NOT DESIGNATED FOR PUBLICATION * * * * * * *

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA VERSUS KEVIN WASHINGTON * * * * * * * * * * * NO KA-0890 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO , SECTION B Honorable Lynda Van Davis, Judge * * * * * * Judge Max N. Tobias, Jr. * * * * * * (Court composed of Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu) Leon A. Cannizzaro, Jr. District Attorney Scott G. Vincent Assistant District Attorney 619 South White Street New Orleans, LA COUNSEL FOR APPELLEE, STATE OF LOUISIANA Mary Constance Hanes LOUISIANA APPELLATE PROJECT P. O. Box 4015 New Orleans, LA COUNSEL FOR DEFENDANT/APPELLANT AFFIRMED.

2 An Orleans Parish grand jury indicted Kevin Washington ( Washington ) with two counts of aggravated rape, violations of La. R.S. 14:42, and one count of aggravated kidnapping, a violation of La. R.S. 14:44, all perpetrated on the same victim. After a two-day trial on June 2009, a jury found Washington not guilty of one of the aggravated rape charges and of the aggravated kidnapping charge. However, it returned a responsive verdict of sexual battery as to the other aggravated rape charge. Washington filed motions for new trial and post-verdict judgment of acquittal on 6 August 2009, and again on 9 November On 15 October 2009, the trial court sentenced Washington to ten years at hard labor with credit for time served. On 20 November 2009, the trial court denied the post-trial motions, vacated the sentence, and re-imposed the ten-year sentence. On 30 July 2010, Washington pled guilty to being a two-time multiple felony offender and waived sentencing delays. The trial court vacated the original sentence and imposed a new sentence of fifteen years. 1 This appeal followed. At trial, J.H., 2 the victim, testified that she lived with the mother of the father of her children, Geraldine Acres ( Ms. Acres ). The father of her children is 1 2 It is understood that by operation of law, Washington is entitled to credit for time served. Due to the nature of the offense, the victim is identified by her initials. 1

3 named Clifton, and his nickname is June or Gene. 3 On the evening of 12 July 2007, she went to the Bottom Line Bar, 4 located in New Orleans, around the corner from her house, where she met some friends and drank a few beers and a gin and tonic. She remained at the bar for about an hour before she decided to go home at approximately 1:00 a.m. As she walked home, Washington approached her from behind as she passed an alley some two houses from the bar. He placed a knife to her throat and told her that she was going with him and that Gene was not hitting no p***y tonight. When J.H. inquired where he was taking her, Washington said, Shut up or I ll cut your throat. J.H. feared for her life. J.H. had dated Washington, but had broken up with him approximately two months before. During the relationship, the couple had consensual nonviolent physical relations. J.H. testified that she broke up with Washington because [t]hings wasn t working out. He was just here and there with different women and I just decided to break it off. Earlier in the day on 12 July 2007, J.H. saw Washington following her when she was with some friends, and she saw him as she went to the store with Clifton. At the store, Washington waved his finger at J.H., saying, I m going to get you. After abducting her, Washington took J.H. to an abandoned house some two blocks away, keeping a knife to her throat all the way. She protested, telling him to let her go, but he said things like, Shut up, b****. Once inside the house, 3 The nickname appears spelled both ways in the transcript. 4 The record indicates that two bars are located in the same city block: The Bottom Line and The Lion Club. It is not precisely clear which bar J.H. was present in; however, it appears to be the latter. 2

