State v. GreeneState v. Greene
- Reporters:
- ,
- Before:
- Edward A. Dufresne Jr., Marion F. Edwards, Susan M. Chehardy
EDWARD A. DUFRESNE, Jr., Chief Judge.
The Jefferson Parish Grand Jury returned an indictment on December 12, 2002, charging defendant, George Greene, with one count of aggravated rape in violation of
FACTS
At approximately 3:26 p.m. on October 21, 2002, Deputy Keith Cannizaro was dispatched to investigate a complaint of child sexual abuse. He met with B.T. (the victim‘s mother), P.T. (the victim‘s step-father), and S.S. (the victim).1 B.T. told Deputy Cannizaro that her twelve year old daughter had disclosed she had been sexually abused by defendant, who is the victim‘s biological father. Deputy Cannizaro spoke to S.S. who stated defendant performed oral sex on her, had her perform oral sex on him, had intercourse with her, and took pictures of her wearing panties and in the nude. She told Deputy Cannizaro the abuse occurred every time she visited defendant, which was approximately twice a month, and that defendant told her not to tеll anyone because it was their little secret. Deputy Cannizaro instructed S.S.‘s mother to take her to Children‘s Hospital for an examination.
S.S.‘s mother took S.S. to Children‘s Hospital that same day where she was examined by Dr. Sonseeahray Bridges in the emergency room. According to Dr. Bridges, S.S. stated her father had touched her in inappropriate ways resulting in penetrating vaginal and oral sex. Dr. Bridges’ physical examination of S.S. was unremarkable. She noted a fold of hymen tissue which was either a normal variant or a possible tear that healed. She stated the variant was not necessarily indicative of sexual abuse. Dr. Bridges explained that less than 20% of sexual abuse victims show physical signs of abuse. As a result of the exam, Dr. Bridges ordered routine labs and tests to test for sexual diseases and requested social services be contacted.
Meanwhile, Detective Scott Guillory obtained a search warrant for defendant‘s
Approximately one week later, the victim was taken to the Child Advocacy Center (CAC) where a videotaped interview, which was played for the jury during trial, was conducted by Omalee Gordon. At trial, S.S. testified that she met defendant, her biological father, when she was approximately four years old. Shortly thereafter, she started visiting him at his home about twice а month during which time he touched her private areas, which she described as her “tulip and twat.” S.S. testified defendant put his penis in her mouth and told her to suck or lick it, inserted a hot dog into her butt, showed her magazines of naked people and movies of people “doing it,” took pictures of her wearing a thong after instructing her to lean over and hold her butt cheeks open, and put his penis inside her “twat.” She stated the last incident of abuse occurred Labor Day weekend in 2002.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assigned error, defendant contends that the trial court erred by allowing the state to introduce evidence of other crimes. Defendаnt specifically argues the trial court erred in allowing evidence relating to prior sexual abuse committed by defendant on T.L., his step-daughter, and B.G., his biological daughter. Prior to trial, the state filed a notice of intent to use evidence of similar crimes, under
At trial, the state presented the testimony of T.L. and B.G. and played the videotaped interview each gave to the Child Advocacy Center in 1992. T.L., who was twenty-three years old at the time of trial, testified defendant is her stepfather whom she has known since she was eight or nine years old. She stated defendant started touching her in inappropriate ways after she, her mother, and brother, moved in with defendant when T.L. was almost ten years old. She explained he had a fetish with her butt and that he touched and rubbed it with his hands and his penis. T.L. testified defendant would ejaculate either on her body or in a towel. She denied defendant ever “put himself inside of [her].”
B.G., who was twenty-six years old at the time of trial, testified defendant is her biological father. She stated defendant sexually abused her from the time she was eight years old until right before she turned thirteen. She explained defendant rubbed his penis on the walls of her vagina until he ejaculated.
Defendant now argues that the trial court erred in allowing this other crimes evidence. He contends that the evidence is inadmissible under
We first note that defendant did not raise this particular argument in the trial court. Although defendant challenged the retrоactivity of
Nonetheless, we have considered defendant‘s arguments and find them to be without merit.
A. 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 sexual offense 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.
In State ex rel. Olivieri v. State, 00-172 (La.2/21/01), 779 So.2d 735, 744, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001), the Louisiana Supreme Court held that in determining whether there has bеen an ex post facto violation, the analysis should focus on whether the new law redefines criminal conduct or increases the penalty by which it is punished, and not whether the defendant has simply been disadvantaged. State v. Girod, 04-854 (La.App. 5 Cir. 12/28/04), 892 So.2d 646, 653, writ denied, 05-0597 (La.6/3/05), 903 So.2d 455.
