Opinion
NUMBER 2013 KA 1654
09-19-2014
STATE OF LOUISIANA v. GREGORY BAILEY
Hillar C. Moore, III, D.A. E. Sue Bernie, Asst. D.A. Stacy Wright, Asst. D.A. Baton Rouge, LA Attorneys for Appellee State of Louisiana Bertha M. Hillman La. Appellate Project Thibodaux, LA Attorney for Appellant Defendant - Gregory Bailey
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 9-10-417
Honorable Anthony J. Marabella, Judge Hillar C. Moore, III, D.A.
E. Sue Bernie, Asst. D.A.
Stacy Wright, Asst. D.A.
Baton Rouge, LA
Attorneys for Appellee
State of Louisiana
Bertha M. Hillman
La. Appellate Project
Thibodaux, LA
Attorney for Appellant
Defendant - Gregory Bailey
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
WELCH, J.
The defendant, Gregory Lynn Bailey, was charged by grand jury indictment with aggravated rape, a violation of Louisiana Revised Statute 14:42. At his arraignment, the defendant pled not guilty, but following a jury trial, he was found guilty as charged. A motion for new trial was filed, but denied by the trial court. The defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, assigning error to the trial court's denial of his motion for mistrial on the grounds that the State failed to disclose exculpatory material in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the following reasons, we affirm defendant's conviction and sentence.
STATEMENT OF FACTS
On February 16, 1999, Courenda Griffin picked up her eighteen-year-old cousin, L.S., in her Chevy Nova, and the two traveled to Avery's Mini Mart in Baton Rouge. Upon their arrival, Courenda went inside the store to "get change," but L.S. remained in the passenger seat, with the keys in the ignition, listening to the radio. The vehicle's doors were unlocked. Before Courenda returned from inside the store, a man (later identified as the defendant) whom L.S. had never seen before, approached the car, opened the driver's side door, put a gun to the back of L.S.'s head, told her he would kill her, and ordered her to not say anything. L.S. believed the defendant was going to kill her. She turned her head and saw her cousin exiting the store, but "couldn't do anything because he had the gun to my head so I was just, like, trying to get her attention, like, with my face, but he was already pulling off with me in the car." Courenda noted that L.S. was "looking like she didn't know what to do at the time." Courenda went back inside the store and told the store employees that her car was gone and that her cousin was still inside. The employees called the police.
The victim is referenced herein only by her initials. See La. R.S. 46:1844(W).
As the defendant drove away, he instructed L.S. to place her head between her legs. Though the defendant initially told L.S. "he needed the car," and was "going to drop [her] off at Circle K," he ultimately drove L.S. to a graveyard behind an unfamiliar church. When they arrived, L.S. "thought that's where they were going to find my body," and began praying. Despite L.S.'s cries and pleas for mercy, the defendant instructed her to remove her clothes, ordered her out of the car, threw her on the hood of the car, and began raping her. The defendant also forced L.S. to perform oral sex on him. L.S. begged the defendant to stop, but he consistently told her to shut up and that he would kill her.
Next, the defendant ordered L.S. to lie face-first on a nearby grave without any clothes on, and told her that because "[she] saw his face...he had to kill [her]." Though L.S. pleaded with the defendant not to kill her, he put a gun against L.S.'s head and pulled the trigger; however, the gun did not fire. In fact, the defendant pulled the trigger a second time, without the gun firing. He then led L.S. to a nearby area with water so that she could "get the evidence off of [her]," but she was unable to get in the water. The defendant then instructed L.S. to retrieve a soda bottle from inside the car and use the liquid inside to "get the evidence off of me." He then placed L.S. back into the car, made her place her head between her legs, drove to a second location, and instructed her to begin counting. Eventually, L.S. did not hear anything, so she stopped counting, raised her head, and noticed that the defendant was gone and that she was alone in the vehicle. L.S. eventually made it back home with the help of an unknown female. Upon her return home, Courenda noted that L.S. was "very scared," and "didn't want anyone to touch her." L.S. was taken to Woman's Hospital for a rape examination, and upon its completion, returned to Courenda's house where she stayed the night.
