Opinion
No. 2010 KA 1220.
February 11, 2011.
ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT NUMBERS 532,940 558,089, DIVISION 22, PARISH OF TERREBONNE STATE OF LOUISIANA HONORABLE GEORGE J. LARKE, JR., JUDGE.
Mr. Joseph Waitz, District Attorney, Houma, Louisiana, Ms. Ellen Daigle Doskey, Assistant District Attorney, Houma, Louisiana, Counsel for Appellee, State of Louisiana.
Ms. Bertha M. Hillman, Thibodaux, Louisiana, Counsel for Defendant-Appellant, Ernest Keith Hazleton.
Ernest Keith Hazleton, St. Gabriel, Louisiana, Defendant-Appellant, Pro Se.
BEFORE: KUHN, PETTIGREW, AND HIGGINBOTHAM, JJ.
The defendant, Ernest Keith Hazleton, was charged by amended grand jury indictment with aggravated rape, in violation of La.R.S. 14:42 (No. 532,940), and by bill of information with aggravated incest, in violation of La.R.S. 14:78.1 (No. 558,089). He pled not guilty to all charges. Following a jury trial, the defendant was convicted as charged. The defendant was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for the aggravated rape conviction. He received a concurrent sentence of twenty years at hard labor for the aggravated incest conviction. The defendant now appeals, urging the following assignments of error by counseled brief:
The defendant originally was charged by grand jury indictment with aggravated rape for incidents occurring between January 2005 and April 10, 2007. However, since the victim turned thirteen years old on August 28, 2006, the indictment was later amended to charge aggravated rape between January 2005 and August 27, 2006. A bill of information was then filed charging the defendant with aggravated incest for the incidents occurring between August 28, 2006 and April 10, 2007.
1. Whether the trial court erred in allowing the state to introduce a video statement of the victim.
2. Whether the trial court erred in allowing hearsay testimony of J.A., as an exception to the hearsay rule of La. Code Evid. art. 801.
The defendant also filed a lengthy pro se brief urging several claims (coerced Miranda rights waiver, ineffective assistance of counsel, insufficient evidence). Finding no merit to any of the assignments of error, we affirm the defendant's convictions and sentences.
FACTS
J.C., who was sixteen years old at the time of the January 2010 trial, testified that the defendant and her mother, S.C., married in 2001. Shortly thereafter, S.C. and her three children moved in with the defendant. J.C. testified that the defendant sexually abused her on a regular basis during the period between January 2005 and April 2007. The abuse typically occurred when her mother was away from home at work. J.C. explained that the first incident of sexual contact by the defendant occurred when she was twelve years old. J.C. explained she was lying on the sofa with the defendant when she felt his penis touch her leg. This contact made J.C. uncomfortable, so she immediately left and went to her bedroom. Later, when J.C. was still twelve years old, the defendant began having vaginal and, eventually, oral sexual intercourse with her.
In accordance with La.R.S. 46:1844(W), the victim herein is referenced only by her initials. To further protect the identity of the victim, her mother is also referenced by initials.
J.C. was able to recall her age at the time the sexual intercourse began because she remembered that it occurred before she started her menstrual cycle (at age twelve).
At the trial, J.C. described in detail the first instance of vaginal sexual intercourse. According to J.C., she was in the bedroom that the defendant shared with her mother watching music videos on a personal computer when the defendant began making sexual comments to her. The defendant eventually told J.C. he wanted to have sex with her and explained that it was better for J.C. to have sex with him than to go "do it on the street." The defendant then instructed J.C. to go and use a douche to "open" up her vagina. J.C. complied. When the child returned to the bedroom, the defendant applied Vaseline to his penis and engaged in vaginal intercourse with J.C. J.C. testified that when the defendant penetrated her vagina it hurt "like a razor." J.C. asked the defendant to stop, but he refused. Eventually, J.C. gave in and "just went along with it." After about three or four minutes, the defendant withdrew his penis, went into the bathroom and ejaculated in the sink. He then called J.C. into the bathroom to view the semen. The defendant told J.C. that he withdrew his penis because the semen is "the stuff that gets you pregnant." Shortly thereafter, J.C. was using the bathroom when she noticed blood in her vaginal area. J.C. returned to the bedroom and asked the defendant about the blood. The defendant told J.C. that it was her "cherry."
