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State v. Gonzalez

Court of Appeals of Louisiana, Third Circuit

June 13, 2018



          Don M. Burkett District Attorney Anna L. Garcie Assistant District Attorney Counsel for Appellee: State of Louisiana.

          Mitchell J. Creel Creel Law Firm Counsel for Defendant/Appellant: Santiago Alonso Gonzalez, Sr.

          Sarah L. Ottinger Juvenile Justice Project of Louisiana Counsel for Defendant/Appellant: Santiago Alonso Gonzalez, Sr.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and D. Kent Savoie, Judges.


         Defendant, Santiago Alonso Gonzalez, Sr., was charged by bill of information filed on April 30, 2015, with aggravated crime against nature, a violation of La.R.S. 14:89.1(A)(2)(a).[1] Trial by jury commenced on January 26, 2017, and the following day, the jury found Defendant guilty of the responsive verdict of attempted crime against nature, a violation of La.R.S. 14:27 and La.R.S. 14:89. Defendant filed a Motion for New Trial on March 2, 2017, alleging the verdict was contrary to the law and evidence. Several weeks later, he filed a First-Amended Motion for New Trial on the basis of newly discovered evidence. After a hearing, the trial court denied Defendant's new trial request without reasons. On May 25, 2017, Defendant was sentenced to serve seven years at hard labor, the sentence was suspended, and Defendant was placed on supervised probation for six years.

         Defendant appealed and is now before this court asserting the following assignments of error: 1) the trial court erred in denying his First-Amended Motion for New Trial; 2) the trial court imposed an illegal sentence of six years supervised probation; 3) the trial court imposed an illegal condition of supervised probation; and, 4) a portion of the Order of Notification to Sex Offender is erroneous.



         Defendant's biological daughter, E.G., [2] claimed that Defendant forced her to have sexual intercourse with him every few weeks between March 4, 2012, and April 1, 2015.

         Denial of Defendant's First Amended Motion for New Trial

         In his first assignment of error, Defendant contends the trial court erred in denying his First Amended Motion for New Trial, in violation of La.Code Crim.P. art. 851(B)(3) and his rights under La.Const. art. 1, § 2 and § 16 and U.S. Const. amend. VI and XIV.

The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.

La.Code Crim.P. art. 851(B).

A motion for a new trial based [upon newly discovered evidence] shall contain allegations of fact, sworn to by the defendant or his counsel, showing:
(1) That notwithstanding the exercise of reasonable diligence by the defendant, the new evidence was not discovered before or during the trial;
(2) The names of the witnesses who will testify and a concise statement of the newly discovered evidence;
(3) The facts which the witnesses or evidence will establish; and
(4) That the witnesses or evidence are not beyond the process of the court, or are otherwise available. . . .

La.Code Crim.P. art. 854.

         In State v. McKinnies, 13-1412, pp. 9-14 (La. 10/15/14), 171 So.3d 861, 869-72 (footnotes omitted), the supreme court explained:

La.C.Cr.P. art. 858 limits our review of the trial court's ruling on the new trial motion: "In reviewing the granting or the refusal to grant a new trial, neither the appellate nor the supervisory jurisdiction of the Supreme Court may be invoked, except for error of law." Therefore, we review the trial court's ruling on the new trial motion only for legal error. An abuse of the trial court's discretion in ruling on a new trial motion on the ground of newly discovered evidence presents a question of law.
"When ruling on an Article 851(B)(3) motion, a trial judge's duty is not to weigh the new evidence as though he were a jury deciding guilt or innocence or to determine what is true or false in light of the additional information. In other words, the trial judge is not to assess the newly discovered evidence as though he were a thirteenth juror." Instead, "[t]he discretion vested in the trial judge in passing on a motion for a new trial based on the ground of newly discovered evidence in a criminal case is to be exercised in determining the diligence shown, the truth of the matters stated, and the materiality and probability of their effect, if they are believed to be true."

         "[A] motion for a new trial is properly rejected when it is based on evidence which should have, with reasonable diligence, been discovered before or during the trial. State v. Jones, 344 So.2d 1036 (La.1977); State v. Rossi, 273 So.2d 265 (La.1973)." State v. Marcal, 388 So.2d 656, 662 (La.1980), appeal dismissed, cert. denied, 451 U.S. 977, 101 S.Ct. 2300 (1981).