Former Baton Rouge Police Department Officer Tad Schlatre was dispatched to Avery's Mini Mart around 8:30 p.m. that evening and spoke with Courenda, who reported that she left her keys in the car's ignition with the doors unlocked, and that "she ran inside for just a second to make change and, when she came out, someone was driving off with her car." She told Officer Schlatre that when she exited the store, her cousin had a "scared look on her face." Further, she reported that when she entered the store, she noticed a tall black male with "disheveled clothes" leaning against the building, but when she came outside and saw her car being driven away, she did not see the same man standing nearby. Courenda indicated it was a man who was driving her vehicle, but could not provide any further description to Officer Schlatre.
At the time of trial, Tad Schlatre was a federal agent with the Department of Homeland Security and was assigned to the Atlanta, GA office.
John Denux, a former Baton Rouge Police Department detective, who at the time of the rape was assigned to the sex crimes division, initially contacted L.S. at Earl K. Long Hospital at approximately 12:20 a.m. on February 17, 1999, but had her transported to Woman's Hospital, where the rape examinations primarily took place. At approximately 1:30 a.m. on February 17, 1999, Dr. James Nobles completed a rape examination of L.S. at Woman's Hospital. Dr. Nobles found an injury, specifically a contusion, which had already begun to turn shades of black and blue, on L.S.'s lower lumbar area. After completing the gynecological exam, Dr. Nobles found a seminal pool inside L.S.'s vaginal canal, and after further inspection and testing, it was determined to be semen with sperm visualized. Dr. Nobles was also able to learn the details of L.S.'s rape, specifically that she was "approached at gunpoint and driven off, um, you know, she was raped both anal - - sodomized, vaginal, orally, was forced to perform oral sex on the perpetrator. And, um, also this individual performed oral sex on her after pouring - - and she - - I thought she said Coca Cola or a soft drink over the vaginal area..." Dr. Nobles completed the rape examination, and turned the rape kit over to Detective Denux. Alexandra Vera, a forensic scientist with the Louisiana State Crime Lab in February 1999, analyzed the rape kit and a pair of blue parities found in Courenda's vehicle. Following his analysis, he discovered semen in L.S.'s rape kit.
At trial, Dr. Nobles was accepted as an expert in the field of gynecology.
The following day, Detective Denux met with L.S. and Courenda, and traveled to Avery's Mini Mart. After leaving the store, the three drove around the area searching for the church graveyard where the defendant raped L.S. After approximately one and a half to two hours, they were able to locate the crime scene. Detective Denux described L.S.'s demeanor as "very afraid" and "highly traumatized." Despite Detective Denux's efforts, he was unable to locate the defendant, and the investigation was suspended. When Detective Denux retired in October 2007, no arrests had been made regarding L.S.'s attacker.
In June 2010, Detective John Laws of the Baton Rouge Police Department Juvenile Sex Crimes division met with the defendant after he was detained by the U.S. Marshals. At the meeting, Detective Laws obtained two oral DNA swabs from the defendant pursuant to a seizure warrant. Detective Laws also contacted L.S., spoke with her regarding the events of February 16, 1999, asked if she knew the defendant's name, and advised her that he had been arrested. After learning the defendant's name, L.S. searched for him on a computer, and she was able to find an image she recognized as her assailant based on "his eyes." At trial, L.S. identified the defendant as the assailant. She testified she "remember[ed] [her attacker's] eyes and the way he looked at me. I would never forget."
BRADY VIOLATION; DENIAL OF MISTRIAL
In his sole assignment of error, the defendant argues the trial court erred in denying his motion for mistrial in light of Brady. Specifically, he contends that a sketch prepared by a police artist in 1999, as well as testimony concerning the fact that in 2001, L.S. identified her rapist as a Rite Aid customer at the Rite Aid where L.S. worked, was exculpatory information and should have been disclosed prior to trial. The defendant argues that he was not able to prepare a proper defense, and that if the evidence had been previously disclosed in discovery, there was a reasonable probability that the jury would have returned a different verdict. As such, the defendant contends that the trial court erred in denying his motion for mistrial.
