State Of Louisiana VS Henry Breaux, Jr.

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NOT DCSIGNATED FOR PUBLtCATION TE STA OF LOUISIANA COURT OF APPEAL F1RST C T RCUI 2011 KA OU l5 E T ST OF LUUISIANA VERSLJS HENRY BREAUX JR IDEC Judgment Rendered 8 2Q11 PPEALED FROM I SEVENT JUDICIAL DISTRtCT COURT HE EEN H I IN AND FOR TH E PARISH OF LAFOt1RCHE STATE OF LOUISIANA DOCKET N 463597 IMBER THE H4NORABLE JER J BARBERA C11 JUDGE ME Camille A Morvant II Attorney for Appellee District State of Louisiana Atitorney Thibodaux Louisiana Kristine M Russell Assistant District Attorney Frank Sloan Attorney for Defendant Appellant Mandeville Louisiana Henry Breaux Jr Pro Se ngola La SEFURE GAIUItY McDONALD AND HUCHE5 JJ C1 ar rv I n A noN M efendant B CH was charged by rand jury indictment with sexual battery of a person under the age of thirt count l and second degree cruelty to a en juvenile count 2 violations oi La R 14 and 14 respectively S 43 1 3 2 93 Defendant pleaded not guilty and following a trial by jury was unanimously found guilty as charged on The trial court sentepced him for the both counts sexual battery conviction to 40 y at hard labor with the first 25 years to be ars without benef t of parole probation or suspension of sentence and to 30 years at hard labor for the second were made concurrent ormation in seeking to degree cruelty to a juvenile conviction Th sentences Thereafter the state filed a habitual offender bill of nhance s defendant sentences pursuant to La S R 1 529 15 Collowin a habitual offender hearing an October 12 2010 the trial court adjudicated de to be a fourth habitual offender and sentenced him to endant felony life imprisonment without benefit of parole probation or suspension af sentenc The trial c subsequently realized it had failed to specify which sentence was urt enhanced and on its own motion set a hearing to modify and amend the habitual ender f ot sentence it imposed Accordingly on November 23 2010 the trial court sentenced defendant pursuant to La S R 529 l 15 lA b as a third i felony habitual oon his conviction for sexual battery of a person under the ag of iender thirteen to 75 years at hard labor the first 25 years to be without b of parole nefit probation or suspension of sentence Pursuant to La R 15 1 S 529 c 1A ii defendant was sentenced as a fourth habitual offender for the second degree felony In ordcr to prot thc identity of th minor victim the initials of defendant the victim and the ct s n victi uncle will be used herein See La R 46 S 1844W z Prior to iis amendment by 2011 La Acls No 67 1 All remade herein tc7 La R 15 are rnade to lhat provision as it existed prior to erences S 529 1 by 2010 La Acts No 911 1 and Na 973 2 its ai rat aendm 2 cruelty to a juvenile conviction to life imprisonment at hard labor Th sent nces were made conc urrent Uefendant now appeals raising four counseled and six pro se assignments of cz For the followin reasons we aftirm both convictions and defendant s adjudication and sentence as a third habitual offender on count one sexual felony battery We reverse defendant adjudication and sentence as a fourth s felony habitual off on count two second degree cruelty to a juvenile and remand nder this matter for resentencing on that conviction ASSIGNMENTS OF ERROR Counseled Assi of nts Ert 1 Tl1e trial court erred and abused its discretion in preventing or defendant from impeaching the reliability ofthe victim testimony by s introducing evidence that she previously had recanted rape allegations she made against her uncle 2 The trial court erred and abused its discretion in preventing or defendant from presentin evidence that the victim uncle had the s predisposition and opportunity to have caused the injuries to the s victim privates 3 The trial court erred in adjudicating defendant to be a fourth felony habitual offender and in sentencing him to life imprisonment 4 The trial court erred in failing to vacate the life sentence previously imposed when it resentenced defendant Pro se Assi of Error nInents l The rial court erred in charging defendant as a fiourth felony habitual offender 2 The disclosure requirements ot Brady v Maryland 373 U 83 S 83 S 1194 l0 L 215 1963 were violated by the state and Ct 2d Ed the trial court 3 The sentence imposed upon defendant for the sexual battery conviction was grossly excessive because it exceeded the sentencin guidelines 4 The grand jury indictment was defective in that it failed to include the essential facts constituting the offenses charged against defendant as required by I GCr art 4fi4 aP 3 5 The trial court Iacked subject matter jurisdiction over the instant prosecution 6 Z trial court erred in sentencin defendant under the habitual he S offender statute La R l 5 which is ar unconstitutional 1 529 statut FACTS In April 2008 defendant obtained custody of his five biological old ar y daughter L A returned to Several months later on August 18 2008 shortly after the child s defendant home tollowing a court visitation with her ordered maternal relatives defendant filed a complaint with the Lafourche Parish Sheriff s Office LPSO concerning bruises the on up follow investagation the child was rear portion observed of her to be body frail During the and limping Investigators were told by both def and P that she had fallen off a jungle ndant L ym and broken her left leg in July of 2008 and had required surgery on that leg As a result of the continued investigation by the Office of Community Services and the LPSO P eventually was removed from defendant L shome and placed in a foster home On her first evening in the foster home P foster s L mother noticed what appeared to be blood on P panties On August 28 2008 s L L P was taken to Children sHospital in New Orleans for an examination by Dr a Yameik Head stipulated by th parties to be an expert in the field of child abuse pediatrics The results of the examination by Dr H ad were highly abnormal Dr Head who indicated that she has seen over a thousand children suspected of being naltreated indicated that the traumatic genital and anal injuries she observed durin s L P examination were the worst she had ever seen Additionally Dr Head testified that while P initially told her she broke her leg falling off of L monkey bars she lat stated that defendant broke her leg r At trial P testified that defendant wiped her bottom which she also L 4 I d call her privates frequently while they wer in the bathroom together In describing how defendant broke her leg she stated He was wiping me and I always kick because it hurts and h didn want me to kick him so he pulled my leg t She indicated defendant was wiping her hard when this back and it broke occurred RECANTATION OF PRIOR ACCUSATIONS In his first couns assignment of error defendant contends the trial court led erred in barring the introduction of evidence that L P had recanted prior accusations of sexual abuse that she had made against her uncle Defendant ar ues this rulin violated his constitutional rights to confront his accuser and to present a defense because it prevented him from attacking the reliability and credibility of s L P accusations against him rior to trial defendant filed a motion in limine to allow admission of evidenc r all of sexual abuse made and later recanted by P in gardin gations L March or April of 2008 The motion ng obtain custody by her inaternal of P L in 2008 L uncle U accusations made against based on the fact that prior to defendant she made accusations of bein g sexuall y abused and her was a nile juv uncle cousin r Howev her She later recanted the uncle gave a detailed confession and pleaded guilty to forcibl rape in connection with the accusa ions made by P L At the hearing on the motion in limine de argued that the rape shield endant law La C art 412 did not preverat him from cross P for E examining L impeachment s purpos on her of r canted accusations history Defendant maintained that since the accusations and recantation were inconsistent with each other the jury could conclude either that the accusations by P were false or that L she was susceptible to undue influence by maternal family members The trial court denied the motion in limine finding that a reasonable juror could not have 5 I concluded despite the r cantation that P made false accusations against her L uncle The Sixth Am to the United States Constitution and Article ndment I 16 of the Louisiana Constitution guarante an accused in a criminal prosecution the right to be confronted with the witnesses against him This right includes the right to examine cross the s ion prosecu witnesses Davis v Alaska 415 U 308 S 16 315 94 S 1105 1110 39 L 347 l9 State v Vaughn 448 So Ct 2d Ed 74 2d 1260 1267 1983 on rehearing Further an accused also has a constituCional right to present a def Washington v Texas 388 U l4 l9 7 S 1920 nse S Ct l 9 1 LEd 1 Q 19 1967 3 2d However constitutional guarant do not assure the defendant the right to es the admissibility of any type of evidence only that which is deemed trustworthy and has probative valu State v Governor 331 So 443 449 La 1976 State 2d v Freeman 07 p 6 App 1 st Cir 9 970 So 621 624 writ 0 04 La 07 14 2d d 2129 deni 2047 La 3 977 So 930 Even relevant evidence may be 08 14 2d d xclud if its probative value is substantially outweighed by its prejudicial effect See La C art 403 Further a trial judge determination re the relevancy E s ardin and admissibility of evidence will not be overturn on appeal absent a clear abuse d of discretion Freeman 07 at p 7 970 So at 625 0470 2d Generally a defendant may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony La C art f07C However the right of an E accused sex offender to present a defense must be balanced against