Summary
In Schwaner, the First Circuit found that N.P. Troy's "sexual abuse, chronic" medical diagnosis testimony was an expression of an opinion as to the defendant's guilt or innocence, and that this testimony should not have been allowed into evidence, but concluded that although the presentation of such opinion testimony was troubling, "we conclude that on this record, any error in allowing the presentation to the jury of evidence of Nurse Troy's opinion testimony under the ambit of a diagnosis of [the victim], was harmless beyond a reasonable doubt. "
Summary of this case from State v. D.D.Opinion
2018 KA 1012
02-28-2019
STATE OF LOUISIANA v. GREGORY ALAN SCHWANER
Warren L. Montgomery Matthew Caplan Covington, LA Counsel for Appellee, State of Louisiana Ralph S. Whalen, Jr. New Orleans, LA Counsel for Defendant/Appellant, Gregory Alan Schwaner
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany, Louisiana
Docket Number 584903
Honorable Martin E. Coady, Judge Presiding
Warren L. Montgomery
Matthew Caplan
Covington, LA Counsel for Appellee,
State of Louisiana Ralph S. Whalen, Jr.
New Orleans, LA Counsel for Defendant/Appellant,
Gregory Alan Schwaner BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. WHIPPLE, C.J.
The defendant, Gregory Alan Schwaner, was charged by bill of information with sexual battery (victim under the age of thirteen years) (count 1), a violation of LSA-R.S. 14:43.1(C)(2); and sexual battery (count 2), a violation of LSA-R.S. 14:43.1(C)(1). He pled not guilty and, following a jury trial, was found guilty of the responsive offense of sexual battery on count 1 (no finding that the victim was under thirteen), and guilty as charged on count 2. The defendant filed motions for new trial and in arrest of judgment, which were denied. On each count, the defendant was sentenced to nine years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant now appeals, designating five assignments of error. We affirm the defendant's convictions and sentences.
Count 2 was formerly count 3, but became count 2 when the charge for oral sexual battery (count 2) was nol pressed.
FACTS
Melissa Schwaner became the legal guardian of MX. (and her twin sister) after their parents died. Melissa, the sister of M.L.'s deceased father, was their biological aunt. Melissa was married to the defendant, who was M.L.'s uncle through marriage.
The victim is referred to by her initials. See LSA-R.S. 46:1844(W).
M.L. testified at trial that for about a year, from late 2015 to late 2016, when she was twelve years old and lived in Covington, the defendant molested her. According to M.L., several times a month, the defendant would touch her vagina. M.L. at trial indicated the touching started when she was twelve years old. In a Children's Advocacy Center (CAC) interview, M.L. indicated the defendant also performed oral sex on her and she performed oral sex on him. During the interview, M.L. indicated that she was not sure, but thought the touching started when she was thirteen years old.
The defendant testified at trial. He denied all allegations of sexual abuse.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the trial court erred in granting the State's motion in limine, precluding evidence of previous false allegations against him of sexual abuse.
The State sought to preclude information from a police report about a prior sexual abuse allegation against the defendant. During discovery, a St. Tammany Parish Sheriff's Office incident report was turned over to the defense by the State. The report was not allowed into evidence, but was proffered for the appellate record. The relevant aspects of the narrative contained in the report are that in December of 2008, Jessica Gilbert, a child protection investigator with the Office of Community Services, received information that M.L. and her twin sister had been sexually abused. The person of interest was the defendant. Officer Scott Davis, with the St. Tammany Parish Sheriff's Office, followed up with an investigation. Officer Davis learned that the defendant and his wife, Melissa, were the legal guardians of M.L. and her twin sister because their biological father was incarcerated and their mother had a substance abuse problem. The defendant denied any wrongdoing. M.L.'s biological father informed Officer Davis that when the twins were playing with their ten-year-old cousin, R.H., they told R.H. that the defendant forced them to perform oral sex on him. R.H. encouraged the girls to tell their father, which they did. As part of the investigation, Officer Davis obtained a secretly recorded conversation between the twins and their father. Officer Davis noted that their father dominated the conversation and that M.L. and her sister gave little to no response to his questioning. At various points of the conversation, M.L. and her sister advised their father that they did not remember the event in question. According to Officer Davis, the father got his daughters to disclose the alleged criminal activity of the defendant, but Officer Davis concluded that the girls had been "coached" into the disclosures they made. Subsequently, during forensic interviews, neither M.L. nor her sister disclosed any sexual abuse by the defendant or anyone else. Following the forensic interview, the girls were again interviewed by Investigator Gilbert and, in separate interviews, neither of the girls revealed a crime of sexual abuse by the defendant or anyone else. The defendant took a polygraph regarding the allegation, and the results were deemed inconclusive. Based on insufficient evidence, Officer Davis deemed the allegations against the defendant to be unfounded.
