Opinion
No. 2009 KA 0772.
October 23, 2009.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA TRIAL COURT NO. 07-07-0697 HONORABLE DONALD R. JOHNSON, JUDGE.
Hillar C. Moore, III, District Attorney, Jeanne Rougeau, Assistant District Attorney, Baton Rouge, LA, Counsel for Appellee, State of Louisiana.
Dele A. Adebamiji, Baton Rouge, LA, Counsel for Defendant/Appellant. Marice S. Nails.
Marice S. Nails, Angola, LA, Pro Se.
BEFORE: CARTER, C.J., GUIDRY, AND PETTIGREW, JJ.
Defendant, Marice S. Nalls, was charged by grand jury indictment with one count of aggravated rape, a violation of La.R.S. 14:42, and one count of armed robbery, a violation of La.R.S. 14:64. Defendant entered pleas of not guilty and waived his right to a jury trial.
After hearing all of the evidence, the trial court determined defendant was guilty of both counts. For his aggravated rape conviction, the trial court sentenced defendant to a term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. For his conviction for armed robbery, the trial court sentenced defendant to a term of fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court ordered that the sentences be served concurrently with each other.
Defendant appeals, citing the following counseled assignments of error:
1. The State failed to carry its burden of proof to establish defendant was guilty of aggravated rape.
2. The State failed to carry its burden of proof to establish defendant was guilty of armed robbery.
3. The trial court erred by denying defendant's Motion for Post Verdict Judgment of Acquittal and/or New Trial.
Defendant also filed a pro se brief, raising the following assignments of error:
1. Whether defendant made a knowing, intelligent, and voluntary waiver of his rights to a trial by jury.
2. Whether the trial court violated the defendant's rights to a fair trial and deprived him of his right to defend himself when his counsel was broadsided by the introduction of evidence of which he had never been made aware.
3. Whether any errors were committed such as would be discovered by the appellate court in conducting a patent error review of this matter pursuant to La.C.Cr.P. art. 920(2).
We affirm defendant's convictions and sentences.
FACTS
In September 1998, M.C. was living with Ronnie Burgess in unit 12 of the Warren House Apartments located off Airline Highway in Baton Rouge. On the morning of September 24, 1998, Burgess left for work at approximately 5:00 a.m. M.C. locked the door to the apartment and returned to the bedroom. Once inside the bedroom, M.C. heard the door to the apartment unlock. Thinking that Burgess had returned to retrieve something, M.C. opened the bedroom door and saw a man armed with a handgun standing in the living room.
When M.C. saw the man, she quickly stepped behind the bedroom door. However, the gunman entered the bedroom, placed the gun to her head and demanded money. He then asked M.C. where the man he had previously seen in the apartment had gone, and when she denied that a man had been there, the gunman informed her that he had been in the apartment earlier that morning.
The gunman then ordered M.C. to take off her clothing and get on the bed. M.C. pleaded with the gunman to take whatever money she had and leave; however, the gunman repeatedly told M.C. to "shut up." The gunman held the weapon to M.C.'s temple as she lay on the bed. He ordered her not to look at him, so she turned her head and closed her eyes as the gunman proceeded to vaginally and rectally rape her. The gunman stated he wanted M.C. to perform oral sex on him; however, she explained it would make her sick. The gunman then resumed raping M.C.
According to M.C., the gunman grew agitated, ceased raping her and she heard him cock the hammer of the weapon, then release the hammer, commenting that she "wasn't worth his time." While still holding the gun to M.C.'s head, the gunman forced her into the living room to retrieve her purse. As M.C. entered the living room, she noticed that the television was no longer there, and she was unable to locate her purse. After the search for her purse was unsuccessful, the gunman ordered M.C. to get on her hands and knees in the living room where he resumed raping her.
M.C. testified that after an estimated forty-five minutes of being raped, she heard a voice calling out through the apartment door, which had been left slightly open, "Marice, come on. You're so stupid. Come on. Let's go." As the person called out to the gunman, he continued raping her. After more time passed, the gunman ceased raping M.C. and told her to go into the bedroom, shut the door, and not leave or he would kill her. The gunman also stated that she should not call the police.
M.C. immediately complied with the gunman's orders, and then waited a few minutes after she heard the apartment door close to make sure she was alone before calling Burgess to tell him she had been raped. She asked Burgess to meet her at the hospital, located her keys, and drove herself to Woman's Hospital.