Although the Louisiana Supreme Court has yet to decide whether the retroactive application of Article 412.2 violates the ex post facto prohibition, the Third Circuit has held that its retroactive application does not constitute an ex post facto violation. State v. Willis, 05-218 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La.6/23/06), 930 So.2d 973, cert. denied, ___ U.S. ___, 127 S.Ct. 668, 166 L.Ed.2d 514 (U.S.11/27/06). In so concluding, the Third Circuit stated:
Article 412.2 did not alter the amount of proof required in the Defendant‘s case
as it merely pertains to the type of evidence which may be introduced. Prior to the enactment of Article 412.2, the testimony at issue was admissible if it fell within an exception under La.Code Evid. Art. 404(B) . Article 412.2 merely removed that restriction.
State v. Willis, supra at 383.
Despite defendant‘s contention, it does not appear the retroactivity of Article 412.2 is at issue in the present case because there is evidence the charged offense occurred after the article‘s effective date. In particular, the victim testified the last incident of abuse occurred Labor Day weekend before her twelfth birthday, which was in 2002. Additionally, she stated the abuse occurred “just about every time” she went to his house which was approximately once a month from the time she was four оr five until the Labor Day before her twelfth birthday. In his own statement, defendant admitted he sexually abused the victim when she was around eleven years old. The victim turned eleven on October 8, 2001, which was after Article 412.2 was enacted. In fact, defendant denied any sexual abuse occurred prior to the victim turning eleven.
The fact the past sexual acts occurred prior to the effective date of Article 412.2 is inconsequential.2 As noted by State v. Willis, supra, Article 412.2 did not alter the quantum of evidence required for a conviction but rather it simply expanded the type of evidence which may be introduced in the prosecution of certain sex offenses. Thus, even if retroactivity were an issue, ex post facto laws would not prohibit the application of Article 412.2 to the present case.
Accordingly, the arguments raised by defendant in this assigned error are without merit.
ASSIGNMENT OF ERROR NUMBER TWO
Defendant argues the trial court erred in allowing inadmissible hearsay testimony by Deputy Cannizaro, Detective Dyess, Omalee Gordon, Dr. Sonseeahray Bridges, and Dr. Ellie Wetsman about what S.S. told them regarding what defendant did to her. Defendant asserts only the first report of sexual abuse, which in this case was made to B.T., falls within the
Hearsay is defined as “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.”
D. Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
* * * *
(b) Consistent with his testimony and is offered to rebut an express of imрlied
charge against him of recent fabrication or improper influence or motive; * * * *
(d) Consistent with the declarant‘s testimony and is one of initial complaint of sexually assaultive behavior.
Deputy Keith Cannizaro
The record clearly shows S.S. first reported the sexual abuse to her mother, B.T. At trial, the state first presented the testimony of S.S. and then her mother, B.T. The state next presented Deputy Cannizaro‘s testimony. During direct examination, the state asked him if he had a chance to speak with S.S. when he first arrived to investigate the initial complaint of child sexual abuse. Defense counsel immediately objected and argued anything S.S. told Deputy Cannizaro was hearsay. The state asserted it was admissible as a prior consistent statement offered to rebut defendant‘s implied charge of recent fabrication during the cross-examination of the victim. The trial court overruled the objection and allowed the testimony. Deputy Cannizaro then testified that S.S. told him that defendant performed oral sex on her, had her perform oral sex on him, and had intercourse with her. He also stated S.S. told him that defendant took pictures of her wearing panties and nude.
On direct examination, the victim testified defendant put his penis inside her “twat.” While cross-examining the viсtim, defense counsel implicated she was fabricating certain parts of her testimony. In particular, defense counsel inquired into S.S.‘s reports of sexual penetration. He asked if she remembered that during her CAC interview she was asked “about four or five times” whether defendant had actually put his penis inside of her and that she responded no.
In the present case, defendant sought to discredit the victim during cross-examination by suggesting her testimony was a recent fabrication because she testified there was penetration but previously denied penetration during her CAC interview. Deputy Cannizaro‘s testimony that the victim tоld him there had been penetration bolsters that of the victim. Thus, Deputy Cannizaro‘s testimony falls under the hearsay exception set forth in
Additionally, a police officer may refer to statements made to him by other persons in the context of explaining his own aсtions. Such statements are admissible as they explain the sequence of events leading to the arrest of the defendant from the viewpoint of the investigating officer as opposed to the truth of the assertion. State v. Soler, 93-1042 (La. App. 5 Cir. 4/26/94), 636 So.2d 1069, 1078, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, and 94-1361 (La.11/4/94), 644 So.2d 1055.