The defendant argues in brief that this information from a 2008 incident report should have been allowed to impeach the credibility of M.L. at trial. According to the defendant, the so-called rape shield statute, LSA-C.E. art. 412, did not apply because he was not seeking to reveal the victim's prior sexual behavior; rather, he was seeking to use evidence of prior false allegations of sexual conduct for impeachment purposes. See State v. Smith, 98-2045 (La. 9/8/99), 743 So. 2d 199, 202-03. The defendant avers that the trial court improperly concluded that the rape shield statute applied and that, as such, the defendant was denied the opportunity to present his defense. The defendant asserts that the 2008 allegations came from M.L.'s father also, but involved M.L.'s statements to R.H. According to the defendant, the defense wanted to present evidence that M.L. and R.H. had previously been involved in making false allegations against the defendant, and the defense would have also shown that Melissa "went along with the allegations, which turned out to be completely false." The defendant contends that this previous allegation, as well as Melissa's prior sexual abuse, would have "buttressed the defense's claim that Melissa overreacted to an innocent situation."
In granting the State's motion in limine, the trial court stated in pertinent part:
The pending case is distinguished from State v. Smith[. T]he victim in
[this] matter made no allegations against the defendant in 2008[;] rather[,] that was done by her deceased father. She was five-years-old and made no disclosures I understand in the forensic interview. In Smith the Court had found evidence that the victim had made false allegations of sexual abuse in the past [that] went directly to the victim's credibility and admissibility.
I find in this case that it would be highly prejudicial to allow the defendant to attempt to impeach the victim's credibility based on the prior hearsay statements of her deceased father. The limited exception to the rape shield [statute] while it was carved out in the Smith case was intended to impeach the victim's credibility based on her own statement and her own false accusations concerning sexual assault, not to attempt to impeach the victim using statements of someone else. I don't find that any exceptions of 412 are applicable and I do understand what the defense's argument is[;] however[,] this is something on the side of that but I do believe it breaches trying to come in the other way and would breach that.
In a prosecution for sexually assaultive behavior, LSA-C.E. art. 412 prohibits the introduction of evidence of the victim's past sexual behavior, with certain limited exceptions. "Past sexual behavior" is defined as sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged. LSA-C.E. art. 412(F). If a defendant wishes to offer evidence of past sexual behavior pursuant to one of the exceptions, he must file a motion stating his intent to do so. LSA-C.E. art. 412(C). The trial court must then hold a closed hearing to determine whether the offered evidence is admissible. LSA-C.E. art. 412(E). State v. Thompson, 2015-1518 (La. App. 1st Cir. 4/15/16), 2016 WL 1535160, *5 (unpublished), writ denied, 2016-762 (La. 4/13/17), 216 So. 3d 793.
Alternatively, the Louisiana Supreme Court has held that a defendant may present evidence that a victim made prior false allegations regarding sexual activity for impeachment purposes pursuant to LSA-C.E. art. 607(C). Smith, 743 So. 2d at 201-03. In Smith, the defendant was convicted of attempted indecent behavior with a juvenile. During trial, the defense counsel cross-examined the victim's mother's friend regarding similar accusations the victim had made against her cousin and then allegedly recanted. The State thereafter moved to prevent any further such questioning in accordance with LSA-C.E. art. 412. The trial court applied Article 412 and excluded any evidence of prior false allegations. The Supreme Court reversed, however, and held that Article 412 does not preclude the introduction of evidence of the victim's prior false accusations for impeachment purposes. Smith, 743 So. 2d at 202-03. The Supreme Court concluded that when a defendant seeks to introduce evidence that the victim made prior false allegations of molestation, the issue is one of credibility, and Article 412 is inapplicable. Smith, 743 So. 2d at 202-03; see also Thompson, 2016 WL 1535160 at *6. The Smith court stated:
When a defendant seeks to introduce evidence that the victim has made such prior false accusations, the trial judge must evaluate that evidence by determining whether reasonable jurors could find, based on the evidence presented by defendant, that the victim had made prior false accusations and whether all other requirements of the Code of Evidence have been satisfied.Smith, 743 So. 2d at 203-04.
Thus, two requirements must be satisfied before evidence of prior false accusations of sexual misconduct can be considered as impeachment evidence. First, the activity must be of a sexual nature. Second, there must be evidence that the statement is false. See State v. Richard, 2001-1112 (La. App. 1st Cir. 2/15/02), 812 So. 2d 737, 739, writ denied, 2002-1264 (La. 11/22/02), 829 So. 2d 1038. Assuming this initial burden is met, all other standards for the admissibility of evidence apply. Smith, 743 So. 2d at 203; Thompson, 2016 WL 1535160 at *6.
Constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So. 2d 443, 449 (La. 1976). "Relevant evidence" is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than without the evidence. LSA-C.E. art. 401. The trial judge, in deciding the issue of relevancy, must determine whether the evidence bears a rational connection to the fact at issue in the case. State v. Williams, 341 So. 2d 370, 374 (La. 1976). Except as limited by the Code of Evidence and other laws, all relevant evidence is admissible and all irrelevant evidence is inadmissible. LSA-C.E. art. 402. Although relevant, evidence may nonetheless be excluded if the probative value is substantially outweighed by its prejudicial effect. See LSA-C.E. art. 403. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Easley, 432 So. 2d 910, 912 (La. App. 1st Cir. 1983); Thompson, 2016 WL 1535160 at *6.
