State Of Louisiana VS Troy Anthony LeBouef
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 KA 2025 STATE OF LOUISIANA VERSUS TROY ANTHONY LeBOUEF Judgment Rendered N 1 fli On Appeal from the Thirty udicial District Court Second In and for the Parish of Terrebonne State of Louisiana Docket No 571 369 Honorable David Arceneaux Judge Presiding Joseph Waitz Counsel for Appellee District Attorney State of Louisiana and Ellen Daigle Doskey Assistant District Attorney Houma Louisiana Frank Sloan Mandeville Louisiana BEFORE Counsel for Defendant Appellant Troy Anthony LeBouef PETTIGREW McCLENDON AND WELCH Jl McCLENDON J Defendant Troy Anthony LeBouef was indicted by a grand jury on one count of aggravated rape of a female under the age of thirteen years a violation of LSA 14 Defendant entered a plea of not guilty Following a jury S 4 R 42A trial he was found guilty as charged He moved for a post judgment of verdict acquittal and for a new trial both of which were denied Defendant was then sentenced to life imprisonment at hard labor without benefit of parole probation or suspension of sentence was denied He moved for reconsideration of sentence which Defendant now appeals designating two assignments of error We affirm the conviction and sentence FACTS The victim M was about four years old at the time she accused V defendant of sexual abuse V M her older sister A and their mother P temporarily lived in the same house on Raymond St in Houma with defendant and his girifriend Cheri LeBouef s V M mother and Cheri were friends and when the mother was working she would leave her daughters in Cheri care s Even after moving out of the house M mother would still take her and A s V P to defendanYs house where defendant and Cheri would babysit the chiidren sometimes overnight or for the entire weekend Defendant testified that he practically raised M since she was a baby and that he and Cheri would take V V M with them on vacations and to their family gatherings Defendant and Cheri would often babysit other children in their home including s Cheri niece P K Sometimes the children would stay overnight During overnight stays M would usually sleep in the same bed as defendant V and Cheri and the other children including A and K would usually sleep on P P the couches or on the floor in the living room V M first told her grandmother about the sexual abuse and then M s V mother contacted the police who began an investigation M was interviewed V by Dawn Buquet a forensic interviewer at the Terrebonne Children Advocacy s In accordance with La R 46 the victims herein are referenced only by their initials S 1844W 2 Center In that interview which was recorded and played for the jury M told V Buquet that one night when she was in the same bed as defendant and Cheri defendant told her to go under the covers and touch his penis and that he put it in her mouth M also testified to this at the trial V Immediately prior to his arrest defendant spoke to Detective Keith Breaux of the Houma Police Department who was investigating M sexual abuse s V claim and admitted that M did have his penis in her mouth one night while V she was in the same bed as he and Cheri DefendanYs interview was recorded and the tape was played for the jury Defendant also repeated the admission at trial However defendant alleged that M acted on her own without his V prompting that he did not realize it was M at first because he thought it was V Cheri and that he fussed at M for her actions He testified that M told him V V at the time that T had let her do that There was some testimony at trial Roy including from Detective Rosylynn Morris a criminal detective with the Terrebonne Parish Sheriff OfFice that M had made very similar sexual abuse s V allegations against another man That individual was her mother boyfriend s who went by the nickname T There was other testimony at trial that M Roy V knew the difFerence between defendant Troy and T M also identified Roy V defendant as the man who sexually molested her both at the trial and during her taped interview with Buquet Pursuant to LSA art 412 E C 2 the State introduced evidence of defendanYs commission of another crime wrong or act that indicated a lustful disposition toward children P A and K testified at trial that defendant had P sexually molested them when they were younger than thirteen years old P A testified that when she was about eleven years old at a time when she was at the house on Raymond St defendant put his hand in her underwear and rubbed her vagina She testified that this only happened one time K testified that P when she was about twelve or thirteen years old while she was staying overnight at the house on Raymond St defendant came to her while she was asleep in the living room and that he touched her vagina made her touch his 3 penis and attempted to have sex with her She testified that this happened multiple times Defendant denied the allegations made by A and K P P ASSIGNMENTS OF ERROR nment Assic of Error No 1 Juror Challenge for Cause In his first assignment of error defendant argues that the trial court abused its discretion in denying a defense challenge for cause properly asserted against a prospective juror Mr Simon Tarr who never unequivocally