the victim s 4 Defendant filed a writ application seeking review of the trial court ruling which this Court s declined to consider due to its noncompliance with several procedural requirements I hereafter defendant filed a new writ application which was denied by this Caurt iowever a d of nial supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction and does not bar reconsideration of or a differcnt conclusion an the same issue when an appeal is taken See llisplay South Inc v Express Computer Supply inc Oh 1137 p 4 n La App lst Cir 5 961 So 451 453 n 3 07 4 2d 3 6 interests under La C E art 412 which is irttended to protect a victim of sexual om assault fi p her sexual having La 2 5 12 97 702 history made 2d So 680 684 2665 public State v Everadge 96 Thus in a prosecution for sexually assaultive behavior Article 412 prohibits the intz of evidence of the s victim past sexual behavior with certain Iimited exceptions Freeman 07 047p at p 0 2d 5 97 So at 624 r Howev the rape shield law is not applicable when a defendant attempts to use evidence of a victim false allegations of improper s sexual behavior to impeach the victim credibility State v Smith 98 p 5 s 2045 La 9 743 So 199 202 In such instances the relevant inquiry for the 99 8 2d 03 trial court is whether reasonable jurors could find based on the evidence presented by the defendant that the victim made prior false accusations Smith 98 p 2045 743 2d 6 So at 203 In the instant case considerin that P uncle confessed and pleaded s L guilty to forcible rape we fnd no t in the trial court conclusion that s defendant failed to establish that P accusations against him were false In any s L event defenda appears on appeal to have abandon nt dhis contention that P s L accusations against her uncl might be false r Rath defendant now argues that the trial court earred in concluding that only evidence of prior false accusations of sexual abuse by d L P could be us to impeach her testimony He asserts that evidence regaarding P false recantation of her accusations against her uncle s L was relevant to d monstrate that her ability to recall and report events consistently over time was flawed that she was unabl to distinguish between real and imagined events and that she was susceptible to the suggestions of her maternal randmother He further argu that when his interests in admitting the evidence s are weighed against those of the state in protecting the victim privacy the result s reyuires the admission of the evidence concerning the recantation 7 I s Defendant contentions are s unpersuasive The evidence as to the victim recantation would be of little if any probative value for the purposes asserted The mere fact that P recanted her accusations against her uncle has no L evidentiary valu in establishing that she is susceptible to influence by her inaternal grandmother Additionally even if the evidence as to the recantation would have some slight probative value in establishing P ability to recall and s L report past events and distinguish between real and imagined events it is greatly outweighed by the interest in protecting her sexual history from becoming public Uefendant suggests that embarrassment and humiliation to the victim could have be minimized by allowing him to present evidence of the recantation to the n jury by eans ir other than examining cross L P However doin so would have defeated the very purposes for which defendant clai the evidence was relevant ns which purportedly was to demonstrate the victim ability to recall and report past s events consistently her ability to distinguish what is real or imagined and her susceptibility to familial influence Merely informing the jury that a false recantation occurred would be of little evidentiary value as to any of these issues since the recantation could have been the result of a myriad of other factors Moreover defense coui could have explored P ability to recall past ev sel s L nts to distinguish between what is real or imagined and her susceptibility to amilial influence of h maternal relatives by cross her on matters having no r examining connection to her past s history xual This assignment of rror is without merit PREDISPOSITIUN AND OPPQRTUNITY TO CAUSE INJUR ES ln his counseled and pro se assignments of error number two defendant aargues the trial court violat his right to present a defense by pr him from d ventin presenting evidence that P uncle had the predisposition and opportunity to s L have caused her genital and anal injuries Defendant asserts he was erroneously S denied his right under La C art 412B to introduce evidence of past sexual E 1 behavior of the victim in order to show that someone else namely P uncle s L was responsible for her injuries Additionally defendant contends in his pro se assignment of error that his constitutional right to present a defense was denied by the trial court refusal to admit evidence regarding the confession and conviction s of P uncle for her forcible rape s L As previously noted evidence o the sexual history of a victim of sexually assaultive behavior gen is not admissible at trial exc for limited purposes rally pt Louisiana Code of Evid article 412 provides in pertinent part that nc B Otlaer evidence exceptions When an accused is charged with a crime involving sexually assaultive behavior vidence of specific instances af the victim past sexual behavior is also not s admissible except for 1 Evidence of past sexual behavioz with persons other than the accused upon th issue of whether or not the accused was th source of semen or injury provided that such evidence is limited to a period not to exceed seventy hours prior to the tim of the offense two F Past sexual behavior de For purposes of this Article ned the term past sexual behavior means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged On the f rst day of trial in this case defendant fil a motion in limine d pursuant to Article 412 to admit vidence that P previously was sexually L assaulted by her uncle and a juvenile cousin for the purpose of suggesting that those assaults were the source of her injuries Defendant further asserted that s L P uncle was a frequent visitor to his mother house during P court s s L red ord weekend visitation and therefore still had access to her at the time of the most recent sexual assaults further suggesting he may have caused the injuries in 5 Defendant never raised lhe pos5ibility or mentioned any evidence that anyone other than P s 1 uncle and possibly her juvenile cousitt could have been responsible for P injuries s L 9 question On the same date the state also filed a motion in limine to exclud evidence by the defense that someone else committed the sexual assault of the victim tllat r her vaginal and anal injuri since the defense failed to sulted in s comply with the procedural requirements for admitting such evidence At the hearing held on the opposing motions the stat argued that defendant was precluded from introducing evidence regarding the prior sexual abuse of P L by her uncle because he failed to file a timely motion as required by Article 412D In order to offer evidence under the exception provided by Article 412B that a 1 person other than the accused was the source of the victim injury the accused is s d quir r to fle a written motion within the time limit provided for pretrial motions d accoinpani by a written statement of evidence delineating persons to be called as witnesses See La C art 412C E D If the trial court determin that the s statement of evidence contains evidence such as tk described in Article 412B a at hearing should be ordered to determine if the evidence is admissible L C art aE E 412 ln the instant case the trial caurt granted the parties until October 30 2009 to file pretrial motions Since defendant did not file his motion to introduc evidence of the victim sprior injuries from sexual assaults until January 2G 2q 10 the trial court found the motion untimely The trial court further concluded that even if the motion had been timely def statement of evidence did not s ndant present competent evidence of any of the exceptions described in Article 412B 1 Specifically although defendant sought to i ntroduce the evidence in c in uestion order to establish that the prior abuse was the source of P injuries he offered s L sstatement of evidence listed four witnesses who allegedly would have testified as Defendant follows 1 a nei of P maternal gran would testify that she knew P uncle hbor s L dmother s L was at his m house at the same time that P was there tor court overnight s ther L ordered visitation with her grandmother 2 a therapist who treated P durin the time in question L wauld testify that she knows that the child complained af abuse by her uncle rather than her father 3 defendant irlfriend would testify she wrote to defendant in jail that she was tired sex af peoplc lying about him and 4 defendant ssister would testify shc was told by P that her L cle ui was still abusing her 10 no competent evidence that any specific acts of sexual behavior occurred within 72 hours of the instant offense According to defendant statement of evidence the s prior sexual abuse resulting irt the uilty plea of P uncle occurred in February s L of 2008 However the medical evidence indicated that P genital and anal s L injuries were inflicted within two to our weeks of her August 28 2008 physical examination We find no error in the denial of defendant motion in limine on the s nds grou tha it was not ly tim filed In Michigan v Lucas S00 U 145 111 S Ct S 1743 1 l 4 L205 1991 the United States Supreme Court reversed a 2d Ed lower court d holding that a notice and hearing requirement similar to that cision provided in Article 