State v. Stelly

645 So. 2d 804, 1994 WL 597670
Louisiana Court of Appeal·Decided November 2, 1994·No. CR94-306·Published·Cited by 4 cases

Opinion

645 So.2d 804 (1994)

STATE of Louisiana
v.
Donald STELLY.

No. CR94-306.

Court of Appeal of Louisiana, Third Circuit.

November 2, 1994.
Rehearing Denied December 13, 1994.

*805 J. William Pucheu, Ville Platte, for State.

Edward J. Lopez, Opelousas, for Donald Stelly.

Donald Stelly, pro se.

Before DOUCET, PETERS and BERTRAND[*], JJ.

LUCIEN C. BERTRAND, Judge.

After a jury trial, defendant, Donald Stelly, was convicted of second degree kidnapping and aggravated rape, violations of La. R.S. 14:44.1 and 14:42, respectively. Defendant was sentenced to 40 years at hard labor for the kidnapping conviction and life imprisonment for the aggravated rape conviction. He appeals, raising the following assignments of error:

1. The District Court erred in its failure to grant defendant's motion to quash based on the expiration of time for commencement of trial.
2. The District Court erred in ordering the defendant to submit to blood sampling without probable cause.
3. The District Court erred in not requiring the office of the District Attorney to furnish the defendant complete answers to motions for discovery as was required by the Third Circuit Court of Appeal in the alternative (either sample or answers to discovery motions).
4. The District Court erred in not granting a trial continuance to allow defendant sufficient time for defense experts to evaluate the limited discovery material provided by the State to prepare for the admissibility hearing.
5. The District Court erred in allowing a DNA expert to testify as to her findings and conclusions which were based on genetic materials prepared for examination by a lab in California without requiring the State to lay a proper foundation as to the validity and scientifically proper preparation of the materials.
6. The District Court erred in allowing the admission into evidence of the testimony of DNA experts without a proper foundation as to admissibility being laid.
For the reasons which follow, we affirm.

*806 FACTS

On the evening of Sunday, February 4, 1990, 15-year-old Phoebe Henry stopped at B & S Grocery on U.S. Highway 167 in Evangeline Parish. She entered the store, bought a soft drink, and returned to her car. Defendant, wearing camouflage clothing and a ski mask, jumped into the back seat of her car and forced Ms. Henry at gunpoint to drive to an open field. There, he forced her to disrobe and perform oral sex on him; then he raped her. The period of intercourse lasted 10-15 minutes.

Defendant then drove the victim's car to an area near B & S Grocery where he exited the car. It was approximately 8:30 p.m. Ms. Henry drove home, which was near the grocery store, and told her parents what had happened. The Evangeline Parish Sheriff's Department was notified, and Ms. Henry was taken to Humana Hospital, where a rape kit examination was performed.

Samples obtained from use of the rape kit were taken to the Acadiana Crime Lab for preliminary testing, then sent to a private company in California, the Serological Research Institute, and from there to another private laboratory, Cellmark Diagnostics in Maryland, for more advanced DNA analysis.

In the meantime, the police investigation of the crime resulted in the defendant's arrest on May 18, 1990. On March 25, 1991, the prosecution of the defendant was instituted by grand jury indictment, charging the defendant with one count of second degree kidnapping, one count of aggravated rape, and one count of aggravated oral sexual battery, the latter of which was severed. On April 19, 1991, the defendant was arraigned and his counsel thereafter filed certain discovery and pre-trial motions. The trial court ordered that the defendant's discovery motions be answered by July 5, 1991, and further ordered that the DNA test results and supporting forensic experimentation be submitted to an independent laboratory to be chosen by the defense for genetic testing and evaluation. Also, the forensic evidence evaluated by the State was to be made available to defense experts for independent genetic testing. The original trial date of July 15, 1991 was postponed.

On July 12, 1991, the State moved to reset the case for trial. At this point, the State had not supplied the defense with forensic evidence or supporting documentation as called for in the earlier court order. The defense then filed a second discovery motion which was denied on September 27, 1991, and the trial judge vacated his previous discovery order. Defendant applied for writs and this court issued an order for an evidentiary hearing in the trial court on remand. The discovery disputes were resolved at a hearing on July 30, 1993, and the trial took place October 12-15, 1993.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, defendant alleges the trial court erred in denying his motion to quash the indictment based upon the expiration of the time limit for bringing a felony defendant to trial. The limit for bringing a non capital felony defendant to trial is set forth in La.C.Cr.P. Art. 578(2) as two years from the date of institution of the prosecution. Suspension of this time limitation is provided for in La.C.Cr.P. Art. 580:

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

In the case of State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, the Louisiana Supreme Court stated that when a defendant brings a motion to quash based on prescription, the State bears a heavy burden to demonstrate either an interruption or suspension of the time limit so that prescription will not have run. In the present case, more than two years elapsed between the institution of the prosecution by indictment on March 25, 1991, and the trial which began on October 12, 1993. The defendant filed a motion to quash the indictment prior to trial which was heard and denied on October 8, 1993.

The State contends and the trial judge held that the two year prescriptive period was suspended in this case pending a hearing *807 on discovery ordered by the appellate court pursuant to defendant's writ application. On January 9, 1992, we issued the following order:

This application is remanded to the trial court for the holding of an evidentiary hearing to determine if relator has been provided with the evidence so that he may complete his own independent genetic testing. If relator has been provided with this evidence then the state does not have to answer relator's motion for discovery. State v. Martinez, 432 So.2d 1201 (La.App. 4 Cir.1983), writ denied, 435 So.2d 439 (La.1983). If the state has not provided the relator with this evidence, the state must answer relator's motion for discovery in accordance with La.C.Cr.P. Art. 719. See, State v. Burgess, 482 So.2d 651 (La. App. 4 Cir.1985).
Accordingly, the case is remanded to the trial court for further proceedings consistent with the views expressed herein.

Subsequent to the issuance of this order the State moved to have the trial date reset several times, and the evidentiary hearing ordered by this court did not take place until July 30, 1993.

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State v. Stelly, 645 So. 2d 804, 1994 WL 597670 (La. Ct. App. 1994).

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