State of Louisiana v. Thomas Kirk Gaton

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-30

STATE OF LOUISIANA

VERSUS

THOMAS KIRK GATON

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 48267
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Kevin V. Boshea
Attorney at Law
2955 Ridgelake Drive, Suite 207
Metairie, Louisiana 70002
(504) 834-2114
Counsel for Defendant/Appellant:
Thomas Kirk Gaton

Michael Harson
District Attorney
Ted L. Ayo
Assistant District Attorney
100 North State Street, Suite 215
Abbeville, Louisiana 70510
(337) 898-4320
Counsel for Appellee:
State of Louisiana

KEATY, Judge.

Defendant, Thomas Kirk Gaton, was charged by indictment with aggravated

rape, a violation of La.R.S. 14:42. He filed a written plea of not guilty. Trial by

jury commenced on June 21, 2012, and Defendant was found guilty of the

aggravated rape of C.T., a child under the age of thirteen.1 On July 23, 2012,

Defendant was sentenced to life imprisonment without benefit of probation, parole,

or suspension of sentence.

Defendant timely appealed and is now before this court asserting five

assignments of error. Therein, he contends that: 1) the verdict is contrary to the

law and evidence; 2) the prosecution repeatedly referenced his post-arrest silence;

3) the trial court erred in denying his motion to quash the indictment; 4) he was

denied his right to counsel at trial; and 5) the videotape of the victim was

incompetent evidence which should not have been admitted at trial. For the

following reasons, we affirm Defendant‘s conviction.

DISCUSSION

Assignment of Error Number One

In his first assignment of error, Defendant contends the verdict is contrary to

the law and evidence.

The standard of review in a sufficiency of the evidence claim is
―whether, viewing the 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.‖ State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108,
170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100
(2007) (citing 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)). The Jackson standard of review is now legislatively
embodied in La.Code Crim.P. art. 821. It does not allow the appellate
court ―to substitute its own appreciation of the evidence for that of the

1
The victim‘s initials are being used in accordance with La.R.S. 46:1844(W).

fact-finder.‖ State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d
517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d
1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate
court‘s function is not to assess the credibility of witnesses or reweigh
the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

The fact finder‘s role is to weigh the credibility of witnesses.
State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268.
Thus, other than insuring that the sufficiency evaluation standard of
Jackson is met, ―the appellate court should not second-guess the
credibility determination of the trier of fact,‖ but rather, it should
defer to the rational credibility and evidentiary determinations of the
jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3
Cir. 9/30/98), 720 So.2d 724, 726-27). Our supreme court has stated:

However, an appellate court may impinge on the
fact finders discretion and its role in determining the
credibility of witnesses ―only to the extent necessary to
guarantee the fundamental due process of law.‖ State v.
Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a
conviction, an appellate court must preserve ― ‗the
factfinders role as weigher of the evidence‘ by reviewing
‗all of the evidence . . . in the light most favorable to the
prosecution.‘ ‖ McDaniel v. Brown, 558 U.S. 120, ,
130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979)). When so viewed by an appellate
court, the relevant question is whether, on the evidence
presented at trial, ―any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.‖ Jackson, 443 U.S. at 319, 99 S.Ct. at
2789. Applied in cases relying on circumstantial
evidence, . . . this fundamental principle of review means
that when a jury ―reasonably rejects the hypothesis of
innocence presented by the defendant[ ], that hypothesis
falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.‖ State v.
Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372,
378.

State v. Teno, 12-357, pp. 7-8 (La.App. 3 Cir. 11/7/12), 101 So.3d 1068, 1073-74.

Defendant was convicted of aggravated rape of a child under the age of

thirteen. Louisiana Revised Statutes 14:42 provides, in pertinent part, as follows:

2

A. Aggravated rape is a rape committed upon a person sixty-
five years of age or older or where the anal, oral, or vaginal sexual
intercourse is deemed to be without lawful consent of the victim
because it is committed under any one or more of the following
circumstances:

....

(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim‘s age shall not be a defense.

Sergeant Regina Hargrave, an employee of the Vermilion Parish Sheriff‘s

Office, testified that the allegations at issue were brought to her attention on

September 10, 2007, regarding events that allegedly took place in the summer of

2006. C.T.‘s mother made a telephone complaint regarding Defendant. Sergeant

Hargrave testified that C.T. was brought for a physical examination on

September 19, 2007. That examination revealed a small laceration to the clitoris

and skin excavation around the anus; however, the hymen was intact. Sergeant

Hargrave was unable to determine when the laceration and skin excavation

occurred.

