State Of Louisiana VS Clarence W. Sanders, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 KA 2190 STATE OF LOUISIANA VERSUS CLARENCE W SANDERS III Judgment Rendered MAY 2 2 2009 ff7 Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial Court Number 422 047 Honorable Donald M Fendlason Judge Walter P Reed Counsel for District Attorney Kathryn Landry Special Appeals Counsel Baton Rouge LA State of Louisiana M Michele F oumet Counsel for Baton Defendant Appellant Rouge LA Appellee Clarence W Sanders III BEFORE CARTER J C GUIDRY AND GAIDRY 11 GUIDRY J Defendant Clarence W Sanders of two counts plea of not and determined defendant sentenced defendant probation parole to or proceeded was to guilty term a charged by grand jury indictment with The trial imprisonment of sentence Defendant entered The jury a charged as of life suspension trial before 1 14 42 rape in violation of La R S aggravated guilty was at on a jury unanimously subsequently court hard labor without benefit of both counts be to served concurrently Defendant appeals citing Did the trial I Farmer s s right s faced trial with no Did the trial III Farmer s allowing acts and grant a refusal in participation to grant and court continuance a to or require Mr the trial violate due process of law continuance or in participation require Mr trial violate effective assistance of counsel in that he in effect court s in right to Did the trial IV to citations omitted counsel at all presence defendant s refusal as error choice of counsel and in right to following court court s presence defendant s in to Did the trial Farmer in presence defendant II court s the refusal to grant and court a continuance or in participation require trial Mr violate effective assistance of counsel violate due process and the right to a fair trial the introduction of inadmissible other crimes wrongs or court evidence without reasonable notice V Did the trial VI Did the trial court s denial of court err in for insufficient evidence violate denying a the Motion to motion defendant s to vacate right to Suppress the convictions due process FACTS On before September they 28 A C was at the home of her close friend both left for school at Mandeville Junior previously confided to sexually abused by S C I 2006 S P s High that she and her younger cousin stepfather the defendant S The School S C A C were 2 had being P had noticed that A C had grand jury indictment alleged these crimes were committed between January 1 September 28 2006 against S C who was born October 27 1994 and A C who December 4 1993 S P 2004 and was born herself cut had depressed become very Despite SP begun to wear A C to tell encouraging and had revealing clothing an begun to adult about the situation A C refused On the an morning adult A C A C September mother Valerie s revealed finally of 28 2006 Carpenter finally convinced S P was summoned to her mother that defendant had been to S P s A C to tell home where sexually abusing her and S C Carpenter immediately contacted her brother Greg Chaisson who Chaisson and his wife father of the cousin S C to and her older brother attended the school that S C them about what had been questioned complaint During the possibility of assigned was of the course SC to Sgt Wanda Jarvis in participating an telephone a a 2 and Chaisson complaint of the Juvenile Division Jarvis and Chaisson discussed the investigation Sgt representatives could monitor in effort call that law get defendant to Chaisson declined because he allegations withdrew them with the defendant occurring the drove stepmother s Tammany Parish Sheriffs Office and filed then contacted the St The S C Donna was was concerned to over enforcement discuss the S C s fragile emotional state The parents of S C and A C the Children s Advocacy closed circuit television Sgt Jarvis happened S C was However permitted Center CAC their children A C to speak appeared be interviewed and more was interviewed According kept blaming herself for open to discussing S C older brother A1 C s is not the subject of any allegations involving defendant 3 to what the abuse and admitted that defendant had touched her with his hands and mouth 2 at Sgt Jarvis monitored the interviews via On October 6 2006 S C reluctant to S C Initially her husband allegations regarding S C did not return to instructed M S because she question awakened S C residence and at S C to September disputed 2006 disclosure 28 state However when M S grandmother Linda Libert mental s her about the S C s M S allegations S C had interfered with an on became upset and M S left the and if it going investigation she had consumed Sgt Jarvis learned of this incident she informed When the allegations with her child discuss the or questioning s and by her mother and defendant Sgt Jarvis the home of S C questioned night prior alcohol that After A C also concerned about S C spent the night with S C defendant supported the home shared not to was M S mother s M S that she happened again she would arrest her During the had course of the investigation Sgt Jarvis previously disclosed that they A A S s C that there stepsister had been inappropriately toward S T a friend of S C while incidents wherein previous the twelve year old obtained warrant the S C bookcase as had used one an area her bedroom S acted C brother s and separate charges of investigation Folsom residence and s used for S C area was a two of the bedrooms and S next to This police arrived with the search the during Defendant s residence defendant and his wife used two When she arrived at defendant Sgt Jarvis noted that the completely emptied other for defendant warrant October 26 2006 warrant girlfriend of reportedly against defendant the information learned search a on on to Sgt Jarvis also learned defendant Both incidents formed the basis of indecent behavior with a juvenile Based being sexually abused by defendant were vacation in February 2004 on B S learned that A C and S C area warrant s s no S C s 4 doors or executed the residence to execute bedroom had been bedroom home wherein s C older brother used the defendant s office that had Sgt Jarvis walls was bordered by a however when the bed had been removed Both S C and A C investigation On October 24 2006 Dr Scott Benton the medical director of the Audrey Hepburn