State Of Louisiana VS Stevon Archie
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 0936 STATE OF LOUISIANA VERSUS STEVON ARCHIE Judgment Rendered Appealed from November 2 2007 the 19th Judicial District Court In and for the Parish of East Baton Case No Moreau District Louisiana 08 04 0233 The Honorable Louis R Daniel Doug Rouge Judge Presiding Counsel for Appellee State of Louisiana Attorney Darwin Miller Kory J Tauzin Assistant District Baton Rouge Attorneys Louisiana Benn Hamilton Counsel for Defendant Baton Stevon Archie Rouge Louisiana BEFORE Appellant GAIDRY McDONALD AND McCLENDON JJ GAIDRY J The defendant with forcible rape guilty and after a a a Stevon Archie was violation of La R S trial by jury habitual offender bill of information habitual felony offender suspension of charged The as was sentenced was Defendant comi now a plea a second twenty six years probation parole denied defendant s motion the appeals raising not filed state adjudicated to of or to following six of elTor The verdict 1 guilty Defendant The trial sentence reconsider sentence assignments He entered hard labor without the benefit of at imprisonment and 14 42 1 found was bill of infonnation charged by of the jury IS contrary to the jury the law to and evidence 2 The evidence presented was insufficient to support the conviction for forcible rape 3 The State of Louisiana used to improper procedures influence the jury 4 The trial comi a improperly declared the defendant to be habitual offender The trial court 5 to an improperly restricted the defendant s right appeal by limiting his access to certain transcribed material 6 The F or the adjudication and sentence following imposed is excessive reasons affirm the conviction habitual offender we and sentence STATEMENT OF FACTS The victim Louisiana at was The victim student at the time of the offense campus with defendant I a was on the twenty years old at Camelot issue 1 College She had evening of August at the time the time ofthe trial 2 1 Baton III agreed 2004 to Rouge leave the The victim of the offense and twenty was two years old at familiar with defendant Near 9 00 p victim bedroom a was previous high school acquaintance a Cedarcrest Avenue in Baton on John London to he Between 11 00 p Bryan brother s was At m and midnight defendant began performing going to to have she and defendant he oral got dressed and the According was removed her lower sex the victim sex two s to argue repeated demands for defendant that she did sex not on the edge of the sex on her lying her and she and After the bed acquiesced underwear and approximately three stop and defendant complied The told her that she testimony defendant later disagreed The victim testified that and defendant The victim want to restrained the victim he forced her on talked and watched television with him but she began sat was clothing on the victim asked defendant to victim then they present Defendant led the the victim as defendant asked her if he could perform oral defendant an point John and Bryan left the apmiment some She and When Rouge They entered the bedroom alone bed and conversed minutes victim to Bryan London drove defendant and the m apmiment located anived as have sex as with him As defendant After further physical force lower s held her down repeatedly refused and told legs apali and verbal threats he removed the victim physically clothing and underwear unzipped his pants and penetrated the victim vaginally with his penis After fleeing from the apartment the victim immediately contacted the police FIRST AND SECOND ASSIGNMENTS OF ERROR In his combined enor defendant argues that the evidence conviction there argument for his first and second assignments of He contends that there was no scmTed or physical evidence of were a bluised and the victim did 3 no rape not was insufficient witnesses neither he confirm to to the nor support the alleged the victim penetration rape was Defendant further argues that the victim not testimony should be disregarded and should s be considered to show lack of consent because it The constitutional standard for be based evidence in the light most elements of the crime US 307 319 favorable beyond a 99 S Ct 2781 standard of review is an 438 15 App about factual matters guilt accept Moreover its or State On State appeal reweigh the evidence v Louisiana Revised La evidence the excludes every 5 p La 1989 matter is one this court will not to overturn When 514 a case a La or in a of the determination assess factfinder s the the weight of 459 So 2d 31 App part the conflicting testimony depends upon Richardson v Creel 540 So 2d 511 546 So 2d 169 and the The Jackson reject in whole the resolution of which sufficiency 1 st Cir 1984 or where there is credibility of the witnesses the not 443 845 So 2d 416 420 any witness witnesses Virginia v Graham 02 1492 v the the overall evidence the overall evidence State conviction viewing 1979 testing a find the essential to for reasonable doubt hypothesis of innocence testimony of App 61 L Ed 2d 560 standard for objective The trier of fact is free to evidence prosecution reasonable doubt Jackson satisfied that 1st Cir 2 14 03 of the requires that provides that when analyzing circumstantial trier of fact must be reasonable to the 2789 both direct and circumstantial Statutes 821 art for any rational trier of fact proof sufficient on inconsistent testing