State of Louisiana v. Eddie Hilliard, Jr.

Judgment rendered August 14, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 992,
La. C. Cr. P.

No. 52,652-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

EDDIE HILLIARD, JR. Appellant

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Morehouse, Louisiana
Trial Court No. 2016-50F

Honorable C. Wendell Manning, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Meghan Harwell Bitoun

EDDIE HILLIARD, JR. Pro Se

ROBERT S. TEW Counsel for Appellee
District Attorney

JOHN G. SPIRES
STEPHEN T. SYLVESTER
Assistant District Attorneys

*****

Before PITMAN, GARRETT, and THOMPSON, JJ.

GARRETT, J.

Following a jury trial, the defendant, Eddie Hilliard, Jr., was

convicted as charged of second degree rape and attempted second degree

rape. He was sentenced, respectively, to 40 years at hard labor without

benefit of parole, probation, or suspension of sentence, and 20 years at hard

labor without benefit of parole, probation, or suspension of sentence. The

trial court imposed the sentences concurrently. A timely motion to

reconsider sentence was denied. The defendant appeals. We affirm the

defendant’s convictions and sentences.

FACTS

On the night of Saturday, October 10, 2015, the 14-year-old victim

spent the night at the apartment of her aunt, along with her sister and several

young cousins. The defendant, who was the aunt’s boyfriend and resided at

the apartment, was present that night. The next afternoon, the aunt took the

victim and her sister back to their own home. The victim’s mother noticed

that the victim was unusually reticent, teary-eyed, and refused to eat. On

Monday, October 12, 2015, the victim went to school where she

immediately sought out a paraprofessional with whom she was well

acquainted, Carla Floyd.1 Ms. Floyd said she could tell something was

wrong with the girl and took her to an office where they could talk privately.

The victim broke down and tearfully confided that she had been raped

Saturday night by the defendant. She gave Ms. Floyd some details of what

1
This witness’ maiden name is Massey and her subsequent married name is
Floyd. Consequently, she is referred to in the record alternatively as “Ms. Massey,” “Ms.
Floyd,” and “Ms. Massey-Floyd.” We elect to call her “Ms. Floyd” in the opinion.

had happened and said that there had been two incidents that night. Ms.

Floyd alerted the principal, who called the victim’s parents and the police.

The victim was taken to a hospital where she was interviewed and

examined by Teresa Daniel, a sexual assault nurse examiner (“SANE”).

After getting a medical history and interviewing the victim about the details

of the assault, Ms. Daniel conducted a physical examination of the victim

and collected evidence, which was submitted to law enforcement as part of

the physical evidence recovery kit (“PERK”). This included oral, perineal,

anal, and external genitalia swabs.

On October 19, 2015, the victim was interviewed at the Children’s

Advocacy Center of Northeast Louisiana (“CAC”). The interview, which

was recorded, was conducted by Tiffany O’Neal, a forensic interviewer, and

monitored from another room by the center’s director, Jennifer Graves, and

Captain Anthony Evans of the Bastrop Police Department. During the

interview, the victim stated that the defendant raped her anally and

vaginally. He also tried to put his penis in her mouth.

The victim provided the clothing she was wearing at the time of the

offense to the police. The undergarments, along with the PERK kit, were

submitted to the crime lab for testing. After the police received the test

results from the crime lab, an arrest warrant was obtained, and the defendant

was arrested on January 25, 2016. By bill of information filed February 2,

2016, he was charged with one count of second degree rape and one count of

attempted second degree rape.

The defendant’s trial began on November 6, 2017. At various points

during jury selection, the trial court conducted evidentiary hearings. On

November 7, 2017, the trial court held a hearing on the state’s motion of
2

intent to use at trial the recorded testimony of a protected person, i.e., the

CAC video recording of the victim’s testimony. After hearing the testimony

of Ms. O’Neal, the CAC interviewer, and reviewing the recording in

camera, the trial court held that the state proved the videotaped interview

met the statutory requirements of competency set forth in La. R.S. 15:440.4

and the statutory requirements for admissibility established in La. R.S.

15:440.5.2 On November 8, 2017, the trial court held a competency hearing

on the victim, who was then 16 years old. The trial court found that she was

competent to testify, specifically concluding that she had a great

understanding of the gravity of the situation and the difference between truth

and falsehood. This was followed by a hearing on the admissibility of Ms.

