NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-30
STATE OF LOUISIANA
VERSUS
THOMAS KIRK GATON
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 48267 HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
AFFIRMED.
Kevin V. Boshea Attorney at Law 2955 Ridgelake Drive, Suite 207 Metairie, Louisiana 70002 (504) 834-2114 Counsel for Defendant/Appellant: Thomas Kirk Gaton Michael Harson District Attorney Ted L. Ayo Assistant District Attorney 100 North State Street, Suite 215 Abbeville, Louisiana 70510 (337) 898-4320 Counsel for Appellee: State of Louisiana KEATY, Judge.
Defendant, Thomas Kirk Gaton, was charged by indictment with aggravated
rape, a violation of La.R.S. 14:42. He filed a written plea of not guilty. Trial by
jury commenced on June 21, 2012, and Defendant was found guilty of the
aggravated rape of C.T., a child under the age of thirteen.1 On July 23, 2012,
Defendant was sentenced to life imprisonment without benefit of probation, parole,
or suspension of sentence.
Defendant timely appealed and is now before this court asserting five
assignments of error. Therein, he contends that: 1) the verdict is contrary to the
law and evidence; 2) the prosecution repeatedly referenced his post-arrest silence;
3) the trial court erred in denying his motion to quash the indictment; 4) he was
denied his right to counsel at trial; and 5) the videotape of the victim was
incompetent evidence which should not have been admitted at trial. For the
following reasons, we affirm Defendant‘s conviction.
DISCUSSION
Assignment of Error Number One
In his first assignment of error, Defendant contends the verdict is contrary to
the law and evidence.
The standard of review in a sufficiency of the evidence claim is ―whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.‖ State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing 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)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court ―to substitute its own appreciation of the evidence for that of the
1 The victim‘s initials are being used in accordance with La.R.S. 46:1844(W). fact-finder.‖ State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court‘s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
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. Thus, other than insuring that the sufficiency evaluation standard of Jackson is met, ―the appellate court should not second-guess the credibility determination of the trier of fact,‖ but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:
However, an appellate court may impinge on the fact finders discretion and its role in determining the credibility of witnesses ―only to the extent necessary to guarantee the fundamental due process of law.‖ State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve ― ‗the factfinders role as weigher of the evidence‘ by reviewing ‗all of the evidence . . . in the light most favorable to the prosecution.‘ ‖ McDaniel v. Brown, 558 U.S. 120, , 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question 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.‖ Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury ―reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.‖ State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378.
State v. Teno, 12-357, pp. 7-8 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1073-74.
Defendant was convicted of aggravated rape of a child under the age of
thirteen. Louisiana Revised Statutes 14:42 provides, in pertinent part, as follows:
2 A. Aggravated rape is a rape committed upon a person sixty- five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
....
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim‘s age shall not be a defense.
Sergeant Regina Hargrave, an employee of the Vermilion Parish Sheriff‘s
Office, testified that the allegations at issue were brought to her attention on
September 10, 2007, regarding events that allegedly took place in the summer of
2006. C.T.‘s mother made a telephone complaint regarding Defendant. Sergeant
Hargrave testified that C.T. was brought for a physical examination on
September 19, 2007. That examination revealed a small laceration to the clitoris
and skin excavation around the anus; however, the hymen was intact. Sergeant
Hargrave was unable to determine when the laceration and skin excavation
occurred.
Nicolette Joseph was employed by Hearts of Hope, a children‘s advocacy
and sexual abuse response center. She was accepted as an expert in forensic
interviewing. Joseph interviewed C.T. on September 18, 2007. During the
interview, C.T. stated that she went to the doctor because someone was ―messing
with‖ her. When asked who had been ―messing with‖ her, she said, ―Thomas.‖
C.T. then stated no one had touched her ―tootie,‖ which is what she called her
vagina. She stated that she had been kissed ―there and all down there,‖ gesturing
from her chest all the way down to her vaginal area. When asked who had done
that, C.T. stated, ―Danny no Thomas.‖ She indicated her clothes were on during
the incident, and she was three years old at that time. C.T. also stated Thomas had
3 touched her breasts and put his finger in her vagina while her clothes were ―off
on.‖ C.T. stated that the events occurred while she was at home in the kitchen
getting a snack and standing on a chair. Her father was offshore at the time, and
her mother was at work. C.T. also stated that, while standing on a chair, Thomas
made her put her mouth on his private. His clothes were on and his ―thing‖
touched the inside of her mouth. C.T. first said this happened ―six days‖ but later
said this happened twenty-five times. C.T. indicated that yellow ―pee pee‖ came
out of Thomas‘s ―thing‖ and went into her mouth. She then choked and had to go
to the doctor. C.T. also said that Thomas made her kiss his ―boobies‖ and ―tootie.‖
C.T. indicated it was light outside and cold when these events occurred. C.T. also
stated that Thomas‘s ―thing‖ went inside her ―tootie‖ and that her clothes were on.