the sufficiency of the evidence in La C CrP legislatively incorporated was 38 La credibility of determination of 1st Cir writ denied involves circumstantial evidence jury reasonably rejects the hypothesis of innocence presented by the defendant s own testimony that hypothesis falls and unless there is another Captville hypothesis which raises 448 So 2d 676 680 La 1984 4 a the defendant is reasonable doubt guilty State v Rape is defined with male a consent sufficient to the act of anal oral or vaginal sexual intercourse female person committed without the person or La as R S 14 41 A complete the s lawful Any sexual penetration however slight is crime La R S Statutes 14 42 1 defines forcible rape in 14 41 B Louisiana Revised pertinent part as follows A Forcible rape is rape committed when the anal oral or vaginal sexual intercourse is deemed to be without the lawful of the victim because it is committed under anyone of the following circumstances consent more 1 When the victim is prevented from resisting the act by or force threats of or physical violence under circumstances where the reasonably believes that such resistance would not victim prevent the rape In the absence of internal contradiction physical evidence the testimony fact is sufficient support for 03 1980 883 La 126 S Ct applicable 33 543 2726 83 6 p to p 5 12 10 La La App In her 182 the La 4 105 a of one if believed App 01 1st Cir by requisite factual conclusion State 898 So 2d 1219 163 L Ed 2d 187 1226 2005 This 2d Cir 8 23 00 799 So 2d 490 766 So 2d 678 See also State writ denied 629 So 2d 1167 specifically down and spread her legs the victim verbally refused nose and As State 682 they struggled Defendant La an open hand and threatened that if she did not writ denied 00 5 the victim legs to defendant demanded Defendant Ponsell As to the force used open hand shut up v 1993 placed his hands an Higgins Probst 623 So 2d 79 v testified that he used his slapped her with defendant with stop v principle is equally testimony regarding the nonconsensual intercourse to the trier of denied 546 U S cert testimony of victims of sexual assault defendant the victim slapped irreconcilable conflict with witness emphasized that she pleaded with defendant mouth and or over by hold her sex and the victim s The victim in turn pinned her down harder he would kill her Defendant also warned the victim silent but added Stevon s was so fast Stevon happened fast so and him by fast 1 didn t h is defendant s penetration semen semen lasted According a blue she refused 1 heavy really couldn the victim she to penetration the holding even me was entered or down and her the victim was inside of The t by But me fight him off was ultimately It happened explained constantly fighting me penetrated in certain defendant victim recalled place without her slapped penetrated her that the act of and confinned that after the intercourse occurred her and she sic that me consent turquoise towel and instructed her to defendant it and that she felt it when me three to five seconds approximately to victim know Stevon had the vaginal sexual intercourse took gave her get Stevon off of to According But she confinned that she explaining The victim stated that she became defendant As to the act of sexual so big fight him off to to resist tell anyone really trying body weight being but 1 did try unable I not to defendant wash herself When responded by slapping him After defendant slapped her again the victim took the towel and mildly wiped herself The victim asked if she could leave the apartment but defendant refused instructing her to comb her hair The from the apartment when defendant left the she called for emergency assistance from Detective reported to the evidence at the Trey Walker of the scene scene around 5 00 including a a room store Baton a m on and Rouge Police Department The crime scene unit collected blue hand towel located in the bathroom infonned the detective that defendant had consent put his pants escaped telephone of the apartment and later interviewed the victim without her to victim then The victim did not 6 at the vaginal police station She intercourse with her inform Detective Walker that she and the defendant had was called to previously engaged in consensual testify again during explained that she The victim was afraid to s When she sex in chief the victim case tell the police about the consensual oral examined was the defense oral at Earl K Long Hospital by registered Wanda Pezant the Louisiana State Sexual Assault Nurse Examiner Coordinator assaulted the six The victim informed Ms Pezant that she had been the During 0 clock position admitting that there consensual by forced Crime were at the posterior of the victim several other possible DNA samples from stated that he defendant and a tear at birth canal While injury could have been caused the victim sent to were the State Police approximately needed to On several Defendant and the female night before July around after his apartment when his brother Bryan informed a m Bryan Cedarcrest Avenue Shortly at female arrived 2 00 defendant up the riding was Bryan London John informed the detective that he left the spare bedroom Bryan 31 the went into the apartment picked up a Defendant and the female went at picked black female took defendant and the female to the left the Bryan detective that he and later John apartment