STATE OF LOUISIANA VERSUS KENNETH J. SESSION
NO. 2021-KA-0118
COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA
DECEMBER 14, 2021
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 531-099, SECTION “DIVISION D” Judgе Kimya M Holmes
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Tiffany Gautier Chase)
BELSOME, J., CONCURS WITH REASONS
Meghan Harwell Bitoun LOUISIANA APPELLATE PROJECT P.O. Box 4252 New Orleans, LA 70178--4252
COUNSEL FOR DEFENDANT/APPELLANT
Jason Rogers Williams DISTRICT ATTORNEY ORLEANS PARISH 619 S. White Street New Orleans, LA 70119
G. Benjamin Cohen Chief of Appeals, DISTRICT ATTORNEY 619 S. White Street New Orleans, LA 70119
COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA
AFFIRMED
DECEMBER 14, 2021
PROCEDURAL HISTORY
On October 31, 2016, the State of Louisiana (hereinafter “the State“) filed a bill of information charging defendant with molestation of a juvenile under the age of thirteen, a violation of
Defendant was found guilty by a unanimous jury following his second trial. On February 5, 2020, defendant was sentenced to fifty years imprisonment at hard labor with credit for time served. The court ordered the defendant to serve thirty years without the benefit of probаtion, parole, or suspension of sentence. On that
STATEMENT OF THE FACTS
Defendant was tried and convicted for the sexual battery of C.R., his niece.1 C.R., aged eighteen at the time of trial but eight years old when the abuse occurred, described the incidents during which defendant abused her in detail at trial. She disclosed the abuse to a friend, who told C.R.‘s mother. C.R. also testified that she had initially denied the allegations when asked about them by her mother and grandmother.
C.R.‘s cousin (“witness 2“), twenty-three years old at the time of trial, testified pursuant to
Another relative (“witness 3“), also provided evidence of defendant‘s lustful disposition, describing two incidents. During the first incident, defendant forcibly removed her bedcovers when she was spending the night with witness 2. On the second, defendant raped her when she was twelve years old and babysitting defendant‘s children among others. Witness 3 reported the incident when she was sixteen years old and the offense was prosecuted in Jefferson Parish. Witness 3‘s boyfriend also testified, confirming that she had reported the rape to him about a year after it occurred.
A friend of C.R.‘s (“witness 4“) corroborated her testimony. Witness 4 testified that she and C.R. discussed the allegations made by witness 3, which had
Dr. Anne Troy, qualified as an expert in the field of child sexual abuse, interviewed C.R. Nothing during the interview suggested to the expert that C.R. had been untruthful when she provided her account of abuse.
Defendant‘s wife testified on his behalf. She admitted that witness 3 had accused defendant of molesting her but maintained that she later retracted those allegations. She also claimed that all the State‘s fact witnesses had lied about her husband‘s conduct. She denied drinking with defendant before her night shift working at a Bridge City correctional facility. However, her testimony was impeached by rebuttal testimony from her sister, suggesting that defendant would be left alone with witness 3 at night, when his wife went to work.
ERRORS PATENT
A review of the record reveals no errors patent.
DISCUSSION
Evidentiary Rulings
Assignment of Error No. 1: The Admission of Witness 2‘s Testimony
In his first assignment of error, defendant avers that the trial court erred when it admitted other crimes evidence whose probative value was outweighed by its prejudicial effect, specifically witness 2‘s testimony that defendant raped her when she was seventeen. Witness 2 did not testify during defendant‘s first trial and the State filed a notice of intent to introduce her testimony as evidence of similar crimes pursuant to
Defendant argues that the probative value of the evidence is outweighed by the possibility of prejudice to him because the incident involving C.R. differs from that involving witness 2. Defendant asserts that while C.R. was eight years old when he inappropriately touched her, witness 2 was seventeen years old when her alleged rapе occurred. Defendant cites to State v. Parker, 42,311, p. 13-14 (La. App. 2 Cir. 8/15/07), 963 So.2d 497, 507, wherein the Second Circuit determined that evidence of sexual misconduct with adults was inadmissible in connection with a charge of sexual misconduct with a minor. As in Parker, defendant maintains that witness 2‘s testimony should have been found inadmissible given her age when she was raped. Defendant contends that another distinction between the two incidents is that while the incident with C.R. was premeditated, the incident with witness 2 was “an isolated instance of opportunity.” Defendant also questions the reliability of witness 2‘s testimony regarding her rape, as she did not report the alleged offense until six years after it transpired.