After arriving at Woman's Hospital, M.C. reported that she had been raped and the police were notified. Sergeant Kevin Paul of the Baton Rouge City Police was dispatched to the hospital at 6:44 a.m. in response to the complaint. Because M.C. had kept her eyes closed during the rapes, she was unable to provide a detailed description of her attacker. M.C. could only describe him as a black male in his twenties, with a thin build and thick eyebrows. M.C. told the police that the assailant might live at the Ten Flags Motel located near the Warren House Apartments based on his statements that he would be watching her.
While at Woman's Hospital, M.C. underwent a rape examination performed by Dr. Sterling Sightler. Dr. Sightler testified that M.C. reported she had consensual sex the previous evening at approximately 9:00 p.m. In completing the rape examination, Dr. Sightler took a series of specimens including pubic hair clippings, vaginal swabs, and a swab of one of M.C.'s breasts, where the assailant had placed his mouth during the rape. M.C. and Burgess also submitted blood samples in conjunction with the rape examination.
Several days following the rape, M.C. received a call from an unidentified male explaining that he had found her checkbook and credit cards in a field. M.C. contacted the police and reported the information. The police responded to the location of North Acadian and North Thirty-Third Street and recovered the items.
In 1998, Joseph Brisolara was working as a serologist for the Louisiana State Police (LSP) Crime Lab. Brisolara received several items of evidence related to this matter. Brisolara testified that he conducted tests that detected seminal fluid on M.C.'s shirt, underwear, the comforter from her bedroom, and vaginal washings.
The investigation produced no suspects. Meanwhile, defendant was convicted of various crimes committed in 1999, including carnal knowledge of a juvenile, attempted possession of cocaine, and misdemeanor theft. On June 8, 2000, defendant was ordered to submit a DNA sample to the Combined DNA Index System (CODIS) of the LSP Crime Lab.
In 2003, the LSP had grant funding for DNA analysis of backlogged evidence. In December 2003, Courtney Tourre, who was working as a DNA analyst with the LSP Crime Lab, packaged the vaginal swab and blood cards taken from M.C. and Burgess's samples and sent them to Bode Technology Group, a forensic DNA laboratory in Springfield, Virginia. Pursuant to the grant, Bode Technology Group was hired to assist the LSP in examining DNA evidence.
The vaginal swab and blood profiles in this case were examined by Susan Bach of Bode Technology Group. Bach was accepted by the trial court as an expert in DNA analysis and forensic science. Bach performed testing on M.C.'s vaginal swab and compared the results to the reference sample of M.C. and Burgess. The DNA profile taken from the semen on the vaginal swab eliminated Burgess as the source of the semen.
Less than a year later, the DNA profile from the vaginal swab developed by Bode Technology Group was entered into the CODIS database and Janaki Vaidyanathan, the state administrator of CODIS and the DNA supervisor for the LSP Crime Lab, notified the Baton Rouge City Police that the DNA profile taken from the vaginal swab in the instant case matched one of the profiles in the CODIS database. The match was identified as belonging to defendant. Based on this information, an arrest warrant was prepared for defendant. Following defendant's arrest on June 19, 2007, another DNA sample was collected from him.
Alyson Saadi, who was accepted by the trial court as an expert in DNA testing, examined the reference DNA sample collected from the defendant for the LSP Crime Lab. Saadi used the report from Bode Technology of the DNA profile of the semen deposit taken from M.C.'s vaginal swab and compared that profile to the reference sample taken from defendant following his arrest. Saadi concluded that the probability of obtaining the same DNA profile from anyone other than defendant was one in 57.8 billion.
Defendant testified at trial and acknowledged his previous convictions. For each conviction, defendant offered an exonerating explanation. For his conviction of carnal knowledge of a juvenile, defendant claimed that the victim had lied about her age; for his attempted possession of cocaine conviction, defendant claimed an acquaintance had actually purchased the cocaine; and for the misdemeanor theft conviction, defendant again claimed his conviction was the result of the actions of others.
At trial, defendant testified that he had been convicted of felony theft; however, according to the presentence investigation report included in the record before us, defendant was only convicted of misdemeanor theft.
