State Of Louisiana VS Dean Jiles
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NOT DESIGNA TED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 KA 1206 STATE OF LOUISIANA VERSUS DEAN JILES Judgment Rendered On appeal FEB 1 4 2007 from the Twenty Second Judicial District Comi In and for the Parish of S1 Tammany State of Louisiana Suit Number 387004 0 Honorable William J Walter P Reed Knight Presiding District Counsel for Appellee State of Louisiana Laurie A White Counsel for Defendant Attorney Kathryn Landry Special Appeals Counsel Baton Rouge La New Orleans La BEFORE Appellant Dean Jiles PARRO GUIDRY AND McCLENDON JJ 1M ccyIcL 7 ChtcuA5 GUIDRY J The defendant Dean H Jiles count of aggravated incest Following new trial labor now a jUlY trial he but the motion violation of La R S a was charged by bill of information with was found was guilty denied was and not pled guilty The defendant moved for charged as He 14 78 1 one a sentenced to twelve years at hard He moved for reconsideration of sentence but the motion appeals designating six assignments of enor was denied The We affilTI1 the conviction and sentence ASSIGNMENTS OF ERROR 1 The defendant was denied his right to due process of law guaranteed U S Const amends V and XIV and La Const art I 9 2 as there under was 2 insufficient evidence to suppOli the guilty verdict The defendant s VIII 99 2 13 16 and 20 was violated committed prosecutOlialmisconduct by prosecuting both the defendant 3 not reveal the The defendant mi and the victim s victim s s I case in a clear conflict of interest and additional inducement denied his Const amends V VI to testify due process of law under U S Const amends V and XIV and La Const mi I was the trial cOUli ened in 4 to due process under U S and XIV and La Const when the State did light The defendant was denying light his denied his to challenge right for guaranteed 9 17 when cause to due process of law under U S Const amends V and XIV and La Const mi I guaranteed 9 17 when prosecution failed to give notice of its intent to introduce evidence of highly prejudicial and speculative other climes evidence against the defendant at trial in violation of La Code Evid mi 404 B including threats of violence physical battery and attempted fraud the 5 The defendant s sentence is cmel and Const amend VIII and La Const mi to twelve years at hard labor caplicious charged 6 errors and The defendant patent pursuant to La as dispropOliionate I unusual in violation of U S 9 20 when he the sentence is excessive based on the facts respectfully requests review of Code Clim P mi 920 2 2 was alleged sentenced arbitrmy and clime the entire record for FACTS The victim D P She I testified at trial Her date of bilih had known the defendant for eleven victim s mother when the victim According worked at victim s to was bedroom the victim when she pick was night her up and sit her put his hand under the victim twelve years 14 February 1986 He had manied the three years old In the middle of the night or was on three or four years old her mother the defendant would come into the the dresser The defendant would then shili and touch her breasts and touch her between her legs When the victim St Tammany Parish breasts and to was in the fifth According penis and would go down the defendant would on give her the to touch her sex The defendant would make her suck his victim victim felt The to moved to family He would also make her have oral money when he testified that the defendant tried screamed in legs with her sex the defendant and her the victim the defendant continued to touch her between her with him and would have oral grade was penetrate her like a abusing her once but whore because The victim also stopped when she pain The victim testified she did not disclose the abuse because the defendant told her that if she said also testified she anything was about the abuse he and she would go to afraid of the defendant and he threatened to jail The victim hmi the victim and her mother if she disclosed the abuse At touching some point the victim told her mother her and had tried defendant leave their home the to penetrate her that the defendant The victim s Subsequently after the defendant spoke The victim s The victim is referenced herein been mother made the to the telephone the victim convinced her mother that the defendant would the victim anymore had victim not on abuse mother then let the defendant retU111 to their home only by her initials J See La R S 46 1844 W However the victim victim on was mother then s in the kitchen the victim s realized the defendant When she get a to the fifteen years old was was making up her years old because she testimony fiuiher denied having of his hands legs she met her the victim The victim waited until she police one father and biological her real father not eighteen was abusing the victim while the The defendant had dIink she knew the defendant could not hmi her point and to the defendant breast and the