hWe granted the state’s application to review the decision of the district court providing respondent with post-conviction relief from his conviction and sentence for aggravated rape in violation of La.R.S. 14:42. For the reasons that follow, the judgment below is vacated and respondent’s conviction and sentence are reinstated.
The state charged respondent with aggravated rape on the basis of allegations made by C.C., the granddaughter of Gayle Ardoin, respondent’s live-in partner, that respondent had repeatedly abused her sexually over the course of the several years she lived in the home with the permission of her legal guardian, Paula Martinez, Gayle Ardoiris sister. C.C.’s fortuitous revelations of respondent’s conduct during
|2To bolster C.C.’s testimony at trial detailing the respondent’s intense sexual abuse of her over the years, the state called three other witnesses to underscore for jurors respondent’s lustful disposition toward, and highly inappropriate behavior with, young females, although nothing he did with them approached his conduct with C.C. The state also elicited testimony from Detective Cher Pitre, lead investigator in the case, that C.C.’s revelations described a classic “grooming” scenario in which child sex abusers ingratiate themselves with their victims by giving them gifts, becoming their friends, and soothing them when another adult disciplines them as a gateway to escalating their sexual advances from mere touching to sexual intercourse. Pitre had known C.C. since the age of three, when the detective interviewed her in the course of investigаting allegations that C.C.’s father had been sexually abusing young girls. Pitre acknowledged that C.C. gave a statement to the effect that her father had put his penis in her “coonie.” The detective discounted the statement as obviously coached and the subsequent conviction of C.C.’s father and his registration as a sex offender did not involve any conduct with his daughter.
In his own testimony, respondent flatly denied sexually abusing C.C. and attributed her allegations of abuse to resentment over the fact that as she grew oldеr and became increasingly ungovernable, beyond the capacity of Ardoin to manage, as evidenced by C.C.’s chronic truancy from school, he stepped in and became the disciplinarian in the Ardoin household. Respondent testified that on the day C.C. went to the police with her allegations against him, he had consulted an assistant district attorney in the Office of Youth Development about her behavior and what steps were available to him to bring her under control. Ardoin also attеsted to C.C.’s increasingly volatile behavior and suggested that something else altogether may have been going on with her granddaughter. Ardoin recalled |sthat on one occasion when she visited the Percle residence and called out for her granddaughter, C.C. and Michael Percle stumbled out of a bedroom. C.C. was adjusting her underwear and skirt and Percle was looking nervous. When Ardoin asked what was going on, they replied, “We was playing.” As the prosecutor, assistant district attorney Mark Rhodes, acknowledged, by way of making the point on cross-examination that Ardoin did nothing about the incident and did not report it because she was a less than attentive guardian of C.C., “What you saw by any reasonable standard sounds like a young girl who’s being sexually involved with an adult man....”
In her own testimony, however, C.C. recalled for jurors that when she was 12 years old, respondent had sent her for a medical examination to determine whether she had become sexually active. The nurse practitioner who conducted a genеral medical examination took C.C. at her word that she was not sexually active and did not attempt more detailed physical findings. C.C.’s testimony prompted the prosecutor to ask whether she had in fact been “sexually active other than the things that Norman had done to you,” to which C.C. replied, “No.”
During pendency of respondent’s appeal, two events occurred that shaped the post-conviction proceedings initiated after this Court denied writs on direct review. In February 2009, C.C. reported to the police that she and a girlfriend had been riding around with a teenage boy, B.B., they had just met and that he had forced both of them to perform sexual acts. An arrest warrant issued for B.B., but only days after she made the complaint, C.C. met with prosecutor Rhodes, whо had developed a relationship with her over the course of preparing her testimony for respondent’s trial, and.admitted the report was false and that the sex with B.B. was consensual. The warrant for B.B. was never executed. At the end of October 2009, C.C. then revealed, as Gayle Ardoin’s testimony had suggested, that, in fact, Michael Percle had also been sexually abusing her during the same period of time respondent was molesting her. Detective James Daigle investigated the complaint and оn November 5, 2009, C.C. was interviewed at the Terrebonne Parish Children’s Advocacy Center, where she had also been interviewed after revealing respondent’s abuse of her. The investigation did not result in the arrest or prosecution of Michael Percle and Detective Daigle closed his file at the end of the year.
C.C.’s allegations against Michael Percle resurfaced, however, in Claim Three of an application for post-conviction relief filed by respondent in 2011. The appliсation quoted directly from a letter prosecutor Rhodes had written to respondent’s appellate counsel on March 23, 2011. The letter advised counsel that while C.C. had denied at trial sexual activity with anyone other than respondent, she had subsequently made allegations against a third party (Percle), “stating that the two molestations ... overlapped.” The letter further advised counsel that he | shad agreed with the detective handling the case they did not have “near enough to make аn arrest” because the victim “is a very troubled young girl and comes from a dysfunctional family,” who had been placed in therapy “to determine whether she would recant the story about the third party molestation.” Rhodes also acknowledged, however, that to date, “she had continued to state that she was molested by this third party.” The upshot of these revelations in the March 2011 letter, post-conviction counsel asserted in his Claim Three, was that “[t]his fact, which could not have been introduced at trial, coupled with the fact that C.C.’s father is a convicted child molester and that C.C. contends that two men very close to her, both of whom have served as father figures in her life, both molested her during the same time period, is highly probative and damaging to C.C.’s credibility and would have very likely caused the jury to render a different verdict.”