C.T. said Thomas stopped because C.T.‘s brother got a gun. C.T. identified parts
of the female body on a drawing. She then said no one had touched her ―boobies,‖
―tootie,‖ or buttocks, and no one asked her to touch their ―boobies‖ or ―tootie.‖ At
the conclusion of the interview, C.T. was questioned about whether she knew the
difference between the truth and a lie, and she indicated that she did know the
difference between them. At trial, Joseph agreed that, during the interview, C.T.
seemed more concerned about playing with Play-Doh and that C.T. did not cry or
seem distraught.
On cross-examination, Joseph acknowledged that C.T.‘s story changed
during their interview regarding whether the incident actually took place, the
identity of the alleged perpetrator, and the number of times the abuse occurred.
Joseph stated that she did not ask C.T. who Danny was, instead focusing on
Defendant because that was the name law enforcement gave her prior to the
interview. Finally, Joseph related that it was not until the end of C.T.‘s interview
4 that she established that C.T. knew the difference between telling the truth and
telling a lie. Nevertheless, C.T. confirmed to Joseph that she had told the truth
during the interview.
Shannon Thornton, C.T.‘s mother, testified that Defendant lived at her home
in 2006 when he worked with her husband. At that time, C.T. was three or four,
Logan was seven or eight, and A.J. was two. C.T.‘s birth certificate was
introduced into evidence and indicated her date of birth as October 10, 2002.
Shannon testified that Defendant began to live with them during the summer and
stayed there for six to eight months. Shannon allowed Defendant to babysit her
two older children when she and her husband were working.
Shannon testified that one day her kids were in the bathroom playing in the
tub when Logan screamed. She determined that C.T. tried to put her mouth on
Logan‘s private part. Shannon asked C.T. why she was doing that and where she
had learned such a thing. After making her ―pinky promise‖ not to say anything,
C.T. eventually told Shannon that Defendant made her put his privates in her
mouth and ―do things.‖ Shannon immediately called her husband who was
working offshore and asked him to fly back into town. They called the police the
day C.T. revealed the abuse or the following morning.
Shannon stated that she never allowed C.T. to tell her more than when the
events were first reported by her and that she did not tell C.T. what to say during
her interview with Joseph. Shannon testified that she did not recall the
terminology the doctor used after C.T.‘s examination, but she was basically told
―that C.T. no longer had what females consider their cherry . . . that there was
some tear in that area.‖
5 Shannon testified that Defendant did not contribute to the household
financially. According to Shannon, she corrected Defendant several times for
watching pornography in front of her children.
Shannon testified that in 2007, her ex-husband‘s nephew, Jonathan
Hernandez, lived in a camper in their backyard. Shannon first stated that
Hernandez never babysat her children and that he was never alone with them, but
she later admitted that she may have left the children with him for a short time
while she went to the store. Hernandez never bathed her children. According to
Shannon, she only recently discovered that Hernandez was a registered sex
offender. Shannon testified that her ex-husband‘s cousin, Danny, and his wife had
also lived in the house with her family in 2007; however, Danny was never alone
with her children.
Logan Thornton was nine years old in 2006. He testified that he saw
Defendant put his hand under C.T.‘s shirt several times and put his hand under her
shorts or skirt. He saw these things occur once on the kitchen counter, once in
C.T.‘s bedroom, and once in the bathroom. Logan testified that these events took
place in the summer. Logan further testified that he never saw Danny or Jonathan
do anything to C.T.