         The basis of Defendant's original motion for new trial was that the State failed to present any physical or medical evidence to corroborate his daughter's claim that he forced her to have sex with him. In his amended motion for new trial, Defendant stated that Marsha Meshell, E.G.'s grandmother and his mother-in-law, had written a letter on his behalf claiming that E.G. told her she made up the charges because she was angry at her father. Defendant explained that on March 22, 2017, Meshell informed his counsel that she knew E.G. "had admitted to deception when making accusations of aggravated rape" against Defendant. Defense counsel attached an affidavit to the amended motion, wherein he stated:

THAT he conducted reasonable due diligence in his search for evidence in the above-referenced matter; and was unaware of the existence of the evidence alleged by the child-complainant's grandmother Marsha Mechell [sic] prior to or during the defendant's trial;
THAT prior to the said trial, the defendant was court-ordered not to contact anyone from his immediate family; and thus it was not reasonable for him to be aware that the grandmother of the child-complainant would have knowledge concerning said recantation[.]

         The undated letter written by Meshell, which was also attached to the amended new trial motion, provided as follows:

My name is Marsha Meshell, mothe-in-law [sic] of Santiago Gonzelez [sic] Sr. I have known him since he married my daughter, Melinda Meshell Gonzeles [sic], which was about 18 yrs. He is a good man, a good Father to his children and tries to raise them right. I know in my Heart this Man is innocent. He wants his children to grow up and be somebody and not doing things wrong. I know he did not do anything to [E.G.], his daughter, because she has said to me several times he didn't do it. [E.G.] said what she did because she was mad at her Dad. He didn't want her to date and get her education. She wanted to do what she wanted to no matter what. I believe in my Heart he is innocent and God knows, Santigo [sic] should be freed.

         Defendant called two witnesses at the April 27, 2017 hearing on his motion for new trial. The first was Defendant's sister-in-law and E.G.'s aunt, Marsha Meshell McDonald.[3] McDonald stated that sometime after the trial, she told defense counsel that E.G. told her that "she lied on him, on her dad." McDonald acknowledged having spoken to defense counsel twice in the past several years regarding an unrelated matter, but she claimed to not know that counsel represented Defendant until after his trial. McDonald testified that she mentioned E.G.'s recantation to Detective Aaron Mitchell four or five months before the trial, and he said he would get someone call her. McDonald identified a member of the district attorney's staff, Natalie Rowe, who was sitting in the courtroom during the hearing, as someone else whom she told about E.G. having confided in her that the charged offenses did not occur.[4] McDonald explained that she and Rowe had spoken at McDonald's workplace. Rowe told McDonald that she would pass the information on to her office and someone would get back in touch with McDonald. According to McDonald, no one from the district attorney's office followed up on the matter and neither did she. McDonald confirmed that she would have been available to testify at Defendant's trial. On cross-examination, McDonald initially claimed that she did not tell her mother, Meshell, about what E.G. told her; however, she later remembered discussing the matter with Meshell. McDonald was sure she never told her sister, Melinda Gonzalez, E.G.'s mother, about E.G.'s alleged recantation.

         Defendant's mother-in-law, Marsha Meshell, was the second witness called by the defense. Meshell confirmed that she had met defense counsel once before in an unrelated matter that took place before E.G. told her that the charges against Defendant were untrue. When asked by defense counsel as to why she did not reach out to him before Defendant's trial, Meshell stated:

Well, I thought it was gonna [sic] be, like, when he came to trial, you know. I was hoping and praying, you know, the Good Lord, "Look. You know, in my heart I know he didn't do it." And then when she told me this, you know, I even asked her, I said, "Why don't you go forth and tell the truth?" I said, "You know, because that's your father." I said, "You only have one father." And I said, "You know, I don't know what made you say it or anything, " but I said, "if you're telling me that he did not do it, please go and tell the truth."

         Meshell described the circumstances of E.G.'s recantation, as follows:

Well, her mother was not at home at the time and we were talking. And the words that she told me, that he didn't do it, but if she didn't come up here and say she did and they thought that - the Court thought she had lied, that she would be in trouble and get sent off.

         Meshell stated that she had only one such converstation with E.G., and she guessed that it occurred five or six months ago, before Defendant's January 26, 2017 trial. Meshell testified that she discussed E.G.'s recantation with her daughters, Melinda and McDonald, but she did not tell anyone else because she was not sure of who to speak to, and she was not sure if they would believe her. According to Meshell, McDonald told her that E.G. had recanted to her as well. Meshell then read the letter she sent to defense counsel to the jury.

         On cross-examination, Meshell acknowledged that she was present at E.G.'s house on several occasions when an employee of the Department of Children and Family Services (DCFS) came to visit. Upon being questioned as to whether it was true that she and E.G.'s mother, Melinda, "began screaming up in the victim's room" after the guilty verdict was rendered, Meshell admitted she was upset and that she and Melinda got "a little loud, " but she denied that there was any screaming.

         The State called three witnesses to oppose Defendant's motion for new trial. Natalie Rowe testified that she worked for the Sabine Parish District Attorney's Office as support staff. She denied that McDonald ever told her that E.G. recanted her allegations ...

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