State of Louisiana v. G. R. H.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1549

STATE OF LOUISIANA

VERSUS

G.R.H.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. 113225, DIV. L
HONORABLE MARILYN CASTLE, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED.

Thomas E. Guilbeau, Attorney at Law
P.O. Box 3331
Lafayette, LA 70502
Counsel for Defendant-Appellant:
G.R.H.

Keith B. Nordyke
Nordyke and Greenfield, L.L.C.
427 Mayflower Street
Baton Rouge, LA 70802
Counsel for Defendant-Appellant:
G.R.H.

Michael Harson, District Attorney
Keith A. Stutes, Assistant District Attorney
Office of the District Attorney

P.O. Box 3306
Lafayette, LA 70502
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, G.R.H., was charged with one count of aggravated rape, a violation

of La.R.S. 14:42; and two counts of molestation of a juvenile, violations of La.R.S.

14:81.2.1 After a jury found him guilty as charged, he was sentenced to life

imprisonment at hard labor. Defendant now appeals his conviction and sentence. For

the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was accused of raping his niece, P.B., who was under the age of

twelve at the time of the offense. The bill of indictment charged that the offense

occurred between 1966 and 1972. Defendant was charged by bill of indictment filed

on October 25, 2006, with one count of aggravated rape, a violation of La.R.S. 14:42;

and two counts of molestation of a juvenile, violations of La.R.S. 14:81.2. A written

plea of not guilty was filed on November 28, 2006.

A Motion for Severance of Offenses was filed on February 7, 2007. On July

17, 2008, the State moved to sever the offenses of molestation of a juvenile and

proceed to trial on the charge of aggravated rape. Trial commenced on July 16, 2008,

and the following day, the jury found the Defendant guilty as charged. On July 31,

2008, the trial court sentenced the Defendant to life imprisonment at hard labor. A

Motion for Appeal was subsequently granted, and Defendant is now before this court

asserting the following six assignments of error:

1) The Trial Court erred in failing to dismiss the prosecution as time
barred and as a violation of the Due Process Clauses of the Fifth and
Fourteenth Amendments to the United States Constitution and Article
I, Section two of the Louisiana Constitution.

1
Initials of Defendant and several other witnesses in this matter are used so that the identity
of the victim may not be ascertained in accordance with La.R.S. 46:1844(W).

1

2) The Trial Court erred in allowing other crimes evidence of the alleged
sexual touching of two nieces C.H. and D.H.2

3) The Trial Court erred in imposing a sentence of life imprisonment
when the jurisprudence would permit only a twenty year sentence.

4) If this Court rules that the prosecution was capital in nature, then
procedural rules in effect in 1972 should be applied and a reversal is
mandatory.

5) Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), the
evidence was insufficient to sustain this conviction.

6) G.R.H. requests that this Honorable Court determine if there are
unbriefed errors patent and reverse for same.

For the following reasons, we find that these assignments of error lack merit,

and we affirm Defendant’s conviction and sentence.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After a thorough review of the record in this

case, we find that there are no errors patent.

Sufficiency of Evidence

“When issues are raised on appeal both as to the sufficiency of the evidence

and as to one or more trial errors, the reviewing court should first determine the

sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992). Thus,

we first address Defendant’s fifth assignment of error wherein he contends that the

evidence was insufficient to sustain his conviction.

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the

2
The parties refer to C.H. in briefs to this court and C.H. was listed as a victim in the bill of
indictment. C.H. is married and is now known as C.G. However, we will refer to this witness as
C.H. throughout this memorandum.

2

evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of the
essential elements of the crime charged. Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d
676, 678 (La.1984). Additionally, where circumstantial evidence forms
the basis of the conviction, the evidence must exclude every reasonable
hypothesis of innocence, “assuming every fact to be proved that the
evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674
p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122
S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La.
R.S. 15:438 “works with the Jackson constitutional sufficiency test to
evaluate whether all evidence, direct and circumstantial, is sufficient to
prove guilt beyond a reasonable doubt to a rational jury.” Neal,
2000-0674 p. 9, 796 So.2d at 657.

State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, __

U.S. __, 128 S.Ct. 537 (2007).

Defendant was convicted of aggravated rape occurring between 1966 and 1972.

During that time, La.R.S. 14:42 defined aggravated rape as follows:3

“Aggravated rape is a rape committed where the sexual
intercourse is deemed to be without the lawful consent of the female
because it is committed under any one or more of the following
circumstances:

....

“(3) Where she is under the age of twelve years. Lack of
knowledge of the female’s age shall not be a defense.

State v. Miller, 111 So.2d 108, 111 (La.1959).

P.B. testified that during the 1960’s she spent the night at the home of her

uncle, the Defendant, and her aunt, P.H., many times. She recalled sharing the room

with their daughter, who was in a crib, and that Defendant came into the room

looming over her. P.B. further testified that Defendant would have her walk around

the bedroom and then he would rub her genitals inside and outside her clothing. P.B.

3
We quote the statute as it existed in 1950. It appears the statute was not changed until 1975
by La.Acts No. 612, which amended and reenacted Title 14, § 42 of the Louisiana Revised Statutes
of 1950.

3

was not sure if Defendant’s fingers went inside her vagina. P.B. further testified that

Defendant masturbated in her presence. These acts occurred every time P.B. went to

Defendant’s home in Broussard, and she was there no less than one to two times a

month for a least one to two nights.

The following exchange occurred regarding P.B.’s age at the time of these

events:

Q. There’s public records downstairs in the clerk’s office that indicate
[the Defendant’s daughter’s] date of birth is in 1968. You were born in
1966. Does that fit --

A. ‘64. ‘62. Excuse me.

Q. ‘62? ‘62. I’m sorry. So you were born in ‘62. She was born in ‘68.

A. Okay.

Q. All right. So, when she was a young child, in 1968, this is when the
acts began to start on you?

A. Yes.

Q. So, by that figuring, in 1968, you were about how old?

A. Six.

P.B.’s date of birth was August 30, 1962.

P.B. testified that while Defendant lived in a house on La Neuville Road, he

would enter the bedroom where P.B. slept and rub her vagina. P.B. was eight or nine

years old at the time, and Defendant’s daughter was in bed with her. P.B. further

testified that Defendant would enter the bedroom, kneel over her, “have his hands on

it, in my vagina,” masturbate to orgasm, “leave it on me,” wipe her with her own

underwear, then leave the room. P.B. was also eight or nine years old when this

occurred. P.B. stated that Defendant’s wife was across the hall during these events

and that her bedroom door was open. P.B. also testified that Defendant began

4

rubbing his penis on her while he masturbated and “would insert it enough” and then

ejaculate on her. She was then asked, “Did he actually insert his penis fully into

you,” and she responded, “Not full. I was a kid. But it was in.” P.B. further stated

that she would hit Defendant and that he would go away, but this was usually after

he had already “finished.” P.B. testified that Defendant did this more than twenty

times. P. B. further testified that on many occasions, Defendant partially inserted his

penis into her vagina. P.B. indicated that she experienced pain during these events

and that she would cry and say stop. However, she did not scream at the top of her

lungs. P.B. testified that Defendant subsequently began to fondle her and masturbate

while they watched television.

P.B. stated that she was ten or eleven years old when she refused to go to

Defendant’s home. When she was approximately fifteen or sixteen, she told her

mother what Defendant had done to her. P.B. testified that her mother informed her

that she had reported the events to the police and nothing could be done because too

much time had passed. P.B. testified that she told her aunt, P.H., about these events

the night of her senior prom and that P.H. told her she was lying.

In 2006, P.B. went to her mother’s home to see her cousin C.H.’s baby. P.B.

testified that when she saw C.H., she “saw her eyes, and I knew.” D.H. also came

over during P.B.’s visit, and D.H. had the same look. P.B. testified that she went

home and prayed and decided to go to the police. Before going to the police, P.B.

called C.H. and asked if Defendant had done anything to her. P.B. testified that C.H.

cried and said yes. P.B. then informed C.H. that she was going to the police, and

C.H. told her not to.

5

C.A., P.B.’s mother, testified that when P.B. was a child she spent the night

with Defendant and his wife on a regular basis. C.A. further testified that when P.B.

was eight or nine years old she started seeing a tremendous change in P.B. P.B. went

from being a real sweet person to a “very rebellious, angry, mean little girl.” When

C.A. would mention Defendant and his wife, P.B. would get angry. P.B. did not stay

overnight at Defendant’s home after that.

C.A. further testified that when she told P.B. they would be attending a family

function, P.B. did not want to go. At age sixteen, P.B. told C.A. that Defendant

molested her. Also, when P.B. got married at age seventeen, she did not want

Defendant to attend the ceremony. C.A. testified that after P.B. told her she was

molested, C.A. told her mother and Defendant’s wife. C.A. stated that she was told

she was a troublemaker and a liar and had better keep this information to herself.

C.A. testified that she spoke to the police, who told her it would be P.B.’s word

against that of Defendant. C.A. said she did not pursue the matter because she

thought it would cause embarrassment for P.B., who was getting married at that time.

C.A. spoke to the police again in July of 2006, after P.B. reported the events to police.

C.H., who was born on November 3, 1980, testified that Defendant was her

uncle. C.H. testified that during the summer of 2006, P.B. contacted her at work and

told her that she was at the police department giving a statement. C.H. testified that

P.B. saw her baby after P.B. gave a statement to police. C.H. also testified that P.B.

saw her baby the day before P.B. gave her statement to police. However, the two did

not speak to each other at that time. C.H. subsequently told P.B. that she had been

molested but did not provide P.B. with any details regarding the molestation. C.H.

then met with police.

6

C.H. testified that when she was nine or ten years old, she was on a four-

wheeler with Defendant, who rode behind her. During the four-wheeler ride,

Defendant massaged her vagina and thrust his penis on her back. C.H. immediately

asked Defendant to stop the four-wheeler so she could go to the restroom. During the

same weekend, C.H. and a cousin were lying on the floor in Defendant’s living room

when Defendant rubbed her vagina under her nightgown. C.H. testified that she told

Defendant to stop and that she would tell someone. Defendant then told C.H. if she

ever told anyone, he would “stick his dick in [her] mouth to keep [her] quiet.” C.H.

testified that when she was twelve, she told her friend what had occurred. The

friend’s parents reported the events to C.H.’s parents. C.H.’s parents then questioned

her about the events and called the police. C.H. testified that she told her parents she

did not want to pursue charges.

A.S. testified that C.H. worked with her and that C.H. was not a very honest

person.

D.H., who was born on May 13, 1984, testified that Defendant was her uncle.

D.H. testified that when she was seven or eight years old, Defendant put his hand

under her skirt and his fingers inside her underwear. D.H. further testified that

“whenever it got to the fold of my butt cheek, I pulled away.” On another occasion,

Defendant rubbed her chest over her shirt. D.H. reported these events to police in

2006, after P.B. and C.H. made reports to police.