The governing statutory provision regarding the admission of “prior bad acts” evidence is
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused‘s commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
Our Louisiana Supreme Court, in addressing the meaning of “unfair prejudice,” has noted that “[a]ny inculpatory evidence is ‘prejudicial’ to a defendant, especially when it is ‘probative’ to a high degree.” State v. Rose, 2006-0402, p.13 (La. 2/22/07), 949 So.2d 1236, 1244. The Court further noted that “[a]s used in the balancing test, ‘prejudicial’ limits the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial.” Id. Unfair prejudice, in this context, results when the evidence being offered has an undue tendency to suggest a decision by the trier of fact on an improper basis, which is commonly an emotional one. State v. Henry, 2011-1137, p. 9 (La.App. 4 Cir. 10/24/12), 102 So.3d 1016, 1022 (citations omitted).
Article 412.2 has been consistently applied to allow evidence of prior uncharged misconduct to be introduced in cases where a defendant has engaged in sexually inappropriate behavior, similar to the charged misconduct, with minor individuals. Parker, 42,311, pp. 13-14, 963 So.2d. at 507. However,
We also note that even if the trial court erred in admitting the evidence at issue, the error is subject to the harmless error analysis. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d. 705 (1967). In the harmless error analysis, “[t]he inquiry...is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” State v. Trung Le, 2017-0164, p. 20 (La.App. 4 Cir. 4/11/18), 243 So.3d 637, 657-58.
The State‘s case against defendant was substantial and included the testimony of five fact witnesses along with that of an expert who opined as to C.R.‘s truthfulness. In this situation, we also find the guilty verdict rendered by this jury was “surely unattributable” to any error by the trial court in admitting witness 2‘s testimony, as the record before this Court overwhelmingly established defendant‘s guilt. This assignment of error is without merit.
Assignment of Error No. 2: The Admission of “Prior Bad Acts” Evidence without Prior Notice to Defendant
In defendant‘s second assignment of error, he asserts that the trial court erroneously admitted testimony regarding prior bad acts for which notice had not been given. This occurred when the trial court allowed the State to elicit testimony from C.R. on redirect examination. Defendant avers that the trial court erred in ruling that defense counsel “opened the door” to C.R.‘s redirect testimony and admitting this evidence. Defendant argues that C.R.‘s statement should have been ruled inadmissible as it was unresponsive to defense counsel‘s question.
At trial, the testimony defendant complains of was elicited as the result of the following colloquy during the defense‘s cross-examination of C.R.:
Q. Did anybody [...] ask you any [...] kinds of questions about [defendant behaving inappropriately]?
A. My grandma asked me...But she asked me like a while ago.
Q. You said your grandmother?
A. She had heard something else too. So that‘s why she asked me.
On redirect examination by the State, the following exchange occurred:
Q. [D]efense counsel asked you about your grandmother. And you had mentioned that your grandmother had asked you if [defendant] had done anything inappropriate with you; is that correct?
A. Yeah.
Q. And you mentioned that your grandmother said that he had been doing – that she had told you that he had been doing inappropriate things?
A. Yes.
Q. What were those things and who were they to?
A. She told me that he had –
Defense counsel then objected and argued that the State was attempting to introduce evidence that had been ordered excluded under
She told us that she heard about him doing somеthing to somebody on his side of the family, probably like one of his nieces or I don‘t know something like that. And she said she had heard about something like that. So she asked me.
