Opinion
NO. 2016–KA–1192
10-18-2017
STATE of Louisiana v. Tyronne WILLIAMS
Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY, Donna Andrieu, ASSISTANT DISTRICT ATTORNEY, Christopher J. Ponoroff, ASSISTANT DISTRICT ATTORNEY, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Sherry Watters, LOUISIANA APPELLATE PROJECT, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown )
Judge Roland L. Belsome In this criminal appeal, the defendant, Tyronne Williams, challenges his conviction for one count of aggravated rape. For the following reasons, we affirm.
PROCEDURAL HISTORY
On August 2, 2012, the State indicted the defendant, Tyronne Williams, for the August 30, 1994, aggravated rape of M.J., a violation of La. R.S. 14:42. The defendant later pleaded not guilty at his arraignment. The defendant was initially found incompetent to stand trial by a sanity commission. After a second competency hearing, the defendant was declared competent to proceed. The trial court later denied the defendant's oral motion for self-representation in open court after finding that he did not meet the minimum requirements under Faretta .
Throughout the record, the defendant's name is spelled interchangeably "Tyronne" and "Tyrone."
The initials of the alleged victims of sexual abuse are used under the authority of La. R.S. 46:1844(W)(3).
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, the United States Supreme Court recognized a defendant's Sixth Amendment right to conduct his own defense by making a knowing and voluntary waiver of his right to counsel and thereby asserting his right to represent himself. See State v. Mathieu, 10-2421, p. 6 (La. 7/1/11), 68 So.3d 1015, 1018.
Shortly before trial, the State filed its Prieur notice of intent to introduce "other crimes evidence." Following a hearing, the trial court denied the State's notice to introduce the "other crimes evidence" as untimely. The State sought supervisory review of the adverse ruling. This Court denied the State's writ application. Subsequently, the trial was continued by more than two months, and a Prieur hearing was conducted to determine the admissibility of the "other crimes evidence" identified in the State's earlier notice. Once again, the trial court ruled the evidence was untimely and therefore inadmissible. However, on supervisory review, this Court granted writs and reversed that ruling. This Court held that the State's notice was timely, in light of the continuance of trial, and the Prieur evidence was admissible pursuant to La. C.E. art. 412.2.
State v. Prieur , 277 So.2d 126 (La. 1973).
See State of Louisiana v. Tyronne Williams, unpub., 2015–1316 (La. App. 4 Cir. 12/7/15).
See State of Louisiana v. Tyronne Williams, unpub. 2016–1076 (La. App. 4 Cir. 2/19/16).
As a result of this Court's admission of the Prieur evidence, the defense moved to suppress the State's evidence on grounds that it was unduly prejudicial. The trial court denied the motion, correctly holding that it was bound by this Court's prior ruling regarding the Prieur evidence. On review, this Court denied the defendant's writ application and the Louisiana Supreme Court denied the defendant's application for supervisory review.
State of Louisiana v. Tyronne Williams , unpub. 2016–0186 (La. App. 4 Cir. 2/23/16).
State of Louisiana v. Tyronne Williams , 2016–330 (La. 2/24/16), 187 So.3d 464.
After a trial, the defendant was found guilty as charged by a unanimous jury. The defendant's post-trial motions were heard and denied. The defendant waived sentencing delays and the court sentenced him to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. This timely appeal followed.
FACTS
In 1994, M.J. was raped at gunpoint. At approximately 11:00 p.m., on August 30, 1994, M.J. was walking to Jessie's restaurant to buy a chicken dinner at their night window. While in line, the defendant, whom she had seen passing through the neighborhood, approached her with a firearm. Believing that she was being robbed, M.J. relinquished her money and jewelry to the defendant. Although he took the jewelry, the defendant explained that he did not want the money or the jewelry; he "wanted" her. The defendant threatened to kill M.J. if she screamed. He also threatened the people in line, who were coaxing him to leave M.J. alone. Next, the defendant led M.J. to the backyard of an abandoned neighborhood home, where he forced her to remove her clothes and raped her. At some point, the defendant pulled up his pants and ran away. At that time, M.J. ran to the front yard, where she eventually encountered a police officer, Sergeant Kevin Williams, and informed him of the rape.
M.J. testified that the defendant had asked her before if she had a boyfriend, to which she responded in the affirmative. On the day of the rape, while passing the defendant on her way to Jessie's, he asked her again about her boyfriend.
After the investigating officer, Detective Joseph Lorenzo, drove M.J. to the location of the rape, she was transported to the hospital for a rape examination. The victim could not provide the police with the defendant's name because she did not know him, other than seeing him in the neighborhood. Consequently, the police were unable to apprehend the defendant until May of 2012 when Detective Kurt Coulon learned of a CODIS match linking the defendant's DNA to the 1994 incident. As a result of the DNA match, a search warrant for the defendant's DNA was obtained and the defendant was arrested for the crime.
