. he “had to stand
behind her mother‟s decision.” About three or four weeks later, the police came to
Defendant‟s house. Defendant reiterated that he had not done any of the things he
was accused of.
On cross-examination, Defendant admitted the possibility that H.N. had seen
his penis when he was using the bathroom or drying off in the shower. Defendant
was questioned about his reaction when he learned H.N. said he had a bump on his
penis. He said that was after the detective had made offensive remarks about
April, after Defendant “had said that [he] was not going to talk anymore to him,
that this conversation was over.” It was apparent to Defendant “that [Detective
Primeaux] was not interested in hearing anything but bits and pieces, answers to 7 leading questions in which [Defendant] had no idea–no ability to continue the
statement of.” Defendant testified that he had told Detective Primeaux he was
weak and recovering from pneumonia at the time the detective called him at home
on his cell phone. Defendant “knew what was going on” at the interview, [b]ut
when you take tepin (sic) hydrate with codeine, you start to fall asleep.”
Defendant testified H.N. was making up these allegations, but he had no idea
why. He said Brittany and Brooke had told him H.N. had said some things.
However, at Defendant‟s bond reduction hearing, he had said only Brooke,
Brittany‟s twin, had told him. Brittany testified that she never told anyone about
what H.N. told her.
Betty Campbell, the mother of Brooke and Brittany, testified that Defendant
had a reputation for truthfulness, and “was always good to the kids.” She “never
heard nothing bad” about Defendant, who was “a father figure” to Brooke and
Brittany.
ASSIGNMENT OF ERROR NUMBER ONE
Defendant alleges the trial court patently erred in failing to withhold the
imposition of sentence for twenty-four hours following the denial of his motion for
new trial, as required by La.Code Crim.P. art. 873. The record reveals that the trial
court did run afoul of the Code of Criminal Procedure. However, the error is
harmless. Defendant does not assign as error excessiveness of his sentence, and he
does not show, or even allege, any way he was prejudiced by the lack of delay.
See State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant argues that the trial court erroneously denied his motion to
continue the trial despite the alleged untimely receipt of the court‟s list of priority
cases, in violation of State v. Simpson, 551 So.2d 1303 (La.1989). Trial was 8 originally set for September 8, 2008. It was refixed for trial on March 2, 2009; that
date was continued unopposed at Defendant‟s request until September 14, 2009.
On March 2, 2009, trial was refixed for September 14, 2009. It was later refixed
for January 4, 2010, February 8, 2010, May 3, 2010, and September 20, 2010. Jury
selection began on September 28, 2010; trial was recessed first until October 4,
2010, and then until October 5, 2010.
The record contains no further motions or orders for continuance.
Nevertheless, in a hearing on another matter on September 29, 2010, Defendant‟s
counsel argued that he had already orally moved for a continuance, and his motion
was denied. The record does not reflect such a motion or disposition. At that
hearing, Defendant‟s counsel indicated that he was filing a written motion for
continuance and supporting memorandum, which argued that he could not prepare
for trial of this matter and another matter because of problems with the trial court‟s
priority list. Counsel then proceeded to argue the issue extensively, even though it
had not been set for hearing, noting one of his concerns in this matter “was having
to try [this] case while [the other] case was over [his] head for Monday.” The trial
court granted the continuance in the other case and ordered the trial of this case to
proceed. The record does not indicate that the motion to continue to which
Defendant‟s counsel referred was ever filed.
A motion to continue “shall be in writing” and “shall be filed at least seven
days prior to the commencement of trial.” La.Code Crim.P. art. 707. The trial
court may grant a written motion to continue at any time “only upon a showing that
such motion is in the interest of justice.” Id. When circumstances occur
unexpectedly and defense counsel has insufficient opportunity to prepare a written
motion, the requirement of a written motion may be waived. State v. McGee, 04-
9 963 (La.App. 5 Cir. 1/11/05), 894 So.2d 398, writ denied, 05-593 (La. 5/20/05),