other one between her When the victim defendant hying saw was was eighteen told or make to was by the because at that in any kind of way anglY the defendant been coached the abuse reported She denied not her real father things up about the defendant The victim s mother S l 2 also testified 1989 when the victim was tlu ee years old When the victim defendant had been was SJ victim never happened do anything victim S l and her spoke to like that but S l the victim again between the defendant and the calling on the on the telephone telephone and promised However again and listened for what he On went 2 one was to move back into the home because she not trust the promised he would never defendant and she watched doing get We reference the victim footnote SJ did occasion while the defendant into the kitchen he would The defendant then moved back in with the had been married to the defendant for twelve years and he touch the victim SJ put himself inside ofher to stepped S l let the defendant son she told SJ that the The defendant tlied to hit the victim for The defendant left the home but kept The defendant years old approximately thirteen was touching her and had ttied what had ttial She manied the defendant in Her childhood seemed normal upset and anglY with the defendant telling at s some water was SJ cooking was mother by her initials to 1 4 in the kitchen the victim using protect the the vacuum identity cleaner in ofthe victim See another room defendant SJ heard was on When the defendant saw that SJ testified she did threatened punched not kill her and she to s was watching s him the door and was not she did do one some point atl aid of him the defendant anything because the victim her legs to the he had police because S J also testified that the defendant came to her house and police was not summer of 2004 the defendant She told the at the to a telephoned SJ S J lawsuit The house responding police at the officer time and had done She denied got any of his settlement telling He wanted her to lie to anglY with the defendant for was telephone number and for asking evelything he living began beating talk about the abuse investigators in regard getting between her house her and she summoned the cursing not want to In the the he backed away tl om the police officer about the defendant s actions toward the victim could saw releasing her One of the breast and the other report the defendant was not investigate She her in the head SJ testified at on the victim went to him and to SJ fled with her children to her sister S J had noise in the kitchen and holding the victim with her back defendant s hands victim a her to do for him after anything him that she would make She also denied coaching sure he the victim into never making allegations against the defendant The State also introduced into evidence a July conversation between the victim and the defendant she had been sony would or thinking anything what happened evelything and did not even replied I don t even and asked the defendant if he 5 to start was change it over this know how to tell the victim he How could you do that know where telephone The victim told the defendant The defendant claimed he beat himself up The victim asked the defendant defendant 2004 recorded The defendant stated that if he could go back and change evelything stated he had lost sony about 29 He was The Why The victim asked he are youd really that sorry for doing that defendant answered The victim asked negatively The defendant then refused doing were replied that he was sorry for The victim asked the defendant ifhe knew what he happened you The defendant telephone stating I don t know who is tape recording all this I don t know on everything was doing The how could you not know what to talk about on the I don t know if you the other end all this are The defendant then asked the victim to call him back in five minutes When the victim called the defendant back he stated he that he had called SJ settlement that a couple of days ago and she knew he thought it was was in the middle of a The defendant stated he would not talk about his divorce and The victim stated she did needed to know why not need to know about the defendant me did you do this to odd s all of divorce but The defendant then ended the telephone conversation SUFFICIENCY OF THE EVIDENCE assignment of error number In evidence was suppOli the victim to contradicted mother gave repOlied was the In the examining reviewing consider prosecution the crime claims whether physical He claims the victim and her not the victim and whether the victim ran or in which the victim first away the date the victim her mother answered the doctor the challenging after viewing sufficiency of the evidence the evidence in the light this cOUli most favorable to any rational trier of fact could have found the essential elements of beyond S Ct 2781 from other witnesses alleged abuse whether or of the was no testimony against the defendant and the