Nicolette Joseph was employed by Hearts of Hope, a children‘s advocacy

and sexual abuse response center. She was accepted as an expert in forensic

interviewing. Joseph interviewed C.T. on September 18, 2007. During the

interview, C.T. stated that she went to the doctor because someone was ―messing

with‖ her. When asked who had been ―messing with‖ her, she said, ―Thomas.‖

C.T. then stated no one had touched her ―tootie,‖ which is what she called her

vagina. She stated that she had been kissed ―there and all down there,‖ gesturing

from her chest all the way down to her vaginal area. When asked who had done

that, C.T. stated, ―Danny no Thomas.‖ She indicated her clothes were on during

the incident, and she was three years old at that time. C.T. also stated Thomas had

3

touched her breasts and put his finger in her vagina while her clothes were ―off

on.‖ C.T. stated that the events occurred while she was at home in the kitchen

getting a snack and standing on a chair. Her father was offshore at the time, and

her mother was at work. C.T. also stated that, while standing on a chair, Thomas

made her put her mouth on his private. His clothes were on and his ―thing‖

touched the inside of her mouth. C.T. first said this happened ―six days‖ but later

said this happened twenty-five times. C.T. indicated that yellow ―pee pee‖ came

out of Thomas‘s ―thing‖ and went into her mouth. She then choked and had to go

to the doctor. C.T. also said that Thomas made her kiss his ―boobies‖ and ―tootie.‖

C.T. indicated it was light outside and cold when these events occurred. C.T. also

stated that Thomas‘s ―thing‖ went inside her ―tootie‖ and that her clothes were on.

C.T. said Thomas stopped because C.T.‘s brother got a gun. C.T. identified parts

of the female body on a drawing. She then said no one had touched her ―boobies,‖

―tootie,‖ or buttocks, and no one asked her to touch their ―boobies‖ or ―tootie.‖ At

the conclusion of the interview, C.T. was questioned about whether she knew the

difference between the truth and a lie, and she indicated that she did know the

difference between them. At trial, Joseph agreed that, during the interview, C.T.

seemed more concerned about playing with Play-Doh and that C.T. did not cry or

seem distraught.

On cross-examination, Joseph acknowledged that C.T.‘s story changed

during their interview regarding whether the incident actually took place, the

identity of the alleged perpetrator, and the number of times the abuse occurred.

Joseph stated that she did not ask C.T. who Danny was, instead focusing on

Defendant because that was the name law enforcement gave her prior to the

interview. Finally, Joseph related that it was not until the end of C.T.‘s interview

4

that she established that C.T. knew the difference between telling the truth and

telling a lie. Nevertheless, C.T. confirmed to Joseph that she had told the truth

during the interview.

Shannon Thornton, C.T.‘s mother, testified that Defendant lived at her home

in 2006 when he worked with her husband. At that time, C.T. was three or four,

Logan was seven or eight, and A.J. was two. C.T.‘s birth certificate was

introduced into evidence and indicated her date of birth as October 10, 2002.

Shannon testified that Defendant began to live with them during the summer and

stayed there for six to eight months. Shannon allowed Defendant to babysit her

two older children when she and her husband were working.

Shannon testified that one day her kids were in the bathroom playing in the

tub when Logan screamed. She determined that C.T. tried to put her mouth on

Logan‘s private part. Shannon asked C.T. why she was doing that and where she

had learned such a thing. After making her ―pinky promise‖ not to say anything,

C.T. eventually told Shannon that Defendant made her put his privates in her

mouth and ―do things.‖ Shannon immediately called her husband who was

working offshore and asked him to fly back into town. They called the police the

day C.T. revealed the abuse or the following morning.

Shannon stated that she never allowed C.T. to tell her more than when the

events were first reported by her and that she did not tell C.T. what to say during

her interview with Joseph. Shannon testified that she did not recall the

terminology the doctor used after C.T.‘s examination, but she was basically told

―that C.T. no longer had what females consider their cherry . . . that there was

some tear in that area.‖

5

Shannon testified that Defendant did not contribute to the household

financially. According to Shannon, she corrected Defendant several times for

watching pornography in front of her children.