Floyd’s testimony under La. C.E. art. 801(D)(1)(d) as the first person to

whom the rape was reported; the trial court ruled that it was admissible as

nonhearsay under that provision.

At trial, the state presented the testimony of the victim; Ms. Floyd, the

first person to whom the victim reported the rape; the victim’s mother;

Captain Evans (now the assistant police chief of the Bastrop Police

Department); Ms. Daniel, the SANE nurse; Ms. O’Neal, the CAC

interviewer; and Michelle Vrana, the DNA section supervisor and a forensic

DNA analyst at the North Louisiana Criminalistics Laboratory.3 The video

of the victim’s CAC interview was played for the jury during Ms. O’Neal’s

testimony. Ms. Vrana testified that the Y STR haplotype profile obtained

from the victim’s perineal swab and the partial Y STR haplotype profile

2
The trial court signed a written ruling to this effect on November 14, 2017.
3
Because neither the analyst who conducted the original analysis of the evidence
nor the analyst who technically reviewed her analysis worked at the crime lab at the time
of trial, Ms. Vrana testified as to the lab’s findings.
3

obtained from the victim’s anal swab were consistent with the Y STR

haplotype obtained from the defendant’s reference sample. Consequently,

the defendant and all males in his paternal lineage could not be excluded as a

donor. By her mathematical calculations, approximately 22,500 African-

American males in the United States could meet that criteria. While the

defendant chose not to testify, he presented the testimony of the victim’s

aunt, who was his girlfriend at the time of the offenses. The jury

unanimously convicted the defendant as charged on both counts.

The defendant filed a motion for post-verdict judgment of acquittal,

which was primarily based upon inconsistencies in the victim’s testimony; it

was denied. He also filed a motion for new trial on the same grounds.

However, he later supplemented his motion for new trial to allege that the

victim had admitted to his daughter that she lied about him raping her. At a

hearing, the defendant’s daughter testified on direct examination that the

conversation occurred a few days after the trial. On cross-examination, she

said it happened before the trial and that she told her parents about it. On

redirect, she admitted that she was not “absolutely sure” of the date. A

friend of the defendant’s daughter testified that she was on the phone with

the daughter and overheard the victim’s admission. She said that she

immediately told her mother. However, the friend testified that she attended

the defendant’s trial and that she was sure this incident happened before the

trial. The trial court denied the motion for new trial. It questioned the

veracity and motives of the witnesses, as well as the timing of the

supposedly “newly discovered evidence.”

In July, 2018, the trial court sentenced the defendant to the maximum

penalty for each offense, 40 years at hard labor without benefit of parole,
4

probation, or suspension of sentence for second degree rape, and 20 years at

hard labor without benefit of parole, probation, or suspension of sentence for

attempted second degree rape. It ordered that the sentences be served

concurrently with each other, but consecutively to any other sentence. The

defendant’s timely motion to reconsider sentence was denied.

The defendant appeals. His appellate counsel argues that the trial

court erred in the following respects: denying the motion for new trial;

permitting the state to play the CAC video for the jury; admitting Ms.

Floyd’s testimony; allowing the CAC interviewer and the SANE nurse to

testify as experts; and imposing an excessive sentence. The defendant also

raised three pro se assignments of error in which he claimed that the trial

court failed to protect his right of review based on a complete record and

that his trial counsel was ineffective for failing to object to improper

statements allegedly made by the prosecutor during closing arguments or

move for a mistrial based on prosecutorial misconduct.

MOTION FOR NEW TRIAL

The defendant contends that the trial court erred in denying his motion

for new trial, which was based upon testimony from his daughter and her

friend that the victim had admitted lying about him raping her.

Law

In order to obtain a new trial based on newly discovered evidence, the

defendant has the burden of showing that (1) the new evidence was

discovered after trial, (2) the failure to discover the evidence at the time of

the trial was not caused by lack of diligence, (3) the evidence is material to

the issues at trial, and (4) the evidence is of such a nature that it would

probably have produced a different verdict. La. C. Cr. P. art. 851(B)(3);
5

State v. Bell, 09-0199 (La. 11/30/10), 53 So. 3d 437, cert. denied, 564 U.S.