Children examined A C in connection with this by physicians examined were Dr Benton In forensic medicine Risk Evaluation Center of Children s at was obtaining stated that defendant had on the trial accepted by a history from court Dr Benton noted that she A C penis expert in pediatric as an several occasions touched her hands and mouth and made her touch his Hospital A C private area with his indicated that S C was present when the abuse occurred Dr Benton testified that A C denied any penile oral penetration prior physical findings no to his asking about it According observed during his to Dr Benton there were of A C that would either bolster exam or dispute the allegations of sexual abuse On October 31 2006 Dr Adrienne Atzemis examined S C reviewed the report and testified that S C her was present when the abuse occurred to Dr S C also history presented Benton both A C and S C reasons why children do reasons include the naivete of the child who does wrong threats or not bribes used S C by the Dr Benton also perpetrator explained something inappropriate had happened provide graphic details a being touched reported that normal provided what physical were are of the abuse because to not three understand the When she was in the third containing pictures of naked people grade S C 5 exam general These activity as that oftentimes them children they are scared or the child because of even are after revealing very reluctant to embarrassed At trial S C testified that her mother married defendant when she years old A C keep the child from revealing experienced by to on described report sexual abuse when it is occurring what has occurred and shame and self blame what occurred of Dr Benton testified that there delayed reports of sexual abuse that a vagina by defendant who used his mouth and hands According as provided Dr Benton was eight defendant would show her magazines indicated that defendant kept these in magazines drawer of his a when defendant would show such No else one was ever According and she room these acts on to S his saw pictures which C defendant also disrupt everything Defendant also instructed her penis a S C testified that A C lot defendant engage in the police on September 28 computer same acts to touch his was vagina penis usually in the with A C and same S C testified that 2006 that her mother s happened in her testified she had been in occurring because was S C happiness also first CAC interview second interview at the CAC where she S C on a her breast and began touching S C stated that she did not disclose what a sometimes present was by defendant finally stopped after her father removed her from school and notified the would were also around using his hands and mouth put her mouth A C his bed next to nightstand was more for therapy quite a explained out she feared it she did of fear and later forthcoming length of not tell requested with information time these regarding incidents A C testified that she cousins and Folsom good friends following his spent a great deal of time with S C because they Much of this time marriage began abusing her when she was with his hands and his mouth visited S C same acts and S C was S C A C on to S C was nine years old According present in the a A C testified that defendant by touching to A room testified that pornographic magazines that he kept in spent at defendant s residence in mother s were C her breasts and vagina this occurred whenever she A C witnessed defendant do the defendant would show her and S C hidden drawer of his nightstand in his bedroom A C abuse acknowledged that she and S C had told her friend S P and S C S P would tell then said it someone was only A C also a joke explained 6 A C testified that they about the were afraid that she did not disclose every detail of the abuse such mouth out because she as too The State also of trial and twice the to to seated vagina the top of her about the at episode S T wound residence brother his AlC fingers bed s bedroom pushed his hands bonfire defendant a away s McDonald night dimples butt cute watching residence s was spending area during this tickling which she described a negative feeling S T testified she night never during the investigation returned never as defendant s to from B S to B at S who defendant acted greeting of her buttocks a or her he to twelve year old place his hands at the time of as the guest inappropriately hugged lower back movie defendant entered and a fifteen defendant s residence First when for was her and area and Later while B S was sat behind her on up the front of her sweater Lastly when telling defendant goodnight outside the B S near a hugged her and kissed her on the neck B S testified she B S the the time Defendant entered the contacted them Christmas party a whereupon he attempted Lynn police According in the commented that she had in Al C spending also testified she towards her several times that placed bed testified that S T presented testimony trial In 2005 B S attended s s at defendant Because she had such leg up not S T to her second visit she S C on thirteen was following this incident The State also of S C who her in the wrong spot told her mother about this until the of the present offense on and S T tickle both S C began tickling her from S T S T to According were second CAC interview a S T testified she had been friend of S C defendant episode requested in her putting his penis reveal all the details in the first interview presented testimony and she and S C began near embarrassed guest of S C as a night and a testified that she A C of fear was Dr Benton about the defendant telling never returned to defendant about what had occurred grandmother who had custody residence and told her McDonald informed of B S 7 s aunt Marilyn Siren Siren contacted the Sanders s residence and had done with defendant s wife about the spoke Shortly thereafter anything he he explained Defendant then offered anything apologized defendant contacted Siren and may have done and to do drunk and had was for B S anything defendant acts inappropriate no for memory of Siren declined and suggested that defendant get help Defendant testified insisted to to his defendant his on attorney that he be allowed following his marriage moved into his Folsom home he that they bring home at claimed