146 So. 3d 886
La. Ct. App.2014Background
- In 1994 E.W. was kidnapped, beaten, stabbed, orally and vaginally raped; samples were collected in a rape kit and stored.
- Rape-kit evidence was later (2005) profiled by ReliaGene and uploaded to CODIS; a CODIS/NDIS hit in 2011 matched Johnnie Mark, who was arrested and provided a buccal swab that matched the sperm profile (statistic: ~1 in 127 quadrillion).
- The State notified defense five days before trial it would offer evidence of Mark’s 1983 aggravated burglary conviction (victim N.R.) as other-crimes evidence under La. C.E. arts. 412.2 and 404(B).
- Trial court admitted the 1983 conviction after in-chambers hearing (initially excluded under 404(B) but later admitted under 404(B) and/or 412.2); a limiting instruction was given to the jury.
- Mark was convicted by a jury of aggravated kidnapping and aggravated rape, sentenced to concurrent life terms without benefits, and appealed raising continuance, other-crimes admissibility, mistrial, chain-of-custody/DNA methodology, confrontation, and ineffective-assistance claims.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Mark) | Held |
|---|---|---|---|
| Motion to continue (late Prieur/412.2 notice) | Notice was adequate; no undue prejudice | Five-day notice prevented proper investigation and rebuttal | Denial affirmed; Supreme Court previously found no abuse of discretion; law-of-the-case bars relitigation and DNA evidence eliminated specific prejudice |
| Admissibility of 1983 conviction under La. C.E. art. 412.2 / 404(B) | Prior act showed sexual intent/identity, similar modus operandi (knife, attack from behind, location proximity) and fingerprints link Mark to 1983 act | Prior act was non-sexual (no completed sexual assault) and served only to show propensity | Admission upheld (trial court did not abuse discretion); even if erroneous, admission was harmless due to overwhelming DNA evidence |
| Motion for mistrial for victim's emotional outburst | N/A (prosecution did not rely on outburst) | Outburst was highly emotional and prejudicial, warranting mistrial | Denial affirmed; jurors presumed able to disregard emotional displays; limiting instruction was given |
| Confrontation, DNA methodology, chain of custody, and ineffective assistance | Testimony from LSPCL analyst and ReliaGene documentation adequately established profile and match; Williams/Bolden permit expert testimony about out-of-court lab results when not offered for truth of underlying statements | Defense says Confrontation Clause violated (non-testifying analysts), methodology questionable, chain-of-custody breaks, and counsel failed to challenge or retain DNA expert | Court rejected claims: Williams and Bolden control (no confrontation violation); chain-of-custody sufficiency goes to weight not admissibility; claims of ineffective assistance were conclusory—better raised in post-conviction proceedings; verdict supported by overwhelming DNA evidence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011) (forensic certification testimonial; Confrontation Clause limitations)
- Williams v. Illinois, 132 S. Ct. 2221 (U.S. 2012) (expert may rely on out-of-court lab results without violating Confrontation Clause when statements are not offered for their truth)
- Prieur v. State, 277 So.2d 126 (La. 1973) (notice and limits on other-crimes evidence; admissibility exceptions)
- State v. Rose, 949 So.2d 1236 (La. 2007) (standards for admitting other-crimes evidence under art. 404(B))
- State v. Wessinger, 736 So.2d 162 (La. 1999) (mistrial standard and assessment of emotional outbursts)