State v. Merwin

186 So. 3d 759, 2015 La.App. 4 Cir. 0681, 2016 La. App. LEXIS 148, 2016 WL 348231
CourtLouisiana Court of Appeal
DecidedJanuary 27, 2016
DocketNo. 2015-KA-0681
StatusPublished
Cited by5 cases

This text of 186 So. 3d 759 (State v. Merwin) 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. Merwin, 186 So. 3d 759, 2015 La.App. 4 Cir. 0681, 2016 La. App. LEXIS 148, 2016 WL 348231 (La. Ct. App. 2016).

Opinion

TERRI F; LOVE, Judge.

hDavid D. Merwin (“Defendant Mer-win”) appeals his conviction for one count of aggravated rape in violation of La. RS. 14:42(A)(4), one count of molestation of a juvenile in violation of ’La. R.S. 14:81.2(A)(1), and one count of indecent behavior with a juvenile in violation of La. R.S. 14:81(A)(1) 1. In his sole assignment of error, Defendant Merwin claims he was denied effective assistance of counsel. He avers that his trial counsel failed to object [761]*761to testimony regarding his . post-arrest right to remain silent, his previous felony convictions, and the expert opinion testimony relating to the credibility of the victims’ accusations. The issue of ineffective assistance of counsel is typically addressed in an application for post-conviction relief; however, the record provides sufficient evidence to rule on the merits of Defendant Merwin’s claim on appeal. State v. Seiss, 428 So.2d 444, 449 (L&1983). We find a defendant’s post-arrest right to remain silent only applies to the individual arrested and does not apply to the defendant’s wife; 12testimony of Defendant Merwin’s character witness opened the door to rebuttal testimony regarding Defendant Merwin’s prior convictions; and the State’s expert witness indicated that she did not detect any signs that the victims were coached by an adult and she did not render an opinion as to Defendant Merwin’s guilt. Accordingly, Defendant Merwin has not shown that his trial counsel’s performance by failing to object to the testimony elicited at trial was so deficient as to deprive him of a fair trial. Therefore, we affirm Defendant Merwin’s convictions and sentences.

PROCEDURAL AND FACTUAL BACKGROUND

In February 2014, the State charged Defendant Merwin with committing, in August 2013, one count of aggravated rape in violation of La. R.S. 14:42(A)(4), one count of molestation of a juvenile in violation of La. R.S. 14:81.2(A)(1), and one count of indecent behavior with a juvenile2 in violation of La. R.S. 14:81(A)(1). The following facts were elicited at the March 2015 jury trial.

St. Bernard Sheriff Deputy Chelsie Sou-lagnet’s Testimony

In October 2013, Ms. A.P.3 visited the St'. Bernard Parish Sheriffs Department to file' a complaint of sexual abuse of her two sons, A.P. and J.G. Ms. A.P. met with St. Bernard Sheriff Deputy Chelsie Sou-lagnet (“Deputy Soulagnet”). She informed the deputy that her ten-year old son A.P. gave her a handwritten note pearlier that day, which she presented to the deputy that read: “David made me suck his peacker [sic].” Deputy Soulagnet then interviewed A.P. The deputy asked A.P. if he wrote the note and why. A.P. explained that a few months earlier in August 2013, he and his younger brother J.G. spent the night at a friend’s house when he was abused by the friend’s father, Defendant Merwin. A.P. told Deputy Sou-lagnet that: “[Defendant Merwin] made me suck his private parts while he made my little brother J.G. watch. ■ He also made us drink alcohol.” Deputy Soulagnet testified that A.P. appeared emotional and tearful when recounting the incident.

Deputy Soulagnet also interviewed J.G. and asked him if he remembered the incident with Defendant Merwin. The deputy testified that J.G. changed the subject and seemed indifferent to Deputy Soulagnet’s questions. ■ After speaking with the victims and their mother, Deputy Soulagnet spoke with Detective Michelle Canepa (“Detective Canepa”) of the juvenile bureau. Detective Canepa advised that Ms. A.P. [762]*762should have the victims medically evaluated at Children’s Hospital.