Thereafter, the defendant began to bribe J.C. for sex. In exchange for what he referred to as "five minutes" (of sexual intercourse), the defendant made sure things went J.C.'s way at home and that she received whatever she requested of the defendant and/or her mother. The defendant continued to have vaginal and eventually oral sexual intercourse with J.C. approximately every other day until April 2007, when he was arrested for having previously sexually abused his biological daughter, H.H. J.C. disclosed the sexual abuse to her mother in December 2008 during a conversation in preparation for an upcoming doctor visit. S.C. immediately reported the abuse to the authorities.
H.H., who was twenty-three years old at the time of the trial in this case, testified that when she was ten years old, the defendant (her biological father) became overly affectionate towards her and eventually started fondling her breasts. Later, when H.H. was twelve, the defendant started digitally penetrating her vagina. The defendant eventually made H.H. perform oral sex on him. The defendant told H.H. that the affection and fondling was normal behavior between a father and daughter. He told her that it was better for her to receive such sexual attention from him than to get it from someone else "in the street." H.H. explained that on one occasion the defendant attempted to engage in vaginal intercourse with her. However, he did not successfully achieve penetration because of the pain it caused H.H. According to H.H., there were no further attempts at vaginal intercourse.
Years later, when she was twenty-one years old, H.H. reported the sexual abuse she suffered at the hands of her father. In connection with the report, the defendant was charged with aggravated rape and aggravated incest. When questioned in connection with the charges, the defendant admitted to incidents of oral sexual intercourse and fondling of H.H., but denied vaginal intercourse. He told the investigating detective that H.H. was "curious" and he was "teaching." The defendant eventually pled guilty to the reduced charge of molestation of a juvenile.
At the trial of the instant case, J.A. (J.C.'s best friend), testified that J.C. told her that she was raped by a man named "Pete." During her trial testimony, J.C. testified that the defendant's nickname is "Pete." J.C. further testified that J.A. was the first person she told about the rape.
The defendant did not testify at the trial.
COUNSELED ASSIGNMENT OF ERROR 1
In his first counseled assignment of error, the defendant contends the trial court erred in allowing the state to introduce the videotaped statement of the victim into evidence at the trial. He asserts the statement, which was introduced to bolster the credibility of the victim, should not have been allowed because at the time that it was introduced, the victim had not testified; thus, her credibility was not yet at issue.
Prior to trial, the defendant filed a Motion to Exclude Introduction of Videotape. In the motion, the defendant argued that the videotaped interview failed to meet the criteria for admission under La.R.S. 15:440.5. Specifically, the defendant argued that the videotape was incomplete and did not reflect matters discussed at the outset of the interview. He further asserted that the videotaped interview was "rife with leading questions and/or questions 'calculated to lead the child to make particular statements' in violation of La.R.S. 15:440.5(A)(4)." Finally, the defendant noted that the state failed to make a showing that the alleged victim was "actually available and able to testify."
The defendant also filed a motion to quash challenging the constitutionality of La.R.S. 15:440.3 et seq. The trial court denied the motion. The defendant does not raise this issue on appeal.
At a hearing on the motion to exclude the videotape, the trial judge noted that he had not reviewed the videotaped interview. The judge deferred ruling on the admissibility of the interview until trial. Later, during the trial, a hearing to determine the admissibility of the videotaped interview was held outside the presence of the jury. After listening to testimony from Dawn Buquet (the forensic interviewer) regarding the circumstances surrounding the videotaped interview and reviewing the video in its entirety, the trial court ruled that the interview met the requirements for admissibility under La.R.S. 15:440.4. The court ruled that the state would be allowed to play the tape before the jury.
A videotape of an oral statement of a victim who is seventeen years of age or younger made before proceedings begin may be admissible into evidence as an exception to the hearsay rule provided certain conditions are met. La.R.S. 15:440.2(C) 15:440.2-15:440.5. As previously noted, the defendant argued in the trial court that the videotape of J.C. failed to meet the criteria required by the statute. On appeal, the defendant is not challenging the admissibility of the videotaped statement based on the same ground articulated in the trial court. Here, the defendant argues that the videotape should not have been allowed to bolster J.C.'s credibility before she testified. In the trial court, the defendant never challenged the timing of the presentation of the videotaped statement before the jury. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action that he desired the court to take, or of his objections to the action of the court, and the grounds therefor. La. Code Crim. P. art. 841(A); La. Code Evid. art. 103(A)(1). Since the defendant has raised a new basis for the motion to exclude the videotape for the first time on appeal, this assignment of error is not properly before this court.
