State v. GatchState v. Gatch
Russel Gatch was charged by bill of information with aggravated oral sexual battery,
Factual background
C.M.‘s mother, Julie Kirsop, testified that in June or July 1991, when C.M. was seven years old, she noticed he was wearing four pairs of underwear. She asked him why he was wearing so much underwear; he seemed reluctant to answer. Eventually, however, he told her that a neighbor, Russel, had been touching him in a bad way. He also told her he thought he had done something wrong, and asked her not to be mad at him.
Ms. Kirsop and her family lived in the Broadmoor neighborhood in southeast Shreveport. She knew Russel Gatch because he and his family lived in the same area. She had seen him out in the street playing with a remote-control car; she had also seen C.M. and other neighborhood children playing with it. Until she noticed C.M. wearing multiple pairs of underwear, however, she never suspected that anything was amiss.
After talking to C.M., Ms. Kirsop called the police and filed a complaint against Gatch. She later obtained counseling for him because his behavior had changed and he seemed angry. Ms. Kirsop testified that the social worker who counseled C.M., Polly Waldron, died before trial.
C.M. was nine years old at the time of trial. He testified that Gatch had lived in his neighborhood and let him play with a remote control race car; later, when they were standing near Russel‘s real car, a Camaro, Gatch pulled down the boy‘s pants and touched the boy‘s penis with his hands. C.M. also testified that once, in C.M.‘s bedroom, Gatch got the boy to touch his penis. C.M. described an incident in which Gatch touched his mouth to C.M.‘s penis, but he was not sure when this happened. Finally, C.M. testified that Russel used to play with his own penis in the boy‘s presence, “flopping it up and down.”
Discussion: Motion to recuse district attorney‘s office
By his first assignment Gatch urges the district court erred in denying his motion to recuse the Caddo Parish District Attorney‘s office under
The article, which appeared on December 26, 1993, featured a picture of Gatch and reported that residents of a Bossier City neighborhood had received postcards from the State informing them that a convicted child molester had moved into the area.3 According to the article, one of the neighbors, Mike Tucker, began researching Gatch‘s case and learned that he was on probation for a previous conviction of aggravated oral sexual battery when the instant offense allegedly occurred. The article also reported that more than two years had elapsed since Gatch‘s arrest on the instant offense without a trial, although trial settings had been upset for defense counsel‘s honeymoon and religious holiday. Assistant District Attorney James Burke was quoted as stating that Gatch‘s case was not a priority because of all the murder and rape cases, but that he would consider requesting an additional jury term to clear out old cases like Gatch‘s.
Gatch‘s argument is that the pressure generated by this article caused the D.A.‘s office to treat his case differently from other cases. After the article appeared, the case was assigned to a different prosecutor, and he was not allowed to enter a plea agreement that had been previously discussed.
Mr. Burke further testified that after he was interviewed by The Times, Gatch‘s case was assigned to a new prosecutor, David Keele, so that it could be placed on every docket as a backup case. Mr. Burke explained that Mr. Keele handled the case differently because of changed feelings of the victim‘s family. Ms. Kirsop, C.M.‘s mother, had considered acquiescing in a plea agreement, but after the reassignment she said she wanted Gatch to go to trial and receive a longer sentence.
The district court denied the motion to recuse, stating there was a rational basis for the change in the treatment of Gatch‘s case. Gatch now argues that the court‘s failure to find he met the burden of proof required under
A district attorney shall be recused when he has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice.
Gatch has not directed this court to any case in which public pressure or media attention affected the D.A.‘s office to the point of requiring recusal under
Similarly, Gatch has not directed us to any case in which the decision to assign a new prosecutor to the case was shown to prove partiality or unequal treatment. In State v. Daniels, 552 So.2d 781 (La.App. 1st Cir. 1989), writ denied 558 So.2d 581 (1990), the defendant sought to recuse the D.A., citing the latter‘s breach of an agreement (made by his predecessor in office) to resubmit the defendant‘s case to the Grand Jury. The Court of Appeal held that the defendant failed to establish that the D.A. had a personal interest in his case.
In the instant case we are unable to declare that the District Court erred in failing to find that Gatch made a case for recusal under
This assignment does not present reversible error.
Motion for mistrial
By his fourth assignment Gatch urges the district court erred in denying his motion for mistrial based on the prosecutor‘s reference during closing argument to the defendant‘s failure to testify or present evidence. Gatch lodged his motion after Mr. Keele made the following remarks:
What is evidence came from the witness stand. That‘s what you have to make your decision on[,] not something that Mr. Gold tried to get you to consider, of which there was no evidence.
Russel Gatch was an abused child. A little violin should be playing about that time. His life was screwed up because he was molested between six and ten. Does that give him an excuse to do it to [C.M.]? No way. But there wasn‘t even any evidence of it. It‘s a ploy. R.pp. 373-374.
