State v. Gonzalez

249 So. 3d 129
CourtLouisiana Court of Appeal
DecidedJune 13, 2018
Docket17–1116
StatusPublished

This text of 249 So. 3d 129 (State v. Gonzalez) 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. Gonzalez, 249 So. 3d 129 (La. Ct. App. 2018).

Opinion

KEATY, Judge.

Defendant, Santiago Alonso Gonzalez, Sr., was charged by bill of information filed on April 30, 2015, with aggravated crime against nature, a violation of La.R.S. 14:89.1(A)(2)(a).1 Trial by jury commenced on January 26, 2017, and the following day, the jury found Defendant guilty of the responsive verdict of attempted crime against nature, a violation of La.R.S. 14:27 and La.R.S. 14:89. Defendant filed a Motion for New Trial on March 2, 2017, alleging the verdict was contrary to the law and evidence. Several weeks later, he filed a First-Amended Motion for New Trial on the basis of newly discovered evidence. After a hearing, the trial court denied Defendant's new trial request without reasons. On May 25, 2017, Defendant was sentenced to serve seven years at hard labor, the sentence was suspended, and Defendant was placed on supervised probation for six years.

Defendant appealed and is now before this court asserting the following assignments of error: 1) the trial court erred in denying his First-Amended Motion for New Trial; 2) the trial court imposed an illegal sentence of six years supervised probation; 3) the trial court imposed an illegal condition of supervised probation; and, 4) a portion of the Order of Notification to Sex Offender is erroneous.

DISCUSSION

Facts

Defendant's biological daughter, E.G.,2 claimed that Defendant forced her to have sexual intercourse with him every few weeks between March 4, 2012, and April 1, 2015.

Denial of Defendant's First Amended Motion for New Trial

In his first assignment of error, Defendant contends the trial court erred in denying his First Amended Motion for New Trial, in violation of La.Code Crim.P. art. 851(B)(3) and his rights under *131La.Const. art. 1, § 2 and § 16 and U.S. Const. amend. VI and XIV.

The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
....
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 851(B).

A motion for a new trial based [upon newly discovered evidence] shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available....

La.Code Crim.P. art. 854.

In State v. McKinnies , 13-1412, pp. 9-14 (La. 10/15/14), 171 So.3d 861, 869-72 (footnotes omitted), the supreme court explained:

La.C.Cr.P. art. 858 limits our review of the trial court's ruling on the new trial motion: "In reviewing the granting or the refusal to grant a new trial, neither the appellate nor the supervisory jurisdiction of the Supreme Court may be invoked, except for error of law." Therefore, we review the trial court's ruling on the new trial motion only for legal error. An abuse of the trial court's discretion in ruling on a new trial motion on the ground of newly discovered evidence presents a question of law.
....
"When ruling on an Article 851(B)(3) motion, a trial judge's duty is not to weigh the new evidence as though he were a jury deciding guilt or innocence or to determine what is true or false in light of the additional information. In other words, the trial judge is not to assess the newly discovered evidence as though he were a thirteenth juror." Instead, "[t]he discretion vested in the trial judge in passing on a motion for a new trial based on the ground of newly discovered evidence in a criminal case is to be exercised in determining the diligence shown, the truth of the matters stated, and the materiality and probability of their effect, if they are believed to be true."

"[A] motion for a new trial is properly rejected when it is based on evidence which should have, with reasonable diligence, been discovered before or during the trial. State v. Jones , 344 So.2d 1036 (La.1977) ; State v. Rossi , 273 So.2d 265 (La.1973)." State v. Marcal , 388 So.2d 656, 662 (La.1980), appeal dismissed, cert. denied , 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834 (1981).

The basis of Defendant's original motion for new trial was that the State failed to present any physical or medical evidence to corroborate his daughter's claim that he forced her to have sex with him. In his amended motion for new trial, Defendant stated that Marsha Meshell, E.G.'s grandmother and his mother-in-law, had written a letter on his behalf claiming that E.G. told her she made up the charges because she was angry at her father. Defendant explained that on March 22, 2017, Meshell *132informed his counsel that she knew E.G. "had admitted to deception when making accusations of aggravated rape" against Defendant. Defense counsel attached an affidavit to the amended motion, wherein he stated:

THAT he conducted reasonable due diligence in his search for evidence in the above-referenced matter; and was unaware of the existence of the evidence alleged by the child-complainant's grandmother Marsha Mechell [sic] prior to or during the defendant's trial;
THAT prior to the said trial, the defendant was court-ordered not to contact anyone from his immediate family; and thus it was not reasonable for him to be aware that the grandmother of the child-complainant would have knowledge concerning said recantation[.]

The undated letter written by Meshell, which was also attached to the amended new trial motion, provided as follows:

My name is Marsha Meshell, mothe-in-law [sic] of Santiago Gonzelez [sic] Sr.

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Related

State v. Spears
504 So. 2d 974 (Louisiana Court of Appeal, 1987)
State v. Rossi
273 So. 2d 265 (Supreme Court of Louisiana, 1973)
State v. Jones
344 So. 2d 1036 (Supreme Court of Louisiana, 1977)
State v. Marcal
388 So. 2d 656 (Supreme Court of Louisiana, 1980)
State of Louisiana v. Quincy McKinnies, Jr.
171 So. 3d 861 (Supreme Court of Louisiana, 2014)
State v. Armstead
159 So. 3d 502 (Louisiana Court of Appeal, 2015)
State v. Maise
167 So. 3d 592 (Supreme Court of Louisiana, 2015)
Mundy v. Ornsby
129 So. 177 (Louisiana Court of Appeal, 1930)
State v. Sneed
886 So. 2d 662 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
249 So. 3d 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-lactapp-2018.