This assignment of error lacks merit.
COUNSELED ASSIGNMENT OF ERROR 2
In this assignment of error, the defendant argues that J.A.'s testimony regarding J.C.'s disclosure of the sexual abuse was hearsay and should not have been allowed. He argues the state failed to establish that J.C.'s statement to J.A. was, in fact, her initial complaint of sexually assaultive behavior. Specifically, he notes that, in her videotaped statement, J.C. indicated that she first told D.W., her boyfriend who had since moved to Virginia, but in her trial testimony she indicated that she made her initial disclosure to J.A.
La. Code Evid. art. 801(D)(1)(d), provides as follows:
D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
. . . . (d) Consistent with the declarant's testimony and is one of initial complaint of sexually assaultive behavior.
The initial complaint of the victim of sexual abuse is admissible as substantive evidence. State v. Reed, 97-0812, p. 10 (La. App. 1st Cir. 04/08/98), 712 So.2d 572, 578, writ denied, 98-1266 (La. 11/25/98), 729 So.2d 572.
Initially, we note that the defendant is correct in his assertion that J.C. indicated in the videotaped interview that she first disclosed the sexual abuse to D.W. However, it is also worth noting that, during the interview (immediately before she named D.W.) J.C. initially indicated that she had forgotten who she told first. At the trial, J.C. testified that she told her friend, J.A., first. During her trial testimony, J.C. clarified the inconsistencies in her identification of D.W. as the person to whom she made the initial report. She explained that she was "scared" and "nervous" during the interview. She indicated that this information was not accurate and unequivocally stated that she told J.A. about the defendant's actions before telling D.W. Considering this explanation, we do not find, as the defendant claims, that there exists a "serious question" as to whether J.C.'s statement to J.A. was her initial complaint. Furthermore, we note that J.A.'s testimony regarding the out-of-court statement J.C. made to her regarding the fact that the defendant raped her was consistent with J.C.'s trial testimony. Because J.C. testified that her statement to J.A. was the first statement she made about the defendant's actions, and the statement, as related in J.A.'s trial testimony, was consistent with J.C.'s trial testimony, we find that the trial court properly ruled that J.A.'s testimony was admissible as an exception to hearsay under Louisiana Code of Evidence article 801(D)(1)(d). This assignment of error lacks merit.
PRO SE ARGUMENTS
In his pro se brief, the defendant makes essentially three claims. He first argues that the investigating detectives refused to honor his request for an attorney during questioning. He also argues that the detectives used trickery to secure his signature on a Miranda rights-waiver form. Our review of the record in this case reveals that these claims clearly lack merit since the record does not reflect that the defendant waived his rights and/or provided any statements to the detectives. At the trial, Detective Kody Voisin testified that after reviewing the videotaped interview of J.C. at the Children's Advocacy Center, he went to talk to the defendant at Angola (where he was still incarcerated in connection with the charges stemming from his abuse of H.H.). According to Detective Voisin, the defendant was read his Miranda rights and once he indicated that he wished to remain silent and requested an attorney, all questioning was discontinued. The state did not introduce a statement or Miranda rights-waiver form by the defendant in connection with the instant charges. This pro se argument lacks merit.
Next, the defendant presents numerous pages of handwritten text detailing a bizarre conspiracy plot by S.C. (J.C.'s mother), Joseph Trosclair (S.C.'s oldest daughter's biological father), and Detective Kody Voisin. He essentially claims these individuals have a personal vendetta against him (which dates back over 28 years) and are seeking to ruin his life. He claims the group fabricated the instant allegations of sexual abuse to cover-up sexual abuse of J.C. by Trosclair and several other men. They then coerced J.C. (who he claims is addicted to crack and other drugs) to go along with the fabricated claims of abuse. In a nutshell, the defendant claims he did not sexually abuse J.C. and the evidence at trial is not credible and should not have been sufficient to convict him.
