On Writ of Certiorari First Circuit Court of Appeal.
Crichton, J., additionally concurring.
[14-1912 La. 1] PER CURIAM
[14-1912 La. 2] Derrick Maise, Brett Ward, Clayton James King, and Michael Ayo, defendants in these consolidated applications, were each charged by grand jury indictment with one count of aggravated rape, in violation of Louisiana Revised Statute 14:42, and one count of attempted aggravated rape, in violation of Revised Statutes 14:27 and 14:42. Both of these counts stem from an incident involving R.P., who was a 15-year-old juvenile at the time, which occurred in the home of Ward in St. Tammany Parish on the night of June 20, 2008. At the time, defendants ranged in age from 18 to 24 years. Defendants were tried together and were convicted by the vote of ten members of a twelve member jury. The trial court sentenced all defendants to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the aggravated rape count. In addition, the trial court sentenced Ward, King, and Maise to a concurrent term of 30 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the attempted aggravated rape count. On that count, Ayo received a concurrent sentence as a second felony offender of 50 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendants appealed separately, and the First Circuit Court of Appeal affirmed their convictions and sentences in separate unpublished split-panel decisions, issued by the same panel on the same day. Defendants filed separate applications in this Court seeking review of the decisions below. Because we find the District Court erred in denying defendants' second supplemental motion for a new trial, we reverse the decisions below, vacate defendants' convictions and sentences, and remand for a new trial.
[14-1912 La. 3] In order to understand the District Court's error, it is necessary to wade
through the complex and often contradictory facts of this case, keeping in mind that the State's entire case against these defendants critically hinged on the ever-evolving testimony of the victim-witness, R.P, which was initially undermined but eventually corroborated in some respects by the testimony of her former female best friend, A.L., whose version of events seismically changed overnight during her second day on the witness stand. Essentially, according to R.P.'s trial testimony, after making a plan to spend the night at the home of A.L.'s female friend, Devon Radecker, R.P. and A.L. went with Ayo and Maise to pick up marijuana and alcohol before heading to Ward's residence in Covington where they met King, Radecker, and some other female friends. While Radecker and the other female friends left Ward's home to purchase food and more beverages, R.P. stayed behind with A.L. The girls were lying on a bed watching television in a bedroom of Ward's home when all four defendants entered the room and locked the door behind them. At trial, R.P. testified that defendants then stripped down, and Ayo and A.L. began having consensual sex. Meanwhile, R.P. testified, King and Ward held R.P. down, and Ward began hitting her with his fists in her abdomen. R.P. further testified that Maise got between her legs, removed her pants, stuck his fingers in her vagina, then masturbated briefly to obtain an erection before putting his penis in her vagina. R.P. maintained that Ward continued to beat her with his fist while King repeatedly thrust his penis in R.P.'s face in what she took was a demand for oral sex. At this point, R.P. testified that Ayo and A.L. took a break. After announcing that he wanted " some of that," Ayo allegedly pushed Maise aside and placed his penis in R.P.'s vagina. R.P. testified that she resisted as best she could, yelled out repeatedly for them to stop, and entreated A.L. to help her out. A.L. had, however, consumed so much alcohol and drugs that she was in " her own world" as she was having sex with Ayo and did not respond, other than [14-1912 La. 4] to advise R.P. at one point that " it would be okay and [she] wasn't going to get hurt." The incident ended when Radecker and her friends returned and began knocking on the locked bedroom door.
We emphasize that this was R.P.'s version of events at trial because, as the First Circuit acknowledged, R.P. repeatedly denied experiencing sexual penetration--an essential predicate of the underlying offense of aggravated rape--for more than a year after her initial disclosure of the incident. The details of the incident evolved from iteration to iteration during a conversation with A.L.'s friend, Radecker, as they sat outside Ward's residence on the night of the incident. At trial, Radecker testified that during this conversation R.P. volunteered four different versions of the events that unfolded behind the closed doors of the bedroom that evening. First, R.P. told Radecker that A.L. had had sexual intercourse with all four defendants in her presence. After leaving Ward's residence with Radecker and her friends, R.P. then informed Radecker that she herself had been raped four times by another male in an entirely unrelated incident and repeated her claim that A.L. had had sex with all four defendants in her presence. R.P. then told Radecker that the defendants had beat her. " [T]he last story she told me," Radecker recalled, " was that they beat her, raped her, and that [A.L.] helped."  Because Radecker did not know R.P. well,
she was puzzled as to why R.P. would confide in her. After making these varied disclosures to Radecker, R.P. consistently maintained for over a year that she was not sexually penetrated by the defendants. Indeed, in statements to St. Tammany Parish officers at a hospital on June 25, 2008--where R.P. was taken after reporting to her mother that defendants had tried to rape her while, according to this version of R.P.'s story, A.L. held her down, leaving her bruised all over her body--and again on [14-1912 La. 5] September 19, 2008, R.P. denied that she was sexually penetrated by any of the defendants. In the September interview, R.P. alleged for the first time the attempted act of oral sex which she then attributed to Ayo, not to King. In a series of photographic lineups conducted by Detective Schulkens on June 30, 2008, R.P. again made no mention of penetration in the notes that she made as she viewed the pictures, indicating that King had hit her all over and tried to take her clothes off, as did Ward and Maise, that Ayo had sex with A.L., and that A.L. had held her down and told her to go along with all of it. R.P. repeated her denials of penetration in interviews conducted at the Children's Advocacy Center on July 2, 2008, by JoBeth Rickles, and at the Audrey Hepburn Care Center on July 29, 2008, by Dr. Adrienne Atzemis.
Finally, over a year after the incident, R.P. changed her story again, telling her mother that in fact she had been raped--that is, sexually penetrated--that evening. R.P.'s mother immediately sought out the St. Tammany Parish District Attorney's Office. Indictment of defendants for aggravated rape and attempted aggravated rape followed in May 2011.
At trial, the defense introduced testimony from Megan Perkins (" Megan" ) that five or six days before the incident she had been riding in a four-wheeler with R.P. when the vehicle hit a mound of dirt and overturned, spilling them onto the ground. Megan sustained a large bruise on the left side of her rib cage but did not observe any visible injuries to R.P., although R.P. had hit both of her hips and her lower abdomen on the handle bars when the vehicle flipped on its side. Megan also testified that at approximately 2:00 a.m. on the morning of June 21, 2008, or [14-1912 La. 6] just after the incident at Ward's home, R.P. called to inform Megan that she had been at a party and that A.L. and Ayo had had sex. During this call, R.P. said nothing about an assault, sexual or otherwise, on herself. Megan Perkins passed this information on to her older sister, Shelby Perkins, the mother of Ayo's child, who became extremely upset and who contacted R.P. about the incident after the arrests of defendants. Shelby Perkins testified that R.P. informed her A.L. had had sex with Ayo but again made no claim she had been raped and beaten at the same time.
Although there are glaring inconsistencies between R.P.'s prior statements and her testimony at trial, R.P.'s trial testimony was not completely uncorroborated. The caliber of that corroboration, however, left much to be desired. After receiving a grant of ...