Lead Opinion
11 Aftеr a bench trial, brothers, Lionel Serigne, Jr., and ■ William Serigne, Sr., were convicted of sex, crimes committed against juvenile family members. Lionel Serigne was convicted of the aggravated rape of his cousin, D.A., and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. William Serigne was convicted of the forcible rape of his cousin, D.A.; the sexual battery of his niece, B.M.; and the aggravated incest of his daughter, M.S. He was sentenced to serve a total of forty-four years >at hard labor without benefit of parole, probation or suspension of sentence. The defendants now appeal their respective convictions and sentences.
For the reasons that follow, we reverse the convictions of both defendants, and remand these matters for separate new; trials.
BACKGROUND
In 2009, D.A., then age thirty-nine, came forward to authorities to report sex crimes committed by her first cousins, brothers Lionel and William Serigne. She reported that the crimes had taken place commencing over thirty years prior when Lshe was six years old and continuing through and
On April 7, 2010, Lionel Serigne was indicted on a single charge of violation of .La. R.S. 14:42 A(4), aggravated rape of a juvenile (D A.). The indictment read:
During the year 1981, [Lionel Serigne] committed aggravated rape upon a juvenile, where, the vaginal sexual intercourse is deemed to be without lawful consent of the victim, to-wit: The victim is under the age of twelve years, in violation of 1950’ La. R.S. 14:42 A(4).
Also in 2010, William Serigne was indicted on . three charges, aggravated rape during the year 1981(D.A.), sexual battery on or about October 31, 2004 (B.M.), and, aggravated incest during the year 1998 (M.S.). The indictment as to the charge of aggravated rape read: .
During the year of 1981, [William Se-rigne] committed aggravated rape upon a juvenile, where the oral sexual intercourse is deemed to be without lawful consent of the victim, to-wit: the victim is under the age of twelve years, in violation of 1950 La.R.S. 14:42 A(4).1
The defendants filed variods motions including Motions to Quash and Motions for Bills of Párticular. On September 28, 2011, the State moved to amend |sboth of the indictments. Specifically, the State moved to amend Lionel Serigne’s indictment as follows:
[T]o substitute the date:- “Prior to the year 1981” for the terms: “ ‘on or about the day of ‘During the year 1981.’”
The motion to amend William Serigne’s indictment read:
[T]o substitute the date: “on or after March 28, 1981” for the terms: “ ‘on or about the day of .During the year 1981[.]” . ,
The State moved" to consolidate the indictments for trial. Also, in response to motions- in limine filed by defendants re-gar ding-- the State’s use of “other crimes” evidence, the State responded that until its motion to consolidate all matters for trial was granted, it could not state which “other crimes” would be before the trier of fact as part of its case in chief. The trial court denied the State’s motion to consolidate.
Being precluded from consolidating the two trials, the State convened a second grand jury and obtained a new indictment on May 30, 2012. This second indictment, which jointly indicted the defendants, added a new element of the charge of aggravated rape as to each defendant, and reflected different dates for the charged offenses. The indictment as to the aggravated rape charge against each defendant how read:
Count 1) That WILLIAM R. SE-RIGNE, SR., ... on or after March 28, 1981 until and throughout the year 1983, ... did commit aggravated rape upon D.A., date of birth December 27, 1970, by having sexual" intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the second offender being LIONEL" R. SERIGNE, JR.; when the victim was prevented front resisting the act from threats of great and immediateharm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[J
J^Count 2) ... LIONEL R. SERIGNE, JR., ... between and including the years 1976 and 1983, did commit aggravated rape upon D.A., date of birth December 27, 1970, ... by having sexual intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the’ second offender being WILLIAM R. SE-RIGNE, JR. [sic]; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[.]
Additionally, William Serigne was indicted on three other charges:
Count 3) ... WILLIAM R. SERIGNE, SR., on or after March 28, 1981 until and throughout the year 1983, did commit aggravated rape upon. D.A., date of birth December 27, 1970, by having sexual intercourse with D.A.; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE,
Count ¡4) ... between October 22, 2004 and November 1, 2004, WILLIAM R. SERIGNE, SR., did commit a sexual battery of B.M., date of birth July 25, 1996, in violation of LA. R.S. 14:43.1, to wit: SEXUAL BATTERY, by fondling the genitals , of the minor victim,
Count 5) ,. during the years 1983[sic], 1994, 1995, 1996, 1997, 1998 and 1999, WILLIAM R. SERIGNE, SR., did commit aggravated incest upon his biological daughter, M.S., date of birth October 19, 1987, by lewd fondling or touching, and engaging in.sexual acts with M.S., including in the alternative, sexual battery, molestation of a juvenile аnd other prohibited sexual activity considered a crime under the laws of the State of Louisiana, all in violation of LA. R.S. 14:78.1, to-wit: AGGRAVATED INCEST. . .
Prior to trial, each defendant filed a motion to sever parties and for severance of offenses. The trial court denied the motions (joint participation was now charged in Counts 1 and 2 of the .indictment), and the case proceeded to' trial. Lionel Serigne re-urged his motion to sever on the first day of trial before any witnesses were sworn. His motion again was denied. After D.A. testified, defense | ^counsel for both defendants moved for a mistrial and again urged a motion to sever, this time based on the fact that D.A. testified that the defendants did -not participate together in any act of sexual intercourse. Both motions were denied.
At the close of the State’s case, defense counsel re-urged the motions to sever the parties and the offenses. It was argued that D.A. stated unequivocally that Lionel Serigne and William Serigne did not participate together in connection with the alleged rapes, thus disproving the State’s charge pursuant to La. R.S. 14:42 A(5), which was the sole basis for the defendants being tried together. Although the motions were not entitled “Motion to Quash,” the re-urged motions to sever nonetheless had the same substantive complaint.
Counsel for both defendants also argued for a mistrial based on the fact that the indictment contained a charge, specifically violation of La. R.S. 14:42 A(5), that was not substantiated by the trial testimony. They requested that the trial court do an in camera inspection of D.A.’s grand jury testimony in light of the fact that her trial testimony revealed that Lionel Serigne and William Serigne did not participate together in any alleged rape of D.A.. The trial court denied both the defense’s re
On November 8, 2013, the trial court found William Serigne guilty on counts 1, 4 and 5. He was found not guilty on count 3. Lionel Serigne was found guilty on count 2 of the indictment.
In ruling on the counts of the indictment the trial court stated:
Count 1 before the Court is the defendant William Serigne, Sr., charged with aggravated rape pursuant to |fiLouisiana Revised Statute 14:42 of [D.A.] based on the victim being under the age of twelve. The Court finds beyond a reasonable doubt the defendant is guilty.
Count 2 before the Court is the defendant Lionel Serigne, Jr., charged with aggravated rape pursuant to Louisiana Revised Statute 14:42 of [DA] based on the victim being under the age of twelve. The Court [sic] beyonds [sic] a reasonable doubt the defendant is guilty.
Count 3 before the court is William Se-rigne, Sr. charged with a second count of aggravated rape of [D.A.]. The Court finds the defendant not guilty on the second count.
Court [sic] 4 before the Court is William Serigne, Sr., charged with a sexual battery pursuant to Louisiana Revised Statute 14:43.1 of a minor. The Court finds beyond a reasonable doubt the defendant is guilty.
Counsel [sic] before the Court is William Serigne, Sr., charged with aggravated incest pursuant to Louisiana Revised Statute 14:78.1, the Court finds beyond a reasonable doubt the defendant is guilty.
On its own motion, on November 22, 2013, the trial court amended its verdict on count 1, finding William Serigne guilty of the lesser and included offense of forcible rape. In its written reasons for amending the verdict, the trial court stated:
The court finds that the testimony of the victim proved that the sexual contact progressed throughout the years and got more severe until it finally reached full sexual penetration. At the end of the progression of sexual contact, the victim was at least' 12 years old and maybe. 13 years old and the defendant was 17 years old and possibly 18 years old. After years of forcing sexual contact with the victim including forcing the victim to have oral sex, defendant finally progressed to forcing the victim’s vagina onto his penis and penetrating her. The defendant’s years of physically forcing himself upon this young victim caused the victim to realize that her resistance would not be successful. The victim’s attempts of resistance were overcome by force and the defendant always got what he wanted and he always made sure he used enough force to accomplish his sexual |7acts (sexual touching, oral sexual contact, sexual penetration).
Due to the age of the victim and her lack of capacity to understand the sexual acts and the physical force used by the defendant over the course of three years the victim learned that her resistance to sexual conduct was unsuccessful. The sexual contact finally culminated by the defendant forcefully holding the victim with two hands and placing down hard enough to allow his penis to penetrate her vagina. This penetration occurred without the consent of the victim and with the victim’s resistance being met with force, which force was overcome on this occasion as happened on so many previous occasions.
The defendant turned 17 years of age on March 22, 1983. The court finds beyond a reasonable doubt that after the defendant turned 17 years of age he committed a sexual act involving vaginal penetration uрon the victim, D.A., whowas at least 12 years of age. The victim did not give her consent to the sexual intercourse and her resistance to the penetration was overcome by force of the physical actions of the defendant on the day of the rape and by the years of the defendant overcoming her with force making sure the victim knew her resistance to any and all sexual acts would do no good.
Following the verdict, the defense again filed motions to review D.A.’s grand jury testimony to demonstrate perjury, impeachment arid/or non-disclosure of exculpatory material, and to again argue that the motions to sever should have been granted. All defense motions were denied.
Following oral argument in this appeal, this Court ordered the State to produce D.A,’s grand jury testimony taken prior to the 2010 indictments and prior to the 2012 indictments. The requested transcripts were provided to this Court under seal.