1025, 131 S. Ct. 3035, 180 L. Ed. 2d 856 (2011); State v. Matthews, 50,838

(La. App. 2 Cir. 8/10/16), 200 So. 3d 895, writ denied, 16-1678 (La. 6/5/17),

220 So. 3d 752.

In ruling on a motion for a new trial based on newly discovered

evidence, the trial judge’s “duty is not to weigh the new evidence as though

he were a jury determining guilt or innocence, rather his duty is the narrow

one of ascertaining whether there is new material fit for a new jury’s

judgment.” State v. Prudholm, 446 So. 2d 729 (La. 1984); State v. Thomas,

48,530 (La. App. 2 Cir. 12/4/13), 131 So. 3d 84. The decision of whether to

grant or deny a motion for new trial is within the trial judge’s sound

discretion. State v. Brisban, 00-3437 (La. 2/26/02), 809 So. 2d 923; State v.

Matthews, supra.

Discussion

The basis for the defendant’s motion for new trial was newly

discovered evidence, i.e., an alleged conversation between the victim and the

defendant’s daughter in which the victim admitted lying about the defendant

raping her. However, the testimony of the defendant’s daughter and her

friend who claimed to have overheard the admission did not prove that this

conversation occurred after the trial or that the failure to discover the

evidence at the time of the trial was not caused by lack of diligence on the

part of the defense. The friend unequivocally testified that the incident

occurred before the trial, which she attended. After initially testifying that

the conversation happened after the trial, the defendant’s daughter stated on

cross-examination that it was before the trial. Then she said she did not

know when it occurred. On redirect, she said she was not “absolutely sure”
6

when it took place. Both girls testified that they told adults about the

conversation; however, they did not meet with the defense’s investigator

until February 2018, about three months after the trial.

The defense failed to show that the new evidence was discovered after

trial and that the failure to discover the evidence was not caused by lack of

diligence. Furthermore, the trial court strongly questioned the credibility of

the two witnesses. It specifically referred to the inconsistencies in their

testimony, as well as its observations of their behavior and responses on the

witness stand. Therefore, the trial court correctly denied the motion for new

trial. This assignment lacks merit.

CAC VIDEO

The defendant argues that the trial court’s admission of the CAC

video evidence did not adhere to the requirements of La. R.S. 15:440.4, and

accordingly violated his rights under the Sixth Amendment Confrontation

Clause. Specifically, the defendant asserts that the procedures did not

adequately protect against leading questions and, thus, failed La. R.S.

15:440.4(A)(3). He asserts that the CAC interviewer received questions

through an earpiece from both the police and her supervisor and that those

questions were not recorded. He contends that, from those questions, the

victim began to discuss the second offense for which Hilliard was ultimately

charged.

Law

La. R.S. 15:440.4 provides, in relevant part:

A. A videotape of a protected person may be offered in
evidence either for or against a defendant. To render such a
videotape competent evidence, it must be satisfactorily proved:

7

(1) That such electronic recording was voluntarily made by the
protected person.

(2) That no relative of the protected person was present in the
room where the recording was made.

(3) That such recording was not made of answers to
interrogatories calculated to lead the protected person to make
any particular statement.

(4) That the recording is accurate, has not been altered, and
reflects what the protected person said.

(5) That the taking of the protected person’s statement was
supervised by a physician, a social worker, a law enforcement
officer, a licensed psychologist, a medical psychologist, a
licensed professional counselor, or an authorized representative
of the Department of Children and Family Services.

La. R.S. 15:440.5 states, in relevant part:

A. The videotape of an oral statement of the protected person
made before the proceeding begins may be admissible into
evidence if:

(1) No attorney for either party was present when the statement
was made;

(2) The recording is both visual and oral and is recorded on film
or videotape or by other electronic means;

(3) The recording is accurate, has not been altered, and reflects
what the witness or victim said;

(4) The statement was not made in response to questioning
calculated to lead the protected person to make a particular
statement;

(5) Every voice on the recording is identified;

(6) The person conducting or supervising the interview of the
protected person in the recording is present at the proceeding
and available to testify or be cross-examined by either party;

(7) The defendant or the attorney for the defendant is afforded
an opportunity to view the recording before it is offered into
evidence; and

(8) The protected person is available to testify.

