State of Louisiana v. Joenell Rubin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-456

STATE OF LOUISIANA

VERSUS

JOENELL RUBIN

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 12-K-1661-C
HONORABLE ALONZO HARRIS, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John E. Conery, Judges.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

AFFIRMED WITH INSTRUCTIONS.

Edward John Marquet
Attorney at Law
405 West Main Street, Suite 104
Lafayette, Louisiana 70501
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Joenell Rubin

Earl B. Taylor
District Attorney – 27th Judicial District Court
Jennifer Ardoin
Assistant District Attorney – 27th Judicial District Court
Post Office Drawer 1968
Opelousas, Louisiana 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On July 19, 2012, Defendant, Joenell Rubin, was charged by grand jury

indictment with the May 21, 1988, first degree murder while in the commission of

the aggravated rape of Brenda Dupont, in violation of La.R.S. 14:30(A)(1).

On January 27, 2016, a 10-2 jury found Defendant guilty of the first degree

murder of Brenda Dupont. On February 18, 2016, Defendant was sentenced to life

imprisonment at hard labor without benefits and with credit for time served from

the date of arrest.

Defendant now appeals his conviction and sentence, alleging two errors.

For the following reasons, we affirm Defendant’s conviction and sentence. We

instruct the trial court to inform Defendant of the provisions of La.Code Crim.P.

art. 930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of the opinion and to file written proof in the record that Defendant

received the notice.

FACTS AND PROCEDURAL HISTORY

Defendant’s jury trial began on January 25, 2016. The State’s first witness

was Ms. Linda Nicholas, the victim’s sister. Ms. Nicholas testified that on May

21, 1988, her sister, the victim Brenda Dupont, was living in an apartment that was

only about ten feet directly behind her own apartment. Ms. Nicholas testified that

on the afternoon before her sister was murdered, Defendant was at Ms. Nicholas’

home visiting her daughter, Michelle. Ms. Nicholas stated that she had an

altercation with Defendant and kicked him out of her house because he had

brought a knife to her house. Defendant claimed that he was just “playing” with

the knife, but Ms. Nicholas said, “We don’t play.” She testified that she last saw

Brenda that night before Brenda went back to her apartment, around 6:30 or 7:00

p.m.

Ms. Nicholas testified that the following morning, she made breakfast and

sent her six-year-old son to wake Ms. Dupont, but that they were unable to rouse

her. Ms. Nicholas got worried when there was no response by 11:30 a.m. She

eventually called the police, who discovered Ms. Dupont’s body and would not

allow Ms. Nicholas to enter the apartment.

Ms. Nicholas stated that she knew Defendant because he went to school with

her children and liked her daughter, Michelle, but that she did not always allow

him to visit because he liked to fight with her sons. She testified that at the time of

her sister’s murder, she was living with her children and a man named Dicker Ray

Chavis.

Ms. Nicholas testified that she had not seen anyone go into or out of her

sister’s apartment the evening she died, noting that Brenda was married but was

separated from her husband. Ms. Nicholas testified that although she slept around

ten or twelve feet from the side door to her sister’s apartment, she did not hear

anything because the weather was stormy that night.

The State’s next witness was Rene Speyer, an employee of the St. Landry

Parish District Attorney’s Office who was previously employed by the St. Landry

Parish Sheriff’s Office for thirty-eight years, including at the time of Ms. Dupont’s

death. Mr. Speyer videoed the crime scene in 1988, and that video was presented

to the jury without sound as State’s Exhibit 2. Mr. Speyer testified that the video

and a photograph showed the area between Ms. Dupont’s apartment and the fence

behind it. There was damage to the vegetation and footprints on the side of the

apartment, indicating that the point of exit was the bedroom window near where

the footprints were discovered, as the bedroom door had been locked from the

inside.