Shannon testified that in 2007, her ex-husband‘s nephew, Jonathan

Hernandez, lived in a camper in their backyard. Shannon first stated that

Hernandez never babysat her children and that he was never alone with them, but

she later admitted that she may have left the children with him for a short time

while she went to the store. Hernandez never bathed her children. According to

Shannon, she only recently discovered that Hernandez was a registered sex

offender. Shannon testified that her ex-husband‘s cousin, Danny, and his wife had

also lived in the house with her family in 2007; however, Danny was never alone

with her children.

Logan Thornton was nine years old in 2006. He testified that he saw

Defendant put his hand under C.T.‘s shirt several times and put his hand under her

shorts or skirt. He saw these things occur once on the kitchen counter, once in

C.T.‘s bedroom, and once in the bathroom. Logan testified that these events took

place in the summer. Logan further testified that he never saw Danny or Jonathan

do anything to C.T.

Logan testified that he witnessed between three and five incidents involving

Defendant and C.T. During the first incident, Defendant was in bed with C.T., and

C.T. was not wearing any clothes. The second incident occurred in the bathroom

when Defendant was taking off C.T.‘s clothes. The third and fourth incidents

occurred in the kitchen on the same day. Defendant had his hands under C.T.‘s

shirt at one point and up her skirt at another. Defendant was standing and C.T. was

sitting on the counter. When he saw the Defendant‘s hand under C.T.‘s shirt,

6

Logan told Defendant to leave C.T. alone. Logan stated that he was interviewed

by Sergeant Hargrave about the incidents involving Defendant and C.T.

C.T. testified that Defendant stayed with her and Logan by themselves once,

and, during that time, her clothes were off, and Defendant ―touched me with his

private in my privates, and he put his private in my mouth, and ―his white stuff‖

went into her mouth. C.T. testified that she spit out the white stuff. C.T. denied

that Defendant ever put his hands under her dress. C.T. explained the events at

issue occurred in the kitchen when she was trying to get a snack. She was standing

on a chair, and Defendant stood next to the chair

The defense presented two witnesses at trial. Samara Gaton, Defendant‘s

twelve-year-old daughter, testified that Defendant never did anything inappropriate

to her. Defendant also took the stand in support of his defense. He testified that he

lived in Louisiana from June to mid-August of 2006. He initially stayed at the

Southland Inn, a hotel near Parker Drilling, where he was trying to find work. He

ended up working at Fluid Crane, where he met Jason Newell, C.T.‘s step-father.

Defendant stated that he was invited to live in a camper in Newell‘s backyard at

the end of June but did not stay there until after July 4, 2006. Upon arriving and

finding wasps in the camper, Shannon told him he could stay in the house.

Defendant testified that he did not pay rent but did pay for groceries, in addition to

installing radios, doing yard work, cleaning the pools, and cleaning the truck.

Defendant testified that he moved out of the residence in August. He

returned in late August or early September to get his check, and Newell told him

he could not have it. Defendant testified Shannon held his check and wanted six

hundred dollars from him for staying with them.

7

Defendant testified that he babysat Logan once and never babysat C.T. He

denied ever inappropriately touching C.T., putting his finger in her private, putting

his private in her mouth, kissing her, or putting his private in her private.

Defendant testified that he had prior convictions for D.W.I., possession of

marijuana, theft under five hundred dollars, and evading arrest.

In brief to this court, Defendant submits that there were contradictions in the

testimony and evidence presented at trial. Defendant asserts that C.T. initially

denied anything happened to her. She then stated Danny was responsible. During

her interview, C.T. claimed Defendant put his penis in her vagina and digitally

penetrated her; however, at trial, she asserted Defendant placed his penis in her

mouth but did not mention the other types of sexual conduct. C.T. also denied that

Defendant placed his hands under her dress, while Logan testified that he saw

Defendant place his hands under C.T.‘s skirt several times.

Defendant also notes that during her interview, C.T. stated that the events

happened twenty-five times with her clothes on, and, at trial, she described one

incident in which she was naked. Defendant asserts that Logan stated C.T. was

naked at the time of his observations, which involved Defendant placing his hands

under C.T.‘s shirt and skirt.

Defendant faults law enforcement for failing to investigate Danny or

Hernandez. He also faults Joseph for failing to initially tell C.T. to tell the truth

during her interview. He points to Joseph‘s acknowledgment that C.T.‘s story

changed quite a bit during her interview. Defendant further argues that there was

no physical evidence to corroborate the allegations against him.