412 was per se unconstitutional In reaching this holding the me Supr Court noted that to the extent that a rape shield statute operates to prevent a criminal detendant rom presenting relevant evidence the def sability to ndant confront adverse witnesses and present a defense is diminished but this do not s necessarily render the Ct 149 111 S at statute 1746 unconstitutional Michigan v Lucas 500 U at S Moreover some courts of this stat have upheld the exclusion ot evidence of the victim prior sexual behavior when the defendant s failed to file a timely motion as required by Article 412C D See State v Kinsel 00 p 10 La App Sth Cir 3 783 So 532 538 writ 1610 11 1 28 2d denied 01 La 3 812 So 641 State v Billings 93 p 3 1230 02 28 2d 1542 La App 3d Cir 5 b40 So 500 501 writ denied 94 La l0 Fi44 94 4 2d 1437 94 7 2d So 631 In the instant case there was a period of over nine months from the time that the grand jury returned the indictment until the deadlin for filing pretrial motions Defense coLinsel offered no explanation for failing to file the required motion during t1 extensive time period Moreover we reject def is scontention that ndant 1 the state was not pr by the deFendant failure to ia timely motion judiced s because his first motion in limine sought the admissibility of the same evidence Th two motions in limine filed by defendant radically were different The tirst was directed at introducing evidence of the victim prior accusation of sexual s abuse and her subs cecantation thereof for the purpose of impeaching her quent credibility As such it did not fall within the scope of Article 412 See Smith 98 2d 2045 p 5 743 So rctim v may hav at 203 been the In contrast evidence that prior sexual abuse of the source of her icle 1 contemplation of Ar 412B which accompanying statement nts m requir deprived of evidence the state as well injuries fell necessitated s Defendant as the victim of squarely within the a timely motion and failure to meet r prop notice these Thus the state was deprived of an opportunity to investigate the evidence and witnesses included in the rec statement of evidence attached to defendant uisite smotion Additionally we agree with the trial court that even if defendant smotion had been timely the attached statement of evidence failed to describe evid that nce would have allowed the introduction of evidence regarding the prior sexual abuse under aiay of the exceptions provided by Article 412B In particular it failed to 1 describe competent evidence of sexual behavior of the victim with anyone other thar defendant within 72 hours of the ins offense The only evidence included ant in the statement as to possible sexual abuse of P by her uncle during the L applicable period suggested by the medical evidence consisted of hearsay testimony regardin unspecified complaints of abuse purportedly mad by P L Considering this fact as we11 as the medical evidence indicating the prior abuse was not the source ofi P injuries we find no enror in the trial court ruling that s L s the statement of evidence did not include evidence such as that described in Article 1 412B 12 On appeal defendant argues the trial court erred in excluding evidence that went beyond the bounds of Article 412 specifically that P uncle pleaded s L uilty to forcible rape as long as the jury was not told that P was the victim He L contends he should have been allowed to present this evidence together with evidence that the uncle was a visitor to his mother house durin P court s s L oider weekend visitation during th period that the latest abuse occurred d However it should be noted that the defense never indicated to the trial court that it wished to introduce evidence of the uncle rape conviction without designatin s L P as the victim nor did the d attempt to offer such evidence at trial It is fense clear fram a review of the record that the overall focus of defendant motion was s to obtain admission of evidence of her uncle sprior sexual abuse of P L Finally in his pro se assignment of error defendant fux argues that the state was required by Brady v Maryland 373 U 83 83 S 1194 10 L S Ct 2d Ed 21 S to present all material evidence to the jury including the fact that 19b3 s L P uncle confess to and was convicted of forcibly raping her on a prior d occasion This arguinent misconstrues the holding of Brady which requires the state to disclos to the defendant upon request any evidence that is favorable to the accused when the evidence is material to guilt or punishment See In re Riehlmann 2004 La 1 891 So 1239 1243 n per curiam The 0680 OS 19 2d l Brady rule imposes no obli upon the state to presen to the jury at trial all ation evidence favorable to the accused These assignments of error lack merit ON CAT ADJUD AS FOURTH HABITUAL OFFENDER FELONY ln his third counseled and first pro se assignments of error defendant argues the trial court erred in adjudicating him to be a habitual offender felony ourth Specitically he complains that the trial court erred in utilizing one of the two s convictior obtained in the instant matter as a predicate in adjudicating him to be a 13 habitual offender witla respect to the other cortviction obtained that same date Thus defendant asserts he can only be adjudicated to be a third habitual felony nder off At the habitual offender hearing the state presented evidenc establishing that defendant had prior felony convictions for aggravated ffrom an otficer ight and for cond possession of marijuana s offense Relying on these two predicate oflenses as well as the convictions obtained in the pr matter for sexual sent battery and ci to a juvenile the state argued that defendant was a fourth felony habitual offender Moreover because the instant conviction for sexual battery was a sex offense as defined in La R 15 et seq and the convictions S 540 for aflight from an officer and secor degree cruelty to a juvenile were ravated d s crim of violence under La R 14 the state argued that defendant should be S 2B sentenced to life imprisonment under La R 15 The trial court S 529 ii c 1 1A pted acc the state position and utilizin the instant conviction for sexual battery s as a predicate conviction adjudicated def to be a fourth habitual endant felony otfender and sentenced him to life imprisonment on the conviction for second degree cruelty to a juvenile We find adjudicating merit in defendant to s defendant contention that the trial be a felony fourth habitual offender court erred in in pertinent part La R 1 S A states Any person who after having been convicted within S S29 1 this state of elony a thereafter commits an subse uent elon f within this state upon conviction of said felony shall be punished as follows emphasis added he me T Supr Court has held that the plain language of this provision reflects a legislative intcnt to expose a person who has previously been convicted of a felony to imposition of habitual offender penalties for any elony committed after the date of the 969 prror felony 2d So 1233 conviction 1243 See State v Shaw qfi p 16 La 11 27 2467 7 S 529 1 1 Therefore La R 15 A 14 as well as the jurisprudence interpreting it requir that a pr conviction must precede the dicate principal offense in order to be used to enhance a defendant status as a multiple s offender See State v Johnson 03 p 17 8 10 884 So 568 2993 La 19 04 2d 578 In the instant case defendant conviction for sexual battery could not be s used as a predicate to enhance his convictian for second degree cruelty to a juvenile because it did not precede the latter conviction as required by La R S 1 529 1 15 A being ndant Def did not commit th cruelty to a juvenile off after nse convicted for sexual battery Thus because he was convict of both d offenses on the sam date the sequencing requirement was not met in this cas Accordingly s fendant d reversed and the life sentence adjudication imposed as a felony faurth thereon is vacated offender is This matter is remanded to the trial court for further proceedings consistent with this opinion FAILURE TQ VACATE PRiQR SENTENCE In his fourth counseled assignment of error defendant ar the trial court ues erred in imposing new habitual offender sentences on November 23 2010 without vacating the ea life sentence imposed on October 12 2010 r li As previously noted defendant originally was sentenced on both of th instant convictions or March 1 201 Q He was subsequ adjudicated to be a ntly felony fourtl habitual affender and sentenced to life imprisonment without benefit of parol probation or suspension of sentence following a habitual offender hearin on Octob r12 2010 Howev rbecause the trial court failed to specify on 7 Conirary to the state argument io he trial court the fact that La R 1 S allows s S S29 1I3 mulCiple ccmvictions obtained on the same day if obtained after ctober 19 2004 to be treated as separate convictions for future enhancement purposes does not elirninate thc sequencing requirement of La k 15 1 S 529 1 endant Def is not rotected by principles of double jec fi bein adjudicated again under pardy rom the Habitual OffeYider Law See State v Thomas b5 p 12 La App 1 st Cir 6 93 2210 OC 9 2d So 168 177 writ denied 2006 a 4955 So 683 2403 07 27 2d 1S which conviction the life sentence was imposed defendant was resentenced as a aabitual offe der on both convictions on r Novemb 23 2010 At that time the trial court vacated th original sentences imposed on Marcla 18 2010 but fail to d speciiically vacate the habitual off life sentence imposed on October 12 nder olo 11e I habitual offender statute clearly requires the sentencing court when imposing a habitual offender se to vacate any sentence previously impos tence d in the case a S See I R 3 1D 529 15 A trial court failure