Logan testified that he witnessed between three and five incidents involving
Defendant and C.T. During the first incident, Defendant was in bed with C.T., and
C.T. was not wearing any clothes. The second incident occurred in the bathroom
when Defendant was taking off C.T.‘s clothes. The third and fourth incidents
occurred in the kitchen on the same day. Defendant had his hands under C.T.‘s
shirt at one point and up her skirt at another. Defendant was standing and C.T. was
sitting on the counter. When he saw the Defendant‘s hand under C.T.‘s shirt,
6 Logan told Defendant to leave C.T. alone. Logan stated that he was interviewed
by Sergeant Hargrave about the incidents involving Defendant and C.T.
C.T. testified that Defendant stayed with her and Logan by themselves once,
and, during that time, her clothes were off, and Defendant ―touched me with his
private in my privates, and he put his private in my mouth, and ―his white stuff‖
went into her mouth. C.T. testified that she spit out the white stuff. C.T. denied
that Defendant ever put his hands under her dress. C.T. explained the events at
issue occurred in the kitchen when she was trying to get a snack. She was standing
on a chair, and Defendant stood next to the chair
The defense presented two witnesses at trial. Samara Gaton, Defendant‘s
twelve-year-old daughter, testified that Defendant never did anything inappropriate
to her. Defendant also took the stand in support of his defense. He testified that he
lived in Louisiana from June to mid-August of 2006. He initially stayed at the
Southland Inn, a hotel near Parker Drilling, where he was trying to find work. He
ended up working at Fluid Crane, where he met Jason Newell, C.T.‘s step-father.
Defendant stated that he was invited to live in a camper in Newell‘s backyard at
the end of June but did not stay there until after July 4, 2006. Upon arriving and
finding wasps in the camper, Shannon told him he could stay in the house.
Defendant testified that he did not pay rent but did pay for groceries, in addition to
installing radios, doing yard work, cleaning the pools, and cleaning the truck.
Defendant testified that he moved out of the residence in August. He
returned in late August or early September to get his check, and Newell told him
he could not have it. Defendant testified Shannon held his check and wanted six
hundred dollars from him for staying with them.
7 Defendant testified that he babysat Logan once and never babysat C.T. He
denied ever inappropriately touching C.T., putting his finger in her private, putting
his private in her mouth, kissing her, or putting his private in her private.
Defendant testified that he had prior convictions for D.W.I., possession of
marijuana, theft under five hundred dollars, and evading arrest.
In brief to this court, Defendant submits that there were contradictions in the
testimony and evidence presented at trial. Defendant asserts that C.T. initially
denied anything happened to her. She then stated Danny was responsible. During
her interview, C.T. claimed Defendant put his penis in her vagina and digitally
penetrated her; however, at trial, she asserted Defendant placed his penis in her
mouth but did not mention the other types of sexual conduct. C.T. also denied that
Defendant placed his hands under her dress, while Logan testified that he saw
Defendant place his hands under C.T.‘s skirt several times.
Defendant also notes that during her interview, C.T. stated that the events
happened twenty-five times with her clothes on, and, at trial, she described one
incident in which she was naked. Defendant asserts that Logan stated C.T. was
naked at the time of his observations, which involved Defendant placing his hands
under C.T.‘s shirt and skirt.
Defendant faults law enforcement for failing to investigate Danny or
Hernandez. He also faults Joseph for failing to initially tell C.T. to tell the truth
during her interview. He points to Joseph‘s acknowledgment that C.T.‘s story
changed quite a bit during her interview. Defendant further argues that there was
no physical evidence to corroborate the allegations against him.
The State asserts that the evidence is sufficient to support Defendant‘s
conviction. In support of that contention, the State cites State v. Broussard, 95-792
8 (La.App. 3 Cir. 12/6/95), 664 So.2d 835. In Broussard, the defendant was
convicted of oral sexual battery for performing oral sex on the six-year-old victim
and making her perform oral sex on him. On appeal, the defendant argued that
because the victim‘s sworn testimony at trial and her unsworn testimony in a
videotaped interview conflicted, the sworn testimony should prevail.
