State v. Barker

628 So. 2d 168, 1993 WL 492516
CourtLouisiana Court of Appeal
DecidedDecember 1, 1993
Docket25461-KA
StatusPublished
Cited by21 cases

This text of 628 So. 2d 168 (State v. Barker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barker, 628 So. 2d 168, 1993 WL 492516 (La. Ct. App. 1993).

Opinion

628 So.2d 168 (1993)

STATE of Louisiana, Plaintiff-Appellee,
v.
Birdette BARKER, Defendant-Appellant.

No. 25461-KA.

Court of Appeal of Louisiana, Second Circuit.

December 1, 1993.

*171 Indigent Defender Office by Richard E. Hiller, John M. Lawrence, Allan R. Harris, Shreveport, for defendant-appellant.

Richard Ieyoub, Atty. Gen., Paul J. Carmouche, Dist. Atty., Rebecca I. Bush and Catherine M. Estopinal, Asst. Dist. Attys., for plaintiff-appellee.

Before NORRIS, STEWART and WILLIAMS, JJ.

NORRIS, Judge.

Birdette Barker was charged by indictment with two counts of aggravated rape of 12-year old "V.H." La.R.S. 14:42. After a jury trial, Barker was found guilty as charged. The trial court subsequently imposed the mandatory sentences of life at hard labor without benefit of parole, probation or suspension of sentence, and ordered them to be served consecutively. Barker now appeals, advancing 10 assignments of error, seven of which have been argued on appeal.[1] For the reasons expressed, we affirm.

Factual background

On the night of September 10, 1991 around 9:00 p.m., V.H. and her 18-year old sister, A.L., were walking down a street in the Martin Luther King area north of Shreveport. They were en route to their grandfather's house, where they were living, on Lanier Street. On the way, they ran into Birdette Barker and two of his friends, James Ray Evans and Robert Bradford. A.L., a crack cocaine addict, knew Barker and Evans, and went up to talk to them out of V.H.'s earshot. V.H. did not know the men. According to A.L., the men agreed to give her a rock of crack in exchange for V.H. performing oral sex on them. According to both A.L. and V.H., V.H. was not told what would be required of her in the transaction. A.L. lit up and smoked the rock right in the street.

A.L. then came back to V.H. and asked if she felt like walking some more. V.H. followed A.L. and the three men for about three blocks to a house on Nena Street, which she later learned was Barker's. V.H. testified she never would have entered the house had she known what the men expected of her.

She followed them in, however, and Barker locked the front door behind her. A.L. went into the rear bedroom with Evans and Bradford. V.H. stayed in the front room, watching TV. Barker came in from the kitchen, dimmed the lights, sat down next to her and offered her some beer. He then asked her if she was a virgin, and if she had ever sucked a penis before. She replied no. He then asked her to suck his penis. When she refused, he grabbed a hammer and threatened her. Out of fear she complied, performing fellatio on him in the living room.

After this was done, Barker went to the bedroom door and told the others to come out. They did so, and Barker asked A.L., "What about my friends?" A.L. offered to "take care of them" herself, but Barker insisted on "fresh meat." Still holding the hammer to V.H.'s head, Barker led her into the bedroom, answering her remonstrances, "it ain't what you want to do." He then had sexual intercourse with her.

When this was through, V.H. put on her clothes, came to the living room and told A.L. she was ready to leave. However, Barker told her, "you're not leaving," and ordered her back into the bedroom. Evans and Bradford followed her in and shut the door. V.H. struggled as they pulled her clothes off, and momentarily she got away to the door. Barker, still in control of the situation, told her that if she would "take care of them" she could leave. Bradford pulled her back into the bedroom. Evans then said they had something to make her feel better: a crack *172 pipe. Still intimidated by the hammer, she smoked the crack in the bathroom. At this point Barker handed the hammer to Bradford, who with Evans took V.H. back into the bedroom. There they made her perform oral sex on both of them, and Bradford performed vaginal and attempted anal intercourse with her, over a space of several hours. At one point, because she was screaming, they stuffed a pillow over her face. Eventually, Evans left the bedroom but Bradford stayed in, telling V.H. he wanted to be her boyfriend.

Around 3:00 a.m., Barker and Evans left to get something to eat from Evans's house. At this point A.L. escaped through the back door and ran to a friend's house. The friend went with her to the Peach Street Apartments, where A.L. called the police. The police promptly came, picked up A.L. and the friend, and drove them back to Barker's house on Nena Street. By this time, Barker and Evans had also returned to the house. V.H., who was still in the bedroom with Bradford, recalls that they started banging on the bedroom door and shouting that A.L. had got away to call the police. Bradford told V.H. to get dressed and offered to walk her home. They got halfway down the driveway, with Bradford still kissing and hugging her, when the police car pulled up. Evans tried to run; Bradford stood there with V.H.; both were taken into custody. Barker stayed in the house a while longer, but he eventually came out and was also taken into custody.

Corporal Moore gave Barker his Miranda rights. At first Barker claimed to know nothing about A.L.'s allegations. Shortly, however, he admitted having sex with V.H. but claimed that she consented. He was then placed under arrest.

While at the scene, A.L. and V.H. were placed in the same police car together. V.H. told A.L. that all three men had raped her. According to V.H., A.L. replied that "If you'd done what I told you [complied with the men], none of this would have happened." V.H. also testified that A.L. instructed her to go along with whatever A.L. told the police, as A.L. intended to lie to them. According to V.H., A.L. told officers that they had been walking around looking for their uncle when they ran into Barker, who said the uncle was at Barker's house on Nena Street, and he could prove it by showing them the uncle's cap; they followed Barker into the house for this purpose only. Later that morning, at the LSU Medical Center, V.H. repeated essentially the same story to Officer Jackson, but said that Barker was wearing the uncle's cap when they met him on the street.

Both V.H. and A.L. nevertheless testified that their descriptions, both at the scene and at trial, of the sexual assaults inflicted on V.H. were accurate. V.H. insisted at trial that she never consented to any of the men's sexual acts.

Over 24 hours after his arrest, Barker was again advised of his Miranda rights and waived them. He gave a recorded statement, admitting that he and Bradford had sex with V.H. at the house, but claiming they thought she was 17 and that V.H. agreed to everything in exchange for the crack cocaine. At this time Barker also consented to a search of his house. Among other things, a hammer and crack pipe were seized.

Discussion: The Motion to produce

By his first assignment Barker urges the trial court erred in denying his motion to produce the grand jury testimony of A.L. and of V.H. By his second, he requests that the sealed grand jury transcript be made a part of the appellate record. The thrust of these arguments is that the witnesses' grand jury testimony is inconsistent with their other statements concerning the incident. Barker contends that the state relied almost exclusively on these witnesses' testimony and, as such, their credibility was indispensable to the question of guilt or innocence; thus the court's refusal to grant the motion to produce, Barker argues, violated his constitutional rights.

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Bluebook (online)
628 So. 2d 168, 1993 WL 492516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barker-lactapp-1993.