State of Louisiana v. Vernon Mullins

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-260

STATE OF LOUISIANA

VERSUS

VERNON MULLINS

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 70043
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.

AFFIRMED.

Don M. Burkett
District Attorney
Anna L. Garcie
Assistant District Attorney
Post Office Box 1557
Many, Louisiana 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

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

CONERY, Judge.

Defendant, Vernon Mullins, was indicted November 14, 2011, for the

aggravated rape of J.W., 1 a violation of La.R.S. 14:42. A jury trial commenced

September 4, 2013. On September 6, 2013, Defendant was found guilty as

charged. Defendant was sentenced on December 2, 2013, to life imprisonment

without the benefit of probation, parole, or suspension of sentence. Defendant has

perfected a timely appeal. For the following reasons, we affirm Defendant’s

conviction for aggravated rape.

FACTS

Between the dates of August 2010 and August 2011, Defendant had sexual

intercourse with J.W., who was allegedly prevented from resisting because she

suffers from a mental infirmity because of an IQ of seventy or below. Defendant

was charged and convicted of aggravated rape.

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 reviewing the record, we find that

there are no errors patent.

ASSIGNMENTS OF ERROR

On appeal, Defendant asserts the following assignments of error:

ASSIGNMENT OF ERROR NO. 1: The trial court violated
Appellant’s constitutional rights to confront witnesses against him by
allowing hearsay testimony and documents into evidence based on
information from persons who were not subject to cross examination.

ASSIGNMENT OF ERROR NO. 2: The trial court erred by allowing
expert testimony where the State failed to comply with La. C.E.
705(B).

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The victim’s initials are used throughout this opinion to protect her identity, as required
by La.R.S. 46:1844(W).

ASSIGNMENT OF ERROR NO. 3: The trial court abused its
discretion by allowing a letter to be entered into evidence where the
basis of the content of the letter was hearsay not subject to any
exception.
DISCUSSION

Defendant was charged with the aggravated rape of the victim, J.W.

Louisiana Revised Statutes 14:42, in pertinent part, defines the offense as:

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:

....

(6) When the victim is prevented from resisting the act because
the victim suffers from a physical or mental infirmity preventing such
resistance.

....

C. For purpose of this Section, the following words have the
following meanings:

....

(2) “Mental infirmity” means a person with an intelligence
quotient of seventy or lower.

In this case, as provided in La.R.S. 14:42(C)(2), the State alleged, and had to prove

beyond a reasonable doubt, that the victim had a mental infirmity with an IQ of

seventy or below. Defendant contends that this element of the offense was not

proven and thus his conviction should be vacated and this case remanded to the

trial court. We disagree with Defendant and affirm his conviction.

Assignments of Error

All of Defendant’s assignments of error relate to his claim that he was

deprived of his constitutional rights of confrontation and cross-examination. In his

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first assignment of error, Defendant argues that the trial court violated his

constitutional right to confront his accusers. In order to meet its burden of proving

that the victim’s IQ was seventy or below, the State presented the testimony of

Doctor Mark Vigen, accepted by the court as an expert in psychology with a

subspecialty in forensic psychology. Defendant argues that Doctor Vigen did not

perform the actual IQ tests given to the victim and that he should have been given

the opportunity to cross-examine the technician, Jeri Jones, who actually

administered the IQ tests. Defendant argues that the testimony of Doctor Vigen is

hearsay and thus violates the Confrontation Clause. Defendant cites Bullcoming v.

New Mexico, 131 S.Ct. 2705 (2011), for the proposition that “even information that

is from a typically reliable source, while it may be deemed reliable, it must also [be]

subjected to the ‘crucible of cross-examination.’” Defendant further argues that,

“the Bullcoming court in addressing the confrontation clause stated, ‘[a]ccordingly,

the Clause does not tolerate dispensing with confrontation simply because the court

believes that questioning one witness about another’s testimonial statements

provides a fair enough opportunity for cross-examination.’”

Defendant argues, in accordance with Bullcoming, that the testimony of the

technicians who actually administered the IQ tests to the victim must be presented

at trial and subjected to confrontation and cross-examination. Doctor Vigen,

however, gave direct evidence of his expert opinion at trial and his testimony was

subject to extensive cross-examination as to the nature and reliability of the tests

administered under his supervision. The test results were used solely for the

purpose of explaining the assumptions on which his specific opinion rests.

Williams v. Illinois, 132 S.Ct. 2221 (2012). The test results were given to Doctor

Vigen, who ultimately interpreted the results and rendered his own expert opinion

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in accordance with ordinary practice. Doctor Vigen then opined that the victim

had an IQ of sixty-three. See Id.

Louisiana Code of Evidence Article 702 provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(1) The expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods;
and
(4) The expert has reliably applied the principles and methods to the
facts of the case.

Louisiana Code of Evidence Article 703 states:

The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to
him at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.

This court has consistently held that “[A]n expert witness may testify based on

information obtained from others and the method of testing affects only the weight

to be afforded the expert’s conclusion.” State v. Brossette, 634 So.2d 1309

(La.App. 3 Cir. 1994).

Doctor Vigen admittedly did not administer the IQ tests to the victim. He

testified at trial and clarified on both direct and cross-examination that he met the

victim before the tests were administered and spoke to her after the tests were

administered. After reviewing the tests, Doctor Vigen formulated his own expert

opinion. He appeared, testified, and was cross-examined extensively on the

reliability and basis for his opinions. Louisiana legislation and jurisprudence allow

for such expert testimony to occur. See La.Code Evid. arts. 702 & 703; Brossette,

634 So.2d 1309.

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As the IQ of the victim is an element of the crime charged, Doctor Vigen’s

expert opinion aided the jury in arriving at its verdict. His opinion was based on

sufficient facts, was based on reliable principles and methods, and those reliable

principles and methods were applied to the facts of the case, with which he was

very familiar. Thus, we find that Defendant’s analysis of Bullcoming is

inapplicable to the facts of this case and this assignment of error lacks merit.