In her videotaped statement, the victim in Broussard stated that, while in the
rocking chair, the defendant made her suck his bottom and he licked hers. At trial,
the victim testified the defendant merely kissed her while they were in a rocking
chair. The victim‘s mother testified that the victim told her the defendant made her
suck his penis while they were on a reclining chair. This court found the evidence,
when viewed in a light most favorable to the prosecution, showed the defendant
made the victim perform oral sex. This court further found:
We decline Broussard‘s invitation to review the jury decision and accord greater weight to T.C.‘s trial testimony. The jury was free to ascribe T.C.‘s trial testimony whatever weight it judged reasonable, or none ―at all‖ if it found T.C.‘s taped testimony and the recollection of her mother were more credible and accurate. The record supports the jury‘s findings, and we will not reevaluate the credibility of the witnesses. See State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992).
Id. at 840.
In State v. Simmons, 03-20 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, the
defendant was convicted of aggravated rape and aggravated crime against nature.
On appeal, the defendant argued the victim‘s testimony was unreliable, as there
were inconsistencies in her testimony. On appeal, the fifth circuit noted:
Although there may be slight inconsistencies in minor details of the events surrounding her attack, the child never wavered in her statement―to her mother, Officer Carrone, Dr. Benton, Omalle Gordon, and, finally, at trial—that defendant put his ―thing‖ in her mouth and ―down there,‖ i.e. in her vagina. Further, the alleged discrepancies are not necessarily indicative of untruthfulness or incompetence. Rather, memory lapse and alleged inconsistencies may
9 have resulted from the child‘s tender age―5-years-old―on the date of the incident; the traumatic nature of the experience; exposure to unfamiliar surroundings; or the method of interrogation. See, State v. Foy, 439 So.2d 433, 434 (La.1983).
Id. at 1258.
In State v. Vincent, 07-239 (La.App. 5 Cir. 12/27/07), 978 So.2d 967, the
defendant was convicted of oral sexual battery and sexual battery committed upon
two victims, M and F, who were twelve or thirteen years old. On appeal, the
defendant argued the evidence was legally insufficient to support the verdicts
because the trial testimony was conflicting and contradictory, and his argument
addressed the credibility of the victims. The trial court noted the inconsistencies in
denying the defendant‘s motion for new trial ―but found that the victims were very
young and that juries ‗don‘t‘ hold them to the accountability of being perfect.‘‖ Id.
at 972.
The fifth circuit affirmed the convictions, stating:
There are some inconsistencies in the testimony. For example, F testified that the sexual battery took place once; M stated that it happened to F twice. M‘s version of the sequence of events differed from F‘s. In her recorded statement, F stated that M was in the room with Vincent first, then he pushed her out. F testified that she was in Vincent‘s bedroom on that occasion for thirty minutes; however, M thought that F was in there five or ten minutes. F testified that Helen came home while she was still with Vincent; M testified that Vincent called her into the room after he was finished with F. M testified that she and F had spent the night at Helen‘s house on that occasion, but F testified that, after the incident, she and M walked to F‘s house that evening.
Furthermore,
[w]hen a witness is impeached, this simply means the jury, as the trier of fact, is presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior
10 inconsistent statements does not mean that the jury is prohibited from believing anything said by the witness. The inconsistencies in the witness‘s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness‘s trial testimony.
Here the jury chose to believe the victims. They had the opportunity to hear and consider all of the testimony, and defense counsel was able to effectively cross-examine the witnesses. Further, the major inconsistencies were detailed in the closing argument. The victims were quite consistent in their testimony as to what Vincent did to them. We have no reason to second-guess the credibility finding. The jury could have reasonably determined, based on all the evidence, that Vincent committed the offenses with which he was charged and that the young victims simply had trouble remembering some of the minor details of the incidents. Viewing the evidence in the light most favorable to the State, we find that a rational juror could have found that the State proved the essential elements of the crimes of oral sexual battery beyond a reasonable doubt, thus satisfying the Jackson standard.
Id. at 972-73 (footnotes omitted).