8

Discussion

The trial court did not abuse its discretion in admitting the CAC

video. The testimony of Ms. O’Neal established that she and the victim

were alone in the interview room, under the supervision of law enforcement

and Ms. O’Neal’s supervisor. Ms. O’Neal testified that the recording had

not been altered. The defendant does not dispute that he observed the

recording prior to its admission. Ms. O’Neal testified that she was trained to

interview witnesses without asking questions which are calculated to get

specific answers. Moreover, she testified that she routinely taps her earpiece

at the end of the interview in an effort to receive follow-up or clarification

questions, which are based on what the child has said, from law enforcement

and her supervisor. However, she then rewords them into nonleading, open-

ended questions. In this case, Ms. O’Neal said she did not recall whether

any further questions were asked after she tapped on her earpiece.4 Further,

both the victim and Ms. O’Neal were available to testify at trial and were

both cross-examined. Accordingly, this assignment of error is without merit.

FIRST REPORTER TESTIMONY

The defendant argues that the admission of the hearsay statements that

the victim made to Ms. Floyd was erroneous. Specifically, he asserts that

the initial statement that the victim made to Ms. Floyd was inconsistent with

the statements she made at the pretrial hearing. Ms. Floyd testified that the

victim told her of two incidents, but at the pretrial hearing, the victim could

4
Our review of the CAC video demonstrated that Ms. O’Neal tapped her earpiece
one time, near the end of the interview. By this point, the victim had given Ms. O’Neal
all the pertinent details of the offenses. After Ms. O’Neal tapped her earpiece, no
significant questions were asked.

Furthermore, we have reviewed the recording played for the jury and confirmed
that there were no leading or improper questions.
9

not remember discussing a second incident nor could she remember a second

incident.

Law

Hearsay is a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the

truth of the matter asserted. La. C.E. art. 801(C). Hearsay is inadmissible

except as provided by law. La. C.E. art. 802.

A statement is not hearsay if the declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement, and

the statement is consistent with the declarant’s testimony and is one of an

initial complaint of sexually assaultive behavior. La. C.E. art. 801(D)(1)(d).

Admission of even hearsay testimony is harmless error where the

effect is merely cumulative or corroborative of other testimony adduced at

trial. State v. Patterson, 50,305 (La. App. 2 Cir. 11/18/15), 184 So. 3d 739,

writ denied, 15-2333 (La. 3/24/16), 190 So. 3d 1190.

Discussion

At the pretrial hearing on the admissibility of Ms. Floyd’s testimony,

which occurred more than two years after the assault, the victim was initially

unable to recall certain portions of the attack and the exact details she shared

with Ms. Floyd two days after the incident. The victim was subsequently

allowed to view the CAC video prior to the trial court’s ruling on the

admissibility of Ms. Floyd’s testimony under La. C.E. art. 801(D)(1)(d).

When the victim was recalled to the stand, she testified that, after viewing

the CAC video, she could recall more details, including the defendant trying

to force her to perform oral sex on him. The victim, who was only 14 years

old at the time of the rape and 16 years old when the case was tried, testified
10

that the event involving the defendant was “very traumatic” and had

happened “so long ago” she did not remember some of it until she viewed

the tape. The trial court ruled that the victim’s statements to Ms. Floyd were

not hearsay and, pursuant to La. C.E. art. 801(D)(1)(d), would be admissible

at trial.

