State of Louisiana v. Lawrence Lafleur

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1082

STATE OF LOUISIANA

VERSUS

LAWRENCE LAFLEUR

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 90440-FA
HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
James T. Genovese, Judges.

CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR
RESENTENCING.

Trent Brignac
District Attorney
Julhelene E. Jackson
Assistant District Attorney
Post Office Drawer 780
Ville Platte, LA 70586
(337) 363-3438
COUNSEL FOR APPELLEE:
State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
Post Office Box 3752
Lake Charles, LA 70602-3752
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Lawrence Lafleur

Lawrence Lafleur
Pine Prairie Correctional Center
Post Office Box 650
Pine Prairie, LA 70576
IN PROPER PERSON

AMY, Judge.

The defendant was convicted of forcible rape and sentenced to thirty years at

hard labor. The defendant appeals. For the following reasons, we affirm the

defendant’s conviction, vacate his sentence, and remand for resentencing.

Factual and Procedural Background

In April of 1994, the victim, J.T., 1 was alone in a washateria in Mamou,

Louisiana, when she was approached by a masked man who demanded money.

Although J.T. attempted to give the man her washing money, he instead forced her

into the washateria bathroom and raped her. J.T. drove immediately to the Mamou

police and reported the rape. However, she was unable to identify her attacker.

A sexual assault examination was performed, and J.T.’s sexual assault

examination kit was forwarded to the Acadiana Criminalistics Laboratory.

Seminal fluid was identified on J.T.’s vaginal swabs, on some socks she had been

holding during the rape, and on J.T.’s pants. At the time, the lab was unable to

process DNA, so J.T.’s sexual assault examination kit was stored. Eventually, the

vaginal swabs were sent to a lab, Orchid Cellmark, in Dallas, Texas, where they

were processed for DNA. The results were sent back to the Acadiana

Criminalistics Laboratory for analysis. Thereafter, an analyst determined that the

DNA results from J.T.’s sexual assault examination kit matched a profile in the

DNA database. That profile belonged to the defendant, Lawrence Lafleur.

After the analyst notified the Mamou police about the match, the defendant

was arrested. While in custody, the defendant made several inculpatory statements

to the police and signed a permission to search form allowing the police to take a

blood sample. The defendant’s blood sample was sent to the Acadiana

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The victim’s initials are used pursuant to La.R.S. 46:1844(W).

Criminalistics Laboratory where testing confirmed that the defendant’s DNA

matched the DNA retrieved from J.T.’s vaginal swabs.

The State subsequently charged the defendant with forcible rape, a violation

of La.R.S. 14:42.1. After a trial, the defendant was found guilty of that charge.

Thereafter, the trial court sentenced the defendant to thirty years at hard labor.

The defendant appeals, asserting in his counseled brief that:

1. The trial court erred in admitting expert testimony based on a
report where the Appellant was not given the opportunity to confront
and cross-examine the person who prepared the report, in violation of
his constitutional rights of confrontation and cross-examination.

2. The trial court erred in sentencing the offender to a 30-year
sentence without articulating a factual basis for its sentence and for
failing to consider aggravating and mitigating circumstances as
required by La. Code Crim. P. art. 894.1.

3. The trial court committed an error patent by failing to give
offender credit for time served as part of his sentence.

The defendant has also filed a pro se brief, asserting as error therein:

1. The trial court erred by not allowing the jury to hear the original
statement of the defendant from November 7, 2011[,] in violation of
La.C.E. art. 901.

2. The trial court erred when it failed to order a mistrial when the
Assistant District Attorney, Marcus Fontenot, made a prejudicial
statement in the presence of the jury, in violation of La.C.Cr.P. art.
771 and 774.

3. The trial court erred when it failed to grant a motion for mistrial
when defense attorney Kelly Tate made an objection to a state actor
alleged prior crimes[sic], in violation of La.C.Cr.P. art. 771.

4. The trial court erred when it allowed expert witness, Caroline
Booker, to testify about facts that she had no personal knowledge of,
in violation of La.C.E. art. 703.

5. The trial court erred when it allowed the use of stipulations to
deprive the defendant of his right of confrontation, in violation of U.S.
Const. Amend. Six.

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6. The trial court erred when it allowed the State to file an
amended Bill of Information during the trial and denied the defense’s
motion for continuance, in violation of U.S. Const. Amend. Six.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. We observe one error patent which requires

vacating the defendant’s sentence and remanding for resentencing. The defendant

was convicted of forcible rape, a violation of La.R.S. 14:42.1. The sentencing

provisions of La.R.S. 14:42.1(B) state that “[w]hoever commits the crime of

forcible rape shall be imprisoned at hard labor for not less than five nor more than

forty years. At least two years of the sentence imposed shall be without benefit of

probation, parole, or suspension of sentence.” The record indicates that, when

asked what portion of the sentence was “without benefit,” the trial court stated that

“Well I think it is, it’s certainly the 85%, whatever it is, that’s what it is.”