to comply with this s quirement results in an illegal habitual offender s State v Jackson 00 r ntence 0717 p 3 App 1 st Cir 2 16 814 So 6 9 banc writ denied O l La 01 2d en Q673 La 1 3 02 S 811 So 95 2d However in those cases wh the trial court re clearly intended to impose a new sentence as a substitute for the original scntence no scnteracing discretion is involv the correction of the ille sentence and an din al appellate court has authority under La C art 82A to correct the sentence P Cr without the necessity of vacating the habitual affender sentence or remandin for resentencirtg See Jackson 00 p 4 and 6 814 So at 9 and l l 0717 2d in sentencing defendant at the second habitual offender hearin the trial t coua evidently overlooked its duty under La R 15 D to vacate tl prior S 529 3 1 lite sentenc imposed The trial court clearly did not intend to i two life npose senteraces upon defendant for the same conviction Accordingly we hereby vacat the Iife sentence i upon defendartt on October 12 2010 to conform to the nposed ements requi of La R 15 See Jackson 0 p 6 814 So at S 529 3 1D 0717 2d 1 1 kiavin alr order remand of this matter on other grounds we further ady d instruct the trial court to ainend the minute entry and commitment to reflect that the life sentence impos on October 12 2010 has been vacated d This assignment of error lacks merit lb SEXUAL SATTERY SFNTENCE In his third pro se assignment of error defendant cont the sentence nds imposed on his sexual battery conviction is illegal unconstitutional and excessive cause b it exceeds the ten maximum year sentence authorized by La S R 1C for this off 43 14 nse Llnder La R l 4 C a defendant convicted of sexual battery is S 43 1 1 exposed to a pof imprisonment with or without hard labor of not more than nalty ten years However since the victim in th instant case was under the age of thirteen the applicable sentencing provision was La R 14 C Under this S 43 2 1 provision wh the victim of the sexual battery is under the age ofthirteen and the n offender is at least sevent years old the offender is exposed to imprisonment at en hard labor for not less than 25 years and not more than 99 years with the first 25 years to be without benefit of parole probation or suspension of 5entence The trial court ori sentenced defendant under this provision to 40 y at hard inally ars labor Subsequently defendant was adjudicated to be a third habitual felony offender with respect to his sexual battery conviction The trial court then tenced n ser hi under La R 15 which exposed him to a potential S 529 i b 1 1A nce sent on that conviction of not less than 66 years nor more than l 98 years The trial court sentenced him to 75 years at hard labor th first 2S years to be without benef t o parole probation or suspension of sentence The sentence imposed was within the applicabl statutory limits and in fact near the lower end of the continuum of possible s ntences his I assigtlment of error lacks merit 17 GRAND Jl1RY INDICTMENT In his f pro se assignment of error defendant contends the indictment urth returned by the grand jury was detective because it did not state the essential facts comprisin the charged offenses as required by La C art 464 P Cr The time for testing the sufficiency of a indictment or bill of in is t ormation before trial by means caf a motion to quash or art application for a bill of particulars Normally a postverdict attack on the sufficiency of an indictment should be rejected unless the indictment i give fair notic of the offiense charged or ailed to failed to set forth any id offense State v Manning 03W1982 p 48 La ntifiable 1 p 85 So 1044 1089 cert d 544 U 967 l 2S S 1745 161 04 19 2d nied S Ct Zd d L 612 2005 Since defendant failed to tile a motion to quash in the instant case he waived any claim based on the allegedly defective indictment Moreover the indictment was not fatally defective In accordance with La P Cr C art 4b4 an indictment should be a plain concise and definite written nt statem of the essential facts constitutin the offense char and should ed include a citation to the statute that the defendant is alleged to have violated Nevertheless the indictment itself need not set out the detailed facts constituting the violation because a def may procure such detai through a bill of ndant s particulars State v Gainey 37b So 1240 1243 I1979 State v Tupa 2d 44 a 51 S 2d So 51 G 517 2 n a L App 1 st Cir 7 19 ThuS if the indictment sufficiently identifies the conduct charged and the statute violated a motion to quash will not be granted Gainey 376 So at 1244 A review of the indictment 2d indicates these requirements were met in the instant case This assignment of error is without merit SUBJECT MATTER JURISDICTION In his fifth pro se assignment of error defendant contends the trial court lacked subject matter jurisdiction over this prosecution because the charg against s 18 him were invalid Specifically he complains that the grand jury indictment was defective because it did not cantain an enabling clause Under La Const art 16A the district court is vest with original d V jurisdiction over criminal prosecutions No l gal basis exists for defendant sclaim that a crii indictment s iens o of whicl must contain fendant d was an enabling clause Furthermore the charged and convicted re w enacted by legislative acts containing proper enacting clauses as required by La Const art III 14 See 1991 La Acts No GS4 2043 La Acts No 232 and 1999 La Acts No 191 This assi of error lacks merit nment CUNSTITUTIONALITY OF HABITUAL OFFENDER STATUTE In his final pro se assignment of error defendant contends the Habitual Offender Statute La R 15 unconstitutionally violates the Due Arocess S 529 1 Clause of the Fourteenth Amendment to the Unit dStates Constitution because it removes from th jury the d of facts relating to a defendant prior termination s tions convic Citing Apprendi v New Jersey 530 U 4b6 120 S 2348 147 S Ct 2d Ed L 43S 2000 and numerous other cases defendant argues that pr dicate convictions are an essential element ot the offense and therefore must be found by a jury beyond a reasonable doubt Initially we note that defendant failed to raise this issue before th trial court An irregularity or error cannot be availed of after verdict unless at the time he ruling or order of th court was made or sought the party mad known to the court the action that he desired the court to take or o his objectians to the court s action and the grounds therefor La C art 841 State v Dudley 06 p P Cr 1087 31 La App 1st Cir 9 984 So 11 30T31 writ not considered 08 47 19 2d 1285 This provision states that The style of a law enacted by the legislature shall be Be it enacted by the Legislature of Louisiana lt shall be unnecessary to repeat the enacting clause atter the irst sectian of an act Emphasis added 19 La l I 2S So 783 1n any event the Louisiana Supreme Court has held 09 20 2d on numerous occasions that the Habitual Offender Law is constitutional in its entirety See State v Johnson 97 p 5 La 3 7Q9 So 672 675 1906 6 98 4 2d Moreover Apprendi by its own language is not applicable to habitual offender proceedings See Apprendi 534 U at 476 120 S at 2355 State v LeBlanc S Ct 1032 04 p l La 2 App st Cir 12 897 So 736 744 writ denied OS 04 17 2d O1 SU La 4901 So 1063 cert denied 546 U 905 126 S 254 163 QS 29 2d S Ct 2d Ed L 231 2005 status rather than a it is well s that a habitual offender proceeding is a ttled criminal proceeding Accordingly the right to a jury trial does not apply to such a proceeding as a matter of federal or state constitutional law LeBlanc 897 So at 744 2d his Iassignment of error lacks merit QN NVICT C HABITUAL UFFENDER ADJUDICATION AND SENTENCE ON COUNT ONF SEXUAL BATTERY AFFIRMED ON COUNT TWQ SECOND DEGREE CRUELTY TO A JUVENILE CUNVICTION AFFIRMED HABiTUAL OFFENDER ADJUDICATION REVERSED AND SENTENCF VACATEU THE CASE 1S REMANDED FOR RESENTENCING WITH INSTRUCT IONS 20 NOT DESIGNATED FOR PUBLICATIUN STATE OF LQUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 0015 STATE OF LOUISIANA VERSUS HENRY BREAUX JR HUGHES J dissenting The issue in this case is whether at trial evidence of a brutal sexual assault on the five year old victim can be excluded as past sexual behavior af the victim The trial court ruled that it could and this court would affirm that ruling Past sexual behavior contemplates consensual sexual activity of a sex crime victim even if promiscuous or involving prostitution The victim is not subject to character attack when testifying against an assailant It makes no sense to think of a five year old as having past sexual behavior Anything that occurs with a five year old would obviously not be consensual and would constitute a crime In this case this behavior involves a convicted rapist against whom the child has made detailed and explicit videotaped statements There can be no j ustification for excluding this evidence from the trial of the child father against whom the child at a later date made much less s serious allegations thus denying the father his constitutional right to a defense to show the identity of the actual perpetrator of the crimes against his daughter To allow the rape shield law to protect not the victim but the perpetrator of a horrendous sexual assault against a five year old child is absurd This non case existent involves a five year old little girl Her past sexual behavior is There can be no testimony that she was having sex with others as contemplated by the rape shield law And she does not allege that she had sex with the defendant her father At trial in January 2010 as a b year old the child stified only that her father wiped her bottom or privates hard and that it hurt t Yet in April of 2Q08 