The Fifth and Fourteenth Amendments to the U.S. Constitution guarantee the right against self-incrimination by prohibiting the prosecution from commenting on the defendant‘s failure to take the stand. State v. Bourque, supra. In addition,
A general statement that the prosecution‘s case is uncontradicted is not necessarily a prohibited comment on the defendant‘s failure to testify. State v. Bourque, 622 So.2d at 240. When the defendant is the only witness who could have rebutted the State‘s evidence, then a reference to the testimony as uncontroverted focuses the jury‘s attention on the defendant‘s failure to testify and mandates a mistrial. Id.; State v. Carney, 334 So.2d 415 (La.1976). However, where there were witnesses other than the defendant who could have testified for the defense but did not do so, then the prosecutor‘s argument that the State‘s evidence was unrebutted does not amount to a direct reference to the defendant‘s failure to testify. Id.; State v. Smith, 433 So.2d 688 (La.1983). Further, arguments addressing a theory of defense, not the election not to testify, reflect no intent on the part of the prosecutor to emphasize the defendant‘s decision not to testify, and thus do not violate
In the instant case, defense counsel laid the foundation for a defense to elicit sympathy, based on Gatch‘s own abusive childhood:
Russel Gatch, you will learn, was an abused child. He was abused from the age of six to approximately the age of ten, and, yeah, it screwed up his life. It made him do things like he did to [C.M.]
You‘ll learn that after this happened, Russel Gatch went into a treatment facility in New Orleans, Louisiana. He was accepted to another treatment facility in Houston, or in Texas. * * *
When he got out of the one in New Orleans, he began seeking therapy—out-patient therapy—from a therapist, who it turns out was the same therapist that was treating [C.M.]. * * * While in therapy, he participated in a program called S.A.A., which is Sexual Addicts Anonymous, which is akin to Alcoholics Anonymous, or Narcotics Anonymous. R.pp. 315-316.
The prosecutor‘s reference to the lack of evidence obviously referred to evidence that was never presented as to Gatch‘s own molestation as a child and subsequent treatment. In fact, Mr. Keele specifically argued this point immediately after the defense objection:
If Russel Gatch was in counseling—and the defense doesn‘t have to do anything. I‘m not suggesting for a second that the defense has to put on anything. Mr. Gold
chose not to, but at the beginning of the trial he put in some things in the opening statement that got you thinking at least, or tried to get you thinking, about Russel Gatch and what his situation was. All that stuff about the treatment facility, all that stuff about the same therapist and all of that stuff, none of that is in evidence. So it‘s not for you to consider. That‘s my point. R.p. 374.
In short, during opening statements the defense boldly declared what it would prove, or what the jury would learn. If no such evidence is introduced, then the prosecutor‘s subsequent reference to the lack of evidence on those particular points should seldom, if ever, be deemed a comment on the defendant‘s failure to testify. The prosecutor‘s remarks concerned evidence that was promised and could be adduced through channels other than Gatch‘s own testimony. The remark was permissible. State v. Smith, supra; State v. Banks, supra.
This assignment does not present reversible error.
Improper rebuttal argument
By his fifth assignment Gatch urges the district court erred in permitting the prosecutor, during his rebuttal argument, to refer to the defendant‘s failure to testify or present any evidence. Specifically, Gatch contests this statement:
If you believe [C.M.], then you must find Russel Gatch guilty. If you don‘t, then you‘ve got to let him free; but all the evidence—all the evidence that‘s uncontroverted —corroborates the young man‘s story. R.p. 399.
At the outset we note that the defendant did not move for mistrial or object to the statement at trial. An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.
Assuming, arguendo, that the issue had been properly preserved, we would be constrained to hold that the contested comment was not an impermissible reference to the defendant‘s failure to testify. As noted above, the simple reference to the State‘s case as uncontradicted will not usually constitute a violation of
In the instant case Mr. Keele asserted that the jury should believe C.M. because his account of the crime was uncontradicted; this certainly draws less attention to the defendant‘s silence than the remarks in Shepherd and Newman, supra. The instant remarks, even if timely objected to, did not compromise Gatch‘s right of silence.
This assignment does not present reversible error.
Proof of venue
By his sixth assignment Gatch urges the district court erred in denying his motion for post verdict judgment of acquittal. The substance of the motion was that the State failed to offer any evidence of venue of the offense, thus providing insufficient evidence that the crime occurred in Caddo Parish.
Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.
Under this article, if the defendant feels that he is being charged for an offense that occurred in another parish, or that the State cannot prove the venue of the alleged
Even assuming, arguendo, that the issue had been properly preserved, we would find no grounds for reversal. Under
This assignment does not present reversible error.
Conclusion
We have also reviewed the entire record and find nothing we consider to be error patent. Russel N. Gatch‘s conviction and sentence are therefor affirmed.
AFFIRMED.