Lionel Serigne raises four assignments of error; however, as we find he is entitled to a new trial based on an error patent, we pretermit discussion of them. |sWilIiam Serigne also raises four ■ assignments of error, two of which address the trial court’s denial of motions for severance and a motion for new trial. As we find the trial court erred in jointly trying Lionel and William Serigne together, entitling William Serigne to -a new trial, we preter-mit discussion of his other assignments of error.
DISCUSSION
Error Patent:
We find that binding Supreme Court and Fourth Circuit precedent requires a finding of reversible patent error as Lionel Serigne was charged by indictment with a capital offense, and he was therefore precluded from waiving a- jury trial.
On May 30, 2012, Lionel "Serigne was indicted for the aggravated rape of D.A. “between and including the years 1976 and 1983.”
The Louisiana Constitution of 1974, Article 1, § 17(A), requires that “[a] criminal case in which punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.” La. Const. Art. I, § 17; accord La.Code Crim. Proc. art. 782. Section 17 and Article' 782 specifically state that the jury cannot be knowingly and intelligently waived in a capital case.
Pursuant to La. R.S. 14:42, from the start date charged in the indictment, January 1, 1976, ■ through September 8, 1977, only the death penalty was available 'for those charged, with aggravated rape. The statute provided in pertinent part:
Whoever commits the crime of aggravated rapé shall be’punished by death.
During the.time span- of the indictment, the U.S. Supreme Court held the death penalty for rape to be unconstitutional. Selman v. Louisiana,
“[w]hoever commits the crime of aggravated rape- shall punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”
La. Acts 1977, No. 343.
In State v. Holmes,
[W]e conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Furman) interpret Article 7, Section 41 of the Louisiana Constitution as referring to classes of crimes, and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict. Id'. at 209 (adopting “classification” theory).
See State v. Flood,
Applying Holmes, we find its holding applies equally to aggravated rape for which the statutory .penalty remained death through September 9, 1977. State v. Rhymes,
In State v. Davies,
The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict. Williams,372 So.2d 559 , 560 (La.1979).
Therefore, applying the above precedent to the facts of this case, the indictment start date of January 1, 1976, clearly places the charge against Lionel Serigne into the capital case classification. See e.g. State v. Breaux, 08-1061, pp. 9-10 (La. App. 3 Cir.4/1/09),
As the Court in McZeal stated:
“The Constitution of the state has provided different tribunals for the trial of capital offenses, offenses necessarily punishable by imprisonment at hard labor, etc., and such procedure necessarily constitutes due process of law, and cannot be changed in any class of cases by a mere act of the Legislature.” Id. at 600. It follows, thereforе, that the defendant’s right to all of the procedural safeguards which accompany a capital charge remained intact. These necessarily included his right to be tried before a jury of twelve, all of whom must concur to render a verdict, and his right to have quashed an indictment joining this offense with another offense not triable by the same mode of trial. Consequently, the misjoinder of offenses in this case was not cured or rendered benign by Selman. ... “[T]he error must be recognized as ‘prejudicial to the substantive rights of the accused (and) a substantial violation of a ... statutory right.’ ” Id. at 605 (second ellipses original).
Notably, in McZeal, a unanimous jury convicted the defendant of aggravated rape (the error occurred in the joinder of a non-capital offense with the aggravated rape
The State argues that the United States Supreme Court’s ruling in 1976 declaring the death penalty for aggravated rape unconstitutional, and the 1977 amendment to La. R.S. 14:42 providing that the penalty for aggravated rape was life imprisonment, created a circumstance where only one year of the timespan (1976) charged in the indictment fell into the realm of a capital offense. The State therefore argues that the change in the law permits the State to choose between trying the case as either a capital or a non-capital offense. In support of this position, the State cites to State v. Hypolite,
Hypolite did not involve a question of waiver of a jury. Rather, it dismissed the defendant’s argument as to the constitutionality of Louisiana’s scheme of allowing non-unanimous jury verdicts in cases where life imprisonment must be imposed. The Third Circuit did not consider the assignment of error, as the defendant had not raised it in the lower court. Id., 13-1365, p. 25,
| ^Further, Goodley has not been overturned and thus remains our authority. We adhere to the Supreme Court’s consistent analysis and review of this issue, which extends from Holmes through Good-ley in its determination that La. R.S. 14:42 turns upon the determination of when the offense is alleged to have occurred in the indiсtment. As Justice Crichton observed, “It is imperitive to note that the bill of information sets the parameters and dictates the mode of trial.” State v. Dahlem, 14-1555 (La.3/15/16), — So.3d ——,
The Constitution and law of this state require capital/non-capital decisions to be made before a case is tried. La. Const. Art. I, § 17; La.Code Crim. Proc. art. 782, cmt. (c); Goodley,
Sufficiency of the Evidence:
Both defendants argue on appeal that there was insufficient evidence to convict them. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02),
In this case, however, we decline to review the record as to Lionel Serigne for sufficiency of the evidence, as we con-sidér the patent error to be a structural defect, which is a “deféct affecting the framework within which the trial proceeds, rather than simply an error in the trial
Therefore,- if the trial has been infected with a structural error, there has been no verdict within the meaning of the Sixth Amendment. See Sullivan v. Louisiana,
A verdict rendered contrary to constitutional or statutory authority is invalid and illegal. See State v. Davenport, 13-1859, p. 20 (La.5/7/14),
As , a general rule, the Double Jeopardy Clause of both the federal and Louisiana constitutions protects a defendant “against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California,
But, if there has been no legal verdict, a defendant is not placed in jeopardy. See Langley, 06-1041, p. 15,
An examination of La.Code Crim. Proc. art. 595 supports this view. Article 595 provides that “A person shall not be considered as having been in jeopardy in a trial in which ... [t]he court was illegally constituted or lacked jurisdiction.” La. Code Crim. Proc. art. 595(1). An “illegally constituted” court includes cases 117where a verdict was rendered by an unlawful number of jurors. See Goodley,
We find that Lionel Serigne’s case falls within the meaning of an illegally constituted court under the foregoing jurisprudence, thus rendering the verdict null and void. Likewise,' structural error occurred when Mr. Serigne was tried without a jury, of twelve, all of whom had to concur to reach a verdict, as required by Louisiana law. See Sullivan,
Accordingly, a review for the sufficiency of the evidence cannot be undertaken in a case where no valid verdict has been rendered when a -reviewing court’s two options are to either uphold the .verdict or to legally acquit. See generally State v. Hearold,
We how review the evidence adduced at trial relative to William 'Se-rigne. Th'e standard to' be used when reviewing the sufficiency of the evidence to uphold -a conviction is whether or not, viewing, the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved all of the essential elements of the crime charged beyond a reasonable doubt. Marcantel, 00-1629, p. 8 (La.4/3/02),
The testimony of a single victim or witness alone is usually sufficient to support a verdict, as appellate courts will not second-guess credibility determinations by the fact finder beyond the constitutional standard of sufficiency. State v. Dorsey, 10-0216, p. 43 (La.9/7/11),
The requirement that the evidence be viewed in the light most favorable to the prosecution obliges the reviewing court to defer to “[t]he actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.” State v. Mussall,
Courts have recognized that in sexual abuse cases that continue over time, exact dates often cannot be supplied. State v. Mazique, 09-845, p. 12, fn. 10 (La.App. 5 Cir. 4/27/10),
1. Sufficiency of the Evidence as to Forcible Rape ofD.A.
William Serigne was charged by indictment with the aggravated rape of D.A. on or after March 28, 1981 through the end of 1983.. He too was charged with having sexual intercourse with a child under the age of twelve, and that he and Lionel Serigne had jointly participated in the act. At trial, D.A. was shown a photo from January 1983, when she was twelve years old. . She testified that William Se-rigne raped her sometime between 1981 and 1983. D.A. testified that both defendants stopped sexually molesting her sometime in 1984. William* Serigne denies that he ever molested or raped D.A. He argues that D.A.’s testimony was inconsistent with her earlier statements and actions.
The trial judge found him guilty as charged on November 8, 2013, but issued a written amended verdict on November 22, 2013, finding Williаm Serigne guilty 'of the lesser and included offense of forcible rape, a violation of La. R.S. 14:42.1. The trial court stated that the evidence failed to show that D.A. was under the age of twelve at 'the time of the offense,' which was the only applicable aggravating circumstance in the aggravated rape statute during the relevant time period.
12f)La, R.S. 14:42.1, as in effect from September 8, 1978, through 1983, provided in pertinent part:
Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.8
The court finds that the testimony of the victim proved that the sexual contact progressed throughout the years and got more severe until it finally reached full sexual penetration.
Again, applying the standard of review, we cannot say that the trial court was in error in finding William Serigne guilty of forcible rape. .
2. Sufficiency of the Evidence as to Aggravated Incest of M.S.
In this assignment William Se-rigne argues that the evidence was insufficient to support his conviction for the aggravated incest of his daughter, M.S.
Count 5 of the indictment charged that William Serigne committed aggravated incest upon his biological daughter, M.S., “during the years 1983, 1994, 1995, 1996, 1997,1998 and 1999.”
The crime of aggravated incest, La. R.S. 14:78.1, was added to the Louisiana Criminal Code in 1993, by Acts 1993, No. 525, § 1, eff. June 10,1993. At the time it was enacted through 1999, the statute provided in pertinent part that:
| ⅞1 A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as ... biological child_
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity, constituting a crime under the laws of this state.
[[Image here]]
(3) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.
Williаm Serigne’s argument as to sufficiency is directed to M.S.’s credibility. M.S. testified that her father molested her/sexually abused her from when she was age five or six until she was twelve years old.
Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that at least one time during 1994-1999, William Serigne engaged in lewd fondling or touching of M.S. that was done with the intent to arouse his own sexual desires.
3. Sufficiency of the Evidence as to the Sexual Battery ofBM.
In this assignment, William Serigne argues that the evidence was insufficient to convict him of committing sexual battery on his niece, B.M., who was born July 25, 1996, by fondling her genitals between October 22, 2004 and November 1, 2004.