into the bedroom apartment John informed him that the police speak to him August phone to pay her to 2 and 2004 the victim calls from defendant she drop the controlled recorded station a Laboratory London on vaginally including vigorous causes Detective Walker interviewed John London and After s nurse Program Ms Pezant discovered Ms Pezant verified that the sex sex pelvic examination sex the case to the detective that after finally spoke to him and he offered Detective Walker asked the victim to conduct telephone victim reported conversation with defendant from the The agreed 7 telephone call was a police made at approximately victim 8 00 p m on that date side of the conversation s Detective Walker listened to the during the call and reviewed the recording of the full conversation after it concluded During the recorded telephone conversation defendant offered the victim money Defendant asked if their conversation and the victim responded negatively drop the charge and victim Defendant pleaded with the victim stated that he would do whatever she wanted begged him At point defendant stated sorrow one to Several times defendant requests defendant stop to As the responded by expressing regret I guess I Defendant then stated that he had myself were his actions requested to speak m never Defendant ultimately expressed concern asked the victim about his why she was and defendant stated that he did the conversation guess you why he raped phone her The victim a situation as rape and whatever a comes things again if in person they spoke not want to rape her me had raped only The in person The victim and defendant asked her if responded negatively to as Defendant repeatedly asking why he some Those explanation for telephone being tapped victim asked defendant if he would rape her asked defendant an repeatedly described the incident and reiterated that he could discuss was near been in such made when the victim asked defendant for The victim and gonna sic incriminate to the victim in person nonconsensual Defendant stated that he deserved again someone else At the end of the when the victim stated she had to go defendant stated So I got enough you got enough information for the people Based on the victim and the recorded rape being recorded repeatedly asked defendant why he raped her while also stating that she had her was suspect and telephone was s statement the evidence collected at the conversation defendant atTested After his 8 an est was determined defendant was scene to be a informed of his Miranda to rights having oral It sex Defendant denied that any rape occurred with the victim stipulated by the was and defense state that the DNA obtained from the spenn fractions of the cervical and external of the victim but admitted was consistent with the DNA profile vaginal swab profile obtained from an oral swab of defendant Defendant testified that he had known the victim for about six years but they sporadic acquaintances were previously helped the According to victim with financial difficulties defendant on several occasions He also testified that he and the victim had sexual relations incident in Bryan s cousin the apartment his presence victim did on not two the was night in hesitant not know Bryan London prior to the Russell Mack Russell Mack and did question According to to give to pay her four hundred dollars to an recall after defendant Although he gave the money to agreement with the victim with all of mess so the victim exchange Mack assumed defendant Defendant claimed that he made not Mack and defendant the get into the vehicle but did hundred dollars from Mack to witness the the victim once and defendant testified that the victim rode with them to The victim did initially borrowed Defense witnesses question he had us and to have a to little freak party When they arrived into the bedroom bedroom a couple According forty five minutes while Bryan apartment defendant and the victim to of minutes later and the victim sat in the 2 at the room was Defendant however and conversed for came out of the testified that he approximately thirty to the victim consumed alcohol Mack and defendant London testified he and defendant stated that he Bryan London they went related to defendant were cousins while his brother John London through marriage 9 also claimed that the victim smoked Bryan London and Mack marijuana eating an contest defendant to According discussed was Defendant and the victim then reentered the bedroom Minutes later defendant called Bryan London to John London observed defendant the oral sex and Mack performing oral lasted for about sex on closed the bedroom door and at that point they sex not having not have oral but explained she would call him later started According contact on According Y ou to Other than defendant s still According owe me to to his the bed testimony at He stated that apartment Bryan asked but she declined and he sex contact between defendant the other explained men that stating during the consensual oral testimony after defendant Bryan testified that he with the victim to take her home consensual sexual intercourse 3 in the were that the victim became bashful for awhile penis present during any other sexual the victim defendant they discussed sexual activity and the victim my the victim if she wanted him victim to they Bryan and Mack offered the victim money in have any further sexual