State Of Louisiana VS Franklin Meredith, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT c 2013 KA 0566 i STATE OF LOUISIANA VERSUS FRANKLIN MEREDITH JR 7udgment Rendered NOV 0 2 2U13 Appealed from the 19 Judicial District Court In and for the Parish of East Baton Rouge Louisiana Trial Court Number 07 0442 10 Honorable Richard D Anderson Judge Prentice L White Baton Rouge LA A Hillar C Moore III D A Allison Miller Rutzen Asst D Attorney for Appellant Defendant Franklin Meredith Jr Attorneys for Appellee State of Louisiana Premila Burns Asst D A Baton Rouge LA BEFORE WHIPPLE C WELCH AND CRAIN JJ J WELCH J Defendant Franklin Meredith Jr was charged by an amended grand jury indictment with aggravated rape a violation of La R 14 count one and S 42 second degree murder a violation of La R 1430 count two He pled S 1 A not guilty Following a jury trial defendant was found guilty as charged on both counts For both offenses the trial court sentenced defendant to the mandatory terms of life imprisonment at hard labor without benefit of parole probation or suspension of sentence Defendant now appeals alleging two counseled and two pro se assignments of error Far the following reasons we affirm defendant s convictions and sentences FACTS On the afternoon of April 14 2010 Carlton Walker went to Monte Sano Bayou Park in Baton Rouge to go fishing Upon exiting his vehicle he approached a canal and spotted what appeared to be a human body floating in it Walker notified a nearby sheriff officer who confirmed the presence of a body and s alerted an officer with the Baton Rouge Police Department BRPD Crime scene technicians arrived on the scene and removed the victim body s from the water During a subsequent autopsy BRPD Sergeant David Fauntleroy fingerprinted the victim and she was later identified as 7 Dr Paul McGarry G the forensic pathologist who conducted the victim autopsy concluded that the s s victim cause of death was asphyxia due to drowning Dr McGarry also noted extensive bruising to the victim face and scalp including severe mouth injuries a s broken nose lacerated eyelids and a fractured larynx He opined that these 1 The trial court did not state whether these sentences would be imposed concurrently ar consecutively However as described below defendant soffenses appear to be part of the same act or transaction so they should be served concurrently because of the lack of an express direction for consecutive sentences by the trial court See La Code Crim P art 883 2 In accordance with La R 46 we reference a victim of a sex offense only by S 1844 a 1 her initials 2 injuries were caused by multiple forceful blows and strangulation Dr McGarry further pointed out what appeared to be defensive wounds on the victim hands s and abrasive wounds on the victim back and shoulders which appeared to be s consistent with the victim being held down on her back on a rough surface Beyond noting the victim apparent physical injuries Dr McGarry also s collected a series of swabs and smears from the victim vagina anus and mouth s to check for signs of sexual assault Tammy Rash a DNA analyst for the Baton Rouge Police Department who warks at the Louisiana State Police LSP crime lab performed the initial testing on these specimens Finding that the vaginal smear and neither of the others was presumptively positive far the presence of spermatozoa Rash conducted further testing on the vaginal swab Testing on the sperm fraction of DNA taken from the vaginal swab indicated a mixture of two individuals DNA with the victim being the major contributor and a male being the minor contributor The DNA sample was run through CODIS a database containing DNA of convicted offenders On April 22 2010 BRPD Detective Bryan Ballard who investigated the homicide received a call from the LSP crime lab identifying the defendant as a preliminary DNA match Police investigators eventually contacted defendant to interview him and to take a buccal swab for comparison Further testing on that buccal reference sample performed by Glenn Fahrig a DNA and statistical analyst with the LSP crime lab indicated it was 696 billion times more likely that the DNA mixture contained the victim and s sDNA than the victim defendant sand another random individual sDNA Based upon these results the police anested defendant for the aggravated rape and second degree murder of J G 3 COUNSELED ASSIGNMENT OF ERROR 1 In his first assignment of error defendant argues that the evidence was insufficient to support his convictions for aggravated rape and second degree murder Specifically he contends that the evidence presented by the state at trial merely established that he had consensual sexual intercourse with the victim at some point prior to her murder and that there was no showing of his involvement in her murder A conviction based on insufficient evidence cannot stand as it violates due process See U Const amend S XIV La Const art I 2 In reviewing claims challenging the sufficiency ofthe evidence this court must consider whether after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt See Jackson v Virginia 443 U 307 319 99 S 2781 S Ct 2789 61 L 560 1979 See also La Code Crim P art 821 State v 2d Ed B Ordodi 2006 La l ll29 946 So 654 660 State v Mussall 523 0207 06 2d 2d So 1305 1308 La 1988 The Jackson standard of review incorporated in 09 Article 821 is an objective standard for testing the overall evidence both direct B and circumstantial far reasonable doubt When analyzing circumstantial evidence La R 15 provides that the factfinder must be satisfied the overall evidence S 438 excludes every reasonable hypothesis of innocence State v Patornq 2001 2585 La App lst Cir 6822 So 141 144 02 21 2d Louisiana Revised Statutes 14 provides in pertinent part 42 A Aggravated rape is a rape committed upon a person sixty years five of age or older or where the anal oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances 1 When the victim resists the act to the utmost but whose resistance is overcome by force 4 Louisiana Revised Statutes 14 provides in pertinent part 41 A Rape is the act of anal oral or vaginal sexual intercourse with a male ar female person committed without the person lawful consent s B Emission is not necessary and any sexual penetration when the rape involves vaginal or anal intercourse however slight is sufficient to complete the crime Defendant did not testify at trial but he argues in his appellate brief that his only sexual contact with the victim was consensual Louisiana Revised Statutes 14 provides in pertinent part 1 30 A Second degree murder is the killing of a human being 1 When the offender has a specific intent to kill or to inflict great bodily harm In his brief defendant does not challenge the fact that J was a victim of second G degree murder He argues only that the state failed to prove beyond a reasonable doubt his identity as the perpetrator of that offense At trial the victim parents and several of her friends testified about her s mental state in the years leading up to her death A few years before her death the victim was diagnosed with schizophrenia and prescribed Seroquel to manage her condition Witnesses testified that the victim loved to walk She had a habit of leaving her mother residence and simply wandering off and disappearing far a s couple of days at a time The victim was described as being cautious and careful and not the type of person who would hitchhike David Gonzales the victim s father had specific knowledge that the victim enjoyed walking in Monte Sano Bayou Park The state also presented the testimony of Officer Derek Burns who had ticketed the victim on November 7 2009 for trespassing and possessing alcohol in Monte Sano Bayou Park The victim mother last saw her around s 00 m 10 p on the evening before her body was discovered The state also played for the jury two videotaped interviews of defendant conducted by BRPD detectives In the first conducted prior to Glenn Fahrig s 5 DNA and statistical analysis of defendant sbuccal swab BRPD detectives showed defendant two pictures of the victim Three times defendant denied ever having seen or met her Defendant also told the detectives that in April and May 2010 he lived at 2578 Farrar Street which was only seven of a mile from where the tenths s victim body was recovered In the second interview conducted after Glenn Fahrig analysis BRPD s detectives again showed defendant both pictures of the victim In this approximately forty interview defendant also repeatedly denied ever minute having any contact of any kind with the victim When the detectives specifically asked defendant how his semen might have ended up inside of her defendant stated that he did not know because the last Yime he had sex was on October 9 2007 Additionally the state presented testimony from D W Defendant pled guilty on May 6 1993 to the sexual battery of D as well as to related offenses W of unautharized entry of an inhabited dwelling and false imprisonment with a dangerous weapon The trial court had previously found this testimony admissible at defendant trial under La Code Evid art 412 s 2 W D testified that in 1990 or 1991 she warked at a Baton Rouge Shoney s Restaurant with defendant before ultimately developing a romantic relationship with him They lived together briefly before D ended their relationship On W September 23 1992 defendant went to D house and demanded to be let s W inside When D refused defendant kicked in her glass door and retrieved W s W D 38 caliber handgun from her purse He then tackled D to the ground W and raped her water After the first assault defendant ordered D to bathe in hot W Defendant raped D again at gunpoint In addition to raping D W W defendant beat her with his fists causing D to sustain a broken jaw and other W injuries He also threatened to kill D and to put her in the canal where W 6 nobody would ever find her D was eventually able to escape through her W kitchen window while defendant was distracted by a repairman he called to fix the glass door With respect to the instant aggravated rape offense the state presented evidence at trial that there was a 1billion chance of the DNA mixture found 696 in in the victim vagina coming from persons othex than the victim and defendant s himsel While defendant did not testify at trial his counsel advanced the theory of consensual sex to the jury during his closing arguments However the state introduced evidence to contradict that claim including Dr McGarry testimony s about the victim defensive wounds and about the abrasions on the victim back s s could have caused by subtle and under the state theory s which he opined al se movement on top of a concrete slab located near the victim body s been In addition the state introduced D testimony in an effort to show defendant s W s previous similar sexually assaultive behavior Finally in his videotaped interviews with the police defendant clearly lied about not having ever come into contact with the victim and about the e of his recent sexual history Despite ent being confronted with the DNA evidence against him defendant stated in his second interview that he had never seen ar met the victim and that he had not had sex far over two years A finding of purposeful misrepresentation reasonably raises the inference of a mind as in the case of flight following an offense guilty or the case of material misrepresentation of facts following an offense I Lying has I been recognized as indicative of an awareness of wrongdoing State v Captville 448 So 676 680 n La 1984 2d 4 s Here the jury clearly rejected defendant theory that he merely had consensual sex with the victim instead of raping I I her When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense that hypothesis falls and the defendant is guilty unless 7 I there is another hypothesis which raises a reasonable doubt