Q. One of [defendant‘s] nieces?
A. I don‘t know if it was his niece or I don‘t know who it was.
Q. Do you know what [defendant] had done to that person?
A. She said like he touched her inappropriately or like he told her something inappropriate or something like that.
Assignment of Error No. 3: The Admission of “Hearsay within Hearsay” Testimony
In defendant‘s third assignment of error, he complains about the hearsay nature of the testimony described above. Defendant notes that C.R. testified that her grandmother heard these rumors from another, unnamed person; as such, her testimony was hearsay within hearsay. Defendant asserts that C.R.‘s testimony did not fall under any exception to the hearsay rule, and that the trial court‘s admission of the testimony violated his fundamental right to confront a witness at trial and to test the reliability of his claims through cross examination.
As a threshold mаtter, defendant did not object to admission of the testimony on the basis that it constituted hearsay and accordingly this issue is not properly before the Court. See State v. Sims, 426 So.2d 148, 155 (La. 1983) (“It is well settled that a new basis for an objection cannot be raised for the first time on appeal.“); see also State v. Boys, 2019-0675, p. 11 (La. App. 4 Cir. 5/26/21), 321 So.3d 1087, 1100.
In any event, because defendant opened the door, an objection based on hearsay would no longer appear viable. State v. Hankton, 1996-1538 (La.App. 4 Cir. 9/16/98), 719 So.2d 546, 550; State v. Moseley, 587 So.2d 46, 55-56 (La.App. 2 Cir. 1991); State v. Lapworth, 517 So.2d 485, 486 (La.App. 1 Cir. 1987). Finally, as discussed above, even if the court erred in admitting the evidence, considering the overwhelming evidence presented of defendant‘s guilt, the error was harmless.
Rulings Related to the Jury
Assignment of Error No. 4: The Disposition of Defendant‘s Batson Challenge
In defendant‘s fourth assignment of error, he avers that the trial court committed legal error in addressing his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d. 69 (1986), by authorizing the proffer of the State‘s race-neutral reasons for removing the jurors but failing to allow the proffer of defense‘s evidence of discriminatory intent. Defendant asserts that the trial court should have allowed him to respond to the reasons proffered by the State.
Under Batson, if a party exercises a peremptory challenge to exclude a prospective juror on the basis of his or her race, a violation of the Equal Protection Clause of the United States Constitution occurs. Id.
Generally, to establish that such a prohibited use of peremptory challenges has occurred under Batson, the party raising the claim must first make a prima facie case of purposeful racial discrimination. See State v. Williams, 2013-0283, p. 16 (La.App. 4 Cir. 9/7/16), 199 So.3d 1222, 1232. If a prima facie showing is made, the burden shifts to the proponent of the strike to articulate a race-neutral explanation for the challenge. State v. Nelson, 2010-1724, 2010-1726, p. 9 (La. 3/13/12), 85 So.3d 21, 29. The trial court must then determine whether the opponent of the strike carried the burden of proving purposeful discrimination. Id.
Howevеr, our Louisiana Supreme Court has held that once a jury has been sworn and all venire members dismissed, any Batson challenge is untimely. State v. Tucker, 2013-1631, pp. 47-49 (La. 9/1/15), 181 So.3d 590, 625-626.
In the case sub judice, the voir dire transcript indicates that after the trial court had sworn in all jurors and alternates and dismissed the remaining jury venire, defendant raised his objection under Batson. The trial court found the Batson challenge was made untimely, after it had already excused the jurors who had not been selected for service. The trial court stated that there was “no way of making a record to my knowledge, a contemporaneous record right now, of how many African-Americans were in the venire and were presented to determine what sort of proportions were in effect.” Therefore, the trial court did not rule that a prima facie case of discrimination had been shown. However, for the purpose of protecting the record, the trial court allowed defendant to make a proffer of his Batson claim, and ordered the State to provide race-neutral reasons to support its peremptory challenges of those jurors.