902 So.2d 1050.
The motion defense counsel argued on September 29, 2010, was oral. The
prior motion to which counsel referred was likewise oral. Defendant‟s counsel
indicated that he had received the Simpson list twelve and one-half days prior to
trial, on the Tuesday after the Labor Day holiday. The record reflects that he took
no action toward seeking a continuance of this trial during those twelve and one-
half days, but rather waited until the second day of jury selection to complain that
he had insufficient time to prepare for trial. This case does not present
circumstances that occurred unexpectedly nor did it provide counsel an insufficient
opportunity to timely prepare a written motion. Again, the record contains no
written motion. Accordingly, the trial court did not err in denying Defendant‟s oral
motion to continue the trial on the second day of jury selection.
ASSIGNMENT OF ERROR NUMBER THREE
Defendant alleges that the trial court erred by denying his motion for mistrial
after trial began with the seating of the jury but before the commencement of
evidence and/or for denying his renewed motion for mistrial as to Count 2 of the
indictment after conviction. Both of Defendant‟s motions during trial concerned
the allegedly defective indictment. He now argues the “overcharging of Count 1
requires reversal of his conviction on Count 2.”
The entire argument is based on the allegedly defective indictment. Count I
of the indictment, filed March 6, 2008, reads:
COUNT 1: AGGRAVATED RAPE [DEFENDANT] DID ENGAGE IN ORAL SEXUAL INTERCOURSE WITH TO WIT: H.N., DOB: 3-16-94, A JUVENILE, WITHOUT THE VICTIM‟S LAWFUL CONSENT UNDER CIRCUMSTANCES WHEREIN THE VICTIM WAS PREVENTED FROM RESISTING THE ACTS BY THREATS OF GREAT AND IMMEDIATE BODILY HARM, ACCOMPANIED 10 APPARENT POWER OF EXECUTION OCCURRING IN CALCASIEU PARISH.
The indictment alleges that this act occurred “on or about January 1, 1997 to
December 31, 2003.”
The crime of aggravated rape did not include oral sexual intercourse until an
amendment of La.R.S. 14:42, effective August 15, 2001, changed the language of
the statute. Acts 2001, No. 301, § 1. In response to the State‟s pre-trial writ
application seeking to include responsive verdicts on the verdict form, this court
held, “If the evidence at trial shows the offense occurred prior to August 15, 2001,
the trial court shall charge the jury as to the responsive verdicts available at that
time” and ordered the trial court “to fully charge the permissible verdicts which are
supported by the evidence adduced at trial.” State v. R.W.B., an unpublished writ
ruling bearing docket number 10-1198 (La.App. 3 Cir. 10/5/10).
After a trial begins, an order of mistrial is mandatory when the indictment
contains a defect of substance. La.Code Crim.P. art. 487(A). A defect of
substance is one “which will work to the prejudice of the party accused.” State v.
Harris, 478 So.2d 229, 231 (La.App. 3 Cir. 1985), writ denied, 481 So.2d 1331
(La.1986) (quoting City of Baton Rouge v. Norman, 290 So.2d 865, 870
(La.1974)). In Harris, the trial court allowed amendment of a defective indictment
after trial began over the defendant‟s objection. This court held the defendant did
not allege or prove prejudice resulting from the defect in the original indictment,
he was made aware of the crime charged and the date and time it allegedly
occurred, and his rights concerning pre-trial notice and double jeopardy were not
compromised. Thus, the defect was one of form, not of substance, and the trial
court did not err by allowing the amendment.
11 Here, Defendant alleges prejudice by “the defect and the overcharging of
Count 1.” He contends that the State proceeded with prosecution of Count 1
despite a lack of evidence to support the charge, and the “other crimes” evidence
the jury was allowed to hear was the evidence of the aggravated rape charged in
Count 1. Defendant acknowledges his acquittal on Count 1 but nevertheless argues
the prosecution of that count somehow influenced his conviction on Count 2, “due
to the overall prejudicial effect of the flawed bill of indictment.”