The State asserts that the evidence is sufficient to support Defendant‘s

conviction. In support of that contention, the State cites State v. Broussard, 95-792

8

(La.App. 3 Cir. 12/6/95), 664 So.2d 835. In Broussard, the defendant was

convicted of oral sexual battery for performing oral sex on the six-year-old victim

and making her perform oral sex on him. On appeal, the defendant argued that

because the victim‘s sworn testimony at trial and her unsworn testimony in a

videotaped interview conflicted, the sworn testimony should prevail.

In her videotaped statement, the victim in Broussard stated that, while in the

rocking chair, the defendant made her suck his bottom and he licked hers. At trial,

the victim testified the defendant merely kissed her while they were in a rocking

chair. The victim‘s mother testified that the victim told her the defendant made her

suck his penis while they were on a reclining chair. This court found the evidence,

when viewed in a light most favorable to the prosecution, showed the defendant

made the victim perform oral sex. This court further found:

We decline Broussard‘s invitation to review the jury decision and
accord greater weight to T.C.‘s trial testimony. The jury was free to
ascribe T.C.‘s trial testimony whatever weight it judged reasonable, or
none ―at all‖ if it found T.C.‘s taped testimony and the recollection of
her mother were more credible and accurate. The record supports the
jury‘s findings, and we will not reevaluate the credibility of the
witnesses. See State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992).

Id. at 840.

In State v. Simmons, 03-20 (La.App. 5 Cir. 4/29/03), 845 So.2d 1249, the

defendant was convicted of aggravated rape and aggravated crime against nature.

On appeal, the defendant argued the victim‘s testimony was unreliable, as there

were inconsistencies in her testimony. On appeal, the fifth circuit noted:

Although there may be slight inconsistencies in minor details of
the events surrounding her attack, the child never wavered in her
statement―to her mother, Officer Carrone, Dr. Benton, Omalle
Gordon, and, finally, at trial—that defendant put his ―thing‖ in her
mouth and ―down there,‖ i.e. in her vagina. Further, the alleged
discrepancies are not necessarily indicative of untruthfulness or
incompetence. Rather, memory lapse and alleged inconsistencies may

9

have resulted from the child‘s tender age―5-years-old―on the date
of the incident; the traumatic nature of the experience; exposure to
unfamiliar surroundings; or the method of interrogation. See, State v.
Foy, 439 So.2d 433, 434 (La.1983).

Id. at 1258.

In State v. Vincent, 07-239 (La.App. 5 Cir. 12/27/07), 978 So.2d 967, the

defendant was convicted of oral sexual battery and sexual battery committed upon

two victims, M and F, who were twelve or thirteen years old. On appeal, the

defendant argued the evidence was legally insufficient to support the verdicts

because the trial testimony was conflicting and contradictory, and his argument

addressed the credibility of the victims. The trial court noted the inconsistencies in

denying the defendant‘s motion for new trial ―but found that the victims were very

young and that juries ‗don‘t‘ hold them to the accountability of being perfect.‘‖ Id.

at 972.

The fifth circuit affirmed the convictions, stating:

There are some inconsistencies in the testimony. For example,
F testified that the sexual battery took place once; M stated that it
happened to F twice. M‘s version of the sequence of events differed
from F‘s. In her recorded statement, F stated that M was in the room
with Vincent first, then he pushed her out. F testified that she was in
Vincent‘s bedroom on that occasion for thirty minutes; however, M
thought that F was in there five or ten minutes. F testified that Helen
came home while she was still with Vincent; M testified that Vincent
called her into the room after he was finished with F. M testified that
she and F had spent the night at Helen‘s house on that occasion, but F
testified that, after the incident, she and M walked to F‘s house that
evening.

....

Furthermore,

[w]hen a witness is impeached, this simply means the
jury, as the trier of fact, is presented with evidence which
it could consider and weigh in determining the
credibility, or believability, of a witness. Simply because
the witness may have been impeached by prior

10

inconsistent statements does not mean that the jury is
prohibited from believing anything said by the witness.
The inconsistencies in the witness‘s statements are one of
any number of factors the jury weighs in determining
whether or not to believe a witness‘s trial testimony.

Here the jury chose to believe the victims. They had the
opportunity to hear and consider all of the testimony, and defense
counsel was able to effectively cross-examine the witnesses. Further,
the major inconsistencies were detailed in the closing argument. The
victims were quite consistent in their testimony as to what Vincent did
to them. We have no reason to second-guess the credibility finding.
The jury could have reasonably determined, based on all the evidence,
that Vincent committed the offenses with which he was charged and
that the young victims simply had trouble remembering some of the
minor details of the incidents. Viewing the evidence in the light most
favorable to the State, we find that a rational juror could have found
that the State proved the essential elements of the crimes of oral
sexual battery beyond a reasonable doubt, thus satisfying the Jackson
standard.