At trial, the victim testified that she was sleeping on her stomach on

the sofa in the living room of her aunt’s apartment on Saturday night when

she was awakened by someone touching the back of her leg. The defendant

pushed her head down in the sofa. He pulled down the clothing she wore

below her waist roughly enough to tear her jogging pants. He raped her

anally and vaginally. He stopped when an infant sleeping in the same room

began to cry. The victim testified that she ran to the bathroom because she

was bleeding. Although she shut and locked the door, someone jiggled the

doorknob. Eventually, she opened the door and no longer saw the defendant

in the living room. She went into a bedroom where her oldest cousin was,

but she did not confide in the girl about the attack. She later returned to the

living room and tried to go back to sleep on the sofa. The defendant

returned and tried to get her to perform oral sex on him. She refused. He

said “round two” would occur when her aunt went to work on Sunday

morning. However, the victim stayed close to her oldest cousin during the

day until her aunt returned from work and took her home. She did not tell

her parents or sister what happened, even though her mother asked her what

was wrong. On Monday morning, she sought out Ms. Floyd at school and

told her she had been raped. On cross-examination, the victim was

thoroughly questioned about her pretrial testimony in which she failed to

recall the second incident.
11

Ms. Floyd testified at trial that on Monday morning she heard the

victim ask for her. She could tell something was wrong and took the girl to

an office where they could speak privately. When she asked what was

wrong, the victim broke down crying and told Ms. Floyd that she had been

raped Saturday night by her aunt’s boyfriend, the defendant. The victim said

the defendant got on top of her while she was on the couch and pulled down

her pants. In response to Ms. Floyd’s question as to whether this was the

only time, the victim said “a while later it happened again” but gave no

details. Ms. Floyd testified that she asked the victim if she had told anyone

else about the incident; the victim said she had not and she was too scared to

tell her parents.

Our review reveals that the requirements of La. C.E. art. 801(D)(1)(d)

were satisfied. The victim testified at trial consistently with the content of

her initial complaint to Ms. Floyd, and she was subjected to cross-

examination. Additionally, the victim’s prior statement was an “initial

complaint of sexually assaultive behavior.” The testimony of both the

victim and Ms. Floyd established that Ms. Floyd was the first person in

whom the victim confided. Consequently, the victim’s statements to Ms.

Floyd were properly admitted as nonhearsay.

This assignment of error lacks merit.

EXPERT WITNESSES

The defendant contends that neither the CAC interviewer nor the

SANE nurse should have been accepted by the trial court as expert witnesses

in their respective fields.

12

Law

La. C.E. art. 702 provides that a witness who is qualified as an expert

by knowledge, skill, experience, training, or education may testify in the

form of an opinion or otherwise if: (1) the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; (2) the testimony is based on

sufficient facts or data; (3) the testimony is the product of reliable principles

and methods; and (4) the expert has reliably applied the principles and

methods to the facts of the case.

Trial courts are vested with great discretion in determining the

competence of an expert witness, and rulings on the qualification of a

witness as an expert will not be disturbed unless there was a clear abuse of

that discretion. State v. Critton, 52,058 (La. App. 2 Cir. 8/22/18), 251 So.

3d 1281, writ denied, 18-1515 (La. 2/25/19), 266 So. 3d 292; State v. Farris,

51,094 (La. App. 2 Cir. 12/14/16), 210 So. 3d 877, writ denied, 17-0070 (La.

10/9/17), 227 So. 3d 828.

Discussion

The defendant objected at trial to Ms. O’Neal being accepted as an

expert in forensic interviewing, asserting that there was no oversight in her

field because the Louisiana CAC (which was in the process of seeking

accreditation by the National CAC) used only peer review, where members

conduct interviews and then critique each other, to establish performance

standards for their work. The trial court found that the factors set forth in

La. C.E. art. 702 were met and cited as instructive the case of State v.

Washburn, 2016-335 (La. App. 3 Cir. 11/2/16), 206 So. 3d 1143, writ

denied, 16-2153 (La. 9/15/17), 225 So. 3d 488.
13

We find that the trial court did not abuse its discretion in accepting

Ms. O’Neal as an expert in her field. She testified that she had a bachelor’s

degree from Louisiana Tech in family and child studies. Since being hired

as a forensic interviewer by CAC in 2012, she had completed the 40-hour

training at the National CAC, received advanced forensic interviewer

training, and attended conferences. She also participated in peer review by

the Louisiana CAC. At the time of trial, she had interviewed about 750

children. 5

In a similar vein, the defendant objected at trial to Ms. Daniel being

accepted as an expert witness as a SANE nurse. He asserted that her field’s

peer review was inadequate because Ms. Daniel testified that she was not

aware of anyone’s certification being revoked due to peer evaluations.