As it is unclear how many years of the defendant’s sentence were actually

imposed without the benefit of probation, parole, or suspension of sentence, we

find that the defendant’s sentence is indeterminate. See La.Code Crim.P. art. 879.

Accordingly, we vacate the defendant’s sentence and remand for resentencing.2

Admissibility of Expert Testimony

The defendant asserts that the trial court erred in permitting Caroline

Booker, an analyst with the Acadiana Criminalistics Laboratory, to testify

concerning the results of DNA analysis that was conducted by another analyst.

The record reflects that, during her testimony, the State questioned Ms. Booker

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Having vacated the defendant’s sentence, we do not address his assignments of error
concerning his sentence.

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about DNA testing that was done on the vaginal swabs from J.T.’s sexual assault

examination kit. The defendant objected on the basis that the testing had been

done by Orchid Cellmark, a private laboratory, and that because Ms. Booker had

not done the testing herself, she had no knowledge of the testing and that the

testimony would violate the defendant’s Sixth Amendment right to confrontation.

The trial court overruled the objection.

Thereafter, Ms. Booker testified that Orchid Cellmark sent the data to her,

that she reviewed it, drew her own conclusions, and inputted the resulting profile

into the DNA database. According to Ms. Booker’s testimony, the male profile

obtained from the vaginal swabs matched a profile in the DNA database. Ms.

Booker testified that the matching profile belonged to the defendant. Thereafter,

the police obtained a blood sample from the defendant, and Ms. Booker performed

additional testing to confirm that the DNA profile obtained from the defendant’s

blood sample matched the profile obtained from the vaginal swabs from J.T.’s

sexual assault examination kit.

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the United

States Supreme Court held that the admission of “testimonial” hearsay violates the

Confrontation Clause found in U.S. Const. amend. VI. In Bullcoming v. New

Mexico, __ U.S. __, 131 S.Ct. 2705 (2011), the Court held that a forensic report

that contained a certification concerning the defendant’s blood alcohol level

constituted testimonial hearsay and that, because the testifying expert had neither

signed the certification, nor observed nor performed the test, the admission of the

report through the testimony of the expert violated the Confrontation Clause.

However, in Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221 (2012), the Supreme

Court found no violation of the Confrontation Clause where an expert testified that

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the defendant’s DNA profile matched a DNA profile which belonged to the

perpetrator of a sexual assault and which was developed by another non-testifying

expert. In State v. Bolden, 11-2435, pp. 4-5 (La. 10/26/12), 108 So.3d 1159,

1161-62, the Louisiana Supreme Court addressed the admissibility of such

testimony, stating:

No error under the Confrontation Clause occurs when a DNA expert
testifies that in his or her opinion the DNA profile developed from a
sample taken from defendant matches the DNA profile developed by
other, non-testifying technicians from biological samples taken from
the victim of a sexual assault if: the tests on the victim’s samples were
conducted before the defendant was identified as the assailant or
targeted as a suspect, [Williams, __ U.S. __], . . . the tests are
conducted by an accredited laboratory, . . . and the report of the test
results itself is not introduced as a certified declaration of fact by the
accredited laboratory.

Our review of the record indicates that the expert in this case, Ms. Booker,

testified that the defendant’s DNA profile matched the DNA profile developed by

other, non-testifying technicians. Ms. Booker testified that she performed

confirmatory testing after the DNA database initially indicated that the DNA

profile identified from the victim’s vaginal swabs was a match to the defendant’s

DNA profile. The record does not indicate that the defendant had been identified

as a suspect before the DNA database match. Further, the report of the test results

was not introduced into evidence at trial. Although Ms. Booker offered no

testimony or evidence concerning Orchid Cellmark’s accreditation status, our

reading of the record reveals that neither the Acadiana Criminalistics Laboratory

nor Orchid Cellmark’s accreditation status was at issue during the trial. In

particular, we observe that Ms. Booker was qualified as an expert without any

questioning concerning the Acadiana Criminalistics Laboratory’s accreditation

status and that the defendant did not cross-examine Ms. Booker on this issue. See

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also State v. Grimes, 11-984 (La.App. 4 Cir. 2/20/13), 109 So.3d 1007, writ

denied, 13-625 (La. 10/11/13), 123 So.3d 1216.

Further, Confrontation Clause errors are subject to a harmless error review.