testimony conflicting testimony concenling the parish examined for abuse questions must by testimony s I the defendant argues there a reasonable doubt 2789 61 L Ed 2d 560 Jackson v Virginia 443 See also La C CrP 1979 Mussall 523 So 2d 1305 1308 09 La 1988 6 U S 307 319 99 mi 821 B State v Louisiana Revised Statutes 14 78 1 in A pertinent part provides Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender any of the as following step adoptive relatives or child B The 1 following are acts under prohibited Sexual intercourse this Section indecent behavior with battery molestation of a juvenile juveniles cruelty to juveniles parent enticing a child into prostitution or any other involvement of a child in sexual activity constituting a crime under the laws of this state 2 Any lewd fondling the offender a thorough evidence in the have found court overturn beyond a favorable will not to arouse s against witnesses assess the or in part the including testimony of detennination ofthe evidence not its 3 27 97 691 credibility sufficiency 2d So 1365 the victim of witnesses guilt The s or was 1368 v 97 1124 the of the incident one p to of the victim alone is the resolution of which writ denied aggravated jmy accepted accept Moreover 96 1429 of guilty The trier of fact may Lofton the viewing reweigh the evidence of the witnesses the matter is State to both account testimony any witness matters or or any rational trier of fact could the defendant indicates the credibility conflicting testimony about factual or convinced that reasonable doubt that the defendant sufficient to prove the elements of the offense in whole we are the State to fact finder s determination of a person of either the child with the intent to review of the record most light of the State testimony touching of the submitted or The verdict rendered incest This or the sexual desires of either the child the offender satisfy After done sexual 5 La reject when there is depends of the La 17 10 or a upon weight of the App 97 1st Cir 701 2d So 1331 This assignment of error is without me11t PROSECUTORIAL MISCONDUCT In assignment to either the comi or of error number 2 the defendant argues that defense counsel D P 7 also had a case that u nbeknowllst was ongoing at the very over same 500 time before in violation of La R S prosecuted both be involved in D P 14 67 D P with theft Leigh Anne Wall assuring defense counsel she would not s case Wall remained the charge concluded any over the head of D P The defendant also questioning concelning the until the case complains Wall filed injustice has been the for D charges pending against a new trial is based the defendant motion in limine a The case against him by holding against case Louisiana Code of Criminal Procedure atiicle 851 The motion to the prosecutor assigned defendant also claims the State bolstered its weak theft charging The defendant argues and him and while D P 1 Judge Knight in Division in on to the was prevent P peliinent pati provides the supposition that been done the defendant and unless such is shown to have the motion case shall be denied no matter upon what allegations it is grounded The cOUli on motion of the defendant shall grant a new trial whenever 3 New and material evidence that reasonable notwithstanding the defendant diligence by was the exercise of not discovered before or during the trial is available and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty to trial Prior defendant motion cross the State filed and any witnesses from was heard examination atTested the prior were whether anyone I would have no The I just don pending evidence offered her anything objection to that being s t think And One The State that it s prohibit s argued under defense counsel anest La record C B art while the victim had additionally indicated defense counsel following exchange Defense The State prohibited and was to to the victim refening voir dire anests on charges to Celiainly if jury motion in limine a question her as to exchange for her testimony wants to in done out of the presence of the relevant evidence for the jury then OCCUlTed again thing that Your Honor I understand the rules of I should bring 8 to the attention of the c oUli The 609 1 been and I don t know if you pending in this division are aware Comi Frankly State I I was of this not aware or is that that not is case of it of that Judge And someone else from and Im not sure who they re going to appoint but someone else from our office is going to be handling that case not me Comi was aware The Comi will grant the motion in limine insofar it relates to any arrests because of as course that s prohibited under the code Following the conviction of the defendant the defense moved for under La C Cr P the court that D P defendant interest on a the as motion for new 851 3 mi was the victim in the District the over trial the defense A 500 case the defendant against and there existed assistant district attorney was a but was potential