abandoned his strong bias in favor of the prosecution After the trial judge denied the challenge for cause defendant used a peremptory challenge to remove Mr Tarr The record is clear that defendant objected to the trial judge denial of the s challenge for cause and that by the end of voir dire defendant had exhausted all of his peremptory challenges An accused in a criminal case is constitutionally entitled to a full and complete voir dire examination and to the exercise of peremptory challenges Const LSA art I 17A The purpose of voir dire examination is to determine prospective jurors qualifications by testing their competency and impartiality and discovering bases for intelligent exercise of cause and peremptory challenges State v Burton 464 So 421 425 La 1 Cir writ denied 468 So 2d App 2d 570 La 1985 A trial court is accorded great discretion in determining whether to seat or reject a juror for cause and such rulings will not be disturbed unless a review of the voir dire as a whole indicates an abuse of that discretion A challenge for cause should be granted even when a prospective juror declares his ability to remain impartial if the juror responses as a whole reveal facts s from which bias prejudice or inability to render judgment according to law may be reasonably implied State v Martin 558 So 654 658 La 1 Cir 2d App writ denied 564 So 318 La 1990 However a trial court ruling on a 2d s motion to strike jurors for cause is afforded broad discretion because of the s court ability to get a first impression of prospective jurors during voir person dire State v Brown 05 p 5 1 Cir 5 935 So 211 1676 App La 06 2d 214 writ denied 06 La 1 948 So 121 1586 07 8 2d 4 Prejudice is presumed when a trial couyt erroneously denies a chalfenge for cause and the defendant ultimately exhausts his peremptory challenges This is because an erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error State v Kang 2812 02 p 3 10 859 So 649 651 To prove there has been La 21 03 2d 52 an error warranting reversal of a conviction a defendant need only show 1 the trial court erroneous denial of a challenge for cause and 2 the use of all his s peremptory challenges Kang 02 at p 3 859 So at 652 2812 2d Since the defendant in this case exhausted all of his peremptory challenges we need only consider the issue of whether the trial judge erroneously denied defendanYs challenge for cause as to Tarr Louisiana Code of Criminal Procedure article 797 provides in pertinent part The state or the defendant may challenge a juror for cause on the ground that 2 The juror is not impartial whatever the cause of his partiality 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 court is satisfied that he can render an impartial verdict according to the law and the evidence 4 The juror will not accept the law as given to him by the court Defendant argues that the trial court erred in denying the challenge for cause against prospective juror Mr Tarr because he never unequivocally abandoned his strong bias toward the prosecution At the time of the voir dire Mr Tarr was 44 years old was a commercial driver for Oceaneering International and his wife worked for the Families In Need of Services FINS Department in Thibodaux He was also the father of two young daughters one of whom was 6 years old He volunteered that he did not think he qualified to be a juror in this case because he thought he would be biased in favor of the State Specifically Mr Tarr told the court 5 Mr Tarr m I sorry I don t Prosecutor Yes sir I don think I qualify t Mr Tarr Prosecutor Mr Tarr And Mr Rhodes I sorry Mr Tarr m I think I would be biased towards the State case s I have two daughters one is six and for his benefit I don think I t could Prosecutor So you Mr Tarr to bring it this necessarily be fair because obviously for you guys he is guilty And I an m far you believe that advocate for children You know my wife works with youths in Thibodaux And honestly I don know if I can separate this on t this particular instance Prosecutor So what you are telling me Mr Mr Tarr Tarr Mr Tarr is that because you Prosecutor have younger children and because of your wife involvement with children you s will not be able to set that aside and listen to only the facts that is sic presented in this case Tarr That is absolutely correct Prosecutor Okay You would not be able to set those things aside No sir Mr Tarr Later the trial court attempted to rehabilitate Mr Tarr The following colloquy occurred between the court and Mr Tarr right You indicated that you you might have some di setting aside the sympathy that you have for culty children in making a decision in this case If you were selected as a juror in this case and after you heard all of the evidence you were not convinced beyond a reasonable doubt that the defendant was guilty would you vote to find him guilty because of the sympathy you have for children The Court Mr Tarr All No The Court Don you think you are capable of separating the t sympathy that you have for children from your obligation to fol ow the law as I give it to you weigh the evidence and render a decision based on the evidence in this case Don you think you t can do that Mr Tarr Well that was something I was thinking