4 Washington pushed a love seat by the door. He made J.H. lie down at knife point, got on top of her, raped her, and ejaculated inside of her. After that, he made her give him oral sex. J.H. denied consenting to have sex with Washington at the abandoned house. According to her, Washington then picked up a chair leg with nails from the floor and exclaimed that she was not going to leave him for Gene. Washington beat J.H, with the chair leg, hitting her in her face, her back, on her legs, and all over [her]. J.H. pleaded with Washington to let her go, but he refused. Washington started drinking Hennessey; 5 J.H. rejected his offer of some. When she thought Washington was asleep, she attempted to leave, but he pushed her down. She waited until Washington fell into a deep sleep, moved the love seat, and ran to her own house. Before leaving, she found a bloody shirt to wear. At her house, J.H. had to bang on the door to get Ms. Acres to let her in. While she was trying to get inside, Washington appeared, walking up the street toward her. At that point, J.H. screamed for Ms. Acres, afraid for her life. J.H. testified that she now has nightmares and cries a lot as a result of the rape. She has sought treatment from a mental health clinic and takes a prescription medication for depression. She sees a sexual assault therapist once a week and attends classes for battered women. She identified Washington in court as the man who raped and beat her. When Detective Melody Young of the New Orleans Police Department s Sex Crimes Unit arrived at 1616 Frenchman Street early on the morning of 13 July 2007, the victim was about to be taken to the hospital by the emergency medical services. J.H. was shaken up, crying, and very upset. Detective Young spoke to 5 Hennessey is an alcoholic beverage. 3

5 J.H. at the hospital. J.H. was very upset and appeared to have been severely beaten. J.H. had a hole in one of her legs, a huge bite mark, and facial injuries. Detective Young visited the crime scene with J.H., where pictures were taken. Inside the house where the crime occurred, Detective Young found total disarray three sofas, a bottle of Hennessy, and food on the floor. She described it as nasty and disgusting. There were broken chair legs, blood spatter on a sofa, and a chair without legs. Blood was on one of the broken off chair legs. J.H. identified her attacker as Washington, who is nicknamed, Rock. On cross examination, Detective Young testified that she decided not to take the chair leg into evidence per the crime technicians recommendation. She did not collect the Hennessey bottle. She also denied that J.H. informed her that she had been at a bar that night. Detective Young did not seek witnesses from the bar or check to see if it had been open on the night in question. The detective believed she had canvassed the area for witnesses, but found none. After Washington s arrest, Detective Young did not request any physical examination to see if he had any marks on him. No search warrant issued for Washington s home to look for the knife. Detective Young reasoned that she understood Washington to be pretty much homeless at the time of the incident. According to Detective Young, J.H. told her that Washington abducted her at approximately 10:30 p.m., and that she was going to the bar at the time. Sherry Pellagalle, a registered nurse and a sexual assault nurse at University Hospital, examined J.H. at approximately 5:00 or 6:00 a.m. on 13 July At that time, J.H. was suffering a lot of pain and was crying. She had just received a suture for a laceration across her left eye. During an interview, J.H. told Ms. 4

6 Pellagalle what had happened. Ms. Pellagalle s report reflected that J.H. told her, among other things, that Washington had vaginally assaulted her while she was lying on her back and that he ejaculated into her vagina. The report also reflected that J.H. also told Ms. Pellagalle that Washington then placed his penis in her mouth before picking a stick from the floor and beating her. The physical exam revealed bruising all over J.H. s body from a very bad beating. Her left eye was swollen pretty much shut. On her body where J.H. stated Washington hit her with a stick that had a nail in it, Ms. Pellagalle found an avulsion, where the skin was kind of ripped out. A bite mark was on J.H. s left thigh and bruising all over her back. Ms. Pellagalle also examined J.H. and collected from her evidence to be used in a rape investigation.. She noted a laceration at the very top of the vaginal area, known as the posterior fourchette. Ms. Pellagalle explained that the posterior fourchette tears with force. She noted a laceration in the 7:00 o clock area and redness and some swelling in the 5:00 o clock area of a diagram of the vagina. Throughout the process of collecting the evidence J.H. was crying and very stiff, and apparently was in much pain. The injuries observed by Ms. Pellagalle were consistent with the narrative J.H. had originally given her. On cross examination, Ms. Pellagalle admitted that, while it had not been such in her experience, it was possible that the vaginal injuries in this case could be explained by consensual sex. She also testified that none of J.H. s injuries indicated that they were caused by a knife. J.H. told Ms. Pellagalle that she had consumed four beers and a shot of gin. Miles Robichaux, a forensic scientist with the Louisiana State Crime Laboratory, compared the DNA of semen from J.H. s underwear with DNA from a swab of Washington s mouth, and determined that they were consistent and that 5

