State v. Varnado

753 So. 2d 850, 1999 WL 1012991
Louisiana Court of Appeal·Decided September 22, 1999·No. 97-KA-2825·Published·Cited by 5 cases

Opinion

753 So.2d 850 (1999)

STATE of Louisiana
v.
Hymel VARNADO.

No. 97-KA-2825.

Court of Appeal of Louisiana, Fourth Circuit.

September 22, 1999.
Writ Denied April 20, 2000.

*853 Harry F. Connick, District Attorney of Orleans Parish, Richard R. Pickens II, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, Attorneys for Plaintiff/Appellee.

Laura Pavy, Louisiana Appellate Project, New Orleans, Louisiana, Attorney for Defendant/Appellant.

Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr. and Judge ROBERT A. KATZ.

JONES, Judge.

Defendant/appellant, Hymel Varnado, appeals his conviction and sentence for armed robbery, aggravated kidnapping, aggravated rape, and aggravated crime against nature. Varnado was also adjudicated as a multiple offender, and sentenced to serve life imprisonment without benefit of probation, parole or suspension of sentence on each count of aggravated rape, and aggravated kidnapping charge. Varnado also received a total of 210 years in prison for the remaining charges. After a review of the record, we amend the verdict and affirm.

FACTS

There were three separate incidents involving three different victims that led to the arrest, conviction, and sentence of Hymel Varnado.[1]

Incident No. 1

The first incident occurred on July 9, 1995. E.H.[2] testified that she was exiting her vehicle at the Carriage House Apartments on Curran Street in eastern New Orleans, when a man put a gun to her head, and instructed her to get into his car. While driving, the perpetrator asked her if she had any money and she replied that she did not. The perpetrator then took her purse and went through it taking a several things out. The perpetrator then instructed her to get undressed, and to perform oral sex on him. Following oral sex, E.H. testified that the perpetrator proceeded to engage in vaginal intercourse with her. Thereafter, the defendant drove her back to her apartment complex while she got dressed. When she exited the vehicle, the perpetrator threw her keys and her purse out of the car and left the scene. At a police line-up held on August 10, 1995, E.H. identified Varnado as the perpetrator because she saw his face during the altercation. E.H. also identified Varnado as her attacker at trial.

Incident No: 2

K.M. testified that on July 17, 1995, she was exiting her car at her residence when she observed a man standing at the end of her driveway holding a gun, and wearing a ski mask. The man instructed her to get into his car, and asked if she had any money, credit cards, or an ATM card. K.M. replied that she only had $12 or $14, but no ATM or credit cards. The perpetrator told her to give him the money, get undressed, and perform oral sex on him. Following oral sex, the perpetrator proceeded to engage in vaginal intercourse with her. After the altercation, the perpetrator then drove K.M. back to her home and let her out of the vehicle. K.M. testified that during the altercation, she also got a good look at the perpetrator once he removed his ski mask. At trial, K.M. identified Varnado as her attacker, and testified that she identified the defendant at a police lineup on August 10, 1995.

Incident No: 3

The third incident occurred on August 2, 1995, when a black man accosted S.D. at the Kenilworth Apartments with a gun in *854 his hand. The perpetrator forced her into a van, and as he was driving out of the parking lot, he asked her if she had any money. S.D. gave him $80. The perpetrator instructed S.D. to take off her clothes and perform oral sex on him. The perpetrator then instructed S.D. to spread her legs and he proceeded to have vaginal intercourse with her.

S.D. testified that during the incident, she got a good look at the perpetrator's face. S.D. also testified that when the perpetrator released her, she took a bath and went to Charity Hospital to be examined. At the police line-up held on August 10, 1995, S.D. also positively identified Varnado as her attacker, and pointed to the defendant when the State asked her to identify her attacker at trial.

Patsy Daniels, a medical technologist for the Orleans Parish Coroner's office, testified as the State's expert witness. Daniels testified that when she examined E.H.'s rape kit at Charity Hospital, she noticed that the vaginal swabs were all negative for seminal fluid and there was no evidence of spermatozoa on the slides. Daniels also testified that there was a moderate amount of blood found in E.H.'s vaginal vault.

As to K.M.'s rape kit, Daniels testified that the internal and external vaginal swabs were positive for seminal fluid. Daniels also testified that K.M. was having her menstrual period during the time of the incident; thus, K.M.'s external and internal vaginal swabs and slides were very bloody. The external vaginal smear was positive for spermatozoa, but all other specimens were negative for either seminal fluid or spermatozoa.

The external and internal vaginal swabs in S.D.'s rape kit were negative for seminal fluid, and there was no evidence of spermatozoa. Daniels also testified that S.D.'s internal and external swabs and slides were "extremely bloody" because S.D. was also having her menstrual period during the time of her attack.

Daniels testified that it is not necessary that sperm or seminal fluid be present as a result of a rape or some intercourse. However, she conceded that evidence of secretion could be difficult to find if the victim bathe prior to the physical examination. Furthermore, Daniels testified that seminal fluid, spermatozoa or other forms of secretions could be washed out because of the victim's menstruation.

Varnado's stepmother testified as an alibi witness for the defense. She attempted to establish an alibi for Varnado on the nights of the attacks, but she later conceded that she was not certain where Varnado was on those dates. Varnado did not testify at trial.

Following trial, Varnado was convicted of the following: three counts of aggravated rape, two counts of aggravated crime against nature, two counts of aggravated kidnapping, one count of attempted aggravated kidnapping, two counts of armed robbery, and one count of attempted armed robbery. Varnado was sentenced to five life-imprisonment terms without benefit of probation, parole or suspension of sentence for each count of aggravated rape and for each count of aggravated kidnapping. His sentences for the remaining crimes totaled 210 years in prison. Varnado's trial counsel filed an appellate brief, and Varnado filed a pro se brief appealing both his conviction and sentence.

ERRORS PATENT

Defense counsel argues two errors patent concerning the defendant's sentencing. The first error concerns the court's failure to inform the defendant of the prescriptive period for post-conviction relief as required under La. C. Cr. P. Art. 930.8(C).

a. Post-Conviction Relief

After reviewing the record, we find that the trial court did not inform the defendant of the three-year time limitation to file for post-conviction relief, as mandated by La.C.Cr.P. art. 930.8. However, the trial court's failure to inform a defendant *855 of prescriptive period for post-conviction relief does not constitute a ground for reversing the sentence or remanding the case for re-sentencing. La.C.Cr.P. art. 921; State v. Dixon, 96-407 (La.App. 5 Cir. 11/26/96), 685 So.2d 310, 313.[S]uch a defect has no bearing on whether the

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State v. Varnado, 753 So. 2d 850, 1999 WL 1012991 (La. Ct. App. 1999).

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