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State v. Rubin

Court of Appeals of Louisiana, Third Circuit

February 2, 2017




          Edward John Marquet Attorney at Law COUNSEL FOR DEFENDANT/APPELLANT: Joenell Rubin

          Earl B. Taylor District Attorney - 27th Judicial District Court Jennifer Ardoin Assistant District Attorney - COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and John E. Conery, Judges.


         On July 19, 2012, Defendant, Joenell Rubin, was charged by grand jury indictment with the May 21, 1988, first degree murder while in the commission of the aggravated rape of Brenda Dupont, in violation of La.R.S. 14:30(A)(1).

         On January 27, 2016, a 10-2 jury found Defendant guilty of the first degree murder of Brenda Dupont. On February 18, 2016, Defendant was sentenced to life imprisonment at hard labor without benefits and with credit for time served from the date of arrest.

         Defendant now appeals his conviction and sentence, alleging two errors. For the following reasons, we affirm Defendant's conviction and sentence. We instruct the trial court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of the opinion and to file written proof in the record that Defendant received the notice.


         Defendant's jury trial began on January 25, 2016. The State's first witness was Ms. Linda Nicholas, the victim's sister. Ms. Nicholas testified that on May 21, 1988, her sister, the victim Brenda Dupont, was living in an apartment that was only about ten feet directly behind her own apartment. Ms. Nicholas testified that on the afternoon before her sister was murdered, Defendant was at Ms. Nicholas' home visiting her daughter, Michelle. Ms. Nicholas stated that she had an altercation with Defendant and kicked him out of her house because he had brought a knife to her house. Defendant claimed that he was just "playing" with the knife, but Ms. Nicholas said, "We don't play." She testified that she last saw Brenda that night before Brenda went back to her apartment, around 6:30 or 7:00 p.m.

         Ms. Nicholas testified that the following morning, she made breakfast and sent her six-year-old son to wake Ms. Dupont, but that they were unable to rouse her. Ms. Nicholas got worried when there was no response by 11:30 a.m. She eventually called the police, who discovered Ms. Dupont's body and would not allow Ms. Nicholas to enter the apartment.

         Ms. Nicholas stated that she knew Defendant because he went to school with her children and liked her daughter, Michelle, but that she did not always allow him to visit because he liked to fight with her sons. She testified that at the time of her sister's murder, she was living with her children and a man named Dicker Ray Chavis.

         Ms. Nicholas testified that she had not seen anyone go into or out of her sister's apartment the evening she died, noting that Brenda was married but was separated from her husband. Ms. Nicholas testified that although she slept around ten or twelve feet from the side door to her sister's apartment, she did not hear anything because the weather was stormy that night.

         The State's next witness was Rene Speyer, an employee of the St. Landry Parish District Attorney's Office who was previously employed by the St. Landry Parish Sheriff's Office for thirty-eight years, including at the time of Ms. Dupont's death. Mr. Speyer videoed the crime scene in 1988, and that video was presented to the jury without sound as State's Exhibit 2. Mr. Speyer testified that the video and a photograph showed the area between Ms. Dupont's apartment and the fence behind it. There was damage to the vegetation and footprints on the side of the apartment, indicating that the point of exit was the bedroom window near where the footprints were discovered, as the bedroom door had been locked from the inside.

         Defendant's cross-examination of Mr. Speyer was mainly asking him to identify specific items that can be seen on the video. However, Mr. Speyer acknowledged that he never determined an entry point into the apartment, that he did not recall seeing any windows which appeared to be pried open or broken, and that most of the windows had undisturbed items on the windowsills. Mr. Speyer also noted that the only area of the house, other than the bed, that appeared to have been disturbed was a dresser drawer in the bedroom, which was pulled out and overturned onto the floor.

         Sergeant Loretta Etienne, a twenty-two year veteran of the Opelousas Police Department who is the current evidence custodian, next took the stand. She testified that evidence is secured in a combination lock vault, but that the evidence custodian is not responsible for keeping investigative reports. Sergeant Etienne noted that she has only been the department's evidence custodian for about six months, and that she had not even joined the force yet at the time of Brenda Dupont's death.

         The State next called Dr. Dawn Young, a professor at Bossier Parish Community College and former Lab Director at the North Louisiana Forensic Pathology Lab. Dr. Young was also the Deputy Coroner of Bossier Parish for twelve years and the Coroner for four years, from 1996-2000. She was also Dr. George McCormick's[1] assistant for twenty-two years, and was accepted as an expert in Medical/Legal Death Investigation. Dr. Young was Dr. McCormick's assistant during the autopsy of the victim Brenda Dupont on May 21, 1988. Dr. Young testified that the victim had defensive wounds on both hands. Additionally, the victim had incisions on her chest, neck, and upper arms, as well as a potential bite mark. She also testified that a vaginal swab was collected which contained semen, but stated they did not do any testing on the semen to try and determine potential donors.