At the pertinent time, La. R.S. 14:43.1 provided, in part:
A. Sexual battery is the intentional engaging in any of the following acts, with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse ofj^the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus' or genitals of the victim by the offender using any instrumentality or any part of the .body of the offender; or
(2) The touching of the anus or- genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense. However, where the, victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section.
B.M., who was in eleventh grade at the time of trial, recalled having gone to a Halloween party at her aunt’s home in 2004, when she was eight years old. She testified that her parents gave William Serigne a ride home. She testified that he carried her to the car and sat her in his lap in the back seat. During the drive, she fell asleep and awoke to William Serigne touching her on her vagina, under .her clothes.
In 2010, when she was fourteen, B.M. met with Detective Rogers of the St Bernard Parish Sheriff’s Office. At trial, B.M. was shown her prior statement to Detective Rogers. In the statement, when asked whether William Serigne had touched her over or under her shorts or underwear, she- had replied: “I don’t know. I think it was under.” At trial she said she had not been siire when she made that statement, and she had been nervous or had not known how to verbalize it. B.M. had also stated that the touching had occurred for only- a few seconds.
As stated above, this Court is not to review the credibility of the witness’s testimony; therefore, viewing all- the еvidence in a light most favorable to the prosecution,' a- rational trier of fact could have found beyond a reasonable doubt that William Serigne inappropriately touched M.S. in 2004.
| ^William Serigne’s Motion to Sever; Misjoinder:
Having found that Lionel Se-rigne was mandated to have been tried by a jury, we must consider now the effect of trying William Serigne, all of whose charges were triable by either judge or jury, in a joint trial with Lionel Serigne.
Louisiana Code of Criminal Procedure art. 494 provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the samé act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of- the defendants need not be charged in each count. •
In the case of misjoinder of offenses, “[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or .provide whatever other relief justice requires.”- La.Code Crim. Proc. art. 495.1.
This Court reviews de novo questions of joinder. Further, federal authorities are persuasive. See State v. Patout,
| ¾As discussed previously, the defendants were charged by separate indictments in 2010. Lionel Serigne was originally charged with one count of aggravated rape of D.A., which was alleged to have taken place prior to 1981. William Serigne was charged with three unrelated counts (other than one common victim); the aggravated rape of D.A. alleged to have taken place “during the year 1981;” the aggravated incest of M.S.; and the sexual battery of B.M. The original indictments, as amended in 2011, set the time period for Lionel Serigne’s alleged rape as before 1981, and William Serigne’s as after March 28,1981.
Thus, the time frames set forth in the 2010 indictments, as amended, mutually excluded joint participation. There was no allegation by the State in either indictment that the defendants jointly participated in any crime. Despite the non-related indictments, the State moved to consolidate and sought to introduce evidence of both Lionel Serigne and William Serigne’s alleged actions regarding all alleged victims in the separate trials of each defendant. The defense moved to discover what, if any, “other crimes” evidence the State intended to use, to which the State responded that until its motion to consolidate all matters for trial was granted, it could not state which “other crimes” would be before the trier of fact as part of its case in chief. The trial court denied the State’s motion to consolidate.
After the trial court denied the State’s motion to consolidate the two cases for trial, the State convened a second grand jury, which returned one indictment charging both men with aggravated rape, and again charging William Serigne with aggravated incest and sexual battery. The indictment specifically charged that Lionel and William Serigne had jointly particípate ed in- the rape of D.A. The evidence adduced at trial, specifically the testimony of D.A., failed to establish that a joint rape had occurred.
12sWe find in this instance that an error did occur in the joint prosecution of the defendants, a prejudicial error that was not and could not have been known by the trial court without the benéfit of the grand jury testimony, ' but which error falls squarely on the shoulders of the State’s attorney in allowing the indictment to go forward.
The record reveals that defense counsel moved prior to trial to sever the parties and the offenses. The judge denied the motions and the case proceeded to trial. At the end of D.A.’s testimony and again at the close of the State’s case, counsel re-urged the motions to sever the, parties and the offenses, arguing that D.A. stated unequivocally that Lionel Serigne and William Serigne never acted together in connection with the alleged rapes, thus disproving the State’s charge pursuant to La. R.S. 14:42A(5). This new revelation totally negated the State’s charge as to La. R.S. 14:42A(5), which was the sole basis for the defendants being tried together.
Defense counsel also argued for a mistrial based on the fact that the indictment contained a charge, specifically violation of La. R.S. 14:42A(5), that was not substantiated by the trial testimony. They requested that they be allowed to review D.A.’s grand jury testimony to obtain the facts upon which the indictment was obtained, or, alternatively, .requested that the trial court do an in camera inspection, of the grand jury testimony. The trial court 'denied both the defense’s request to review
La.Code Crim. Proc. art. 434 provides for those instances when disclosure of grand jury materials are permitted. An exception to the requirement that grand jury testimony be kept secret was established in State v. Peters,
Following oral argument and based on the trial testimony of the victim, this Court ordered the State to produce D.A.’s grand jury testimony for both the 2010 and 2012 indictments. We reviewed the testimony to determine a basis for the State’s charge of joint participation.
The 2010 grand jury transcript reveals that D.A. denied that she was ever raped by William Serigne. This revelation explains why the State did not charge joint participation in the amended indictment, as it was a factual impossibility. Instead, the 2010 indictment, as amended in 2011, charged Lionel Serigne with aggravated rape prior to the year 1981, and charged William Serigne with aggravated rape
127In the second grand jury, D.A. testified that the alleged sexual acts progressed over time and that she was forced to have intercourse with Lionel on one occasion, and once with William. She stated that they would sometimes be together, but specifically stated that it was not during the two alleged acts of intercourse, again negating joint participation. Despite this, the State moved forward on the 2012 indictment charging joint participation in the aggravated rape.
Based on D.A.’s testimony before the second grand jury, it is clear that these two defendants should not have been tried together on the premise that they acted in concert to commit aggravated rape. See Patout, 00-2241, p. 39,
It is also apparent, with the benefit of the grand jury testimony, that the State was aware at the time it charged the defendants that they did "not act in unison. Despite this knowledge, the State re-indicted the defendants, and changed the dates for Lionel Serigne’s charge, apparently to overlap the dates of the charges to obtain | gRthe joint indictment based on “joint participation.” The defendants did not bеcome aware of these inconsistencies until D.A. testified at trial that the two defendants never acted together to commit rape, and that the single charge against Lionel Serigne was not related to William Serigne’s charges as to D.A.
In this case, as we now know, Lionel Serigne and William Serigne did not act together in committing an act of rape on D.A.,. as she testified at trial that the defendants acted separately. It is also apparent that the State knew D.A.’s first grand jury testimony did not implicate William Serigne at all in .an aggravated rape; and, that despite the State’s best effort by way of convening a new grand jury, D.A.’s second grand jury, testimony did not support the charge that Lionel Serigne and William Serigne acted together in an aggravated rape.
It is troubling to consider here that the State indicted the defendants for a charge of joint participation in commission of an aggravated rape, when the State had knowledge of evidence quite to the contrary. The defendants were apparently unaware that the additional charge against them, which resulted in a joint trial, was unsupported by evidence until D.A. testified at trial.
As a result of the joint participation charge, defense counsel for each defendant joined forces to prepare and defend the case. William Serigne was clearly tainted by the State’s overreaching theme that this was a family affair and a family secret. (The trial court was clearly influenced by this presentation. It stated in reasons for judgment that “as a result of this remaining a family secret ... another young woman ended up being at stake,” and “since this matter also remained a family secret, we’re up to now a third person.”).
Our review of the record convinces us that from inception of this case, the prosecution was a maladroit attempt to cumu-late and join various and unrelated laooffenses spanning more than two decades to further the State’s prosecution theme of exposing “the dark family secret.” The effort was fraught with misapplication of the law existing at the time of the alleged acts. It is clear to this Court that these two defendants should not have been tried jointly.
Brady/Giglio Material:
At the close of trial, in conjunction with a motion for mistrial, defense counsel requested that the trial court perform an in camera inspection of D.A.’s grand jury testimony.. The State argued that the issue of whether the defendants were guilty of joint participation in a rape of D.A. was now in the hands of the fact-finder, i.e., thе judge. The State’s attorney stated: “If at the conclusion of the case the finder of fact would conclude that ... there was not a joint rape as indicated in [the indictment], then actually the perfect remedy ... would be that the two defendants should be found not guilty, not a mistrial.” The Stated added that as the trial had commenced, the.' defendants would have to prove prejudice in relation
In her 2010 grand jury testimony, D.A. denied that she ever had sexual intercourse with William Serigne. In her 2012 grand jury testimony, D.A. testified that she was raped by William Serigne on one occasion. This change in.testimony was never revealed to William Serigne’s defense counsel, despite the State having full knowledge that D.A.’s recollections of alleged events thirty years earlier were constantly changing. Further, and perhaps more importantly, at no time, in any of her statements to the police or testimony before the grand jury, or at trial did D.A. ever state that William Serigne and Lionel Serigne acted together in raping her. ■
hnThe Louisiana Supreme Court has 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. Pierre, 13-0873, p. 11 (La.10/15/13),
The 2010 and 2012 grand jury transcripts were provided to this Court by the prosecutors, and, ostensibly had been reviewed by the State at some time after this Court requested them. It should have become blatantly obvious at that point that Brady material should have been provided to the defendants. The admission by D.A. in the 2010 grand jury that she did not have intercourse with William Serigne was completely exculpatory as intercourse was a fundamental element of the crime which William Serigne was charged — aggravated rape.