The trial court considered the indictment here to be defective because the
facts on which the State relied constituted the crime of aggravated rape only for
part of the time period alleged by the State in the indictment. The court
worked [its] way through that to make sure that the crime that [it was] dealing with fit particular time periods. The [c]ourt listened to the evidence and made rulings as [it] went along to insure that the jury would only consider the initially indicted charge of aggravated rape only for a particular time period because of the change in the law.
Evidence of other crimes “is not admissible to prove the character of a
person in order to show that he acted in conformity therewith.” La.Code Evid. art.
404(B). Evidence of the “other crime” in this case, i.e, aggravated rape, was not
offered or admitted as an indication of character. It was offered because
aggravated rape was the crime charged in Count 1 of the indictment.
The jury found Defendant not guilty on Count 1. This verdict shows that the
jury obviously did not consider the evidence the State presented to be evidence of
“other crimes”; through the not guilty verdict, the jury showed it did not consider
Defendant to have committed that crime. We, therefore, fail to see how Defendant
was prejudiced. Because we find no prejudice resulted, the defect in the
indictment was one of form, not of substance; therefore, the trial court did not err
in denying Defendant‟s motion for mistrial.
12 ASSIGNMENT OF ERROR NUMBER FOUR
Defendant argues reference to H.N. as “the victim” by the trial court and the
State prejudiced him. He contends the reference “presupposes that the fact has
been established that the accuser is the victim of the crime at trial, and thus invades
the province of the jury.” Defendant cites no authority to support this position.
Defendant fails to cite any instance where reference to H.N. as “the victim”
caused any prejudice to him or resulted in unfair treatment. The trial court‟s
instructions to the jury told them to disregard any impression he may have given
regarding Defendant‟s guilt or innocence. He explained Defendant was “presumed
to be innocent until each element of the crime necessary to constitute his guilt is
proven beyond a reasonable doubt.” This argument is without merit.
ASSIGNMENT OF ERROR NUMBER FIVE
Defendant argues prospective juror #316 was improperly dismissed for
cause. Such an argument is proper only where “the effect of the ruling is to allow
the state to exercise more peremptory challenges than is allowed by law.” State v.
Green, 98-1388, p. 12 (La.App. 3 Cir. 3/31/99), 735 So.2d 723, 731, writ denied,
00-2904 (La. 8/24/01), 795 So.2d 323 (citing State v. Joe, 28,198 (La.App. 2 Cir.
7/26/96), 678 So.2d 586, writ denied, 97-559 (La. 10/31/97), 703 So.2d 16; State v.
Fleeks, 26,720 (La.App. 2 Cir. 3/1/95), 651 So.2d 370; La.Code Crim.P. art.
800(B)). Here, the State was entitled to twelve peremptory challenges. La.Code
Crim.P. art. 799. It exercised only eleven. Thus, even if the prospective juror were
improperly excused for cause, his exclusion did not result in allowing the State
peremptory challenges to which it was not entitled.
ASSIGNMENT OF ERROR NUMBER SIX
Defendant contends that he was improperly denied the right to submit
impeachment evidence at trial; thus, his rights under the Confrontation Clause of 13 the Sixth Amendment and his due process rights under the Fourteenth Amendment
were violated. He complains that he was prevented from submitting evidence to
show H.N.‟s “motives of chafing at parental restriction of her conduct and society
with a particular member of the opposite sex or boys generally, and of what before
trial had come full flower as her manifest biological imperative.” Defendant
argues that he should have been allowed to put on evidence that H.N. had borne
two children by the time she testified at trial at age sixteen. He speculates that the
jury “was left to wonder whether [he] himself had possibly fathered one or both of
them,” although the only reference to either child occurred when H.N. testified,
during Defendant‟s cross-examination, that she lived with “her two babies.”
Evidence of a victim‟s past sexual behavior is certainly admissible under
certain circumstances. La.Code Evid. art. 412(A). None exist here. Article 412‟s
comment (c) explains that this rule “is not intended to exclude evidence showing
bias, interest, or corruption.” Defendant contends that he was entitled to put on the
evidence to show H.N.‟s keen interest in making the allegations: namely, to get
him out of the way so that she could behave as she wished.