she gave a detailed video statement that UL and CM had put their privates in her private and put their fingers in her private and twisted their fingers in her hard at S hous s The father only obtained custody of his daughter after these allegations arose He contacted the Sheriff office after he observed bruises on his daughter s s back after she retumed from court visitation His parental skills certainly ordered may be lacking But it is understandable that if his daughter had been abused it would hurt when he wiped her in the bathroom When the child stestimony at trial is compared with her earlier statements against UL and CM it is a travesty to exclude that evidence and the evidence that UL had access to the child during the time frame that the state medical expert Dr Yameika Head set for the inj uries in s this case to have occurred Although UL eventually pled guilty to forcible rape it is obvious he was not incarcerated immediately and may well have had continuing access to the child even after she reported his initial attacks It is inconceivable that the defendant would not be allowed to present this defense at trial I must therefore dissent from the majority opinion in this matter for the following reasons 1 the def was sentenced as a habitual offender to life ndant at hard labor prior to the amendment of 15 by 2010 La Acts No S R1 LSA 529 69 to authorize hard labor for habitual offenders and the underlying criminal 2 offense statutes LSA 14 and 14 do not authorize a life sentence S1 R 43 3 2 93 at hard labor and 2 defense evidence was improperly excluded concerning the fact that the victim uncle U had confessed to raping the victim earlier in the s L same year and had access to the victim during the time the crime was committed With respect to the latter the evidence was excluded by the trial court on the basis that the defense did not timely notify the prosecution of its intent to introduce the evidence and thus LSA art 412 precluded introduction of the testimony E C Article 412 provides as follows A Opinion and reputation evidence charged with a crime involving sexually When an accused is assaultive behavior reputation or opinion evidence of the past sexual behavior of the victim is not admissible B Other evidence exceptions When an accused is charged with a crime involving sexually assaultive behavior evidence of specific instances of the victim past sexual behavior is also not s admissible except for 1 Evidence of past sexual behavior with persons other than the accused upon the issue of whether or not the accused was the source of semen or injury provided that such vidence is limited to a period not to exceed seventy hours prior to the time of the two offense and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted or 2 Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior C Motion 1 Before the person accused of committing a crime that involves sexually assaultive behavior may offer under Paragraph B of this Article evidence of specific instances of the spast sexual behavior the accused shall make a written motion victim in camera to offer such evidence The motion shall be accompanied by a written statement of evidence setting forth the names and addresses of persons to be called as witnesses 2 The motion and statement of evidence shall be served on the state which shall make a reasonable effort to notify the victim prior to the hearing D Time for a motion The motion shall be made within the time for filing pre motions specified in Code of Criminal trial Procedure Article 521 except that the caurt shall a11ow the motion to be made at a later date if the court determines that Cade af Criminal Procedure Article 521 provides 3 1 The evidence is of past sexual behavior with the accused and the accused establishes that the motion was not timely made because of an impossibility arising through no fault of his own or 2 The evidence is of past sexual behavior with someone other than the accused and the accused establishes that the evidence or the issue to which it relates is newly discovered and could not have been obtained earlier through the exercise of due diligence E Hearing 1 If the court determines that the statement of evidence contains evidence described in Paragraph B the court shall order a hearing which shall be closed to determine if such evidence is admissible At such hearing the parties may call witnesses 2 The victim ifpresent has the right to attend the hearing and may be accompanied by counsel 3 If the court determines on the basis of the hearing described in Subparagraph E that the evidence which the accused seeks to 1 offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice such evidence may be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the victim may be examined or cross Introduction of examined such evidence shall be limited to that specified in the order 4 Any motion made under Subparagraph C and any statement of evidence brief record of a hearing or like material made or used in connection with the motion shall be kept in a separate sealed package as part of the record in the case Nothing in this Article shall preclude the use of the testimony at such hearing in a subsequent prosecution for perjury or false swearing F Past sexual behavior de For purposes of this Article ned the term past sexual behavior means sexual behavior other than the sexual behavior with respect to which the offense of sexually assaultive behavior is alleged First I would conclude that Article 412 was inapplicable under the facts of the instant case Article 412 applies by its terms to restrict introduction of evidence of the past sexual behavior af the victim See LSA art 412 E C A Past sexual behavior is defined as sexual behavior other than the sexual behavior with r to which the offense of sexually assaultive behavior is spect alleged See LSA art E C F 412 Under rules of statutory construction the word behavior should be given its generally accepted meaning ithe manner e Pretrial motions sha11 be made or filed within fifteen days after arraignment unless a different time is provided by law or fixed by the caurt at arraignment upon a showing of good cause why fifteen days is inadequate Upon written motion at any time and a showing of good cause the court shall allow additianal time to file pretrial motions 4 of conducting oneself See LSA art 11 LSA 1 LSA 14 State C S R3 R3 S v Taylor 99 p 3 10 7b9 So 535 537 http 2935 La 17 00 2d merriam www diction com webster behavior Thus in using the tertn behavior the legislature must have intended to reference prior sexual actions taken by the victim In this case the evidence sought to be introduced involved prior sexual actions taken by U the victim uncle not actions ofthe victim L s Furthermore the supreme court in State v Williams stated that the purpose of a rape shield law LSA 412 is ta protect victims of rape from E C being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior See State v Williams 2005w 1 S60 La 4 927 So 266 06 24 2d 2b7 citing Michigan v Lucas 500 U 145 146 111 S 1743 1745 114 S Ct 2d Ed L 205 1991 Further Comment g to Article 412 provides This Article is primarily intended to pratect the victim from improper character attacks by the accused Therefore I would conclude that n the plain language of Article 412 ither in gaverning only evidence of prior sexual behavior of a victim rather than 2 While we note that LSA art 412 has been discussed in prior cases of the supreme court and this E C court in conjunction with the adrnissibility of prior sexual abuse of a child the evidence was deerned inadmissible and the propriety af the application of Article 412 was not a litigated issue in the cases See State v Smith 98 La 9 743 So 199 holding that because the evidence defendant 2045 99 8 2d attempted to introduce did not concern the victim prior sexual behavior history or reputation for s chastity prior false allegations of sexual assault by the victirn did not constitute past sexual behavior for purpases of the rape shield statute and therefore Article 412 was found inapplicable in sexual assault cases where the defendant seeks to question witnesses regarding the victim prior false allegations s concerning sexual behavior for impeachment purposes consequently no Article 412 hearing is required when defendant seeks to introduce such evidence State v Kirsch 202 La App 1 Cir 12 993 02 20 836 So 390 writ denied 2003 La 9 852 So 1024 court held that evidence of eight 2d 0238 03 5 2d old s year victim prior allegedly false accusations of sexual activity with her 9 old year biological brother was inadmissible since the prior accusations were not proven to be false State v Michel 93 La 0789 App 1 Cir 3 633 So 941 in which it was held that evidence of prior molestation of child 94 11 2d three years previausly was properly excluded where defendant was found by law enforcement officers naked from the waist dawn in bed with child who was also naked from the waist down State v Blue 591 So 1173 La App 1 Cir 1991 vacated in art on other 2d ounds 591 So 1172 La 1992 2d evidence of prior rnolestation was not shown to be relevant The other cases in which the issue was directly addressed were State v Zierhut 93 La App 5 Cir 6 631 So 1378 1381 writ 73 6 94 3 2d denied 94 La 6 d37 So 500 and State v Hotoph 99 La App 5 Cir 11 0607 94 3 2d 243 99 10 75 Sa 1036 writs denied 99 2000 La 6 765 So lOb2 1 However the 2d 3477 0150 00 30 2d b6 stated proposition i that Article 412 applies to both the voluntary and involuntary sexual history of a e victim was unsupported by convincin authority In Hataph the Third Circuit cited St v Everidge te 2665 96 La 12 702 So 680 684 although the supreme court did not so hold and State v 97 2 2d