State v Moten 510 2d So 55 61 La App lst Cir writ denied S14 So 126 La 1987 2d Furthermore an appellate court errs by substituting its appreciation of the evidence and aredibility of witnesses far that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis o iruiocence presented to and F rationally rejected by the factfinder See State v Calloway 2007 La 2306 09 21 1 1 So3d 417 418 per curiam Viewing the evidence in the light most favorable to the prosecution we find that the state presented sufficient evidence for the jury to conclude that defendant engaged in the aggravated rape of J Thus in reviewing the evidence we cannot G say that the jury determination was irrational under the facts and circumstances s presented to it See Ordodi 946 So at 662 Assignment of error number one is 2d without merit as it relates to defendant sconviction for aggravated rape With respect to his conviction for second degree murder defendant does not dispute that the victim was killed as the result of a homicide Rather he simply asserts that there is a lack of evidence establishing his identity as the person who killed J When the key issue is the defendant identity as the perpetrator rather G s than whether the crime was committed the state is required to negate any reasonable probability of misidentification See State v Hughes 2005 La 0992 06 29 11 943 So 1047 1051 State v Davis 20 La App lst Cir 2d 3033 1 02 21 6 822 So 161 163 As a continuation of the hypothesis of innocence 2d presented with respect to his aggravated rape charge defendant argued at trial that he merely had consensual sex with the victim and took no part in her subsequent murder The state evidence tending to establish defendant as the perpetrator of the s s victim murder was entirely circumstantial First the state introduced evidence at trial that at the time of J death defendant lived only seven of a mile s G tenths 8 from the location where the victim body was found Next through Dr McGarry s the state introduced evidence of the cietim extensive injuries and compared them s to those described by D from defendant W sprevious sexual assault of her The state also noted similarity her and throw her into a that he would kill W s ant between defenu threat to D canal and the victim ultimate fate in the instant case s Finally as with the aggravated rape charge the jury viewed two interviews wherein defendant repeatedly denied ever coming into contact with the victim despite the detectives confronting him with her photographs and with the evidence of his semen being found inside her vagina Such lies raise the inference of a guilty mmd See Cap tville 448 So at 680 n 2d 4 Once ain the Jury clearl3 ag rejected defendant theory that he simply had consensual sex with the victim s without subsequently murdering her See Moten 510 So at 6L We will not 2d disturb that finding on appellate review See Calloway 1 So at 418 3d Viewing the evidence in the light most favorable to the prosecution we find that the state presented sufficient evidence for the jury to conclude that defendant committed the second degree murder of J Thus in reviewing the evidence we G cannot say that the jury determination was irrational under the facts and s circumstances presented to it See Ordodi 946 So at 662 Assignment oferrar 2d number one is without merit as it relates to defendant conviction for second s degree murder COUNSELED ASSIGNMENT OF ERROR 2 In the discussion related to his first assignment of error defendant seems to make the argument that the trial court erred in allowing the state to voir dire potential jurors about their receptiveness to evidence concerning defendant sprior sex convictions He contends that this line of questioning caused the potential jurors to become biased against him before the trial even started During jury selection the state and defense questioned three panels of 9 prospective jurors Each time the state questioned a panel of prospective jurors it informed them that they would be hearing evidence of defendant scommission of another crime involving sexually assaultive behavior For instance the state told prospective jurors State Y will in this case because the defendant is in fact in this ou particular case charged with a count of aggravated rape be hearing evidence of his commission of another crime involving sexually assaultive beha and it will be considered by you and you will be iar given a limited instruction as to its purpose That will be considered by you if it has bearing on any matter to which it is relevant Pm going to ask you will you be able to consider this subject to the s court instruction and limitarion The first two times the state asked this question defense counsel objected and moved for a mistrial on the basis that the state refened to other crimes evidence during voir dire In both instances the trial court overruled the objection and denied the motion for a mistrial Upon motion of a defendant a mistrial shall be ordered when a remark or comment made within the hearing of the jury by the judge district attorney or a court official during the trial ar in argument refers directly or indirectly to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible See La Code Crim P art 770 Mistrial is a drastic 2 remedy and except in instances in which mistrial is mandatory is warranted only when trial error results in substantial prejudice to a defendant depriving him of a reasonable expectation of a fair trial State v Fisher 95 La App lst Cir 0430 96 10 5 673 So 721 725 writ denied 96 La 11 681 So 2d 26 1412 96 1 2d 1259 Determination of the existence of unnecessary prejudice warranting a mistrial is within the sound discretion of the trial judge See State v Manning 1982 2003 La 10 885 So 1044 1109 cert denied 544 U 967 125 04 19 2d S Ct S 1745 161 L 612 2005 The trial court has discretion over the scope 2d Ed of voir dire examination State v Lewis 2008 La App 1 st Cir 2 7 1381 09 13 10 