In Smith, the victim admitted that she made prior accusations of improper sexual behavior and two witnesses corroborated that fact. At least one independent witness testified that the victim recanted those accusations. Smith, 743 So. 2d at 200-01, 203. Compare State v. Gros, 2017-374 (La. App. 5th Cir. 2/21/18), 239 So. 3d 448, 452-54, writ denied, 2018-0473 (La. 12/17/18), ___ So. 3d ___ (where no evidence of recantation was offered). In the instant case, in both the 2008 forensic interview at the CAC and the interview by Investigator Gilbert, the five-year-old M.L. never alleged any wrongdoing by the defendant. Any allegations of wrongdoing, per the incident report, came from the hearsay statements of R.H. saying what M.L. and her sister had allegedly told him; as well as the hearsay statements of M.L.'s now deceased father. Thus, unlike in Smith, the defendant herein offered no evidence that M.L. ever retracted or recanted prior allegations of abuse. Moreover, despite the defendant's argument that the incident impacted M.L.'s credibility, he never showed, or even attempted to show, that her allegations were false. The defendant's mere assertion that M.L.'s allegations were false did not meet the Smith test for admissibility. See Gros, 239 So. 3d at 453; State v. Wallace, 2000-1745 (La. App. 5th Cir. 5/16/01), 788 So. 2d 578, 587, writ denied, 2001-1849 (La. 5/24/02), 816 So. 2d 297.
The trial court's ultimate ruling excluding the evidence resulted from the finding that any probative value of the evidence was greatly outweighed by its prejudicial effect. See LSA-C.E. art. 403. We agree. See Thompson, 2016 WL 1535160 at *7. Furthermore, the exclusion of this information from a 2008 incident report did not deprive the defendant of presenting a defense. Under compelling circumstances, formal rules of evidence must yield to a defendant's constitutional right to confront and cross-examine witnesses and to present a defense. Normally inadmissible hearsay may be admitted if it is reliable, trustworthy, and relevant, and if to exclude it would compromise the defendant's right to present a defense. See U.S. Const. amend. VI; La. Const. art. I, § 16; State v. Van Winkle, 94-0947 (La. 6/30/95), 658 So. 2d 198, 201-202; State v. Gremillion, 542 So. 2d 1074, 1078 (La. 1989). The trial court's ruling on the motion in limine did not prevent the defendant from confronting and thoroughly cross-examining M.L. and Melissa. The defendant even recalled Melissa in his case-in-chief. More importantly, the defendant himself testified and denied the allegations made by M.L. See State v. Johnson, 2008-2352 (La. App. 1st Cir. 5/8/09), 2009 WL 1272309, *8 (unpublished).
Thus, based on the evidence presented by the defendant, reasonable jurors could not have found that M.L., the victim herself, had made prior false accusations. Compare Smith, 743 So.2d at 203. See also State v. Freeman, 2007-0470 (La. App. 1st Cir. 9/14/07), 970 So. 2d 621, 624-26, writ denied, 2007-2129 (La. 3/14/08), 977 So. 2d 930.
We see no reason to disturb the trial court's ruling. We note initially that the trial court did not find the rape shield statute applicable, as claimed by the defendant. Rather, it is clear from its ruling that the trial court found that M.L. had made no allegations against the defendant and that, under the balancing test of LSA-C.E. art. 403, her deceased father's hearsay statements would have been too prejudicial to allow into evidence.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues the trial court erred in denying the defendant the opportunity to testify on redirect examination about a purportedly critical subject brought up by the prosecution on cross-examination.
On the cross-examination of the defendant, the following exchange took place:
Q. And this is the first time that she has flown off the handle about something like this, that Saturday morning, isn't it?
A. Say that again? I'm sorry.
Q. That Saturday morning when she came in and you were in [M.L.'s] bed, that was the first time she had reacted like that, isn't it?
A. No. It's not.
Q. That's not the first time she accused you of sexual --
A. No.
On the redirect examination of the defendant, the following exchange took place:
Q. Now, the prosecutor asked you if this was the first time that Melissa has done something like that, that is, accuse you of child abuse and you said no. This happened before, didn't it?
A. It did.
At this point, the prosecutor asked to approach and, at a bench conference outside the hearing of the jury, the prosecutor asked if what defense counsel was asking the defendant involved the 2008 case. Defense counsel replied, "It absolutely does." Defense counsel argued the prosecutor had "opened the door" when the prosecutor asked the defendant "if she had ever done it before and he said yes." The prosecutor responded that Melissa made no accusation in the 2008 case. The trial court ruled that the door had not been opened.