The purpose of pretrial discovery procedures is to eliminate unwarranted prejudice to a defendant that could arise from surprise testimony. State v. Mitchell, 412 So.2d 1042, 1044 (La. 1982). Discovery procedures enable a defendant to properly assess the strength of the State's case against him in order to prepare his defense. State v. Herron, 2003-2304 (La. App. 1st Cir. 5/14/04), 879 So.2d 778, 787. The State's failure to comply with discovery procedures will not automatically demand a reversal. State v. Gaudet, 93-1641 (La. App. 1st Cir. 6/24/94), 638 So.2d 1216, 1220, writ denied, 94-1926 (La. 12/16/94), 648 So.2d 386. However, if a defendant is lulled into a misapprehension of the strength of the State's case by the State's failure to fully disclose, such a prejudice may constitute reversible error. State v. Herron, 879 So.2d at 787.
The defendant has no general constitutional right to unlimited discovery in a criminal case. State v. Lynch, 94-0543 (La. App. 1st Cir. 5/5/95), 655 So.2d 470, 478, writ denied, 95-1441 (La. 11/13/95), 662 So.2d 466. However, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. 83 at 87, 83 S.Ct. 1194 at 1196-97. Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of the defendant's guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383), Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381; See also Smith v. Cain, ___ U.S. ___, ___, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012).
Late disclosure, as well as nondisclosure, of evidence favorable to the defendant requires reversal if it has significantly impacted the defendant's opportunity to present the material effectively in his case and compromised the fundamental fairness of the trial. The impact on the defense of late disclosure of favorable evidence must be evaluated in the context of the entire record. State v. Harris, 2001-2730 (La. 1/19/05), 892 So.2d 1238, 1250, cert denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). The State's constitutional obligation to disclose exculpatory evidence does not relieve the defense of its obligation to conduct its own investigation and prepare a defense for trial as the State is not obligated under Brady or its progeny to furnish the defendant with information he already has or can obtain with reasonable diligence. State v. Harper, 2010-0356 (La. 11/30/10), 53 So.3d 1263, 1271.
In the instant case, the issue is the timeliness of the State's disclosure, rather than the failure to disclose. Disclosure of favorable evidence by the State must be made at such a time as to allow the defense to use the material effectively in the presentation of its case. State v. Huls, 95-0541 (La. App. 1st Cir. 5/29/96), 676 So.2d 160, 170, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. The trial judge "must be given a wide measure of discretion in determining whether a tardy disclosure [of exculpatory material] jeopardizes effective utilization of the evidence and what remedy, if any, should be granted." State v. Mathews, 2000-2115 (La. App. 1st Cir. 9/28/01), 809 So.2d 1002, 1012, writs denied, 2001-2873 (La. 9/13/02), 824 So.2d 1191 and 2001-2907 (La. 10/14/12), 827 So.2d 412.
As is pertinent here, La. C.Cr.P. art. 775 provides that a mistrial shall be ordered when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial. However, a mistrial is a drastic remedy that should be granted only when the defendant suffers such substantial prejudice that he has been deprived of any reasonable expectation of a fair trial. Moreover, determination of whether a mistrial should be granted is within the sound discretion of the trial court, and the denial of a motion for mistrial will not be disturbed on appeal absent an abuse of that discretion. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96), 684 So.2d 439, 449, writ denied, 97-0278 (La. 10/10/97), 703 So.2d 603. L.S.'s positive identification of a Rite Aid customer as the rapist in 2001.
