United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
MARK H. HORNSBY, Magistrate Judge.
A DeSoto Parish jury convicted Gregory Jones ("Petitioner") of aggravated rape in connection with his attack on former girlfriend Korese Lard. He was sentenced to life in prison. His conviction was affirmed on direct appeal. State v. Jones, 8 So.3d 845 (La.App.2d Cir. 2009). Petitioner also pursued a post-conviction application in the state courts. He now seeks federal habeas corpus relief on the grounds that (1) the evidence was insufficient, (2) the trial court improperly allowed other crimes evidence, and (3) his counsel was ineffective in several respects. For the reasons that follow, it is recommended the petition be denied.
Sufficiency of the Evidence
A. The Testimony
Korese Lard testified that she was 16 years old and had a four-month-old daughter, Niasa, when she met Petitioner and began dating him. The relationship continued until just before Ms. Lard's 18th birthday. Petitioner continued to call Ms. Lard and even broke into her home and came to her workplace. She went to court and obtained a restraining order against Petitioner in January 2007. Soon afterward, she gave birth to a second child. Paternity testing showed that Petitioner was not the father of the oldest child, and Ms. Lard was adamant that Petitioner was not the father of the younger child either. She denied that the couple had any consensual sex after they stopped dating.
Ms. Lard testified that Petitioner raped her on her 18th birthday. She reported the crime to the police, but Petitioner's family persuaded her to drop the charges, with promises that Petitioner would receive mental health treatment. Petitioner's mother admitted that no treatment was obtained.
The incident that gave rise to this case occurred on March 7, 2007, about four weeks after Ms. Lard gave birth to her youngest child. Ms. Lard testified that she was in her apartment with her four-year-old daughter. The younger child had been born prematurely and was still in the hospital. Ms. Lard heard her door opening and looked up to see Petitioner, who entered yelling and cursing. Ms. Lard told her daughter to put her head down on the couch. Petitioner grabbed Lard by her hair and started punching her and dragged her into the bedroom. Lard testified that she was wearing a nightgown, and Petitioner ripped off her underclothes. He then stuck his fingers inside her vagina and started scraping the inside. Lard screamed and tried to fight back, but Petitioner punched her in the face and began to rape her. He opened a curtain to see if Ms. Lard's mother, who lived across the street, had been alerted to the screaming, and he saw a kitchen knife that Lard kept on the windowsill to protect herself. He pointed the knife at her but did not cut or stab her. Afterward, Petitioner took Lard to the bathroom, where he used a towel to clean himself. He then put Lard in a tub of water, soaped his hand, and put it inside her vagina. He told her not to tell anyone or call the police.
Ms. Lard called her mother, who called the police. Detective Johnny Zamarripa testified that he responded on behalf of the Mansfield Police Department. He saw that Ms. Lard's clothes were torn, she was very distraught and crying, and her face was swollen and had marks on it. Lard reported that Petitioner came to her house and beat and raped her. The officer said he could tell from what he saw at the house that there had been a struggle, but he did not see any sign of a break-in. Detective Ronnie Adams responded to the hospital to see the victim. He testified that he immediately noticed that the left side of her face was swollen, her left eye was swollen shut, and her eyelid was bleeding.
Sherry Stephenson, Ms. Lard's mother, testified that the couple's relationship had ended about a year before this incident. Petitioner had nonetheless continued to harass Lard and break into her apartment. Ms. Stephenson testified that on the night of the crime her daughter's face was "all messed up, " with her right eye closed and the other eye bleeding. Stephenson corroborated Lard's testimony about the first rape accusation and why Lard dropped those charges.
A registered nurse who was a certified sexual assault nurse examiner performed an examination of the victim at the hospital emergency room. The nurse could not complete a full examination because of the victim's injuries, the most noticeable of which was the avulsion or digging out of skin, that occurred in the area between the vaginal opening and the labia. Testing with a special dye indicated friction and tears that were inconsistent with consensual sexual intercourse. They were also not consistent with having given birth approximately five weeks earlier. Other documented injuries included facial abrasions and bruises, and multiple scratches and bruises on the body. There was an area on the back of the victim's left calf that resembled a bite mark.
DNA samples were taken from the victim's vagina and the bite mark. A DNA expert testified that the DNA from the vaginal sample was consistent with Petitioner's DNA type. If a person were randomly pulled from the population and compared to the sample, the probability that he would match was one in 75.1 trillion. There was a mixture of DNA at the bite mark that came from both Ms. Lard and Petitioner. The likelihood that the DNA came from those two versus Ms. Lard and another individual was 11.5 billion to one in favor of the mix coming from Ms. Lard and Petitioner.
Petitioner's mother testified that Korese and her mother told Petitioner's family that Niasa was Petitioner's child. They brought the baby to Petitioner's parents' house, where the child stayed for weeks at a time. Korese also lived with the family on and off for about three years. Photographs of a baby shower were introduced, as well as other photos that showed Petitioner and other members of his family with the child. Petitioner's mother testified that the couple did break up in 2006, "but they never stopped seeing each other, " and Korese "steadily called the house." She said she believed Korese's current boyfriend attacked her despite the DNA and other evidence linking her son to the crime. She admitted to helping convince Korese to drop the prior rape charge.
Petitioner's father testified that his family took Korese and Niasa into their home after they were put out by Korese's mother. The two stayed with Petitioner's family for about three years, and Korese said that Petitioner was the child's father. He said Korese accused Petitioner of raping her "about three times, " but the couple always got back together. He said he disapproved of the relationship because Korese frequently cheated on Petitioner.
Petitioner testified that he had a long relationship with Korese and believed for a time that Niasa was his child. He even got the child's name tattooed on his neck when he was 17. He discussed Korese's original rape charge against him and claimed that she had also made a rape charge against nine boys who had sex with her at the same time. He stated that he had consensual sex with her a number of times after the false allegation and even after the protective order issued. He said that Korese accused him of rape many times, but he always went back to her "like a dummy."
Petitioner testified that Korese called him at 8:00 p.m. on March 7, 2007 and invited him over. She let him in the apartment, and he visited with her child. Korese then allegedly asked him to come to her room to talk about some things. Petitioner said she began talking about relationships and how her new baby was his child. Petitioner said Korese asked if he was willing to get back with her and be a family, even though she was going with another man at the time. Petitioner said he replied that he did not love her anymore, but she began to kiss him and overcame his reluctance. He admitted touching her vagina area and said that she winced and told him he rubbed it a little too hard, after which he noticed she was bleeding. Petitioner said Korese admitted to being on her period. She nonetheless insisted on having sex, and they did so for about an hour in various positions. Petitioner denied beating the victim and suggested that her alleged screaming would have been heard by neighbors ...