Opinion
NO. 2012 KA 0227
09-21-2012
STATE OF LOUISIANA v. ELROY COOPER
Frank Sloan Mandeville, La. Attorney for Defendant/Appellant, Elroy Cooper Walter P. Reed District Attorney Covington, La. Kathryn W. Landry Baton Rouge, La.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 460214-1
The Honorable Richard A. Swartz, Judge Presiding
Frank Sloan
Mandeville, La.
Attorney for Defendant/Appellant,
Elroy Cooper
Walter P. Reed
District Attorney
Covington, La.
Kathryn W. Landry
Baton Rouge, La.
Attorneys for the State of Louisiana
BEFORE: CARTER, C.J., GUIDRY AND GA1DRY, JJ.
CARTER , C.J.
The defendant, Elroy Cooper, was charged by grand jury indictment with aggravated rape, a violation of Louisiana Revised Statutes section 14:42. The defendant entered a plea of not guilty. After a trial by jury, the defendant was found guilty of the responsive offense of simple rape, a violation of Louisiana Revised Statutes section 14:43. The defendant was sentenced to fourteen years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, assigning error to the trial court in allowing the victim to sit with the prosecution team during the trial. For the following reasons, we affirm the conviction and sentence.
The defendant was indicted and tried with codefendant Joshua Ford Reed. Reed's conviction and sentence were affirmed by this court on March 23, 2012, in an unpublished opinion. Reed did not raise the issue presented herein. State v. Reed, 11-1539 (La App 1 Cir 3/23/12), ___ So. 3d ___, 2012 WL 1012630.
STATEMENT OF FACTS
During the early morning hours of October 26, 2008, Chance Ross, Jerrell Payton, Ralph Robertson, Elroy Cooper, and another individual identified only as "Troy" greeted A.E. (the victim) and a group of her friends near Canal Street in New Orleans. The victim accepted Payton's offer to smoke marijuana and got into Ross's vehicle with the group of males. However, after she entered the vehicle, they left downtown New Orleans and drove her to the Slidell area. They pulled into a driveway, where the victim was forced to engage in vaginal and oral sexual encounters with the men. They then drove to Joshua Ford Reed's trailer home in Alton where the men, including the defendant, forced the victim to engage in further sexual encounters. They ultimately dropped the victim off at a gas station in Slidell, and she called for emergency assistance.
The victim's date of birth is April 1, 1989. Herein, we reference the victim by use of initials. See La. Rev. Stat. Ann. § 46:1844W.
There is indication in the record that Troy was a minor, and though he was present during at least a portion of the time in question, he was not arrested or charged in connection with this incident. According to Reed and the defendant, Troy left shortly after the group arrived at Reed's residence.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In assignment of error number one, the defendant contends that over defense objection, in order to boost the victim's credibility, the prosecutor had her sitting behind the prosecution table in front of the rail that separated counsel and the parties from the public. Citing Louisiana Code of Evidence article 615B(4), the defendant submits that while the victim had the right to be present in the courtroom, there is no law that provides that a victim may sit in front of the rail or bar with the prosecution team as if she were a party in the proceedings. The defendant notes that the prosecutor represents the State and not the complaining witness. The defendant argues that the State was allowed to give the jury the impression that the complaining witness was a member of the prosecution team, thereby bolstering her credibility. Citing Louisiana Code of Criminal Procedure article 17, the defendant concludes that the trial court abused its discretion in permitting the victim to sit with the prosecution team. In the second and related assignment of error, the defendant contends that the jury was faced with a swearing contest in this case and argues that the error raised herein cannot be considered harmless since the outcome of the case was based on a credibility determination.
During the trial herein, upon objection by the defendant's trial counsel, the trial court stated the following: "Before the rail are only the participants in this trial. The victim has a right to be in the courtroom and has a right to sit before the rail with the counsel for the District Attorney's Office." Subsequently, counsel for codefendant Reed stated the following: "I want to place on the record the victim is sitting no more than like three, four feet from the first juror . . . I'm really concerned about whether or not she makes any comments toward any testimony that the jury can hear and I can't." In response, the trial court stated the following:
I have watched the victim and I believe two family members that are seated with her, behind counsel table for the District Attorney. They have not made any comments during the course of this trial. I've also watched the -- which I believe are supporters of the defendants seated right behind them, and I also have not seen any comments from them.
So I do not feel that either side has made any effort to intimate the jury in this matter. And everyone is seated very closely to the jury, so ...
I've noted your objection for the record, you've made it, and we can move on.
At that point, the trial resumed.
The exclusion of witnesses is governed by Louisiana Code of Evidence article 615. La. Code Crim. Proc. Ann. art. 764. Article 615, in pertinent part, provides:
Comment (d) to Article 615 provides, in pertinent part: "Nothing in this Article is intended to deprive the trial court of the power to sequester witnesses in such cases in the interests of justice." See La. Code Crim. Proc. Ann. art. 17.
A. As a matter of right. On its own motion the court may, and on request of a party the court shall, order that the witnesses be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interests of justice, the court may exempt any witness from its order of exclusion.
B. Exceptions. This Article does not authorize exclusion of any of the following:
* * *
(4) The victim of the offense or the family of the victim.
The purpose of sequestration is to assure that a witness will testify as to his own knowledge of the events, to prevent the testimony of one witness from influencing the testimony of others, and to strengthen the role of cross-examination in developing facts. State v. Nevers, 621 So. 2d 1108, 1112 (La. App. 1st Cir.), writ denied, 617 So. 2d 906 (La. 1993). The resolution of sequestration problems is within the sound discretion of the trial court. Id. On appeal, the reviewing court will look at the facts of each case to determine whether a sequestration violation resulted in prejudice to the accused. Id.
The defendant is incorrect in stating in his appeal brief that this is an issue of first impression. In 1998, this court ruled in State v. Fugler, 97-1936 (La. App. 1 Cir. 9/25/98), 721 So. 2d 1, 9, amended on rehearing in part on other grounds, 97-1936 (La. App. 1 Cir. 5/14/99), 737 So. 2d 894, writ denied, 99-1686 (La. 11/19/99), 749 So. 2d 668, that although the trial court erred in permitting the victim to sit at the State's table during trial, the error did not affect substantial rights of the defendant, and thus, was harmless beyond a reasonable doubt. The holding in Fugler was based on the version of Article 615 in effect at that time. However, in 1999, an amendment to Article 615 removed the prohibition against a victim sitting at counsel's table. Thus, there appears to be no applicable statutory or jurisprudential law that prevents a victim from doing so.
The following language was deleted from Article 615B(4) pursuant to 1999 La. Acts No. 783, § 2: "The court shall also enter such other order as may appear reasonably necessary to preserve decorum and insure a fair trial, provided that the victim shall not be allowed to sit at the counsel table."
A trial court has broad discretion and the duty to require that criminal proceedings be conducted in an orderly and expeditious manner and to so control the proceedings so that justice is done. State v. Washington, 614 So. 2d 711, 713 (La. 1993) (per curiam) (citing La. Code Crim. Proc. Ann. art. 17). The trial court's rulings on matters pertaining to the conduct of the trial will not be disturbed absent an abuse of discretion. State v. Reeves, 269 So. 2d 815, 816 (La. 1972) (per curiam). Under the present law and circumstances of this case, we find the trial court did not err or abuse its discretion in overruling the defense's objection to the victim sitting behind the prosecution's table. Accordingly, these assignments of error are without merit.
CONCLUSION
For the foregoing reasons, the conviction and sentence of defendant, Elroy Cooper, for simple rape are affirmed.
CONVICTION AND SENTENCE AFFIRMED.