In State v. C.S., 10-507 (La.App. 3 Cir. 11/17/10), 50 So.3d 983, the
defendant was convicted of the aggravated rape of his six-year-old daughter. On
appeal, the defendant implied the victim‘s testimony was not credible because she
had changed her accusation of who abused her several times. The defendant filed a
complaint with police alleging his former girlfriend‘s brother had abused the
victim. After the victim was removed from the defendant‘s custody, she stated the
defendant abused her, and she consistently maintained that position through the
trial. In affirming the defendant‘s conviction and sentence, we stated:
In State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 491, this court quoted the following ruling in State v. Roca, 03- 1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ denied, 04-583 (La.7/2/04), 877 So.2d 143, which in pertinent part stated: ―In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness‘s testimony, if believed by the trier of fact, is sufficient support for a requisite factual finding.‖
11 Considering the evidence in a light most favorable to the prosecution, sufficient evidence exists to sustain the verdict of aggravated rape of a child under the age of thirteen years.
Id. at 986.
In State v. Waguespack, 06-410 (La.App. 3 Cir. 9/27/06), 939 So.2d 636, the
defendant was convicted of aggravated rape. On appeal, this court, after
recognizing that there were inconsistencies in the versions of events given by the
victim at the emergency room, the advocacy center, and at trial, stated:
T.B.‘s testimony may be clearer than her initial reports due to her inexperience with sexual activity.
Furthermore, ―[t]he fact that the record contains evidence which conflicts with the testimony accepted by the trier of fact does not render the evidence accepted by the trier of fact insufficient.‖ State v. Holley, 01-0254, p. 6 (La.App. 3 Cir. 10/3/01), 799 So.2d 578, 583, citing State v. Tompkins, 403 So.2d 644 (La.1981), appeal after remand, 429 So.2d 1385 (La.1982).
State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 456-57.
Id. at 642-43.
In the instant matter, the jury heard the inconsistencies detailed during
C.T.‘s interview and her testimony at trial. C.T. merely mentioned Danny once
during her interview and never referred to him again. C.T. reported to her mother
and Joseph that the acts were committed by Defendant and testified in the same
manner at trial. The jury, as the trier of fact, was free to accept any part of C.T.‘s
testimony. The jury could have determined that, as in Simmons, 845 So.2d 1249,
and Vincent, 978 So.2d 967, any inconsistencies in C.T.‘s claims were due to
C.T.‘s age at the time of the offense. The verdict clearly indicates the jury chose to
believe Defendant committed the acts against C.T. That credibility determination
should not be second-guessed by this court. Based on the decisions cited herein,
12 the evidence was sufficient to support Defendant‘s conviction, as C.T. stated
during her interview and at trial that Defendant placed his private in her mouth.
Accordingly, Defendant‘s first assignment of error lacks merit.
Assignment of Error Number Two
In his second assignment of error, Defendant contends that the prosecution
repeatedly referenced his post-arrest silence contrary to the tenets of Doyle v. Ohio,
426 U.S. 610, 96 S.Ct. 2240 (1976), and its progeny.
During her testimony, Sergeant Hargrave was questioned as follows:
Q. Did you question him?
A. I attempted to when he was at the jail, but he stated he wanted his attorney present whenever we did speak with him.
Q. And did his attorney ever contact you to allow –
A. Not for an interview, no, sir.
The State made the following remarks during its closing argument: ―If the
defendant took a polygraph, it wasn‘t with the sheriff‘s department. It might have
been something his attorney set up, because he had claimed that he wanted a
lawyer.‖2
Defendant contends these excerpts represent direct references to his post-
arrest silence, which violates the Supreme Court‘s ruling in Doyle. Doyle prohibits
the State from impeaching an accused who testifies at the guilt phase of trial with
his decision to remain silent after receiving Miranda warnings during the
investigation of the crime.
2 On direct examination, Defendant testified that he told the ―absolute truth‖ during a polygraph test.
13 In State v. Arvie, 505 So.2d 44 (La.1987), the defendant sought appellate
review of the State‘s use of his post-arrest silence for impeachment purposes and
had not objected to the State‘s questions that elicited the information. The
supreme court found the circumstances of the case did not warrant making an
exception to the contemporaneous objection rule. See also State v. Collins, 09-283
(La.App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied, 10-34 (La. 9/3/10), 44 So.3d
696. Defendant failed to object during Sergeant Hargrave‘s testimony and the
State‘s closing argument. Based on the cases cited herein, we conclude that
Defendant failed to preserve this issue for appellate review.