Daniel Dooley’s Expert Testimony

The victims and their mother presented to the hospital, wherein the victims were evaluated and interviewed. Daniel Dooley (“Mr. Dooley”), a forensic interviewer at the Child Advocacy Center at Children’s Hospital, interviewed the victims. At trial, Mr. Dooley was accepted as an expert in his field, having done approximately one thousand child interviews. He explained that an interviewer is trained to ask a child open-ended questions to obtain a narrative of the event, rather than posing questions which require a yes or no response. He stated that the child 14is interviewed alone, without the presence of parent(s), siblings or the police, .and the interview is video and audio recorded. At trial, he identified the DVD recordings of his interviews with both victims held in November 2013.4 ...

J.G.’s Testimony

At trial, J.G. testified and identified Defendant Merwin in court. J.G. testified that he remembered sleeping at Defendant Merwin’s house and that subsequently Mr. Dooley interviewed him about that night. Under cross-examination, J.G. said that Defendant Merwin made him play with himself, telling J.G.: “This is what goes on with the middle .spot.” J.G. also testified that Defendant Merwin gave him about “six or nine” shot cups of “funny tasting” liquid.

In his videotaped interview with Mr. Dooley, J.G. gave an account of the events the night he and his older brother A.P. spent the night at Defendant Merwin’s residence. He stated that Defendant Mer-win made him and his brother watch “nasty videos” that he played, on his phone and on the television. He explained to Mr. Dooley that Defendant Merwin had lotion in a black, skinny bottle, but did not know the name of it because he could not read it. Defendant Merwin explained to the boys that the lotion was-something to put on “the middle spot.” Mr. Dooley asked J.G. what he meant by “the middle spot,” and J.G. described it as “the -pecker.” J.G. said that he put the lotion on underneath his clothes, and Defendant Merwin made them play with themselves.- J.G. explained in |Bthe videotaped interview that he witnessed Defendant Merwin make A.P. suck Defendant Merwin’s penis while Defendant Merwin sat on the couch in the living room. J.G. also stated that he observed Defendant Merwin try to insert his penis in A.P.’s anus by having A.P. -sit on his lap. At some point, J.G. explained that Defendant Merwin’s wife woke up and came into the living room. -He explained .that A.P, had all his clothes-off and he tried to pull the “sleeping bag cover” over his body. J.G. told Mr. Dooley that when Defendant Merwin’s. wife walked into the living room she, saw A,P. with all his clothes off, and J.G. pulled up his .shorts. Defendant Mer-win’s wife then told Defendant Merwin to go to bed and Defendant Merwin told the boys not to tell anyone about the things he made them do or drink. Further, when Mr. Dooley asked J.G. whether Defendant Merwin ever touched him with any part of his body that night, J.G. said no.

A.P.’s Testimony

-■ A.P. also testified at trial and identified Defendant Merwin in court. A.P. recalled sleeping at Defendant Merwin’s house. He stated that Defendant Merwin “made him suck his pecker and tried to put his thing in my butt.” A.P. also recalled that Defendant Merwin gave him- “something [763]*763funny” to drink the night he and J.G. slept at Defendant Merwiris house. At trial, A.P. identified the note he wrote to his mother. He also remembered Mr. Dooley interviewing him after the incident.

In the videotaped interview, A.P. explained what occurred after everyone went to bed. He stated that -Defendant Merwin put porn, specifically recalling [ fi“pornhub,” on the television in the living room and on his phone. A.P. noted that his brother was present during this time and was on the couch. A.P. told Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
186 So. 3d 759, 2015 La.App. 4 Cir. 0681, 2016 La. App. LEXIS 148, 2016 WL 348231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-merwin-lactapp-2016.