Initially, we note that the conspiracy hypothesis of innocence provided by the defendant in his pro se brief on appeal was never presented in the court below. The defendant did not testify at the trial or introduce any witnesses to support any of the conspiracy claims and/or allegations asserted in his pro se brief. The standard for reviewing the sufficiency of evidence is set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), see also La. Code Crim. P. art. 821. Under Jackson, the standard for testing the sufficiency of evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789; State v. James, 2002-2079, p. 3 (La. App. 1st Cir. 5/9/03), 849 So.2d 574, 579.
When analyzing circumstantial evidence, La.R.S. 15:438 provides, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." This statutory test is not a purely separate one from the Jackson constitutional sufficiency standard. On appeal, the reviewing court "does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events." Rather, the court must evaluate the evidence in a light most favorable to the state and determine whether the possible alternative is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342, p. 7 (La. 10/17/00), 772 So.2d 78, 83.
When there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Woods, 2000-2147, p. 5 (La. App. 1st Cir. 5/11/01), 787 So.2d 1083, 1088, writ denied, 2001-2389 (La. 6/14/02), 817 So.2d 1153. As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. State v. Johnson, 99-0385, p. 9 (La. App. 1st Cir. 11/5/99), 745 So.2d 217, 223, writ denied, 2000-0829 (La. 11/13/00), 774 So.2d 971. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. State v. Marshall, 99-2884, p. 5 (La. App. 1st. Cir. 11/8/00), 808 So.2d 376, 380.
The crime of aggravated rape is defined in La.R.S. 14:42, which provides, in part, as follows:
A. Aggravated rape is a rape committed . . . where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(4) When the victim is under the age of thirteen years. Lack of knowledge of the victim's age shall not be a defense.
"Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent." La.R.S. 14:41(A). "Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." La.R.S. 14:41(B).
Louisiana Revised Statutes 14:78.1 defines aggravated incest, in pertinent part, as:
A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following . . . step, or adoptive relatives: child. . . .
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, . . . indecent behavior with juveniles, . . . molestation of a juvenile, . . . cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
In the instant case, J.C. provided a videotaped interview and trial testimony wherein she provided a detailed description of the abuse she suffered at the hands of the defendant. On both occasions, J.C. told of how the defendant repeatedly engaged in vaginal and oral sexual intercourse with her for over a year. The child also testified that the defendant attempted to convince her that such a sexual relationship between father and daughter was normal. H.H., the defendant's biological daughter who he admitted to sexually abusing, also testified that the defendant told her the abuse was normal. M.C., J.C.'s sister, testified that although she did not personally witness the defendant sexually abuse J.C., she did notice that J.C. was "always" in the defendant's bedroom.
After a thorough review of the record, we are convinced that viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence, that the defendant was guilty of aggravated rape and aggravated incest. The verdict rendered against the defendant indicates the jury accepted the testimony of the state's witnesses, including the victim's account of the abuse. It is well settled that if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. James, 2002-2079, p. 8 (La. App. 1st Cir. 05/09/03), 849 So.2d 574, 581. Therefore, J.C.'s testimony, which the jury obviously found credible, was sufficient to prove all elements of aggravated rape and aggravated incest. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. This argument is without merit.
Finally, the defendant appears to argue that his trial counsel was ineffective in failing to adequately prepare and/or effectively present the defense of conspiracy and personal vendetta at his trial.
A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, if the record discloses the evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Williams, 632 So.2d 351, 361 (La. App. 1st Cir. 1993), writ denied, 94-1009 (La. 9/2/94), 643 So.2d 139.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney's performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or "a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to show prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Felder, 2000-2887, pp. 10-11 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369-70, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if he makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
As previously noted, the defendant claims, among other things, his trial counsel was ineffective because he failed to adequately prepare for trial, he failed to fully investigate the case and to present the necessary defenses at trial. These particular allegations of ineffective assistance of counsel cannot be sufficiently investigated from an inspection of the record alone. It is well settled that decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be decided on appeal. See State v. Martin, 607 So.2d 775, 788 (La. App. 1st Cir. 1992). Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, these allegations are not subject to appellate review. State v. Albert, 96-1991, p. 11 (La. App. 1st Cir. 6/20/97), 697 So.2d 1355, 1363-64.
The defendant would have to satisfy the requirements of La. Code Crim. P. art. 924 et seq. in order to receive such a hearing.
Accordingly, the claims raised in the defendant's pro se brief lack merit or are otherwise not subject to appellate review.
For the foregoing reasons, the defendant's convictions and sentences are affirmed.