D.S. testified that Defendant was her uncle and that he had never done anything

inappropriate to her. D.S. was born on November 10, 1973. She testified that

between 1978 and 1988, she visited Defendant’s residence, but did not recall being

left alone with him.

7

P.H., Defendant’s wife, testified that P.B. was her niece and godchild. In 1966,

Defendant joined the Navy and went to basic training in California and was later

stationed in Florida and Virginia. During most of that time, P.H. lived with

Defendant’s mother. Defendant left the Navy in August or September of 1968, and

the two subsequently rented a house in Broussard. At that time, P.B. was six years

old. P.H. and Defendant lived in that house until some time in 1969.

P.H. testified that while they lived in Broussard, the bedroom doors were open

when they slept and while P.B. slept in the room with P.H.’s daughter. P.H. further

testified that she never noticed any blood or semen while washing P.B.’s clothes.

Additionally, she never heard P.B. cry during the night.

P.H. and Defendant later rented a house on La Neuville Road. She did not

notice any blood or semen or hear cries from P.B. at that residence. P.H. and

Defendant lived in that residence for one year and then moved into the home of

Defendant’s grandmother while they built a home. The new home was located on

Bonin Road and construction began on October 5, 1970. P.B. spent the night more

often after the home was built. P.H. did not notice anything unusual at the home on

Bonin Road when she bathed P.B. and washed her clothes.

P.H. further testified that P.B. stopped spending the night at her home once

P.B. became a teenager. According to P.H., P.B. did not become rebellious and did

not show any anger toward Defendant. P.H. further testified that C.H. and D.H.

would spend time at her home and played with her granddaughter, A.C. P.H. did not

notice a change in Defendant’s relationships with C.H. and D.H. P.H. indicated that

she first heard the allegations regarding P.B., C.H., and D.H. when Defendant was

arrested.

8

Donald Arcenaux was employed by the Lafayette Parish Sheriff’s Office on

October 23, 1993. On that date, he was called in reference to a complaint regarding

indecent behavior with a juvenile. The victim of that offense was C.H. The

following day, C.H. recanted her statement.

Bobby Ayo testified that Defendant had an outstanding reputation in the

community. However, Ayo did not know Defendant from 1968 to 1972.

Additionally, he never asked Defendant about having sex with girls.

Debra Guillot helped P.H. make jewelry for C.H.’s wedding. Debra testified

that neither D.H. nor C.H. were apprehensive in Defendant’s presence. However,

Debra admitted she did not know D.H. and C.H. when they were children.

S.B. testified that she spent the night with Defendant’s daughter before she was

twelve years old and that Defendant did not do anything inappropriate to her. S.B.

was born in 1969.

A.C., Defendant’s granddaughter, testified that she lived with Defendant when

she was a child and moved out when she was ten or eleven years old. A.C. further

testified that Defendant never did anything inappropriate to her. A.C. stated that she

played with C.H. and D.H. and that they never told her that Defendant did anything

inappropriate and that they did not appear to be afraid of him. A.C. testified that she

never told the father of her child that Defendant did anything inappropriate to her.

She admitted that she was not alive during the years P.B. alleged she was raped by

Defendant.

Defendant testified that he joined the Navy in 1965. He subsequently married

P.H. on May 14, 1966. P.B. was four years old at that time. Thereafter, he began

active duty in the fall in Mayport Beach, Florida. During periods of leave, he

9

returned to Louisiana. His tour of active duty ended in September 1968. When he

left the Navy, Defendant and P.H. rented a house in Broussard. Defendant denied all

claims regarding acts that were alleged to have occurred during the time he lived in

Broussard. Defendant also denied touching P.B. inappropriately at the home on

Bonin Road. Defendant further denied any inappropriate contact with C.H. and D.H.

E.B. testified that he had a child with A.C. and that the two were together for

two-and-a-half years. E.B. testified that A.C. cried and told him that Defendant

touched her while they were riding a four-wheeler and that Defendant started coming

into her bedroom. E.B. indicated that this conversation occurred in late 2005 or early

2006. E.B. testified that he did not like Defendant’s wife because she claimed that

he punched her in the jaw. E.B. pled no contest to a charge regarding this event and

was on probation at the time he testified.

At trial, there was testimony regarding P.B.’s mother, C.A., being disinherited

by her mother. Additionally, there was testimony that P.B., C.H., and D.H. continued

to associate with Defendant after the alleged acts of rape and molestation.

Furthermore, there was testimony regarding an altercation between Defendant and the

father of C.H. and D.H.

In brief to this court, Defendant asserts that a sufficiency review is warranted

because the State did not establish when the offense occurred. Defendant further

asserts that a six-year time span is insufficient as a matter of due process to put him

on adequate notice to prepare a defense. Further, such a lengthy period of time does

not establish with certainty the time at which the offense occurred. Additionally,

Defendant asserts that P.B. was not able to establish if and when penetration actually

10

occurred. Defendant then asserts that even if this court believes “something”

happened, there is insufficient proof to establish that the “something” was rape.

The date of the offense is not an essential element of the crime of aggravated

rape. State v. D.T., 08-814, p. 23 (La.App. 3 Cir. 12/11/08), 998 So.2d 1258, 1274.

Thus, the State was not required to prove the date on which Defendant raped P.B.

P.B. testified that Defendant “would insert it enough” and then ejaculate on

her. She was asked, “Did he actually insert his penis fully into you,” and she

responded, “Not full. I was a kid. But it was in.” P. B. also testified that on many

occasions, Defendant partially inserted his penis into her vagina.

In State v. Waguespack, 06-410, p. 2 (La.App. 3 Cir. 9/27/06), 939 So.2d 636,

638, this court stated, “In State v. Ross, 03-564, p. 11 (La.App. 3 Cir. 12/17/03), 861

So.2d 888, 895, writ denied, 04-0376 (La. 6/25/04), 876 So.2d 829, we defined sexual

penetration as, ‘[a]ny penetration, however slight, of the aperture of the female

genitalia, even its external features, is sufficient.’” Thus, we find that P.B.’s

testimony supports the element of penetration required to prove that a rape occurred.

Furthermore, “[a] rape victim’s testimony alone is sufficient to establish the fact of

penetration. State v. Mitchell, 453 So.2d 1260 (La.App. 3 Cir.), writ denied, 457

So.2d 16 (La.1984).” State v. H.J.L., 08-823, p. 5 (La.App. 3 Cir. 12/10/08), 999

So.2d 338, 342.

Based on the jury’s verdict, we find that the jury chose to believe the testimony

of P.B. That credibility determination should not be second-guessed by this court.

State v. Marshall, 04-3139 (La. 11/29/06), 943 So.2d 362, cert. denied, __ U.S. __,

128 S.Ct. 239 (2007). This assignment of error lacks merit.

11

Due Process and Time Limitation

In his first assignment of error, Defendant contends that the due process clauses

of the United State’s Constitution and the Louisiana Constitution require that this

prosecution be dismissed.

Defendant filed a Motion to Quash on February 16, 2007. In the motion and

memorandum in support thereof, Defendant asserted that the indictment should be

quashed because the time limitation for the institution of prosecution had expired and

the amount of time that had “passed since the charged offense was alleged to have

occurred has caused and will cause substantial prejudice” to his defense. The trial

court denied the motion.

In brief to this court, Defendant cites the following portion of Judge Downing’s

concurrence in part, dissent in part, in State v. Smith, 01-1027, p. 1 (La.App. 1 Cir.

2/15/05), 809 So.2d 566-67 (citation omitted):

Where there is no corroborating evidence of a crime, a passage of
time of such length that an accused is prevented from preparing a
defense should be sufficient grounds to hold that due process is violated.
Who among us can account for what they did on an unspecified day in
November 1976? When someone truly believes a memory that is false
there is no way for a trier of fact to distinguish the truth by the demeanor
of the witness. How can we know if a memory is true? . . . .

During the 1980’s criminal prosecutions based on “repressed
memories” sent many an innocent person to jail for crimes alleged to
have been committed decades before the victim “remembered” the
abuse.

Defendant then asserts that this prosecution must be dismissed since a forty-

year delay in bringing the charges is too long and is a due process violation. He

further asserts he was denied a fair trial. Defendant contends that he was forced to

defend his actions during a six-year period forty years ago, which was virtually

impossible and that this prejudice alone should be considered a violation of

12

substantive due process sufficient to reverse his conviction. Defendant then discusses

Smith, 809 So.2d 556, which he alleges involved a delay half as long as the delay in

the case at bar. Defendant then argues that the forty-year delay in the case at bar

should be presumed prejudicial. Defendant further argues that he has been prejudiced

by the use of other crimes evidence admitted pursuant to La.Code Evid. art. 412.2,

because that article did not exist until recently.

Defendant next discusses State v. Gray, 917 S.W.2d 668 (Tenn.1996), a

Tennessee case involving a prosecutorial delay from 1950 to 1992. The Tennessee

Supreme Court reversed the defendant’s conviction citing the defendant’s Fifth

Amendment right to due process. Defendant goes on to argue that the prejudice in

the case at bar is greater than that in Gray.

Defendant also asserts that P.B.’s memory has been diminished, as she was

unable to distinguish between the alleged rape and touching. Furthermore, he alleges

that a review of testimony of all of the witnesses will reveal sufficient incidences of

failure to recall due to the passage of time. Defendant goes on to assert that this court

“should draw a bright line rule prohibiting prosecutions for offenses such as these

without both corroboration and contemporaneous report to the authorities.”

Defendant further asserts the time limitation for bringing the prosecution has

passed. In support of this argument, Defendant asserts that because the death penalty

could no longer be applied in the case at bar, the case was no longer capital and the

unlimited time limits for prosecution under La.Code Crim.P. art. 571 do not apply.

Thus, La.Code Crim.P. art. 572 would mandate that this case be dismissed, as the six-

year time limitation for prosecution has run.

13

The State contends that Defendant was charged within the prosecutorial time

limits. The State asserts that although imposition of the death penalty for aggravated

rape was declared unconstitutional, La.Code Crim.P. art. 571 was still applicable and

that there was no prescriptive period for filing of the aggravated rape charge in the

case at bar. The State maintains this issue was considered in Smith, 809 So.2d 556.

The State further asserts there is no evidence that the delay in the filing of the

indictment in the case at bar was purposeful on its part.

We first address Defendant’s claim that the time for instituting prosecution in

the case at bar had run. At the time of the offense, aggravated rape was punishable

by death, and La.Code Crim.P. art. 571 provided: “There is no time limitation upon

the institution of prosecution for any crime for which the death penalty may be

imposed.” Additionally, prior to 1984, La.Code Crim.P. art. 572 provided that:

No person shall be prosecuted, tried, or punished for an offense
not punishable by death unless the prosecution is instituted within the
following periods of time after the offense has been committed:

(1) Six years, for a felony necessarily punishable by imprisonment
at hard labor . . . .