the children had least a never to to M assigned B in all store or to had and S C defendant his wife to at were in the house pick I like some having to was never According two children do and insisted to of their schoolwork Defendant was out Hustler 24 7 home with S C A C magazine contact in any other or his except when she nightstand went to the When the prosecutor asked defendant if A C was in the barn really talked to gone he or replied Well I wouldn t be in the fields you know me do chores when she visited S C Defendant Defendant testified that A C did at his house and had issues with of his rules Defendant apologized for disputed any actions the on testimony of Marilyn Siren and stated that he his part toward B S any statement he may have said to her incident their when she and her subjects a his home while his wife further claimed A C not kept up the children Usually S he had had this type of discipline in their lives Defendant admitted he According tell his side of the story chores for each child Defendant denied any type of sexual child began by explaining behalf and own involving legs on S T was but admitted he apologized Defendant also testified that the unintentional in that he never for tickling customarily tickled children on either side of their knees The defense Dupont defendant presented testimony from several witnesses including Richard s brother in law Janet 8 Sanders defendant s sister Victoria defendant s Sanders Each cousms of these another of defendant s and Dr Richard Sanders cousm testified that witnesses inappropriate behavior by defendant toward they never observed any any child DENIAL OF MOTION TO CONTINUE Through defendant court erred in counsel denying first three s his motion presence in court and s to participation due process of law and effect faced trial with no counsel A motion for the of its grounds a a rests be disturbed not 755 cert circumstances of the case failing require to on further violated his right choice of to effective assistance of counsel in that he in all writing and shall allege specifically La C Cr P art 707 The granting appeal State v absent a Castleberry showing of a denial and court clear abuse of 98 1388 p 5 120 S Ct 220 or La 13 4 99 145 L Ed 2d 185 the Generally the denial of a motion for continuance is not 23 683 So 2d 218 showing of specific prejudice State justified depends Strickland 94 0025 p v 229 to Choice of Counsel Beginning with defendant represented by s December 22 retained counsel Marion Farmer Kevin Boshea who also had been retained 2006 arraignment By order dated defendant enrolled as minute entries reflect that between the first assigned trial date of 6 there and the commencement continuances of the trial four at of trial on May the request of defendant 2008 he March 11 by 2007 his lead Specifically defendant motion for continuance is a Right he contends the trial on a reversible absent La 11 1 96 in or in the trial denied 528 U S 893 Whether refusal of error within the sound discretion of the trial La C Cr P art 712 758 So 2d 749 1999 at court continuance shall be in motion for continuance discretion to upon which it is based ruling shall continue to alleges that these failures of the trial counsel assignments of was 2008 counsel The February 12 were five and motion dates weree9 continued six times four Tuesday May trial for the following 1 2008 Farmer filed had time properly prepare for the trial proceed to trial at the present position to to sic requests that the trial severe him Friday May more more than get ready but he lead counsel case this a not to than a on the t a his man one malpractice Friday prior that the witnesses case continued to on to family breakdown due at to would be unfair to in a respectively later date a problems stress come s part on the case his part and my part if court to citing driving were blows in the a going Im instructing him we of testifying at not to go forward a through the continuance proceed at that to continue the occurred in 2003 on as jury in the trial of this Boshea stated that he had been told that to great job of trying trial about Farmer s request for events I way it is and stated that he learned was a and also stated just the Boshea has done here and Farmer that he concerned the to not this time and Im not thirteen and fourteen years old and were and is continue the trial this time That prosecutor opposed Farmer s motion allegations continue defendant Counsel iota in the selection of a and the denial of the continuance s at very minimal participate defendant defendant to get the work done traffic ticket Boshea later addressed the trial The this time again moved traffic ticket done s that this will be prosecutor on matter be I cannot court Farmer then stated to motion and that he and his law partner had almost try anything try anything a firm and admitted that the problem with his law not on Farmer office Farmer told the trial could for 2 2008 the trial court denied Farmer s motion to continue morning of trial crazy set eventually the dissolution of his law firm and has not going through On the was reason Counsel is On Trial 6 2008 Thursday May On the request of defendant at trial on by time the basis and the minor the brink of a nervous trial The prosecutor articulated that it put these witnesses through this type of 10 stress again The s prosecutor further explained that he he could be replaced by another prosecutor the minor witnesses at he had spent indicates that Boshea enrolled court Boshea to to law for practice be period a of more originally counsel in this as co noted that Boshea had been Attorney s Office for licensed a and although great deal of time with for trial preparing them least four continuances since the trial had trial June 20 2008 on the continuance the trial court noted that defendant had obtained denying In retiring was a The record been scheduled matter on March 11 2008 The prosecutor with the New Orleans District under ten years Harry Connick and had been than twenty years The trial court considered quite competent Farmer again objected in his life and the fact he that the trial was not court was prepared to go ignoring forward at the minor tragedy Farmer then that time stated I m not to I proceed going ask to going am a to allow this telling him man