7 there was a one in 5.64 trillion chance of existed finding that same DNA profile again in the population. Washington testified against his attorney s advice. He admitted to prior convictions for burglary and cocaine possession. He first met J.H. through his cousin s girlfriend in Baton Rouge in They had lived together for approximately a year in Baton Rouge. Washington moved to New Orleans in July 2007, and J.H. came to New Orleans about a week later. He had taken a bus down on 31 June 2007, and J.H. arrived sometime after 4 July The Sunday after Washington moved to New Orleans, J.H. called Washington and let him know that she had moved in with her mother-in-law on Frenchman Street. She lived there on 13 July Washington was familiar with the area because he lived there before Hurricane Katrina. On 13 July 2007, Washington got off of work at 4 o clock and got home approximately an hour later. His cousin, Brian Washington, and he worked together, and they went to Brian s parent s house to get some money before going to buy some crack. On his way to purchase the crack at 5:30 p.m., Washington saw J.H. walking near North Prieur Street and Elysian Fields Avenue. He stopped J.H. and discovered she was going to her children s aunt s house off of Almonaster behind one block past Port Street by the railroad tracks. Washington and his cousin walked her there. As J.H. indicated she would be there for a while, Washington decided to walk Brian to where he could catch a free bus to Baton Rouge at 6:30 p.m. Washington next saw J.H. at the store on the corner of North Robertson and Frenchman Streets at approximately 8:45 p.m. She had purchased a pint of gin, a 24-ounce beer, and a pack of cigarettes. He walked J.H. to her friend s (Lisa) 6

8 house. He then escorted the two ladies to buy some crack on Elysian Fields. That trip took approximately twenty minutes. He walked with them back to Lisa s house, before they went to another friend s house, and he went to a friend of his on Mandeville and [North] Derbigny [Streets]. He told J.H. he would return, which he did some twenty minutes later. Washington explained that they were supposed to hook up. He stated that they went over there by their house every day, every day I get off work. The house is on Frenchman and North Villere Streets. Washington s nephew, Lawrence Kohl, owns a house close to the interstate highway in the area. Washington had taken J.H. to this house on two separate occasions prior to 13 July The first time was a couple of days after she returned to New Orleans. The second time occurred during the same week as 13 July On both occasions, Washington and J.H. got high together. The second time, they also had sex, after which, Washington walked her home. According to Washington, the Bottom Line Bar is closed on Wednesdays, and it was not open in By the time Washington met back up with J.H. and went to his nephew s house, it was approximately 9:30 or 10:00 p.m. They sat on a sofa in the house and got high smoking crack before having sex. Washington testified that J.H. took her bottom off. He denied having oral sex. Thereafter, they started getting high again and J.H. began bringing up old incidents about things I did in Baton Rouge. J.H. was drinking Hennessey and speaking progressively louder. He was drinking too. Washington admitted he just lost it and struck her with his right hand aside her head. J.H. fell, hitting a chair leg on the floor that stuck her leg. When J.H. got up, she had blood on her shirt. She 7

9 removed the shirt and wiped her head. Washington apologized, but J.H. remained silent and sat on the sofa. A few minutes later, Washington sat down and apologized, claiming that he told her that he was very sorry. He also asserted this was the first time ever putting my hands on her. Afterwards, Washington escorted J.H. home, apologizing along the way. According to Washington, the Wednesday before, he had seen scratches on J.H. that she attributed to a fight with another woman. He denied biting J.H., even when shown pictures taken hours after the incident depicting a bleeding bite mark. DISCUSSION ERRORS PATENT The record reveals no errors patent. ASSIGNMENT OF ERROR NUMBER 1 In his sole assignment of error, Washington asserts the trial court erred in refusing his request that the jury be instructed of the elements of the crime of battery. In addition to requesting that the jury be instructed of the elements of battery, Washington requested an instruction that battery is not responsive to aggravated rape. We first note that Washington was convicted of sexual battery, a violation of La. R.S. 14:43.1. Sexual battery is a responsive verdict to the crime of aggravated rape. La. C.Cr.P. art. 814 A(8). La. C.Cr.P. art. 807 provides in pertinent part: A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given. 6 See footnote 4 above. 8

