APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 511-253, SECTION " I" . HONORABLE KAREN K. HERMAN, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, MATTHEW C. KIRKHAM, ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, New Orleans, Louisiana, Counsel for State of Louisiana.
HOLLI HERRLE-CASTILLO, LOUISIANA APPELLATE PROJECT, Marrero, Louisiana, Counsel for Defendant/Appellant.
Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Roland L. Belsome
[2014-0629 La.App. 4 Cir. 1] JAMES F. MCKAY III,
The defendant, Allen Etienne, seeks the reversal of his conviction and sentence. The defendant was charged with La. R.S. 14:42.1, forcible rape. The jury found him guilty as charged. The district court, pursuant to multiple bill of information, adjudicated the defendant a habitual offender and imposed a life sentence the custody Louisiana Department of Corrections. See La. R.S. 15:529.
STATEMENT OF CASE
On April 11, 2012, the State filed a bill of information charging the defendant with one count of the forcible rape of K.O., a violation of La. R.S. 14:42.1. At his arraignment on April 16, 2012, the defendant entered a not guilty plea and through counsel filed omnibus motions for discovery and several motions to suppress. On July 13, 2012, the district court denied the motions to suppress and found probable cause to hold the defendant in custody. Later, the State filed a motion to introduce the defendant's other crimes as evidence at trial. The trial court granted the motion on November 11, 2012 after hearing the parties' arguments. The defendant objected and gave notice of intent to file a writ. The writ application was denied by this Court on January 18, 2013. On January 22, 2013, the matter proceeded to trial but ended in a mistrial. On July 9, 2013, a [2014-0629 La.App. 4 Cir. 2] second trial began but ended with a hung jury. On December 3, 2013, a third trial commenced. On December 4, 2013, the jury returned a verdict of guilty as charged. On February 21, 2014, after denying the defendant's motion for new trial and post-verdict judgment of acquittal, the district court sentenced the defendant to serve forty years at hard labor without benefit of parole, probation, or suspension of sentence.
The State then filed a multiple bill of information. The district court adjudicated the defendant a fourth-time felony offender, vacated the defendant's initial sentence and resentenced him, as a habitual offender, to life imprisonment in the custody of the Louisiana Department of Corrections.
STATEMENT OF FACT
On December 13, 2011, at approximately 6:30 p.m., New Orleans Police Department (" NOPD" ) Officer Glen Markham was in the process of handling a traffic violation when he was flagged down by a female, K.O., who claimed that she had been raped and beaten up. Officer Markham called NOPD dispatch to contact the Sex Crime Division.
Emergency Medical technician (" EMT" ) Raul Vallencillo responded to the call near the intersection of St. Bernard and Claiborne Avenue. He conducted an exam of K.O. at the location and noted that K.O. had a swollen lip, two swollen eyes, swelling
to the head, ears, nose, eyes and throat, and a hand print on her neck. He also noted the smell of alcohol on her breath. He recommended that K.O. go to the hospital for treatment, but she refused.
Detective Derrick Williams of the Special Victim's Section of the NOPD, was assigned to the call. He spoke to K.O. at the scene. She initially told Detective Williams that she had been with a black man that she had just met at St. [2014-0629 La.App. 4 Cir. 3] Louis and Basin Street. They left the area and went to a new location where another unidentified black man grabbed her and pulled her into a closet at an abandoned home where he beat and raped her; she described the perpetrator as being six feet tall and weighing between 175 and 180 pounds. She was unable to give a specific location where the incident took place.
The following day, K.O. made a 911 call to make a police report that her truck had been stolen after the rape. She advised the operator that she had been beaten and raped the previous night and that the perpetrator had stolen her truck. She described him as being big, and around 250 pounds. She advised the operator that she wanted to pursue the case and that she was on her way to the hospital. K.O. then went to University Hospital for a sexual assault examination. Following the completion the sexual assault examination, the rape kit was sent to the Louisiana State Police and the alleged rapist's DNA was placed in the CODIS database.
A few days later, K.O.'s boyfriend, Brian Davis, located her missing truck at the corner of St. Bernard and Rampart Street. He and K.O., while driving around the area, located the house that was the scene of the crime, which was approximately fifty to seventy yards from Claiborne Avenue at 1624 Lapeyrouse Street. They informed Detective Williams of the discovery.
On February 3, 2012, Detective Williams received a CODIS hit letter, informing him that the defendant's DNA matched the DNA sample taken from K.O.'s rape assault exam kit. Following this discovery, Detective Williams contacted K.O. to inquired if she knew the defendant and if she had consensual sex with him. K.O. answered in the negative to both questions. Detective Williams then obtained an arrest warrant for the defendant. After the defendant's arrest, [2014-0629 La.App. 4 Cir. 4] Detective Williams obtained a search warrant to take a buccal swab from the defendant which ultimately confirmed the CODIS match.
A review of the record reveals one patent error. The February 21, 2014 minute entry stated that the defendant was sentenced " as a multiple offender under R.S. 15:529.1, to serve life at hard labor in the custody of the Louisiana Department of Corrections." The sentencing transcript reads:
At this time, Mr. Etienne, I am setting aside the original sentence imposed of 40 years in the custody of the Department of Corrections, and now sentencing you, pursuant to Louisiana revised statute 15:529.1 to life imprisonment.
Your calculation for parole will be made by the Department of Corrections, pursuant to that by the Multiple Offender Statute. You will serve as many days as the Department of Corrections finds ...