As defendant‘s challenge was untimely, he did not make a prima facie case of purposeful racial discrimination. Defendant‘s Batson challenge failed at step one of the analysis. Therefore, the burden never shifted to the State to explain any racial exclusion. Nevertheless, the trial court allowed defendant to proffer his Batson challenge, and ordered the State to articulate its race-neutral peremptory challenge reasons to protect the record. The State‘s reasons were proffered for appellate purposes only.3 As such, defendant had no right to respond, and we find
Assignment of Error No. 5: The Trial Court‘s Ex Parte Communications with Certain Jurors
In defendant‘s fifth assignment of error, he argues that the trial court erred in conducting ex parte examinations of potential jurors. During voir dire, jurors 1, 8, 11, 12 and 49 approached the bench to privately communicate the reasons they could not serve on the jury to the judge. The trial court spoke to each juror off the record.4
A defendant is limited on appeal to those grounds articulated at trial, meaning he must have pointed during trial to the specific error, so that there was an opportunity for the trial court to make the proper ruling and prevent оr cure that error. State v. Baker, 582 So.2d 1320, 1336 (La.App. 4 Cir. 5/30/91). Without a contemporaneous objection at trial, the appellate court will not consider an assignment of error, raised for the first time on appeal. Trung Le, 2017-0164, p. 18, 243 So.3d at 656.
The voir dire transcript reflects that no contemporaneous objection was urged by defendant at the time the trial court spoke to these jurors. As defendant
Assignment of Error No. 9: The Denial of Defendant‘s Voir Dire Challenge for Cause
Defendant‘s ninth assignment of error is that the trial court erred in denying a defense challenge for cause. The challenge was directed at prospective juror number 44 (hereinafter “Juror 44“). Defendant avers that during voir dire, Juror 44 revealed that she had been a victim of childhood sexual abuse and described its lingering effects. Juror 44 also stated that an individual accused of sexual assault should be “required to answer questions directly.” Defendant asserts that neither the trial court nor the State rehabilitated Juror 44 after she made these statements. As such, whether she would have been able to serve as an impartial juror was never determined. Regardless, the trial cоurt denied defendant‘s challenge for cause, and defendant asserts he thereafter exhausted his peremptory challenges. Defendant argues that he is therefore entitled to a new trial.
In trials of offenses punishable by imprisonment at hard labor, the defendant and the State are each entitled to twelve peremptory challenges.
In the case sub judice, the transcript does not indicate that defendant exhausted all twelve of his peremptory challenges.5 After two rounds of voir dire, the trial court statеd that the prosecution had exercised eight total peremptory challenges, and the defense had exercised a total of five.6 After the trial court allowed the parties to backstrike certain jurors, the State exhausted all twelve of its peremptory challenges. However, the trial court noted that the defense used only eleven peremptory challenges before a twelve-person jury was selected. As such, defendant has not shown that the first prong of the Juniors test was met to warrant the presumption of prejudice.
As to the second prong of the Juniors test, defendant also fails to meet his burden. Defendant asserts that the trial court should have granted his cause challenge undеr
The record does not support the conclusion that Juror 44 was unduly biased or could not follow the law. When asked by defense counsel whether she considered the burden of proof beyond a reasonable doubt “kind of unfair to victims or survivors of sexual assault,” Juror 44 stated that the burden of proof was “perfectly attainable.” After describing her work with the Me Too movement, Juror 44 was asked by defendant whether this would be prominently in her mind as she was deciding the case, and she responded that she would listen with compassion to all sides of the story. Juror 44 testified that she would not be ashamed to tell her co-workers that she found someone not guilty in a sexual assault case. She also revealed that although listening to the evidence would be difficult for her, years of therapy would assist her in being able to hear defendant‘s case.
Rulings Related to Opening Statement and Closing Argument
Assignment of Error No. 6: The Closure of the Courtroom
In defendant‘s sixth assignment of error, he avers that the trial court erred in denying his right to a public trial by closing the courtroom during closing arguments. Defendant asserts that he is entitled to a new trial on that basis.