Id. at 972-73 (footnotes omitted).

In State v. C.S., 10-507 (La.App. 3 Cir. 11/17/10), 50 So.3d 983, the

defendant was convicted of the aggravated rape of his six-year-old daughter. On

appeal, the defendant implied the victim‘s testimony was not credible because she

had changed her accusation of who abused her several times. The defendant filed a

complaint with police alleging his former girlfriend‘s brother had abused the

victim. After the victim was removed from the defendant‘s custody, she stated the

defendant abused her, and she consistently maintained that position through the

trial. In affirming the defendant‘s conviction and sentence, we stated:

In State v. Rideaux, 05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d
488, 491, this court quoted the following ruling in State v. Roca, 03-
1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866 So.2d 867, 874, writ
denied, 04-583 (La.7/2/04), 877 So.2d 143, which in pertinent part
stated: ―In the absence of internal contradiction or irreconcilable
conflict with physical evidence, one witness‘s testimony, if believed
by the trier of fact, is sufficient support for a requisite factual finding.‖

11

Considering the evidence in a light most favorable to the
prosecution, sufficient evidence exists to sustain the verdict of
aggravated rape of a child under the age of thirteen years.

Id. at 986.

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

defendant was convicted of aggravated rape. On appeal, this court, after

recognizing that there were inconsistencies in the versions of events given by the

victim at the emergency room, the advocacy center, and at trial, stated:

T.B.‘s testimony may be clearer than her initial reports due to her
inexperience with sexual activity.

Furthermore, ―[t]he fact that the record contains evidence
which conflicts with the testimony accepted by the trier
of fact does not render the evidence accepted by the trier
of fact insufficient.‖ State v. Holley, 01-0254, p. 6
(La.App. 3 Cir. 10/3/01), 799 So.2d 578, 583, citing State
v. Tompkins, 403 So.2d 644 (La.1981), appeal after
remand, 429 So.2d 1385 (La.1982).

State v. Schexnaider, 03-144, p. 9 (La.App. 3 Cir. 6/4/03), 852 So.2d
450, 456-57.

Id. at 642-43.

In the instant matter, the jury heard the inconsistencies detailed during

C.T.‘s interview and her testimony at trial. C.T. merely mentioned Danny once

during her interview and never referred to him again. C.T. reported to her mother

and Joseph that the acts were committed by Defendant and testified in the same

manner at trial. The jury, as the trier of fact, was free to accept any part of C.T.‘s

testimony. The jury could have determined that, as in Simmons, 845 So.2d 1249,

and Vincent, 978 So.2d 967, any inconsistencies in C.T.‘s claims were due to

C.T.‘s age at the time of the offense. The verdict clearly indicates the jury chose to

believe Defendant committed the acts against C.T. That credibility determination

should not be second-guessed by this court. Based on the decisions cited herein,

12

the evidence was sufficient to support Defendant‘s conviction, as C.T. stated

during her interview and at trial that Defendant placed his private in her mouth.

Accordingly, Defendant‘s first assignment of error lacks merit.

Assignment of Error Number Two

In his second assignment of error, Defendant contends that the prosecution

repeatedly referenced his post-arrest silence contrary to the tenets of Doyle v. Ohio,

426 U.S. 610, 96 S.Ct. 2240 (1976), and its progeny.

During her testimony, Sergeant Hargrave was questioned as follows:

Q. Did you question him?

A. I attempted to when he was at the jail, but he stated he wanted his
attorney present whenever we did speak with him.

....

Q. And did his attorney ever contact you to allow –

A. Not for an interview, no, sir.

The State made the following remarks during its closing argument: ―If the

defendant took a polygraph, it wasn‘t with the sheriff‘s department. It might have

been something his attorney set up, because he had claimed that he wanted a

lawyer.‖2

Defendant contends these excerpts represent direct references to his post-

arrest silence, which violates the Supreme Court‘s ruling in Doyle. Doyle prohibits

the State from impeaching an accused who testifies at the guilt phase of trial with

his decision to remain silent after receiving Miranda warnings during the

investigation of the crime.