ERRORS PATENT
A review for errors patent on the face of the record reveals none.
DISCUSSION
On appeal, the defendant raises four assignments of error regarding: 1) competency to stand trial, 2) the right to self-representation, 3) the erroneous admission of other crimes evidence, and 4) improper closing argument.
COMPETENCY TO STAND TRIAL
In his first assignment of error, the defendant argues that the trial court abused its discretion when finding him competent to stand trial. In particular, the defendant argues that he was not capable of aiding in his defense due to his belief that he is a Moor, who is not subject to the laws of the United States.
Generally, a person who suffers from a mental disease or defect, which renders him incapable of understanding the nature and object of the proceedings against him, of consulting with counsel, and of assisting in preparing and conducting his defense, may not be subjected to trial. La. C.Cr.P. art. 641 ; State v. Rogers , 419 So.2d 840, 843 (La. 1982) (citing Drope v. Missouri , 420 U.S. at 171, 95 S.Ct. at 903, and State v. Bennett , 345 So.2d 1129, 1136-38 (La. 1977)).
In Bennett, supra , the Louisiana Supreme Court held that the appropriate considerations for determining whether the accused is fully aware of the nature of the proceedings include the following:
[W]hether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences
of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction.
Additionally, in determining an accused's ability to assist in his defense, considerations should include:
[W]hether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.
Bennett, 345 So.2d at 1138 (citations omitted).
Given the presumption of sanity in Louisiana jurisprudence, a defendant has the burden to establish his incapacity to stand trial by a preponderance of the evidence. La. R.S. 15:432 ; State v. Bridgewater, 00-1529, p. 14 (La. 1/15/02), 823 So.2d 877, 892 (citation omitted). While a court may receive the aid of expert medical testimony on the issue of competency to proceed, the ultimate decision of capacity rests with the trial court. La. C.Cr.P. arts. 647, 648 ; Rogers , supra . A reviewing court owes great weight to the trial court's determination as to the defendant's competency, and the trial court's ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Id.
In this case, two competency hearings were held. Initially, the defendant was held incompetent to stand trial and was later deemed competent. When the defense first raised the issue of the defendant's competence, a sanity commission was appointed and the matter was stayed pending a determination of the defendant's competency to proceed.
Doctors Sarah Deland, Harminder Mallik and Avil Georges were appointed to the commission.
During the first competency hearing, the defendant repeatedly interrupted the proceedings asserting that the court lacked jurisdiction; and asserting that his court-appointed counsel had no authority to speak for him. Likewise, due to the defendant's refusal to cooperate with the commission, the doctors' evaluation on his competency was inadequate. As a result of the defendant's noncompliance, Dr. Georges concluded that the defendant's behavior suggested an underlying thought disorder; therefore, he opined that he did not have the factual and rational understanding of the proceedings against him. Consequently, the trial court committed the defendant to the Forensic Division of the Eastern Louisiana Mental Health System (ELMHS) for treatment. After a report finding defendant competent to proceed was issued by the defendant's treating physicians, a second competency hearing was held. At the second competency hearing, a series of experts in forensic psychiatry testified. Doctors Vuotto and Deland testified for the State that the defendant satisfied the Bennett criteria, did not present with any mental illness and was competent to proceed to trial. Meanwhile, the defense's doctors testified that they could not reach a determination on the defendant's competency to proceed.
The defendant's challenge to the court's jurisdiction is based on "sovereign citizen" or "sovereign nation" arguments that because he is a citizen of the sovereign Moorish Nation, he is not subject to the laws of the United States. However, the United States does not recognize the Moorish Nation as a sovereign state. See State v. Wyley, 8th Dist. Cuyahoga No. 102889, 2016-Ohio-1118, 2016 WL 1071430, ¶ 6–7, 11–12 ; Speed v. Mehan , E.D.Mo. No. 4:13CV1841, 2013 WL 5776301, *1–2 (Oct. 25, 2013).
Dr. Georges testified that the defendant denied that his name was Tyronne Williams, invoked international law, and challenged the district court's jurisdiction over him, which was similar to his behavior in the courtroom.
Defendant's doctors, Angela Vuotto and Dr. David Hale, issued a Forensic Competency Evaluation and Report on the defendant, finding that he met the Bennett criteria and did not suffer from any pronounced impairment.
Both Doctors Vuotto and Deland testified that the defendant was not suffering from any mental illness, rather his choice to claim sovereign citizenship was the impediment to his ability to assist counsel. Significantly, Dr. Deland concluded that the defendant's claim of sovereign citizenship was a subterfuge to evade prosecution and that the belief was volitional rather than psychotic.