Regarding the instant offense, defendant testified he had no recollection of ever meeting M.C. Defendant explained that in 1998, he worked at a Waffle House on Airline Highway, in the vicinity of the Ten Flags Motel, which he would frequent to obtain marijuana. Defendant claimed that during his visits to the Ten Flags Motel, he would engage in casual consensual sex with women, one of whom was a Caucasian woman. The Ten Flags Motel is located near the Warren House Apartments. Defendant denied ever going to the Warren House Apartments and denied ever raping any woman. Defendant maintained that his DNA was found on M.C.'s vaginal swab because they had engaged in consensual sex.
The State called M.C. as a rebuttal witness. M.C. denied ever going to the Ten Flags Motel and engaging in sexual relations, prostitution, or drug use.
In finding defendant guilty of both offenses, the trial court noted that the case rested on a credibility determination, and that it found M.C.'s version of events more credible.
SUFFICIENCY OF THE EVIDENCE
Through his assignments of error, defendant argues the State failed to meet its burden of proof to convict him of aggravated rape and armed robbery, and the trial court erred in denying his motion for a post verdict judgment of acquittal and/or in the alternative, a new trial.
A conviction based on insufficient evidence cannot stand as it violates due process. See U.S. Const. amend. XIV ; La.Const. art. I § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see also La.C.Cr.P. art. 821(B); State v. Ordodi, 06-0207, p. 10 (La. 11/29/06), 946 So. 2d 654, 660; State v. Mussall, 523 So. 2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated in Article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La.R.S. 15:438 provides that, in order to convict, the fact finder must be satisfied the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 01-2585, p. 5 (La. App. 1st Cir. 6/21/02), 822 So. 2d 141, 144. Furthermore, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the fact finder who weighs the respective credibilities of the witnesses, and this court will generally not second-guess those determinations. State v. Arnold, 07-0362, p. 6 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1067, 1071, writ denied, 07-2088 (La. 3/7/08), 977 So. 2d 904.
Aggravated Rape
At the time of the instant offense, the applicable provision of La.R.S. 14:42 provided in pertinent part:
The statutory definition of a criminal offense is an aspect of the substantive law, and the substantive law to be applied in a criminal prosecution is that which was in effect on the date of the offense. State v. Eaker, 380 So. 2d 19, 27 (La.), cert denied, 449 U.S. 847, 101 S.Ct. 133, 66 L.Ed.2d 57 (1980). Because the charged offenses occurred in 1998, reference in this opinion is made to the definitions and penalties for the crimes as they existed in 1998.
A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal 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:
. . . .
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
Louisiana Revised Statutes 14:41(A) provided at the time of the offense that "[r]ape is the act of anal or vaginal sexual intercourse with a male or female person committed without the person's lawful consent."
Aggravated rape is a general intent crime. State v. McDaniel, 515 So. 2d 572, 575 (La. App. 1st Cir. 1987), writ denied, 533 So. 2d 10 (La. 1988). General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La.R.S. 14:10(2). The trier of fact is to determine the requisite intent in a criminal case. State v. Crawford, 619 So. 2d 828, 831 (La. App. 1st Cir.), writ denied, 625 So. 2d 1032 (La. 1993).
The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. Moreover, 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. The trier of fact's determination of the weight to be given evidence is not subject to appellate review. An appellate court will not reweigh the evidence to overturn a fact finder's determination of guilt. State v. Taylor, 97-2261, pp. 5-6 (La. App. 1st Cir. 9/25/98), 721 So. 2d 929, 932.
Viewing the evidence in the light most favorable to the prosecution, the State established that on the morning of September 24, 1998, M.C. was raped by a black male. M.C. testified that because she had her head turned and eyes closed during the encounter, she could not provide an accurate description of her assailant to the police. However, during the incident, M.C. did hear another man address her assailant as "Marice," which is the defendant's name. Further, defendant admitted to working in the vicinity of M.C.'s apartment at the time of the rape. Defendant also claimed he could have had consensual sex with M.C. at the Ten Flags Motel during one of the episodes where he obtained marijuana from that location. However, M.C. testified that she never went to the Ten Flags Motel.
The State also established that the vaginal swab of M.C. taken a short time after the rape had semen present. M.C.'s boyfriend, Burgess, was ruled out as the source of this semen. Eventually, defendant's DNA profile was found to match the DNA profile taken from M.C.'s vaginal swab.
When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So. 2d 676, 680 (La. 1984). The testimony of the victim alone is sufficient to prove the elements of the offense. State v. Orgeron, 512 So. 2d 467, 469 (La. App. 1st Cir. 1987), writ denied, 519 So. 2d 113 (La. 1988). The testimonial evidence was sufficient to establish the elements of aggravated rape, specifically the element of penetration. Louisiana Revised Statutes 14:41(B) provides that "[e]mission is not necessary" and that "any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime." See State v. Rives, 407 So. 2d 1195, 1197 (La. 1981). The victim's testimony also establishes the additional element of aggravated rape that she was prevented from resisting the act because her attacker was armed with a gun.
In finding the defendant guilty of aggravated rape, the trial court accepted that the defendant's DNA found on M.C.'s vaginal swab established that they had engaged in sexual intercourse. The trial court also found M.C.'s testimony that she had not consented to sexual intercourse, but had been raped at gunpoint, to be more credible than defendant's testimony that the two had engaged in consensual sexual relations at a location near M.C.'s apartment.
Accordingly, the evidence sufficiently supports defendant's conviction for aggravated rape, and the trial court properly denied defendant's post trial motions with respect to this conviction.
Armed Robbery
Armed robbery is defined as "the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon." La.R.S. 14:64(A). Armed robbery is a general intent crime. In general intent crimes, the criminal intent necessary to sustain a conviction is shown by the very doing of the acts that have been declared criminal. State v. Arnold, 07-0362 at 7, 970 So. 2d at 1071-72.
Parties to crimes are classified as principals and accessories after the fact. La.R.S. 14:23. Principals are "[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime. . . ." La.R.S. 14:24. Only those persons who knowingly participate in the planning or execution of a crime are principals. An individual may only be convicted as a principal for those crimes for which he personally has the requisite mental state. The State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, the defendant need not have actually performed the taking to be found guilty of a robbery. State v. Arnold, 07-0362 at 7, 970 So. 2d at 1072.
In the present case, the evidence established that defendant entered M.C.'s apartment while armed with a weapon. Defendant initially demanded money from M.C., then proceeded to rape her. When defendant ceased raping M.C. in the bedroom, he forced her at gunpoint into the living room, demanding money. M.C. could not locate her purse, which contained $10.00 in cash and her uncashed payroll check. M.C. observed that the television that had been in the living room earlier was missing. When defendant resumed raping M.C. in the living room, M.C. heard another voice call out to defendant. The circumstantial evidence established that this second male who had called out to the defendant had probably stolen the television and M.C.'s purse from the apartment while defendant raped M.C.
Viewing the evidence in the light most favorable to the prosecution, we find the evidence sufficiently establishes that defendant was involved in the commission of an armed robbery. While defendant was armed and demanded money from M.C., it is evident that her purse and television were removed by the individual who called out to defendant to leave as defendant raped M.C. in her living room. Accordingly, the evidence supports defendant's conviction for armed robbery, and the trial court properly denied defendant's post trial motions with respect to this conviction.
These assignments of error are without merit.
WAIVER OF RIGHT TO JURY TRIAL
In his first pro se assignment of error, defendant contends that the record fails to establish he made a knowing, intelligent, and voluntary waiver of his right to trial by jury.
Both the United States Constitution and the Louisiana Constitution expressly guarantee a criminal defendant the right to a jury trial. U.S. Const. amend. VI ; La.Const. art. I, §§ 16, 17. However, some criminal defendants may, pursuant to statute, waive this constitutionally guaranteed right provided the waiver of the right is knowingly and intelligently made. La.C.Cr.P. art. 780(A); State v. Allen, 05-1622, p. 7 (La. App. 1st Cir. 3/29/06), 934 So. 2d 146, 154.
A valid waiver of the right to a jury trial must be established by a contemporaneous record setting forth an apprisal of that right followed by a knowing and intelligent waiver by the accused. Waiver of this right is never presumed. See La.C.Cr.P. art. 780(A). However, prior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into the defendant's educational background, literacy, and work history. State v. Allen, 05-1622 at p. 7, 934 So. 2d at 154.
In the present case, defendant asserts the minute entries indicate his trial counsel filed a motion requesting a bench trial, but defendant argues, in pro se brief, that his counsel never discussed the motion with him.