Defendant’s cross-examination of Mr. Speyer was mainly asking him to

identify specific items that can be seen on the video. However, Mr. Speyer

2

acknowledged that he never determined an entry point into the apartment, that he

did not recall seeing any windows which appeared to be pried open or broken, and

that most of the windows had undisturbed items on the windowsills. Mr. Speyer

also noted that the only area of the house, other than the bed, that appeared to have

been disturbed was a dresser drawer in the bedroom, which was pulled out and

overturned onto the floor.

Sergeant Loretta Etienne, a twenty-two year veteran of the Opelousas Police

Department who is the current evidence custodian, next took the stand. She

testified that evidence is secured in a combination lock vault, but that the evidence

custodian is not responsible for keeping investigative reports. Sergeant Etienne

noted that she has only been the department’s evidence custodian for about six

months, and that she had not even joined the force yet at the time of Brenda

Dupont’s death.

The State next called Dr. Dawn Young, a professor at Bossier Parish

Community College and former Lab Director at the North Louisiana Forensic

Pathology Lab. Dr. Young was also the Deputy Coroner of Bossier Parish for

twelve years and the Coroner for four years, from 1996-2000. She was also Dr.

George McCormick’s 1 assistant for twenty-two years, and was accepted as an

expert in Medical/Legal Death Investigation. Dr. Young was Dr. McCormick’s

assistant during the autopsy of the victim Brenda Dupont on May 21, 1988. Dr.

Young testified that the victim had defensive wounds on both hands. Additionally,

the victim had incisions on her chest, neck, and upper arms, as well as a potential

bite mark. She also testified that a vaginal swab was collected which contained

semen, but stated they did not do any testing on the semen to try and determine

potential donors.

1
Dr. George McCormick was the coroner who performed the autopsy on Ms. Dupont. He
was deceased at the time of trial.
3

Dr. Young noted smear samples taken from the vaginal, nasal, oral, and

rectal cavities, were tested, and that sperm was found in the vaginal smear, as well

as occasional degenerative sperm heads being present in the oral and rectal smears.

Dr. Young also testified she could not conclusively determine whether or not the

victim was raped or had consensual sex, specifically stating that “[t]ypically you

can’t [determine rape] from an external examination” of a woman of child-bearing

years. She further noted that after Dr. McCormick performed the autopsy, the

evidence recovered was submitted to Patrick Lane with the State Police Crime

Lab.

Mr. Lane, a thirty-eight year employee and crime lab analyst of the

Louisiana State Police Crime Lab (LSPCL), was the next witness to testify. Mr.

Lane testified that he recalled receiving evidence from Dr. McCormick and

subsequently transported those items to the LSPCL for testing. He also

enumerated all of the evidence that was submitted to the LSPCL in this case. Mr.

Lane also went through multiple pages of reports describing fingerprint analysis

done by the LSPCL around the time of Ms. Dupont’s death, noting that over

twenty people’s fingerprints were tested against the prints in the apartment. Mr.

Lane then confirmed that State’s Exhibit 7A appeared to be a fingerprint analysis

form which indicated Defendant’s fingerprints were tested on May 25, 1988.

Defendant’s fingerprints did not match any of the prints taken from the apartment.

The next witness to take the stand was Mr. Jude Victorian, who spent

roughly ten years as an employee of the Opelousas Police Department. Mr.

Victorian testified that he brought photographs of the bite marks on the victim to a

Dr. Bill Lagattuta in Washington, D.C., along with a cast of Clint Thompson’s2

teeth. Dr. Lagattuta, an expert in odontology, did not believe Mr. Thompson’s

2
Clint Thompson was a suspect during the initial investigation. He was deceased by the
time Defendant was brought to trial.
4

teeth matched the marks on the victim. Mr. Victorian further testified that he could

not recall specifics of what he did during the course of the investigation or who he

interviewed, but that he would have written reports that would have been included

in the case file.