Noting that La.R.S. 14:42 was amended by Acts No. 343, § 1, effective

September 9, 1977, to provide a penalty of life imprisonment without the benefit of

parole, this court discussed the application of capital protections in State v. Breaux,

08-1061, pp. 2-5 (La.App. 3 Cir. 4/1/09), __ So.3d __, as follows (alterations in

original) (footnote omitted):

Between 1950 and September 8, 1977, the penalty for a violation
of La.R.S. 14:42 was death. Most of the alleged violations by
Defendant occurred during this period.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972), the
United States Supreme Court reviewed a murder and two rape cases and
held the imposition and carrying out of the death penalty in those three

14

cases constituted cruel and unusual punishment in violation of the eighth
and fourteenth amendments.

Thereafter, in State v. Selman, 300 So.2d 467 (La.1974), the
Louisiana Supreme Court considered the question of whether
amendments to La.Code Crim.P. arts. 814 and 817 relative to qualifying
verdicts, made by the legislature after Furman was decided, removed the
infirmities in our law which precluded the imposition of the death
penalty for aggravated rape in Louisiana since Furman. After discussing
the nature of the crime of aggravated rape in light of the eighth and
fourteenth amendments of the United States Constitution and with an
eye to the infirmities that caused the reversal of the convictions in
Furman, we concluded “that the death penalty for aggravated rape is not
per se cruel and unusual punishment.” Id. at 472.

However, in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214
(1976), the United States Supreme Court disagreed with the Louisiana
Supreme Court and held that the imposition and carrying out of the
death penalty for an aggravated rape conviction in Louisiana constituted
cruel and unusual punishment.

Consequently, at the time Defendant allegedly committed most of
the offensive acts at issue herein, the penalty for these offenses was
death (although that penalty could not be carried out at the time of trial).
Thus, the question arises as to whether the procedural rules applicable
to the prosecution of capital offenses should have been applied in
Defendant’s case.

In State v. Rich, 368 So.2d 1083 (La.1979), the defendant was
convicted of aggravated rape which occurred in August 1977. At that
time, aggravated rape was a capital crime in Louisiana, but imposition
of the death penalty was not legally available in Louisiana. The trial
court had refused to sequester the jury, despite the defendant’s request
that it be done, and had instructed the jury that ten jurors, rather than
twelve, needed to concur in order to reach a verdict. On review, the
supreme court recognized as an error patent the trial judge’s failure to
procedurally treat the case as less than that of a capital offense.
Accordingly, Rich’s conviction and sentence were reversed, and the
matter was remanded for a new trial.

However, in State v. Carter, 362 So.2d 510 (La.1978), the
supreme court held differently. The court addressed the issue of
misjoinder of aggravated rape (a capital offense at the time of
commission of the offenses) with aggravated crime against nature and
aggravated burglary (both punishable by confinement necessarily at hard
labor) because the modes of trial differed and held there was not a
misjoinder, explaining, in pertinent part:

15

The mode of trial is determined by the possible
penalty. La. Const. art. 1, § 17: State v. McZeal [, on
rehearing, 352 So.2d 592 (La.1977) ], supra. Whereas
aggravated rape, prior to the effective date of Act 343 of
1977, as a capital offense, was triable before a jury of
twelve persons, all of whom must concur to render a
verdict, the offense is now punishable by confinement
necessarily at hard labor and is therefore triable before a
jury of twelve persons, ten of whom must concur to render
a verdict. Hence, the mode of trial for aggravated rape was
changed as a result of the amendment to its penalty
provision. Moreover, this change is procedural in nature.
State v. McZeal, supra; State v. Holmes, 263 La. 685, 269
So.2d 207 (1972). A procedural change which does not
affect an accused's substantive rights in the prosecution of
a criminal offense is applicable to the trial of the offense
after the effective date of the change even though the
particular offense was committed prior to that date.

Id. at 513 (emphasis added) (footnote omitted).

In State v. Williams, 372 So.2d 559 (La.1979), the supreme court
discussed the split in the court in the holdings of Rich and Carter and
held:

The writ is denied. On reconsideration of the
common problem in State of Louisiana v. Dave Carter, 362
So.2d 510 (La.1978) and State of La. v. Rich, 368 So.2d
1083, 1979[sic], a majority of the court has decided that the
better treatment is found in State v. Rich. The unanimous
verdict, the sequestration of the jury and other safeguards
erected by statute for capital cases are too important to
permit them to be retroactively erased. Therefore, the jury
in an aggravated rape case, when the rape occurred prior to
September 9, 1977, the effective date of Act 343 of 1977,
should return a unanimous verdict.

Id. at 560 (emphasis added).

In State v. Goodley, 398 So.2d 1068 (La.1981), the defendant was
charged with first degree murder. The jury returned a responsive verdict
of manslaughter, with ten of the twelve jurors concurring in the verdict.
On error patent review, the supreme court reviewed whether or not the
non-unanimous verdict was valid and held in pertinent part:

The Legislature, in enacting the controlling
provision herein, relied on the severity of the punishment
provided for a crime as the basis for its classification

16

scheme in providing the number of jurors which must
compose a jury and the number of jurors which must
concur to render a verdict....

Thus, the Legislature determined that for crimes that
were so serious as to validly carry the death penalty, certain
special procedural rules were additionally required, among
which was the requirement of a unanimous jury to render
a verdict. This determination is not based on an after the
fact examination of what crime the defendant may
eventually be convicted of, nor is it based on an after the
fact examination of what sentence he receives. Rather, the
scheme is based on a determination by the Legislature that
certain crimes are so serious that they require more strict
procedural safeguards than other less serious crimes. It
was determined that in charged capital offenses a
unanimous verdict for conviction, not just sentencing, is
necessary and there is no attendant provision giving the
state the authority to alter that scheme on its own motion
by simply stipulating that the death penalty will not be
sought in a certain case.

....

[W]e find that a unanimous jury is required in a case where
the defendant is being prosecuted under an unamended
charge of first degree murder, a capital offense, to render
any verdict, notwithstanding the fact that the state may
have stipulated that it would not seek the death penalty.

Id. at 1070-71 (emphasis added) (footnote omitted). In footnote four of
the opinion, the court stated:

This Court considered a similar issue in State v.
Jones, 385 So.2d 786 (La.1980)[,] and in a brief per curiam
writ grant in response to a pre-trial writ application recited
that the “(c)rime of aggravated kidnapping is not capital,
nor is it capital for procedural purposes.” However, Jones
is distinguishable from the case under consideration
because Jones involved a situation where the death penalty
provision had been declared unconstitutional, whereas here
the death penalty provision is valid and enforceable,
making first degree murder “a criminal case in which the
punishment may be capital.”

Id. at 1071.

17

In State v. Self, 98-39 (La.App. 3 Cir. 8/19/98), 719 So.2d 100,
writ denied, 98-2454 (La.1/8/99), 734 So.2d 1229, this court referred to
Jones. In Self, the defendant was charged with committing aggravated
rape of a child under the age of twelve between June 1995 and March
1996. At that time, the Legislature had again amended La.R.S. 14:42 to
provide the penalty was death, but the state waived the option of
pursuing the death penalty. On appeal, this court addressed whether the
trial court erred in instructing the jury that they were required to reach
a verdict of ten out of twelve rather than a unanimous verdict as required
for capital cases under La.Code Crim.P. art. 782 and whether the trial
court erred in accepting the jury's non-unanimous verdict of eleven to
one. Citing Goodley, this court held that because the death penalty was
applicable at the time the defendant committed the act, the capital
procedural rule of a unanimous jury applied. We further noted that the
court in Goodley distinguished Jones based on the fact that Jones dealt
with an offense wherein the death penalty had been declared
unconstitutional.

In State v. Schrader, 518 So.2d 1024 (La.1988), cert. denied,498
U.S. 903, 111 S.Ct. 265 (1990), the supreme court appeared to back
away from footnote number four in Goodley which distinguished Jones.
In Schrader, the defendant was charged with first degree murder, and
the jury returned a responsive verdict of manslaughter. On error patent
review, it was discovered that the jury had not been sequestered even
though the charge was classified as a capital offense. The court stated,
in pertinent part:

We now hold, despite its long lineage, the
jurisprudential presumption of prejudice for “capital cases”
does not apply to a “capital case” where the defendant
never faced the prospect of the death penalty and where
counsel failed to press the point in the trial court, or object
to the lack of sequestration. In the absence of actual
prejudice, this right to sequestration is waived.

....

In the present case the defendant did not object to
the lack of sequestration. Moreover, the potential impact
on the fairness of the proceedings was no greater than for
non-capital cases. It is true that the case remained “capital”
under the procedural classification of our statutes;
however, it was in fact not capital in the sense of the cases
such as Parker and Luquette wherein this court presumed
prejudice. That is, the defendant did not face the death
penalty, nor did the jury face the heightened pressure
inherent in having to consider the death penalty.

18

Accordingly, the failure to sequester the jury in this case
was not reversible error.

Id. at 1037-38.

In State v. Marcantel, 98-825 (La.App. 3 Cir. 12/22/99), 756
So.2d 366, writ denied, 00-208 (La.8/31/00), 766 So.2d 1274, the
defendant was charged with having committed aggravated rape of a
victim under the age of twelve in 1996. On error patent review, this
court addressed the issue of whether the jurors were sequestered from
the moment they were sworn, as required by La.Code Crim.P. art.
791(B) in capital cases. This court explained, in pertinent part:

Although the State did not seek the death penalty,
the case retained its capital classification for procedural
purposes. State v. Schrader, 518 So.2d 1024 (La.1988),
cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112 L.Ed.2d 221
(1990). The charge, aggravated rape of a child under
twelve, is punishable by death or life imprisonment. The
record does not tell us why the State chose not to seek the
death penalty. It is possible that the State or the trial court
was under the belief that the death penalty had been
declared unconstitutional.

....

The present case is distinguishable from Schrader
because the death penalty in the present case was ruled
unconstitutional by district courts rather than by the United
States Supreme Court. Additionally, the State’s reason for
not seeking the death penalty is unclear. Nevertheless,
because the Defendant was not exposed to the death
penalty, did not object to the lack of sequestration, and
does not allege on appeal that he was prejudiced by the
lack of sequestration, we find that the lack of sequestration
(if the jury was in fact not sequestered) was harmless error.

Id. at 368-69.