Dr. Vuotto noted that the defendant had no past psychiatric history, did not present as psychotic and was not medicated. She further noted two previous admissions: 1) for chemical dependency; 2) after a 1993 finding of incompetency in an armed robbery proceeding. The defendant was diagnosed upon discharge as exhibiting malingering symptoms of psychosis and chemical dependency, thus there was no diagnosed psychotic illness or mood disorder.
Doctors Jessica Boudreaux and Mallik, who testified for the defendant, could not offer opinions on the defendant's competency because the defendant was uncooperative during their evaluations. Doctors Boudreaux and Mallik both agreed that the defendant was not diagnosed with any mental illness or taking any medication or treatment in association with a mental illness. Specifically, Dr. Mallik testified that the defendant understood the proceedings, yet was unwilling to participate in the judicial system. Since assessment was (again) incomplete, he could not rule out that the defendant's beliefs were part of a thought disorder. However, he further stated that he believed that "membership in this sovereign society could be viewed as something that he is doing to avoid prosecution[.]"
At the conclusion of the hearing, the judge found that the defendant failed to prove he was incompetent by a preponderance of the evidence; therefore, he was competent to proceed to trial. The record is void of evidence that the defendant suffered with a mental disease or defect that made him unable to understand the proceedings, appreciate their significance, or to rationally aid his attorney in his defense . To the contrary, the evidence supports the trial court's conclusion that the defendant met the Bennett criteria, but chose to employ a belief system as a way to avoid prosecution.
Under these circumstances, the defendant did not meet his burden in proving that he was incompetent to proceed due to a mental disease or defect. Accordingly, the trial judge did not abuse its discretion in finding the defendant competent to stand trial.
RIGHT TO SELF–REPRESENTATION
In his second assignment of error, the defendant asserts that the district court improperly denied his right to self-representation. A defendant has a right to represent himself at trial. Faretta v. California , 422 U.S. 806, 816–17, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975). An impermissible denial of self-representation cannot be harmless. United States v. Cano , 519 F.3d 512, 516 (5th Cir. 2008). The defendant must knowingly and intelligently waive his right to counsel, and must clearly and unequivocally request to proceed pro se . Id. Though the defendant argues that the trial court should have considered allowing him to represent himself with the assistance of counsel, there is no constitutional right to hybrid representations whereby the defendant and his attorney act as co-counsel. Id.
The trial court held a hearing on the issue on August 14, 2014. From the beginning of the hearing, the defendant asserted his sovereign citizen ideology; challenged the jurisdiction of the court; rejected the notion his attorneys had authority to speak on his behalf; and denied turning over power of attorney to anyone. As a result of the defendant's constant interruption, the judge instructed the defendant to calm down and allow his attorneys to speak to the court, which prompted the following exchange:
Defendant : They are not my attorneys.
Judge : They are not your attorneys? Okay. Do you not want anyone to represent you?
Defendant : Uh-mm-
Judge : And I'm not going to dwell on this point today. If I have to have a hearing under Faretta versus California, you all know what that's about, then I will hear, have the Faretta hearing.
Defendant : They can't, excuse me, sir. They can't represent me. I'm presenting itself (sic) now. I'm presenting itself (sic) now to you. My name is Mallik Yo Ali (sp.ph.). I'm not the STRAWMAN in all capital letters.
Judge : Okay, I've heard you say that now, sir, once before ...
Later in the hearing, as defense counsel responded to the judge's inquiry about setting a trial date, the defendant interrupted the proceedings admonishing counsel: "You are not my attorneys." After which the judge noted:
Judge :—he wishes to—is that what you are telling us, sir, or is it just that you don't want these folks to be your attorneys?
Defendant : What I'm saying is I need to see your delegation of authority and I need to see your oath of office.
When asked if he wanted his attorneys to assist him, the defendant pointedly answered: "No." When asked if he wanted to represent himself, the defendant responded: "I am myself." He further stated: "I cannot re-present myself, I am myself."
Though there was no clear and unequivocal request to represent himself, the trial court seemed to acknowledge that the defendant was requesting to represent himself. It stated the following:
Okay. Okay. I can tell you right now there is no need for the Faretta hearing. I don't find that this gentleman has the ability to represent himself at this time and so I deny any request to even have the hearing based on what I've observed and heard additionally here. So, he indicates that he wishes to represent himself
The defendant responded: "I am myself." At that point, the trial court noted an objection and explained that after observing and listening to the defendant, he did not meet the minimal requirements established by Ferretta .