about with respect to the law you know and the fairness to the system you know you almost to but when it comes to children where they 6 t can you know protect themselves or do something like that it just makes it really hard for me The Court Well you haven heard any of the evidence in this t case You haven seen any of the witnesses You haven heard t t anything that they have had to say I am just concerned that frankly a man with two years of college would have some difficulry and a man with children of his own would have some difficulty putting aside his personal feelings of sympathy for children when he has to carefully consider the testimony that those children might give in making a decision that could have such serious consequences in a case like this one You don think you could do t that And quite frankly you impress me as one who could do it easily but you seem to think you can thaYs why I am questioning t you Mr Tarr Well you know the way you are talking to me and the way you put it yes I could I guess Immediately after this dialogue with Mr Tarr the trial court questioned another prospective juror Nichol Sevin who had expressed similar doubts about her ability to be impartial when the case involved young children The court observed that she seemed a little emotional when they talk about these children Ms Sevin indicated that the issue of children would be difficult for her saying I don know anything about it it was the thing about a child I can t listen to it and iYs going to hurt me Thereafter the trial court stated The Court Well and listen I understand that it wouid be emotional Frankly I would be worried if I had a jury full of people who had no emotian I might be more worried about that than a jury that has some people who feel some emotion I fully expect you to have some emotion And you might be surprised at the emotions that you experience either way in this case once the evidence comes out My question is and I will tell you when the case is over one of the instructions that I am going to give you if you are selected for the jury and this is ds much for you Ms Sevin as it is for you Mr Tarr one of the instructions that I am going to give you is that you cannot decide this case based on passion or sympathy or prejudice none of that enters into the decision You have to make the decision based on the evidence and only the evidence and obviously your view of the evidence Do you think that you could weigh the evidence and render a decision based on that evidence without letting sympathy for either side or passion for either side or prejudice for either side if any of it exists from entering into that decision Do you think you could do that Ms Sevin I don know until I get to that point t Z Nichol Sevin was 25 years old and though she did not have any children she did have two young nieces 7 The Court All right How about you Mr Tarr do you think you could do that Mr Tarr Yes sir Defendant challenged Mr Tarr for cause on the grounds that despite the trial court attempt to rehabilitate him it seemed clear from the get that s go both he and his wife were self child advocates Further defendant described argued that Mr Tarr did not seem to convey that he could render a fair verdict that he came in with tunnel vision and as soon as he heard about the case he locked in The trial court denied the challenge for cause explaining The Court All right Well Mr Tarr final word on the subject was s that he could make a decision weighing the evidence and he could put aside any personal feelings he might have insofar as sympathy for children to whatever e that might play out in this case I ent t don know but I am satisfied he is an educated man with children of his own and he confirmed to me in the end that yes he could follow the instructions so I am going to I am going to deny that challenge for cause Immediately after this defendant chaNenged Ms Sevin for cause for the same reasons as Mr Tarr The trial court granted this challenge explaining The Court All right I will grant the challenge for cause Ms Sevin does not appear to me to be as well to do what is equipped asked of her as Mr Tarr In fact Ms Sevin was crying during the questioning I think for her to keep in control of her emotions in this case is going to be more di Something Mr Tarr could do cult fairly easily I think Ms Sevin would have trouble doing so I will grant that challenge for cause A prospective juror seemingly prejudicial response is not grounds for an s automatic challenge for cause and a trial court refusal to excuse him on the s grounds of impartiality is not an abuse of discretion if after further questioning the potential juror demonstrates a willingness and ability to decide the case impartially according to the law and evidence at 653 Kang 02 at p 5 859 So 2812 2d Additionally the trial court is vested with broad discretion in ruling on challenges for cause and only where it appears upon review of the voir dire examination as a whole that the court exercise of that discretion has been s arbitrary or unreasonable resulting in prejudice to the accused will the ruling of the trial judge be reversed State v Lee 93 p 9 5 637 2810 La 23 94 2d So 102 108 This is necessarily so because the trial