Additionally, in State v. Smith, 01-1027 (La.App. 1 Cir. 2/15/02),
809 So.2d 556, the defendant was charged with having committed
aggravated rape of a juvenile under the age of twelve in November
1976. In his writ application, the defendant argued that the trial court
erred in denying his motion to quash indictment because the statute of
limitations had run. More specifically, he argued that “because the
death penalty for the aggravated rape statute in effect on the date of the
offense had been declared unconstitutional, the offense was not a capital
offense and, thus, the unlimited prescriptive period of La.Code Crim.P.

19

art. 571 for instituting prosecution in capital cases did not apply.” Id. at
561. On writ of review, the appellate court held in pertinent part:

[A]lthough the death penalty may not be imposed in the
instant case, article 571 still applies and there is no
prescriptive period for the aggravated rape charge. Because
the unlimited prescriptive period for capital cases applies,
the court did not err when it denied the “motion to quash
indictment because of running of statute of limitations.”

Id. at 562.

In light of the foregoing, we conclude that the procedural rules for
capital cases, such as unanimous jury and sequestration of the jury,
should have been applied in this case.

Based on Breaux, we find that the case at bar is a capital case and that no

prescriptive period applies to the aggravated rape charge at issue.

We now address the Defendant’s claim that the prosecution should be

dismissed because of a due process violation.

In Smith, 809 So.2d 556, the court discussed preindictment and prearrest delays

as follows:

Constitutional guarantees to a speedy trial are not invoked until
a citizen becomes an accused, either by arrest or indictment. United
States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468
(1971); State v. Schrader, 518 So.2d 1024, 1028 (La.1988). For
preaccusation delay, due process is the standard. The proper approach
in determining whether the accused has been denied due process of law
through preindictment or prearrest delay is to measure the government’s
justifications for the delay against the degree of prejudice suffered by
the accused. Schrader, 518 So.2d at 1028 (quoting State v. Malvo, 357
So.2d 1084, 1087 (La.1978)).

The U.S. Supreme Court distinguishes between “tactical” delay
and “investigative” delay. To show a violation of due process from
preindictment tactical delay, a defendant must show that the government
deliberately delayed bringing the indictment in order to gain a tactical
advantage and that the delay caused the defendant actual and substantial
prejudice in presenting his defense. State v. Dickerson, 529 So.2d 434,
439 (La.App. 1st Cir.), writ denied, 533 So.2d 353 (La.1988). See also
United States v. Lovasco, 431 U.S. 783, 795 n. 17, 97 S.Ct. 2044, 2051
n. 17, 52 L.Ed.2d 752 (1977); Marion, 404 U.S. at 324, 92 S.Ct. at 465;

20

State v. Hughes, 94-1364, p. 6 (La.App. 4th Cir.12/28/94), 648 So.2d
490, 493, writ denied, 95-0255 (La.3/24/95), 651 So.2d 292. In
Lovasco, the U.S. Supreme Court held “that to prosecute a defendant
following investigative delay does not deprive him of due process, even
if his defense might have been somewhat prejudiced by the lapse of
time.” 431 U.S. at 796, 97 S.Ct. at 2051-52.

To prove prejudice resulting from tactical delay, the defendant’s
showing must be concrete, not speculative. Vague and conclusory
allegations of prejudice resulting from the passage of time and the
absence of witnesses are insufficient to constitute a showing of actual
prejudice. See Dickerson, 529 So.2d at 439-40 (quoting United States
v. Antonino, 830 F.2d 798, 805 (7th Cir.1987)). In Dickerson, this court
placed on the defendant the burden of establishing the government
deliberately delayed bringing the indictment in order to gain a tactical
advantage. In Schrader, the Louisiana Supreme Court, in balancing the
reasons for the delay with the resulting prejudice, noted that the state
had offered no evidence regarding the reasons for the delay. 518 So.2d
at 1028. Such a comment appears to require the state, not the defense,
to show the reasons for the delay. Even if the state has an obligation to
present its reasons for the delay, the defense has the ultimate burden of
proving bad faith on the part of the state.

In Schrader, there was an almost 15-year delay between the
offense (a murder resulting from arson) and the indictment. The court
found no prejudice resulting from the defendant’s inability to examine
the site as it existed after the fire. The court explained that the
defendant was able to present testimony from both of the men who
originally investigated the blaze. The court also noted that witnesses
who had heard the defendant’s threat to burn down the house did not tell
the authorities about those threats until after the defendant’s arrest.

In the instant case, the offense allegedly occurred in November of
1976, and the indictment was issued in September of 1996. The reason
for the state’s almost twenty-year delay in filing the indictment is not
evident from the record, and it is not clear when the authorities became
aware of the alleged rape. The victim’s medical records (filed under
seal) indicate that, before the rape was reported to the authorities, the
victim had told her mother and two friends about the rape. In 1996, the
victim was “confronted” about the rape after defendant was arrested for
or suspected of molesting his daughter.

Relator made no attempt to introduce any evidence at the hearing
or offer any factual allegations about how he has been actually
prejudiced by the delay. His allegations in the writ application speculate
that he “may not have any significant memory of that period of his life,”
that he “may not remember who would or would not be a good witness
on his behalf,” that the “[victim] has almost no memory of the events,”

21

and that his attorney would not be able to test the victim’s memory as to
the surrounding events, such as clothing worn, time of day, exact
location, presence of others, health or emotional problems, medication,
weather, and other facts relator thinks will impact on the victim’s
credibility.

There is no indication that any of relator’s concerns have
materialized. Relator does not allege specific, actual prejudice, but
merely alleges general prejudice in preparation of the defense. General
allegations of prejudice in the preparation of the defense and allegations
of “potential” prejudice are insufficient to support a due process
violation based on preaccusation delay. See Marion, 92 S.Ct. at 466;
Hughes, 94-1364 at p. 6, 648 So.2d at 493. Thus, regardless of the
state’s reasons for delaying the institution of prosecution in this case,
relator has failed to meet his burden of establishing prejudice from the
delay.

Id. at 559-61.

Defendant relies on Gray, 917 S.W.2d 668, to support his claim that the

prosecution should be dismissed. In Gray, the Tennessee Supreme Court set out the

following factual information:

In the case before the Court, Perdue has accused Gray of sexually
penetrating her when she was eight years old in early 1950. She
testified that for more than forty years-until March 26, 1992-she kept her
silence about the incident. There is no evidence in the record that Gray
tried to conceal his alleged conduct or that he threatened the victim in
any way. Perdue testified that she had been “bothered” by her memory
of the incident throughout her childhood and adult life. Finally, the
record shows that she continued to interact with the defendant through
the years. Under these facts, the trial court correctly held that forty-two
years “is much too long to wait before prosecuting an alleged offense
where the prosecutor [victim] is of legal age for the great majority of this
time....”

In Gray, the Tennessee Supreme Court noted that its reasoning was “consistent

with the legislature’s intent because it has since amended the statute of limitations

in child sex abuse cases so that prosecution must be initiated within four years or no

later than the date the child reaches majority, whichever occurs later. Tenn.Code

Ann. § 40-2-101(d) (1990).” Id. at 671-72.

22

The court then discussed the standard applicable to pre-accusatorial delays as

follows:

Having reviewed the existing law on the issue, we observe that
the Marion-Dykes approach to pre-accusatorial delay is, in application,
extremely one-sided.[4] It places a daunting, almost insurmountable,
burden on the accused by requiring a demonstration not only that the
delay has caused prejudice but also that the State orchestrated the delay
in order to obtain a tactical advantage. Thus, under the facts before us,
application of so stringent a standard would force a result we would
consider unconstitutional, unwarranted, and unfair. To accomplish
justice while preserving Gray’s right to a fair trial requires, in our view,
a less stringent standard.

Today we articulate a standard by which to evaluate pre-
accusatorial delay and hold that an untimely prosecution may be subject
to dismissal upon Fifth and Fourteenth Amendment due process grounds
and under Article I, §§ 8 and 9, of the Tennessee Constitution even
though in the interim the defendant was neither formally accused,
restrained, nor incarcerated for the offense. In determining whether pre-
accusatorial delay violates due process, the trial court must consider the
length of the delay, the reason for the delay, and the degree of prejudice,
if any, to the accused. See Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-
49 (“proof of prejudice is generally a necessary but not sufficient
element of a due process claim, ... the due process inquiry must consider
the reasons for the delay as well as the prejudice to the accused”).

We now apply the standard we have articulated to the facts and
circumstances here present to determine whether the prosecution of
Gray shall proceed. We hold that it shall not. We find that the length
of the delay was profoundly excessive, and no reasonable justification
for such delay has been demonstrated. Gray has made a prima facie
showing of prejudice. As the trial court correctly found, the record
reveals at least three instances of prejudice: (1) the lapse of time has
diminished the victim’s memory; (2) witnesses thought to be material
are now unavailable; and (3) the victim cannot specifically date the
incident, thereby requiring Gray to account for his whereabouts and his
conduct during a six-month period forty-two years past.

As the Supreme Court declared in Morrissey v. Brewer, “due
process is flexible and calls for such procedural protections as the
particular situation demands.” 408 U.S. 471, 481, 92 S.Ct. 2593, 2600,

4
The court was referencing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455 (1971), and
State v. Dykes, 803 S.W.2d 250 (Tenn.Crim.App.1990), overruled on other grounds by State v.
Hooper, 29 S.W.3d 1 (Tenn.2000).

23

33 L.Ed.2d 484 (1972); accord State v. Pearson, 858 S.W.2d 879, 885
(Tenn.1993). Finally, under the facts of this case, prosecution of Gray
would violate the concepts of fundamental fairness and substantial
justice embodied in the due process clause of the Fifth and Fourteenth
Amendments of the United States Constitution, as well as Article I, § 8,
of the Tennessee Constitution.

Accordingly, the judgment of the Court of Criminal Appeals is
reversed; the trial court’s order dismissing the indictment is reinstated.

Id. at 673-74 (footnote omitted).

The court in Gray, 917 S.W.2d 668, however, adopted a standard that has not

been adopted in Louisiana, as evidenced by the first circuit’s decision in Smith, 809

So.2d 556. Further, in State v. Utley, 956 S.W.2d 489 (Tenn.1997), the Tennessee

Supreme Court limited the holding in Gray, 917 S.W.2d 668, to the unique facts of

that case. Further, Gray is distinguishable. In footnote three of that opinion, the

court noted that in Tennessee, legislation requires that prosecution of child sex abuse

cases must be instituted within four years or no later than the date the child reaches

the age of majority, whichever occurs later.