On August 29, 2014, in a per curiam , the judge opined:
... based upon [the] fact that the [defendant] has been adamant in his general rejection and renunciation of the government of the United States of America and this state... I ... have reached a conclusion that [the defendant] would not be capable and/or willing to abide by the rules of evidence, substantive law and procedure that all of us are sworn to recognize ...
To allow ... [the defendant] to [re]present himself while he maintains that position, I believe would lend itself to confusion, undue delay and general disruption of all proceedings.
Under Faretta , in order to waive representation and proceed pro se , the trial court must ensure that a defendant "knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol ." (emphasis added). McKaskle v. Wiggins , 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122 (1984) (citation omitted).
The defendant argues that the trial court was inconsistent in finding him competent to stand trial, yet incompetent to waive his right to counsel and represent himself. While the record reflects that the defendant was competent to proceed to trial, the record does not reflect that the defendant validly waived his right to counsel, clearly and unequivocally asserted his right to self-representation, or was willing to abide by the procedural rules of court. The defendant was often incoherent in his communications with the trial court, which thwarted its Faretta inquiry, and was consistently uncooperative in the courtroom proceedings because he did not believe the trial court had authority over him. The defendant's comments demonstrated a general rebellion against the system rather than a clear and unequivocal waiver of counsel. See , U.S. v. Ibarra , 236 Fed.Appx. 10, 12 (5th Cir. 2007) (unpub.) (per curiam ) (wherein the Court held that the defendant who repeatedly stated that he wished to fire his public defender attorney did not clearly and unequivocally waive his right to counsel and assert his right to self-representation; such comments more likely indicated defendant's general rebellion against the system trying him, in light of his statements that he did not recognize the trial court and his repeated assertions that the federal courts had no jurisdiction over him because the Republic of Texas never properly entered the union, and on the day of trial, defendant expressly denied to the district court that he wanted to represent himself).
Next, the record does not reveal that the defendant made a clear and unequivocal request to proceed pro se . However, even assuming the defendant clearly and unequivocally asserted his right to self-representation, the right to self-representation is not absolute. Martinez v. Court of Appeal of California , 528 U.S. 152, 161, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000). Under the general principle announced by the Supreme Court in Faretta and its progeny, the right of self-representation is limited by the trial court's responsibility to maintain order and safety and to prevent disruption and delay. United States v. Vernier , 381 Fed.Appx. 325, 328 (5th Cir. 2010), unpub. (per curiam)(citations omitted). In keeping with this, the Fifth Circuit also has recognized that a defendant's request to represent himself at trial may be rejected if it is intended to cause delay or create some tactical advantage or if pretrial behavior suggests that the defendant intends to disrupt the trial. Id. Thus, "[e]ven at the trial level, therefore, the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." Martinez , 528 U.S. at 162, 120 S.Ct. 684.
The facts in this case closely track those in U. S. v. Weast , 811 F.3d 743, 748 (5th Cir.), cert. denied , ––– U.S. ––––, 137 S.Ct. 126, 196 L.Ed.2d 99 (2016), in which the United States Fifth Circuit found the trial court's decision to appoint counsel against the defendant's wishes was constitutionally sound, reasoning that the defendant's bizarre and disruptive behavior would have severely compromised the trial. See also , U.S. v. Long , 597 F.3d 720, 727 (5th Cir. 2010) (United States Fifth Circuit found that the defendant "may well have" waived self-representation through similar pretrial conduct, and U.S. v. Brock , 159 F.3d 1077 (7th Cir. 1998) (Seventh Circuit concluded that similar behavior did waive self-representation).
Given the defendant's incoherent, bizarre and disruptive behavior, we do not find that the trial court erred in concluding that allowing the defendant to represent himself would result in "confusion, undue delay and general disruption of all proceedings." As a result, its decision to appoint counsel was constitutionally sound.
In addition, just before trial defense counsel filed a motion to withdraw citing "irreconcilable differences;" however, when the trial court indicated that it was not allowing counsel to withdraw, the defendant stated "I haven't asked him to get off of the case." Thus, the defendant's subsequent acquiescence to representation by counsel resulted in the abandonment of his earlier request. See , Long , 597 F.3d at 724 (a defendant may waive his right to self-representation through subsequent conduct indicating an abandonment of the request). In light of the facts and jurisprudence, the defendant waived any request for self-representation considering his subsequent acquiescence to representation just before trial.
"OTHER CRIMES" EVIDENCE
In his third assignment of error, the defendant asserts that the trial court erred in admitting other crimes/wrongs evidence. The defendant raises two main arguments: 1) the "other crimes" evidence was more prejudicial than probative and deprived him of a fair trial; and 2) the trial court failed to give a limiting instruction at the time the prior evidence was introduced or in closing instructions.
