On November 7, 2001, the Louisiana Fourth Circuit Court of Appeal affirmed petitioner's convictions and sentences. State v. Barnes, 800 So.2d 1124 (La.App. 4 Cir. 2001). On January 31, 2003, the Louisiana Supreme Court denied petitioner's writ application, thereby rendering his convictions and sentences final.
In order to rebut this presumption, a defendant must clearly and convincingly show that: This Court, in Barbain, cited the following cases: State v. Stokes, 36,212, p. 15 (La.App. 2 Cir. 9/18/02), 828 So.2d 631; State v. Williams, 10-265 (La.App. 5 Cir. 11/9/10), 54 So.3d 98; State v. Layva-Martinez, 07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276; State v. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574; and State v. Barnes, 01-0113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124. "He is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case."
The jurisprudence holds that a mandatory life sentence for aggravated rape is not excessive. See State v. Williams, 10–265 (La.App. 5 Cir. 11/9/10), 54 So.3d 98; State v. Layva–Martinez, 07–1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276; State v. Chandler, 41,063 (La.App. 2 Cir. 9/8/06), 939 So.2d 574; State v. Barnes, 01–0113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124. Additionally, Mr. Barbain was sentenced to ten years at hard labor for the aggravated incest of T.B., which was below the maximum possible sentence.
A sentence, although within the statutory limits, may still violate a defendant's constitutional right against excessive punishment if it “makes no measurable contribution to acceptable goals of punishment” or is “grossly out of proportion to the severity of the crime.” State v. Barnes, 01–0113, pp. 13–14 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, 1132 (citing State v. Lobato, 603 So.2d 739 (La.1992)). The defendant argues that his criminal conduct neither caused nor threatened serious harm and although he was involved in a negligent homicide in 2002, he has no other criminal history and, since 2002, he has lived a law-abiding life.
The inquiry “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely attributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Bell, 99–3278, p. 6, 776 So.2d at 421–422;State v. Barnes, 2001–0113, pp. 10–11 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, 1131. We therefore pretermit the issue of the admissibility of the 2005 offense.
See, State v. Givens, 03-2071 (La.App. 4 Cir. 3/24/04), 871 So.2d 470, where Dr. Wetsman was previously qualified as an expert in forensic pediatrics; State v. Maise, 00-1158 (La. 1/15/02), 805 So.2d 1141; State v. Barnes, 01-113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, writ denied, 02-0159 (La. 1/31/03), 836 So.2d 56; State v. Brockel, 98-1089 (La.App. 5 Cir. 3/30/99), 733 So.2d 640, writ denied, 99-1516 (La. 10/15/99), 748 So.2d 469. In the present case, we cannot say that the trial court abandoned its role as a gatekeeper, abused its discretion, or made a manifestly erroneous determination when he qualified Dr. Wetsman in the field of forensic pediatrics and child sexual abuse.
State v. Lawrence, 752 So.2d at 943. See also State v. Barnes, 01-113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124, writ denied, 02-159 (La. 1/31/03), 836 So.2d 56. As noted above, the fourth circuit in both Lawrence and Coleman, while finding the statements made by the victims were inadmissible, went on to find that the admission of each statement was harmless error.
Assuming it was inadmissible because the State failed to give the defense proper notice, or for any other reason, the erroneous admission of other crimes evidence is subject to the harmless error rule. State v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 102; State v. Barnes, 2001-0113 (La.App. 4 Cir. 11/7/01), 800 So.2d 1124. Detectives Hamilton and Kaufman also testified and alluded to the substance of Neal's testimony regarding the defendant's taking of the victim's vehicle without permission.