State v. Fernandez

864 So. 2d 764, 2003 WL 23025635
CourtLouisiana Court of Appeal
DecidedDecember 30, 2003
Docket03-KA-987
StatusPublished
Cited by24 cases

This text of 864 So. 2d 764 (State v. Fernandez) 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. Fernandez, 864 So. 2d 764, 2003 WL 23025635 (La. Ct. App. 2003).

Opinion

864 So.2d 764 (2003)

STATE of Louisiana
v.
Paul FERNANDEZ.

No. 03-KA-987.

Court of Appeal of Louisiana, Fifth Circuit.

December 30, 2003.

*766 Paul D. Connick, Jr., District Attorney, Juliet Clark, Terry M. Boudreaux, Kia Habisreitinger, Assistant District Attorneys, Gretna, LA, for State.

Frank G. DeSalvo, New Orleans, LA, for Defendant-Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.

CLARENCE E. McMANUS, Judge.

The Jefferson Parish District Attorney filed a bill of information charging defendant, Paul Fernandez, with sexual battery, a violation of LSA-R.S. 14:43.1, for acts allegedly committed on July 29, 2001. Defendant pled not guilty at the arraignment.

The following facts were elicited at trial. S.M. and her husband, along with some friends, were at Studio II Lounge in Jefferson Parish.[1] S.M. was dancing with one of her friends when she felt a man's hand brush her rear end. She looked down and saw a man's hand coming from under her dress. Immediately thereafter, the man put his "full hand" in between her legs. S.M. looked around and saw only one man, later identified as the defendant, near her. S.M. became very upset and told her husband, who was nearby, what had happened. S.M's husband and another friend, Mark Jackson saw the defendant pulling his hand from underneath S.M.'s skirt. S.M's husband became very angry and started to confront the defendant, but S.M. and other friends restrained S.M.'s husband. S.M. then told the disc jockey what had happened, and he recommended that she call the police.

After S.M. went to call the police, Mark, who was a St. Bernard Parish detective, followed defendant into the restroom, where Mark overheard the defendant say that "her husband is no man." Mark testified that he told the defendant that the police were on the way. Deputy Brian Scheyler of the Jefferson Parish Sheriff's Office responded between 3:00 and 4:00 a.m. Deputy Scheyler testified that, after he interviewed the victim, he escorted the defendant outside of the lounge, where Deputy Scheyler handcuffed the defendant. According to Deputy Scheyler, no *767 one came forward to tell a different version of the events on the defendant's behalf. According to the victim's husband, while the defendant was in the police car after he was arrested, the defendant threatened him and told S.M. that he would rape her when he got out of jail.

The defendant and several witnesses testified on his behalf. According to the defendant, he met up with several friends at Studio II. He admitted that he might have accidentally bumped into S.M. while dancing on the crowded dance floor, but denied that he had intentionally reached under her dress. The defendant also said that S.M. bumped into him several times when she was "dancing wildly." The defendant said that he was dancing with Christine Chambers and another girl, Trish, when he noticed that S.M. became angry. The defendant said that he was unaware of any problem until the victim's husband and another man approached him and tried to start a fight.

Christine Chambers testified that she and her sister, Rebecca Castex, had seen the defendant earlier in the evening at Legends lounge. Before leaving Legends, Christine, Rebecca, and the defendant agreed to meet at Studio II. According to Christine, they arrived separately at Studio II between 2:30 and 3:00 a.m. Christine testified that she and a group of three or four girls were dancing in a group with the defendant. Christine said that she saw the defendant as he was escorted out of the lounge, but unaware that he had been arrested. Christine did not see the defendant reach underneath a woman's dress while they were dancing, nor did she see an altercation between the defendant and two men. Rebecca said that she saw the defendant dancing with Christine and other friends, but she did not see anything happen between the victim and the defendant. Both Rebecca and Christine subsequently learned that the defendant had been arrested.

Chris Taylor, the defendant's nephew, and his date, Christina Leslie, were also at Studio II that morning. Both of them saw the defendant dancing with some women. Christina saw a woman become upset, followed by an altercation between the defendant and two men. Chris also saw the altercation, but neither Christina nor Chris saw the defendant reach underneath a woman's skirt.

Finally, Nathan Bares, one of the defendant's co-workers at the Italian Pie, saw the defendant that morning at Studio II. According to Nathan, the defendant was already there when Nathan arrived. The defendant was dancing with Christine at the time, approximately one foot away. Nathan did not see the defendant reach underneath a woman's skirt.

After trial, a six-person jury found defendant guilty as charged on August 20, 2002. On August 27, 2002, the trial judge sentenced defendant to three years at hard labor without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant claims that the prosecution in closing argument encouraged the jury to convict him because he was a bad person in that he had been previously convicted of a felony. The State responds that the remarks were appropriate because they were in response to the defendant's closing argument.

The defendant complains of the following comments made by the prosecutor during rebuttal:

Defense Counsel wants you to believe that the fact that he's a convicted felon is a plus. He's got a conviction for possession of a schedule two controlled dangerous substance, coke, cocaine, and *768 that's a plus. That's not a plus. He wants you to believe that he came to court before and he pled guilty and therefore he's not guilty this time. This is an experienced individual. This is a man who has come to court. This is a man who has learned to lie. He's already been through the justice system. He's learned to lie. Now, the Judge is going to tell you when he reads the jury instructions in a few moments that you are the sole judge of the weight and credibility of the evidence. you [sic] are the sole individuals who can determine and judge the credibility of the defendant. If you chose not to believe an individual who is inconsistent with all of his witnesses, and who is a convicted drug offender, then you have the right to do that....

The record reflects that the defendant did not object to these remarks. LSA-C.Cr.P. art. 841(A) provides that "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence." The purpose behind this rule is to put the trial judge on notice of an alleged irregularity so that the problem may be cured by the judge, as well as to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. State v. Ware, 01-194, p. 14 (La.App. 5 Cir. 8/28/01), 795 So.2d 495, 504.

Nevertheless, this Court has addressed on appeal, a prosecutor's comments in closing argument even in the absence of an objection at trial by the defendant. See, State v. Rochon, 98-717, pp. 5, 9 (La.App. 5 Cir. 3/10/99), 733 So.2d 624, 628, 630. Accordingly, we will address the prosecutor's comments.

LSA-C.Cr.P. art. 774 defines the scope of argument and rebuttal:

The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

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Bluebook (online)
864 So. 2d 764, 2003 WL 23025635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fernandez-lactapp-2003.