APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 512-931, SECTION " I" . Honorable Karen K. Herman, Judge.
Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.
Sherry Watters, LOUISIANA APPELLATE PROJECT, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano).
[2014-0476 La.App. 4 Cir. 1] Roland L. Belsome,
The defendant, Derrick Woodberry, appeals his four
convictions and two life sentences that he received for offenses he committed as
a juvenile. Finding that the district court erred in part by sentencing the
defendant to two life sentences without the possibility of parole on the
aggravated rape and aggravated kidnapping convictions, we amend these sentences
to delete the parole restriction. In all other respects, we affirm.
STATEMENT OF THE CASE
On August 20, 2012, the State charged the defendant by bill of indictment with the April 7, 1992, aggravated rape and aggravated kidnapping of V.M. (Counts I and II), and the July 1, 1992, aggravated rape and aggravated kidnapping of E.V., (counts III and IV). The defendant pled
not guilty to all charges. The trial court denied the defendant's motions to sever the offenses, quash the [2014-0476 La.App. 4 Cir. 2] indictment, and suppress the statement. However, it granted the State's motions to introduce evidence of other crimes and to exclude a witness due to incompetency.
Following a four day trial, the jury found the defendant guilty of the lesser included offenses of forcible rape and second degree kidnapping on Counts I and II, and guilty as charged on Counts III and IV. The trial court subsequently sentenced the defendant to forty years at hard labor without benefits on Counts I and II and to life without benefits on Counts III and IV, all four sentences to be served concurrently. The trial court denied the defendant's motion for new trial, and this appeal followed.
On April 7, 1992, V.M. was raped and beaten in an old mail area at Oak Brook Village apartment complex, located at 700 Magnolia Street, in New Orleans. An officer arriving on the scene observed two black males running from the apartment complex.
In early July of the same year, E.V. was abducted, beaten and raped at gunpoint while on a date with her boyfriend at the lakefront. There were also two perpetrators involved.
[2014-0476 La.App. 4 Cir. 3] When the Combined DNA Index System (CODIS) identified the defendant as a DNA match for these crimes, in 2010 and 2012 respectively, the defendant was developed as a suspect, and charged with aggravated rapes and kidnappings of V.M. and E.V.
The defendant asserts five assignments of error relative to 1) sufficiency of the evidence; 2) his motion to sever and admission of other crimes evidence; 3) his motion to suppress statement; 4) his right to present a defense; and 5) excessive sentence. First, the defendant argues the evidence is insufficient to support his convictions for the rapes and kidnappings of either V.M or E.V. He argues that the State failed to prove his identity as the perpetrator of the offenses. He also argues that the State failed to prove penetration and lack of consent as to the forcible rape, and the taking from place to
place element of second degree kidnapping, both relative to V.M.
When reviewing the sufficiency of the evidence to support a conviction, this Court is controlled by the standard set forth by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which dictates that to affirm a conviction " the appellate court must determine that the [2014-0476 La.App. 4 Cir. 4] evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Captville, 448 So.2d 676, 678 (La. 1984).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of " proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience." State v. Shapiro, 431 So.2d 372, 378 (La. 1982)(citation omitted). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198, 1201 (La. 1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817, 821 (La. 1987).
In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Robinson, 02-1869, p. 16 (La. 4/14/04), 874 So.2d 66, 79 (citation omitted). Under the Jackson standard, the rational credibility determinations of the trier of fact are not to be second guessed by a reviewing court. State v. Juluke, 98-341 (La. 1/8/99), 725 So.2d 1291, 1293 (citation omitted). " [A] reviewing court is not called upon to decide whether it [2014-0476 La.App. 4 Cir. 5] believes the witnesses or whether the conviction is contrary to the weight of the evidence." State v. Smith, 600 So.2d 1319, 1324 (La. 1992) (citation omitted).
A fact finder's discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Where rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all evidence most favorable to the prosecution must be adopted on review. Only irrational decisions to convict by the trier of fact will be overturned.
State v. Winston, 11-1342, p. 8 (La.App. 4 Cir. 9/12/12), 100 So.3d 332, 337 (citations omitted).
In addition to proving the statutory elements of the charged offense at trial, the state is required to prove defendant's identity as the perpetrator. State v. Draughn, 05-1825, p. 8 (La. 1/17/07), 950 So.2d 583, 593. When the identity of the defendant as the perpetrator is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. Id., State v. Galle, 11-930, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935 (citation omitted).
On Counts I and II, the defendant was convicted of the responsive verdicts of forcible rape and second degree kidnapping of V.M. At the time of the offense, forcible rape, a lesser included offense of aggravated rape, was defined by La. R.S. 14:42.1 as follows:
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.
[2014-0476 La.App. 4 Cir. 6] Also at the time of the offense, second degree kidnapping was the imprisoning or forcible secreting of any person wherein the victim is physically injured or sexually abused. La. R.S. 14:44.1 (A)(3) and (B)(3). To sustain a conviction for second degree kidnapping, La. R.S. 14:44.1(B)(3) requires neither movement of the victim, nor that the imprisonment exists for any minimum period of time. State v. Tabor, 07-58, p. (La.App. 1 Cir. 6/8/07), 965 So.2d 427, 434 (citation omitted).
The following evidence was submitted at trial concerning the second degree kidnapping and forcible rape of V.M on April 7, 1992 at the Oak Brook Village apartment complex located at 700 Magnolia Lane. The 911 incident recall log report reflects an aggravated rape and armed robbery with a firearm by two black perpetrators. Detective Ernest Rome testified that when responding to the rape call at the apartment complex, V.M. ran up to him, hysterical, and informed him that she had just been raped. As he arrived on the scene, he saw the two men fleeing but could not identify them; other officers pursued the suspects to no avail. Detective Bernard Enclard testified that V.M. was extremely upset and obviously suffering from a black eye and abrasions to her body. She brought him to a courtyard area, in between two buildings, where she indicated the rape took place. It was mostly dirt, but had some concrete flooring where mail boxes were formerly installed.
Dr. Mark Silady performed a sexual assault exam on V.M., and he testified that she reported to him that she had been vaginally and anally raped. He observed a " white liquid in [the victim's] vaginal vault, which is the posterior area in the vaginal area." At that time, V.M. had alcohol on her breath and also stated that she [2014-0476 La.App. 4 Cir. 7] had consensual sexual intercourse at approximately 4:00 a.m. on April 7, 1992. His report also notes a shower or bath on the morning of April 7, 1992.
In 2010, when CODIS identified the defendant as a DNA match to the DNA obtained from V.M.'s rape kit, Sergeant Arnold Williams pursued the investigation and learned that V.M. was deceased. He took a buccal swab and a statement from the defendant, who, after viewing a picture of the victim, denied ever knowing her. ...