The State’s next witness was Mr. Ronnie Trahan, a St. Landry Parish

Sheriff’s Office employee who was previously with the Opelousas Police

Department for twenty-eight years, including May 1988. Mr. Trahan testified that

a few years after Ms. Dupont’s death, he spoke with Dr. Lagattuta at his office in

Baton Rouge while retrieving evidence that was still in Dr. Lagattuta’s possession.

Mr. Trahan testified that Dr. Lagattuta informed him that he was never able to

make a match between the photos submitted and Clint Thompson’s teeth. Mr.

Trahan stated that he did not actually retrieve any evidence from Dr. Lagattuta, as

the evidence had already been returned to Mr. Victorian, and that he did not recall

writing a report on his trip for the case file. Mr. Trahan remembers speaking with

Defendant and Mr. Dicker Chavis during the investigation, but is not clear who

else, if anyone, he spoke to in connection with this case.

The State then called Mr. George Schiro, the lab director at Scales

Biological Laboratory in Mississippi, who previously worked for the Acadiana

Crime Lab, the Louisiana State Police Crime Lab, and the Jefferson Parish

Sheriff’s Office Crime Lab. It was stipulated that Mr. Schiro is an expert in

forensic science with specialties in serology and DNA analysis. Mr. Schiro

testified that “[i]n 1988 there were no public crime laboratories doing DNA in the

state and I’m not sure if there was a private lab called Gentest but I don’t recall if

they had started in 1988.” Mr. Schiro noted that in 1988, DNA testing was not

commonly used by Louisiana law enforcement and that they were essentially

limited to blood-typing and cross-referencing a small number of genetic markers.

Mr. Schiro testified that in 2012 during the cold case investigation, they discovered

5

a DNA profile in the vaginal swab taken from the victim, which was subsequently

found to be a match to the DNA profile provided by Defendant. He testified that

“the probability of selecting an unrelated individual was approximately one in

thirteen billion.” He further testified that by testing the Y-chromosome of the

seminal fluid found, the chance of incorrectly identifying Defendant was about one

in three hundred billion, barring identical twins.

Mr. Schiro testified, much like Dr. Young, that there was no way to

conclusively tell whether the sexual intercourse between Defendant and Brenda

Dupont was consensual or rape. Mr. Schiro noted that, based on the presence of

acid phosphates and a protein called P30, they determined that there was seminal

fluid on the rectal swabs, however, there were no spermatozoa present, whereas

they found sperm heads on the vaginal swab. Mr. Schiro noted that studies have

found sperm can survive for as long as nineteen days in the female cervix, and

specifically noted that “there’s really no, no way to time when the sperm got there;

how long it’s been there or anything like that.” Mr. Schiro also acknowledged that

there were other items which had been tested for DNA evidence:

We had already run the other test on some of those other items
that had generated profiles and those were put into CODIS. So, we
already had unknown profiles that were in CODIS. Just because they
didn’t match anyone we, there [sic] was no point in going further and
doing the Y testing unless we had someone to compare them to.

Mr. Doris Hoffpauir, an employee of the St. Tammany Parish Coroner’s

Office and former employee of the Louisiana State Police Crime Lab, was

stipulated to be a DNA expert. She testified that the only sample she was asked to

match in this case was the profile that matched Defendant.

Next, Dr. Christopher Tape took the witness stand. The parties stipulated

that Dr. Tape is a medical doctor with a specialty in forensic science. Dr. Tape

agreed with the original autopsy report of Dr. McCormick and confirmed that the

cause of death was the thirty-one stab wounds/incisions found on the victim’s

6

body. He also agreed that the numerous wounds to the victim’s hands were

consistent with defensive wounds. With regard to the bite mark found on the

victim, Dr. Tape acknowledged that trying to make a match based on bite marks is

rarely used, as it is very difficult to make said match or to exclude someone as

having made the mark, noting that “[a] lot of our teeth are the same.” There was

also a discussion of some of the medication reported in the autopsy to be in the

victim’s system at the time of her death, namely phenothiazines, a type of

tranquilizer used as antipsychotic medication used to treat schizophrenia and other

mental disorders. Dr. Tape testified that none of the medicines in the victim’s

system worried him, as they were all within therapeutic ranges.