Assignment of Error Number Three
In his third assignment of error, Defendant contends that the trial court erred
in denying his motion to quash indictment. Defendant filed a motion to quash on
June 18, 2012. The trial court denied the motion at a hearing held on June 19,
2012. Defendant subsequently applied for supervisory writs in this court, and on
June 21, 2012, we issued the following ruling:
WRIT DENIED; STAY DENIED: We find no error in the trial court‘s ruling denying the Defendant‘s motion to quash. Accordingly, the Defendant‘s writ application is hereby denied.
In State v. Marinello, 09-1260, pp. 31-32 (La.App. 3 Cir. 10/6/10), 49 So.3d
488, 507, writs denied, 10-2494, 10-2534 (La. 3/25/11), 61 So.3d 660, 661, we
held:
In State v. Chambers, 99-678 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, writ denied, 00-551 (La.9/22/00), 768 So.2d 600 this court explained that a defendant may seek review of a pretrial ruling even after the denial of a pretrial supervisory writ application seeking review of the same issue. However, when a defendant does not present additional evidence on the issue after the pre-trial ruling, the issue can be rejected on appeal. Id. Judicial efficiency demands that this court accord great deference to its pre-trial decision unless it is
14 apparent that the determination was patently erroneous and produced unjust results. Id.
In brief to this court, Defendant makes a new argument regarding ―actual
notice,‖ asserting the following:
In State v. Romar, 07-2140 (La. 7/1/08) 985 So. 2d 722, it was noted that the Legislature amended La. C. Cr. P. art. 579 to add a third ground of interruption. That is, that the defendant ‗fails to appear at any proceeding pursuant to actual notice, proof of which appears of record‘ 1984 Acts 671. In Romar, the defendant received actual notice in court. As stated, there is no proof of actual notice in the record in the instant case. Nor is there even proof of oral notice given to Mr. Gaton.
Defendant also cites State v. Peters, 10-939 (La.App. 4 Cir. 11/17/10), 52 So.3d
233; State v. Sorden, 09-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181; and State v.
Carcamo, 03-589 (La.App. 5 Cir. 10/28/03), 860 So.2d 220. He then states:
As stated the period of prosecution for non-capital cases was interrupted, if the defendant failed to appear at any proceeding pursuant to actual notice. Here, there is simply no evidence of actual notice, either oral, written or by means of subpoena. The Motion to Quash filed in this matter should have been granted.
In this case, there was no argument in the trial court by the State that the
time to institute prosecution was interrupted because Defendant received actual
notice of the trial date and failed to appear. Additionally, Defendant did not
present any new evidence on the issue after the pretrial ruling. For these reasons,
we will not review this assignment of error.
Assignment of Error Number Four
In his fourth assignment of error, Defendant contends he was denied his
right to counsel at trial. Defendant notes that Amanda Martin was appointed as his
counsel on June 22, 2011, but when she was unable to properly represent him at
trial, Jermaine Williams, ―who simply may have been in Court that day[,]‖ took
over the case for that day. Williams participated in voir dire, made the opening
15 statement, and cross-examined Joseph, the main investigative witnesses. However,
on the second day of trial, Williams was not present, but attorney Harry Brown
was seated at the defense table with Martin. Thereafter, the State sought to have
Brown enroll in the case, and the trial court inquired of Martin ―[h]ow many
lawyers are going to enroll in this case?‖ After Martin assured the trial court that
Brown would not question any witnesses or address the jury, the trial court stated
that he did not need to enroll.
Defendant contends that Williams was never appointed to represent him, and
Defendant did not consent to Williams‘s participation. Further, Defendant argues
that ―the failure of Mr. Williams who never met Mr. Gaton prior to the immediate
state [sic] of the trial to engage in significant participation at trial, constitutes the
constructive denial of counsel.‖ Defendant then cites State v. Laugand, 99-1124
(La. 3/17/00), 759 So.2d 34; State v. Addison, 94-2745 (La. 6/23/95), 657 So.2d
974; and State v. Knight, 611 So.2d 1381 (La.1993).3
In Knight, 611 So.2d 1381, the attorney handling the matter was on vacation,
and the trial court refused to grant a continuance even though the attorney filling in
knew nothing about the case. New counsel presented no defense but did cross-
examine the State‘s witnesses. The supreme court reversed the defendant‘s
conviction and remanded the matter for further proceedings, finding the trial court
constructively denied counsel to the defendant. The supreme court found there
was no significant difference between what happened and the complete absence of
counsel.