Boshea Do not ask a I m going to single question as the second chair single question Im not tell the jury exactly what Im telling you Now I think you need to rethink this Following this exchange the trial for an off the record discussion the courtroom and the trial court stated that the victims in this had been not competent Boshea s Following to to who case The trial participate and court that discussion the were approximately connection with the testify The trial proceed with the reputation with all attorneys in chambers parties reiterated its denial of the motion undergoing counseling in present and ready court met court matter to returned continue and twelve years old and allegations at issue were noted that Farmer had admitted he that day and the to court was well was aware of ability and was confident he could proceed with the trial further noted that if defendant instructed Boshea in the trial such an act would be 11 tantamount to not to firing his attorney on the of trial which would day moved to withdraw as not be obtaining a for grounds counsel which also continuance Boshea then denied Jury selection and trial was Farmer proceeded with defendant represented by only Boshea the the trial following courtroom Defendant contends that the trial deprived him of his denial of his motion court s court to continue to denial of Farmer s motion s returned never to continue his choice of counsel right to be represented by The United States Constitution guarantees that the accused in all criminal proceedings shall have the assistance of counsel for his The amends VI and XIV right is the right of a defendant who does who will represent him 1692 1697 Court has further stated that Supreme See Wheat 100 L Ed 2d 140 v not The Seiss 428 So 2d 444 447 arbitrary a constitutional violation 548 U S 604 608 140 An requiring cert 108 S Ct 13 S or erroneous see reversal See United States denied 493 U S v also also State v denial of counsel regard for the circumstances of the particular 126 S Ct 2557 165 L Ed 2d 409 3rd Cir 159 choose to right of choice of counsel is La Const art I La 1983 element of this counsel require appointed recognized by the Louisiana Constitution of choice made without any an United States 486 U S 153 1988 U S Const defense own case Gonzalez is Lopez v Diesslin 868 F 2d 110 S Ct 203 107 L Ed 2d 156 2006 873 Fuller 1989 However the 159 the right 108 S Ct at 1697 to counsel of choice is not absolute Wheat 486 U S Where considerations of judicial administration supervene presumption in favor of counsel of choice is rebutted and the right way Fuller 868 F 2d at 607 Second Circuit in State the defendant approximately one v must give 3 n Defendant argues his situation is Roberts at Roberts initially month later analogous 569 So retained an out of 2d 671 local state 12 to the situation addressed La 1990 In arraignment but App 2d Cir counsel for attorney filed a by the motion to enroll setting forth that he had been hired after the defendant work with local counsel in action proceeded through the continue the trial due Louisiana the trial case at and denied the barring his continue of out prohibition court s reversible situation error was from state Moreover the of state In se at had State to the defendant out s to enroll of one the acknowledged year out motion for continuance The Second Circuit noted that there trial ever court of was attempt an Roberts 569 So 2d state stated that coming on that the on the bench particular emphasis out of state attorney excluding since Ive been on motion to to practice in in the participate Roberts 569 So 2d the trial state to court erred in to attorney to enroll was to out enroll of of state the bench and Roberts 569 So the fact that as to the pretrial hearings attorney s right to accommodate his federal nothing to suggest obstruct to or the out interfere with the at 675 attorneys far 2d counsel because state to was counsel as change prior The Second Circuit in Roberts examined the trial out a matter The Second Circuit determined the trial eleventh hour motion an attorney s enrollment allow the The no reaching this result the Second Circuit noted that the joint a administration of justice to to continue appealed arguing 674 attorney had sought participate by signing trial schedule 2d allowing different from of out the defendant 569 So per attorney s motion state be allowed took to When the trial admitted not was not court attorney filed state agreed attorney from participating and in denying his motion state Roberts attorney told him he would of out trial Following 673 the court The trial 2d at 672 73 So and the out of and had conflict with his federal trial schedule a out of state learned that the court 569 Roberts pretrial stages to the defendant representing to enroll the motion on arrest s as reason According to was a I know at 675 prevailing court s for refusing the record the practice of this long prior to my The Second Circuit state law held to court ever placed the contrary and attorney had complied with the applicable provisions that 13 would allow him in the matter Roberts participate to Second Circuit further stated that each court decision s to grant counsel of his choice against the continue in the was inextricably his motion participate consideration of the orderly to out of all previous state continue unexpected state State good to cause to had not participating attorney s request state to all thereby foreclosing counsel of choice and the balancing balancing was of interests or grant deny by the Second whether were as lead counsel i e finding test necessary to and the since the a reason would denial of a out of for the not 2d at 676 77 exclusion of the court court s guarding of bulky evidence 569 So that the trial support primary and shipping erroneous wanted the obviously Roberts was sworn the the for the trial responsible enroll defendant materialized a not to notably counsel of choice mandated failed to out of The state perform continuance be the Roberts at 677 In the court to him from had been obtained with the consent of the the continuance circumstances of Roberts 2d this to defendant transferred until after the jury 569 So attorney s motion state The factors mentioned at 676 case represent him physical evidence minimal administration of moot