The evidence Defendant was able to admit showed that H.N. lived with her
mother, little brother, two children, and step-father at the time of trial. According
to H.N.‟s testimony, she had seen television programs talking about child
molestation. She believed the father of her older half-brother had been charged
with a child-molestation offense. Before H.N. told her friend, Brittany, what
Defendant had done, Brittany “told [H.N.] that her dad had done something to her.
But then she later said that didn‟t happen.” H.N. believed Defendant and her
mother were divorced, but Defendant “was staying in the house sometimes” when
her conversation with Brittany took place. H.N. “might have been 12, but probably
close to 13” at the time. 14 Around a half a year to a year later, H.N. told her mother and her half-
brother that Defendant had done something to her. The next day, H.N.‟s mother
took her to the sheriff‟s office to report the incidents. When H.N. was around age
thirteen, she and her mother began having disagreements about things she would
be allowed or not allowed to do. She was also thirteen when her mother took her
to the sheriff‟s office to talk about what she had told Brittany.
After H.N. talked to Brittany and her mother about what happened with
Defendant, H.N.‟s mother “caught her” with her boyfriend. H.N.‟s mother “would
get on to [her] about laying on the couch with him and warning [her] not to do
anything.” H.N. testified that Defendant never said anything to her about that, and
he never played any part in the conversations between H.N. and her mother.
H.N.‟s mother told her many times, up until around the time she was around age
thirteen, that she would put H.N. in juvenile detention if she “didn‟t straighten up.”
H.N. testified that she did not make up what she said Defendant did to her because
of the threats to be put in “juvie,” because of the custody dispute between her
mother and Defendant involving her younger half-brother, or so that her younger
half-brother could stay with her mother.
The trial court allowed extensive testimony by April, over the State‟s
objection, about details from her divorce proceeding with Defendant. Defense
counsel was allowed to discuss papers filed in that proceeding that alleged April
committed adultery with a named individual. When the State objected, defense
counsel argued “[t]he relevance goes to the motive to make or to assist in the
allegations that have been made against [Defendant] in this case.” April testified
that she filed for divorce from Defendant because they argued all the time, he
constantly yelled at H.N., and he and their son got into several arguments. The
petition was filed September 12, 2005, and they executed a custody agreement 15 concerning their son on February 2, 2006. April testified that she and Defendant
had no major issues regarding their son‟s custody after that agreement. H.N.
disclosed the alleged abuse by Defendant in the beginning of 2008.
Defendant himself testified about discord in their family regarding both H.N.
and his son. He observed H.N. “being hateful towards her brother, by kicking him
in the groin whenever she got mad at him, these types of things.” Defendant had
no control over H.N.‟s discipline in early 2008, because he was not living with her,
but he did stand behind April‟s discipline, including the “kiddy jail” that was
threatened. He told H.N. he would stand behind her mother‟s decision on that
matter about three or four weeks before he was arrested.
As seen from the foregoing, Defendant put on a great deal of evidence
tending to demonstrate the problems H.N. allegedly posed. However, by his own
testimony, those problems occurred after he and April had divorced and settled
their custody dispute. We find the introduction of evidence establishing the fact
that H.N. became sexually active and gave birth to two children after Defendant‟s
arrest is prohibited by Article 412 under these circumstances. The admission of
this evidence would not serve the purpose of showing H.N.‟s interest in seeing
Defendant sent away to prison for reasons other than the crimes of which he stands
convicted.
ASSIGNMENT OF ERROR NUMBER SEVEN
Defendant argues that Louisiana‟s ten-to-two majority verdict law is
federally unconstitutional. La.Code Crim.P. art. 782. Although it is unclear from
the record whether this issue was properly preserved for review on appeal, we find
no merit to Defendant‟s argument. The trial court‟s instructions to the jury stated,
“At least ten members of the jury must concur to reach a verdict in this case on
each count.” Defendant contends that the Supreme Court‟s decision in McDonald 16 v. City of Chicago, Ill., __ U.S. __, 130 S.Ct. 3020 (2010), required a unanimous
verdict here; thus, Defendant‟s conviction must be vacated.