conflict handling both a of In the cases alleged counsel has learned that Undersigned trial The motion set f01ih that the defense had advised charge of theft same a new ttorney through DP was told by the her counsel of record John Thomas that dropped once she had testified in the instant trial Mr Thomas will also testify that Mr Bmiholomew has never discussed the case with him and that all discussions concerning D P s case were with Leigh Ann Wall charges would be Following trial Attoll1ey from the a lengthy heming the trial John Lindner testified at the beginning of the and case comi hearing denied the motion for He represented through the trial the defendant He moved for bill of a pmiiculars specifically requesting 50 Please provide any and all records which reflect the witnesses for use anest at trial or rap sheets and conviction records of the State to either establish the witnesses bias 52 rep01is or impeach said witnesses or s to interest herein Describe in detail any and all evidence or information that the State has either in its possession of sic which it has arguably tend to exculpate or help defendant in the preparation of his defense or to impeach any witness the State intends to use in this prosecution knowledge The State of that would responded to the motion by providing open file discovelY 9 new Lindner testified he learned that D P pretrial hearing Wall that suggested reassign in the case against D Wall would have against P to another assistant district nothing however Wall conviction do with the to was John Hall Thomas forward with the against the still appearing following whereby Thomas felony theft on the trial been offered her intention to the court minutes in the attorney s charge against at case office were but she sure because he was made for D P case no was a at the As of the date of the to the case had been continued for a she could not handle the plans to go witness in the case she testified never asked D P if she had or if there was any naIve and trusted the district nor anyone else had told him testify against the defendant in exchange hearing against her since the prosecution connection with the to real against her Thomas also testified Prior was Lindner conceded neither Thomas for dismissal of the defendant told there D P he learned attorney representing D P the defendant s trial he anangement or actual deal prosecuted was the defendant anything promised anything guaranteed anything understanding 2004 was attorney in her office and against defendant and the State wanted to make Lindner also testified case Knight A month after the defendant s case that there had been discussions between Wall and the an a D P Lindner testified that that at case Lindner informed Judge Lindner indicated Wall stated that it conflict the the defendant defendant in another prosecuting both the defendant and the victim and that fact was a against case was a was He had been counsel for D P instituted in hearing Febluary 15 approximately 2006 defendant s trial Thomas had against D P year for two case D P reasons because D P was Second after Thomas mentioned 10 December of was case her witness in the the judge that case D P being Wall in against First Wall had told the to still always dealt with Thomas indicated that the in the D P judge that against the was very the pregnant that judge Wall had asked Wall if the to agreed In response to continue the case should be continued until after all of case questioning by the defense Thomas stated Mr Thomas did you have a discussion with Mr Lindner Q regarding what your understanding was of what the district attorney s office was going to do with the charges against your client A the There was no As a A As a tat I explicit agreement like my client would meeting feeling Q tit for came get favorable away from treatment result of what result of her witness for the State I find it velY unusual that the State was even prosecuting my client at all And I remember Leigh Anne Wall making a comment Im going to have to talk to someone case It was being about the such case weak a a I can I case t believe can we are how it imagine t prosecuting this ever got through screening In response to Q she A Did Ms Wall was going No back up and new ever to handle There six months was again tell you at any time she this a after that changed case long gap Nothing happened at all for about that I mentioned And when it came pretrial was reassigned I think it at that point to a new No offer you ever There was never anything any kind of in exchange for judge your client I had velY little s explicit otTer Did she ever tell you anything regarding your client Q testifying as a victim Ever had that discussion with her A her mind prosecutor Did she Q testimony A questioning by the State Thomas stated knowledge of the Jiles case at all So versus her no So if I ask you what deal was made between you and Ms Wall to get your client to testify about this sexual abuse how would you Q answer A it