Opinion
NO. 2012 KA 1215
03-22-2013
STATE OF LOUISIANA v. LERON K. CLARK
Mary Constance Hanes New Orleans, Louisiana Attorney for Defendant/Appellant, Leron K. Clark Hon. Hillar C. Moore, III, District Attorney and Allison Miller Rutzen, Assistant District Attorney Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
19th Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Trial Court No. 02-10-0927
The Honorable Donald R. Johnson, Judge Presiding
Mary Constance Hanes
New Orleans, Louisiana
Attorney for Defendant/Appellant,
Leron K. Clark
Hon. Hillar C. Moore, III,
District Attorney
and
Allison Miller Rutzen,
Assistant District Attorney
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee,
State of Louisiana
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ. CRAIN , J.
The defendant, Leron K. Clark, was charged by grand jury indictment with aggravated rape, a violation of Louisiana Revised Statute 14:42. He pled not guilty. After trial by jury, the defendant was found guilty as charged. He was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On appeal, the defendant assigns error to the State's closing argument. For the following reasons, we affirm.
FACTS
On November 17, 2009, during the early morning hours, eleven-year-old J.M. informed her mother, T.M., and other family members that the defendant had sex with her. At that time, T.M. was living in Baton Rouge at her mother's house with her children, including the victim, a younger daughter, her nephew, and the defendant, a twenty-year-old former neighbor and family friend. T.M. and her children routinely slept on a living room sofa while the defendant slept on a separate sofa. On the day in question, T.M. returned from work at approximately 1:30 a.m. and became suspicious when neither her daughter nor the defendant were sleeping on the sofas. Instead, they were in another part of the home. T.M. and other family members questioned the defendant and the victim. J.M. reported her claims to her mother and family members, then to the police. She was taken to Our Lady of the Lake Hospital where a rape examination was conducted.
Initials will be used to identify the victim and her family members. See, La. R.S. 46:1844W. The victim's date of birth is January 26, 1998.
The rape examination revealed evidence of vaginal sexual intercourse. Specifically, the victim's hymen was not intact, she had vaginal discharge, and she tested positive for the sexually transmitted disease Chlamydia. A DNA profile was obtained. Epithelial (skin cells) fractions from the victim's internal and external vaginal swab, sperm fractions from the victim's external vaginal swab, and a stain from the victim's underwear ail implicated the defendant. Sperm fractions were also present in the internal vaginal swab of the victim.
The DNA expert, Tasha Elbert, testified that epithelial fractions of the DNA from the external vaginal swab were 158 billion times more likely to be a mixture of DNA from the victim and the defendant than a mixture of DNA from the victim and a randomly selected individual. Elbert testified that the victim could not be excluded as the major contributor, and the defendant could not be excluded as the minor contributor, relative to the sperm fraction of the DNA from the external vaginal swab and the epithelial fraction of the DNA from the internal vaginal swab. Approximately 96.8 percent of the population could be excluded as a possible contributor of the DNA from the sperm fraction of the external vaginal swab and 99.6 percent of the population could be excluded as a contributor of the DNA from the epithelial fraction of the internal vaginal swab.
The sperm fraction from the initial vaginal swab was of such a low concentration of DNA that the foreign contributor could not be determined.
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At trial, the victim testified, "he [the defendant] got on top of me and stuck his thing up in me." She explained that just before her mother returned home, the defendant woke her, took her to the back room, pulled her pants down, laid her on the floor, got on top of her, and put his private part in her private part. The victim stated that this happened on about six separate occasions. The defendant admitted engaging in sexual activity with the victim, but denied having sexual intercourse. The defendant testified, "she grabbed my penis and tried to stick it in her vagina, but you know -1 mean, y'all done had sex before, you know, and I tried to stop it, but you know -1 just - I just went off, you know." He also testified that while he never had "full-fledged sex" with or penetrated the victim, he did rub his penis around her vaginal area on numerous occasions.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues that comments made by the prosecutor during rebuttal closing argument had the effect of shifting the burden of proof to the defendant. The prosecutor's comments indicated that the defendant did not explain how his DNA was found in the victim's vagina. The defendant complains that he did not have the expertise to explain why the scientific evidence existed and contends that the evidence did not conclusively prove that he penetrated the victim with his penis. The defendant points out that the crime lab found only his epithelial cells in the victim's vagina and the foreign contributor of sperm fraction from the internal vaginal swab was not determinable. He notes that the prosecutor never directly asked him if he put his finger inside the victim's vagina and that the prosecutor failed to distinguish skin cell DNA from sperm cell DNA during questioning. Noting that penetration is a necessary element of the offense, the defendant argues that the prosecutor implied that the defendant had to prove his innocence. The defendant argues that the fact that the verdict was based on a concurrence of ten votes rather than being unanimous evidences that he was denied a fair trial.
Louisiana Code of Criminal Procedure article 774 requires that closing arguments be confined "to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case." Arguments shall not appeal to prejudice. Further, the State's rebuttal should be confined to answering the defendant's argument. La. Code Crim. Pro. art. 774. Within those parameters, however, prosecutors are generally allowed wide latitude when making closing arguments. State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, 1036, cert. denied, 531 U.S. 840 (2000).