Zierhut which cited no authority for that pasition evidence relative to someone who has imposed his sexual behavior upon the victim nor the purpose underlying the enactment of Article 412 the prevention of improper character attacks on victims justifies its application to instances of prior sexual behavior inflicted on a child victim Nevertheless even if Article 412 were determined by this court or the supreme court to be applicable to acts of sexual abuse against a child victim its application cannot override the constitutional right of the defendant to present a defense An accused is afforded the right not only to confront and cross examine the witnesses against him to compel the attendance of witnesses and to testify in his own behalf but also to pres nt a defense See LSA Art Const I 16 See also U Const Amend VI S The defendant in this case contends that his Constitutional right to present a defense and to confront the witnesses against him has been abridged The State or contends and the trial court ruled that the defendant sfailure to timely comply with E C LSA art 412 natice requirements resulted in the loss of any right the s defendant had to present the evidence at issue In suppart of his position the defendant has cited Olden v Kentucky 4 U 227 109 S 480 102 L SS Ct 2d Ed 513 1988 and State v Williams supra In State v Williams the supreme court acknowledged that Article 412 does nat and cannat preclude defense evidence given a defendant sSixth Amendment right to confront adverse witness sand present a defense sought to be introduced to counter the s prosecution introduction of physical evidence See State v Williams 2005 at p 2 927 So at 267 In so holding the supreme court 1560 2d Contrast State v T 31 La App 2 Cir 11 722 So 1073 writ denied 99 La ylor 224 98 13 2d 0024 99 30 4 741 So 9the Second Circuit ruled that the trial court erred in excluding evidence 2d wherein that the eleven victim allegedly raped by her stepfather the defendant had made a pnor old year inconsistent statement cantradicting her trial testimony that she had only had sexual intercourse with her stepfather when in fact she had admitted to a social worker that she had alsa had sex with some neighborhood boys the appellate court concluded the defendant sright to present a defense was clearly compromised and that the exclusion of the prior inconsistent statement was not harmless beyond a reasonable doubt as the case turned on the credibility of the victim 6 cited the Advisory Committee Notes to Federal Rules of Evidence Article 412 E C upon which LSA art 412 was based which states Where the prosecution has directly or indirectly asserted that the physical evidence originated with the accused the defendant must be af an opportunity to prove that another orded person was responsible See also LSA art 412 Comment b providing E C The Louisiana Supreme Court in State v Vaughn 448 So 1260 2d La 1984 has indicated that a restriction of a defendant offer to s introduce testimony as to the victim prior sexual history may violate s the defendant right to confrontation and fair trial Federal Rule of s Evidence 412 addresses this problem by explicitly providing for the admissibility of evidence other than reputation ar opinion of a s victim past sexual behavior when such evidence is constitutionally required to be admitted This Article like every Article in this Code is necessarily subject to constitutional requirements and it has not been the general practice in this Code specifically to refer to them See Art 102 comment b comments ta Art 403 Louisiana Code of Evidence Article 102 provides These articles shall be construed ta secure fairness and efficiency in administration of the law of evidence to the end that the truth may be asc and proceedings justly determined rtained Comment b to Article 102 further states The rules and procedures embodied in the Articles of this Code do not represent an attempt to interpret the Federal or Louisiana constitution Constitutional questions should be resolved by the principles and rules of constitutional law In criminal matters especially the Articles of this Code must be interpreted and applied in light of and within the confines mandated by the Louisiana and federal cnnstitutions Louisiana has developed a firm tradition of commitment to the scrupulous observance of the basic tenets af fair play inherent in the constitutianal safeguards of due process In various particulars the Louisiana Constitution of 1974 goes further than its federal counterpart in protecting the interests of the accused and the general 4 See State v Williams 2005 at pp 2 927 So at 267 wherein the defense sought to introduce 1560 3 2d evidence that the defendant son had also engaged in sexual behavior with the victim to counter the s sDNA test results of the victim aborted fetus that indicated a high probability that that prosecution s defendant fathered the aborted fetus and thus had raped the victim The State v Williams court held that Article 412 could not and did not preclude the defendant from raising any and all reasonable daubts as to the validity of the DNA results even if that challenge tended to show that the aborted fetus was the product of the victim sexual behavior with another person The supreme court also held that in the s context of record assertions by the State that its prosecution of defendant rested on two acts of sexual intercourse the secand of which led to impregnation of the victim resulting in an early term abartiqn of the fetus scientific evidence regarding the identity of the father is not evidence relating ta the victim s past sexual behavior as specifically defined in Article 412 but evidence related to the charged criminal acts placed at issue and made directly relevant to the question of defendant guilt or innocence by the s State 7 citizenry against governmental and private abuses intrusions and improprieties No intent to alter or delimit these safeguards and principles is intended nor would any such attempt or effect be constitutionally permissible Under special factual circumstances certain specific and otherwise mandatory provisions ofthis Code must necessarily bow to these notions of fundamental fairness The constitutional interpretation and application of this Code in these circumstances is entrusted to the judiciary Citations omitted Further Comment c to LSA art 403 states Because of the great deference E C paid in the American system ofjustice to the rights of the accused in criminal cases his rights to make out a defense adduce evidence confront and cross the examine witnesses called against him etc serious constitutional questions may be presented when an accused is precluded from introducing relevant otherwise admissible evidence See also State v Smith 98 La 9 743 So 2045 99 8 2d 199 202 n l In Olden v Kentucky the defendant who was accused of rape sought to introduce evidence ofthe victim alleged extramarital relationship and subsequent s habitation co with his half as being relevant to the victim motivation to brother s falsely accuse the defendant of rape in order to protect her relationship with her boyfriend the s defendant brother half Although the state court had held the evidence was not baned by the state rape shield law and acknowledged the s evidence in question was relevant to the defendant theory of the case it s nonetheless excluded the evid on the basis that its probative value was nce outweighed by its possibility for prejudice The state court was concerned that revealing to the jury the fact that the victim was involved in an interracial relationship with her boyfriend would subject her to unfavorable prejudice by the 5 The State v Smith court noted Federal Rule af Evidence 412 includes the two exceptions that are found in La C art E 412 Additionally F 412 provides that evidence of a victim past sexual E 1 R b s behavior is admissible when such evidence is constitutionally required to be admitted Although La C art 412 daes not specifically contain this exception the official E camments rthis additional exception in the Federal Rules of Evidence and state cognize that La C art 412 like very Article in this Code is necessarily subject to E constitutional requirements and it has not been the general practice of this Code specifically to refer to them La C art 412 Comment b E g jury members In reversing the state court decision the U Supreme Court S explained that while a trial court may impose reasonable limits on a defense s counsel inquiry into the potential bias of a prosecution witness to take account of such factors as harassment prejudice confusion of the issues the witness safety s ar repetitive or marginally relevant interrogation the state court limitation in the Olden case was beyond reason Thus the Supreme Court held that speculation as to the effect of jurors racial bias could not justify exclusion of evidence with such strong potential to demonstrate the falsity of the victim testimony See Olden v s Kentucky 488 U at 230 109 S at 482 S 32 Ct 83 Michigan v Lucas S00 U 145 111 S 1743 114 L 20S 1991 S Ct 2d Ed is alsa relevant to this discussion In Michigan the Supreme Court recognized that a criminal defendant right to present relevant testimony is not without s limitation and may in appropriate cases bow to accommodate other legitimate interests in the criminal trial process The Michigan v Lucas court stated that to the extent such state action operates to prevent a criminal defendant from presenting relevant evidence the defendant sability to confront adverse witnesses and present a defense is diminished however the statute is not thereby necessarily rendered unconstitutional At issue in the case was Michigan srape shield law the notice