There was no favorably disposed comment explicit to my that she is a deal I client and liked her sweet She made no She said girl something like that conference Q got the impression that she deal 11 was sic made at the a pretrial A No Wall also testified at the She testified she hearing against the defendant and had been the around April 19 20 April or 2005 she recognized was a conflict and she could testified name was repeatedly the her continued pending Wall testified the conflict and notified the handle D P not the record after that date on from her office someone the prosecutor prosecutor against D P chief of trials that there although was being s case the named to case questioning from the defense Wall stated have discussions with D P Q Did you A The first time I met with her when she ever about her theft case thing I a charge pending in J nd that I had notified my supervisor that there was a Division a And someone else was going to be appointed to or assigned conflict that case to prosecute And I asked her if she had any problem with me continuing on prosecuting the aggravated incest told her was that I was aware came that she had Q She said she had Q And did you in the first theft And what did she tell you A Dean Jiles A case no ever problem discuss with her if maybe this case good things happen to would go away No In response to questioning from the State Wall stated Q Did you make any deals with D P A Never Q Ever lead him to believe he had A Never haven t been modified Based on this the a s attorney Mr Thomas deal charges are still pending And they You indicated you had other cases when it happened Were the You go to sic supervisor and other case s handled the same way Q tell him you have A Yes Franklinton In a conflict one And a of the it cases witness had a aggravated rape case in pending dlUg charge in Division J 12 was an was prosecute case In response to Wall And I followed And Franklinton So it Judge Knight Scott Gardner also in my division in was appointed to handle the prosecution of that witness And then just recently I became aware of another conflict And I believe that Julie Knight is if she hadn t been already she is going to be assigned the prosecution of the case At any time did you continue Q keeping it alive as a tool to motivate A No It She motivation to her was because she she needed to was come the for the case D P impression that to mere purpose of testify D P needed any threats or forward to tell the truth about what happened and felt that life ready to move on with her not my came was forward and tell the truth about what to happened her Based on the above evidence of discretion in the trial cOUli failed to show that FUliher concerning question denial of the motion for s the motion in limine did improper whether exchange unable to find that there prosecutorial misconduct had the victim concerning in any we are reason for her either at trial or not she was or not testifying trial abuse The defense caused the defendant injustice prevent questioning of the victim testimony at the new was an The defense did hearing or on not the motion for had testified for favorable treatment in connection with the against however new trial the defendant charges pending against her This assignment of error is without merit CHALLENGE FOR CAUSE In assignment of elTor number denying the defense challenge for because she had attended involved in the instant case a cause against prospective juror Linda Demoruelle crime trial prosecuted by and where Demoruelle The defendant also argues that Mmullo was sex 3 the defendant argues the trial cOUli elTed in an ilTegulmity s sister occUlTed when peremptOlily challenged by defense counsel the alternate juror 13 s the same child was prosecutor the victim prospective juror but still allowed to Mark serve as Code Louisiana of Criminal Procedure miicle 797 peliinent pmi 111 provides The the state ground the defendant may that 2 or challenge a juror for cause on The juror is not impmiial whatever the cause of his pmiiality An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror if he declares and the comi is satisfied that he can render an impmiial verdict according to the law and the evidence In order for a his conviction and of a for challenge when presumed defendant to prove sentence he need cause a and defendant 2 use of all his challenge for s accused of reversible a enol wananting reversal only show the following 1 defendant exhausts all his peremptory an reversible erroneous peremptory challenges cause challenges 3 is An of both denial Prejudice enoneously denied is and the ruling depriving enoneous peremptOlY challenge violates his substantial rights and constitutes State enor 2003 1834 pp Taylor v 5 6 La 5 25 04 875 So 2d 58 62 A trial comi is vested with broad discretion in and these rulings whole reveals an prospective juror the juror will be reversed abuse of discretion for cause has voiced fmiher on and decide the Taylor to 304 120 S Ct