"Generally, evidence of other crimes committed by the defendant is inadmissible due to the substantial risk of grave prejudice to the defendant." State v. McDermitt , 406 So.2d 195, 200 (La. 1981) (citing State v. Prieur , 277 So.2d 126 (La. 1973) ). Pursuant to La. C.E. art. 404(B)(1), evidence of other crimes, wrongs or acts are generally not admissible to prove character. The article, however, provides for exceptions to this rule, which include admission for the purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident or when the evidence relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. Another exception to the rule stated in La. C.E. art. 404(B)(1) is supplied by La. C.E. art. 412.2(A), which provides, in pertinent part:
A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
It is not necessary, for purposes of Art. 412.2 testimony, for the defendant to have been charged, prosecuted, or convicted of the "other acts" described. See State v. Layton , 14-1910 (La. 3/17/15), 168 So.3d 358. In order for any evidence deemed to fall within La. C.E. art. 412.2 to be admissible, it must pass the balancing test of La. C.E. art. 403, which provides: "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." Though the defendant argues that the evidence was not admissible under Article 412.2 because evidence of a "lustful disposition" is only admissible when the victim is a minor; Article 412.2 was enacted to loosen restrictions on "other crimes" evidence, and to allow evidence of "lustful disposition" in cases involving sexual offenses. See State v. Wright, 11-0141, p. 13 (La. 12/6/11), 79 So.3d 309, 317, superseded by statute ; State v. Hollins , 11-1435, p. 36 (La. App. 4 Cir. 8/29/13), 123 So.3d 840, 865. Thus, " ‘The statute specifically applies in two situations: 1) when an accused is charged with a crime involving sexually assaultive behavior, or 2) when an accused is charged with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense.’ " State v. Falgout , 15-0953 (La. App. 4 Cir. 8/24/16), 198 So.3d 1232, 1244, writ denied , 2016-1831 (La. 6/16/17), 220 So.3d 756 (citation omitted). A trial court's ruling will not be overturned absent an abuse of discretion. Wright, 11–141 at pp. 10–11, 79 So.3d at 316 (citation omitted). This same standard is applied to rulings on the admission of other crimes evidence under La. C.E. 404(B)(1) and evidence under La. C.E. art. 412.2. Wright , supra .
Layton , 14–1910 at p. 5, 168 So.3d at 360 (where the Louisiana Supreme Court recognized an amendment to La. C.E. art. 412.2 which changed the language from allowing evidence of other sexual offenses to allowing evidence of the commission of " ‘another crime, wrong, or act involving sexually assaultive behavior or acts indicating a lustful disposition towards children.’ ").
The defendant appears to confuse the introduction of evidence under La. C.E. art 412.2 with a similar statute, La. C.E. art. 404(B), which provides for the introduction of evidence of other crimes in order to show a specified purpose, as described in Prieur , supra , and its progeny. The State's notice, however, sought to introduce this evidence pursuant to both La. C.E. arts. 412.2 and 404(B). Moreover, the defendant failed to object to this issue in the trial court; therefore, he is precluded from raising this issue on appeal. La. C.Cr.P. art. 841(A).
EVIDENCE OF OTHER SEXUALLY ASSAULTIVE BEHAVIOR
First, the defendant maintains that the "other crimes" evidence of other sexually assaultive behavior was inadmissible because it was more probative than prejudicial. The State noticed its intent to offer evidence of the defendant's prior arrests in 1989, 1990, and 1992 pursuant to La. C.E. art. 412.2 and 404(B), as evidence of other crimes displaying the sexually assaultive behavior of the defendant.
As discussed, at the Prieur hearing, the trial court denied the State's request to admit the evidence of other sexually assaultive behavior due to its untimeliness; however, this Court granted writs and reversed finding the evidence admissible under La. C.E. art. 412.2. Though this Court's prior ruling on the writ application appears to be law of the case, see State v. McElveen , 10-0172, p. 13, fn. 8 (La. App. 4 Cir. 9/28/11), 73 So.3d 1033, 1054, there was no analysis on the merits and there are additional issues that arose during the course of trial. Therefore, a ruling on the merits is provided herein.
The defendant asserts that the State did not prove the existence of the prior sexually assaultive behavior by clear and convincing evidence, particularly as it relates to the 1989 incident and the 1990 incident involving P.B., who was deceased at the time of trial. The Louisiana Supreme Court has recently held that when seeking to introduce "other crimes" evidence, the State need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong or act. State v. Taylor , 16-1124 (La. 12/1/16), 217 So.3d 283, 291. Moreover, the defendant failed to object in the trial court that the State failed to satisfy its burden of proof; therefore, he failed to preserve this error for review on appeal. La. C.Cr.P. art. 841(A).
