State v. Durosseau

626 So. 2d 51, 1993 La. App. LEXIS 3367, 1993 WL 448297
CourtLouisiana Court of Appeal
DecidedNovember 3, 1993
DocketNo. Cr93-199
StatusPublished
Cited by2 cases

This text of 626 So. 2d 51 (State v. Durosseau) 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. Durosseau, 626 So. 2d 51, 1993 La. App. LEXIS 3367, 1993 WL 448297 (La. Ct. App. 1993).

Opinion

GUIDRY, Judge.

The defendant, Kenneth Durosseau, was charged by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42. At the conclusion of a jury trial, the defendant was convicted of forcible rape, a violation of La.R.S. 14:42.1. After reviewing a presentence investigation report, the trial court sentenced the defendant to 40 years at hard labor, without benefit of probation, parole, or suspension of sentence. From this verdict and sentence, defendant appeals, assigning six errors. Contentions three, four and six were not briefed and are therefore considered abandoned. Uniform Rules Courts of Appeal, Rule 2-12.4. In addition, the defendant added a contention in brief to this court which was not assigned as error. This issue, alleging an error on the part of the jury in its consideration of an item of physical evidence, will be reviewed in the interest of judicial economy.

[53]*53 FACTS

Just before 9:00 p.m. on April 15, 1991, Basile Police Department Sergeant Nolan Ardoin returned home from a law enforcement training class. At approximately 9:00 p.m., while in his kitchen, Sergeant Ardoin heard noises which he believed were coming from outside his house. He investigated the “cat-like” noises outside. Upon finding no irregularities, he returned inside the house. Shortly thereafter, Ardoin heard a woman screaming, pounding on his door and calling his name. The woman, Ms. Jouanna Nelson, was crying and screaming, and told Ardoin that a black man had broken into her house.

Ardoin called the Basile Police Department, then went outside to search for the intruder. Officer Tony Reed arrived to assist in the search, but the officers failed to locate the suspect. Ardoin returned to his home to speak with Ms. Nelson, who identified Kenneth Durosseau as the person who broke into her house and attacked her. Ba-sile Police Chief Allen Ivory arrived on the scene and was informed by Ms. Nelson’s brother-in-law that the defendant was the attacker. The defendant, who lived at his mother’s residence, is the nephew of Chief Ivory. The Chief and Sergeant Ardoin proceeded to Mrs. Durosseau’s house to question the defendant. Durosseau was not there, but the officers were informed that he might be at Ms. Rose Blunt’s home, which was nearby. The officers proceeded to Ms. Blunt’s residence and knocked on the front door. No one answered and, after several minutes, the defendant’s mother, Ms. Lisa Edwards, and a third woman approached the residence on foot. Ms. Edwards opened the door and yelled inside for the defendant. The defendant came to the door and was taken to the police station for questioning. According to Sergeant Ardoin, the defendant was the only person in Ms. Blunt’s house. The officers then returned to the victim’s residence and assisted in the collection of various items of physical evidence which were submitted to the crime lab for testing. On April 16,1991, the victim positively identified the defendant as her attacker during a photographic lineup. The victim also identified the defendant as the assailant in a later photographic lineup, which, at the defendant’s request, included a picture of Clarence Durosseau, the defendant’s brother. This second lineup was conducted in response to a letter from the defendant in which he alleged that Clarence was the actual culprit and that he was a victim of mistaken identity.

Ms. Nelson also positively identified the defendant as her attacker in court. She stated at trial that, while doing her laundry just before 9:00 p.m., she heard a knock at her front door. Assuming the visitor was her father, she opened the door and, to her surprise, discovered a black male who asked to wash her house. He then forced the door open and attacked her in the living room. According to Ms. Nelson, she tried to resist to the utmost but was unsuccessful in resisting the attacker. He forced her into the bedroom, told her to remove her clothing, then raped her. Ms. Nelson testified that she begged defendant to stop, kept telling him that she did not know him, and even offered him money to cease the attack. Ms. Nelson explained that defendant accepted the latter offer. While looking for her purse in the living room, she ran out the front door, tripped on the steps and fell onto the sidewalk. She screamed for help as the defendant fled the home. Ms. Nelson then ran to Sergeant Ardoin’s home to report the break-in and attack.

Defendant appeals his conviction. In brief, he argues the following three of the six errors assigned:

1. Failing to authorize indigent defense counsel to employ and pay (at state expense) an expert forensic witness with regard to the hair samplings and other samples provided by defendant;
2. Failing to sustain defendant’s objection to the State’s expert witness testimony with regard to the hair samples provided by defendant in light of the court’s denial of defendant’s motion to have an expert appointed for the defendant;
3. Denying defendant’s request to subpoena Germaine Blister.

Additionally, defendant contends the jury erred in failing to properly consider an item of physical evidence presented at trial. He also asks that we review the record for er[54]*54rors patent. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

By these assignments of error, the defendant contends that the trial court erred in fading to authorize payment for an expert witness to assist the defendant, and in failing to sustain defendant’s objection to the testimony elicited from the State’s expert witness regarding the hair samples seized at the crime scene.

It is incumbent on an indigent defendant to make a sufficient showing of need to justify the procurement of experts at state expense to help prepare the defense. State v. Hodge, 457 So.2d 152 (La.App. 2d Cir. 1984), writ denied, 459 So.2d 545 (La.1984). Specifically, the defendant must show that he is otherwise unable to obtain existing evidence crucial to his defense or that he was prejudiced by his inability to hire an expert. State v. Monroe, 397 So.2d 1258 (La.1981), writ denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1411. On review of a denial of such assistance, the question is whether the denial of funds for the purpose of engaging a separate expert has substantially prejudiced the defendant at trial. The defendant must show that the State’s experts might be erroneous in their opinions or that another expert might necessarily be expected to disagree with the conclusions of the State’s experts. State v. Balfa, 506 So.2d 1369 (La.App. 3rd Cir.1987), writ denied, 512 So.2d 436 (La.1987); Hodge, supra.

On October 31, 1991, the defendant filed a motion seeking appointment of experts at the expense of the State to analyze various hair and blood samples which were collected at the crime scene. On November 8, 1991, a contradictory hearing was held on defendant’s motion. The following exchange occurred at the end of the hearing:

BY THE COURT:
Well this is what I believe, I believe that before I can rule on that I would have to have the specific information of, of where do you want to send the samples, who is going to do it, how much it’s going to cost, I mean I can’t give a blanket order, supposing you run up a bill of $50,000.00.

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Related

State v. Dugas
683 So. 2d 1253 (Louisiana Court of Appeal, 1996)
State v. Townley
657 So. 2d 129 (Louisiana Court of Appeal, 1995)

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Bluebook (online)
626 So. 2d 51, 1993 La. App. LEXIS 3367, 1993 WL 448297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-durosseau-lactapp-1993.