State v. Kinsey

976 So. 2d 315, 2008 WL 375556
CourtLouisiana Court of Appeal
DecidedFebruary 13, 2008
Docket42,935-KA
StatusPublished
Cited by8 cases

This text of 976 So. 2d 315 (State v. Kinsey) 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. Kinsey, 976 So. 2d 315, 2008 WL 375556 (La. Ct. App. 2008).

Opinion

976 So.2d 315 (2008)

STATE of Louisiana, Appellee
v.
Chester Lee KINSEY, Appellant.

No. 42,935-KA.

Court of Appeal of Louisiana, Second Circuit.

February 13, 2008.

*316 James E. Beal, Jonesboro, for Appellant.

Chester Lee Kinsey, Pro Se.

Walter E. May, Jr., District Attorney, Hubert R. Davis, Kenneth P. Haines, Assistant District Attorneys, for Appellee.

Before BROWN, WILLIAMS and LOLLEY, JJ.

WILLIAMS, J.

The defendant, Chester Kinsey, was charged by grand jury indictment with aggravated rape, a violation of LSA-R.S. 14:42. After a jury trial, the defendant was found guilty as charged. Defendant's motions for new trial and for post verdict judgment of acquittal were denied. The trial court sentenced defendant to serve the mandatory term of life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant appeals his conviction. For the following reasons, we affirm.

FACTS

On November 22, 2003, in Ringgold, Louisiana, seven-year-old MM informed her adult cousin, S.A., that the defendant (the brother of the child's caretaker) had placed his penis in the child's anus. S.A. reported the matter to the Bienville Parish Sheriff's Office ("BPSO"), and the child wrote out a statement to the BPSO naming defendant as the offender.

Several days later, Dr. Ann Springer, a pediatrician at LSUHSC, performed a physical examination of MM. The examination was unremarkable except for the anal exam. Dr. Springer testified that she "noted fissuring which are cracks in the surface of the tissue surrounding the anus," and that the injuries were still in the process of healing. The child told the doctor that defendant had, among other sexual acts, "put his thing in my butt."

*317 Subsequently, the defendant was arrested and charged with aggravated rape. During her testimony, the victim, who was eleven years old at the time of trial, described several incidents of abuse by the defendant. In particular, the child testified that on one occasion in November 2003, she was lying down on her grandmother's couch when the defendant came into the room, removed her underwear and placed his penis in her anus, an act the child described as painful. At trial, the child identified the defendant as the man who raped her. The defendant testified in his own defense. He admitted his prior convictions for distribution of cocaine and for simple robbery, but he denied any sexual contact with MM. The jury, believing the child's testimony, found the defendant guilty of aggravated rape. As stated above, the defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This appeal followed.

DISCUSSION

The defendant contends the trial court erred in denying a continuance in which to obtain the appearance of a critical defense witness. Defendant argues that the court's failure to allow a reasonable period of time in which to produce the witness effectively denied defendant the right to confront his accusers.

When a trial has already commenced at the time it becomes apparent that a witness is unavailable, any delay in the proceedings would be referred to as a recess rather than a continuance. LSA-C.Cr.P. art. 708; State v. Spears, 39,302 (La.App. 2d Cir.9/27/06), 940 So.2d 135, writ denied, 2006-2704 (La.8/31/07), 962 So.2d 424. The standard of review of a motion for recess is the same as the review of a motion for a continuance. Id. The granting or denial of a motion for continuance or recess is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a showing of abuse of that discretion and specific prejudice. LSA-C.Cr.P. art. 712; Id. LSA-C.Cr.P. art. 709 provides:

A motion for a continuance based upon the absence of a witness must state:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
(3) Facts showing due diligence used in an effort to procure attendance of the witness.

During trial in the instant case, the court engaged in the following exchange with defendant's counsel regarding a defense witness:

Court: Mr. Clark, the bailiff has told me that one of your witnesses which is — I don't know her name. A young girl. I think she came in and we put her in your office while you were talking to your client. I don't know what her name is. Do you know her name?
Defense counsel: ML.
Do you want to bring her in and have her placed under the rule at this time?
Defense counsel: Yes, sir. That's fine.

The court then put the child and another witness under the rule of sequestration, and the child remained at the courthouse during the course of the trial that day. At the close of the state's case that afternoon, defendant's counsel obtained a brief recess, stating "I have a change in what I thought would take place, and I need to discuss momentarily with my client . . . And I think it's going to short-circuit a *318 lot." The defendant called one witness whose testimony was brief, and then defense counsel stated "Your Honor, that would leave us at the point of where I discussed with you in chambers." The court, noting that the time was almost 4 o'clock in the afternoon, allowed the jury to leave for the day.

The next morning, the defendant testified. At the conclusion of the defendant's testimony, defense counsel had this exchange with the court:

Defense counsel: I anticipated that was going to be a little longer than it turned out to be. If they have the young girl, ML, on her way here from school. She's being brought here at this moment.
Court: Did you subpoena her?
* * *
Defense counsel: I mean, she was voluntarily being here.
Court: How long do you think it's going to be for her to be here?
Defense counsel: I wouldn't say more than hopefully 10 or 15 minutes from Bienville.
Court: Do you need a recess?
Defense counsel: If I could, yes.
Court: All right.

After the recess, the discussion resumed:

Court: I think we're waiting for one of your witnesses —
Defense counsel: ML.
Court: — to come testify, is that correct?
Defense counsel: That is correct.
Court: And she is not here as of yet. I think we took a break, what, at 10:30?
Defense counsel: I believe that's approximately the time, yes, sir.
Court: . . . My understanding is . . . you want to recall [the victim] to the stand first. Is that correct?
Defense counsel: That is correct, Your Honor.

At that point, the prosecutor objected to recalling the victim to the stand on the grounds that the defendant previously had been able to cross-examine the girl about any issue. Defense counsel stated that he wanted to recall the victim to ask if she knew the defense witness ML and had spoken to her about the alleged incidents. The defense counsel further explained:

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Cite This Page — Counsel Stack

Bluebook (online)
976 So. 2d 315, 2008 WL 375556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kinsey-lactapp-2008.