We find that the trial court did not abuse its discretion in accepting

Ms. Daniel as an expert in her tendered field of expertise. Ms. Daniel

testified that, to qualify as a SANE nurse, one had to be a registered nurse

for a minimum of two years and complete a 40-hour class and between 130

to 150 hours of clinical time. To maintain certification, one is also required

to obtain 45 hours of continuing education every three years. The

curriculum is set by the International Association of Forensic Nurses

(“IAFN”). Peer reviews were conducted pursuant to IAFN standards. Since

her certification as a SANE nurse in 2007, she had conducted about 40

exams a year on sexual assault victims.

5
In the Washburn case, the trial court accepted as an expert witness a forensic
interviewer with a similar training background, but who had only conducted about 120
interviews. The appellate court found no abuse of the trial court’s discretion.
14

The record indicates that both witnesses were properly qualified to

testify as expert witnesses. The defendant’s assignments of error are without

merit.

EXCESSIVE SENTENCES

The defendant asserts that the trial court erred in imposing excessive

sentences. He maintains that he was not the worst offender deserving of

maximum sentences.

Law

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501

(La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17),

219 So. 3d 332. The articulation of the factual basis for a sentence is the

goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its

provisions. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry,

supra. The important elements which should be considered are the

defendant’s personal history (age, family ties, marital status, health,

employment record), prior criminal record, seriousness of the offense, and

the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);

State v. DeBerry, supra. There is no requirement that specific matters be

given any particular weight at sentencing. State v. DeBerry, supra; State v.

Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ denied,

07-0144 (La. 9/28/07), 964 So. 2d 351.
15

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the seriousness of the offense or nothing more

than a purposeless and needless infliction of pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980). A sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;

State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ

denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.

As a general rule, maximum or near maximum sentences are reserved

for the worst offenders and the worst offenses. State v. Meadows, supra.

The sentencing court has wide discretion in imposing a sentence within

statutory limits, and such a sentence will not be set aside as excessive in the

absence of manifest abuse of that discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir. 1/16/13),

109 So. 3d 921, writ denied, 13-0324 (La. 9/13/13), 120 So. 3d 280. The

trial court is in the best position to consider the aggravating and mitigating

circumstances of a particular case and, therefore, is given broad discretion in

sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert.

denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v.

Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764.

The sentencing range for second degree rape is five to 40 years at hard

labor, with at least two years of the sentence imposed without benefit of

probation, parole, or suspension of sentence. La. R.S. 14:42.1. La. R.S.

14:27(D)(3) provides that the sentence for an attempt shall be imprisonment
16

“in the same manner as for the offense attempted” not to exceed one-half of

the longest term of imprisonment prescribed for the offense so attempted.

Discussion

In imposing sentence, the trial court fully complied with the

sentencing guidelines of La. C. Cr. P. art. 894.1. It reviewed the 46-year-old

defendant’s extensive criminal history, noting that his first felony conviction

occurred when he was approximately 18 years old. His felony convictions

were for simple burglary, distribution of cocaine, and possession of cocaine

with intent to distribute. The court, which had the benefit of a presentence

investigation (“PSI”) report, also considered his social history and the facts

of the instant offenses. In its articulation of the 894.1 factors, the court

found no mitigating factors but found several aggravating factors.

Specifically, the court found that there was an undue risk of the defendant

committing another crime during a period of a suspended sentence or

probation; the defendant was in need of correctional treatment or custodial

environment most effectively provided by commitment to an institution; a

lesser sentence would deprecate the seriousness of the offenses; the

defendant’s conduct manifested deliberate cruelty to the young victim; he

knew or should have known the victim was particularly vulnerable or

incapable of resistance due to her extreme youth; and the defendant used his

status as the boyfriend of the victim’s aunt to gain access to the victim and to

facilitate commission of the offenses. The trial court also reviewed the

statements contained in the PSI report. The defendant insisted that he was

wrongly accused and claimed that the victim was molested by another

family member. The victim and her parents described the emotional and

17

psychological harm she suffered as a result of the defendant’s actions. Not

only had she struggled in school, but she had also contemplated suicide.

We further find that the sentences were not constitutionally excessive.

The defendant, who was then 43 years old, attacked a 14-year-old girl while

she was spending the night at her aunt’s apartment. He pushed the girl into

the couch, pulled her clothes down forcefully enough to tear them, pinned

her down, and raped her. He later returned a second time and tried to assault

her again. He threatened her that it would happen again after her aunt went

to work. The defendant has an extensive criminal history and has repeatedly

failed to benefit from leniency in sentencing. Our sense of justice is not

shocked as imposition of the maximum sentences was warranted in the

instant case. This assignment of error is meritless.