right s to attorney could have made other arrangements for his federal trials opposition s of right s of out out defendant orderly ruling excluding rendered was Roberts 569 So 2d denial of the motion attorney the facts and the trial own a The at 675 76 that would allow the trial court to justice continuances in the State and for on denied the court Circuit that would have been relevant the ruling balancing of defendant administration of the continuance interest in the public s related to the Once the trial case its on continuance balances a The Second Circuit noted that justice to deny or turns case 2d 569 So present case our review of the record leads clearly balanced defendant s right orderly administration of justice in to us to conclude the trial choice of counsel with the interest of the denying defendant s motion for continuance 14 Farmer had been defendant Farmer admitted that due to the stress of the in December 2006 proceedings dissolution of his law he had been unable practice to concentrate defendant on s However the trial court noted that defendant had obtained four continuances case of the trial prior to the May been undergoing counseling trial court co counsel trial attorney whom it considered months prior approximately were associated with the stated that retained matter two The trial court further articulated its 2008 date 6 consideration that the minor victims this counsel of choice since the initiation of the primary s to allegations Boshea to continue the dissolution of his law firm timetable in this regarding continuance be selection on Friday May minor was a when he could criminal and he had been retained resume to 2 were aware Despite Moreover the trial court that the trial on Farmer court statements s that he offered the trial court tragedy no competent representation of defendant attempt to dictate since he had instructed Boshea granted experienced the trial date Rather Farmer chose matter of the indictment The was an quite competent We further note that both Farmer and Boshea denied the motion twelve years old and had was aware the trial to that the participate not to court in jury that the prosecutor was retiring on June 20 2008 Considering discretion in the circumstances balancing the competing his retained counsel Farmer and justice would be in effect held a we situation wherein the hostage by purported problems defendant available to and was an Farmer s experienced attempt to at the trial court abused its wide interests of defendant Farmer s represent him cannot say s Farmer s being represented by orderly administration of Despite personal dilemma other retained counsel Boshea was still trial Boshea had been retained several months earlier criminal trial attorney cajole Boshea into not 15 Moreover participating we in note jury that despite selection and witness examination Boshea conducted voir dire and the examination of witnesses on the defendant s behalf Defendant claims his violated when the trial In citing 5th Cir court rights because the choice of counsel with the State the Gandy court made a continuance a grant or 1978 to Gandy support this argument found the denial of interest in the similar finding State v a As continuance violated trial court had not balanced the defendant s were Farmer s require Roberts defendant also cites the Roberts previously explained to to 1318 569 F 2d the defendant s choice of counsel and due process to refused court In addition to presence in court of Alabama rights s right orderly administration of justice that the trial court had not balanced competing interests when it ordered the law partner of the defendant s these counsel of choice to handle the case on in the defendant s chosen counsel Gandy court to unfamiliar with the case s schedule failed the defendant replace prior to the of trial when morning court noted that the trial ordered lawyer the Gandy to conflict 569 F 2d at 1324 consider any alternatives original s a commencement counsel of trial was Gandy arose The and the completely 569 F 2d at 1326 28 The present case is distinguishable because in addition defendant also retained Boshea planned to participate performed the orderly the trial necessary court s actions in in we decline denying Farmer s to Farmer criminal trial attorney light of the fact that the trial s choice of counsel who court rights with the apply a presumption of prejudice to motion to continue of Ineffective Assistance of Counsel In defendant a Moreover retaining assignment of error is without merit Presumption grant experienced balancing of defendant administration of justice This to in the trial an to s second continuance or assignment of error he require argues the trial court s refusal Farmer s presence in court and 16 participation in the trial violated his trial with of presumption v counsel no to effective assistance of counsel in that he in effect faced at right all support of his argument that he is entitled 104 S Ct 2039 80 L Ed 2d 657 possession file until trial likelihood that Boshea could should be a presumption proceeding whom defendant claims did only with Boshea of Farmer s a 1984 Defendant contends that the circumstances of his Farmer and to under these circumstances defendant cites United States prejudice Cronic 466 U S 648 In began created provide effective assistance of prejudice without not situation a trial without to was so even have whereby the small that there into the actual conduct of the inquiry trial We First disagree ineffectiveness of counsel could be either the there was a prosecution lawyer that a even a s complete case to that in Cronic the note we presumed fully competent one would was at that Boshea filed a 659 60 104 S Ct to s An scheduled 28 April hearing 2008 minute on the Motion for Suppress Evidence both of which Boshea himself represented attempt to obtain a to The order subject is so small actual 2047 of prejudice February 15 2008 presumption counsel as on was signed was on March 11 present for Preliminary Examination and continued the trial court that on to he had learned of Farmer s May 1 Farmer s continuance had been denied 17 a Motion a the date of trial to continuance from the prosecutor following morning that at to inquiry into the entry indicates Boshea were failed the likelihood that any or claims of a