Deputy Cannizaro was the investigating officer who responded to the initial complaint of child sexual abuse. His testimony about what S.S. and her mother told him about the incidents was very general
Drs. Sonseeahray Bridges and Ellie Wetsman
Defendant next challenges the testimony of Drs. Sonseeahray Bridges and Ellie Wetsman. After Deputy Cannizaro‘s testimony, the state called Dr. Bridges. Before Dr. Bridges even took the stand, defendant objected to her anticipated testimony, and that of Dr. Wetsman, about what the victim told them during the medical exam. The trial court sustained the objection and the state noticed its intent to file a supervisory writ. This court granted the writ stating the trial court erred in sustaining defendant‘s objection to the doctors’ testimony as such testimony did not fall outside
Under the discretionary principle of law of the case, an appellate court will generally not reconsider prior rulings made in the same case on subsequent appeal. Reconsideration of a prior ruling is warranted when, in light of a subsequent trial court record, it is apparent that the determination was patently erroneous and produced unjust results. State v. Jacobs, 04-1219 (La.App. 5 Cir. 5/31/05), 904 So.2d 82, 88, writ denied, 05-2072 (La.4/28/06), 927 So.2d 282, cert. denied, ___ U.S. ___, 127 S.Ct. 385, 166 L.Ed.2d 276 (2006).
At the time this court decided the writ, Drs. Bridges and Wetsman had not testified. In light of the fact that we now have the testimony at issue available for review, we decline to apply the law of the case doctrine and choose to reconsider this issue.
(4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment. Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause of external source thereof insofar as reasonably pertinent tо treatment or diagnosis in connection with treatment.
Official Comment (b) under this article states, “[t]he phrase `reasonably pertinent to treatment or diagnosis in connection with treatment’ has been interpreted to limit the scope of this exception to the kind of statements that are usually relied upon by physicians in their diagnosis and treatment of patients. Thus, statements as to the cause of a condition not reasonably pertinent to diagnosis or treatment of it are not within the ambit of this exception.”
Having reviewed the testimony of Drs. Bridges and Wetsman, we find it questionable whether their testimony regarding what the victim told them by way of a history is admissible under
Likewise, Dr. Wetsman‘s examination, one week later, appeared to be for forensic purposes. Dr. Wetsman testified she saw the victim upon referral from the emergency room. She stated she examined the victim only one time and it was for the purpose of evaluating her for sexual abuse. A copy of the report she prepared in connection with her examination was sent to the Jefferson Parish Sheriff‘s Office. Her physical exam of the victim showed a thickened fold on the hymen but nothing was found in the victim‘s physical exam that either confirmed or denied sexual abuse. Although Dr. Wetsman testified on re-direct examination that the purpose of her exam was for diagnosis and treatment, such purpose was apparently subsidiary. See State v. Harris, 99-2845 (La.App. 4 Cir. 1/24/01), 781 So.2d 73, writ denied, 01-1225 (La.9/26/03), 854 So.2d 342, where the Fourth Circuit found a doctor‘s testimony regarding what the victim said during the examination to be inadmissible under
Even assuming Drs. Bridges and Wetsman‘s testimony regarding what the victim told them was inadmissible hearsay, any error in admitting this evidence can be deemed harmless. S.S. hеrself testified in detail at trial about the incidents she recounted to both Drs. Bridges and Wetsman. The testimony of Drs. Bridges and Wetsman about the statements the victim made during their examinations of her was consistent with the victim‘s own testimony. Additionally, defendant made several inculpatory statements. Thus, the evidence against defendant was very strong and it cannot be said the improperly admitted testimony of either Dr. Bridges or Dr. Wetsman contributed to the guilty verdict.
Detective Larry Dyess
Defendant also challenges the testimony of Detective Dyess, who was the assisting officer in the investigation. Detective Dyess testified he helped execute the search warrant of defendant‘s home and followed up with the condition of the victim at Children‘s Hospital. He stated that during the follow up at the hospital, he spoke to the victim, her mother, and the doctor. Thereafter, he returned to the detective bureau and relayed the information he obtained at the hospital to Detective Guillory, who was in the process of interviewing defendant. Based on the information he possessed, Detective Dyess testified he believed defendant had omitted the most sensitive information from his first two statements. He proceeded to interview defendant which resulted in defendant‘s third statement.
On dirеct examination, the prosecutor asked Detective Dyess what issue had defendant omitted. Defense counsel objected on the basis of hearsay and argued the question sought information about what
The only testimony about what Detective Dyess was told at the hospital was elicited on cross-examination by defense counsel and related to the allegations involving a hot dog. The only hearsay elicited was by the defendant and he did not object to the witness‘s response. Given these circumstances, there is nothing for this court to review, and defendant is not entitled to relief on this issue. See, State v. Cho, 02-274 (La.App. 5 Cir. 10/29/02), 831 So.2d 433, 447-448, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213, where this court found no merit in defendant‘s claim of inadmissible hearsay when the testimony was elicited by defense counsel on cross-examination and there was no contemporaneous objection. Furthermore, this testimony was harmless as it was cumulative and corroborative of other evidence at trial.