The next witness to take the stand was Mr. Greg Leblanc, a Lieutenant and

supervisor of investigative services with the Opelousas Police Department.

Lieutenant Leblanc testified that he obtained the search warrant for Defendant’s

DNA to confirm the profile match from CODIS.

The State then called Sergeant Crystal Leblanc of the Opelousas Police

Department’s investigations unit. Sergeant Leblanc testified that she personally

obtained the DNA sample from Defendant and sealed it for evidence before giving

the bag containing the sample to Sergeant Jody White, the evidence custodian, who

in turn transported the evidence to the Acadiana Crime Lab.

The State’s next witness was Ms. Sybil Guidry, who previously spent thirty

years working in the “Latent Section” of the Louisiana State Police. Ms. Guidry

was stipulated to be an expert in “Forensic Science with a specialty in fingerprint

identification.” Ms. Guidry testified that she did all of the fingerprint comparisons

in this case when the murder originally occurred in 1988 and then had them peer-

reviewed by a coworker. She also testified that the only identification they were

able to make, after testing twenty-six sets of known prints against the prints

recovered from the crime scene, was Monica Bergeron, the victim’s daughter. She

7

confirmed that none of the prints she tested from the crime scene matched

Defendant’s prints.

The State then recalled Ronnie Trahan in order to introduce an audio

recording of a statement Defendant gave on May 23, 1988, to Mr. Trahan and

Detective Willie Smith, who had since died. In this initial interview, Defendant

denied even knowing the victim, even though he had been present at Ms. Nicholas’

home the afternoon before the victim was murdered. The recording was played for

the jury. Mr. Trahan noted that there were scratch marks on Defendant’s neck at

the time of the interview, but he did not recall ever trying to confirm that those

scratches came from the victim’s niece, Stephanie Keys, as Defendant claimed

they did. He also did not recall whether he took photographs of the scratches. Ms.

Keys denied that she had ever scratched the defendant.

The next witness to take the stand was Dwain Grimmett, a private

investigator who retired in 2013 after twenty-two years as a member of the

Opelousas Police Department. Mr. Grimmett testified that he was assigned this

case as a cold case in 2012, at which time he retrieved all of the information the

department had on the case. Mr. Grimmett testified that he could never locate the

original paper file in this case, as parts of the original case file had been lost or

discarded, but he located videos, recordings, and physical evidence. Mr. Grimmett

testified that he has never been able to find the entirety of the original case file.

The State then introduced a video of Mr. Grimmett’s March 23, 2012, interview

with Defendant wherein Defendant again denied ever having sex with the victim.

The State also introduced a video of Mr. Grimmett’s March 29, 2012, interview

with Defendant that was also played for the jury. Defendant once again denied

ever having sex with the victim. Mr. Grimmett testified that Defendant stated that

he “had no idea who the victim was. He didn’t know her.” Mr. Grimmett was

shown photos of the victim and the crime scene and testified that based on his

8

twenty-two plus years’ experience in law enforcement, it made him immediately

think the victim was raped. The scene did not look anything like a consensual act

had taken place.

Mr. Grimmett also testified that he interviewed a Ms. Irma Robinson in

April 2012, and that she had previously given a statement in 1988 that she was

across the street from the victim’s residence at Papillion’s Grocery at three o’clock

in the morning on May 21, 1988, heard a woman screaming, and called 9-1-1,

which put her on hold. He could not confirm whether or not Ms. Robinson called

9-1-1, as there were no phone records going back far enough to confirm. He also

specifically noted that he never requested that Mr. Schiro test any of the other

remaining evidence from the crime scene, including the victim’s clothing, to see if

there was DNA that matched Defendant on any of those items.