enroll indicating he had been retained by defendant 2008 actively without appropriate motion of prejudice when provide effective assistance The record fails to support defendant note showing meaningful adversarial testing presumption of prejudice we a denial of counsel counsel conduct of trial Cronic 466 U S First without Supreme Court recognized and was aware the Boshea stated he had with Farmer at spoken Farmer approximately relayed what had been going on 1 40 p m Friday May on observed that it was was originally in set February 2008 possession prepared important of Farmer s file he for the trial never Further an represented instanter to Finally the lack of physical possession of unfamiliar with the was sufficiently familiar with the court that the Motion to case case as as court evidenced in matter the trial subpoena was have not court physical that he had not issued for Farmer to the commencement Farmer s To the of the May 6 the trial Moreover that while Boshea stated he did to note produce his file which Farmer complied with prior Boshea aware impressed with Boshea s professionalism all the pretrial conferences held in connection with this It is wherein with his law firm However the trial court noted that all counsel had been trial date when it 2 file is not to of trial indicative that contrary Boshea appeared to be demonstrated when he reminded the trial Suppress Evidence was supposed we cannot say to be heard prior to jury selection Under the circumstances of this a presumption Farmer s file involved in Farmer s of prejudice arising from Boshea not Boshea had been retained selecting motion to a trial date continue Boshea with the defendant defendant failed to prove s on file assignment to to having physical possession of was aware that the trial court denied 2 Farmer Friday May prior defendant is entitled by defendant in February and had been Boshea the Moreover commencement of trial that his counsel s actions fell within situations outlined in Cronic for which This case one prejudice should be presumed of error is without merit 18 provided Therefore of the three Ineffective Assistance of Counsel In his third assignment of the resolution of perform adequately as argues these remarks with the coupled impression assist only opening crimes he enough for him was that Farmer defendant due to monster was was his In Strickland L Ed 2d 674 to to he is only have left the jury represent him to in opening animal an jury statements Further that he was only present for trial coupled with life and to Defendant primary attorney unwilling comments could have caused the his unprepared was that indicated if defendant had statement a in Farmer Boshea further elicited Farmer and that Farmer would not be assisting resulted s repeated references with Farmer s absence could defendant contends that Boshea s Boshea s to was from defendant that Farmer testimony who he contends by Boshea court his counsel absence and his role s abandonment Farmer s defendant contends that Boshea made Specifically Farmer from problems arising ineffective assistance of counsel defendant argues that the trial error committed these isn t imprisonment good conclude that Farmer abandoned guilt Washington v the 1984 466 U S 668 687 104 S Ct 2052 the test for Supreme Court enunciated 2064 80 evaluating the competence of trial counsel First the defendant deficient by the Sixth Amendment requires showing the defendant of a sentence errors so was serious guaranteed the Second the defendant must This performance prej udiced the defense that counsel fair trial defendant makes both death performance requires showing that counsel made was not functioning as the counsel show that the deficient or show that counsel s This that counsel defendant must a s errors were so serious to as trial whose result is reliable it showings resulted from a cannot deprive Unless a be said that the conviction breakdown in the adversary process that renders the result unreliable In counsel s evaluating the performance of counsel assistance was reasonable considering 19 the inquiry must be whether all the circumstances State v 937 Morgan 472 So 2d 934 required showing of either deficient State ineffectiveness claim Cir La 1st Cir 1985 App performance sufficient or Robinson 471 So v 2d 1035 make the to defeats the prejudice 1038 39 La properly raised 1st App writ denied 476 So 2d 350 La 1985 A claim of ineffective assistance of counsel is for post conviction relief in the district application hearing be conducted may evidence to error State economy more where court a full sufficient it may be addressed in the interest of appeal on Carter 96 0337 p v 10 La 1st Cir App 118 96 an evidentiary where the record discloses However by decide the issue of ineffective assistance of counsel when raised of assignment 432 Failure by judicial 684 So 2d statement he 438 In the present case at the outset of defense counsel s opening stated As I said before I am with us as Marion Farmer who will not be today for this trial I listened very very And assisting far I as am intently to concerned he is a the State s monster he is opening an statement animal and to be candid with you life imprisonment isn t good enough for him That s what this man is That s what this man is that s what they told you that he is If it An inhuman vile disgusting monster If it happened happened I have only been involved in this case for several months and I tell you that I am going to try and do my level best to get to what happened in this case I am truly going to try And as I told you in voir dire the allegations are disgusting despicable and would like horrible to of that there is no doubt If they Defendant argues that these remarks without further Farmer was happened made in the presence of the jury explanation could only have left the jury with the impression that unwilling argues that there is a different had Boshea to represent defendant due reasonable not guilt Defendant further outcome would have been of Farmer s abandonment of to his probability that the made the jury 20 aware defendant coupled with Boshea s expression of his views that commit such crimes is In the trial obtain deficient Prior were his continuance to he of defendant the participating or returned participate to Farmer was as a we that the