We note that the minute entry for September 29, 2008 indicates only that defendant "waived his rights to a jury trial." The transcript of that date was not included in the original record; however, pursuant to an order of this court, the record was supplemented with that transcript. The transcript of the September 29, 2008 proceedings indicates that the trial court conducted a colloquy with defendant and ascertained that defendant understood what he was charged with and that if convicted, he would face a term of life in prison. The transcript reflects the trial court also explained that defendant had the right to a twelve-person jury, ten of whom had to vote to convict him. The trial court informed defendant he had a right to proceed to trial before jury, unless he wished to waive that right, to which defendant responded that he did. The trial court went on to ascertain that defendant was a high school graduate who could read, write, and understand English. Finally, the trial court questioned defendant whether anyone was forcing him to give up his right to go to trial by jury, and defendant responded, "No, sir." Based on that colloquy, the trial court found defendant had knowingly and intelligently waived his right to a jury trial.
After reviewing the September 29, 2008 transcript, we find the trial court apprised defendant of his right to a trial by jury and his right to waive such trial. The record indicates defendant knowingly, intelligently, and voluntarily waived that right.
This assignment of error is without merit.
EVIDENTIARY ISSUE
In defendant's second pro se assignment of error, he contends that he was "broadsided" by the introduction of evidence of which he had never been made aware. Specifically, defendant contends, "[e]vidence of pictures, statement of treatment by an unknown doctor, rape kit, credit cards, and checkbook were material and undermined the . . . verdict. [sic]"
A review of the record contradicts defendant's assertions that the defense was broadsided with these evidentiary items. On January 30, 2008, a full eight months prior to trial, the State filed answers to discovery requests into the record.
Included in this response, the State set forth the following as items it intended to introduce at the trial:
Tangible objects that the State seeks to introduce include, but are not limited to:
1. Rape kit
2. Photographs
3. Recovered contents taken from victim by defendant including, but not limited to, checks and credit cards
4. Blood reference card for Mr. Ronnie Burgess
5. Comforter
6. Victim's panties
7. Victim's shirt
8. DNA samples from defendant
Tangible objects may be inspected via appointment with the undersigned, and subsequent appointment with the undersigned and the lawful custodian of the evidence if appropriate.
The State may come into possession of other relevant evidence in the future. The State will disclose accordingly.
This discovery response, filed into the record on January 28, 2008, contradicts defendant's assertion that he was "blindsided" by the introduction of such physical items of evidence. The State clearly made defendant aware of the existence of such items. We note that defendant fails to argue he was denied access to these items for inspection prior to trial.
Next, defendant argues that he was also unaware that the victim paid for or attended psychological treatment following the incident at issue. The evidence at issue arose during the victim's testimony, when the prosecutor questioned the victim regarding whether she had been diagnosed with a disorder as a result of this incident. Defense counsel objected on the basis the State should have produced reports supporting this assertion. The trial court sustained the objection, but allowed the prosecutor to question the victim regarding whether she sought treatment following the incident. After the victim testified she had sought treatment, the prosecutor sought to establish how much money she had spent on treatment. Defense counsel again objected, attempting to assert a Brady violation and relevancy. The trial court overruled the objection following the prosecutor's argument that such evidence was relevant to the issue of whether the victim had consented to the sexual encounter.
After considering the argument by defendant, we cannot say that the State's failure to turn over tangible evidence related to the victim's psychological treatment following this incident amounted to an error. First, the State never introduced tangible evidence regarding this issue. Second, the victim's testimony regarding the psychological treatment following this incident was offered to establish a necessary element of the offense, i.e., lack of consent. Defense counsel had an opportunity to cross-examine the victim regarding this particular treatment; thus, we cannot find the trial court's ruling allowing such testimony to be introduced was in error.
This assignment of error is without merit.
REVIEW FOR ERROR
Defendant's final pro se assignment of error asks this court to review the record for any errors under La.C.Cr.P. art. 920(2). This court conducts such a review in all appeals. After reviewing this record, we have found no reversible errors present.
CONCLUSION
After careful consideration of the issues raised by the defendant and a thorough review of the record before us, we find no error in the proceedings or rulings of the trial court. Accordingly, we affirm the defendant's convictions and sentences for aggravated rape and armed robbery.