trigger not inquiry case 2003 1834 at p 6 875 The rule is U S is automatic now an or judge 774 145 L of 2d Ed 792 refusal s abuse of his discretion to cause to the to the as a excuse notwithstanding defense instruction he has demonstrated impmiially according 2d So for review of the voir dire record A trial a a that when willingness law and the evidence at 62 63 different at the federal level presumption a challenges on opinion seemingly prejudicial an subsequently ability only when ruling 2000 prejudice mising challenge 14 See United States v Mmiinez Salazar 528 exhaustion of peremptory from trial comi s challenges elToneous does not denial of a cause Linda Demoruelle response to the first and was on questioning she indicated she had attended attorney The following exchange occUlTed between the CoUli All of prospective only panel a trial where Wall was In the cOUli and DemOluelle Would you be able to right jurors put that out of your mind in weighing the evidence of this case regardless of whether the evidence was presented by the State or by the defense and be fair and impaIiial to both sides Yes I would DemOluelle Thereafter when asked if she victims of her a parents or any of her close friends crime Demoruelle indicated her sister car had been stolen twice s in response to questioning by impaIiial t he case s child s case The is individual the comi to both sides questioning Demoruelle indicated adopted child had been raped by his biological parent but think that her sister had been put the fact that members of her family had been victims of crime out of her mind and be fair and Subsequently family child had been molested and In response to DemOluelle indicated she would be able to or case because then occUlTed between the defense and Demoruelle Defense speaking The about was sister adopted son that you were just it his biological parents who were on trial that s you observed Ms Wall Demoruelle Right Defense Okay Demoruelle Yes I did Defense Let me And you sat through that trial ask you this Ms Demoruelle If at the end of this trial you go back in deliberations and you do not feel that the State has met their burden to return a guilty verdict do you feel that you would have to go back to your sister and so at all about it I mean explain your actions think she d have any you know say this is an individual completely separate No Demoruelle I don t case 15 s Demoruelle did not would influence her in the instant following colloquy her sister Defense you but that trial with your sister then you re obviously if you sat close to your sister You did support her and her son And obviously that was And again through And I traumatic DemOluelle m want to make influence you Demoruelle No Everybody s an defense Don t and under the circumstances that Wall tried defense this cause for was no there s and the defense as verdict unless to Demoruelle s objections the case she much going on to the comi denial of s The trial s ruling a defense court challenges comi in in challenge for elTor responses to the voir dire examination great discretion of the trial been strike Demoruelle defendant exhausted his peremptory an erroneous had regard as a to the whole luling on challenge for cause against Demoruelle the alternate juror at the time the p31iy made known his to rape of Demoruelle objected The defense failed to preserve the issue of the of M31ullo going not argumg just too peremptory challenge note that the abuse of the the defendant s on about cause prejudice is presumed and there is reversible trial Considering there a Thus if he establishes matter s involving the aggravated challenge Thereafter the defense used we that that anything guilty Demoruelle challenged sister Initially pick my client against individual until proven a case comi denied the sure to know involved in s son trying not No Defense The I to the An luling comi irregularity or error or elTor if any in the selection cannot be availed of after order of the comi was made the action which he desired the to the action of the comi and the or court to take grounds therefor La the sought or C CrP of 31i 841 Moreover alternate juror Following suggested of the defense that the alternate prospective jurors The specifically agreed the selection of six juror to the selection of Marullo jurors could be selected comi also offered 16 the the trial comi and the State by going to seat as back a new through the panel panel from which to select the alternate juror When the beginning The defense stated that it wanted court read Marullo s name to start from the defense stated the I have no problem with him This assignment of enol is without melit OTHER CRIMES EVIDENCE assignment In testimony at struck SJ improperly permitted charged was a the defendant argues the State elicited violent and scary person yelling otten that he several occasions and threatened her life and that he asked SJ investigators pertaining allegedly number 4 error trial that he on to of took to civil