In State v. Higgins, 03-1980 (La.4/1/05),
As a. general matter, a defendant is not entitled to production of a transcript of a secret grand jury proceeding against him, even for use at trial in conducting cross-examination. La.Code Crim. Proc. art. 434; State v. Peters,406 So.2d 189 , 190-91 (La.1981). The purpose of this rule is not to protect a defendant or witness at a subsequent trial, .but to encourage the full disclosure of information about crime. Id.; see also State v. Ivy,307 So.2d 587 (La.1975). However, the rule of secrecy is not absolute. In some situations justice may require that discrete segments .of grand jury transcripts be divulged for use in subsequent proceedings. State v. Trosclair,443 So.2d 1098 , 1102-03 (La.1983)(citing Douglas Oil Co. v. Petrol Stops Nw.,441 U.S. 211 ,99 S.Ct. 1667 ,60 L.Ed.2d 156 (1979)). Thus a trial court Isimay act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment. Trosclair,443 So.2d at 1103 ; Peters,406 So.2d at 191 .
Non-disclosure of exculpatory evidence once requested violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady, supra; State v. Johnson, 48,325, p, 20 (La.App. 2 Cir. 9/18/13),
A “Brady” violation is composed of three elements:' 1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; 2) the evidence must have been suppressed by the State, either willfully or inadvertently; and 3) prejudice must have ensued. Johnson, 48-325, p. 20-21,
Reversible error occurs when failure to disclose the exculpatory material actually prejudices the defendant and the trial court’s failure to remedy the error demonstrates an abuse of discretion. Only when the defendant is “lulled into a misapprehension of the state’s case through the prosecution’s failure to disclose |s?timely or fully, and the defendant suffers prejudice,” ..., that basic unfairness results which constitutes reversible error., State v. Allen, ,94-2262 (La.11/13/95),
We have reviewed the 2010 grand jury testimony of D.A., and find that the State’s withholding of exculpatory evidence is reversible error. This non-disclosure clearly impacted the defendants’ decision to waive a jury (as discussed previously). Further, had this evidence been before the trial court, it may have ruled differently on key procedural motions, e.g., motion to sever defendants, motion for new trial. It is also compelling to consider that D.A. was the sole witness against both of the defendants, and that she was recalling memories from thirty years earlier. The reliability/credibility of D.A.’s testimony was clearly a factor in determining guilt or innocence. The withholding of the 2010 grand jury testimony, in which the sole witness recounted a completely different version of events than the version later given at trial, deeply prejudiced the defendants.
We find that William Serigne is entitled to a new trial.
Conclusion:
Accordingly, as Lionel Serigne was charged with a capital offense, he could not by law1 knowingly and intelligently waive a jury trial, with' the jury' returning a unanimous verdict. William Serigne was charged with three non-capital offenses, any of which could be tried by the judge or a jury. As such, the" two defendants should not have been tried together. Lastly, as both defendants were denied the benefit of crucial exculpatory evidence that weighed directly on the issue of guilt, and influenced their attorneys’ trial strategy, we And they aré both entitled to a new trial on these grounds.
| ^Therefore, the convictions of both defendants are reversed, and these matters are remanded for new trials in accordance with this opinion.
CONVICTIONS REVERSED; REMANDED
Notes
. We note that the word '‘oral’' wás not added to La. R.S. 14,:42A until 2001, by Acts 2001, No. 301, § 1, which also amended La. R.S, 14:41, the definition of rape.
. Furman v. Georgia,
. By La. Acts 1973, Nos. 125-26, effective July 2, 1973, the Legislature eliminated from La.Code Crim. Proc. arts. 813 and 817, the jury’s ability to qualify its verdict or render a responsive verdict of life in prison. The change suggests that the legislature believed that Furman’s invalidation of the death penalty turned upon wrongful allowance of this discretion. Rhymes,
. Notably, La. R.S. 14:42, which provides the penalty for aggravated rape, is not a procedural article,
. The United States Supreme Court has found structural error in a limited class of cases, including the total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of the defendant's race, deprivation of the right to self-representation at trial, the right to a public tical, and erroneous reasonable doubt instructions. See Neder,
. Davenport recently held that where the trial judge acts beyond his power or authority, his ruling of acquittal “is ultra vires and is of no effect.” .Thus, the .acquittal did not bar retrial of the defendant for the same crime.
. D.A. turned twelve on December 27, 1982.
.- Guilty of forcible rape has been a legislatively provided for responsive verdict to the charge of aggravated rape since 1975, prior to the dates of the allegation in Count 1 of the indictment. See La. Code Crim. Proc. art. 814(A)(8), as amеnded by Acts 1975, No. 334, § 1.
. As M.S. was not born until 1987, the year "1983" alleged in the indictment is presumed to be a typographical error that was supposed to read "1993.”
. The earliest date charged in William Se-rigne’s 2012 indictment for. aggravated rape was March 28, 1981, at which time it was no longer a capital offense. As such, William Serigne was free to choose- to be tried by either a judge or a jury.
. La.Code Crim. Proc. art. 434.1 provides for exceptions to the general rule. The exceptions are that the prosecution may disclose grand jury proceedings to others in law enforcement or prosecution, but those to whom the information is disclosed are also bound to secrecy. The district attorney shall disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury. The district attorney may also disclose to a witness at trial any statement of that witness, including the defendant if he testifies, that is inconsistent with the trial testimony of that witness. Acts 2012, No. 842, § 1, effective 8/1/12.
. The indictment charges that William Se-rigne had "oral sexual intercourse” with a victim under the age of twelve. "Oral sexual intercourse” was not added to the definition of rape, La. R.S. 14:41, until 2001. See La. Acts 2001, No. 301, § 1.
. We again note that La. R.S. 14:42 did not include “joint participation” until 1984. See La. Acts 1984, No. 579 (effective 9/3/84).
Concurrence Opinion
concurs with additional reasons.
hi respectfully concur in ordering new but separate trials of the two defendants.
I
With respect to Lionel Serigne, I elaborate on two points in the majority opinion: first, that the error identified regarding the jury waiver is an error patent, and, second, that the prosecution’s reliance upon Third Circuit jurisprudence is misplaced. •
A
First, it is important to establish that, because this specific issue constitutes an error patent, it falls within the scope of our appellate review, notwithstanding Mr. Serigne’s failure to include it in his brief. See State v. Goodley,
An error patent is one “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” See La.C.Cr.P. art. 920(2). For рurposes of an error patent review, the record in a criminal case “includes the caption, the statement of time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the mentioning of the impanelling of the jury, the verdict, and the judgment_” State v. Oliveaux,
B
The prosecution acknowledges that it charged Mr. Serigne with an offense that was classified as capital for the first year alleged in the indictment. Without citing any supporting authority, however, and contradictory to established jurisprudence, the prosecution claims that the “State was afforded the discretion to prosecute the aggravated rape against Lionel Serigne as either a capital or non-capital matter.” The prosecution rests this argument on the recent Third' Circuit decision in State v. Hypolite,
The defendant in Hypolite was charged with aggravated rape of a victim under the age of thirteen. The rape occurred in 2009. Prior to 1997, the statute provided that a person convicted of aggravated rape “shall be punished by death or life imprisonment ... in accordance with the determination of the jury.” In 1997, the Louisiana- legislature amended La. R.S. 14:42 to alter the offense of aggravated rape of a victim under the age of thirteen. Importantly, 1 the statute was also amended in 1997 to allow the district attorney to choose between seeking a capital Rverdict or a non-capital verdict in prosecutions for aggravated rape of a victim under thirteen.
(2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.
Thus, if the prosecution elects to pursue а capital verdict, even if the jury ultimately sentences the offender to life imprisonment, it must also comply with the procedural requirements for capital cases pursuant to La.C.Cr.P. art. 782 because the punishment “may be capital.” See also La. Const, art. I, § 17. But, however, if the prosecution chooses a non-capital verdict, where the only punishment is life imprisonment, then capital procedural rules do not apply.
Notably, the offense in Hypolite occurred after the 1997 amendments, and the prosecution was pursued as a non-capital offense, as allowed by the statute.
I also note that the Third Circuit reached a different conclusion when faced with facts similar to Lionel Serigne’s case. See Breaux, 08-1061, pp. 9-10,
The prosecution also argues that because the death penalty could not be legally carried out in light of Kennedy v. Louisiana,
II
I turn now to address the result with respect to William Serigne’s appeal.
•A
From our examination of D.A.’s testimony, it is clear that her trial testimony was consistent with her grand jury testimony of April 7, 2010 and of May-30, 2012 with respect to the non-participation of the brothers together in any act of intercourse. But’ during our examination of the grand jury transcripts we | ^discovered an inconsistency in her 2010 grand jury testimony from that of her trial testimony.
The discrepancy pertains to an essential element of the offense for which Mr. Se-rigne was charged (aggravated rape) and for which he was adjudged guilty (forcible rape). At.trial D.A. testified that.he sat her on top of his lap. with her “panties down” and was putting his penis into her vagina. '-When questioned how it felt to have his penis in her vagina,- she replied that it hurt. She testified that this-was the only occasion on which they had intercourse and that she was certain it occurred between 1981 and 1983. During her 2010 grand jury testimony, however, she testified that “William would always touch. He would also ask me to perform oral sex but no intercourse.” (emphasis added). “Oral intercourse,” however, as we note, was not added as an element of the applicable rape statutes (La. R.S. 14:41,14:42, and 14:42.1) until 2001. And, of course, a conviction of William Serigne for rape (aggravated or forcible) based upon proof of oral intercourse would violate the federal and state constitutional prohibitions on ex' post facto laws. See Article I, § 10; La. Const, art. I, § 23; Collins v. Youngblood,
B
“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland,
That the Brady material is contained in grand jury testimony is of no moment. The statutory provisions regarding the secrecy of grand jury proceedings and testimony by their own explicit terms yield to Brady. See La.C.Cr.P. art. 434.1 B (“The district attorney shall also disclose to the defendant material evidence favorable to the defendant that was presented to the
' And, similarly, it is of no moment that it was an assistant district attorney
We, regrettably, have no indication whatsoever that the prosecutor has made any disclosure to Mr. Serigne about the inconsistencies between D.A.’s grand jury and trial testimonies.