The Louisiana legislature has chosen to provide more protection to the child

victims of sex offenses. For example, La.Code Crim.P. art. 571 provides no time

limit for the institution of prosecution for cases involving the offenses of aggravated

rape, which is punishable by life imprisonment, and forcible rape. Additionally,

La.Code Crim.P. art. 571.1 provides:

Except as provided by Article 572 of this Chapter, the time within
which to institute prosecution of the following sex offenses: sexual
battery (R.S. 14:43.1), second degree sexual battery (R.S. 14:43.2), oral
sexual battery (R.S. 14:43.3), felony carnal knowledge of a juvenile
(R.S. 14:80), indecent behavior with juveniles (R.S. 14:81), molestation
of a juvenile (R.S. 14:81.2), crime against nature (R.S. 14:89),
aggravated crime against nature (R.S. 14:89.1), incest (R.S. 14:78), or
aggravated incest (R.S. 14:78.1) which involves a victim under
seventeen years of age, regardless of whether the crime involves force,
serious physical injury, death, or is punishable by imprisonment at hard

24

labor shall be thirty years. This thirty-year period begins to run when
the victim attains the age of eighteen.

Defendant alleges that because of the passage of time, P.B. could not

distinguish between the alleged rape and touching and witnesses failed to recall due

to the passage of time. Defendant does not specifically assert what the other

witnesses failed to recall but merely makes a conclusory allegation.

We find that P.B. did not have problems recalling the inappropriate acts

committed by Defendant. However, she did not recall the dates on which these acts

occurred. We further find that Defendant cannot prove he was prejudiced by the

delay in this case. Alleging that other crimes evidence would not have been allowed

pursuant to La.Code Evid. art. 412.2 is not sufficient, as the evidence may have been

admissible under La.Code Evid. art. 404(B).

Based on the first circuit’s decision in Smith, we find that Defendant was not

prejudiced by the delay. Therefore, the prosecution in the case at bar should not be

dismissed.

Defendant also asks this court to assume prejudice because of the forty-year

delay. This has never been the law. and we decline to adopt such a rule. See U.S. v.

Beszborn, 21 F.3d 62 (5th Cir. 1994), cert. denied sub nom. Westmoreland v. U.S.,

513 U.S. 934, 115 S.Ct. 330 (1994). Defendant further asks this court to issue a

bright-line rule that prohibits prosecutions for “offenses such as these” without both

corroboration and contemporaneous report to the authorities. We also decline to

adopt such a bright-line rule based on the provisions of La.Code Crim.P. arts. 571 and

571.1.

For the reasons set forth herein, this assignment of error lacks merit.

25

Other Crimes Evidence

In his second assignment of error, Defendant contends that La.Code Evid. art.

412.2 is unconstitutional as applied and the trial court erred in allowing the

introduction of other crimes evidence.

The State filed a “Notice of Intent to Introduce Evidence of Other Crimes” on

March 18, 2008. Therein, the State gave notice of its intent to introduce evidence of

the Defendant’s conduct with C.H. and D.H. under La.Code Evid. arts. 404(B) and

412.2.

Defendant filed a “Motion to Declare Louisiana Code of Evidence Article

412.2 Unconstitutional” on July 14, 2008. Therein, Defendant asserted that Article

412.2 was vague because it allowed for the admission of another crime, wrong, or act

involving sexually assaultive behavior and acts which indicate a lustful disposition

toward children, but failed to set forth any guidelines as to what constitutes sexually

assaultive behavior and does not provide any safeguards to define or limit acts which

indicate a lustful disposition toward children. Defendant also asserted he was denied

equal protection because Article 412.2 singled out one class of criminal prosecutions,

sex offenses, from all other prosecutions in that other crimes evidence is admissible

in sex offense cases for its bearing on any matter to which it is relevant and is

admissible in non-sex offense cases as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. In addition,

Defendant asserted that Article 412.2 denied him a fair trial by depriving him of his

right to be presumed innocent until proven guilty. He also asserted that the article

denied him the right to a fair trial, to present a defense, to full confrontation and

cross-examination, and to effective assistance of counsel because the article merely

26

requires the State to provide notice of the nature of any such evidence. Defendant

further asserted that to the extent Article 412.2 was interpreted differently than

La.Code Evid. art. 404(B), Article 412.2 denied him the right to a fair trial, to

effective assistance of counsel, and due process. Specifically, if it was determined

that he was not entitled to a pre-trial hearing and determination of admissibility, he

would be effectively denied any of the safeguards recognized by the Louisiana

Supreme Court for the introduction of other crimes evidence as set out in State v.

Prieur, 277 So.2d 126 (La.1973). Further, Article 412.2 allows the admission of

evidence of acts which indicate a lustful disposition toward children without

requiring the State to provide meaningful notice at a pre-trial hearing of what it

intends to offer to show a lustful disposition. Defendant further asserted that he

would be denied a fair trial and due process if evidence of lustful disposition was

admitted when he was charged with aggravated rape. In support of this argument,

Defendant cited State v. Kennedy, 00-1554 (La. 4/3/01), 803 So.2d 916, superseded

by statute as stated in State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02), 814 So.2d 113,

writ denied, 02-1280 (La. 11/27/02), 831 So.2d 269, wherein he asserts the supreme

court stated that evidence of other crimes was inadmissible in cases involving general

intent crimes like aggravated rape. Lastly, the Defendant asserted that Article 412.2

denied him the right to be free of cruel and unusual punishment.

At a hearing on the motion, the trial court asked defense counsel if he was there

to challenge the use of evidence under Article 412.2 without a prior hearing. Defense

counsel asserted this was correct and stated the following: “I think, if we have a full-

blown hearing on the admissibility of the other-crime evidence sought by the State

to be introduced and we can cross examine those witnesses, then probably 412.2

27

would be constitutional under those circumstances. But, without it, it’s not.” The

following exchange occurred later:

MR. STUTES: -- are we still going to have -- Is this motion still
viable, or are we still arguing this motion?

THE COURT: Well, he’s indicated that, since we’re having a
hearing, that he is not going to challenge -- he’s only challenging the
constitutionality based on our failure to have a hearing. Is that correct,
Mr. Guilbeau?

MR. GUILBEAU: If the Court would happen to rule, though, that
general-intent crimes can be -- specific-intent crimes can be used to
introduce -- against -- as other-crime evidence on a general-intent crime,
such as aggravated rape, of course, we reserve our right to argue that
point.

THE COURT: Okay. Well, let me make sure I understand what
you’re saying here, because I know that you did bring to my clerk some
cases that were decided before 412.2 was enacted, some Fourth Circuit
cases that relied on Kennedy. Okay?

But, since that time, 412.2 has been enacted, and, since that time,
there have been a number of decisions -- even some from the Supreme
Court -- which have talked about this type of evidence being admissible
both as 404(B) evidence and 412.2 evidence.

MR. STUTES: Correct. Yes.

THE COURT: So those cases --

MR. GUILBEAU: I don’t think those cases went to the heart of
the constitutionality of 412.2, vis-a-vis the fact that this evidence comes
in without a hearing.

THE COURT: No. I know that.

MR. GUILBEAU: I think that expo [sic] facto and all those
arguments –

THE COURT: Okay. Wait. We’re past that, though, because
we’re going to have a hearing. Okay?

But then you just raised another issue that you said that you’re
going to challenge the constitutionality on. And what I’m telling you is
I understand that you have the right to object if I determine it’s
admissible, but there are some -- there are -- have been a number of

28

cases that I think have addressed the issue of 412.2 and 404 (B) that are
after the ones that you cited. So. . .

At the hearing, C.H. testified that she was at the home of Defendant, her uncle,

in 1989. C.H. was nine or ten years old at that time. C.H. was sitting in front of

Defendant on a four-wheeler and he touched her vagina, over her clothing. On

another occasion, C.H. was lying on a pallet on the floor of Defendant’s home with

A.C., when Defendant rubbed her vagina. C.H. testified that after that time, she was

never alone when she visited Defendant’s home.

D.H. testified that she was the sister of C.H. and that Defendant was her

godfather. D.H. testified that when she was seven or eight years old, Defendant put

his hand up her skirt and she felt his fingers go inside her panties and that he touched

the bottom of her buttocks. Within the same year, Defendant rubbed her chest, over

her clothes. She was never alone with Defendant again.

Defendant denied touching C.H. and D.H. and raping P.B.

At the conclusion of the hearing, defense counsel argued that the other crimes

occurred over twenty years ago and were not res gestae. Defense counsel argued that

Kennedy, 803 So.2d 916, was still good law and that evidence of specific intent

crimes such as molestation of a juvenile were not admissible at the trial for

aggravated rape, which is a general intent crime. He also argued that the other crimes

at issue in the case at bar were attenuated and would be devastating to his case. He

further argued that the evidence was highly prejudicial.

The trial court noted that Kennedy was the genesis of the legislature’s

enactment of Article 412.2. The trial court then found that the evidence was highly

prejudicial, but considered the following factors before finding the evidence was

admissible at trial:

29

Number one, in all of these instances, the approach to the victims is the
same. They are relatives. They are brought over or encouraged by their
parents to visit with them. They are -- At least in the case of these two
victims, they are approached in a situation where there is no one else
there to witness the events that take place.

And the Court finds that that is the type of evidence that is
contemplated by 412.2. And, although I admit it is very prejudicial
evidence, it is also highly probative in the sense of someone’s sexual
predisposition toward children. And the Court is -- finds that it would
be admissible under that article.

I also want to point out that, in State Versus Zorn[es], which --
Let’s see. The cite of that is 814.113. This was a Second Circuit case.
But it came at a time before 412.2 was actually enacted. In that case,
other-crimes evidence of sexual assault against a child was admitted
under 404 (B).

And the Court reasoned that, although intent was not an issue in
that case -- and, under State Versus Kennedy, other crimes would not be
admitted to prove intent -- the Court found that, because the defendant
alleged that the entire incident was fabricated -- which, in this case, this
defendant has just testified -- the occurrence of a crime was at issue and
the sexual assaultive behavior on the other children was therefore
admissible for purposes of showing occurrence of a crime through
common design.

And so I feel that, even under 404, under these facts, this case
would also -- these crimes -- other incidents would also be admissible.

Defense counsel objected to the ruling.

In brief to this court, Defendant asserts the testimony at issue was improperly

admitted for the following reasons: 1) the evidence was used to prove he was a “bad

man;” 2) use of the evidence denied him a fair trial in light of the forty-year delay in

bringing the charge of aggravated rape; 3) the evidence was irrelevant and

inadmissible under Kennedy, 803 So.2d 916; 4) use of the evidence under La.Code

Evid. art. 412.2 was an ex post facto “application of a liberalized burden of proof;”

and 5) the jury was not instructed as to the burden of proof required to use other

crimes evidence.

30

Defendant asserts that requiring him to defend against the charge of aggravated

rape and the other crimes evidence denied him the right to a fair trial by the loss of

his right to be presumed innocent. Defendant further asserts that the State wanted to

have the evidence at issue categorized as admissible under the lustful disposition

language of Article 412.2. However, a statute permitting an act does not make that

act constitutional.

Defendant asserts that intent, motive, system, or identity were not at issue and

none of the exceptions for the admissibility of other crimes evidence were present.