COMPLETE APPELLATE RECORD

In his first pro se assignment of error, the defendant argues that the

trial court erred in failing to protect his right of review based on a complete

record.

Law

La. C. Cr. P. art. 914.1 provides, in relevant part:

(A) The party making the motion for appeal shall, at the time
the motion is made, request the transcript of that portion of the
proceedings necessary, in light of the assignment of errors to be
urged. Not later than five days after the motion, the opposing
party may designate in writing the transcript of that portion or
portions of the proceedings necessary to oppose the appeal.

La. R.S. 46:1844(W) requires that the identity of minor crime victims

and victims of sex offenses be protected. Accordingly, appellate records

provided to criminal defendants for preparation of pro se briefs are redacted

to remove any information identifying the victim of a sex crime. See State v.

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Ashley, 44,655 (La. App. 2 Cir. 9/23/09), 22 So. 3d 1045, writ denied, 09-

2305 (La. 4/23/10), 34 So. 3d 271.

Discussion

The defendant argues that the portion of the transcript containing the

district attorney’s closing arguments was “heavily altered and redacted” and

that “improper statements” made by the district attorney had been

“completely removed.” However, beyond his own conclusory statements in

brief, the defendant has failed to provide any support for these contentions.

The appellate record which the defendant reviewed to prepare his pro

se assignments of error and brief was redacted to remove the victim’s name

and other information which would tend to identify her. There is no

evidence before us suggesting that the record was altered in any other

manner.

This assignment of error is meritless.

INEFFECTIVE COUNSEL

In conjunction with the above assignment of error, the defendant

raises two other pro se assignments of error in which he contends that his

trial counsel was ineffective because he failed to object to “improper

statements” made by the district attorney during closing arguments or move

for a mistrial on the basis of “prosecutorial misconduct.” We consider these

assignments of error together.

Law

A claim of ineffective assistance of counsel is analyzed under the two-

prong test developed by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

establish that his attorney was ineffective, the defendant first must show that
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counsel’s performance was deficient. This requires a showing that counsel

made errors so serious that he was not functioning as the “counsel”

guaranteed the defendant by the Sixth Amendment. The relevant inquiry is

whether counsel’s representation fell below the standard of reasonableness

and competency as required by prevailing professional standards demanded

for attorneys in criminal cases. Strickland, supra; State v. Moore, 48,769

(La. App. 2 Cir. 2/26/14), 134 So. 3d 1265, writ denied, 14-0559 (La.

10/24/14), 151 So. 3d 598. The assessment of an attorney’s performance

requires his conduct to be evaluated from counsel’s perspective at the time

of the occurrence. A reviewing court must give great deference to trial

counsel’s judgment, tactical decisions, and trial strategy, strongly presuming

he has exercised reasonable professional judgment. State v. Bell, 51,312

(La. App. 2 Cir. 5/17/17), 222 So. 3d 79.

Second, the defendant must show that counsel’s deficient performance

prejudiced his defense. This element requires a showing that the errors were

so serious as to deprive the defendant of a fair trial, i.e., a trial whose result

is reliable. Strickland, supra; State v. Moore, supra. The defendant must

prove actual prejudice before relief will be granted. It is not sufficient for

the defendant to show that the error had some conceivable effect on the

outcome of the proceedings. Rather, he must show that, but for counsel’s

unprofessional errors, there is a reasonable probability the outcome of the

trial would have been different. Strickland, supra; State v. Bell, supra.

Generally, a claim of ineffective assistance of counsel is properly

raised in an application for post-conviction relief (“PCR”) in the trial court.

This is because PCR creates the opportunity for a full evidentiary hearing

under La. C. Cr. P. art. 930. State v. Mansfield, 50,426 (La. App. 2 Cir.
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2/24/16), 190 So. 3d 322. However, when the record is sufficient, this issue

may be resolved on direct appeal in the interest of judicial economy. State v.

Critton, supra.