“In a criminal case, the accused is afforded the right to enjoy a public trial by both the United States Constitution and the Louisiana Constitution.” State v. Baumberger, 2015-1056, p. 29 (La.App. 3 Cir. 6/1/16), 200 So.3d 817, 837, citing
Defendant did not make a contemporaneous objection at trial to the courtroom closure. On this basis alone, defendant‘s assignment of error is meritless. However, in addition, the record does not establish that the trial court closed the courtroom to the public during the closing arguments in defendant‘s case. There is no evidence that the trial court prevented anyone from observing the closing arguments. Instead, it directed that the doors be closed during their duration to prevent individuals from coming in and going out, as a courtesy to the
Assignment of Error No. 7: The Disposition of Defendant‘s Objections During Opening Statement
In his seventh assignment of error, defendant avers that the trial court erred in overruling the defense objection to prejudicial remarks during the prosecutor‘s opening statement. Defendant asserts that the trial court‘s failure to sustain his objection to the prosecution‘s comments entitles him to a new trial.
“The trial judge has broad discretion in controlling the scope of the opening and closing arguments. However, even if the prosecutor exceeds thosе bounds, the court [should] not reverse a conviction if not ‘thoroughly convinced’ that the argument influenced the jury and contributed to the verdict.” State v. Hollins, 2011-1435, pp. 37-38 (La.App. 4 Cir. 8/29/13), 123 So.3d 840, 866 (internal citations omitted). “[M]uch credit should also be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the arguments, and have been instructed repeatedly by the trial court that the arguments of counsel are not evidence.” State v. Martin, 1993-0285, p. 18 (La. 10/17/94), 645 So.2d 190, 200.
In its opening statement, the State referred to the fact that defendant did not have many supporters in the courtroom. Specifically, the State pointed out that although defendant has several daughters, “not one of them stood by him.”
The comment during the opening statement was not inaccurate to the extent that the only witness who testified on defendant‘s behalf was his wife. Thus, considering the evidence presented for the jury‘s consideration after opening statement and according credit to the “jury‘s good sense and fairmindedness,” we
Assignment of Error No. 8: The Disposition of Defendant‘s Objections During Closing Argument
In his eighth assignment of error, defendant contends that the trial court erred in overruling the defense‘s objection to the State‘s improper closing argument. Defendant argues that the State asserted facts not in evidence and improperly referred to his future dangerousness and the necessity of protecting community safety by convicting and imprisoning him. Defendant asserts that the trial court‘s failure to sustain his objections to these comments entitles him to a new trial.
The scope of closing argument is confined by
During closing argument, the prosecutor stated:
[Defendant] is not going to stop. He‘s not going to stop until someone puts a stop to him. [M]ultiple lives of multiple citizens will be in your hands...Because if it goes wrong up there, it will keep going wrong out there...The only entity standing between that man and that door is you. And he has made it abundantly clear he‘s not going to stop. So stop him or watch him walk out that door back into your city. Your choice.
The record reveals that, rather than improperly referring to community crime, the prosecutor was presenting a cоnclusion of fact properly drawn from the evidence when he stated that defendant‘s sexual predation would not stop. The evidence against defendant included the testimony of two family members he victimized in addition to C.R. Further, defendant‘s abuse of C.R. and witness 3 occurred on more than one occasion. We find that the trial court did not abuse its broad discretion in overruling defendant‘s objections to the State‘s closing comments.
We must also give credit to the jury‘s objectivity and fairmindedness in evaluating the evidence presented in this case, and consider that its members were instructed that argument is not evidence. In doing sо, we are not convinced that the comments made by the State in closing argument influenced the jury and contributed to the verdict such that reversal is warranted, even if the comments exceeded their proper scope. Thus, we find that this assignment of error is without merit.
DECREE
For the foregoing reasons, we affirm defendant‘s conviction and sentence for sexual battery on a victim under the age of thirteen.
AFFIRMED