C
It is true that the mere possibility that a piece of undisclosed evidence might have helped the defénse or might have affected the outcome of the trial, does not establish “materiality” under the Fourteenth Amendment. See Agurs, 427 Ú.S. at 109-10,
| sWilliam Serigne need not show that.it is more likely than not that he would have been acquitted had the evidence of D.A.’s grand jury testimony b,e admitted. See
I am satisfied that the trial judge in this case should have reviewed the grand jury transcripts in camera for the purposes of determining whether disclosure of favorable evidence was required. See State v. Higgins, 03-1980, pp. 35-36 (La.4/1/05),
LANDRIEU, J., dissents and assigns reasons.
. Hypolite cites a First Circuit case in support of its conclusion that the addition of a "hybrid" statute in 1997 gave the prosecution the discretion to choose whether to capitalize a case or not, and therefore capital procedural rules did not apply if the state did not pursue a capital verdict. See State v. Mizell, 05-2516, p. 7 (La.App. 1 Cir. 6/9/06),
. The Third Circuit noted that the prosecution had failed to state explicitly whether it was pursuing a capital or non-capital verdict, but the court found that all the circumstances indicated it was pursuing a non-capital verdict.
. For reasons not apparent from the record, the district attorney recused himself between indictments.
. We understand that this assistant attorney general died before the trial.
. The rule, in at least one aspect, imposes a more onerous burden thán Brady requires in light of its requirement that the prosecutor not only disclose exculpatory evidence, but also evidence that tends to mitigate the offense. See Kyles,
. In colloquially referring to this concealed evidence as "new,” I do not overlook an important distinction: "the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial” as is the usual case with a motion for new trial based on newly discovered evidence. Agurs,
Dissenting Opinion
dissents and assigns reasons.
|tFor the following reasons, I respectfully dissent from the majority’s reversal of Lionel Serigne’s conviction of aggravated rape and William Serigne’s convictions of forcible rape, sexual battery, and aggravated incest.
This case involves sexual abuse of children perpetrated by the two defendants, who are brothers, upon female family members, beginning with the molestation of their cousin D.A. in the late 1970’s and early 1980’s. D.A. did not reveal this molestation to anyone until approximately 1992, when, at the age of twenty-one, she attended a family event and saw her cousin, Lionel Serigne, walk into the room carrying his four-year-old niece, M.S., who was also D.A.’s cousin. D.A.’s concern for M.S. prompted her to reveal her childhood abuse by Lionel to her mother, which resulted in a “family meeting” at which D.A. confronted Lionel about his abuse of her. D.A., her parents, Lionel, his parents, his then fiancée, and his uncle agreed at that time to keep D.A.’s accusations private and to handle the matter within the family. D.A. did not reveal then that she also had been abused by William Serigne. She testified that after the family meeting, all contact between her nuclear family and the Serigne branch of the family essentially ceased. Approximately twenty years later, M.S. disclosed that she had been sexually abused as a child by her father, William Serigne. This disclosure prompted D.A. to | ¿report her abuse by both Lionel and William to the police, at the same time that M.S. and a third victim, B.M., came forward with their allegations against William. The grand jury testimony of these three victims led to the indictments of Lionel and William in 2012.
The majority concludes that the evidence presented was sufficient to convict both Lionel and William on the charges of which they were found guilty. I agree with this conclusion. I disagree with the majority’s reasons for reversal of the convictions, which I address separately.
I. Lionel Serigne
The majority concludes that “binding Supreme Court and Fourth Circuit prece
D 2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of Code of Criminal Procedure Art. 782 rеlative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.
Article 782 states, in pertinent part:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.
In 2008, prior to Lionel’s indictment, the death penalty as provided in La. 14:42 D(2) was declared unconstitutional by the United States Supreme Court (“Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child ... is unconstitutional under the Eighth and Fourteenth Amendments.”) Kennedy
^Nevertheless, the appropriate inquiry to decide whether Lionel Serigne- could legally waive his right to a jury is whether the Í997 amendment “hybridizing” La. R.S. 14:42,- which was in effect at the time of Lionel’s indictment and trial but not at the time of the commission of the crime, should be applied retroactively to him. The majority fails to address this issue. Although neither the Louisiana Supreme Court nor the Fourth Circuit has considered ' this issue, other appellate circuits have. As explained below, after reviewing the applicable law and jurisprudence, I conclude that the amendment is procedural in nature insofar as it delates to the mode of trial. As such, the amended version of La. R.S'. 14:42 was applicable to Lionel Serigne. Under that version, because the State never sought (or could have sought, given its' unconstitutionálity) the de’áth penalty, the trial court’s allowing Lionel to waive a jury trial was not an error, much less an- error patent.
Lionel Serigne was indicted in 2012 for aggravated rape of D.A., “between and including the years 1976 and 1983.” In convicting Lionel, the trial judge found the rape occurred in 1981 when D.A. was ten or eleven. The cases relied upon by the majority stem frоm 1972 to 1981, an era when Louisiana was grappling with how to adjust , its laws to comply with a series of United States Supreme Court decisions (Furman v. Georgia,
In the seminal case cited by the majority, State v. Holmes,
Although the hiatus is obvious and the situation undesirable, we conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Fur-man) interpret Article 7, Section 41 ofthe Louisiana Constitution as referring to classes of crimes; and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict. ,
Id.,
The issue to be decided is whether the system оf ‘classification’■ of crimes _ as announced in Flood and Holmes still applies to render second degree murder non-bailable under C.Cr.P. Article 313.
In Holmes the majority held that even though the United States Supreme Court in its decision in Furman v. Georgia,408 U.S. 238 ,92 S.Ct. 2726 ,33 L.Ed.2d 346 (1972) declared the death penalty unconstitutional as it was then imposed, this did not destroy the system ■of classification of crimes in Louisiana. In Holmes the majority held ‘ murder should be classed as a capital offense ‘at least until the legislative process has reorganized the criminal.law and procedure in view of Furman.’ Murder, prior to the 1973 amendments, was still classified in the. statute as a capital crime, although the penalty , of death could not be enforced. Accordingly, in Flood, the majority held. that those persons charged with ‘capital.offenses’ were not entitled to-.bail where the proof was evident or the presumption great.-
The legislature has now acte'd ahd reorganized the criminal law in defining murder. The capital offense of murder is, now'defined by R.S. 14:30. Second degree murder under R.S. 14:30.1 is not now classified as a' capital offense. There being no death péñálty 'for the crime with which defendant is Charged, bail must be granted.
Washington,
Despite the comparable evolution of Louisiana’s statutory and procedural' law on aggravated rape since the Holmes decision, however, the majority finds not merely error, but an error patent, based upon the fact that, a tangentially-related line of cases following Holmes from 1972 to 1981 has not been overruled. Not one of :these cases is directly on point. Moreover, having been decided long prior to the amended version of the aggravated rape statute in effect at the time of Lionel’s trial, none addresses the issue presented here — which is whether the amendment applied retroactively to Lionel.
In State v. Washington, 02-2196, pp. 2-3 (La.9/13/02),
17First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends_ [T]he second step is to classify the enactment as either substantive, procedural or interpretive.' Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for еnforcing a substantive right and relate to the form of the proceeding or the operation of laws.
Laws that are procedural or interpretive may be applied retroactively.
Id. (Citations omitted).
The Louisiana Supreme Court has consistently held that changes in procedural rules made after the commission of the offense, but before the commencement of trial, may be employed at a defendant’s trial. See State v. Loyd, 96-1805, pp. 12-13 (La.2/13/97),
In State v. Kinsel,
Although LSA-R.S. 14:42 D(2)(b) was not in effect at the time that defendant committed the alleged offenses, it had been enacted prior to the time of defendant’s trial. We find this procedural provision applicable to the instant case. As a result, the provisions of C.Cr.P. art. 782 were properly triggered when the state did not seek the death penalty. Accordingly, we find that the trial court did not err in failing to require a unanimous verdict for defendant’s aggravated rape conviction.
Id., pp. 12-13,
Relying on Kinsel, the Fifth Circuit in State v. Singleton, held that a defendant convicted in a bench trial of aggravated rape of a child was legally entitled to waive a jury trial, reasoning:
While no cases were found directly on point, the following cases lend guidance for this court’s analysis of this issue. In State v. Louviere, 00-2085 (La.9/4/02),833 So.2d 885 , 893, cert. denied,540 U.S. 828 ,124 S.Ct. 56 ,157 L.Ed.2d 52 (2003), the Louisiana Supreme Court noted that the right to trial for criminal defendants derives from Article I, § 16. It decided that nothing in Article I, § 17 required the jury to decide all phases of the trial, from indictment to sentence, and that only the issue of the ultimate penalty of death is strictly required to be put before the jury. In this case, which involved a. defendant who pled guilty to first degree murder, the court found that the Louisiana Constitution did not preclude defendant from pleading guilty and waiving a guilt-phase jury trial.
State v. Singleton, 2005-0622, pp. 8-9 (La. App. 5 Cir. 1/31/06);
Similarly, in State v. Lewis,
Recently, in State v. Hypolite,
We agree with appellate counsel in that the State made no indication in the grand jury indictment as to whether or not it was charging Defendant with aggravated rape as a capital or non-capital offense. However, there is nothing in the record to indicate that the State was charging Defendant with a capital offense. In fact, the record supports |T1a finding that the State was pursuing a non-capital offense. The trial court informed the jury, without any objection or comment by either the State or the defense, that the possible imprisonment was life.... Finally, as argued by the State in brief, the death penalty was not an option in this case in light of the Supreme Court’s ruling in Kennedy v. Louisiana,554 U.S. 407 ,128 S.Ct. 2641 ,171 L.Ed.2d 525 (2008), that the Eighth Amendment of the United States Constitution prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to re-suit,, in the victim’s death.