10 This court has noted the mandatory nature of this codal article, but has also noted that any charge must be supported by the evidence, as the trial court judge is not required to instruct the jury on abstract principles of law. State v. Jordan, , p. 13 (La. App. 4 Cir. 9/16/98), 719 So.2d 556. The refusal to give a requested special charge does not mandate reversal of a defendant s conviction unless it prejudices substantial rights of the accused. State v. Parker, (La. App. 4 Cir. 9/21/11), 76 So.3d 55, 65, citing La. C.Cr.P. art. 921 and State v. Marse, 365 So.2d 1319 (La. 1978). La. R.S. 14:33 defines battery as the intentional use of force or violence upon the person of another; or the intentional administration of a poison. 7 Battery is not a responsive verdict to a charge of either aggravated rape or aggravated kidnapping. La. C.Cr.P. art 814 A(8) and (18). Sexual battery is a responsive verdict to a charge of aggravated rape. La. C.Cr.P. art. 814(8). Rape is, the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person s consent. La. R.S. 14:41. Both J.H. and Washington testified that the beating occurred after intercourse. The differences in testimony evolved around the issue of consent to intercourse. Whereas Washington insisted that the intercourse was consensual, J.H. testified that she submitted to the threat of a knife. Thus, an aggravated battery would be based upon the alleged use of a knife, per La. R.S. 14:42 A(3). Evidence of force at the time of the intercourse was Ms. Pellagalle s testimony of the tearing of the posterior fourchette, and J.H. s account of the events of the day. J.H. testified that once in the house, Washington pushed the 7 The mere touching of one person by another is technically a battery. 9

11 love seat behind the door, pushed her, and told her to take her clothes off. Then, she testified, she was scared and [h]e had a knife to my throat and told me to lay [sic] down on top of me. He made me have sex with him. The state could have charged Washington with a battery, because evidence of force or violence upon J.H. during the intercourse is clearly understood; however, the state chose not to. A trial judge is required to charge the jury, when properly requested, as to applicable law to any theory of defense which the jurors could reasonable infer from the evidence. See State v. Johnson, 483 So.2d 1091 (1983). Further, a trial judge must instruct the jury as to responsive verdicts based upon the indictment or bill of information. Generally, a trial court is not required to instruct a jury as to offenses that are not responsive to the offense charged even if the offense for which instructions are requested is supported by evidence. Thus, the case before us does not justify a jury instruction for battery. The jury in this case was properly instructed of the elements of the crimes charged and the lesser included offenses. The jury was also instructed that all elements of one of those crimes had to be proven beyond a reasonable doubt in or to return a verdict of guilty; and, of course, if not proven beyond a reasonable doubt, the jury was instructed to return a verdict of not guilty. Defense counsel argued that the state could have charged Washington with one of the crimes of battery but did not. Thus, if the jury had found that proof only of a battery, other than sexual battery or oral sexual battery, they would have returned a verdict of not guilty. We find that the jury was adequately informed of its duty in the event it found that Washington was guilty only of an uncharged crime or one that was not responsive to a crime charged. 10

12 Moreover, the requested instruction was not for an instruction of battery as a possible verdict. To the contrary, Washington s trial counsel requested an instruction defining battery and, more importantly, that it was not a responsive verdict. The trial court instructed the jury that not guilty was a responsive verdict. This jury instruction is the functional equivalent of an instruction that battery is not a responsive verdict to aggravated rape. The trial court correctly instructed the jury on sexual battery, a lesser included offense to aggravated rape. Therefore, none of Washington s substantial rights was violated. This assignment has no merit. CONCLUSION For the foregoing reasons, we affirm the conviction and sentence of Kevin Washington. AFFIRMED. 11