State v. Hawkins, 96-766 (La. 1/4/97), 688 So.2d 473. In Hawkins, 688 So.2d at

478 (alteration in original), the supreme court addressed harmless error review,

stating:

An error is harmless if the verdict rendered was surely unattributable
to the error. La.Code Crim.P. art. 921. The correct standard of review
is as follows:

Confrontation errors are subject to a Chapman [v.
State of Cal., 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705
(1967)] harmless error analysis. Delaware v. Van
Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674
(1986). The correct inquiry is whether the reviewing
court, assuming that the damaging potential of the cross-
examination were fully realized, is nonetheless convinced
that the error was harmless beyond a reasonable doubt.
Id. at 684, 106 S.Ct. at 1438. Factors to be considered by
the reviewing court include “the importance of the
witness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.” Id. at 684,
106 S.Ct. at 1438.

State v. Wille, 559 So.2d 1321 (La.1990).

Our review of the record reveals that, even if the trial court erred in

permitting Ms. Booker to testify about the lab work done by Orchid Cellmark, that

error was harmless. The record indicates that, although Ms. Booker’s testimony

was important to the prosecution’s case, in that the defendant was identified as a

suspect because of the database match from the defendant’s DNA profile to the

unknown male profile obtained from J.T.’s vaginal swabs, the defendant made

several statements in which he confessed his involvement in the crime. In

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particular, the defendant corroborated several details of J.T.’s account of the events

of April 22, 1994. The defendant admitted that when J.T. told him that she didn’t

have any money, he told her “if you can’t give me no money then you know, you

know, let’s have sex[,]” and that he forced J.T. into the washateria bathroom.

Further, the defendant admitted that even though J.T. asked him to stop, he had

intercourse with her. Thus, based on our review of the record, even if the trial

court erred in admitting the testimony about the lab results obtained by Orchid

Cellmark, any such error would be harmless.

This assignment of error is without merit.

Recording of November 7, 2011 Interview

The defendant argues that the trial court erred in failing to have the

recording of his custodial statement taken on November 7, 2011, played for the

jury. According to the defendant, if the recording had been played, the jury would

have heard him make an allegedly exculpatory statement. Our review of the record

does not reveal that the defendant requested that the recording be played for the

jury. Additionally, the record indicates that Chief Greg Dupuis testified about the

defendant’s November 7, 2011 statement without any objection by the defendant

concerning the recording. We also observe that the transcript of the November 7,

2011 statement was not introduced into evidence and was not submitted to the jury.

Accordingly, we find that the defendant has failed to preserve this issue for review

and has waived this assignment of error. See La.Code Crim.P. art. 841.

Testimonial Remarks by the Prosecutor

The defendant also asserts that the trial court erred in failing to order a

mistrial after the prosecutor impermissibly made testimonial remarks during

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closing arguments.3 However, our review of the record indicates that the defendant

did not object to the allegedly impermissible statements. Thus, the defendant has

not preserved this issue for appellate review. See La.Code Crim.P. art. 841 and

State v. Williams, 45,755 (La.App. 2 Cir. 11/3/10), 54 So.3d 1129, writs denied,

10-2682, 10-2706 (La. 4/25/11), 62 So.3d 85, 89.

Other Crimes Testimony

The defendant contends that the trial court erred in failing to grant a mistrial

on the basis of impermissible statements concerning other crimes evidence elicited

from Chief Dupuis, one of the State’s witnesses.

According to the record, the following colloquy occurred during the State’s

questioning of Chief Dupuis:

Q: Well Chief Dupuis[,] did the defendant have a different version
of the facts on the November 8th statement?

A: Yes sir he did.

Q: What did he tell you at that time?

A: At that [time] he said that there was no drugs involved as he
stated earlier. . . .

The defense objected to this statement and speculated that a mistrial might

be appropriate. Outside the presence of the jury, the State argued that there was no

“other crime” because Chief Dupuis had stated that there were “no drugs involved”

(emphasis added). The defendant argued that the jury would make the inference

that at one time he had said there were drugs involved. The trial court overruled

the objection.

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The defendant specifically points to a statement made by the prosecuting attorney
during closing arguments about the prosecutor’s aunt’s propensity to dye her hair.

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Louisiana Code of Evidence Article 404(B) provides, in relevant part, that

“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.” Our review of

the record reveals that Chief Dupuis’ statement does not constitute evidence of any

“other crimes, wrongs, or acts[.]” Thus, we find no error in the trial court’s

decision to overrule the defendant’s objection. Further, the admission of other

crimes evidence is subject to a harmless error analysis, and, absent a reasonable

possibility that any erroneous admission contributed to the verdict, reversal is not

required. State v. Stevens, 11-175 (La.App. 3 Cir. 10/5/11), 74 So.3d 803, writ

denied, 11-2496 (La. 3/30/12), 85 So.3d 115. Even if the trial court’s admission of

the statement was erroneous, we find that, after reviewing the record, there is

sufficient evidence to support the defendant’s conviction. The record indicates

that, although J.T. was unable to identify her attacker, the defendant’s DNA profile

was consistent with the DNA profile recovered from the vaginal swabs in J.T.’s

sexual assault examination kit. Notwithstanding the DNA evidence, the defendant

made inculpatory statements wherein he corroborated the victim’s statement and

details of the crime. The defendant admitted that he attempted to rob the victim,

and that when she told him she didn’t have any money, he told her that they could

have sex instead. Further, the defendant admitted that he forced the victim into the

washateria bathroom and had intercourse with her even though she told him to

stop. Accordingly, we find that any potential error was harmless.