The State’s final witness was Jean Harrison (inadvertently spelled “Gene” in

the transcript), an investigator for the St. Landry Parish District Attorney’s Office

who previously spent twenty-five years with the Opelousas Police Department.

Ms. Harrison testified that she was the first officer on the scene. She testified that

she thought the exit point was the window on the back of the house as all the doors

on the home were locked from the inside. Ms. Harrison stated that after the

landlord gave her permission to kick in the door, Mr. Dicker Chavis was the one

who actually kicked in the door. Ms. Harrison testified that she could see there

was blood on the bed and on the wall, and the victim was dead on the floor with a

pillow on her face.

The first witness called by Defendant was Mr. Jim Churchman, who retired

from the Louisiana State Police Crime Lab after thirty-eight years. Mr.

Churchman testified that as the physical evidence custodian, he had received

evidence that led to his deciding that another suspect was responsible for the

murder and that the evidence would resolve the case. After this conclusion, Mr.

9

Churchman decided to return any untested evidence to the Opelousas Police

Department, informing the Chief of Police of his decision via letter. 3 Mr.

Churchman, however, testified that knowing what he knows now about the

additional evidence, scientific reliability, and testimony presented to the jury, he

would not have made the same decision; however, that decision was “the best

decision based on the information that was before [him] at that time.”

The next witness to take the stand was Howard Zerangue, Jr., who was the

Chief of Police in Opelousas during the initial investigation of this case. Mr.

Zerangue testified to his limited involvement in the case, and that the lead

detective would have been responsible for the case file.

After the aforementioned extensive testimony presented to the jury and

closing arguments, the jury returned a 10-2 verdict of guilty of first degree murder

during the commission of an 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 is one error patent.

The court minutes of sentencing indicate the defendant was provided written

notice of his right to seek post-conviction relief. However, this notice does not

appear in the record and the trial court clerk’s office verified that no written notice

was filed in the record. The sentencing transcript contains no mention of the

written notice. In a similar situation, this court required the notice to be given. See

State v. Richard, 94-1263 (La.App. 3 Cir. 5/17/95), 657 So.2d 258. Thus, we

instruct the trial court to inform Defendant of the provisions of La.Code Crim.P.

3
This letter, not in evidence, stated that Dr. Lagattuta had conclusively identified the bite
marks on the victim as having been made by another suspect, Mr. Clint Thompson, and was the
subject of extensive pre-trial litigation, with the supreme court ultimately ruling that it was
inadmissible hearsay. See State v. Rubin, 15-1753 (La. 11/6/15), 183 So.3d 490.

10

art. 930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of this opinion and to file written proof in the record that Defendant

received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265,

writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENTS OF ERROR

On appeal, Defendant asserts the following as error:

1. The circumstantial evidence presented failed to support a
conviction for First Degree Murder and/or Aggravated Rape.

2. The trial court erred in admitting an exculpatory and self-serving
statement of the defendant offered by the State which was
inadmissible hearsay.

DISCUSSION

Assignment of Error One

In his first assignment of error, Defendant alleges that the evidence was

insufficient to support his conviction. The insufficiency of evidence analysis is

well-established. The supreme court recently stated in State v. Reed, 14-1980, p.

20-21 (La. 9/7/16), ___ So.3d ___:

In reviewing the sufficiency of the evidence to support a
conviction, an appellate court in Louisiana is controlled by the
standard enunciated by the United States Supreme Court in 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). Applying the Jackson
standard, the appellate court must determine the evidence, viewed in
the light most favorable to the prosecution, was sufficient to convince
a rational trier of fact that all of the elements of the crime had been
proved beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct.
at 2789; Captville, 448 So.2d at 678.