3d So 782 785 writ denied 2009 La 11 25 So 787 OS31 09 20 3d In the instant case the trial court conducted a Prieur hearing addressing the admissibility of other crimes evidence under La Code Evid arts 404 and 412 2 After this hearing the trial couz granted the state motion to use other crimes s evidence involving DW anti two other of defendant sprevious victims In his argument defendant cites and we know of no cases holding that a district attomey may not refer to admissible prior crimes during voir dire or otherwise at triaL Had the state during voir dire referred to other crimes evidence later ruled inadmissibile the defendant in light of La Code Crim P art 770 2 would seemingly have been entitled to a mistrial at that point However the state was careful during its questioning of prospective jurors to speak generally about the type of evidence it would introduce and to ask the potential jurors ifthey would be able to consider that type of evidence subject to the trial court instructions and s limitations Consequently we find that the trial court did not err or abuse its discretion in allowing the state to ask this simple yes question to prospective no or jurors j However even if we were to find that the trial court abused its discretion in allowing the state to question prospective jurors about their ability to consider relevant other crimes evidence we believe that any such error is harmless beyond a reasonable doubt See La Code Crim P art 921 As discussed above this error would not have fallen within the mandatory provisions of La Code Crim mistrial P art 770 Defendant presented no evidence that this line of questioning caused any actual bias among the prospective jurors and we think that any such bias would have been cured when the actual evidence concerning defendant s 3 State v Prieur 277 So 126 La 1973 2d 4 The state did not actually introduce the evidence of the other crimes evidence related to these rivo other victims at defendanYs trial 11 admissible other crime was presented at trial Considering these circumstances sconvictions were surely not attributable to any trial enor that may have defendant occurred as a result of the state questioning prospective jurors about their ability s to consider admissible other crimes evidence See Sullivan v Louisiana 508 U S 275 279 113 S 2078 2081 124 L 182 1993 Ct 2d Ed This assignment of error is without merit PRO SE ASSIGNMENT OF ERROR 1 In his first pro se assignment of enor defendant alleges that the trial court abused its discretion in allowing Detective Ballard to testify to the content of Dr s McGarry autopsy report in violation of his right to confrontation In all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him S U Const amend VL The Confrontation Clause bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross Crawford v Washington 541 examination S U 36 53 124 S 1354 1365 158 L 1 2004 emphasis added 54 Ct 2d Ed 7 Defendant complains that Detective Ballard was allowed to testify regarding the contents of Dr McGarry autopsy report However the testimony referenced s by the defendant in this assignment of error was not given at trial but at a pretrial hearing on other crimes evidence that the state sought to introduce at trial At trial Dr McGarry testified extensively regarding his autopsy findings and the contents of his report Detective Ballard trial testimony focused exclusively upon his s involvement in the investigation of the victim death including his involvement in s s defendant interrogations Only briefly did Detective Ballard testify to anything regarding the victim autopsy That testimony regarded Detective Ballard own s s observations of the victim body and it was elicited by defense counsel on cross s examination 12 Considering the above facts and circumstances we disagree with defendant that his right to confrontation was violated The only purpose of Detective s Ballard hearsay testimony at defendant pretrial hearing was to inform him of s precise facts from the instant cr3me that were similar to the other crimes evidence sought to be introduced by the state at trial At the trial itself Dr McGarry appeared and was subject to fnll cross regarding his autopsy findings examination Therefore defendant sright to confrontation was not violated This assignment of enor is without merit PRO SE ASSIGNMENT OF ERROR 2 In his second pro se assignment of error defendant contends that his case should be remanded for resentencing because the trial court failed to give him correct advice on the time limitations for him to file an application for postconviction relief At the time of defendant sentencing the trial court informed him that he s would have two years to file for post relie Defendant is correct that conviction this instruction was teclu7ically deficient Under La Code Crim P art 930 A 8 an application for postconviction relief shall be filed within two years after the judgment of conviction and sentence has become final under La Code Crim P arts 914 or 922 Based on the arguments in this assignment of error we note that defendant is clearly aware of these provisions relative to the time in which he may file an application for postconviction relief after his convictions and sentences have become final resentencing Accordingly we decline to remand s defendant case for Out of an abundance of caution and in the interest of judicial economy we note that La Code Crim P art 930 generally provides that no A 8 application for postconviction relief including applications which seek an out of time appeal shall be considered if filed more than two years after the judgment of 13 conviction and sentence have become final under the provisions of La Code Crim P arts 914 or 922 unless one of four circumstances are present For the faregoing reasons the defendant convictions and sentences are s affirmed CONVICTIONS AND SENTENCES AFFIRMED 14
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