3 Defendant admits that in the above-cited cases, defense counsels sought continuances but no continuance was sought in the case at bar.
16 In Laugand, 759 So.2d 34, defense counsel appeared in court on the day of
trial claiming that he was fresh from trial in another parish and, because of a
scheduling conflict, he had been unable to prepare the defendant‘s case for trial.
Defense counsel was therefore physically available to try the case and, after the
trial court denied his motion for a continuance, cross-examined the State‘s
witnesses and argued the case to jurors at the close of evidence. The supreme
court set aside the defendant‘s conviction because defense counsel was not
prepared, and the trial court had to intervene to keep defense counsel from
pursuing matters that appeared directly adverse to the defendant‘s interests.
In Addison, 657 So.2d 974, the defendant had been represented by various
attorneys from the public defender‘s office, and on the morning of trial, the
attorney who had represented the defendant at only a bail reduction hearing
appeared and moved for a continuance. The trial court denied the motion, noting
that different public defenders had been substituting in and out of the case. The
supreme court found that the record did not establish ineffective assistance and
prejudice but found that a showing by the defendant at a subsequent hearing that
his new attorney was totally unprepared might entitle him to a new trial. The
supreme court concluded that it was appropriate to conditionally affirm the
conviction and to remand for a hearing, in the nature of a hearing on a motion for
new trial, to determine whether the defendant received effective assistance of
counsel and, if not, to determine whether he suffered prejudice from such failure.
The State counters that Williams is an attorney for hire and would not have
been appointed by the trial court. The State further asserts that Williams‘s
presence was facilitated by Defendant, who did not want the matter to be
continued. The State submits that Martin was prepared to proceed to trial, but
17 Defendant retained the services of Williams, and Brown was present to assist
Martin with research or prepare another supervisory writ application. The State
further asserts that no one declared that the defense was not prepared to proceed to
trial, and Defendant did not object to the presence of Williams or Brown. Finally,
the State points out that in each of the cases cited by Defendant, a motion to
continue was urged, and no such motion was made in the case at bar.
Martin was appointed to represent Defendant on June 22, 2011. 4 Martin
represented Defendant at trial on June 21, 2012. The minutes of court indicate
that, on that date, Williams moved to enroll as co-counsel, and his motion was
granted. The minutes do not indicate Williams was present on June 22, 2012. On
that date, attorney Brown was present in court with Martin but did not enroll
because he would not be questioning any witnesses. Brown did stand in for Martin
at the sentencing hearing held on July 23, 2012, where Defendant stated:
I never authorized Mr. Williams to represent me on Thursday, and he had looked at my case for maybe 10 minutes when he was representing me, and then he didn‘t even show up on Friday. And it just -- I just didn‘t -- Ms. Martin had had a death in the family, and I think everybody can say in here that she couldn‘t -- she couldn‘t even compose herself or make a -- he had to take over, and he had no idea about my case. Just -- I just don‘t think -- I didn‘t get a fair trial, sir.
In State v. Johnson, 04-178 (La.App. 4 Cir. 12/8/04), 892 So.2d 28, writ
denied, 05-87 (La. 4/22/05), 899 So.2d 556, cert. denied, 546 U.S. 892, 126 S.Ct.
211 (2005), Johnson contended he never met the attorney who represented him at
trial, Eric Hessler, until the morning of trial, June 4, 2002. Johnson had previously
been represented by Robert Jenkins, who appeared at other proceedings, including
a pretrial motion hearing held on August 3, 2001. Johnson argued that the failure
4 Defendant was represented by various counsel prior to this date.
18 of Hessler to meet with him prior to the immediate start of trial constituted the
constructive denial of counsel during the pretrial phase of the proceedings.