When testimony resumed, defense counsel asked the defendant, "Had Melissa participated in the past in false allegations against you?" The prosecutor objected and another bench conference ensued. Defense counsel sought to get into evidence through the defendant's testimony that Melissa had participated in the 2008 investigation against the defendant and defense counsel just wanted "them to know that and it was false." The trial court and the prosecutor (a second prosecutor) both noted that there was never any disclosure by M.L. Defense counsel replied that he needed to let the jury know that Melissa overreacted "to this thing and it turned out to be false." With the prosecutor's question of whether Melissa had flown off the handle like that before, defense counsel argued, "it is just unfair to have to leave it there with him saying she flew off the handle now they know there is a previous allegation they need to know that case was dropped nothing came of it." The trial court noted that from the prosecutor's question, the jury did not know "where that was going to go or why she flew off the handle or what was going to happen." The final exchange then took place:
BY THE COURT: You already have that she blew up on another occasion. Let the jury figure that out. I will not let you go through all of what this other thing was with the deceased father who brought it.
* * * * *
BY THE COURT: Let me finish. You would still have a loose end because we're not going to go into every bit about what happened. BY [DEFENSE COUNSEL]: All I want to say was that she suspected you of child abuse, yes. Was there an investigation, yes. Were you -- was it resolved, were you ever charged, no. That's it.
* * * * *
BY THE COURT: No. Still, I note your objection but no let's go on to something else.
The defendant asserts in brief that, because of the trial court's earlier ruling on the State's motion in limine, he was not allowed to reveal to the jury that the testimony adduced by the prosecutor "had not only an innocent explanation, but one that called into question the credibility" of M.L. and Melissa.
The trial judge has wide discretion in controlling the examination of witnesses and a judge's ruling in this regard is to be disturbed only on a showing of abuse of discretion. See State v. Murray, 375 So. 2d 80, 84 (La. 1979); State v. Lopez, 484 So. 2d 217, 222 (La. App. 4th Cir. 1986). Despite the trial court's earlier ruling that evidence of the 2008 case was inadmissible, defense counsel again sought to adduce testimony from the defendant that M.L. had made previous false allegations about the defendant. As such, the trial court did not abuse its discretion in not allowing such testimony.
We agree as well with the trial court's finding that the prosecutor did not "open the door" during cross-examination of the defendant. A witness may be cross-examined on any matter relevant to any issue in the case. LSA-C.E. art. 611(B); State v. Asberry, 99-3056 (La. App. 1st Cir. 2/16/01), 808 So. 2d 472, 478, writ denied, 2001-0749 (La. 3/8/02), 810 So. 2d 1154. Further, to attack the credibility of a witness, a party may examine him concerning any matter having a reasonable tendency to disprove the truthfulness or accuracy of his testimony. See LSA-C.E. art. 607(C).
The defendant denied on direct examination that he had sexually abused M.L. in any way. Accordingly, the prosecutor, on cross-examination, was entitled to challenge the accuracy of these assertions. M.L. had testified earlier that after Melissa told the defendant to get out of M.L.'s bed, M.L. heard Melissa and the defendant arguing and that Melissa told the defendant to get out because she knew something was wrong. The prosecutor, in asking the defendant about Melissa finding him in bed with M.L., questioned whether this was the first time Melissa had ever reacted this way, i.e., overreacted or "flew off the handle"; the prosecutor did not ask/state, "This is not the first time this happened before, right?" as a means to otherwise allude to the 2008 allegations of abuse. Instead, it appears that the prosecutor was trying to make the point that this situation, where the defendant was found lying in bed with his niece, was atypical or so out of the ordinary that it could not be explained away with excuses; or that this was not a unique situation and, if not, whether over the last year Melissa had seen similar behavior from the defendant, gotten upset, and told the defendant to leave the house. At any rate, there is nothing in the prosecutor's questioning of the defendant to suggest she was asking him anything about the 2008 case.
The trial court is afforded great discretion in the admission of evidence, and the defendant has made no showing that the trial court abused its discretion in excluding any testimony about the 2008 case. See State v. Tucker, 49,950, 49,822 (La. App. 2nd Cir. 7/8/15), 170 So. 3d 394, 414, writ not considered, 2015-1517 (La. 3/9/18), 237 So. 3d 1193. Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
In his third assignment of error, the defendant argues the trial court erred in denying his motion for a continuance, requesting additional time to engage an expert.
On the day trial was to begin, March 26, 2018, the defendant filed a motion to recuse and a motion to continue. Another judge considered the motion to recuse, which was denied. The trial judge in the instant case noted that the "matter was a priority trial to begin this morning." Defense counsel sought a continuance for the first time on this same day (March 26, 2018) to retain Dr. Alicia Pellegrin as an expert for the defendant.
In brief and at the hearing on the motion to continue, defense counsel pointed out that in the child custody case of C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So. 3d 16, 25-26 the Louisiana Supreme Court had provided unfavorable dicta regarding the methodology and conclusions of Nurse Ann Troy, who in the instant matter had examined M.L. at Children's Hospital and testified at trial. In particular, at the hearing on the motion to recuse, defense counsel noted:
I was unaware that the State intended to call Nurse Anne Troy to the stand. I am familiar with Nurse Troy. I have tried within the last year or so a case involving her. I am also familiar with a Louisiana Supreme Court decision, initials that I forget, CMJ versus others, but I have provided them for you and opposing counsel a copy of that
opinion.