By the end of the hearings, respondent’s Claim Three had become embroiled in the standard proposed by this Court in State v. Conway, 01-2808 (La.4/12/02),
The argument persuaded the distriсt court that respondent had in fact made a successful claim under the Conway standard. Pretermitting respondent’s other claims, the court granted post-conviction relief on Claim Three because “[t]he evidence adduced at the [post-conviction] hearing, including but not limited to the child victim’s post-trial recanting of her prior denials under oath of having been abused by others, one of whom she now accuses of abusing her during the same time periods involved in his case and the other of whom she falsely accused, at the very least undermines the prosecution’s entire case and deprived the defendant of being able to use the information to cross-examine her at the trial.” The First Circuit denied review summarily. State v. Pierre,
In his brief to this Court, post-conviction counsel concedes that, in fact, respondent did not meet the Conway standard and that the district court “improvidently found that Respondent made a bona fide claim of actual innocence.” Counsel nevertheless argues that the court reached the correct result for an entirely different reason. It was clear from Detective Daigle’s testimony at the post-conviction hearing that investigation of the Michael Percle allegations 18came to an end at the close of 2009 and that his conversation with Rhodes must therefore have occurred during that time. Counsel argues that Rhodes in effect sat on the information for well over a year and that when he finally disclosed it to appellate counsel, not to trial сounsel or to respondent himself, on March 23, 2011, the time for filing a motion for a new trial on grounds of newly discovered evidence had grown so short that respondent was effectively denied the opportunity to move for a new trial based on newly discovered evidence pursuant to La.C.Cr.P. art. 851(3). Counsel takes as his premise that the one-year period for filing motions for a new trial on grounds of newly discovered evidence provided by La. C.Cr.P. art. 853 began to run from the date of finality of his convictiоn and sentence, April 16, 2010, when this Court denied review of the First Circuit’s decision. Counsel argues that the delayed disclosure deprived respondent of due process and alone justified the trial court’s grant of post-conviction relief.
Counsel did not make this argument in the district court but as the proponent of the court’s judgment granting respondent post-conviction relief and a new trial, he is entitled to assert any ground fairly supported by the record as a basis for upholding that judgment. State v. Butler, 12-2359, pp. 4-5 (La.5/17/13),
At a minimum, -however, the Conway standard requires the petitioner to satisfy the test of actual innocence established by the United States Supreme Court as the gateway for considering in federal habeas corpus review of final state court convictions claims of constitutional error otherwise prоeedurally barred by state law or by expiration of a statute of limitations. McQuiggin v. Perkins, 569 U.S.-,
At this extraordinary levеl, respondent must show in the present case more than a probability that reasonable jurors might divide over the question of C.C.’s credibility in light of the new evidence. As respondent readily concedes, he lacks new reliable scientific evidence, eyewitness testimony, or critical physical evidence of such persuasiveness that no reasonable juror would have convicted in light of the new evidence that did not, in any event, amount to C.C.’s repudiation of any of her trial testimony against him. And, as thе state has argued throughout these post-conviction proceedings, respondent has not made an affirmative case of “conclusive exoneration.” House,
Second, respondent has also failed to show that he was deprived of the opportunity to file a motion for new trial on grounds of newly discovered evidence and thereby deprived of a lower standard of materiality than Conway requires because his new evidence, even if not establishing actual innocence, “would рrobably have changed the verdict or judgment of guilty”
We have recognized that a prosecutor’s duty to disclose material exculpatory evidence does not end with a jury’s verdict and that “ ‘after a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.’ ” State v. Ortiz, 11-2799, p. 6 (La.1/29/13),
Even assuming, however, that Rhodes had a duty to disclose C.C.’s allegations against Michael Percle as soon as she made them, and wholly apart from the question of whether the new evidence actually satisfied the lower standard of materiality required by La.C.Cr.P. art. 851(3), the time for respondent to file a motion for new trial based on newly discovered evidence had already passed. A motion for new trial ordinarily must be filed and disposed of before sentence, but if it is based on newly discovered evidence, the motion may be filed “within one year after verdict or judgment of the trial court, although a sentence has been imposed or a motion for a new trial has been previously filed.” La.
In the present case, the jury returned its verdict on June 20, 2008. C.C.’s allegations against Michael Percle came to light at the end of October 2009, and the interview with the Children’s Advocacy Center then took plаce on November 5, 2009, well over a year after the jury returned its verdict. Article 853 plainly contemplates the filing of a motion for new trial during pendency of an appeal, i.e. at a time when the conviction and sentence are not final. Thus, finality of conviction and sentence on appeal relates only to when the motion may be heard, not when it may be filed. Cf. State v. Bolton,
114The passage of time, and not prosecutor Rhodes, thus dictated that respondent cast his lot with the extraordinarily high Conway standard as a basis for overturning his conviction and sentence in state post-conviction proceedings. As respondent readily concedes, he cannot meet that standard. Nor can he possibly show, as a ground for affording him a new trial, that a Confrontation Clause error occurred at triаl on the basis of a statement made nearly two years after the fact. The Confrontation Clause of the Sixth Amendment guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish.” United States v. Owens,
Respondent’s conviction and sentence are therefore reinstated and this case is remanded to the district court for consideration of respondent’s remaining claims for post-conviction relief.
CONVICTION AND SENTENCE REINSTATED; CASE REMANDED