At trial, Detective Kurt Coulon testified that during the course of his investigation, the search of police records revealed an arrest in 1989 for aggravated crime against nature and simple battery. Next, A.B. testified about her May 18, 1990, rape and identified the defendant as her assailant. She and Lieutenant Steven Gaudet also testified as to the rape of P.B. which happened shortly before her own. Finally, A.M. testified that on June 22, 1992, she was sitting on her porch when an armed man robbed her of her jewelry and groped her vagina before fleeing. The defendant was apprehended nearby by Sergeant Darryl Dean and identified as the perpetrator by A.M.
Corroborating A.B.'s testimony regarding her rape, Stephanie Williams testified that her step-father chased away A.B.'s rapist with a broom.
Though defendant complains that the testimony regarding the rape of P.B. was inadmissible hearsay, the evidence was admissible pursuant to the res gestae exception to the hearsay rule, codified in La. C.E. art. 8041(D)(4).
The defendant takes issue with the admission of two statements he made after Sergeant Dean apprehended him relative to shooting the officer prior to his apprehension and killing the defendant if he was released from jail. In particular, he argues that there was no proof that the defendant was advised of his Miranda rights at the time of his arrest. However, the trial court admonished the jury to disregard the first statement regarding shooting the officer and there was no objection to the second statement. Further, there is nothing to suggest that the statements were made as a result of a custodial interrogation that would trigger Miranda .
In addition, the defendant claims that the trial court bolstered the credibility of Sergeant Darryl Dean by commenting on his military service. However, the defendant did not object at the time and the trial court later instructed the jury that it should consider only the evidence admitted. It further explained that any perceived opinions of the judge regarding the facts of the case should be disregarded. Accordingly, these complaints lack merit.
The crimes against M.J., like those against P.B., A.B., and A.M. occurred within the same area of the city around the same time period, and involved a pattern of opportunistic sexual assaults whereby the defendant was armed, or made the victim believe he was armed, to accomplish the sexual assault on the victims. Like the instant crime, the defendant seized A.B. and removed her to a secluded spot, and then forced her to engage in anal and vaginal intercourse. The rape involving P.B. occurred just a few hours before the rape of A.B. The prior sexual assaults were substantially similar and constituted relevant and probative evidence for the instant case, especially when considering the defendant placed consent at issue.
Further, the record furnishes no basis to conclude that there was a danger the jury would be swayed by the evidence of the uncharged offenses. The evidence at trial was presented in an orderly and clear manner. The jury was not likely to be confused between the different crimes, considering the State presented its case as to M.J. first. Furthermore, the record reflects that the testimony of A.B. and A.M. did not overwhelm or detract from M. J.'s testimony. Moreover, John Ackerman of the Orleans Parish Public Defenders Office testified regarding the charges that resulted from the other crimes evidence and made it clear that the defendant was never convicted of any of the prior charges.
Mr. Ackerman explored the defendant's prior arrest record and discovered an arrest for simple kidnaping and aggravated crime against nature in 1989; however, no probable cause was found for either charge. Ackerman also discovered that the defendant was charged with aggravated rape; two charges of second degree rape; one charge of aggravated kidnaping ; two charges of crime against nature; one charge of aggravated crime against nature; and one second degree kidnapping in 1990, but only three of the charges were accepted and then ultimately nolle prossed. In addition, the defendant was charged with resisting an officer, armed robbery, extortion and illegal carrying of a weapon in 1992 but the State subsequently dropped those charges.
The admission of probative evidence, such as this, is prejudicial to a defendant, as it tends to establish the defendant's guilt. See State v. Fisher , 091187, p. 8 (La. App. 4 Cir. 5/18/10), 40 So.3d 1020, 1025. However, as the Louisiana Supreme Court explained in State v. Humphrey , 412 So.2d 507, 520 (La. 1981), the underlying policy is not to prevent prejudice, since evidence of other crimes is always prejudicial, but to protect against unfair prejudice when the evidence is only marginally relevant to the determination of guilt of the charged crime. State v. Williams , 02-645, p. 16 (La. App. 5 Cir. 11/26/02), 833 So.2d 497, 507, writ denied , 02-3182 (La. 4/25/03), 842 So.2d 398 ; See also , Fisher, supra. Since the probative value of the evidence outweighed the unfair prejudice caused, we cannot find that the trial court abused its discretion in admitting the evidence of other crimes.
Assuming that the trial court erred, the erroneous admission of "other crimes" evidence is subject to harmless error analysis. State v. Morgan , 99-1895, p. 5 (La. 6/29/01), 791 So.2d 100, 104. The test for determining harmless error is whether the verdict actually rendered in the case was surely attributable to the error. Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ; Morgan , 99–1895 at p. 6, 791 So.2d at 104.