As noted above, the defendant contends two pieces of evidence were withheld in violation of Brady. First, he asserts that testimony regarding L.S.'s identification in 2001 of a Rite Aid customer as the rapist was not disclosed, and this constituted a Brady violation. Pursuant to La. C.Cr.P. art. 841, "[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence." The purpose of the contemporaneous objection rule is to allow a trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Hilton, 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1035, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113. The rule also prevents a defendant from "sitting on" an error and gambling unsuccessfully on the verdict, then later resorting to an appeal on an error that might have been corrected at trial. State v. Duplissey, 550 So.2d 590, 593 (La. 1989). The motion for mistrial based on the alleged Brady violations, is devoid of any reference to this testimony. In fact, the complained-of testimony was elicited after the motion for mistrial was made, without defense counsel thereafter filing a new motion for mistrial. Because the defendant herein failed to make any type of contemporaneous objection, he is precluded from raising this argument on appeal Accordingly, this argument presents nothing for review. 1999 Police Sketch
Secondly, the defendant argues that a police sketch created in 1999, and "withheld" until the State's re-direct examination of L.S., is material and exculpatory, and constitutes a Brady violation. At trial, during the cross-examination of L.S., the defense attempted to cast doubt on the reliability of her identification of the defendant as her attacker, to-wit:
Defense Counsel: Okay. At some point in 2010, though, you received another call, correct?
L.S.: Yes, ma'am.
Defense Counsel: Okay. From an Officer Laws, I think you said?
L.S.: Yes, ma'am.
Defense Counsel: And what did Officer Laws tell you?
L.S.: He told me that they caught the - - found the man who assaulted me.
Defense Counsel: And he even told you the person's name, correct?
L.S.: Yes, ma'am.
Defense Counsel: And you didn't know the name before then, did you?
L.S.: No, ma'am.
Defense Counsel: Okay. And. after he told you the name, you - - was it at that point you Googled the name?
L.S.: After he told me that they arrested him.
Defense Counsel: That's when you Googled the name?
L.S.: Yes, ma'am.
Defense Counsel: Okay. At any point before you did that, did Officer Laws or any officer show you a picture of Mr. Bailey?
L.S.: No, ma'am.
Defense Counsel: So, when ;you saw the picture, it's your testimony today that you remembered him?
L.S.: Yes, ma'am.
Defense Counsel: Okay. Were you ever shown a lineup or photographs of individ - - individual suspects?
L.S.: Yes, ma'am.
Defense Counsel: When was that?
L.S.: When I went down to the - - to see Detective Denux - -
Defense Counsel: Okay.
L.S.: - - and give the description.
Defense Counsel: And this would have been immediately following the assault, correct?
L.S.: Yes, ma'am.
Defense Counsel: And you could not i.d. anyone, correct?
L.S.: No, ma'am.
Defense Counsel: But, once an arrest was made, you were able to identify someone?
L.S.: I remember what he looked like.
Defense Counsel: Okay, And this is, again, in 2010?
L.S.: Yes, ma'am.
Defense Counsel: Okay. Did you ever tell Detective Laws that you could identify the person who had assaulted you?
L.S.: Yes, ma'am.
Defense Counsel: And what did he say?
L.S.: I don't recall.
Thereafter, on re-direct examination, the State began to question L.S. regarding a composite sketch prepared in 1999 based on her description of her attacker. The defense objected, arguing that a copy of the sketch was withheld by the State and not provided through pre-trial discovery. The State responded, stating, "I have a composite, but I never withheld anything. Anything that you wanted to come see, you could come see." The State further explained that it did not want to address the sketch, but because of L.S's cross-examination, and the insinuation that she could not describe or identify her attacker, use of the sketch was made necessary. Ultimately, the trial court sustained the defense objection, and withheld introduction of the composite sketch from trial.
The following day, the defense stated:
We would like to move, at this time, for a mistrial based on Brady violations, the first of which is based on information that was not produced in accordance with our request through discovery. There was a composite sketch, a computer generated sketch. It shows that it was done on February 17 of 1999, the day after the alleged rape occurred. While the information was fresh in the
victim's mind it purports to be signed and dated by her. It was produced to me on [sic] this morning. I saw it on yesterday evening. It was produced this morning and it looks nothing like my client. Perhaps if I had had this information we could have strategized a little bit differently. Next is a composite sketch.