In his second assignment of error, Defendant continues his argument that the

trial court erred by allowing Doctor Vigen’s expert testimony when the State failed

to comply with La.Code Evid. art. 705(B). Louisiana Code of Evidence Article

705(B) provides, “Criminal cases. In a criminal case, every expert witness must

state the facts upon which his opinion is based, provided, however, that with

respect to evidence which would otherwise be inadmissible such basis shall only

be elicited on cross-examination.”

During direct examination at trial, the State questioned Doctor Vigen as to

general procedures typical of IQ tests. Doctor Vigen went into great detail in his

explanation. Following his explanation, the State asked, “And what was her full

scale IQ if having taken this test and someone said what is [J.W.]’s IQ, what would

it be Dr. Vigen?” Doctor Vigen replied, “sixty-three.”

Following Doctor Vigen’s pronouncement of his expert opinion regarding

the particular victim’s IQ in this case, the State asked whether Doctor Vigen had

been present during the entire testing procedure administered to the victim. Doctor

Vigen said that he had not been present during the testing procedure and did not

administer the tests. However, he explained that he spoke with the victim before

and after the tests. Doctor Vigen stated that a diagnostician who performs these

tests full-time performed the tests on the victim and “the tests are very particular in

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the sense that you have to follow a formal format. It has to be done the same way

under the same conditions so that we know we’re getting accurate results.” Doctor

Vigen further stated that the technician who performed the tests on the victim

graded the results which were then “double checked by a second technician.”

Doctor Vigen explained that this procedure was typical of all IQ tests. On cross

examination, the defense questioned Doctor Vigen as to who had actually

performed the tests and focused on the facts specific to the testing of this particular

victim.

In accordance with La.Code Evid. art. 705(B), on direct examination, the

State solicited the information regarding the generic procedures of the tests upon

which Doctor Vigen’s opinion was based. After describing the procedures in detail,

Doctor Vigen stated that in his opinion, the victim’s IQ was sixty-three. In

accordance with the article, the State did not question Doctor Vigen regarding the

specific facts upon which his opinion was based once it was established that

Doctor Vigen was not present for the entirety of the testing. On cross-examination,

the defense questioned Doctor Vigen extensively on the types of tests used and the

reliability of the IQ tests administered, again in accordance with La.Code Evid. art.

705(B). Doctor Vigen based his expert opinion on his training and experience and

in so doing, he relied on the standard IQ tests administered by his technician in

accordance with customary and ordinary procedures used in his profession. He

went on to explain that his practice was analogous to that of other experts stating,

Sort of like a radiologist. A radiologist doesn’t really take the
pictures of the lungs or actually operate the CAT scan but that data is
done-- is collected by a specialist; a radiological technician and then
the technician forwards the results to the radiologist. So that would be
an analogy.

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We find that Doctor Vigen’s testimony was admissible under the Louisiana

Code of Evidence and proper cross-examination was conducted under La.Code

Evid. art. 705(B). Thus, this assignment of error lacks merit.

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

allowing the State to introduce Doctor Vigen’s letter into evidence, as Defendant

alleges that the letter is hearsay. We disagree with Defendant and conclude that

the trial court did not err in allowing Doctor Vigen’s letter to be admitted into

evidence.

Doctor Vigen’s letter stated, in pertinent part:

[J.W.] earned a WAIS-IV Full Scale IQ of 63, which places her at the
1st percentile of measured intelligence in the Extremely Low range.
Her Verbal Comprehension was measured at 66 and her Perceptual
Reasoning at 73. These scores fall at the 1 st and 4th percentile
respectively in the Extremely Low and Borderline ranges. [J.W.]’s
Working Memory score was also measured at 63, again the 1 st
percentile; her Processing speed was measured at 71 or at the 3 rd
percentile. [J.W.] reported that she gave her best effort on the tasks
asked of her, which was confirmed by observation.

At trial, before Doctor Vigen’s letter was offered into evidence, the State

questioned Doctor Vigen as to his opinion regarding the victim’s IQ, to which he

responded, “sixty-three.” Doctor Vigen’s in court testimony was offered by the

State to prove an element of the crime, the diminished capacity and consequent

inability of the victim to lawfully consent to the sexual acts perpetrated on her by

Defendant based on an IQ of seventy or below, in this case sixty-three. His

opinion was then subjected to rigorous cross-examination.

“‘Hearsay’” is a statement, other than one made by the declarant while

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

the matter asserted.” La.Code Evid. art. 801(C) (emphasis added). In this case, the

statement was introduced while Doctor Vigen, the declarant, was testifying at trial.

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As such, Doctor Vigen was subject to cross-examination regarding the contents of

the letter, the testing procedures, and his opinion that the victim’s IQ is sixty-three.

Thus, by definition, Doctor Vigen’s letter is not hearsay. This assignment of error

lacks merit.

CONCLUSION

We find that the trial court did not err in allowing Doctor Vigen to testify, to

give his opinion as to the victim’s IQ, and in allowing Doctor Vigen’s letter to be

admitted into evidence. We find that Defendant’s assignments of error lack merit

and affirm Defendant’s conviction in its entirety.

AFFIRMED.

This opinion is not designated for publication. Uniform Rules—Courts of

Appeal, Rules 2–16.3.

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