The prosecutor may not use closing argument as a vehicle to express his personal opinions about the defendant when his opinion is expressed in a manner that the jury may understand has been formed from evidence outside of the record. State v. Procell, 365 So. 2d 484, 489 (La. 1978), cert. denied, 441 U.S. 944 (1979). But, such an opinion is permissible if the prosecutor refers to, or it is apparent that his opinion is based on, the admitted evidence. See, La. Code Crim. Pro. art. 774; Procell, 365 So. 2d at 489. A conviction will not be reversed due to improper remarks during closing arguments unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Draughn, 05-1825 (La. 1/17/07), 950 So. 2d 583, 614, cert denied, 552 U.S. 1012 (2007). In making its determination, the appellate court should give credit to the good sense and fair-mindedness of the jury that has seen the evidence and heard the arguments, and has been instructed that the arguments of counsel are not evidence. State v. Dilosa, 01-0024 (La. App. 1 Cir. 5/9/03), 849 So, 2d 657, 674, writ denied, 03-1601 (La. 12/12/03), 860 So. 2d 1153.
The defense attorney stated in closing argument, "I'm no expert on sex, but when you're doing these sorts of things, you have your hands, their hands, everything that's involved in places that shed skin cells ... Could that be how the skin cells got where they got? Sure." In rebuttal, the prosecution stated:
[Defense counsel's] theory is that Mr. Clark put something else inside of [J.M.], maybe his finger. Well, that's a great theory, but that's not evidence. And Mr. Clark took the stand and gave us the opportunity to, either, confirm or dispel that theory. And I, specifically, asked him numerous times how did your DNA get inside of her vagina? He had the opportunity multiple times to suggest, you know, we were playing around, things got a little heavy, and I may have stuck my finger in there. No. He didn't say that.At this point the defense attorney requested permission to approach the judge and entered an objection. The objection was overruled. The prosecutor then added:
I gave him the opportunity. Leron, tell me how your DNA got inside of her. We got [J.M.'s] story. What's yours? I don't know. I was rubbing around on her, never went inside. Okay. Well, you're going to have to do better than that, because [J.M.] and the science say one thing, and when given the opportunity, he's got no explanation. So, what that means is you've heard zero evidence of the finger hypothesis, which again is ridiculous, in light of the seminal fluid found in [J.M.'s] vagina.
While charging the jury, the trial judge reminded them that statements and arguments by counsel, including opening statements and closing arguments, are not evidence, and that the verdict must be solely based on the evidence in the case. The trial judge also stated that the jury alone is to decide what facts have been proven and what facts have not been proven and that the defendant is presumed innocent until each element of the crime is proven beyond a reasonable doubt.
The defendant in State v. Thomas, 572 So. 2d 681 (La. App. 1 Cir. 1990), writ denied, 604 So. 2d 994 (La. 1992) raised the same argument as assigned herein. In Thomas, the defendant objected when the prosecutor, during rebuttal closing argument, commented on the lack of evidence that the victim was a sexually active child. On appeal, the defendant argued that the State improperly shifted the burden of proof to the defense. This court noted that the defendant testified that he had no sexual contact with the victim. During closing argument the defense attorney referred to the victim as a "sexually active" thirteen-year-old and suggested that she could have been motivated to accuse the defendant of molesting her out of a fear that she might be pregnant. This court concluded that the prosecutor's rebuttal was responding to the defense attorney's closing argument by pointing to the lack of evidence to support the theory that the victim was afraid she was pregnant by someone other than the defendant. This court recognized the State's right to answer the argument of the defendant and found that doing so did not shift the burden of proof. Thomas, 572 So. 2d at 683-84.
In this case, the defendant testified that he did not penetrate the victim. Internal vaginal swabs identified sperm from a scientifically indeterminate source and epithelial cells linked to the defendant by DNA. The defense attorney argued that the defendant's DNA could have been present by means other than penile penetration. The prosecutor's remarks were in response to that argument. The prosecutor's comments were based on the evidence, lack of evidence, or conclusions of fact that may be drawn, and, thus, were not impermissible personal opinions. See La. Code Crim. Pro. art. 774; State v. Sawyer, 350 So. 2d 611, 614 (La. 1977). The jury was carefully instructed that they were only to consider the admitted evidence in reaching their verdict, that the arguments of counsel were not evidence, that the defendant is presumed to be innocent, and that the State had the burden of proving every element of the offense.
Much credit is accorded to the good sense and fair-mindedness of the jurors who have seen the evidence and heard the arguments, and have been instructed by the trial judge that arguments of counsel are not evidence. Dilosa, 849 So. 2d at 674. The remarks made by the prosecutor in rebuttal were not improper. Thus, the trial court did not err in overruling the defendant's objection to the complained of comments. The assignment of error lacks merit.
CONVICTION AND SENTENCE AFFIRMED.