In that opinion the Supreme Court is critical of the methods and conclusions of Nurse Troy and adopted instead those of Dr. Alicia Pellegrin. In my recent trial I was allowed to call Dr. Pellegrin. That trial resulted in an acquittal and Dr. Pellegrin's testimony consisted largely of criticizing the methods and conclusions of Nurse Troy. I would like to do that in this case.
And in addition I spoke yesterday for the first time with the guardian, the aunt, foster parent, of the victim, alleged victim in the case and I am advised that there was [an] approximately four hour long period of, in fact, interrogation by the aunt after she walked into a room and saw her husband in the bunk bed of the alleged victim in the case and reacted, I think over reacted to that situation and then proceeded to interrogate the girl for a period of four hours. I think Dr. Pellegrin would testify that what happens when these things are initially reported is significant, the context in which the first questioning is done is very, very significant in terms of the believability of the testimony of the alleged victim in the case.
[From our prospective] Dr. Pellegrin's testimony is absolutely critical to the case. She would be available at a future date. She is not available this week and for those reasons we have asked that the Court continue this matter to allow us to engage Dr. Pellegrin and have her testify, not only testify at trial but have her here for the testimony of the State's expert which we are entitled to and then be able to comment on the methods and conclusions of the State's expert, Nurse Troy.
The prosecutor objected to the continuance, arguing that even if Dr. Pellegrin were available, she would not be able to "testify or opine on the things [d]efense counsel is saying he needs her to testify to." That is, defense counsel sought to elicit testimony from Dr. Pellegrin regarding the credibility of M.L., and such testimony is inadmissible because it is within the purview of the factfinder. Defense counsel, according to the prosecutor, had "not given any reasons that show the necessity and his inability to proceed without Dr. Pellegrin."
In denying the motion to continue, the trial court stated in pertinent part:
This matter was set as a priority. It has been on the trial docket in deference to the defense, it wasn't a priority until recently, I think two settings ago we said let's skip a setting, defense wasn't at that time ready. We said we'd set it here, we need to get it done at this point. So, it's not a new case. The discovery has been provided I understand for several months, all of it, before. This issue whether what [Dr.] Pellegrin can do not do, at this late date, I don't know. I am sure she could have some opinion about something in the defense about delayed reporting.
As mentioned in chambers I have been informed the State will
be bringing the case, she can explain what delayed reporting is and opine on that but she is not going to be opining on the ultimate issue. Nor can any expert do that as the State has pointed out. We will certainly see -- I don't see that the defense's motion for continuance is warranted and certainly the State's expert can be cross examined, [defense counsel] is a very experienced attorney and experienced in this field as he stated and he certainly if he feels that expert witness is going somewhere that she doesn't need to go, he can bring that out to the jury in his cross examination. And certainly could have hired an expert prior to this date if he felt it was necessary.
Louisiana Code of Criminal Procedure Article 707 provides:
A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice.
Under LSA-C.Cr.P. art. 709(A), a motion for a continuance based upon the absence of a witness shall state all of the following:
(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial.
(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.
(3) Facts showing due diligence used in an effort to procure attendance of the witness.
The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge and a reviewing court will not disturb such a determination absent a clear abuse of discretion. LSA-C.Cr.P. art. 712; State v. Strickland, 94-0025 (La. 11/1/96), 683 So. 2d 218, 229. Whether the refusal of a motion for continuance is justified depends on the circumstances of the case. Generally, the denial of a motion for continuance is not grounds for reversal absent a showing of specific prejudice. State v. Lane, 2015-0064 (La. App. 1st Cir. 11/9/15), 2015 WL 6951423, *6 (unpublished), writ denied, 2015-2248 (La. 3/24/16), 190 So. 3d 1190.
We see no reason to disturb the trial court's denial of the motion for a continuance. The defendant alleges in brief that he learned the State would call Nurse Troy as a witness "only ten days before trial." Defense counsel filed his motion to continue on the day the trial was set to begin (trial began the next day), and, as such, his motion was untimely under LSA-C.Cr.P. art. 707. Moreover, medical records had been provided during pre-trial discovery, via a stipulation for reciprocal discovery. The trial court noted in its denial of the motion for a continuance that all of the discovery had been provided for several months.
At the hearing on the motion for continuance, defense counsel failed to show the materiality of Dr. Pellegrin's testimony, as well as the necessity of Dr. Pellegrin's presence at trial. Instead, based on discounted testimony of Nurse Troy and the adoption of the conclusions of Dr. Pellegrin by the Supreme Court several years prior, defense counsel simply asserted that, similarly, he would like to use Dr. Pellegrin's testimony to criticize the methods and conclusions of Nurse Troy. Defense counsel further opined that Dr. Pellegrin's testimony was critical to the case. According to defense counsel, Dr. Pellegrin's testimony was needed to place the initial reporting of sexual abuse in its proper context, namely to discuss how the manner in which "the first questioning is done is very, very significant in terms of the believability of the testimony of the alleged victim in the case." In other words, defense counsel sought to have Dr. Pellegrin undermine the credibility of M.L. Such expert testimony would have constituted an impermissible opinion as to the guilt or innocence of the accused. See LSA-C.E. art. 704. We also agree with the trial court's assessment that defense counsel could have hired another expert prior to the start of trial if he had felt it was necessary.