2
On direct examination, Defendant testified that he told the ―absolute truth‖ during a
polygraph test.

13

In State v. Arvie, 505 So.2d 44 (La.1987), the defendant sought appellate

review of the State‘s use of his post-arrest silence for impeachment purposes and

had not objected to the State‘s questions that elicited the information. The

supreme court found the circumstances of the case did not warrant making an

exception to the contemporaneous objection rule. See also State v. Collins, 09-283

(La.App. 5 Cir. 12/8/09), 30 So.3d 72, writ denied, 10-34 (La. 9/3/10), 44 So.3d

696. Defendant failed to object during Sergeant Hargrave‘s testimony and the

State‘s closing argument. Based on the cases cited herein, we conclude that

Defendant failed to preserve this issue for appellate review.

Assignment of Error Number Three

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

in denying his motion to quash indictment. Defendant filed a motion to quash on

June 18, 2012. The trial court denied the motion at a hearing held on June 19,

2012. Defendant subsequently applied for supervisory writs in this court, and on

June 21, 2012, we issued the following ruling:

WRIT DENIED; STAY DENIED: We find no error in the trial
court‘s ruling denying the Defendant‘s motion to quash. Accordingly,
the Defendant‘s writ application is hereby denied.

In State v. Marinello, 09-1260, pp. 31-32 (La.App. 3 Cir. 10/6/10), 49 So.3d

488, 507, writs denied, 10-2494, 10-2534 (La. 3/25/11), 61 So.3d 660, 661, we

held:

In State v. Chambers, 99-678 (La.App. 3 Cir. 1/19/00), 758 So.2d
231, writ denied, 00-551 (La.9/22/00), 768 So.2d 600 this court
explained that a defendant may seek review of a pretrial ruling even
after the denial of a pretrial supervisory writ application seeking
review of the same issue. However, when a defendant does not
present additional evidence on the issue after the pre-trial ruling, the
issue can be rejected on appeal. Id. Judicial efficiency demands that
this court accord great deference to its pre-trial decision unless it is

14

apparent that the determination was patently erroneous and produced
unjust results. Id.

In brief to this court, Defendant makes a new argument regarding ―actual

notice,‖ asserting the following:

In State v. Romar, 07-2140 (La. 7/1/08) 985 So. 2d 722, it was
noted that the Legislature amended La. C. Cr. P. art. 579 to add a third
ground of interruption. That is, that the defendant ‗fails to appear at
any proceeding pursuant to actual notice, proof of which appears of
record‘ 1984 Acts 671. In Romar, the defendant received actual
notice in court. As stated, there is no proof of actual notice in the
record in the instant case. Nor is there even proof of oral notice given
to Mr. Gaton.

Defendant also cites State v. Peters, 10-939 (La.App. 4 Cir. 11/17/10), 52 So.3d

233; State v. Sorden, 09-1416 (La.App. 4 Cir. 8/4/10), 45 So.3d 181; and State v.

Carcamo, 03-589 (La.App. 5 Cir. 10/28/03), 860 So.2d 220. He then states:

As stated the period of prosecution for non-capital cases was
interrupted, if the defendant failed to appear at any proceeding
pursuant to actual notice. Here, there is simply no evidence of actual
notice, either oral, written or by means of subpoena. The Motion to
Quash filed in this matter should have been granted.

In this case, there was no argument in the trial court by the State that the

time to institute prosecution was interrupted because Defendant received actual

notice of the trial date and failed to appear. Additionally, Defendant did not

present any new evidence on the issue after the pretrial ruling. For these reasons,

we will not review this assignment of error.

Assignment of Error Number Four

In his fourth assignment of error, Defendant contends he was denied his

right to counsel at trial. Defendant notes that Amanda Martin was appointed as his

counsel on June 22, 2011, but when she was unable to properly represent him at

trial, Jermaine Williams, ―who simply may have been in Court that day[,]‖ took

over the case for that day. Williams participated in voir dire, made the opening

15

statement, and cross-examined Joseph, the main investigative witnesses. However,

on the second day of trial, Williams was not present, but attorney Harry Brown

was seated at the defense table with Martin. Thereafter, the State sought to have

Brown enroll in the case, and the trial court inquired of Martin ―[h]ow many

lawyers are going to enroll in this case?‖ After Martin assured the trial court that

Brown would not question any witnesses or address the jury, the trial court stated

that he did not need to enroll.