and hearing requirement of which was recognized to be supported by valid state interests such as heightened protection for victims against surprise harassment and unnecessary invasions of privacy avoidance of undue delay and 6 Once it was deternuned that the lower court erred in excluding the evidence the Supreme Court stated that the correct inquiry then became whether assuming that the damaging potential of the cross examination were fully realized a reviewing court might nanetheless say that the error was harnlless beyand a reasonable doubt Whether such an error is harniless in a particular case depends upon a host of factors which include the importance of the witness testimony in the prosecution case whether the s s testimony was cumulative the presence or absence of evidence corrobarating or contradicting the testimony of the witness on material points the extent of cross otherwise pernutted and the examination overall str of the prosecution ngth scase After considering the relevant factors within the context af the case before the Suprerne Court concluded that it was itnpossible ta conclude beyand a reasonable doubt that the restriction on the defendant right to confrontation was harniless See Olden v Kentucky 488 s S U at 232 109 S at 483 33 Ct 8 9 protection against surprise to the prosecution See Michigan v Lucas 500 U S at 149 111 S at 174 53 Ct 48 The Michigan v Lucas court then considered whether the legitimate interests served by a notice requirement such as that contained in the rape shield law can ever justify precluding probative evidence which evidence in that case was of a prior consensual sexual relationship between a rape victim and a criminal defendant In discussing the issue the Supreme Court pointed out that probative evidence may in certain circumstances be precluded when a criminal defendant fails to comply with a valid discovery rule Citing United States v Nobles 422 S U 225 9S S 2160 45 L 141 1975 and Taylor v llinois 484 U Ct 2d Ed S Ct 2d Ed 400 108 S 646 98 L 798 19 the court stated that the Sixth Amendment does nat confer the right to present testimony free from the legitimate demands of the adversarial system and where a discovery violation amounts to willful misconduct designed to obtain a tactical advantage evidence preclusion may be justified particularly when a less severe penalty would perpetuate rather than limit the prejudice to the State and the harm to the adversary process However preclusion is not permissible every time a discovery rule is violated rather alternative sanctions should be considered if adequate and appropriate in the case See Michigan v Lucas 500 U at 151 111 S 1747 S 52 Ct 48 Based on these authorities it must be concluded that ven if LSA art E C 412 is applicable in the instant case its dictates cannot take precedence over the validly asserted constitutional rights of a criminal defendant An examination of 7 The Supreme Court described notice requirements as a salutary development which by increasing the evidence available to both parties enhances the fairness of the adversary system Miehigan v Lucas 500 U at 150 111 S at 1747 S 51 Ct In United States v Nobles the defendant refused to comply with the district court order to submit a s copy of a witness report to the prasecution In Taylar v Illinois the defendant violated a s investigator state procedural rule by failing to identify a particular defense witness in response to a pretrial discovery request In both cases the sanction imposed for the violation was exclusion of the undisclosed evidence ar and witness See Michigan v Luc s500 U at 151 111 S 1747 S 52 Ct 48 o the facts and procedural history of this case indicates that the trial court applied E C LSA art 412 as written without giving adequate weight to the defendant s rights under both Article I 1 b of Louisiana Constitution and the Sixth s Amendment of the U Constitution S In the instant case when the January 26 2010 trial date was set th trial court also set an October 30 2009 deadline for the filing of motions the order fixing these dates was signed on October 14 2009 On October 20 2 the 09 defendant filed a in Limine Requesting Admissibility of Recanted Motion Testimony in which a declaration as ta the admissibility of the victim recanted s testimony was saught In the mation the def asserted ndant All of the victim s admissible in the trial af recanted accusations should now be the defendant They would be offered not far the truth of the matter asserted but ta document that she has a history of making false allegations The recent disclosure also raises the n for the defense to request an additional psychological ssity c evaluation of the victim to determine if she has been unduly influenced by her mother sfamily Furthermore the Rape Shield Law should not be invoked to prevent from proving the victim history of s accusations and recanted accusations A hearing on this motion was scheduled for November 16 2009 In the s defendant November 13 2009 pre memorandum in support of his hearing motion he further stated that he sought to introduced a video tape made in connection with Child Advocacy Center forensic interviews in which P accused L her uncle U and her teenaged cousin C of sexual abuse P had L M L recently recanted these accusations he also intended to call U as a witness L asserting that U had pled guilty to the forcible rape of P and U L L s L confession coupled with P recanting the accusations show that P had been s L L improperly influenced by her mother family to transfer blame from her uncle to s her father th defendant pled guilty 9 to the The prosecutor acknowledged that U had in fact L charge of forcible L rape of P Both the State and the defense The record shows that U is P maternal grandmather san L L s s 11 agreed that P previously liv with her maternal grandmother where U either L d L lived or visited regularly until April of 2008 when the abuse by U was L discovered and the defendant obtained custody of P by means of a temporary L court order However the defendant asserts that U continued to have access to L L P when she visited at her grandmother house The defendant argued that he s could present witnesses neighbors of P grandmother who would testify that s L when P was at her grandmather house U would also be there even after the L s L defendant obtained custody of P a fact that the defendant contends showed the L abuse for which he was charged was committed by U at P grandmother L s Ls house During the hearing the parties stipulated that there were four video tapes in which P accused U of sexual abuse leading to his plea of guilty to forcible L L rape and that P later recanted those accusations in an unrecorded unwritten L At the conclusion of the hearing the trial court ruled that the video statement tapes of P allegations against U could not be admitted into evidenc as s L L prior inconsistent statements because the jurisprudence required that such a statement b false to be admissible See State v Smith 743 So at 2Q2 2d 03 wherein the supreme caurt held that priorfalse allegations of sexual assault by the victim are submitted as evidence for impeachment purposes and are not considered past sexual behavior and so may be used at trial without previously requesting an Article 412 hearing See also State v Kirsch 202 La App 1 Cir 0993 02 24 12 836 So 390 writ denied 2003 La 9 852 So 1024 2d 0238 03 5 2d 10 Testimony was presented at the defendant scriminal trial that a consent judgment reached by the parties including 1 mother C who was incarcerated at the time on August 15 2008 which gave s L L the defendant custody of P but required the defendant ta allow visitation with her grandmother C L s L and U mothEr P went for an overnight visitation with her grandmother on August 16 2008 just s L L prior to the tim her injuries began to be discovered on August 18 2008 After receiving an adverse ruling on his October 2009 motion in limine the defendant herein applied to this court far supervisory review of the trial court ruling His first application was nat considered for s failure to camply with the Uniform Rules for Louisiana Courts af Appeal See State v Breaux 2009 KW 2382 La App l Cir 1 unpublished On the defendant 10 19 ssecond application for review this court denied the application See State v Breaux 2010 KW 0132 La App 1 Cir 1 l0 26 unpublished i2 Thereafter the defendant filed a second motion in limine on January 26 2010 entitled 1Vlotion in Limine Pursuant to C Art 412 to Admit Evidence E s Cancerning Victim Prior Injuries from Sexual s Assault In this motion the defendant sought to be allowed ta present evidence suggesting that U and L or M C caused the vaginal and anal injuries sustained by the victim L P The smotion also stated that he had previously made clear his intention to defendant raise the issue of whether someone else could have inflicted the child injures in s his ctober 26 2009 motion in limine and during the subsequent November 16 2009 hearing wherein defense counsel made clear his intention to use the defense that the sexual abuse of P was perpetrated by the victim maternal uncle L s L U and by a juvenile cousin The defendant further asserted that during the prior hearing he sought permission to introduce the video tapes in which the victim P graphically detail the vaginal and anal rapes committed upon her L ed by U noting L that U had confessed L and pled guilty to the crimes The defendant made the follawing additional assertions It would be highly misleading to the jury to allow the prosecution to suggest that U could not have been the source of the child L s injuries As set forth in the attached statement of defense evidence there is abundant proof available that U sexually