Id., p. 17,
As previously noted, there is no evidence in this record that the State ever sought the death penalty against Lionel Serigne. Considering the applicable law and jurisprudence, I find that the trial court was not required to apply the procedural rules applicable to capital cases in this case. I therefore' conclude that,'pursuant to La. R.S. 14:42 D(2)(b), the trial court’s having allowed Lionel Serigne to waive a- jury t&l was not-error. '
II. William Serigne
The majority reverses William’s conviction on the. basis that the trial court abused its discretion by denying his motion for new trial and by refusing to order D,A.’s grand jury "testimony for in camera inspection prior to deciding the motion for new trial. The majority finds that William should be granted a new trial because he
The majority begins its analysis by suggesting that the State acted improperly.by withdrawing the separate indictments of these two defendants, |19which were based upon the 2010 grand jury proceedings, convening a second grand jury in 2012, and re-indicting the defendants jointly, based upon D.A.’s 2012 grand jury testimony. In 2010, D.A. told the grand jury that Lionel and William had molested her together but had not been together when Lionel raped her, saying: “There were times where William would be there, and they both would touch me — not during — it wasn’t during the time where there was actual, if you want to call it intercourse, not that both of them were there then.” She further testified that Lionel had penetrated her vaginally at least once, and that William had forced her to perform oral sex on him. She said: “They would both be in the room, you know, touching me. Lionel was more the one that would say do this or do that, and William, would do it.” The majority correctly notes that in 2010, D.A. did not testify that William had raped her or that William had been present when Lionel raped her. Then in 2012, D.A. told the grand jury that on one occasion, William “actually had me sit on top of him,” which incident had not been apparent to her as rape at the time of her 2010 testimony but which she now knew to be penetration. She continued to maintain that although there were times when Lionel and William were together while exposing themselves to her, they were not together when either one penetrated her. She indicated that the incident where William had her sit on top of him occurred downstairs in the basement. The incident with Lionel happened upstairs. D.A. said both Lionel and William were downstairs with her just before Lionel took her to an upstairs bedroom and raped her, with William remaining downstairs and Lionel rejoining William afterward.
Comparing the two testimonies, the majority concludes that the sole reason the district attorney could have had for withdrawing the separate indictments and convening á second grand jury was to obtain a false basis upon which to indict the' two defendants jointly and try them jointly. I disagree. The transcript of D.A.’s 2010 testimony reveals that the grand jurors were then ’ instructed that “oral | ^intercourse,” specifically, “the touching of touching of the genitals of the offender by the victim using the mouth of the victim” fit the definition of aggravated rape. However, as the majority cоrrectly points out, La. R.S. 14:41 was not amended to include oral intercourse in the definition of rape until 2001. Therefore, although oral intercourse was part of the definition at the time the 2010 grand jury met, it was not defined as rape at the time the offenses were allegedly committed. Because the change in defifiition is arguably a substantive change in the law, it is a reasonable possibility that the district attorney convened a second grand jury because he recognized that the first grand jury had been wrongly instructed on the applicable law. This explanation is, at the very least, as plausible as the one suggested by the majority. In any case, it is impossible to determine from this record why the State chose to convene a second grand jury, and the majority’s speculation as to the State’s motive for doing so serves no purpose.
Based upon the second grand jury, the State jointly indicted the two defendants in 2012 for aggravated rape, alleging that .they participated together in the act of. raping D.A. Whether that indictment was
On appeal, William argues that the trial court erred by denying his motion for new trial, in part because it was unjust to try him jointly with Lionel. In this respect, he adopts Lionel’s arguments regarding misjoinder, severance and the trial 114court’s refusal to review the grand jury testimony. La. C. Cr. P. art. 851, governing motions for new trial, states, in pertinent part:
A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence.
(2) The court’s ruling on a written motion ... shows prejudicial error.
[[Image here]]
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a mаtter of strict legal right.
The above-cited grounds are the only Article 851 grounds arguably raised by the defendants’ motions for new trial.
In deciding whether the trial court in the matter before us abused its great discretion in granting a new trial solely on La.Code Crim. Proc. art. 851(5), we keep in mind two precepts. One, in this provision the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. State v. Bolivar,224 La. 1037 ,71 So.2d 559 , 560 (1954). Two, “[t]he motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.”
State v. Guillory, 2010-1231, p. 4-5 (La.10/8/10),
| tfiWilliam essentially argues that his being tried with his brother was unfairly prejudicial to him because there was no evidence to indicate that he and Lionel acted together in molesting D.A. At trial, D.A. clearly testified that Lionel and William raped her on separate occasions in
A trial court’s denial of a motion to sever will not be disturbed absent a clear abuse of discretion. State v. Everett, 2011-0714, p. 33 (La.App. 4 Cir. 6/13/12),
Under these guidelines, I cannot say that the trial court abused its discretion by declining to grant William a new trial. In his argument that trying him with his brother was unjust, William points to the State’s repeated references to “family secrets” in its opening statement.. The majority finds that William was unjustly prejr udiced by being tried jointly with Lionel because the trial court indicated in its reasons for judgment that “as a result of this [D.A.’s allegations of abuse by Lionel] remaining a family secret ... another young woman [and then ultimately, a third person] ended up at stake.” I disagree that these comments demonstrate prejudice or injustice to William.
In order to determine whether William was unfairly prejudiced by the joint trial, it is necessary to consider the evidence heard by the trial judge. The State’s primary witnesses at trial were the three victims and their respective mothers.
D.A. and her mother, M.M.
At the time she testified, D.A. was forty-two years old and the mother of three children, who were then ages twenty-five, eighteen and thirteen. D.A. testified she had been sexually molested on multiple occasions by her cousin, Lionel, beginning in approximately 1975 when she was four years old, and also by Lionel’s younger brother William, beginning when she was about nine years old. She testified that both cousins had stopped abusing her by 1984, at which time she was thirteen.
D.A.’s mother, M.M., testified that she had three daughters, one of whom was D.A., who was born on December 27,1970. M.M. was married to the defendants’maternal uncle, making the defendants, Lionel and William, D.A.’s first cousins. From the time D.A. was born until early 1976, her family resided on Florissant Hwy., one lot over (a vacant lot with a large oak tree was in between the two homes) from the defendants’ (Serigne) home. The two famines saw each other every day during that period. The children played together, going' in and out of the respective family homes during the day.' The Serigne family home was raised, with a large cinder-block-enclosed basement area divided by an inside stairwell going up to the living area of the residence. According to D.A., Lionel (eleven years older than her) began abusing her in the basement of the Serigne home during the time her family lived next-door. After her family moved to Ycloskey when D.A. was five, the incidents of abuse by Lionel and William, who also began
|17D.A. testified that she told no one about-'the abuse at the time because she was scared of the defendants and of their mother, who was “mean”' The abuse continued until 1984. D.A. kept quiet until sometime in 1991 or 1992 when she attended a family reunion at the Ycloskey Community Center. She was about twenty-one years -old at the time. D.A. got upset when she saw her cousin Lionel-walk into' the room holding her younger cousin, M.S. (approximately four years old at the time), who was William’s daughter. D.A. testified that when she. saw the two of them together, she got “sick” and called her flanee, B.A., to come get her, which he did. D.A. then told her fiance about what Lionel had done to her. D.A,’s mother, M.M., was also at the reunion and noticed that Lionel and William came in together, with Lionel carrying M-S. When M.M.- looked for D.A., she was' told her daughter had left crying. Later that night, D.A.’s fiance came to M.M.’,s home and told, M;M. what her daughter had said to him about Lionel. M.M. spent the whole night crying. When she- did talk to her daughter, D,A. confirmed that Lionel had molested and raped her at the house оn Florissant Hwy,
A day or so later, D.A. and-her parents met with Lionel, his parents, and- his then fiancée,- P.S., at a home across from the Serigne family boat launch -in Delacroix. At this meeting, D.A.- confronted Lionel with her accusations, which he denied. There was screaming and shouting. M.'M. recalled the meeting as being vicious, saying things got physical. D.A. “got in [Lionel’s] face.” When he refused to admit anything, she punched him. The meeting concerned only Lionel, as D.A. had not yet told anyone about William, and did not mention him at the meeting.
Approximately eighteen years after the family meeting, William’s' wife, J.B., went to see D.A.
At trial, D.A, was shown photographs depicting her and other family members, including the defendants, at various ages, to aid in her recollection of- the specific incidents: of abuse.
When D.A. was four, Lionel would sit her down in a room in the Serigne basement. There was a freezer and “bags of salt in there.” Lionel, who would have been fifteen at that time, would expose .his erect penis to her, grab her hand, and then make her put her hand on his penis and leave it there. D.A.’s mother recalled that one time when D.A. was about four, she had come home from playing with her panties inside out but did not have an explanation, except to say she had gone to the bathroom. Lionel was still making her touch his penis when D.A. was seven. She remembered that there was fluid, which he would want her to touch. 11flLionel sometimes would take off D.A.’s pants and panties, look at her vagina, and masturbate. He also would take her hand, put his semen in it, and ask her to put her hand in his mouth. If she refused, he would put the semen on his' own hand and put it in her mouth. When D.A. was about seven and one-half years old, Lionel began touching her vagina with his fingers while he stood looking, with an erection. When asked whether there was anyone else involved at that time, D.A. said no. Lionel did these things to her whenever she and her family went to her paternal grandparents’ home.