court has the benefit of 8 seeing the facial expressions and hearing the vocal intonations of the members of the jury venire as they respond to questioning by the parties attorneys Such expressions and intonations are not readily apparent at the appellate level where a review is based on a cold record Id In this case although Mr Tarr initially expressed doubts about his ability to be an impartial juror the trial court rehabilitated Mr Tarr to its satisfaction The trial court spoke directly with Mr Tarr and specifically questioned his ability to consider the evidence separate from his sympathies towards children On that point Mr Tarr responded unequivocally Yes sir This response as well as the previous exchanges with the trial court apparently convinced it that Mr Tarr was sincere in his belief that he could be unbiased despite his initial misgivings Although Mr Tarr early statements appeared to raise questions regarding his s ability to be impartial the trial court had the benefit of observing his demeanor and hearing his responses firsthand and was therefore in a better position to determine whether he would be fair and impartial in this case Dorsey 10 0216 132 S Ct p 28 1859 11 7 La 9 74 So 3d 603 625 cert See State v denied S U 2d Ed L 2012 It is significant that the trial court compared Mr Tarr and another prospective juror Ms Sevin and recognized that in her case emotions were uncontrollable and she would be unable to separate her sympathies from the evidence presented However Mr Tarr was different as the trial court believed that he was able to keep control of his emotions fairly easily The totality of Mr Tarr responses demonstrated a s willingness and ability to decide the case impartially according to the law and the evidence and his responses as a whole did not reveal facts from which bias prejudice or inability to render judgment according to the law could reasonably be inferred Thus after a review of the record of voir dire as a whole it is clear that the trial court did not abuse its broad discretion in denying defendanYs challenge for cause as to prospective juror Mr Tarr This assignment of error is without merit 9 Assignment of Error No 2 Ineffective Assistance of Counsel In his second assignment of error defendant argues that he was denied the effective assistance of counsel because his attorney failed to object to hearsay testimony elicited by the prosecution that defendant had sex with a drunken woman while she was passed out Defendant faults his trial counsel for allowing the introduction of this testimony regarding an other crime committed or alleged to have been committed by defendant as to which evidence was not admissible in this case simple rape or attempted simple rape without timely objecting requesting a mistrial or even seeking an admonition to the jury At the outset we note that a claim of ineffective assistance of counsel is more properly raised by an application for post conviction relief in the district court where a full evidentiary hearing may be conducted However where the record discloses su evidence to decide the issue of ineffective assistance cient of counsel when raised by assignment of error on appeal it may be addressed in the interest of judicial economy State v Carter 96 p 10 La 1 Cir 0337 App 96 8 11 684 So 432 438 2d A defendant is entitled to effective assistance of counsel under the Si h Amendment to the United States Constitution and Article I 13 of the Louisiana Constitution A claim of ineffectiveness is analyzed under the two test pronged developed by the United States Supreme Court in Strickiand v Washington 466 S U Ct 668 687 104 S 2052 2064 80 2d Ed L 674 1984 The defendant must show that 1 his attorney performance was deficient which s requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment and 2 the deficiency prejudiced the defendant which requires a showing that the errors were so serious that the defendant was deprived of a fair trial The defendant must prove actual prejudice before relief will be granted State v Serigny 610 2d So 857 859 La 1 Cir 1992 writ denied 614 So 1263 La 60 App 2d 1993 It is not sufficient for a defendant to show that the error had some conceivable effect on the outcome of the proceeding 10 Rather he must show that but for the counsel unprofessional errors there is a reasonable probability s the outcome of the trial would have been different State v McMitlan 09 2094 p 6 1 Cir 7 43 So 297 302 writ denied 10 La App La 10 1 3d 1779 il 4 3d 2 57 So 309 Further it is unnecessary to address the issues of both s counsel performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components Serigny 610 So at 860 2d At trial defense counsel cross Detective Breaux the Houma examined Police Department detective who investigated the sexual abuse claim involving V M and defendant Defense counsel asked Detective Breaux to read aloud for the jury a statement taken from Cheri LeBouef defendanYs ex This girlfriend statement was prepared by Detective Breaux in connection with a January 28 2010 interview with Cheri which the detective conducted during the course of the investigation The latter part of this statement said Me and Troy split up about one month ago due to me catching him