To obtain a conviction for first-degree murder in this case, the
State was required to prove beyond a reasonable doubt that defendant
killed a human being when he had the specific intent to kill or to
inflict great bodily harm upon more than one person. La. Rev. Stat.
14:30(A)(3). Specific intent may be inferred from the circumstances
surrounding the offense and the conduct of the defendant. La. Rev.
Stat. 14:10(1); State v. Butler, 322 So.2d 189, 192–93 (La. 1975).
Specific intent to kill may also be inferred from a defendant’s act of
pointing a gun and firing at a person. State v. Williams, 383 So.2d
369, 373 (La. 1980); State v. Procell, 365 So.2d 484, 492 (La. 1978).

11

A panel of our court also most recently stated in State v. Smith, 16-188, p. 6

(La.App. 3 Cir. 10/12/16), ___ So.3d ___:

In State v. Dotson, 04–1414, p. 1 (La.App. 3 Cir. 3/2/05),
896 So.2d 310, 312, (quoting State v. Chesson, 03–606, p. 5
(La.App. 3 Cir. 10/1/03), 856 So.2d 166, 174, writ denied, 03–
2913 (La. 2/13/04), 867 So.2d 686), this court has explained the
insufficiency analysis as follows:

In considering questions of sufficiency of the
evidence, a reviewing court must consider the
evidence presented in the light most favorable to the
prosecution and consider whether a rational trier of
fact could have concluded that the essential elements
of the offense were proven beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979). The reviewing court
defers to rational credibility and evidentiary
determinations of the trier of fact. State v. Marcantel,
00–1629 (La. 4/3/02), 815 So.2d 50.

Further, our court has provided:

In State v. Jackson, 14–9, p. 4 (La.App. 3 Cir. 6/18/14), 146
So.3d 631, 634–35, writ denied, 14–1544 (La. 2/27/15), 159 So.3d
1066, this court noted:

It is well settled that 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. An appellate
court should not second guess the credibility conclusions
of the trier of fact, but rather, should defer to the rational
credibility and evidentiary determinations of the jury. Id.
The appellate court may impinge on the fact finder’s
discretion and its role in determining the credibility of
witnesses “only to the extent necessary to guarantee the
fundamental protection of due process of law.” State v.
Mussall, 523 So.2d 1305, 1310 (La.1988). As stated
herein, upon viewing evidence in the light most favorable
to the prosecution, the question for the appellate court 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.’” State v. Strother,
09–2357, p. 10 (La. 10/22/10), 49 So.3d 372, 378
(quoting Jackson [v. Virginia], 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 [1979]).

In those cases relying on circumstantial evidence,
the fundamental principle of review means that when a
jury “reasonably rejects the hypothesis of innocence
presented by the defendant’s own testimony, that
hypothesis falls, and the defendant is guilty unless there

12

is another hypothesis which raises a reasonable doubt.”
State v. Captville, 448 So.2d 676, 680 (La.1984).
Id. at 8.

When reviewing a jury’s conviction based on circumstantial evidence, the

supreme court recently reiterated that “in effectuating the Jackson standard, [the

court] has found that ‘[w]hen a case involves circumstantial evidence, and the jury

reasonably rejects the hypothesis of innocence presented by [defendant], that

hypothesis falls, and the defendant is guilty unless there is another hypothesis

which raises a reasonable doubt.’” State v. Ellis, 14-1511, p. 2 (La. 10/14/15), 179

So.3d 586, 588 (citing State v. Captville, 448 So.2d 676, 680 (1984)). Further,

“[t]he test of the sufficiency of circumstantial evidence is not whether it produces

the same conviction as the positive testimony of an eyewitness, but whether it

produces moral conviction such as would exclude every reasonable doubt.” State

v. Shapiro, 431 So.2d 372, 385 (La.1982) (citing State v. Jenkins, 134 La. 185, 63

So. 869 (1913)).

During the two-day jury trial, the jury heard extensive testimony recreating

the scene of this over two-decade old murder. At the very least, the jury heard

about Defendant’s violent tendencies from Ms. Nicholas, the victim’s sister.