crimes Finally even have been deficient making the to the initial never if later prior to not from the voir dire and to was the It trial to the explain that possibility the point in have wanted is that jury was no consider these cannot say were so statements not by the cannot say serious crux as to Taken in context of the defense which by the victims and references two young s children witnesses and Boshea Boshea s few references undermine the assignment of error is without merit to outcome argued It is evident emphasized testimony support the allegations 21 by prejudiced the defense to the point consistent with the victims trial to of these As stated earlier the defense examined the State physical evidence we fabricated these actions been fabricated cross evidence in the record absent Farmer were were guilty to someone representation draw attention to the of the trial unreliable outcome carefully fact that there This a deficient occurred and we we allegations amount to indirectly allegations had that Boshea not at in Farmer chose neither in the trial Boshea s references cannot say monster etc Boshea used them that the participate of trial when Farmer did courtroom we having problems associated with the breakup of his law firm Additionally crimes not to test given the option of withdrawing was understandable that Boshea would of commencement Because Farmer had not withdrawn there returned could have was under the first prong of the Strickland but instead absented himself from the option he comments Boshea s actions in mentioning Farmer who chose representation never monster a evaluating these cannot say anyone who would how and the Considering to of this assisting proceeding the the NOTICE OF EVIDENCE OF OTHER CRIMES In his fourth assignment violated due process and the inadmissible other crimes of right defendant argues that the trial error to the introduction of allowing evidence without reasonable notice acts or wrongs fair trial in a Defendant contends that the inevitable consequence of the counsel issue Boshea did not timely notice of other crimes evidence receive C E arts 404 B State introduced s a taken photograph during introduction of evidence of towards S T and B S s crimes or bad during the discovery request by the a filed April all we more charging s note arrest the on these April by defendant magazine recovered warrant in the s a year answers prior two to use trial of other defendant to the State counts s set of indecent Included in this notice setting forth the facts to responded with the notice of defendant with was also and circumstances charges 12 2007 items seized from defendant than S T and B S for these other crimes supporting defendant Further complied Specifically 12 2007 juvenile regarding arrest warrant Hustler execution of a search it also defendant forth the bill of information behavior with a conduct of the record indicates that when the State acts Sgt Jarvis The second instance involved the the introduction of discovery request warrant at during the investigation that defendant would alleged prior inappropriate through residence Our review s La Sgt Jarvis when the the execution of the search have them make alcoholic drinks for him from defendant that required by residence of an empty Jack Daniels bottle in a wastebasket testified that the victims indicated defendant as was and 412 2 The first instance occurred during direct examination of defendant court filing by the residence State contained specifically listing the magazine recovered exactly where both of the victims described 22 a return on Hustler Moreover the filing also contains the investigative report that references S C defendant would have her make alcoholic In decline record and reviewing the find defendant did to other instances of bad time this notice retained as trial setting of that Farmer s court intended May to the 1 on Under these circumstances notices filed by have notice that the State intended February 2008 Motion the State assignment any cannot of on defendant error not 2008 s to May enrolled the trial as matter to these use counsel we the at that he had been court Moreover 2008 trial date 6 May was to represented hear the trial been retained and acted This he given was the circumstances of this Boshea that statement for him beverages considering Although acts additional counsel in involved in the aware not s Boshea clearly was also Finally Boshea was Continue had been denied and that the 6 2008 behalf for By some our review Boshea had three months unfamiliarity Boshea claims be attributable to with the prosecution or prior to respect the trial trial to the court is without merit MOTION TO SUPPRESS EVIDENCE In his fifth denying his motion search probable warrant error to suppress the the information used level of of assignment to cause defendant argues the trial evidence obtain the search because there that would indicate a Defendant erred in court specifically warrant was in this nothing in the affidavit in support of the case belief that the items were failed argues that to rise to the still in defendant s residence A defendant who seeks has the burden of State v proving suppression the McCutcheon 93 0488 p 6 1342 writ denied 94 0834 La A grounds person is 17 6 of evidence seized pursuant of his motion 1st Cir La C Cr P 11 3 94 La App 94 to art 633 So a warrant 703 D 2d 1338 638 So 2d 1093 constitutionally protected against unreasonable seizure of his house papers and effects Thus 23 a search and search and seizure of such shall only be made affirmation and seized U S probable issued warrant a upon on the particularly describing IV Const amend sufficient cause to La issue circumstances within the affiant trustworthy information s probable place C Cr to be searched P 162 art warrant to Additionally of place sought must probable 126 00 support or warrant must a establish a contain within its four issuing the practical a corners the facts State warrant sought v to 1027 28 cert denied 531 U S La sense fair a particular place be seized establishing between Further an the existence 99 0023 Casey the see forth in the affidavit a an at common probable continuing nexus pp 3 4 La 840 121 S Ct 104 148 2000 present case the affidavit accompanying the search warrant set forth indicating that defendant had shown