D.A. was shown a photograph from December 1981, when she was about eleven, and was asked by the prosecutor: “[Sjometime between 1978 and the- end of 1981, was there any different sort of activity between you and Lionel?” D.A. replied yes. She said that once during that time period, Lionel took her into a bedroom in his family’s home on Florissant Hwy., removed her bottoms, “forced himself on top of her, and put his penis in her vagina.” She knew he had put- his penis inside her because: it hurt. He was moving while on top of her, which hurt and burned, but it did not last long.
There were no other incidents involving penetration by- Lionel: However, by December of 1981, William was also molesting D.A. He would expose his erect penis to' her in the basement, wanting her to take off her panties and her‘bottoms, and would then touch and look at her. Over the years he got more aggressive, wanting her to hold his penis in her hand and to taste his semen, and putting it on her lips. About January of 1988, when she was twelve years old, William took her in the basement, sat on the bags óf salt with his pants off, had her sit in his lap with her panties off, and put his penis in her vagina. It hurt, but there was no movement because she stopped him and got up. D.A. said that this one instance, which occurred sometime between 1981 and 1988, was the only time William penetrated |2nher. Both defendants stopped molesting her sometime in 1984, by which time D.A. had stopped going to her grandparents’ home.
M.S. and her mother, J.B.
M.S., the daughter of J.B. and William, was twenty-six years old on the date she testified at trial. Her allegations of abuse by her father first came out on Thanksgiving night in 2008, when she was twenty-one. After leaving a friend’s bar with her father, m,other, and boyfriend, the group stopped at the Par 3 Diner to get something to eat, but it was closed. M.S., who was drunk, was 'beating on the back door of the diner when her father-grabbed, her arm to get her to leave.. When; he did, M.S. yelled at him, telling him not to touch her. According to her mother, J.B., M.S. told William: ,“[D]on’t fing touch me ever again. You know what I mean ...” M.S.
I When the three of them arrived at E.N.’s home, William was sitting in his truck outside. William and M.S. got into a confrontation in which William called his daughter a liar. When M.S. went inside E.N.’s residence for the night, it was the last time she ever spoke to her father. When J.B. went home that night, William again insisted that M.S. had been lying. The next day, J.B. went to E.N.’s to talk with her daughter, who said her father had been making her touch his penis and had been touching her vagina for as long as she could remember. M.S. told her mother she did not want to be around her father anymore. When William got home that day, J.B. again asked him whether M.S. had been telling the truth. William never answered her but took the palms of his hands, leaned on the kitchen bar, and began crying. J.B. said M.S. did not want to go to the police yet because she wanted to make sure it was the right thing to do.
The first incident of abuse M.S. remembered happened when she was about five or six years old and in the first grade. At this time the family was living in a double-wide trailer on Suzy Drive. It was a night when her mother was at bingo, which J.B. used to play three or four nights a week. On these evenings William would watch the children. M.S. and her father were hiding in a closet while playing hide-and-go-seek with her younger brother. M.S. felt her father’s erect or partially erect penis “[ijnside of his boxers or briefs, whatever they were,” on her backside, her buttocks. The second incident occurred in the same trailer in her parents’ bedroom, also when her mother was at bingo. M.S. was little older. She remembered standing while her father sat on his bed and touched her vagina with his hand, over her underwear. Her mother came home, and she ran out of the master bedroom. She remembered that her mother had won a bingo “pot” that night and was excited about it. Her father also came to M.S.’s bedroom in the trailer “numerous times” between 3:00 and 4:00 a.m., before he left for work. William worked at the Serigne Boat Launch and generally arose at approximately | gg3:30 a.m. On these occasions he would “creep up next to M.S.’s bed,” “work” one of his hands underneath the blankets, and touch her vagina over her underwear. She would not really be sleeping because she “knew he was coming.”
The family moved to Sylvia Blvd. in 2001. The early morning incidents of molestation continued there, where M.S.’s bedroom was on the second floor, directly
In. junior high and high school, M.S. began to act up. Her grades.dropped, and she began drinking alcohol and using drugs. She ran away from home a few times. M.S. began dating E.N. when she was fifteen, and the relationship lasted until she was twenty-two. When M.S. was. about sixteen, she ran away, came home drunk, and had a very aggressive argument with her mother, whom she slapped. Afterwards M.S. went upstairs and slit her wrist, resulting in her being placed in “River Oaks” (a psychiatric treatment facility) for a time. She did not report any sexual abuse by her father to her therapists while she was at River Oaks.
M.S. agreed with her mother’s description of her as a “Daddy’s girl.” She explained the loving message on a Father’s Day card she had given William since the alleged abuse by saying that she did love her father, but was not happy he was | Pathe father she had. Despite what he had done to her, she was grateful to him for having provided her family, noting that her mother did not have to work and was able to be a full-time mother, M.S. acknowledged that she had never really wanted for. anything growing up because money was never an issue.
M.S. said that although her father never instructed her not to tell anyone about the molestation, it was understood. M.S. did not go to the police immediately after the Thanksgiving 2008 revelations because she said she wanted to give her father time tо admit what he had done, but' he never really did. She first talked to a police detective in 2009, and eventually gave a taped statement.
M.S. was asked if she- could tell her mother almost anything, to which she responded: “Now, I can.” J.B. confirmed that she left William shortly after M.S.’s revelations. J.B. and M.S. lived for almost two years with J.B.’s sister, S.B., her fian-cé and their daughter, B.M. J.B. confirmed that in 2008, when she went to see D.A. about M.S.’s allegations, D.A. lived on Sylvia Blvd. down the block from where J.B., William and their children were living at the time. D.A.’s son and J.B.’s son were friends. J.B. also confirmed that she and William had -not lived together since November or December of 2008 and remained divorced as of the time of trial.
B.M. and her mother, S.B.
B.M. was seventeen years old and in the eleventh-grade at the'time of trial. Her mother, S.B., is the sister of J.B., who was then married to William. J.B. is therefore the aunt of B.M., and William is B.M.’s uncle and godfather. In October, 2004, when she was eight years old, B.M. went to a Halloween party at another aunt’s home with her mother, father and brother.
B.M.’s parents gave William a ride home because his wife had left the party early. William carried B.M. to the car and sat her in his lap in the back seat. |mB.M.’s father was driving and her mother was in the front passenger seat. During the drive, B.M., who was half asleep, awoke to William touching her on her vagina, underneath her clothes. He touched her inside of her body. The touching lasted a few seconds and stopped when they dropped William off at home. B.M. did tell anyone at the time because she thought everyone would be angry at her. She finally told her mother, S.B., at a bingo hall sometime between 2005 and 2008, after Hurricane Katrina. She just blurted it out, began crying, and cried the entire. ride home. S.B- said B.M. made this revelation in 2008 about two weeks after the incident in the parking lot of the Par 3. Diner when M.S. had yelled at her father.' S.B. wanted to talk to her sister, J.B., before going to the police. Although B.M. begged her mother not to tell J.B., S.B. did tell her. B.M. believed it was her parents who ultimately made the decision to go to the police. B.M. confirmed that she met with Detective Michelle Rogers in August of 2010, at which time B.M. was fourteen years old. Prior to the time B.M. spoke to Det. Rogers, J.B. had lived with B.M.’s family for a period, during which time J.B.’s daughter, M.S., frequently slept over. When M.S. spent the night, she and B.M. would sleep in B.M.’s bedroom, and they would talk about William’s sexual abuse - of -them. These conversations were taking place for about one and one-half years prior -to B.M.’s interview with Det. Rogers..
Lionel Serigne
Lionel, who was fifty-four at the time he testified, confirmed that he was eleven yeаrs older than his cousin, D.A., and seven years older than his brother and co-defendant, William. Lionel began working at his family’s boat launch/marina when he was twelve, selling ice and shrimp and catching shrimp. After-high school he attended Nunez-- Community College for a few years and then worked a succession of jobs. After being laid off from his last job two years prior to trial, he 12Bwas again working at the boat launch, as well as doing some independent contract work in marine electronics.- -
Lionel denied that he had ever molested D.A. He said that from the time he got his first car at age fifteen, he did riot see much of his family because he was busy with school, \Vork, hanging out with friends, and playing sports. After D.A.’s family moved away from Florissant Highway in 1976, they still came back to visit D.A.’s paternal grandfather, who was also Lionel and William’s grandfather. Lionel indicated that D.A. had played with his younger brother, J.'J.S., who was approximately her age, and that his grandmother had kept a close eye on all the children.
Lionel began dating his first wife when they were freshmen in high ’ school and married her when he was twenty. He testified that they were both virgins when they got married. After marrying they lived for a year in a trailer on the Floris-sant Highway property. Lionel described the basement of the Serigne house as having a garage" door and next to it, a single door that was the primary access to the basement, as well as a door on the other side that was kept locked. There were no interior doors except for One to a narrow closet under the walled stairway leading up to the house. According to Lionel, there were no bags of salt stacked in the basement. He said they had no use for salt at the marina and did not sell salt. He said his uncle, J.M., stored salt at his home in Ycloskey. When shown a photo
Lionel met his second wife, P.S., about one year before their August 1, 1992 marriage. Before they got married, Lionel told P.S. that his uncle, J.M., had molested him in his grandmother’s basement three times when Lionel was between eleven and twelve years old. Lionel had never told anyone else about these incidents. He told P.S. because he was afraid he would lose her due to the [ 2f¡accusations being made against him by D.A. At the family meeting in Delacroix, P.S. confronted Lionel’s uncle about his molestation of Lionel and accused the uncle of having molested his own daughter. Lionel recalled that his uncle had responded by saying he would touch his childrеn any way he wanted to and that it was nobody else’s business. Lionel again denied that he had ever touched D.A. in a sexually inappropriate manner, saying that there was no way he would do that to anyone because it had been-done to him.