Further, Ms. Nicholas testified that the victim and Defendant knew each other, as

they had both been at Ms. Nicholas’ house on the afternoon prior to the discovery

of the victim’s body. Ms. Nicholas testified that she threw Defendant out of her

house because he was brandishing a knife, and that previously, Defendant had

fought with her sons.

Dr. Young testified that Defendant’s sperm was found on the victim’s

vaginal smear. Mr. Schiro testified that in 2012, a DNA profile in the vaginal

swab was found to be a positive match to the DNA profile provided by Defendant.

Mr. Schiro also testified that “the probability of selecting an unrelated individual

was approximately one in thirteen billion.” In addition, he stated by testing the Y-

13

chromosome of the seminal fluid found, the chance of incorrectly identifying

Defendant was about one in three hundred billion, barring identical twins. Yet

Defendant told the investigators on at least three occasions that he had not had

intercourse with the victim and had stated that he did not even know the victim.

Dr. Tape testified that the victim’s cause of death was thirty-one stab

wounds and/or incisions, confirming Dr. McCormick’s initial autopsy report.

Further, Dr. Tape stated that there were defensive wounds on the victim’s hands.

The jury also watched the 2012 video interview that Mr. Grimmett had with

Defendant, wherein Defendant denied ever having intercourse with the victim,

again claiming he did not know her. The jury was able to see video of the crime

scene with blood on the mattress and walls and the overturned dresser drawer. In

addition, Defendant had scratch marks on his neck noted by Mr. Trahan which

Defendant said came from the victim’s niece, Stephanie Keys. However, Ms.

Keys testified that she had no recollection of ever scratching the defendant.

Most importantly, Defendant’s DNA was found in the seminal fluid from the

victim’s vaginal swab. Defendant previously denied in several prior statements

played for the jury that he knew the victim and denied he had ever had sex with

her.

According to Mr. Grimmett, the video and crime scene photos presented to

the jury depict an obvious rape and murder scene where the victim was killed

during a violent rape, having been stabbed or cut thirty-one times. The victim was

found naked with most wounds concentrated around her face, head and chest and

multiple defensive wounds evidencing her attempt to fight back during her rape

and murder. Mr. Grimmett’s testimony was based on his twenty-two plus years

experience in law enforcement. The jury had an opportunity to see him and

evaluate his credibility. The jury also was able to review first hand the videos and

pictures of the crime scene.

14

Proof of murder during the commission of an aggravated rape satisfies the

essential elements of the crime of first degree murder. Louisiana Revised Statutes

14:30 (emphasis added) provides, in pertinent part:

A. First degree murder is the killing of a human being:

(1) When the offender has specific intent to kill or to inflict
great bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, second degree kidnapping,
aggravated escape, aggravated arson, aggravated or first degree
rape, forcible or second degree rape, aggravated burglary, armed
robbery, assault by drive-by shooting, first degree robbery, second
degree robbery, simple robbery, terrorism, cruelty to juveniles, or
second degree cruelty to juveniles.

The jury considered the evidence in totality, made credibility determinations

and concluded that the essential elements of the crime had been proven beyond a

reasonable doubt. As provided in the jurisprudence, it is not our role to second-

guess the jury’s credibility decisions. Thus, viewing the evidence in a light most

favorable to the prosecution, we find that Defendant’s assignment of error lacks

merit.