not to Mack the victim while he and the victim Before the London brothers and Mack left the were sex on According sex the victim and defendant sex kind of played with did to but the victim refused point Bryan joined were According they and told him that she wanted to wait until everyone left before exchange for some performed room Defendant sex sexual contact resuming started briefly entered the groove of having the victim where forty five minutes Defendant testified that after he John London the bedroom they and the left he told T hat s when the he and the victim then Defendant then received a sex engaged telephone in call London and Mack testified that John London also offered the victim money in exchange for sex but John London denied making any such offer Bryan 10 from Bryan London who informed him that defendant s to the apartment to leave and she then became having her sex hysterical asking him demanding have sex the rest coming with the other was men not how he could leave after of the money he supposedly replied that he did time and told the victim that he not was Defendant testified that he informed the victim that he had with her and Defendant girl not have the money to pay going to pay at the her because she did originally planned as agreed According to defendant he left the apartment while the victim was still present When victim run Bryan London retUlned down the stairs included the information to the apartment Bryan claimed that his interview with the police provided during his trial could not recall the content of his statement to the Detective Walker denied regarding an agreement fondled him to the detective not inform him that the victim used did not detect any of when he interviewed her took place approximately Russell Mack was never drug money one around 7 00 p call defendant a sudden alcohol spoke the consumption by the victim police phone just done changed repOlied to the offense The name of victim several times after she He claimed that the victim asked for When the victim to telephoned defendant the controlled recorded telephone suspected that something on the detective during the investigation presumably referring acting real freaky all of Bryan London and John London hour after the those conversations m that the victim drugs that night Also use or mentioned the incident to the during or Detective Walker estimated that the interview Defendant testified that he reported police partner sexual activity did signs John London testimony receiving information from Bryan London to multi According he observed the was wrong because her whole conversation just done she flipped Defendant stated that the victim did 11 was not tell him after No to or stop during she reported otherwise conversation he attempted and he became sex drop the cross the situation and ease examination claimed the victim did not resist conversation with the victim but conversation and Defendant trying was the to persuade the victim adding that the victim It s to just out out did I did tricks trying are raped you you done you like that on to recollect in your you know it didn t something during the victim claimed he play You in love with in shock somebody telling your mind playing tricks was why the like was recording of the controlled explained that he actually happened and when figure the on figure beginning Sometime your mind be mind if this to explained something and in trying the during defendant denied usmg any force and Defendant identified his voice her defendant to According charges During him to emotionally disturbed I do wrong happen or you did she you know Defense witness Lynetta the victim Stone that the victim infonned her that money incident in question However stated she had been raped and with defendant agreed to have Stone was with him in Stone also conversed Defendant told Stone that the victim not for four hundred dollars rape the victim During examination Stone confinned that defendant told her that he incident and that he wanted drop the to admitted specifically testified that the victim exchange further informed her that he did close friend somehow involved in the offered money regarding the incident sex was s give the victim money to and cross regretted the persuade her to charge The victim exchange for sex expressly denied any discussions The victim also denied 12 regarding money in fondling Bryan London consuming alcohol using drugs that night but testified that Bryan and or John London drank alcohol and used Based viewing that a on our careful review of the evidence that evidence in the light rational trier of fact could elements of forcible rape that the victim were testimony s were expressly did not beyond consistent admit or confess deny raping to of rape defendant hypothesis We of to the prosecution we repeatedly described Only defendant and question the rape find reasonable doubt We find an physical force and threats and her act own the victim Although defendant did not during the recorded conversation he the victim while accusations s act in a She physical and verbal resistance present during the presented during the trial conclude that all of the essential reasonably proven was favorable most of sexual intercourse that included ineffectual drugs constantly being confronted find that the mnocence with jury reasonably rejected Defendant s first and the second assignments of error have no