The defendant has made no showing that Dr. Pellegrin's presence at trial was a necessity or "critical" to his defense. See LSA-C.Cr.P. art. 709(A); State v. Ballard, 2010-1026 (La. App. 1st Cir. 2/14/11), 2011 WL 491047, *6 (unpublished), writ denied, 2011-0447 (La. 9/23/11), 69 So. 3d 1154. Accordingly, on the record before us, we find no abuse of discretion by the trial court in denying the motion for continuance.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 4
In his fourth assignment of error, the defendant argues that his motion for new trial should have been granted. Specifically, the defendant contends the motion for new trial should have been granted because of the trial court's erroneous rulings on his motion in limine, motion for continuance, and objections made during the proceedings.
The defendant's arguments regarding the granting of the State's motion in limine and the denial of the defendant's motion for a continuance have already been addressed in, respectively, the first and third assignments of error and were found to be without merit. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial on these grounds. The defendant also complains the prosecution "opened the door" during its cross-examination of him, yet he was not allowed to provide evidence of the previous false allegations against him. This issue was addressed in the second assignment of error and likewise found to be without merit.
While the following argument was not made at the post-trial hearing on the motion for new trial and not explicitly set forth in his written motion for new trial, the defendant points out in brief that Nurse Troy testified as to the ultimate issue and that he objected to this at trial. Following is the relevant testimony of Nurse Troy on direct examination:
In his written motion for new trial, the defendant argued in paragraph 4: "Counsel was denied the opportunity by this Court to engage Dr. Pellegrin, but was assured by the Court and the prosecution that her testimony would be limited in such a way as not to unfairly prejudice the defendant. In spite of these assurances, Troy was questioned and offered opinions on matters which were beyond the proper scope of her testimony, testifying to forsensic [sic] issues instead of confining her testimony to medical issues."
Q. What did you learn from [M.L.] during this incident history?
A. She told me that Greg, her adopted father/uncle had sexually abused her by putting his penis in her mouth, that it was wet, clothes were off. He had just his shorts on when he was in the room. I always ask kids what is the saddest thing for you about this because sometimes kids look very flat when they are giving a history and she said the saddest thing was talking about it. She had to tell her aunt because she found out.
* * * * *
Q. Okay. I want to turn to the assessment page, what is the purpose of the assessment page?
A. In medicine, we get a subjective history from patients, we get physical findings then we compare those and we make differential diagnoses, ruled in or out and then make a final diagnosis. So, this would be the place where we would document that, the history provided to me, what the physical exam showed, what lab was pending and then my diagnosis.
Q. What was your assessment in this case?
A. You're asking my medical diagnosis.
Q. Yes, ma'am.
A. That it was a sexual abuse, chronic.
On cross-examination, Nurse Troy testified, "It is a forensic medical diagnosis because we are in the capacity of getting forensic histories, however I don't speak to the ultimate truth." She also indicated on cross-examination that she was not there to tell the jury as a matter of fact that sexual abuse occurred to M.L.
Shortly thereafter, but not immediately following Nurse Troy's testimony (about four more pages of testimony) that she found there was sexual abuse, defense counsel objected to Nurse Troy's testimony that she diagnosed M.L. with chronic sexual abuse. Specifically, defense counsel argued to the trial court outside of the presence of the jury:
Judge I am sorry to keep doing this but I have to make this record clear, in spite of representations by the prosecution that this woman's testimony was going to be pretty simple and straight forward, she has now made a diagnosis of sexual abuse, chronic and that's exactly what I was afraid of. It is exactly why I needed Dr. Pellegrin and I think Your Honor had told us that if that sort of thing occurred during the trial you would declare a mistrial, so once again
The trial court informed defense counsel he could address this on cross-examination and that Nurse Troy had made a diagnosis with no physical findings based on an interview; as such, the trial court noted the objection and denied the motion for mistrial.
The State argues in brief that defense counsel's objection was not contemporaneous. We do not agree. While the objection did not immediately follow the complained of testimony, it was close enough in time to put the trial court on notice of a possible issue with Nurse Troy's testimony.
There are two purposes behind LSA-C.Cr.P. art. 841(A)'s contemporaneous objection rule: (1) to put the trial court on notice of the alleged irregularity or error, so that the court can cure the error; and (2) to prevent a party from gambling for a favorable outcome and then appealing on errors that could have been addressed by an objection if the outcome is not as hoped. State v. Lanclos, 2007-0082, 2007-0716 (La. 4/8/08), 980 So. 2d 643, 648; see also LSA-C.E. art. 103(A)(1). What our rules require is that counsel bring an error to the attention of the trial judge within a reasonable time after the error occurs so that he can cure the error or declare a mistrial. State v. Williams, 2003-1773 (La. App. 3rd Cir. 6/2/04), 878 So. 2d 765, 770.