coming out of my roommate s bedroom when she was passed out drunk I questioned him about it and he said that he was checking on her to see if she was throwing up On redirect the prosecutor asked Detective Breaux if he had discussed this further with Cheri and the detective indicated he had The prosecutor then remarked Did she indicate if she thought he was having sex with a passed out woman who was drunk to which the detective responded Yes sir Defense counsel remained silent Later on cross the prosecutor asked Cheri to explain the examination reason for her split with defendant at which point she gave a lengthier account of the incident involving the roommate The colloquy between the prosecutor and the witness was as follows Prosecutor Okay Are you still dating this man the defendant today Cheri LeBouef No Prosecutor When did y split all Cheri LeBouefJ The beginning of this year January Prosecutor Why did you split 11 Cheri LeBouefJ Well we had went out for a night of partying We came home with my roommate who is a female She was sick throwing up from being drunk I put her to bed We went to bed About fifteen minutes later Troy gets out of the bed So about forry minutes passed he wasn there he didn come five t t back So I got out of the bed went downstairs looking for him I t didn see him downstairs And as I am coming back up the stairs so as I coming up the first m which our stairs make like a u turn part I hear my roommate door open and close and when I get s to the second part I see Troy going around the corner He just d come out of her bedroom I didn tell him anything that night t The next morning I went and woke up my roommate and asked her if she remembered anything because I saw him coming out of her room And thaYs when she said yes she remembers pushing him off of her that he was trying to seduce her while she was well passed out drunk asleep Prosecutor All right ThaYs what told Cheri LeBouefJ And thaYs when I asked him to leave the house Prosecutor That is what you told Detective Breaux in your report in your statement Cheri LeBouefJ Yes Prosecutor So you were asleep this occurred with this other woman while this Cheri LeBouef Well he thought I was asleep Prosecutor He thought you were asleep Cheri LeBouef Right Prosecutor So he thought you were sleeping and he went and prey on someone who Defense counsel Objection Your Honor She tknow doesn that Court Sustained Prosecutor So you he thought you were Court Sustained Prosecutor asleep Court Sustained Later in the trial during direct examination defendant explained that he had gone into the roommate room out of concern when he heard her violently s throwing up He said that he had a half who had died because he brother vomited in his sleep so he only went in the roommate room to check on her s 12 and that he never tried to do anything of a sexual nature to her During cross examination of defendant the prosecutor raised the issue one last time and asked defendant You went in to take advantage of the roommate didn tyou Defendant denied it The prosecutor attempted to make a credibility argument against defendant drawing out that defendant claimed that the roommate M V P P A K and Detective Breaux were all lying about him Again defense counsel remained silent Under the two test articulated in Strickland we need not consider part whether the defense attorney performance was deficient when he allowed the s comments about defendant having sex with a passed woman to come drunk out out before the jury without an objection or request for mistrial or admonition This is because even if the prosecutor scomments and questioning did reference or elicit evidence of simple rape or attempted simple rape and defendanYs counsel was deficient for failing to object on those grounds defendant still fails to meet the second prong of Strickland a showing that counsel failure so s prejudiced defendant that he was denied a fair trial A review of the record shows that there was an abundance of evidence at the trial to allow the jury to reach a finding of guilt of aggravated rape The victim M testified at the trial V about defendanYs actions and her testimony was consistent with her taped interview at the Terrebonne Children Advocacy Center s Two other alleged victims A and K testified at the trial that defendant sexually molested P P them Detective Keith Breaux testified about his interview of defendant and the videotape of that interview was played for the jury in which defendant admitted to the accusations against him Finally defendant himself testified at trial and admitted that M the victim who was four years old at the time had his penis V in her mouth We find that there was overwhelming evidence introduced at trial to support the unanimous guilty verdict Accordingly we conclude that even if defendant successfully showed that his counsel was deficient he has failed to 13 show that that deficient performance prejudiced his defense such that the outcome of the trial would have been different This assignment of error is without merit CONCWSION For all of the above and foregoing reasons the defendanYs conviction and sentence are afFirmed CONVICTION AND SENTENCE AFFIRMED 14
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