The McDonald court, if anything, verified the constitutionality of Article
782. McDonald concerns the issue of whether the right to bear arms is
incorporated into the concept of due process, not the issue of one‟s right to a
unanimous jury verdict. The case does, however, discuss the applicability of the
federal Bill of Rights to the states and notes, “[T]he Court abandoned „the notion
that the Fourteenth Amendment applies to the States only a watered-down,
subjective version of the individual guarantees of the Bill of Rights,‟ stating that it
would be „incongruous‟ to apply different standards „depending on whether the
claim was asserted in a state or federal court.‟” Id. at 3035 (citing Malloy v. Hogan,
378 U.S. 1, 10-11, 84 S.Ct. 1489, 1495 (1964)).
However, footnote 14 of McDonald states:
There is one exception to this general rule [that Bill of Rights protections are enforceable against the states]. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); see also Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca, eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. See Johnson, supra, at 395, 92 S.Ct. 1620 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca, 406 U.S., at 406, 92 S.Ct. 1628 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id., at 414-415, 92 S.Ct. 1628 (Stewart, J., dissenting); Johnson, supra, at 381-382, 92 S.Ct. 1620 (Douglas, J., dissenting). Justice Powell‟s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca, therefore, does not undermine the well-established rule that incorporated Bill of Rights protections 17 apply identically to the States and the Federal Government. See Johnson, supra, at 395-396, 92 S.Ct. 1620 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment‟s jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments”).
McDonald, __ U.S. at __, 130 S.Ct. at 3036-36, n.14.
Defendant‟s counsel even admitted, at the hearing of the motion in arrest of
judgment, that “the majority verdict law is being consistently upheld, and that‟s not
going to change until the U.S. Supreme Court grants, cert, and reverses Appadocca
[sic] vs. Oregon.” That has not happened. Thus, based on Apodaca and the
Court‟s positive comments on it in McDonald, we conclude that Defendant‟s
argument is without merit.
ASSIGNMENT OF ERROR NUMBER EIGHT
Defendant complains that the trial court erroneously “admitted highly-
prejudicial police photographs of the defendant being forced to stretch out his
penis while wearing jailhouse orange.” He contends admission of the photographs
was more prejudicial than probative and violated his due process rights.
H.N. testified Defendant had “a bump” on his penis, and he told her he
“swallowed a banana Runt [candy], and it got stuck.” The State obtained an order
to take photographs in an effort to determine whether any penile abnormality in
fact existed. Photographic evidence is generally admissible unless its probative
value is outweighed by its prejudicial effect. State v. Snyder, 98-1078 (La.
4/14/99), 750 So.2d 832.
Snyder involved the admission into evidence of postmortem photographs
that the defendant claimed were prejudicially gruesome. Our supreme court held
that “[p]ostmortem photographs . . . are admissible to prove corpus delicti and to
18 corroborate other evidence establishing cause of death and location and placement
of wounds, as well as to provide positive identification of the victim,” and these
were “relevant to illustrate the number and location of stab wounds to the victim.”
Id. at 843.
This case presents a similar issue. The photographs, while certainly
sensitive, are not gruesome. The photographs were admitted during Detective
Primeaux‟s testimony to corroborate H.N.‟s testimony and support her credibility.
The trial court was very careful to prohibit Detective Primeaux from testifying
about his opinion of what he saw in the photographs. The trial court explained to
the jury it could “make [its] own decision about whether something is there or
not.” The trial court further instructed the jury that people in jail “wear jailhouse
orange,” and “[t]he fact that person has been arrested, has been charged with a
crime or is in jail is not proof that they committed any crime.” It also explained
that the purpose of showing the jury the photographs was “only for the purpose of
[the jury] seeing his penis.” We find that the trial court did an exemplary job in
providing instruction, and consequently, the jury was able to make its own
determinations and freely decide whether it saw anything in the photographs to
corroborate H.N.‟s testimony. The probative value of the photographs outweighed
any prejudicial effect they may have had; thus, Defendant‟s argument is without
merit.
DECREE
Defendant‟s conviction is affirmed.