merit THIRD AND FIFTH ASSIGNMENTS OF ERROR In a combined argument for his third and fifth defendant contends that improperly confession his failure referred to during opening the controlled recorded Defendant argues that the to deny the refers to several denying his request transcribed for the to telephone conversation as a prosecutor consistently suggested that Defendant of the record to illustrate this claim Defendant led to the jury s request Defendant also argues that the trial designate the opening and closing appeal state guilt improper suggestion tape during deliberations error closing arguments the rape amounted to evidence of his portions contends that this and assigmnents of record 13 to rehear the court erred in statements to be Louisiana Code of Criminal Procedure article 774 The argument shall be confined provides of evidence therefrom conclusions of fact that the to and to the law prejudice applicable the to appeal to remark during closing argument unless the influenced the accorded to jury the to state or arguments of counsel 5 9 03 are 674 So 2d 250 evidence 258 State 1996 849 So 2d 657 improper an Much credit should be and fair mindedness of jurors who have not cert denied v Mitchell 94 2078 p 11 519 U S writ denied seen by the trial judge 1043 Dilosa 2001 0024 p 22 v 674 State not is convinced that the remark and contributed to the verdict sense the lack The argument shall case court to defendant may draw A conviction will not be reversed due to good 136 L Ed 2d 538 pertinent part evidence admitted evidence heard the argument and have been instlucted 5 21 96 in 2003 1601 117 S Ct La La that La 614 1st Cir App 12 the 03 860 So 2d 1153 At the outset we note During the statements that the record does in fact contain the state s opening characterize the recorded conversation was mentioned at the end of the statement as a the confession opening statement opening prosecutor did not The conversation follows as And you are going to learn that after August 1 st the next day that Mr Archie had contact again with the victim this time by way of the telephone You are going to hear what law enforcement did about that call and then phone what they finally call in relation to that did leading phone to the arrest of Stevon Archie Defendant did not lodge an Defendant also cites Detective Walker consisted of question a a the portion of the Again the prosecutor did confession After objection during The opening state s statement direct examination of not state that the conversation prosecutor asked the detective the following reviewing the tape did 14 you make a determination that Stevon Archie would definitely be responded There this line of questioning doubt in my mind was no The other defendant consists of the defense I defense counsel asked could be considered an anything admission of not want to rape her After further admitted that defendant did The closing not statements Defendant did a on not trial court instructed the jury that the object to the the tape that you heard that The detective rape responded the victim and stated that he to questioning however the detective directly confess were not examination of the detective wherein cross there s The detective point portion of the record noted by positively noting that defendant apologized did at that suspect a made the crime to part of the record a But the opening and closing arguments are not evidence The proper for inquiry a trial that occurred without the rendered but whether the surely 113 2078 2081 error a error analysis is error 124 not whether Sullivan L Ed 2d v 182 rendered in this trial Louisiana 508 U S 275 Even 1993 a influenced the and could jury easily confession not or set out not comi verdict determine The other no defense La C CrP appeal trial s s we cannot The that conclude jury listened whether the to content consisted the reference a of question a direct portions of the record cited by defendant do 841 brief and appeal Thus the issue may not be objections art such was statement the evidence in the type of remarks claimed in the instant fuliher contain for confession a 279 assuming prosecutor stated during the closing argument that the recorded consisted of in guilty verdict would surely have been guilty verdict actually unattributable to the S Ct hannless Nonetheless we find that any preserved error in the ruling denying the designation of the closing arguments 15 for transcription 921 was Defendant s harmless beyond third and fifth reasonable doubt See La C CrP a assignments of error are art without merit FOURTH ASSIGNMENT OF ERROR lists but has Defendant assignment of relating error Because adjudication briefed not to the considered abandoned propriety of his habitual offender of assigmnents argument for his fourth an not error briefed may decline address the issue raised we properly Rule 2 be 4 12 Uniform Rules of Louisiana Courts of Appeal SIXTH ASSIGNMENT OF ERROR In his sixth and final trial imposed court successfully completed Defendant also rape notes probationary a that the instant undisputed that the went victim directly to his perfonnance of oral to society voluntarily involved in a sex consists of went to sex at the victim 894 1 comi 562 Herrin 1990 In his In 2d So light appeal brief However 1 11 that it is the apartment with possibly s request He argues that the harm in effect before La App imposing 1st Cir sets fOlih