Defendant contends that Williams was never appointed to represent him, and

Defendant did not consent to Williams‘s participation. Further, Defendant argues

that ―the failure of Mr. Williams who never met Mr. Gaton prior to the immediate

state [sic] of the trial to engage in significant participation at trial, constitutes the

constructive denial of counsel.‖ Defendant then cites State v. Laugand, 99-1124

(La. 3/17/00), 759 So.2d 34; State v. Addison, 94-2745 (La. 6/23/95), 657 So.2d

974; and State v. Knight, 611 So.2d 1381 (La.1993).3

In Knight, 611 So.2d 1381, the attorney handling the matter was on vacation,

and the trial court refused to grant a continuance even though the attorney filling in

knew nothing about the case. New counsel presented no defense but did cross-

examine the State‘s witnesses. The supreme court reversed the defendant‘s

conviction and remanded the matter for further proceedings, finding the trial court

constructively denied counsel to the defendant. The supreme court found there

was no significant difference between what happened and the complete absence of

counsel.

3
Defendant admits that in the above-cited cases, defense counsels sought continuances
but no continuance was sought in the case at bar.

16

In Laugand, 759 So.2d 34, defense counsel appeared in court on the day of

trial claiming that he was fresh from trial in another parish and, because of a

scheduling conflict, he had been unable to prepare the defendant‘s case for trial.

Defense counsel was therefore physically available to try the case and, after the

trial court denied his motion for a continuance, cross-examined the State‘s

witnesses and argued the case to jurors at the close of evidence. The supreme

court set aside the defendant‘s conviction because defense counsel was not

prepared, and the trial court had to intervene to keep defense counsel from

pursuing matters that appeared directly adverse to the defendant‘s interests.

In Addison, 657 So.2d 974, the defendant had been represented by various

attorneys from the public defender‘s office, and on the morning of trial, the

attorney who had represented the defendant at only a bail reduction hearing

appeared and moved for a continuance. The trial court denied the motion, noting

that different public defenders had been substituting in and out of the case. The

supreme court found that the record did not establish ineffective assistance and

prejudice but found that a showing by the defendant at a subsequent hearing that

his new attorney was totally unprepared might entitle him to a new trial. The

supreme court concluded that it was appropriate to conditionally affirm the

conviction and to remand for a hearing, in the nature of a hearing on a motion for

new trial, to determine whether the defendant received effective assistance of

counsel and, if not, to determine whether he suffered prejudice from such failure.

The State counters that Williams is an attorney for hire and would not have

been appointed by the trial court. The State further asserts that Williams‘s

presence was facilitated by Defendant, who did not want the matter to be

continued. The State submits that Martin was prepared to proceed to trial, but

17

Defendant retained the services of Williams, and Brown was present to assist

Martin with research or prepare another supervisory writ application. The State

further asserts that no one declared that the defense was not prepared to proceed to

trial, and Defendant did not object to the presence of Williams or Brown. Finally,

the State points out that in each of the cases cited by Defendant, a motion to

continue was urged, and no such motion was made in the case at bar.

Martin was appointed to represent Defendant on June 22, 2011. 4 Martin

represented Defendant at trial on June 21, 2012. The minutes of court indicate

that, on that date, Williams moved to enroll as co-counsel, and his motion was

granted. The minutes do not indicate Williams was present on June 22, 2012. On

that date, attorney Brown was present in court with Martin but did not enroll

because he would not be questioning any witnesses. Brown did stand in for Martin

at the sentencing hearing held on July 23, 2012, where Defendant stated:

I never authorized Mr. Williams to represent me on Thursday, and he
had looked at my case for maybe 10 minutes when he was
representing me, and then he didn‘t even show up on Friday. And it
just -- I just didn‘t -- Ms. Martin had had a death in the family, and I
think everybody can say in here that she couldn‘t -- she couldn‘t even
compose herself or make a -- he had to take over, and he had no idea
about my case. Just -- I just don‘t think -- I didn‘t get a fair trial, sir.

In State v. Johnson, 04-178 (La.App. 4 Cir. 12/8/04), 892 So.2d 28, writ

denied, 05-87 (La. 4/22/05), 899 So.2d 556, cert. denied, 546 U.S. 892, 126 S.Ct.

211 (2005), Johnson contended he never met the attorney who represented him at

trial, Eric Hessler, until the morning of trial, June 4, 2002. Johnson had previously

been represented by Robert Jenkins, who appeared at other proceedings, including

a pretrial motion hearing held on August 3, 2001. Johnson argued that the failure

4
Defendant was represented by various counsel prior to this date.

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of Hessler to meet with him prior to the immediate start of trial constituted the

constructive denial of counsel during the pretrial phase of the proceedings.