He contends the sole reason for introduction of the evidence at issue was to horrify

and enrage the jury and to make the jury believe he was predisposed to commit the

offense at issue. Defendant asserts that whether the jury believed P.B. became moot

following the testimony of C.H. and D.H.

At the hearing on Defendant’s “Motion to Declare Louisiana Code of Evidence

Article 412.2 Unconstitutional,” defense counsel stated that if a hearing regarding the

admissibility of other crimes evidence was held and he was able to cross-examine the

witnesses, “then probably 412.2 would be constitutional under those circumstances.”

He later argued that evidence of specific intent crimes should be inadmissible at a

trial for a general intent crime such as aggravated rape. Thus, we find that Defendant

waived his argument regarding the constitutionality of Article 412.2 and that the trial

court did not rule on the constitutionality of Article 412.2. Thus, that issue is not

considered by this court.

Louisiana Code of Evidence Article 412.2 provides, in pertinent part:

A. When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense involving
a victim who was under the age of seventeen at the time of the offense,
evidence of the accused's commission of another crime, wrong, or act

31

involving sexually assaultive behavior or acts which indicate a lustful
disposition toward children may be admissible and may be considered
for its bearing on any matter to which it is relevant subject to the
balancing test provided in Article 403.

Louisiana Code of Evidence Article 404(B) provides, in pertinent part:

(1) Except as provided in Article 412, evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake or
accident, provided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, of the
nature of any such evidence it intends to introduce at trial for such
purposes, or when it relates to conduct that constitutes an integral part
of the act or transaction that is the subject of the present proceeding.

In State v. Mayeux, 06-944 (La.App. 3 Cir. 1/10/07), 949 So.2d 520, the

defendant was convicted of forcible rape. The victim was the fourteen-year-old next

door neighbor of the defendant and often babysat for his young children. One night

in the summer of 1999, the defendant’s daughter, two other girls, and the victim had

a sleep-over in the Defendant’s camper, which was parked in the yard at his house.

During the night, after the girls fell asleep, the defendant entered the camper where

the victim was sleeping, held the victim’s hands over her head, and had sexual

intercourse with her.

On appeal, the defendant argued that the trial court erred when it allowed other

crimes evidence to be submitted to the jury. The other crime was a sexual battery

committed against the half-sister of the victim of the forcible rape. Testimony

indicated the victim of the sexual battery was sleeping in the defendant’s living room

with another girl and the defendant’s daughter when the defendant entered the room,

and after turning on the TV and watching it for a while, pulled the covers off the

victim and performed oral sex on her.

32

The defendant argued that this evidence was inadmissible under Article 404(B)

and the State argued the evidence was admissible under Article 412.2. This court

found the evidence was admissible, stating the following:

In State v. Patterson, 05-560 (La.App. 5 Cir. 1/31/06), 922 So.2d
1195, the fifth circuit agreed that the use of other crimes evidence under
Article 412.2, while prejudicial, was appropriate. In Patterson, the
accused was charged with aggravated rape and evidence of a conviction
for a simple rape was introduced. The fifth circuit stated:

Turning to the present case, the incident involving
T.K. is highly relevant to show the defendant’s lustful
disposition toward teenage girls. It also shows his
propensity to sexually assault teenage girls while armed
with a dangerous weapon while they are home with no
other adult present. For the same reason that the evidence
is probative, the evidence of the prior sexual conduct is
prejudicial to defendant. State v. Olivieri, [03-563
(La.App. 5 Cir. 10/28/03),] 860 So.2d [207] at 219.
However, as observed by Olivieri, by enacting Article
412.2, the Louisiana Legislature evidently saw a need to
lower the obstacles to admitting propensity evidence in
sexual assault cases. Id. at 219. Considering the purpose
behind Article 412.2, we fail to find that the evidence was
so prejudicial so as to warrant its exclusion because there
is no indication that the other crimes evidence confused or
misled the jury, the evidence was presented in an orderly
manner, with evidence of the prior sexual conduct being
presented at the end of trial, clearly and succinctly through
the testimony of the victim of that offense. Further, the
trial court gave a limiting instruction on the other crimes
evidence during the final jury charges. Thus, there was
little chance the jury could confuse the facts of the two
crimes.

Id. at 1204. See also, State v. Zornes, 34,070 (La.App. 2 Cir. 4/3/02),
814 So.2d 113, writ denied, 02-1280 (La.11/27/02), 831 So.2d 269,
wherein the accused was charged with aggravated rape and evidence of
a similar crime was allowed to be introduced to show the occurrence of
a crime through a common design. . . .

....

We find the trial court did not abuse its discretion when it
permitted the introduction of the evidence of the sexual offense
committed against D.S.R. The evidence was relevant to show

33

Defendant’s lustful disposition toward young teenage girls. While one
incident involved rape and one incident involved oral sexual contact, in
both cases, Defendant sought out fourteen-year-old girls, who were
guests in his home, late at night after they fell asleep.

Id. at 528-29 (alteration in original).

The other crimes evidence in the case at bar involves the touching of

Defendant’s nieces while they were at his residence. Further, the offense of

aggravated rape was committed against Defendant’s niece while she was at his

residence. We find that the other crimes evidence is relevant to show Defendant’s

lustful disposition toward young girls, particularly his nieces. For the same reason

that the evidence is probative, the evidence of other sexual offenses is prejudicial.

However, the legislature, when enacting Article 412.2, saw a need to lower the

obstacles to admission of propensity evidence in sexual assault cases. State v.

Olivieri, 03-563, (La.App. 5 Cir. 10/28/03), 860 So.2d 207. Based on the purpose

behind the enactment of Article 412.2, we find that the evidence was not so

prejudicial as to warrant exclusion, as there was no indication the other crimes

evidence confused or misled the jury, the evidence was presented in an orderly

manner, with evidence of the other crimes presented at the end of the State’s case.

Further, the trial court gave the following limiting instruction regarding other crimes

evidence:

Evidence has been presented concerning other offenses which the
defendant is alleged to have committed. The State was allowed to
introduce this as evidence solely to establish motive, intent, knowledge,
identity, and/or lustful disposition toward children. It is to be
considered by you only for that purpose. It is not to be considered by
you as proof of the character of the defendant in order to show that he
acted in conformity therewith.

Remember, the accused is on trial only for the offense charged.
You may not find him guilty of this offense merely because of the
evidence regarding other alleged offenses.

34

Thus, there was little chance the jury could confuse the facts of the crimes.

Additionally, in State v. Willis, 05-218, p. 31 (La.App. 3 Cir. 11/2/05), 915

So.2d 365, 388, writ denied, 06-186 (La. 6/23/06), 930 So.2d 973, cert. denied, 549

U.S. 1052, 127 S.Ct. 668 (2006), this court stated, “the fact that the prior sex offenses

occurred many years before trial is not significant as the legislature did not set forth

a time limitation in Article 412.2.”

The other crimes evidence at issue would be admissible under Article 404(B)

pursuant to the second circuit’s decision in Zornes, 814 So.2d 113, to show the

occurrence of a crime through a common design.

Next, Defendant asserts the other crimes evidence at issue in the case at bar is

inadmissible insofar as his intent was not at issue. Defendant asserts that he denied

this offense. Thus, evidence of other crimes, acts, or wrongs involving alleged

sexually assaultive behavior or to show a lustful disposition toward children was

absolutely inadmissable. In support of this argument, Defendant cites Kennedy, 803

So.2d 916, wherein the supreme court found that specific intent was not at issue.

Thus, other crimes evidence was not admissible to prove the defendant’s bad

character. Defendant then asserts that evidence of lustful disposition was not

admissible unless intent was at issue. In support of this argument, Defendant cites

State v. Miller, 98-301 (La. 9/9/98), 718 So.2d 960.5 Defendant asserts that since his

intent was not at issue, evidence of other crimes was not admissible.

Defendant further asserts that the evidence at issue was not relevant to this

case. He alleges that evidence designed to show propensity to commit the charged

5
Miller involved the admission of evidence under Article 404(B) and was decided before the
enactment of Article 412.2.

35

offense is “not admissible absent an exception.” Defendant then asserts that lustful

disposition is an exception, but does not create its own relevance.

In Willis, 915 So.2d at 375, this court stated the following regarding Kennedy,

803 So.2d 916:

In Kennedy, 803 So.2d 916, the supreme court held that absent a
dispute as to whether the accused intended to commit the crime,
evidence of other crimes was prohibited to show intent when the crime
charged was a general intent crime. The Defendant argues that Kennedy
is applicable in the case at bar. However, the decision in Kennedy was
implicitly overruled by the legislature's enactment of Article 412.2.

In Zornes, 814 So.2d at 115 (alteration in original), the second circuit stated the

following regarding Kennedy, 803 So.2d 916:

following State v. Kennedy, supra, the legislature enacted La.C.E. art.
412.2 for the purpose of allowing evidence of (an)other offense(s) in
sexual assault cases or in cases involving sex offenses against minors
regardless of whether the charged offense is a general intent or specific
intent crime. This legislative decision corresponds to the suggestion set
forth in the concurrence of Justice Victory in State v. Kennedy, supra at
925-926.

Kennedy, 803 So.2d 916, has been implicitly overruled and is inapplicable to

the case at bar. Further, the other crimes evidence is relevant to prove Defendant’s

lustful disposition toward children under Article 412.2 and to prove a common design

under Article 404(B).

Defendant notes that he is aware that the legislature enacted Article 412.2 in

response to Kennedy, 803 So.2d 916, and of this court’s decision in Willis, 915 So.2d

365, which found that Article 412.2 does not violate the ex post facto clause.

However, he asserts that the Louisiana Supreme Court has yet to weigh in on this

issue and has expressly indicated that ex post facto application of Article 412.2

remains an open question. See State v. Morgan, 02-3196 (La. 1/21/04), 863 So.2d

520 n.2. Thus, to the extent Article 412.2 admits evidence of other crimes, wrongs,

36

or acts to show lustful disposition, the Article is unconstitutional and cannot be used

as a basis to introduce evidence of other crimes.

Defendant failed to indicate, in his “Motion to Declare Louisiana Code of

Evidence Article 412.2 Unconstitutional” the basis for his allegation that Article

412.2 violates the ex post facto clause. Furthermore, the issue was not raised at the

hearing on Defendant’s motion and was not considered by the trial court in its ruling

on the motion. Thus, this issue will not be considered by this court. Additionally, as

previously discussed, Defendant waived any argument regarding the constitutionality

of Article 412.2.

Defendant contends that the jury was not instructed regarding the burden of

proof with regard to other crimes evidence. Defendant asserts that without guidance

as to the elements of the non-charged other crimes, the jury could have found that the

non-charged crimes had been proven even if all elements of the offenses were not

present. Further, he asserts that the State should have been required to prove the non-

charged crimes by clear and convincing evidence and the jury should have been so

instructed.