items that sentence La C CrP s the criteria writ denied expressed by article a art but State 565 So 2d 942 894 1 must v La review for prior conviction as possession of marijuana a prior conviction for possession of cocaine was defendant refers to his the record establishes that was prostitution adequately considered of the criteria used to establish defendant 4 out points The trial court need not recite the entire checklist of article 894 1 the record must reflect that it 4 conviction prior Defendant further argues that the victim for money affair by the trial he conflicting claims of Defendant The Louisiana Code of Criminal Procedure be considered his that the bedroom of the apmiment and that he ceased minimal was for term case emphasizes He sentence consensual sexual intercourse versus four males excessive an defendant contends that the assignment of error habitual offender status 16 individual excessiveness should consider the circumstances of the crime and the trial State court stated s and factual basis for its reasons Brown 02 2231 p 4 La v Article I section 20 of excessive imposition 1st Cif 5 9 03 App than the needless imposition of pain and suffering La 10 5 01 1st Cif 10 3 00 App 798 So 2d 962 the crime in a less onerous 1086 La court by reason has broad discretion 1158 a 569 the prohibits nothing more Hurst 99 2868 v of or or justice the not and the penalty is so A sentence may be because the circumstances warrant State v Waguespack writ denied 596 So 2d 209 to sentence punishment La 589 So 2d 1079 La 1992 within the statutory limits reviewing a 99 1753 p 15 Absent a court may not set 16 5 La A trial 00 769 So 2d 1167 State In Louisiana v Supreme punishment nothing Court of express the So 2d recognized that 1276 1280 81 if a trial by the Habitual Offender than the of punishment judge 1993 the detennines that the Law makes or La no measurable that the sentence amounts purposeful imposition of pain and suffering and is proportion reduce the sentence to However 623 acceptable goals more out grossly Dorthey mandated contribution to to length Guzman v is or State turns upon abuse of that discretion State sentence crime society and whether our sense of its 1st Cir 1991 showing of manifest aside to sentencing alternative App 566 797 So 2d 75 83 writ denied 00 3053 that it shocks excessive either to the The determination light of the harm disproportionate 2d So decision A sentence will be determined to be punishment grossly disproportionate 10 849 of the Louisiana Constitution excessive if it is p sentencing to the one severity that would holding in Dorthey was recognition by the Supreme 17 of the crime not be made Court he is duty bound to constitutionally excessive only that after and in light of the determination and acts which definition of It is the function punishable are legislature s prerogative imposed for crimes classified sentence these charged with applying unconstitutional Dorthey imposing In defendant s legislative a Moreover are of the length courts found to be the trial court documented its review of the the statements made by defendant history and his criminal history The trial family described heard described in this person who a court for his court court then C Cr P much different was actions in this considered the PSI recommendation and the 894 1 art The concluded that there crime if for eligible conduct showed a was an case note The trial disregard violence and that defendant desires with total s age disregard for the was court for the victim or suspension As La R S years and a a at of sentence second 15 529 at the twenty eight years imprisomnent maximum range noting that it satisfying time of the factors was his a was term to It crime of own sexual court also noted the The trial foregoing being of others a sentencing In sentence of twenty hard labor without the benefit of probation a and concluded that defendant s parole imposed felony habitual offender defendant l 1A guidelines of La sentencing and well safety interested in conclusion after consideration of the six years of the The undue risk that defendant would commit another probation total took court considered the facts of the instant offense defendant in noted that The trial court also noted that defendant has many job skills and talents trial are report letters written by defendant s friends and relatives work it determine the to felonies as purely 623 So 2d at 1278 sentence defendant s friends and from who is cnmes punishments unless they presentence investigation report PSI letters for the as a minimum of eighty years 18 tenn of was subject under imprisonment of twenty imprisonment See also La R S 42 14 1B Here defendant received relatively low end sentences for the offense guidelines of imposing term of La force and the threat Considering to imprisonment considering the art sentence court range of Defendant defendant s a possible discretion in raped the victim using physical committing a crime of violence the facts of the instant offense the sentence is not to term complied with the 894 1 and did not abuse its take her life thus grossly disproportionate assignment twenty six year imprisomnent We find that the trial C Cr P the enhanced a criminal behavior shocking or This final of error lacks merit CONVICTION HABITUAL OFFENDER SENTENCE AFFIRMED 19 ADJUDICATION AND
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