In affirming the defendant‘s conviction and sentences, the fourth circuit

discussed Knight,, Laugand, and Addison, noting that a continuance had been

requested in those cases, and that Hessler had not made such a motion. The court

further noted that nothing in the transcript or minute entries indicated that Hessler

voiced any concerns that he had not known of the upcoming trial or lacked

sufficient time to prepare. In addition, Johnson did not argue that Hessler was

actually ineffective but that the change in counsel resulted in a constructive denial

of counsel at the pretrial stage and that no prejudice need be shown. The fourth

circuit further noted Johnson had been represented by counsel throughout the

proceedings. The court then stated:

As a review of the jurisprudence shows that, if Mr. Hessler had
requested a continuance because he had been given the case on the
eve of trial, the denial of such a request might have constituted
reversible error. However, neither the record nor the jurisprudence
supports a finding that a mere change in appointed counsel during the
course of the proceedings constitutes the denial of counsel at the
pretrial stage.

Johnson, 892 So.2d at 36.

In the instant matter, the record does not indicate how Williams came to

enroll in the case on the morning of trial. However, there was no objection by

Defendant at that time. Additionally, none of the defense counsel moved for a

continuance of trial or asserted that they were unprepared to proceed to trial.

Furthermore, Defendant has not argued that any of the counsel were ineffective.

Based on the cases cited herein, we conclude that this assignment of error lacks

merit.

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Assignment of Error Number Five

In his fifth assignment of error, Defendant contends that the videotape of

C.T. was incompetent evidence which should not have been admitted at trial.

Defendant contends that a competency determination should have been conducted

by Joseph at the beginning of her interview with C.T., and the same criteria for

competency that applies in open court should apply to the interview at issue.

Defendant contends that had the interview been live testimony, it would not have

passed the standards of competency outlined in State v. Davis, 95-801 (La.App. 3

Cir. 12/6/95), 664 So.2d 821.5 Defendant further contends that the interview is

incompetent evidence under La.R.S. 15:440.4(a)(5) because Joseph‘s qualifications

are not set forth in the interview.6

In State v. Roberts, 42,417 (La.App. 2 Cir. 9/19/07), 966 So.2d 111, the

defendant was convicted of molestation of a juvenile. At trial, a videotape of the

child victim‘s interview regarding the alleged abuse was admitted. On appeal, the

defendant argued the trial court erred in admitting the videotape into evidence

because the interviewer, Latonya Hooker, was not present at trial, and the State did

5
In Davis, the victim was questioned by the prosecutor about her ability to tell the
difference between the truth and a lie, and the victim indicated that she understood the difference
between telling the truth and lying, that she knew she would get in trouble if she lied, and that
she must tell the truth in court.
6
Louisiana Revised Statutes 15:440.4 provides, in pertinent part:

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

....

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

20

not present evidence that Detective Moreno actually supervised the interview or

that she was qualified to do so. The second circuit noted that the defendant did not

argue at the trial level that the State failed to present evidence that Detective

Moreno was the actual supervisor of the interview or that the State failed to present

evidence that she was qualified to supervise the interview. Essentially, the

defendant argued that the State failed to present the proper foundation for

Detective Moreno‘s testimony as the person who supervised the interview. The

second circuit held that because it was not raised before the trial court, nor

addressed by the trial court, the issue was not properly before it on appeal.

In State v. Kennedy, 05-1981 (La. 5/22/07), 957 So.2d 757, reversed on

other grounds, 554 U.S. 407, 128 S.Ct. 2641 (2008), the defendant was convicted

of aggravated rape. At trial, he stipulated to the admissibility of the victim‘s

videotaped interview before it was played and expressly stated that he had no

objection to the tape. Even after cross-examination, the defendant still did not

object. On appeal, he argued the victim‘s lack of memory rendered her unavailable

to testify within the meaning of the Confrontation Clause; therefore, the videotaped

interview was inadmissible. The supreme court found the objection was clearly

waived.

Here, Defendant did not object at the time the videotaped interview was

admitted into evidence or played for the jury. Accordingly, this issue is not

properly before this court for review.

DECREE

For the forgoing reasons, Defendant‘s conviction is affirmed.

AFFIRMED.

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

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