assaulted the L child on more than one occasion Even more import to the defense is the evidence that U still had access to P during the period of L L time when the most sexually assaultive acts are alleged to have recent s place Specifically neighbors of the victim maternal grandmother will attest to the fact that U was a frequent visitor to L s L P maternal grandmother shouse during her court weekend ordered visits during the time period wh the most recent sexual abuse n taken reportedly occurred Emphasis omitted In the Statement of Defense Evidence attached to this motion the defendant claimed the listed witnesses would testify as follows 1 Rhonda Celestine would testify that she entered into a written contract to rent U a L 12 It should be noted that the prosecutor also acknowledged during the course of these proceedings that L U did in fact confess and plead guilty to the forcible rape of P The guilty plea was received in the L sarne judicial district court as Che instant proceeding in the latter part of October 2009 as referenced by the trial court judge during his ruling at the Novernber 16 2009 hearing 13 television set at the address of P maternal grandmother and that she knows s L that U was at the grandmother L shouse when P was there for court L ordered overnight visitation during the time the most recent assaults occurred 2 Dawn Chadwick would testify that she conducted counseling sessions with P who was L ht brou to her office by the de and that she knows that P complained of endant L abuse by her uncle but not by her father 3 Lanie Falgout the defendant sthen girlfriend would testify that she wrote to the defendant in jail telling him that she was tired of people lying about him and 4 Jessica Bergeron the defendant s sister and P aunt would testify that she was told by P that U was still s L L L abusing her On the same date January 26 2010 the State filed a motion in limine seeking a pre determination as to the admissibility at the defendant trial scriminal trial o any defense evidence to show someane else may have committed the sexual assault and inflicted the horrific vaginal and anal injuries on P L sometime in the months of July and August 2008 In its motion the State contended that the defense had not complied with LSA art 412 stating E C here T has b nothing filed referencing Code of Evidence Article 412 en A hearing on both the State and the defendant motions in limine was held s s on January 26 201 d during which the defense counsel argued that the defens it sought to present at trial was we11 to the State as follows known s t Iclear that the State knew where we were going with this that the defense was that U caused the child injuries And the issue L s is really broader than whether he caused the injuries or not s It my position that the defendant has a right to offer to the jury alternative explanations alternative persons who may have caused or may have committed the crime That he could he can rebut the State s or 1 It is the duty of a prosecutor to seek the truth not win the case It is troubling for a prosecutor to seek to exclude evidence on procedural grounds that someone else committed the crime if further investigation is needed tl state can seek a continuance ta avoid prejudice to its case Convicting the e wrong person allows the real perpetrator to escape justice Prosecutors represent a sovereign whose obligation to gavern impartially is as compelling as its obligation to govern at all and whose interest therefore in a criminal prasecution is not that it shall win a case but that justice shall be done Berger v United States 295 U 78 1935 S 14 inference that he was the only adult male in this child life who s stayed overnight under the same raof with her And that would be clearly misleading to the jury since the evidence that we proposed and I have a list of witnesses who could attest ta this is that the child was making overnight visits under a court order with her maternal grandmother and that other people in the neighborhaod knew that L U was at the house when the child was L U being the saYne person who has confessed to raping the child on a previous occasion who has plead guilty in this court to farcible rape of this child And it would b v misleading to the ry jury to let them think that only the defendant could have done this when the child is knawn to be staying under the same roof with a convicted rapist And to not allow m to introduce that evidence is to hamstring the d to the paint where he loses his right to present efense an obvious defense And it broader than the issue of whether I can prove U s L caused the injuri it deals with the issue of whether I can offer s another potential suspect and point aut to the jury that the prosecution has not eliminated a r asonable hypothesis of innocence which this could be That although the child was raped that the rape did not was nat done by her father the defendant The transcript of the November 16 2QQ9 hearing on the defendant frst s motion in limine corroborates the defense argument that these issues were raised at that time Although the primary focus of the defense counsel argument during s the Navember 16 2009 hearing was that the evidence that PL had previously made accusations of sexual abuse L against U statements recanting those accusations which were made to a social worker should be admissible as impeachment evidence caunsel made the following statements I think that the theme of the cases in both Louisiana and in the federal court is that the defendant Sixth Amendment Constitutional s Right ta confront his accuser trumps any limitation on the rape shield law or anything else as long as the evidence is probative and I think in this case it definitively probative the fact that she given s s inconsistent statements and the facts aren tquite as clear cut as the prosecutor has stated I believe the evidence at trial will show that after the victim was in the custody of her grandmother and was abused by U the L defendant her father was awarded custody in a court proceeding and during the time that he had custody the child was still having contact with L U She was staying at the s grandmother house I have neighbors who are witnesses who will say that U was frequently L at the house during that time period So the issue about when these injuries occurred and when the rape occurred is not that clear cut because there a lot of evidence s that will be presented that U still was having contact with the L 1S child even after custady had been awarded to the d and the fendant defendant was being ordered by the court to bring the child to visit her maternal grandmather on a regular basis and when she was at that house is when the abuse occurred And for that reason all of the statements mad against U are very probative they relevant L re they show prior inconsistency possible influence bias motive and for that reason 1 ask the Court to admit them Under the particular facts and circumstances of this case I would canclude that the evidence sought ta be introduced was probative as to the identity of the perpetratar and that the failure of the trial court to allow the presentation of the evidence during the criminal trial was a violation of the defendant Constitutional s right ta present a defense After considering the relevant factors set forth in Olden v Kentucky 488 U at 232 109 S at 483 I would also conclude that it S 33 Ct 84 was impossible to determine that the trial court restriction on the defendant s s right ta present a defense was harmless I would further conclude that any violatian of LSA art 412 notice requirement did not prejudice the State E C s when the State had notice of the defendant scontentions with respect the victim s uncle during the November 1 b 2009 in limine hearing at the latest a less severe penalty for the rule violation cauld have been imposed given that it did not appear the defendant had wi11fu11y failed to comply with the LSA art 412 time E C s delay in order to obtain a tactical advantage and considering the fact that U L had plead guilty to raping P only a few weeks prior to the November 16 2009 L hearing la The State did not argue at the 7anuary 26 201 hearing that it had been prejudiced only that the defendant had nat complied with LSA art s tirne limits for giving notice of the evidence sought E C 412 to be introduced 15 Paragraph D of Article 412 provides that th motion sha11 be rnade within the time far filing pre trial motions specified in LSA Yart 521 except that ihe court shall allaw the motion to be made at a Cr C later date if the court determines that the evidence is of past sexual behavior with the accus dand the accused establishes that the mation was not tim lymade because of an impossibil arising through ity no fault of 1us own or 2 the evidence is of past sexual behaviar with someane other than the accused and the accused establishes that the evidence or the issue to which it relates is newly discovered and could not have been obtained earlier through the exercise of due diligence P Cr C LSA art 521 further authorizes the court to allow for additional time to file pretrial motions uwritten motion at any time pon and a showing of good cause 16 Conclusion The defendant has a constitutional right to present a defense that someone else committed the crime even if a five year old child could be considered to exhibit past sexual behavior which she cannot There is a reasonable hypothesis of innocence that the crime was committed by the convicted rapist of the same child who had access to the child during the time frame involved and that evidence should not have been excluded from the defendant trial s 7 1

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