Though we do not find that all of the other crimes evidence, particularly the 1989 crime, was necessary for a just prosecution, the uncontroverted DNA evidence in this case coupled with M.J. and the responding officers' testimonies established that the defendant was guilty of the 1994 aggravated rape of M.J. beyond a reasonable doubt. Additionally, the fact that it took police approximately eighteen years to apprehend the defendant explained any inconsistencies and supported the victim's testimony that she did not know the defendant. Given that the State's evidence against the defendant was overwhelming and the jury's verdict was unanimous, we find any error in the admission of the "other crimes" evidence did not contribute to the verdict and therefore was harmless beyond any doubt.
JURY INSTRUCTIONS
Second, the defendant asserts that the trial court failed to give the jury the proper limiting instructions at the time the evidence was introduced or during closing instructions. When "other crimes" evidence is admitted in a jury trial, the court, upon the defendant's request, must charge the jury as to the limited purpose for which the evidence is to be considered. Moreover, the final jury charge must contain an instruction regarding the limited purpose for which the "other crimes" evidence was received. At that time, the court must instruct the jurors that the defendant cannot be convicted of any charge other than the one named in the indictment, or one responsive thereto. Prieur , 277 So.2d at 130. See also , State v. Kennedy , 00-1554, p. 6 (La. 4/3/01), 803 So.2d 916, 921.
Subsequent jurisprudence has affirmed that these requirements remain in place. See e.g. , Taylor , 16–1124 at p. 12, 217 So.3d at 292 ; and State v. Miller , 98-0301, p. 4 (La. 9/9/98), 718 So.2d 960, 962.
Kennedy was superseded by La. C.E. art. 412.2 only with respect to the admission of other crimes evidence of sexually assaultive behavior. See , State v. Zornes , 34,070, p. 1 (La. App. 2 Cir. 4/3/02), 814 So.2d 113, 114, n. 1, writ denied , 02-1280 (La. 11/27/02), 831 So.2d 269.
Our review of the record reveals that the defendant did not request a limiting charge at the time the "other crimes" evidence was introduced. Under Prieur and Kennedy , because the defendant did not request a limiting instruction, the trial judge was not required to issue a limiting instruction at the time of the "other crimes" testimony.
Defendant also complains that the trial court erred in failing to include a limiting instruction on "other crimes" evidence in its jury charges. Our review of the court's final jury instructions reveals that there was no mention of "other crimes" evidence. Further, we note that defendant neither requested a special jury charge nor timely objected to the final jury charges.
This Court has held, the requirements of Prieur notwithstanding, that a defendant's failure to request a limiting instruction or to object to the jury instructions waives any claim based on such. State v. Hunter , 15-0306, p.17 (La. App. 4 Cir. 9/9/15), 176 So.3d 530, 539 (citation omitted). Since defendant did not make a timely objection, he did not properly preserve the issue for appellate review. Consequently, he is precluded from raising this issue on appeal.
See also , La. C.Cr.P. art. 801 C ("A party may not assign as error the giving or failure to give a jury charge or any portion thereof unless an objection thereto is made before the jury retires or within such time as the court may reasonably cure the alleged error."); La. C.Cr.P. art. 841 A ("An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.").
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IMPROPER CLOSING ARGUMENT
In his final assignment, the defendant complains the trial court erroneously allowed prejudicial, inflammatory and improper closing argument. The scope of closing arguments of either defense counsel or the State, as provided in La. C.Cr.P. art. 774, shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and the law applicable to the case. The argument shall not appeal to prejudice. The State's rebuttal shall be confined to answering the argument of the defendant.
In reviewing claims of improper arguments, Louisiana jurisprudence maintains that a prosecutor has wide latitude when making closing arguments, and that the trial court has broad discretion in controlling the scope of those arguments. State v. Casey, 99-0023, p. 17 (La. 1/26/00), 775 So.2d 1022, 1036. Even where the State exceeds the bounds of proper argument, a conviction will not be reversed unless the court is thoroughly convinced that the argument influenced the jury and contributed to the verdict. State v. Dabney , 15-0001 (La. App. 4 Cir. 9/9/15), 176 So.3d 515, 527, writ denied , 15-1852 (La. 10/17/16), 208 So.3d 374. The "reviewing court should accord credit to the good sense and fair-mindedness of the jury that heard the evidence." State v. Henry , 11-1137, p. 15 (La. App. 4 Cir. 10/24/12), 102 So.3d 1016, 1025.