There is no indication in the record that Defendant requested an instruction

regarding a clear and convincing burden of proof or that he objected to a lack thereof.

Thus, Defendant may not now ask this court to find that the trial court erred in failing

to give such an instruction since he has waived any error regarding this issue.

La.Code Crim.P. art. 841.

37

Excessive Sentence

In his third assignment of error, Defendant contends that the trial court erred

in imposing a life sentence. Defendant asserts that he could not have been ordered

to serve more than twenty years at hard labor.

As noted in Breaux, __ So.3d __, the penalty for aggravated rape between 1950

and September 8, 1977, was death. However, that penalty could not be carried out.

However, at the time of the offense in the case at bar, a jury was authorized to return

the following verdicts:

Guilty.

Guilty without capital punishment.

Guilty of attempted aggravated rape.

Guilty of simple rape.

Not guilty.

La.Code Crim.P. art. 814 (1967). Louisiana Code of Criminal Procedure Article 814

was amended, effective July 2, 1973, to delete the responsive verdict of “guilty

without capital punishment.” 1973 La. Acts No. 126, § 1. Furthermore, from 1967

until July 26, 1972, La.Code Crim.P. art. 817 provided in pertinent part, “[i]n a capital

case the jury may qualify its verdict of guilty with the addition of the words ‘without

capital punishment,’ in which case the punishment shall be imprisonment at hard

labor for life.” From July 26, 1972 until July 2, 1973, Article 817 provided:

In a capital case the jury may qualify its verdict of guilty as follows:

(1) With the addition of the words ‘without capital punishment,’
in which case the punishment shall be imprisonment at hard labor for
life, or

(2) With the addition of the words, ‘without capital punishment
or benefit of parole, probation, commutation or suspension of sentence,’

38

in which case the punishment shall be imprisonment at hard labor for
life without benefit of parole, probation, commutation or suspension of
sentence.

1972 La. Acts No. 502.

In State v. Craig, 340 So.2d 191 (La.1976), the supreme court discussed the

penalty applicable in aggravated rape cases after the death penalty was declared

unconstitutional, as follows:

The defendant has thus been convicted of a crime whose penalty
has been declared unconstitutional. This problem is not a new one,
however. After the United States Supreme Court decision in Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which
declared the death penalty as then applied unconstitutional, this court
remanded murder and rape cases where death had been imposed for
resentencing to life imprisonment. See e.g. State v. Franklin, 263 La.
344, 268 So.2d 249 (1972), a murder case; State v. Singleton, 263 La.
267, 268 So.2d 220 (1972), an aggravated rape case. The precedent for
such action had been established in State v. Shaffer, 260 La. 605, 257
So.2d 121 (1971), where the problems were discussed, and State v.
Duplessis, 260 La. 644, 257 So.2d 135 (1971), following the reversal by
the United States Supreme Court of our judgment “insofar as it imposes
the death sentence” for a “Witherspoon” violation. Duplessis v.
Louisiana, 403 U.S. 946, 91 S.Ct. 2282, 29 L.Ed.2d 856 (1971).

However, a different situation exists now than at the time of
Franklin and Singleton, supra. At the time those cases were decided,
C.Cr.P. 814 provided for a responsive verdict of “guilty without capital
punishment” for murder and aggravated rape. C.Cr.P. 817, at that time,
also authorized the “qualified” verdict of “guilty without capital
punishment,” in which case the sentence would be life imprisonment.
Thus, reasoning that the responsive verdict of guilty without capital
punishment was the next authorized verdict for the crime, we remanded
for resentencing as if that verdict has been returned, and, under C.Cr.P.
817, life imprisonment was called for.

The situation has changed. In an attempt to overcome Furman’s
objections to the death penalty, the legislature amended the murder
statute to provide for first and second degree murder, making death
mandatory for first degree murder. Likewise, the death penalty for
aggravated rape was mandatory. To accomplish this, the legislature
amended C.Cr.P. 814 to do away with the responsive verdict of “guilty
without capital punishment” for first degree murder and aggravated
rape. Thus, at the time this crime was committed, November 26, 1974,
the only responsive verdicts to a charge of aggravated rape were guilty;

39

guilty of attempted aggravated rape; guilty of simple rape; not guilty.
Additionally, C.Cr.P. 817 was amended to delete the provision
authorizing the qualifying verdict “guilty without capital punishment.”
Thus there is no longer any authority for us to remand an aggravated
rape case for resentencing to life.

At the time (November 26, 1974) this crime was committed,
attempted aggravated rape was punishable by imprisonment for not more
than twenty years. R.S. 14:27 D(1). Simple rape carried a penalty of
one to twenty years. R.S. 14:43. Thus, following the reasoning of
Franklin and Singleton, supra, we remand this case for resentencing of
defendant to the most serious penalty for the next lesser included
offense. The legislature obviously intended to impose the most serious
penalty available under the law. In this case, although there is a range
of from one to twenty years, the most serious penalty is twenty years at
hard labor.

Id. at 193-94 (emphasis added).

In State v. Batiste, 371 So.2d 1164 (La.1979), the supreme court discussed the

issue again, explaining in pertinent part:

We find, however, an error patent in the sentence imposed. At the
time the offense was committed (1970), death was the statutory penalty
for rape. The jury was authorized to return a verdict of either guilty,
guilty without capital punishment, guilty of attempted aggravated rape,
guilty of simple rape, or not guilty. La.C.Cr.P. art. 814 (1950). The
defendant was not tried until 1973, however, after the Supreme Court
had declared unconstitutional the procedure by which the death penalty
was imposed in Louisiana. Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972). In the defendant’s case the jury returned
a verdict of guilty as charged. As the death penalty could not be
imposed, the proper sentence is life imprisonment. State v. Quinn, 288
So.2d 605 (La.1974); State v. Franklin, 263 La. 344, 268 So.2d 249
(1972). We note that this will restore to the defendant the possibility of
parole, probation, suspension or commutation of sentence.

Id. at 1165 (emphasis added).

In State v. Johnson, 429 So.2d 870 (La.1983), the defendant was convicted of

aggravated rape, the offense having occurred on September 16, 1972. The supreme

court reviewed the propriety of the lower court’s reduction of the defendant’s

sentence to twenty years and stated the following:

40

At the time of the commission of the offense and at the time of trial and
conviction, aggravated rape was punishable either by death or by life
imprisonment without probation, parole or suspension of sentence. Also
at this time, La.C.Cr.P. Art. 817 accorded the option to a jury of
qualifying its verdict of guilty in a capital case by adding the words
“without capital punishment.” In an effort to limit such excessive jury
discretion, found objectionable in Furman v. Georgia, 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346 (1972), the legislature amended both
statutes, removing the provision which had previously allowed
imposition of a life sentence pursuant to the jury’s recommendation. For
a complete historical discussion of these amendments, see, State v. Jett,
419 So.2d 844 (La.1982). As a result, defendants thereafter convicted
of aggravated rape were automatically sentenced to death.

In 1976, however, Selman v. Louisiana, supra, declared
unconstitutional Louisiana’s mandatory death penalty for aggravated
rape. The sentences of defendants previously convicted under the
mandatory penalty scheme were vacated, this Court concluding that the
appropriate sentence to be imposed upon a valid conviction for
aggravated rape was the most severe constitutional penalty established
by the legislature for a lesser included offense at the time was
committed. State v. Selman, supra.

Defendant in the present case errs in characterizing his situation
as analogous to that of defendants convicted of aggravated rape
following the 1973 amendments to La.R.S. 14:42 and La.C.Cr.P. Art.
817. As noted above, the most severe constitutional penalty available
for the offense of aggravated rape at the time of defendant’s offense was
life imprisonment at hard labor, without benefit of probation, parole or
suspension of sentence. Thus, defendants convicted of aggravated rape
and sentenced to death prior to 1973 found their sentences reduced only
to life imprisonment. State v. Singleton, 263 La. 267, 268 So.2d 220
(1972); see also, State v. Franklin, 263 La. 344, 268 So.2d 249 (1972).

Id. at 871-72.

We note the following language by the first circuit in footnote three of its

opinion in State v. Handley, 453 So.2d 1242 (La.App. 1 Cir.), writ denied, 457 So.2d

1199 (La.1984):

The offense of which defendant was convicted occurred on April
3, 1973. It is well settled that a defendant is to be tried under the statute
in effect at the time of the commission of the crime. The death penalty
sentencing provision for aggravated rape in effect on April 3, 1973 was
declared unconstitutional in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct.
3214, 49 L.Ed.2d 1212 (1976). However, from July 26, 1972 (effective

41

date of Acts 1972, No. 502) to July 2, 1973 (effective date of Acts 1973,
no. 125) La.Code Crim.P. art. 817, as amended by Acts 1972, No. 502,
provided in pertinent part:

Art. 817. Qualifying verdicts in capital and noncapital cases:

“In a capital case the jury may qualify its verdict of guilty as follows:

(1) With the addition of the words ‘without capital punishment,’ in
which case the punishment shall be imprisonment at hard labor for life,
or

(2) With the addition of the words, ‘without capital punishment or
benefit of parole, probation, commutation or suspension of sentence,’ in
which case the punishment shall be imprisonment at hard labor for life
without benefit of parole, probation, commutation or suspension of
sentence.”

Accordingly either imprisonment at hard labor for life or imprisonment
at hard labor for life without benefit of parole, probation, commutation
or suspension of sentence would have been an appropriate sentence on
this guilty verdict.

Id. at 1245.

Defendant cites State v. Fraise, 350 So.2d 154 (La.1977), in support of his

proposition that he should receive a sentence of twenty years. In Fraise, the supreme

court stated the following:

For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976),
State v. Lee, 340 So.2d 180 (La.1976), and State v. Sledge, 340 So.2d
205 (La.1976), we have held that, because the legislature obviously
intended to impose the most serious penalty available under law for the
crime of aggravated rape, the appropriate penalty since the invalidation
of the mandatory death penalty is the most serious penalty for a
lesser-included offense at the time of the commission of the crime. At
the time of the commission of the present offense (June 16, 1971),
attempted aggravated rape was punishable by imprisonment at hard
labor for not more than twenty years while the crime of simple rape
carried a penalty of imprisonment at hard labor for not less than one nor
more than twenty years. Consequently, the most serious penalty is
twenty years at hard labor. Therefore, in accordance with our decisions

42

in Craig and Lee, we must vacate and set aside the imposition of the
death penalty even though we affirm the conviction and remand the case
to the trial court for resentencing.

Id. at 157-58 (emphasis added).