In affirming the defendant‘s conviction and sentences, the fourth circuit
discussed Knight,, Laugand, and Addison, noting that a continuance had been
requested in those cases, and that Hessler had not made such a motion. The court
further noted that nothing in the transcript or minute entries indicated that Hessler
voiced any concerns that he had not known of the upcoming trial or lacked
sufficient time to prepare. In addition, Johnson did not argue that Hessler was
actually ineffective but that the change in counsel resulted in a constructive denial
of counsel at the pretrial stage and that no prejudice need be shown. The fourth
circuit further noted Johnson had been represented by counsel throughout the
proceedings. The court then stated:
As a review of the jurisprudence shows that, if Mr. Hessler had requested a continuance because he had been given the case on the eve of trial, the denial of such a request might have constituted reversible error. However, neither the record nor the jurisprudence supports a finding that a mere change in appointed counsel during the course of the proceedings constitutes the denial of counsel at the pretrial stage.
Johnson, 892 So.2d at 36.
In the instant matter, the record does not indicate how Williams came to
enroll in the case on the morning of trial. However, there was no objection by
Defendant at that time. Additionally, none of the defense counsel moved for a
continuance of trial or asserted that they were unprepared to proceed to trial.
Furthermore, Defendant has not argued that any of the counsel were ineffective.
Based on the cases cited herein, we conclude that this assignment of error lacks
merit.
19 Assignment of Error Number Five
In his fifth assignment of error, Defendant contends that the videotape of
C.T. was incompetent evidence which should not have been admitted at trial.
Defendant contends that a competency determination should have been conducted
by Joseph at the beginning of her interview with C.T., and the same criteria for
competency that applies in open court should apply to the interview at issue.
Defendant contends that had the interview been live testimony, it would not have
passed the standards of competency outlined in State v. Davis, 95-801 (La.App. 3
Cir. 12/6/95), 664 So.2d 821.5 Defendant further contends that the interview is
incompetent evidence under La.R.S. 15:440.4(a)(5) because Joseph‘s qualifications
are not set forth in the interview.6
In State v. Roberts, 42,417 (La.App. 2 Cir. 9/19/07), 966 So.2d 111, the
defendant was convicted of molestation of a juvenile. At trial, a videotape of the
child victim‘s interview regarding the alleged abuse was admitted. On appeal, the
defendant argued the trial court erred in admitting the videotape into evidence
because the interviewer, Latonya Hooker, was not present at trial, and the State did
5 In Davis, the victim was questioned by the prosecutor about her ability to tell the difference between the truth and a lie, and the victim indicated that she understood the difference between telling the truth and lying, that she knew she would get in trouble if she lied, and that she must tell the truth in court. 6 Louisiana Revised Statutes 15:440.4 provides, in pertinent part:
A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(5) That the taking of the protected person‘s statement was supervised by a physician, a social worker, a law enforcement officer, a licensed psychologist, a medical psychologist, a licensed professional counselor, or an authorized representative of the Department of Children and Family Services.
20 not present evidence that Detective Moreno actually supervised the interview or
that she was qualified to do so. The second circuit noted that the defendant did not
argue at the trial level that the State failed to present evidence that Detective
Moreno was the actual supervisor of the interview or that the State failed to present
evidence that she was qualified to supervise the interview. Essentially, the
defendant argued that the State failed to present the proper foundation for
Detective Moreno‘s testimony as the person who supervised the interview. The
second circuit held that because it was not raised before the trial court, nor
addressed by the trial court, the issue was not properly before it on appeal.
In State v. Kennedy, 05-1981 (La. 5/22/07), 957 So.2d 757, reversed on
other grounds, 554 U.S. 407, 128 S.Ct. 2641 (2008), the defendant was convicted
of aggravated rape. At trial, he stipulated to the admissibility of the victim‘s
videotaped interview before it was played and expressly stated that he had no
objection to the tape. Even after cross-examination, the defendant still did not
object. On appeal, he argued the victim‘s lack of memory rendered her unavailable
to testify within the meaning of the Confrontation Clause; therefore, the videotaped
interview was inadmissible. The supreme court found the objection was clearly
waived.
Here, Defendant did not object at the time the videotaped interview was
admitted into evidence or played for the jury. Accordingly, this issue is not
properly before this court for review.
DECREE
For the forgoing reasons, Defendant‘s conviction is affirmed.
21 This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.