Assignment of Error Two

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

“erred in admitting an exculpatory and self-serving statement of Defendant offered

by the State which was inadmissible hearsay.” Defendant argues that the State

should have been prohibited from introducing multiple heresay statements given to

law enforcement by Defendant in which he claimed he had never had sex with the

victim. Defendant’s argument is based primarily on his claim that said statements

were “exculpatory” statements that should have been excluded under La.Code

Evid. art. 804(B)(3), as the statements were not inculpatory or made against his

own interest. In State v. Alexander, 03-167, pp. 8-9 (La.App. 3 Cir. 9/10/03), 854

So.2d 456, 462, writ denied, 03-2822 (La. 3/12/04), 869 So.2d 815, this court

quoted La.Code Evid. art. 804(B)(3) in stating that an inculpatory statement is:

15

[A] statement which was at the time of its making so far contrary to
the declarant’s pecuniary or proprietary interest, or so far tended to
subject him to civil or criminal liability, or to render invalid a claim
by him against another, that a reasonable man in his position would
not have made the statement unless he believed it to be true.

Defendant argues that his statements that he never had sex with the victim,

though proven to be false, were in no way contrary to Defendant’s interest at the

time they were made. The State argued to both the trial court and this court that

because Defendant said he did not have sex with the victim, consensual or

otherwise, the fact that he was demonstrably lying means the statement was

actually inculpatory. In the alternative, the State contends that because defense

counsel did not object to Mr. Grimmett’s testimony that Defendant had denied

having sex with the victim on his interview with Defendant, it was harmless error

because the content of the statements have been admitted anyway.

The arguments presented to this court by both Defendant and the State

assume the statements are hearsay, and therefore the admissibility of said

statements hinges upon whether or not they fall into one of the exceptions listed in

La.Code Evid. art. 804. However, under La.Code Evid. art. 801(D)(2)(a), a party’s

own statement, offered against him, is by definition NOT hearsay. Accordingly,

the argument over whether or not the statements fall under an exception to the

prohibition against hearsay is irrelevant.

Additionally, the second circuit cited the supreme court’s decision in State v.

Roshto, 222 La. 185, 62 So.2d 268 (1952), when it noted “that evidence of

exculpatory, but false, statements is competent and admissible to establish some

inference of guilt. The prosecution may prove such declarations of the accused,

and then prove their falsity.” State v. McFadden, 476 So.2d 413, 419 (La.App. 2

Cir. 1985), writ denied, 480 So.2d 739 (La.1986). The State introduced the

statements in order to show that Defendant had lied about the fact that he did not

know the victim and never had had sex with her, which was proven conclusively

16

by the DNA testimony presented at trial. Accordingly, the trial court did not err in

admitting Defendant’s prior “exculpatory” statements.

DISPOSITION

We find that Defendant’s assignments of error lack merit. Thus, we affirm

Defendant’s conviction and sentence. The trial court is instructed to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of this opinion and to

file written proof in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

17

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-456

STATE OF LOUISIANA

VERSUS

JOENELL RUBIN

THIBODEAUX, Chief Judge, dissenting.

I disagree with the majority’s affirmance of Defendant’s jury conviction on

very scant circumstantial evidence. I simply do not think the circumstantial

evidence excluded every other reasonable hypothesis.

The State provided no evidence which could actually place Defendant at the

crime scene beyond a reasonable doubt. The only witness to state the victim was

raped was the detective whose first involvement in the case was more than twenty

years after the victim’s death. Both Doctors Young and Tape refused to say that

the victim was raped. The State’s DNA expert, Mr. Schiro, also refused to say that

the victim was raped. The State’s entire argument for rape and murder was that

Defendant lied about having sex with the victim. Because the State had DNA

proof that Defendant did have sex, there was no other explanation but that

Defendant raped and murdered the victim in her home, the State contends.

However, there was much countervailing evidence. There were more than

twenty fingerprints. None belonged to Defendant. The only evidence placing

Defendant at the crime scene was that his DNA was inside the victim. However,

that does not show that he must have been in her apartment at the time of her

death. The expert testimony indicated that sperm could exist for nineteen days.

There was no testimony that anyone had ever seen Defendant enter or exit the

victim’s apartment. In summary, the State provided no evidence, forensic or

otherwise, that could place Defendant inside the victim’s home at any point, let

alone at the time of her death.

For the foregoing reasons, I respectfully dissent.

2