The trial court denied the motion for a mistrial, but allowed defense counsel to recall L.S. for cross-examination and question her regarding the composite sketch, the computer generated sketch, and a photographic lineup presented to L.S. These documents were later introduced into evidence. Additionally, during closing arguments, defense counsel referred to the sketches and argued they did not bear any resemblance to the defendant.
Based on the evidence presented at trial, we find the police sketch of the defendant was not "material" so as to support a Brady violation. Even evidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict. See Smith, ___ U.S. at ___, 132 S.Ct. at 630. The State presented testimony from Susan Currence Bach, who performed serology and DNA testing on the vaginal swab obtained from the victim and was able to develop a DNA profile of the rapist. The State also presented testimony from Marci Herndon, a forensic DNA analyst with the Louisiana State Police Crime Lab, who processed the reference sample obtained from the defendant, and compared it to the DNA profile of the rapist created by Bach and the vaginal swab taken during the rape examination. Herndon testified that the probability of finding the same DNA profile from another in the black population was one in 1.30 quadrillion, with the population of the earth only at approximately seven billion. Accordingly, there was no reasonable probability that had the composite sketch been disclosed earlier, the result of the proceedings would have been different. The likelihood of a different result is not great enough to undermine confidence in the outcome of the trial.
Bach was accepted at trial as an expert in the field of molecular biology and DNA analysis.
Herndon was accepted at trial as an expert in the field of DNA analysis.
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Moreover, even if a delay in discovery or a Brady violation occurred, there would be no reversible error without actual prejudice to the defendant's case. See State v. Francis, 2000-2800 (La. App. 1st Cir. 9/28/01), 809 So.2d 1029, 1033. In State v. Smith, 430 So.2d 31, 42 (La. 1983), the defendant argued the State committed a Brady violation by withholding a police log and offense report, both of which contained exculpatory information, from the defendant. The Court noted Brady was distinguishable because the exculpatory evidence became available during trial. Noting that "[n]ot all cases involving late disclosure of exculpatory evidence result in reversible error," the Court ruled that the State's late disclosure of the evidence did not prejudice the defendant so much as to deny a fair trial. Id. The withheld evidence was brought to the attention of the jury, and the police officers were cross-examined regarding the reports. The Court determined the trial court did not err in denying the defendant's motion for mistrial based on this withholding.
Herein, the defendant has failed to show how he was prejudiced or denied a fair trial. Defense counsel was allowed to recall L.S. and question her regarding the police sketch. Further, this sketch was later introduced at trial by defense counsel, and was used as aids by defense counsel during his closing argument. The record does not reflect any manner in which the defendant might have been lulled into a misapprehension of the strength of the State's case. The defendant has failed to raise any substantial claim of suppression of evidence by the State that would create a reasonable doubt which would otherwise not exist in the context of the whole record. We find that the trial court did not abuse its discretion in denying the motion for mistrial.
Furthermore, in his brief, the defendant argues that he "could have held the sketch in front of the jury during opening statement to immediately attack the reliability of L.S.'s in-court identification by pointing to the sketch saying, 'This is the man who raped L.S.' and then pointing to the defendant saying 'Not this man.'" When defense counsel avails himself of the opportunity to make an opening statement, the statement must be confined to an explanation of the nature of the defense and the evidence by which he expects to establish it. State v. James, 459 So.2d 1299, 1306 (La. App. 1st Cir. 1984), writ denied, 463 So.2d 600 (La. 1985). In James, defense counsel attacked the reliability and credibility of one of the State's witnesses. On appeal, this Court noted defense counsel's statements were improper and outside the scope of opening statement. Therefore, the proposed tactic by the defense would have been improper for an opening statement.
For the foregoing reasons, this assignment of error is without merit. For the foregoing reasons, the defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.