This assignment of error is without merit.

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Expert Testimony Concerning Receipt and Testing of Sexual Assault Examination
Kit in 1994

The defendant next complains that the trial court erred in permitting Ms.

Booker to testify as to events for which she had no personal knowledge. The

defendant specifically points to Ms. Booker’s testimony about the crime lab’s

processing of the sexual assault examination kit in 1994, including who submitted

and received the kit, and that semen was identified on the vaginal swabs from the

kit. Our review of the record indicates that, not only did the defendant fail to

object to this testimony, but that defense counsel questioned Ms. Booker about the

starting date of her employment at the crime lab and who actually received the

sexual assault examination kit. Accordingly, we find that the defendant has failed

to preserve this issue for appellate review. See La.Code Crim.P. art. 841.

Use of Stipulations

Additionally, the defendant argues that the trial court erred in permitting the

attorneys to stipulate about the testimony of former Assistant Chief of Police

Roland Reed, who passed away before trial. The defendant contends that this

stipulation violated his right to confrontation under U.S. Const. amend. VI. The

record indicates that the prosecutor and the defense stipulated that Asst. Chief

Reed delivered the sexual assault examination kit to the Acadiana Criminalistics

Laboratory in 1994. The record also indicates that, having stipulated to this

testimony, the defense did not object to it. Thus, we find that the defendant failed

to preserve this issue for appellate review. See La.Code Crim.P. art. 841.

As previously discussed, Confrontation Clause errors are subject to a

harmless error review. Hawkins, 688 So.2d 473. Although the stipulation

concerned evidence which ultimately led to the defendant’s identification as a

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suspect in the rape of J.T., the record indicates that the defendant admitted that he

forced J.T. into the washateria bathroom and raped her. Thus, even if the trial

court erred in allowing the stipulation, we find that any such potential error was

harmless.

This assignment of error is without merit.

Amended Bill of Information

The defendant asserts that the trial court erred in permitting the State to file

an Amended Bill of Information and in denying the defendant’s motion for

continuance. The record indicates that, immediately before the start of voir dire,

the State moved to file an Amended Bill of Information which changed the date of

the alleged offense from April 24, 1994, to April 22, 1994. The defendant objected

to the amendment and, on the basis that the amendment might prejudice the

defendant, the defense moved for a continuance. The trial court permitted the

amendment and denied the motion for continuance.

In State v. Williams, 44,418, p. 8 (La.App. 2 Cir. 6/24/09), 15 So.3d 348,

353-54, writ denied, 09-1746 (La. 3/26/10), 29 So.3d 1250, the second circuit

addressed the State’s authority to amend indictments, stating:

The prosecutor has the authority under La. C. Cr. P. art. 487 to
make substantive amendments to an indictment at any time before the
beginning of trial, subject to the defendant’s right under La. C. Cr. P.
art. 489 to move for a continuance if the amendment led to his
prejudice. State v. Crochet, 05–0123 (La. 6/23/06), 931 So.2d 1083.
The purpose of a continuance is to protect defendant from surprise or
prejudice which may result from such amendment. State v.
Cleveland, 25,628 (La.App. 2d Cir. 1/19/94), 630 So.2d 1365. When
the state requests an amendment to the bill of information before the
first prospective juror is called, the defendant’s remedy is a motion for
continuance, not an objection to the amendment. State v. Ignot,
29,745 (La.App. 2d Cir. 8/24/97), 701 So.2d 1001, writ denied, 99–
0336 (La. 6/18/99), 745 So.2d 618.

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Accordingly, the defendant’s remedy was to seek a continuance, not an objection

to the amendment to the bill of information. Granting or denying a continuance is

within the broad discretion of the trial court. State v. Martin, 93-285 (La.

10/17/94), 645 So.2d 190, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252 (1995).

Absent an abuse of that discretion, the trial court’s decision will not be overturned.

State v. Ray, 42,096 (La.App. 2 Cir. 6/27/07), 961 So.2d 607. Our review of the

record indicates that defense counsel only posited that the amendment “may

prejudice the defendant[,]” and offered no specific explanation of the possible

prejudice. Thus, we find no abuse of discretion on the part of the trial court in

permitting the amendment and denying the defendant’s motion for continuance.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Lawrence

Lafleur, for forcible rape is affirmed. The defendant’s sentence is vacated and the

matter is remanded for resentencing.

CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED FOR
RESENTENCING.

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