lawsuit a to elicit place beginning in the bill of information notice of the bad acts He fmiher argues the State testimony from when she was D P lie was sexual acts that were argues the State failed to not give 404 B mi Louisiana Code of Evidence miicle 404 in B concerning three years old and which Additionally he under La C E to peliinent pmi provides Other crimes 1 Except as provided in wrongs or acts Aliicle 412 evidence of other climes wrongs or acts is not admissible to prove the character of a person in order to show that he acted in It may however be admissible for other COnf01111ity therewith purposes such as proof of motive oppOliunity intent preparation plan knowledge identity absence of mistake or accident provided that upon request by the accused the prosecution in a climinal case shall provide reasonable notice in advance of 11ial of the nature of any such evidence it intends to introduce at 11ial for such purposes or when it relates to conduct that constitutes of the act integral pmi the subject of the present proceeding Generally inadmissible due admit and evidence to the other crimes relevant reason an of other climes for doing so i prejudice by the defendant to the defendant establish that there is must e transaction that is committed substantiallisk of grave evidence the State or to show motive an preparation plan knowledge identity absence of mistake or relates The Louisiana to conduct that constitutes an integral pmi of the Comi has also held other climes evidence 17 act admissible as To independent oppOliunity accident is or intent when it Supreme proof of other climes exhibiting almost identical modus in time and operandi prove the bad character of the accused extraneous 0569 p 18 a system committed in close proximity Evidence of other crimes however is place tend to prove or mateIial fact crimes evidence La 7 6 00 149 L Ed 2d 375 FmihelTI10re genuinely must celio denied 532 U S to value of the State 959 Tilley v 99 121 S Ct 1488 2001 Louisiana Code of Evidence aIiicle 412 2 A When an accused is assaultive behavior sexually involving probative outweigh its prejudicial effect 767 So 2d 6 22 simply the other crimes evidence must issue and the at admissible not charged with with acts crime a that constitute involving a sex offense under the age of seventeen at the time of the offense evidence of the accused s commission of another crime a victim who or provides was involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Aliicle 403 or wrong B act In under the a case in which the state intends to offer evidence the provisions of this Article prosecution shall upon provide reasonable notice in advance of trial of of the accused request the nature of any such evidence it intends to introduce at trial for such purposes This Aliicle shall C or not be construed to limit the admission consideration of evidence under any other rule Louisiana Code of Evidence aIiicle 403 provides Although relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice confusion of the issues or misleading the jury or by considerations of undue delay or waste of time The State filed two pre trial notices of intent to introduce evidence of other crimes in this matter The The first notice set f01ih State gives written notice inpaIi of its evidence of other offenses admissible under 404 described in the attached intent La to introduce Code Evid aIi Such evidence is discovery admissible as proof of motive opportunity intent preparation plan knowledge identity absence of mistake or accident or is an integral part of the act or transaction that is the subject of the current proceeding as 18 The second notice set f01ih NOW INTO COURT attorney comes the State of through undersigned assistant district Louisiana who respectfully provides this supplemental notice of intent to introduce evidence of other crimes under the provisions of Louisiana Code of Evidence 412 2 The crime alleged to have been committed by defendant in this case was a continuing and ongoing offense as reflected in the rep01is that have been tUlned over to defense counsel in discovelY The crime began when the defendant and the victim were living in another A full explanation of the crime charged is not possible parish without reference to the acts that OCCUlTed in other parishes This testimony by the victim is admissible under La Code Evid mi 412 In and also under mi 404 B regard testimony to the the defendant because threatening summer to kill S J that the defendant tried Js to was regard beating to the The instant and the FUliher the defendant rep01ied cOUli was grounds made and her in the telephoned 1 S s call to the S J s police after at her the defendant was complains three to the referenced on or or of her testimony four years old testimony therefor take La or of his C Cr P concerning her door and of SJ cursing 19 mi the her La defendant was to objections 841 elicited or DP at the time the sought the pmiy made known cOUli to testimony of SJ beating always was the abuse to S J cannot be availed of after verdict unless action which he desired the cOUli and he assignment of error was not preserved for review The defendant or error order of the s SJ testimony s investigators cursing her when she 1 S allegations of sexual abuse by s some after she testimony of D P contemporaneously object irregularity or to her door and concelning the defendant abusing failed to lie to of complains that the defendant testimony hit D P on defendant P that the defendant had hit her twice the defendant In the afraid of the defendant was S 1 S 1 S gestae immediately rep01i D of 2004 and wanted her testimony of testimony that she did not as res C E ruling to the cOUli the the action of the mi hitting by An 1 03 A her and the defense 1 the rather than the State in Additionally regard to the testimony of D P the at hearing on the other crimes notice the defense stated As and what long as we re talking about the alleged victim in this happened to her from this man I can t really object to case that Your Honor This of enol is without merit assignment EXCESSIVE SENTENCE In assignment of enol number upon him was may violate subject to Section 20 of the Louisiana Constitution punishment a defendant to sentence may be a constitutional appellate review to Generally the sentence a severity of if when the crime and society it is so the crime as or sentence imposed should of manifest abuse of discretion Cir 10 3 00 797 So 2d 75 State 83 within statutory limits to shock not be set v is are it and is than the more considered in sentences aside as of the A trial within statutory excessive in the absence pp 10 11 La 2000 3053 grossly light of justice one s sense Hurst 99 2868 writ denied nothing A sentence is considered judge is given wide discretion in the imposition of limits and the imposition is considered excessive if it is punishment disproportionate the prohibits right against excessive punishment imposition of pain and suffering dispropOliionate hmTIl Although s grossly dispropOliionate needless imposed unconstitutionally excessive Article I of excessive 5 the defendant argues the sentence 10 5 01 La App 1st 798 So 2d 962 A person convicted of exceed not fifty thousand dollars less than five years prior to sentenced amendment to aggravated incest shall or imprisoned nor more by twelve years than 2006 La at with or twenty years Acts hard labor 20 No 325 be fined an amount not to without hard labor for or both 2 La R S a term 14 78 l D The defendant was At the as listened well as the letters submitted testimony from to the comi indicated it had reviewed the pre and the letters from D P and investigation repOli sentence repOli sentencing hearing Jeanne Thereafter the comi indicated it had had wreaked havoc in D P imposing In number of times treatment through or an sentence but had sentence to be the comi noted no imposed was used his ceIiainly the offense and his would patiicularly position not s as a of the victim unfOliunately neither the Based most on our dispropOliionate to a very serious review the common nor was we sevelity and were and any lesser sentence the crime dependence incapable and the certainly should of resistance the to facilitate the commission of was the defendant reprehensible to ever perhaps she ploy in cases reveal the abuse he would would conclude that the sentence of the offense and thus assignment of error is without merit 21 even of this nature it the most innocuous exceSSIve This young victim on a actual violence in the commission of the crime and physically poorly was effectively be provided mother the defendant or a in need of correctional the financial stepfather ceIiainly was most vulnerable to the victim that if she treat her was deprecate the seriousness of ceIiainly indicated which he perpetrated was dependence manipulation used threats of violence respects the defendant had been arrested prior convictions the defendant to the victim have known the victim The comi also that the crime in many degree of empowerment in the perpetrator was a the present wife of the defendant question institution because the crime marriage of the to life because of both the emotional defendant Jiles no attached behalf of the defendant custodial environment that could a because there than the s on J S be in trouble and the case aggravated incest imposed was not was not grossly unconstitutionally PATENT ERROR In for errors assignment of enol the record for are of the requests review of the record patent Under the We number 6 the defendant authOlity errors limited in pleadings patent whether our and of La C Cr P patent enol proceedings of the instant record reveals no or art 920 2 not review to such a enolS and without this court discoverable by a mere of the evidence elTors CONVICTION AND SENTENCE AFFIRMED 22 examines request is made by the defendant inspection reversible patent routinely inspection A review
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