Thus, while defense counsel did not instantaneously object following the objectionable testimony, he did object only a short time later and also while Nurse Troy was still under direct examination. See State v. Berry, 94-249 (La. App. 5th Cir. 10/25/94), 645 So. 2d 757, 760. Cf. Williams, 878 So. 2d at 769-71 (finding defendant's objection and motion for a mistrial untimely where made after a substantial amount of testimony had occurred, two courtroom breaks were taken, and more than one hour had passed between the time of the testimony and the objection); cf. State v. Jones, 99-1185 (La. App. 5th Cir. 9/22/00), 769 So. 2d 708, 716 (finding that despite defendant's objection challenging statements being sustained, defendant's motion for mistrial regarding this issue was untimely where it was not made until after six of the State's witnesses had testified); cf. State v. Miskell, 95-1568 (La. App. 4th Cir. 5/15/96), 676 So. 2d 1092, 1096, writ denied, 96-1564 (La. 12/13/96), 692 So. 2d 369 (finding motion for mistrial based on detective's testimony not timely where motion was made by defense long after detective had testified). Accordingly, in this case, the issue has been preserved for appellate review.
Louisiana Code of Evidence article 702 dictates the admissibility of expert testimony. It provides that "if scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue," than "[a] witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise." State v. Higgins, 2003-1980 (La. 4/1/05), 898 So. 2d 1219, 1239, cert. denied, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005); see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and State v. Foret, 628 So. 2d 1116 (La. 1993). Notably, the Supreme Court has placed limitations on this codal provision in that, "expert testimony, while not limited to matters of science, art or skill, cannot invade the field of common knowledge, experience and education of men." State v. Stucke, 419 So. 2d 939, 945 (La. 1982); State v. Young, 2009-1177 (La. 4/5/10), 35 So. 3d 1042, 1047, cert. denied, 562 U.S. 1044, 131 S. Ct. 597, 178 L.Ed.2d 434 (2010).
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an. expert witness shall not express an opinion as to the guilt or innocence of the accused. LSA-C.E. art. 704. We agree with the defendant that Nurse Troy's testimony that she diagnosed M.L. with "sexual abuse, chronic" clearly was an expression of an opinion as to the defendant's guilt or innocence. The courts will exclude extreme expressions, even by experts, on matters such as how the case should be decided or whether the defendant is guilty. See LSA-C.E. art. 704; State v. Wheeler, 416 So. 2d 78, 80 (La. 1982); see State v. Chauvin, 2002-1188 (La. 5/20/03), 846 So. 2d 697, and State v. Vidrine, 2008-1059 (La. App. 3rd Cir. 4/29/09), 9 So. 3d 1095, 1111, writ denied, 2009-1179 (La. 2/26/10), 28 So. 3d 268. Accordingly, we agree with the defendant that this impermissible testimony should not have been allowed into evidence. See Foret, 628 So. 2d at 1129-31; State v. Ockman, 2016-1615 (La. App. 1st Cir. 9/15/17), 2017 WL 5643546, *6-9 (unpublished), writ denied, 2017-1739 (La. 5/11/18), 241 So. 3d 1014.
Notwithstanding the impermissibility of such testimony, error resulting from the improper admission of an expert's opinion concerning the ultimate issue of a defendant's guilt is subject to a harmless error analysis. State v. Trahan, 93-1116 (La. App. 1st Cir. 5/20/94), 637 So. 2d 694, 706. The proper analysis for determining harmless error in such a situation 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 unattributable to the error. Id. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081, 124 L. Ed. 2d 182 (1993).
The record reflects that Melissa found the defendant in bed with M.L. on November 12, 2016, a Saturday morning, and the defendant admitted to as much in his own testimony. M.L.'s bed was a loft bed (namely the top portion only of a bunk bed) and was about five feet off the ground, requiring a ladder to get into it. The defendant testified he climbed into bed with M.L. to wake her up and to talk to her about getting breakfast started. The defendant was wearing underwear. M.L.'s bedroom door was almost closed. When Melissa walked in the room, according to the defendant, both the defendant and M.L. "poked" their heads over the bed railing to see who it was. Melissa approached the defendant and told him to get out of M.L.'s bed. She then told the defendant that he needed to leave the house. The defendant insisted nothing was going on. The defendant left his house and has not returned since then; Melissa would not allow the defendant to have any contact with M.L.
The defendant, who was fifty years old at the time, never explained why he could not have awakened or talked to thirteen-year-old M.L., without climbing into her bed and lying down with her. He also never explained why, if he had done nothing wrong, he left his own home. When asked on cross-examination if he told Melissa he was not leaving his house because he had not done anything, the defendant replied: "No. I did not. She asked me to leave."
M.L. testified in some detail of the defendant's sexual abuse of her over a period of about a year. M.L. described what the defendant had been doing on the Saturday morning Melissa had found the defendant in M.L.'s bed. Her testimony was that the defendant lay down next to her. While M.L. was on her back, the defendant put his hands on top of her hands. The defendant moved one of her hands to his penis, underneath his underwear. At the same time, the defendant began rubbing M.L.'s vagina, under her clothes. The defendant stopped what he was doing when Melissa walked in.