The law requires closing argument to be confined to evidence

admitted, to the lack of evidence, to conclusions of fact that the state or

defendant may draw therefrom, and to the law applicable to the case. The

argument shall not appeal to prejudice. La. C. Cr. P. art. 774; State v. Huff,

27,212 (La. App. 2 Cir. 8/23/95), 660 So. 2d 529, writ denied, 96-0212 (La.

5/1/97), 693 So. 2d 754.

The district attorney is afforded considerable latitude in making

argument to the jury. State v. Tucker, 49,950 (La. App. 2 Cir. 7/8/15), 170

So. 3d 394, writ not cons., 15-1517 (La. 3/9/18), 237 So. 3d 1193. Further, a

trial court has broad discretion in controlling the scope of closing arguments.

State v. Casey, 99-0023 (La. 1/26/00), 775 So. 2d 1022, cert. denied, 531

U.S. 840, 121 S. Ct. 104, 148 L. Ed. 2d 62 (2000); State v. Wilson, 50,589

(La. App. 2 Cir. 5/18/16), 196 So. 3d 614, writ denied, 16-1102 (La.

5/12/17), 221 So. 3d 72. Even in the case of a prosecutor exceeding the

bounds of proper argument, a reviewing court will not reverse a conviction

unless thoroughly convinced that the argument influenced the jury and

contributed to the verdict. State v. Casey, supra; State v. Tucker, supra.

Even where the prosecutor’s statements are improper, credit should be given

to the good sense and fairness of the jurors who have heard the evidence.

State v. York, 48,230 (La. App. 2 Cir. 8/7/13), 121 So. 3d 1226, writ denied,

13-2154 (La. 3/21/14), 135 So. 3d 617.

The contemporaneous objection rule applies to claims that the

prosecutor made an improper closing argument. State v. Williams, 46,674
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(La. App. 2 Cir. 12/14/11), 81 So. 3d 220. An irregularity or error cannot be

availed of after verdict unless it was objected to at the time of occurrence.

La. C. Cr. P. art. 841. State v. Jones, 49,948 (La. App. 2 Cir. 9/30/15), 178

So. 3d 1075.

Discussion

The prosecutor concluded his initial closing argument as follows:

That young lady right there knew she got raped and he did it.
That’s what she said throughout this testimony. That’s what
she said throughout this testimony. This is what happened to
me. You heard me ask her this; do you want to be here? No.
Did you hear the way she was ostracized by people in her
home, family, after this happened? Do you think she would put
herself through that and come in here and tell you this if it
wasn’t true? Eddie Hilliard raped [the victim]. Don’t y’all rape
her again. Thank you.

The defendant’s trial counsel made no contemporaneous objection to

the comment about raping the victim again. Therefore, the defendant is

precluded from raising a claim related to it on appeal. However, the

defendant asserts that his trial counsel was ineffective for failing to object to

the “improper statements” made during closing arguments or move for a

mistrial based upon “prosecutorial misconduct.”6 Consequently, the

defendant must meet the two-part test outlined in Strickland v. Washington,

supra. While generally an ineffective assistance of counsel claim is better

suited for post-conviction relief, this record is sufficient to address this claim

on direct appeal.

6
The defendant claims that the prosecutor made other improper statements during
closing arguments, including referring to him as a “monster.” However, he claims that
they were removed from the “altered version” of the trial transcript sent to him for his
review. We have compared the transcript of the state’s closing arguments contained in
the redacted appellate record sent to the defendant to the unredacted record utilized by
this court in its review. The only differences between the two are the redactions made
pursuant to La. R.S. 46:1844(W).
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There is no showing that any comment by the prosecutor during his

closing argument deprived the defendant of a fair trial, i.e., a trial whose

result is reliable. Nor is there any indication that the outcome of the trial

would have been different had trial counsel objected or moved for a mistrial.

The defendant has provided nothing more than conclusory allegations. Prior

to the start of the trial and again in its jury instructions, the trial judge

instructed the jury that closing arguments are not evidence. Additionally,

the prosecutor himself told the jurors during his rebuttal argument that what

he was saying to them was not evidence. Even if the prosecutor’s comments

exceeded the bounds of a closing argument, the evidence against the

defendant was more than sufficient to support the verdict. Accordingly, the

defendant has failed to meet his burden under Strickland. These

assignments of error are without merit.

CONCLUSION

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

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