Omalee Gordon
Finally, defendant contends Omalee Gordon was also erroneously allowed to testify what the victim told her through the presentation of the CAC videotaped interview. It is unclear whether defendant is attempting to challenge the admissibility of the videotaped interview4 or Mrs. Gordon‘s explanation of the interview during her trial testimony.
Nonetheless, as noted by the state, defendant failed to objeсt to the admissibility of the videotaped interview of the victim or any portion of Mrs. Gordon‘s testimony. In fact, defense counsel specifically stated he had no objection to the admittance of the videotape into evidence.5
On direct examination, Mrs. Gordon testified only as to the interview procedure. The videotaped interview was played for the jury during Mrs. Gordon‘s testimony but she was not asked and did not testify as to what the victim told her during the interview. However, on cross-examination, defense counsel questioned Mrs. Gordon about specific questions she asked the victim and the victim‘s responses. Accоrdingly, defendant is not entitled to relief because he did not make an objection to the testimony, and in fact, he elicited the complained of testimony on cross-examination of the witness. State v. Cho, supra; see also, State v. Humphrey, 96-838 (La. App. 5 Cir. 4/29/97), 694 So.2d 1082, 1086, writ denied, 97-1461 (La.11/7/97), 703 So.2d 35.
Based on the foregoing discussion, we find that all of the arguments raised by defendant in this assignment of error are without merit.
ASSIGNMENT OF ERROR NUMBER THREE
In this assigned error, defendant argues the trial court erred in accepting
At trial, the state sought to qualify Dr. Wetsman as an expert in the field of child sexual abuse and forensic pediatrics. It established that Dr. Wetsman was board certified in pediatrics and had been previously qualified in other courts as an expert in pediatrics and child sexual abuse. Defense counsel traversed Dr. Wetsman‘s qualifications and established there was no board certification for forensic pediatrics. Dr. Wetsman explained a post training fellowship was recently developed in forensic pediatrics and included the areа of child sexual abuse. She stated forensic pediatrics is a sub-set of pediatrics and that work is being done to establish board certification for forensics. She further explained that the American Academy of Pediatrics has a section on child abuse and neglect.
Defense counsel stated he had no objection to Dr. Wetsman being accepted as an expert in pediatrics but objected to her being accepted as an expert in the field of forensic pediatrics or child abuse under the Daubert standard because it was not a recognized medical field. Defense counsel urged the trial court not to recognize the specialized field of forensic pediatrics and to limit Dr. Wetsman to an expert in pediatrics. The trial court ultimately accepted Dr. Wetsman as an expert as offered, which was in the field of forensic pediatrics and child sexual abuse.
Defendant‘s main argument is that the trial court erred in recognizing the field of forensic pediatrics and child sexual abuse under the Daubert standards. He seems to suggest there is no valid scientific connection to the field of forensic pediatrics and child sexual abuse because it is not a field for which a doctor can be board certified.
In State v. Foret, 628 So.2d 1116 (La. 1993), the Louisiana Supreme Court adopted the test for reliability of expert scientific testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as a guide to determining the admissibility of expert testimony under
Defendant does not state to which portion of Dr. Wetsman‘s testimony he objects. Dr. Wetsman‘s testimony primarily consisted of her examination of the victim and the diagnostic conclusions she reached as a medical doctor based on the examination.
In the present case, we cannot say that the trial court abandoned its role as a gatekeeper, abused its discretion, or made a manifestly erroneous determination when he qualified Dr. Wetsman in the field of forensic pediatrics and child sexual abuse. During defense counsel‘s travеrsal of her qualifications, Dr. Wetsman explained child abuse is a sub-set of pediatrics, that a post-training fellowship exists in child abuse, and that work was being done towards establishing board certification for forensics. Defendant fails to show how the lack of an opportunity for board certification in forensic pediatrics or child abuse renders the fields scientifically unreliable.
Accordingly, this assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER FOUR
Defendant argues the consecutive nature of his sentences, which exceed natural life, are excessive. He acknowledges that consecutive sentences arising from a single course of conduct are not рer se excessive but contends particular justification for the consecutive sentences is required. He asserts the trial court failed to give reasons for imposing his sentences consecutively.
Defendant filed a motion to reconsider sentence but failed to state a basis for the motion as required by
ERROR PATENT DISCUSSION
The record was reviewed for errors patent, according to
Accordingly, for the reasons set forth herein, we affirm defendant‘s convictions and sentences and remand the matter with instructions in accordance with this opinion.
CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.