William Serigne
William denied all the allegations made against him by the three alleged victims: M.S., B.M., and D.A, At the time of trial, William was forty-seven years old and was divorced from J.B., the mother of his daughter, M.S., and his son, W.S. His son was living with him. William worked at the Serigne’s marina/boat launch, where he had been working for as long as he could remember, since elementary school when he had begun helping his father there. William normally got up at 3:30 a.m., got to the marina at 4:15 a.m., and did not leave there until 5:00 p.m.
William said his daughter, M.S., was nine or ten when she began coming to the marina. She operated the cash .register and was in charge of the inside .until she was perhaps thirteen or fourteen. They lived in a trailer before moving to a residence on Sylvia Boulevard in 2001. William said that hiost of the time if M.S. was coming to work with him, she would be up. Sometimes his wife, J.B., would go to get her, or William would holler for her to come, or he would knock and tell M.S. it was time to roll. If M.S. was not up and ready to go, he would leave without her. William testified that he had a great relationship with M.S. until she was about age fourteen, except that he had to be the disciplinarian. He. said M.S. became a completely different -person when she reached high school age. She was drinking, using drugs, and lying to him and J.B. .One time M.S. cut her wrists 127after slapping J.B., which led to her being placed .in River Oaks for a while. At fifteen or sixteen, M.S. wanted to be emancipated, and at seventeen she wanted them to leave her alone. During that time, M.S. never accused William of having molested her, nor was he ever informed by anyone at River Oaks- that M.S. had made, such an accusation while there.
In November, 2008, M.S. was enrolled in the Paul Mitchell cosmetology school in Slidell. She had expressed a desire to transfer to the Paul -Mitchell school in Chicago, where her boyfriend; E.N., lived, but William and J.B. refused to pay for her tuition. They had taken out a loan to pay the tuition for the school in Slidell, and were unwilling.to borrow more money. On Thanksgiving morning of 2008, M.S. stopped by the home where the family was having Thanksgiving dinner to say hello and then left.- Later that evening William and J.B. were with M.S,, her boyfriend, E.N., and .many other family members at a bar. M.S. became intoxicated toward.the end of the night and did not want to leave when the bar was closing. Finally, M.S. and E.N. left, and they all ended up at the
William confirmed that he was asked by the St. Bernard Sheriffs Office to provide a voluntary statement with regard to the accusations by M.S., which he did, denying that he had ever molested M.S. He had never played hide and seek with his son, W.S., and M.S. He had never gone into a closet with M.S. for any reason. He had never gone into M.S.’s room in the-'early ■morning hours to awaken her, or for any reason. Instead, he would knock on the wall or holler for her to get up, telling her they had to go (to the boat launch). After M.S. made the accusations, -he had no more contact with her. After a year or two, he stopped paying for M.S.’s- automobile insurance, her car, and the Paul Mitchell school tuition.
William confirmed that he was approximately four years older than his cousin, D.A., whom he was accused of raping. He had lived on Florissant Hwy. until he was about twenty years old. D.A. also lived there, but the only time William played with her was when the family had get-togethers. William’s mother was very strict and watched him and his brothers like a hawk. If William went into the basement to get the tire pump for a flat tire, his mother would call for him, asking him what he was doing down there. William said he had never put a hand on D.A., and had not raped her or molested her. He denied that he or his brother had ever gone into the basement with D.A., and said he had never even seen his brother around D.A. He testified that his family did not use salt at the boat launch or keep bags of salt in their basement or on their property. His.uncle, J.M., who was a commercial shrimper, did stockpile salt on his property. According to William, the only time he ever spoke to D.A. was when they were older and he lived neаr her on Sylvia Boulevard. He said that during the three or four years he | ^lived there, D.A. dropped her children off at his house no less than once or twice a week to play with his kids.
Regarding the allegations made by B.M., William said that B.M. was his goddaughter, and her father, D.M., was his best friend. D.M.’s mother, S.B., was the sister of William’s ex-wife, J.B. After the October 2004 family Halloween party, D.M. and S.B. gave William a ride home in their Chevrolet extended-cab pickup truck. B.M. and two other children were also in the truck. As William got into the back seat of the truck, S.B. handed the sleeping B.M. to him. He handed B.M. off to S.B. when they got to his home. He denied that he had touched B.M. inappropriately that night or ever. After that night, William and his family continued to associate
Considering the testimony, I cannot say that the trial court’s reference to there being a “family secret” is inconsistent with the evidence presented at trial. The State had to present evidence to explain why the alleged acts of molestation did not come to light until nearly three decades after they occurred. D.A. did not disclose her childhood sexual abuse until she, as a young adult, became upset when she saw her cousin Lionel, one of her former abusers, walk into a family function carrying her four-year-old cousin, M.S. It is undisputed that the authorities were not contacted at that time because certain family members met to address D.A.’s accusations against Lionel, and it was decided at this time that the matter would be handled privately by the family. From this testimony, it is reasonable for the trial | sncourt to infer that had D.A. reported her abuse to the police then, the molestation years later of two other young family members by William may not have occurred.
The testimony demonstrates that, the pertinent facts in this case actually are so intertwined that it would be difficult to separate them. Nevertheless, at trial the charges against the two defendants were clearly differentiated. There is nothing in this record to suggest that the trial judge, who was the trier of fact, did not understand'or appreciate the separate allegations against each. There was no potential for juror confusion because there was no jury. The defendants did not try to point the finger at each- other, or assert antagonistic defenses.
Despite the fact that the defendants were being tried together, the trial judge heard D:A.’s unequivocal testimony that Lionel and William were not together when she was raped by each. Lionel was convicted of ,one. count of aggravated rape of D.A. based upon one occurrence, which D.A. testified happened in an upstairs bedroom when he got on.top of her. William, who was charged with two counts of aggravated rape of D.A., was convicted of only one count of forcible rape, presumably based upon D.A.’s testimony as to the one incident in the basement when William had her sit on his lap and then penetrated her. William was also convicted of one count of sexual battery as to his goddaughter and one count of aggravated incest as to his daughter. The record does not demonstrate that an injustice was done to William (or to Lionel) as a result of the two defendants being jointly tried. I therefore find that the trial court did not abuse its discretion by denying William’s motion for new trial.
Moreover, while I agree with the majority that the trial court erred by declining to review D.A.’s grand jury testimony in camera, I do not agree that this error warrants a new trial for either defendant. To the extent that the grand jury | S1 testimony contains undisclosed Brady evidence, such evidence does not warrant a new trial unless it is material. Giglio v. United States,
In the present case, the trial court did not have the opportunity to consider what evidence contained in the grand jury testimony would be subject to disclosure under Brady, or whether the non-disclosure of that evidence is material, so as to warrant a new trial for either defendant, Because the trial court did not rule on these issues, there is nothing for this court to review. Those issues would be better developed' in a póst-conviction posture, where the trial court can conduct a thorough evidentiary hearing. See State v. Wells, 2011-0744, pp. 5-6 (La.App. 4 Cir. 4/13/16), 191 So.'3d 1127. Therefore, I would pretermit those issues and preserve them for the defendants to raise on application for post-conviction relief, where a sufficient rеcord may be developed. See Wells, supra-, State v. Neal, 2000-0674, pp. 13-14 (La. App. 4 Cir. 6/29/01),
Conclusion
Accordingly, I respectfully dissent from the majority’s reversal of the convictions of Lionel and William Serigne. I would affirm the trial court’s convictions of both defendants.
. It was not until this court ordered the parties to file additional briefs on the issue of whether Lionel's waiver of the jury constituted an error patent that the appellants addressed this issue.
. The amendment hybridizing the statute followed the 1995 amendment whereby the legislature once again made the death penalty, which had been removed from the statute in 1977, available as an optional sentence for certain types of aggravated rape, including the rape of a child. See La. Acts 1995, No. 397, § 1; La. Acts 1997, No. 898, § 1.
. La. R.S. 14:42 was again amended by La. Acts 2015, No, 184, § -1; and Acts'2015, No. 256, § 1, effective August 1, 2015, to provide for “First degree rape," which carries the option of the death penalty if the district attorney chooses to pursue capital punishment, and “Second degree rape,” in La. R.S. 14:42,1, which does not include the option of capital punishment. That amendment is not pertinent to this case. -
. 1977 La. Acts. No. 343, effective September 9,-1977.-
. Although the Singleton court held the defendant was legally entitled to waive a jury trial, it remanded the matter for an evidentiary hearing on whether Mr. Singleton’s waiver was knowing and voluntary under the circumstances of that case, 2005-0622, p. 12,
. The Hypolite court also noted that the Louisiana Supreme Court's decision in State v. Goodley, supra, was not controlling, 2013-1365, p. 15,
. A trial court’s ruling on ground 1, that the verdict is contrary to the law and evidence, is not reviewable on appeal. State v. Snyder, 98-1078, p. 37, n. 21 (La.4/14/99),
. At trial the birthdates of the two defendants and their three accusers were stipulated to: William Serigne, March 28, 1966; Lionel Se-rigne, February 13, 1959; D.A., December 27, 1970; M.S., October 19, 1987; and B.M., July 25, 1996.
. The defense witnesses also included the detective who had originally investigated the victims’ allegations, and thirteen of the defendants' relatives and friends, each of whom offered factual and/or character evidence as to one or both of the defendants.
. She testified she told a friend several months afterward about William’s abuse of her, and that the friend had since died,
, At this time J.B., William and'their children were living on Sylvia Blvd, near D.A., her then husband, B.A, and-their, children. J.B.- and William subsequently divorced, as did D.A. and B.A.
. This statement was introduced into evidence.
. These photographs had been identified by D.A.’s mother and introduced into evidence.
, On cross-examination M.S. conceded that she would have been fourteen in 2001, when the family moved to Sylvia Blvd,
. A series of cases have developed the so-called "antagonistic defenses” test which, if and when satisfied, would require a severance. To meet the test, a defendant must show that a joint trial would be prejudicial to his interests. State v. Williams,