The bill of information charged that the current offense occurred between 1966

and 1972. At that time, the penalty for aggravated rape was death. However, that

penalty was declared unconstitutional. Guilty without capital punishment was a

responsive verdict to aggravated rape until July 2, 1973. Thus, a defendant who

committed the offense of aggravated rape prior to that date would properly be

sentenced to life imprisonment.6

In spite of the supreme court’s ruling in Fraise, which we find is contrary to

its statements in Craig, 340 So.2d 191, and Batiste, 371 So.2d 1164, Defendant was

properly sentenced to life imprisonment. Accordingly, this assignment of error lacks

merit.

Failure to Sequester the Jury

In his fourth assignment of error, Defendant contends that if the procedural

rules in effect in 1972 should be applied to his case, reversal is mandatory because

the jury was not sequestered. Defendant asserts that reversal is required even if it is

found that he acquiesced in the failure to sequester the jury.

In support of his argument, Defendant cites State v. Luquette, 275 So.2d 396

(La.1973), overruled by State v. Taylor, 93-2201 (La. 2/28/96), 669 So.2d 364, cert.

denied, 519 U.S. 860, 117 S.Ct. 162 (1996), and State v. Craighead, 38 So. 28

6
Between July 2, 1973, and September 12, 1975, a defendant convicted of aggravated rape
was properly sentenced to twenty years. State v. Sledge, 340 So.2d 205 (La.1976). The statute for
attempt, La.R.S. 14:27, was amended, effective September 12, 1975, to provided for a sentence of
fifty years. 1975 La. Acts No. 132, § 1; State v. Welch, 368 So.2d 965 (La.1979). Thus, a defendant
convicted of aggravated rape between September 12, 1975 and September 9, 1977 was properly
sentenced to fifty years. On September 9, 1977, the penalty for aggravated rape was changed to
provide for life imprisonment. 1977 La. Acts No. 343; State v. Petrie, 414 So.2d 304 (La.1982).

43

(La.1905), overruled by Taylor, 669 So.2d 364. In both cases, the supreme court held

that in capital cases, the jury should not be permitted to separate after it has been

sworn, either with or without consent of the defendant. Defendant further asserts that

backstrikes would not have been allowed in 1972.

The State asserts that Defendant did not preserve these issues for appellate

review, as Defendant acquiesced in and waived sequestration of the jury and engaged

in the use of backstrikes. In support of its argument, the State cites State v. Fussell,

06-324 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, overruled on other grounds by State

v. Fussell, 06-2595 (La. 1/16/08), 974 So.2d 1223. In Fussell, 941 So.2d 109, the

defendant claimed the jury was not fully sequestered, which was improper because

it was a capital case. He asserted the jurors were allowed to run all over the

courthouse during recess and lunch breaks. On review, this court found that the voir

dire transcript revealed no objection regarding the lack of sequestration and that

defendant did not reference any point in the record where such an objection was

raised. Thus, the defendant’s claim was not properly preserved for appellate review.

This court further found that the sequestration rule for capital cases did not apply to

the case. The State also cites La.Code Crim.P. art. 791(B) in support of its argument,

which now provides that the State and defense may jointly waive jury sequestration

in capital cases.

In Breaux, __ So.3d __, the defendant was charged with having sexual

intercourse with his nieces between 1961 and 1980. During most of that time, the

penalty for aggravated rape was death. In the error patent review, this court found

the procedural rules for capital cases, such as unanimous jury and sequestration of the

jury, should be applied in that case. Id. at 5. See also D.T., 998 So.2d 1258. Thus,

44

we find that the procedural rules for capital cases were properly applied to the case

at bar.

Prior to the commencement of trial, Defendant, with the acquiescence of the

State, waived sequestration of the jury. We note that in Luquette, 275 So.2d 396, and

Craighead, 38 So. 28, the supreme court held that a defendant could not waive

sequestration of the jury in a capital case. Those rulings were handed down in 1973

and 1905 respectively. However, in Taylor, 669 So.2d 364, the supreme court

discussed sequestration of the jury as follows:

At the time of this trial, La.Code Crim.P. art. 791(B) provided:
“In capital cases, after each juror is sworn he shall be sequestered.”
Under La.Code Crim.P. art. 788(A), an individual juror must be sworn
immediately by the trial court after he has been accepted by the state and
the defendant as a prospective juror. Once the jury selection process is
completed, the entire jury panel is then sworn again by the trial court.
La.Code Crim.P. art. 790.

It was anticipated by the state and the defense that jury selection
in this case would be lengthy. . . . After the first panel of 12 prospective
jurors was examined and just before both sides were about to exercise
their peremptory challenges, the trial court made the following ruling,
outside the prospective jurors’ presence, regarding sequestration and
swearing:

THE COURT: Before bringing the prospective jurors in,
I want to state for the record that this court is proceeding in
accordance with Article 788, Section B, with regards to
jury selection utilizing the system of simultaneous exercise
of challenges. The Court will further note that under
Article 790 of the Code of Criminal Procedure, that jurors
are to be sworn at one time once all of the--when the
selection of jurors and alternate jurors has been completed,
and all issues properly raised under Article 795 have been
resolved, the jurors shall be sworn together to try the case
in a just and impartial manner. The Court in following the
dictates of 790 and taking into consideration of 788 will
allow counsel for the defense to exercise simultaneous
challenges. However, the court will not swear these jurors
in accordance with 790 in view of the fact that 791(B)
dictates that each juror--after each juror is sworn
sequestration is to take place, so this would be, the court

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does not feel that if we select any persons from this panel
that we could properly swear them because all jurors have
not been selected. State do you have any objections to this
procedure?

MR. SINQUEFIELD: No, your honor, I think it’s a correct
procedure.

THE COURT: Defense?

MS. JACKSON: No, sir.

MR. BOREN: No, your honor.

In accordance with this ruling, and without objection from either
of the parties, jurors that were not peremptorily challenged were not
immediately sworn, as La.Code Crim.P. art. 788(A) requires. Instead,
the trial court informed the individual jurors that they would be serving
on the jury, and allowed them to return to their homes and to work until
the trial began. The trial court admonished the individual jurors not to
discuss the case with anyone, not to listen to news accounts about the
case, and not to read written reports about the case during this time.
Once jury selection was completed, the entire jury panel, and the two
alternates, were then sworn in accordance with La.Code Crim.P. art.
790.

The defendant now complains that this procedure violated the
swearing requirement of Article 791(B), and that his conviction and
sentence should be reversed since the violation deprived him of due
process, a fair trial and an impartial jury.

From the trial court’s statement quoted above and the colloquy
thereafter, it is evident that the state and the defense agreed to, or at least
acquiesced in, the procedure proposed by the trial court, which
effectively consisted of a waiver of the sequestration requirement by
delaying the individual swearing requirement of Article 788(A).
Historically, this Court has adhered to the principle that an accused may
not consent to waive the sequestration requirement. State v. Luquette,
275 So.2d 396 (La.1973); State v. Craighead, 114 La. 84, 38 So. 28
(1905); State v. Hornsby, 8 Rob. 554 (La.1844). The rationale behind
this rule being that a “[d]efendant ought not to be placed in the position
of having to consent, or perhaps prejudice the jury by withholding
consent.” State v. Luquette, 275 So.2d at 400, citing State v. Craighead,
supra.

We find this jurisprudentially established rule unnecessary. This
is reflected by recent legislative activity. During the 1995 legislative

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session, La.Code Crim.P. art. 791(B) was amended by La.Acts Nos.
1172, § 1 and 1277, § 1, to provide:

In capital cases, after each juror is sworn he shall be
sequestered, unless the state and the defense have jointly
moved that the jury not be sequestered. (Emphasis added.)

With this change, it is clear that a waiver of the sequestration
requirement is now possible.

Since this amendment was enacted well after the defendant’s trial,
and did not become effective until August 15, 1995, it does not apply
here. Nevertheless, it lends support to our conclusion that the
jurisprudentially-created prohibition against waiver is no longer
necessary. The concerns expressed in the cases cited above, namely,
placing the defendant in a position of having to consent or prejudicing
him in the eyes of the jury if he withholds consent, may be remedied by
using the proper procedure. Considering the issue of waiver of
sequestration, if it is even raised, outside the presence of prospective
jury members would prevent jury members from becoming aware that
the sequestration requirement may be waived. In the unlikely event that
a jury member is aware of the possibility of waiver, he would still be
unable to form prejudices against the defendant because it would be
impossible to determine which party refused to consent to the waiver.

The amendment to La.Code Crim.P. art. 791(B) also achieves this
result. By requiring both the defendant and the state to agree to the
waiver, the defendant is neither placed in a position of having to consent
nor is he prejudiced by his refusal to consent to the waiver.

Although 1995 La.Acts Nos. 1172, § 1 and 1277, § 1, effective
August 15, 1995, changed the law regarding waiver of the sequestration
requirement it may still have limited viability in previously tried cases.
To this extent, we overrule those cases prohibiting waiver of the
sequestration requirement. Because, at the very least, the defendant in
this case impliedly waived the sequestration requirement by acquiescing
in the trial court’s proposed procedure, this assignment of error is
without merit.

Id. at 380-81 (footnotes omitted).

In State v. Robertson, 97-177, p. 15 (La. 3/4/98), 712 So.2d 8, 23, cert. denied,

525 U.S. 882, 119 S.Ct. 190 (1998), the supreme court noted that in Taylor, 669

So.2d 364, it “recognized that even under the previous version of Article 791, a

defendant could consent to the waiver of the sequestration requirement.”

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Although capital protections applied to Defendant’s case, we find that under

Taylor, 669 So.2d 364, Robertson, 712 So.2d 8, and La.Code Crim.P. art. 791(B),

Defendant could waive sequestration of the jury. Furthermore, in D.T., 998 So.2d

1258, 1264, this court stated the following:

In this case, the State did not seek the death penalty. Defendant
failed to assign this error in his appeal to this court, and he failed to
allege or prove any prejudice suffered by this possible error.
Accordingly, assuming the trial court erred in failing to sequester the
jury, we find this error to be harmless. See [State v.] Porter, [99-1722
(La.App. 3 Cir. 5/3/00),] 761 So.2d 115, and [State v.] Marcantel, [98-
825 (La.App. 3 Cir. 12/22/99),] 756 So.2d 366[, writ denied, 00-208
(La. 8/31/00), 766 So.2d 1274].

The State did not seek the death penalty in the case at bar, and Defendant failed

to allege or prove the prejudice suffered as a result of the failure to sequester the jury.

Thus, any error regarding failure to sequester the jury would be harmless.

Furthermore, defense counsel never objected to the use of backstrikes during

jury selection. Thus, this issue was not properly preserved for appellate review.

La.Code Crim.P. art. 841.

For the reasons set forth above, this assignment of error lacks merit.

DECREE

For all of the foregoing reasons, Defendant’s conviction and sentence are

affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal. Rule 2-16.3.

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