         Dr. Young noted smear samples taken from the vaginal, nasal, oral, and rectal cavities, were tested, and that sperm was found in the vaginal smear, as well as occasional degenerative sperm heads being present in the oral and rectal smears. Dr. Young also testified she could not conclusively determine whether or not the victim was raped or had consensual sex, specifically stating that "[t]ypically you can't [determine rape] from an external examination" of a woman of child-bearing years. She further noted that after Dr. McCormick performed the autopsy, the evidence recovered was submitted to Patrick Lane with the State Police Crime Lab.

         Mr. Lane, a thirty-eight year employee and crime lab analyst of the Louisiana State Police Crime Lab (LSPCL), was the next witness to testify. Mr. Lane testified that he recalled receiving evidence from Dr. McCormick and subsequently transported those items to the LSPCL for testing. He also enumerated all of the evidence that was submitted to the LSPCL in this case. Mr. Lane also went through multiple pages of reports describing fingerprint analysis done by the LSPCL around the time of Ms. Dupont's death, noting that over twenty people's fingerprints were tested against the prints in the apartment. Mr. Lane then confirmed that State's Exhibit 7A appeared to be a fingerprint analysis form which indicated Defendant's fingerprints were tested on May 25, 1988. Defendant's fingerprints did not match any of the prints taken from the apartment.

         The next witness to take the stand was Mr. Jude Victorian, who spent roughly ten years as an employee of the Opelousas Police Department. Mr. Victorian testified that he brought photographs of the bite marks on the victim to a Dr. Bill Lagattuta in Washington, D.C., along with a cast of Clint Thompson's[2]teeth. Dr. Lagattuta, an expert in odontology, did not believe Mr. Thompson's teeth matched the marks on the victim. Mr. Victorian further testified that he could not recall specifics of what he did during the course of the investigation or who he interviewed, but that he would have written reports that would have been included in the case file.

         The State's next witness was Mr. Ronnie Trahan, a St. Landry Parish Sheriff's Office employee who was previously with the Opelousas Police Department for twenty-eight years, including May 1988. Mr. Trahan testified that a few years after Ms. Dupont's death, he spoke with Dr. Lagattuta at his office in Baton Rouge while retrieving evidence that was still in Dr. Lagattuta's possession. Mr. Trahan testified that Dr. Lagattuta informed him that he was never able to make a match between the photos submitted and Clint Thompson's teeth. Mr. Trahan stated that he did not actually retrieve any evidence from Dr. Lagattuta, as the evidence had already been returned to Mr. Victorian, and that he did not recall writing a report on his trip for the case file. Mr. Trahan remembers speaking with Defendant and Mr. Dicker Chavis during the investigation, but is not clear who else, if anyone, he spoke to in connection with this case.

         The State then called Mr. George Schiro, the lab director at Scales Biological Laboratory in Mississippi, who previously worked for the Acadiana Crime Lab, the Louisiana State Police Crime Lab, and the Jefferson Parish Sheriff's Office Crime Lab. It was stipulated that Mr. Schiro is an expert in forensic science with specialties in serology and DNA analysis. Mr. Schiro testified that "[i]n 1988 there were no public crime laboratories doing DNA in the state and I'm not sure if there was a private lab called Gentest but I don't recall if they had started in 1988." Mr. Schiro noted that in 1988, DNA testing was not commonly used by Louisiana law enforcement and that they were essentially limited to blood-typing and cross-referencing a small number of genetic markers. Mr. Schiro testified that in 2012 during the cold case investigation, they discovered a DNA profile in the vaginal swab taken from the victim, which was subsequently found to be a match to the DNA profile provided by Defendant. He testified that "the probability of selecting an unrelated individual was approximately one in thirteen billion." He further testified that by testing the Y-chromosome of the seminal fluid found, the chance of incorrectly identifying Defendant was about one in three hundred billion, barring identical twins.

         Mr. Schiro testified, much like Dr. Young, that there was no way to conclusively tell whether the sexual intercourse between Defendant and Brenda Dupont was consensual or rape. Mr. Schiro noted that, based on the presence of acid phosphates and a protein called P30, they determined that there was seminal fluid on the rectal swabs, however, there were no spermatozoa present, whereas they found sperm heads on the vaginal swab. Mr. Schiro noted that studies have found sperm can survive for as long as nineteen days in the female cervix, and specifically noted that "there's really no, no way to time when the sperm got there; how long it's been there or anything like that." Mr. Schiro also acknowledged that there were other items which had been tested for DNA evidence:

We had already run the other test on some of those other items that had generated profiles and those were put into CODIS. So, we already had unknown profiles that were in CODIS. Just because they didn't match anyone we, there [sic] was no point in going further ...

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