According to M.L., the defendant had started touching her sexually when she was twelve years old, and the touching occurred about twice a week. In September of 2015, Melissa had gone on a two-week mission trip to Africa. During this time, according to M.L., the defendant sexually abused her in various places, like the camper outside of their house, M.L.'s bathroom, and the defendant's and Melissa's bedroom.
M.L. provided similar information regarding the defendant's prolonged sexual abuse in her CAC interview. In her interview, she indicated that the defendant touched her vagina with his hand five to six times a month and that this happened sometimes in the morning and sometimes at night. M.L. also indicated that the defendant made her put her mouth on his penis and that he would push her head down. She also indicated the defendant performed oral sex on her. M.L. said the defendant told her not to tell anyone or he would get in serious trouble. She said the defendant had been doing this to her for about a year, and she thought she might have been thirteen years old the first time the defendant touched her.
The day after the Saturday morning incident, Melissa met the defendant at a Wal-Mart in Covington. According to Melissa, the defendant told her he was in bed with M.L. because he had a headache, and she was rubbing his head. When she asked the defendant if he "did it," he did not deny the allegations. Melissa told the defendant "we could keep playing the game but you know that I know the truth so, we could move forward."
On cross-examination, the defendant was asked about talking to Melissa at Wal-Mart and testified that he did not remember the conversation. When asked by the prosecutor if it was possible that he had admitted to the sexual abuse, the defendant replied, "Can't really say."
Based on all of the foregoing testimonial evidence adduced at trial and the CAC interview, the defendant was found guilty of two counts of sexual battery. Although the presentation of such opinion testimony is troubling, we conclude that on this record, any error in allowing the presentation to the jury of evidence of Nurse Troy's opinion testimony under the ambit of a diagnosis of M.L., was harmless beyond a reasonable doubt. See LSA-C.Cr.P. art. 921; Sullivan, 508 U.S. at 279, 113 S. Ct. at 2081.
Accordingly, this assignment of error is also without merit.
ASSIGNMENT OF ERROR NO. 5
In his fifth assignment of error, the defendant argues that his two convictions for the same crime of sexual battery violated double jeopardy.
The defendant filed a post-trial motion in arrest of judgment, arguing that the jury convicted him twice for the same offense. In brief and at the hearing, the defendant averred that, since the jury returned the responsive offense of sexual battery on count 1, i.e., not finding that M.L. was under thirteen years old, both counts were for sexual battery and, as such, the result was that he was found guilty of the same offense twice in the same trial. The trial court denied the motion, finding no double jeopardy violation.
The defendant's argument is baseless. Double jeopardy provisions protect an accused not only from a second prosecution for the same offense, but also multiple punishments for the same criminal act. U.S. Const. amend. V; La. Const. art. 1, § 15; LSA-C.Cr.P. art. 591; State v. Monroe, 2010-0194 (La. App. 4th Cir. 12/8/10), 53 So. 3d 626, 633, writ denied, 2011-0061 (La. 5/6/11), 62 So. 3d 123. See Blockburger v. United States, 284 U.S. 299, 301-03, 52 S. Ct. 180, 181-82, 76 L. Ed. 306 (1932); State v. Frank, 2016-1160 (La. 10/18/17), 234 So. 3d 27, 33-34 (finding protections against double jeopardy fall within the analytical framework set forth in Blockburger and Louisiana courts need apply only that framework in analyzing questions of double jeopardy).
It is well settled that an accused who commits separate and distinct offenses during the same criminal episode or transaction may be prosecuted and convicted for each offense without violating the prohibition against double jeopardy. State v. Anderson, 2010-779 (La. App. 5th Cir. 3/27/12), 91 So. 3d 1080, 1089. See State v. Jenkins, 45,873 (La. App. 2nd Cir. 1/26/11), 57 So. 3d 405, 408-10. Each time the defendant in the instant case completed the act of touching M.L.'s vagina, whether in his bed, her bed, the bathroom, or the camper, or whether it was over or under her clothes, the defendant engaged in a separate and distinct act. As already discussed, there was sufficient evidence presented to establish that the defendant sexually abused M.L. several times a month for a year; as such, there were clearly at least two distinct acts of sexual battery committed by the defendant. See State v. Urena, 2013-1286 (La. App. 3rd Cir. 5/7/14), 161 So. 3d 701, 707-08, writ denied, 2014-1603 (La. 4/10/15), 164 So. 3d 829.
The Blockburger test does not support the defendant's assertion of double jeopardy. See State v. Murray, 2000-1258 (La. 9/18/01), 799 So. 2d 453 (per curiam). The defendant was charged with committing the crime of sexual battery on two distinct occasions, each punishable separately. Accordingly, he was never placed in double jeopardy. See Monroe, 53 So. 3d at 634.
This assignment of error is also without merit.
CONVICTIONS AND SENTENCES AFFIRMED.