each victim pornographic photographs either the computer or in The affidavit further indicated that the magazines victims stated defendant would take them in separate magazines of nude people the bed on In items 374 reasonably reasonable belief that a crime will be found in be searched and the property for rule is that general contraband may be found set be exists when the facts and make must or to s Johnson 408 So 2d 1280 1283 La 1982 v all the circumstances 775 So 2d 1022 In the facts to cause L Ed 2d 62 on search a The thing and of which he has knowledge exists that the evidence of probability affidavit given 5 search a issuing magistrate The decision whether the State I art offense has been committed and that evidence place be searched and Const sufficient are to supported by oath cause and that defendant So 2d warrant to and make them look at kept these magazines in a drawer by the left side arguing the affidavit failed were rooms still at 1238 search to establish probable his residence defendant cites the La a 1979 defendant In Boneventure s residence 24 an case cause of State officer to believe these v Boneventure applied for a search The affidavit indicated that two days earlier informant had observed an located cause at probable cause is not a be court two days to a Boneventure believe the establish reasonable belief that contraband same the place 2d So at at 1239 to or be searched Under the forth in the affidavit there could be set as 374 no amount offered to the informant consumable still be in the residence earlier would to by the informant would still be of but rather will remain disposed circumstances of Boneventure cause that the affidavit failed emphasized that within the general concept of necessary element of the time of the search probable finding of marijuana that had been offered for believe the evidence observed the residence the evidence will at to quantity In consumption by the defendant probable a the time of the search at Boneventure 374 So 2d at 1239 In the present belief that the case we photographs cannot say of nude the affidavit fails to establish people whether on magazine in the location described by the victims would photographs unlike the quantity something that is regarded as of marijuana susceptible to being Under the circumstances of the present failed to establish probable cause be in defendant s residence that the at reasonable computer or In still be there issue in Boneventure are a The not consumed case we photographs Therefore the trial a a court cannot say of nude the affidavit people would still correctly denied the motion to suppress This assignment of error is without merit SUFFICIENCY OF THE EVIDENCE In his final denying assignment of his Motion for the defendant defendant argues the trial Judgment Notwithstanding contends that the evidence does Specifically error notes the not court erred in the Verdict Defendant support the verdicts returned by the jury credibility of the victims is questionable due delay in reporting these incidents the coercion 25 used to obtain the to cooperation of his wife the fact S C was interviewed several times before the fact that S C claimed she statement In must the at Children reviewing s S Ct 2871 contact claims viewing the evidence in the light a reasonable doubt Jackson 1979 also La C Cr P see provides A or Rape is the court favorable to of anal oral 319 99 art 821 B in pertinent part vaginal sexual intercourse with female person committed without the person rape involves to act Emission is B most 443 U S 307 Virginia v Louisiana Revised Statutes 14 41 or a defendant when challenging the sufficiency of the evidence this 2789 61 L Ed 2d 560 male involving to any rational trier of fact could have found the essential elements of beyond the crime detailed Hospital consider whether after prosecution a joking about the allegations was friend and the fact A C denied any oral sexual evaluated providing s lawful a consent and any sexual penetration when the anal intercourse however slight is sufficient not necessary vaginal or complete the crime Louisiana Revised Statutes 14 42 A Aggravated rape is intercourse is deemed to a provides in pertinent part where the rape be without lawful because it is committed under anyone circumstances oral consent sexual of the VIctIm of the following When the victim is under the age of thirteen years 3 knowledge of the victim s age shall not be a defense Lack of or more 4 After a thorough evidence in the have found beyond rapes of S C a most favorable to we are The verdicts rendered testimony of the State s convinced that viewing the the State any rational trier of fact could reasonable doubt that defendant and A C the accepted light review of the record was guilty of the aggravated against defendant indicate witnesses including the accounts the jury given by S C and A C of the incidents 3 Amended provision by 2006 La Acts No 178 S 1 effective of the crime of circumstances defining August 15 2006 to change the penalty aggravated rape found in subsection D 2 to conform to one of the the crime being when the victim is under the age of thirteen years as stated in subsection A 4 ofthe statute 26 court will This evidence to overturn not accept or reject the to in whole or in part the depends a La determination of the weight of the App 11 16 07 1st evidence Cir 3 23 07 not its matters sufficiency 2d 208 State 214 v the testimony of the The trier of fact Moreover the resolution of which credibility of the witnesses the 960 So reweigh or testimony of any witness conflicting testimony about factual of the The guilt prove the elements of the offense when there is upon of witnesses credibility fact finder s determination of a victim alone is sufficient may assess matter is one Verret 06 1337 pp 6 7 writ denied 07 0830 La 967 So 2d 520 This assignment of error is without merit CONCLUSION Thus prejudiced to the jury charged based in the was on the discussion proceedings before the trial sufficient Accordingly rendered in this foregoing to we we court find the defendant and that the evidence was not presented support the defendant s convictions for the crimes affirm the defendant s convictions and matter CONVICTIONS AND SENTENCES AFFIRMED 27 sentences
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