The defendant argues that during rebuttal the prosecutor made improper references to his failure to testify, suggested that the burden of proof rested on the defense, and commented on facts not in evidence. La. C.Cr.P. arts. 770 and 771 govern improper comments made during closing arguments and authorize the trial court to correct a prosecutor's prejudicial remarks by ordering a mistrial or admonishing the jury, at the defendant's request. Mistrial is a drastic remedy that is only authorized where substantial prejudice will otherwise result to the defendant. State v. Adams, 07-0977, p. 5 (La. App. 4 Cir. 1/23/08), 976 So.2d 757, 760. "The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion." State v. Wessinger, 98-1234, p. 24 (La. 5/28/99), 736 So.2d 162, 183.
Turning to comments on the defendant's failure to testify, the Louisiana Supreme Court has stated the following regarding a motion for a mistrial under La. C.C.P. art. 770(3):
"Direct" and "indirect" references to the defendant's failure to take the stand are prohibited by article 770(3). State v. Johnson , 541 So.2d 818, 822 (La. 1989). "When the prosecutor makes a direct reference to the defendant's failure to take the stand, a mistrial should be declared, and "it is irrelevant whether the prosecutor intended for the jury to draw unfavorable inferences from defendant's silence.’ " Id. (citing [State v.] Fullilove , 389 So.2d [1282,] 1284 [ (La. 1980) ]. When the reference to the defendant's failure to take the stand is not direct, this Court will inquire into the remark's "intended effect on the jury" in order to distinguish indirect references to the defendant's failure to testify (which are impermissible) from statements that are not (which are permissible, though not favored). Johnson , 541 So.2d at 822 ; Fullilove , 389 So.2d at 1284 ; State v. Jackson , 454 So.2d 116, 118 (La. 1984). In order to support the granting of a mistrial, the inference must be plain that the remark was intended to focus the jury's attention on the defendant's not testifying.
State v. Mitchell , 00-1399, pp. 4-5 (La. 2/21/01), 779 So.2d 698, 701.
As for the reference to defendant's failure to testify, the prosecutor stated:
M.J. is the only person who [can] tell you what happened because she—actually that's wrong.
[The defendant] and M.J. are the only two people who can tell you exactly what happened on that day.
The defense objected and the trial judge agreed the prosecutor's comment was an indirect reference to the defendant's failure to testify. However, there was no request to admonish the jury or for a mistrial, and the State proceeded with its closing.
Nevertheless, a review of the State's closing does not reflect that the State was focusing on the accused's failure to testify; rather, the defendant opened the door to this discussion by acknowledging that he had sex with the victim and placing consent at issue. The comment spun out of the State initially explaining that the victim was the only person that could explain what happened and her testimony was being limited. Then the State corrected its statement, so as to acknowledge the defendant's presence. He then went on to say M.J. was in the best position to give an account of her rape and the defense was attempting to limit her testimony. Under these circumstances, we cannot say that the State's remark was intended to focus the jury's attention on the defendant's failure to testify.
Next, the defendant complains that some of the prosecutor's statements suggested that the defendant bore the burden of proof. The defendant points to the prosecutor's questioning the absence of any evidence of a consensual sexual relationship between the defendant and M.J. He urges that this shifted the burden of proof to defendant to prove his innocence. The defendant is mistaken. The comments were not improper as they merely stated the lack of evidentiary support for the defense that there was no rape because the relationship between the defendant and M.J. was consensual. La. C.Cr.P. art. 774. See also State v. Bailey , 12-1662 (La. App. 4 Cir. 10/23/13), 126 So.3d 702, 712 (while the prosecution must base its conclusions and deductions in closing argument upon evidence adduced at trial, both the State and defense are entitled to their own conclusions as to what is established by the evidence, and either may press upon the jury any view arising out of the evidence). Moreover, the jury instructions made clear that the State carried the burden of proving the aggravated rape of M.J.
Last, the defendant complains the State argued facts not in evidence when the prosecutor stated: "[W]e know the defendant was illegally in possession of a weapon in '89, '90, '92, and 2009." First, after objecting to the comment, the defendant did not request an admonishment or a mistrial. Moreover, the defendant's own witness, Mr. Ackerman, testified that the defendant was charged with illegal possession of a weapon in 1992. In addition, the jury was instructed that it could only consider the evidence introduced at trial. Therefore, any additional reference that the defendant was illegally in possession of a gun in other years did not contribute to the verdict.
Even assuming the comments were of such a nature that it might have created prejudice against defendant in the mind of the jury and warranted an admonishment or mistrial, any such error would have been harmless because, based on the record, the verdict was surely unattributable to any such error. State v. Marlowe , 10-1116 (La. App. 4 Cir. 12/22/11), 81 So.3d 944, 969 (citation omitted). As noted earlier, the DNA evidence in this case was uncontroverted and overwhelming. Further, the victim and responding officers' testimonies bolstered the scientific evidence.
CONCLUSION
For these reasons, the defendant's conviction is affirmed.