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State v. Hilliard

Court of Appeals of Louisiana, Second Circuit

August 14, 2019

STATE OF LOUISIANA Appellee
v.
EDDIE HILLIARD, JR. Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Morehouse, Louisiana Trial Court No. 2016-50F Honorable C. Wendell Manning, Judge.

          LOUISIANA APPELLATE PROJECT Counsel for Appellant Meghan Harwell Bitoun

          EDDIE HILLIARD, JR. Pro Se

          ROBERT S. TEW District Attorney Counsel for Appellee

          JOHN G. SPIRES STEPHEN T. SYLVESTER Assistant District Attorneys

          Before PITMAN, GARRETT, and THOMPSON, JJ.

          GARRETT, J.

         Following a jury trial, the defendant, Eddie Hilliard, Jr., was convicted as charged of second degree rape and attempted second degree rape. He was sentenced, respectively, to 40 years at hard labor without benefit of parole, probation, or suspension of sentence, and 20 years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court imposed the sentences concurrently. A timely motion to reconsider sentence was denied. The defendant appeals. We affirm the defendant's convictions and sentences.

         FACTS

         On the night of Saturday, October 10, 2015, the 14-year-old victim spent the night at the apartment of her aunt, along with her sister and several young cousins. The defendant, who was the aunt's boyfriend and resided at the apartment, was present that night. The next afternoon, the aunt took the victim and her sister back to their own home. The victim's mother noticed that the victim was unusually reticent, teary-eyed, and refused to eat. On Monday, October 12, 2015, the victim went to school where she immediately sought out a paraprofessional with whom she was well acquainted, Carla Floyd.[1] Ms. Floyd said she could tell something was wrong with the girl and took her to an office where they could talk privately. The victim broke down and tearfully confided that she had been raped Saturday night by the defendant. She gave Ms. Floyd some details of what had happened and said that there had been two incidents that night. Ms. Floyd alerted the principal, who called the victim's parents and the police.

         The victim was taken to a hospital where she was interviewed and examined by Teresa Daniel, a sexual assault nurse examiner ("SANE"). After getting a medical history and interviewing the victim about the details of the assault, Ms. Daniel conducted a physical examination of the victim and collected evidence, which was submitted to law enforcement as part of the physical evidence recovery kit ("PERK"). This included oral, perineal, anal, and external genitalia swabs.

         On October 19, 2015, the victim was interviewed at the Children's Advocacy Center of Northeast Louisiana ("CAC"). The interview, which was recorded, was conducted by Tiffany O'Neal, a forensic interviewer, and monitored from another room by the center's director, Jennifer Graves, and Captain Anthony Evans of the Bastrop Police Department. During the interview, the victim stated that the defendant raped her anally and vaginally. He also tried to put his penis in her mouth.

         The victim provided the clothing she was wearing at the time of the offense to the police. The undergarments, along with the PERK kit, were submitted to the crime lab for testing. After the police received the test results from the crime lab, an arrest warrant was obtained, and the defendant was arrested on January 25, 2016. By bill of information filed February 2, 2016, he was charged with one count of second degree rape and one count of attempted second degree rape.

         The defendant's trial began on November 6, 2017. At various points during jury selection, the trial court conducted evidentiary hearings. On November 7, 2017, the trial court held a hearing on the state's motion of intent to use at trial the recorded testimony of a protected person, i.e., the CAC video recording of the victim's testimony. After hearing the testimony of Ms. O'Neal, the CAC interviewer, and reviewing the recording in camera, the trial court held that the state proved the videotaped interview met the statutory requirements of competency set forth in La. R.S. 15:440.4 and the statutory requirements for admissibility established in La. R.S. 15:440.5.[2] On November 8, 2017, the trial court held a competency hearing on the victim, who was then 16 years old. The trial court found that she was competent to testify, specifically concluding that she had a great understanding of the gravity of the situation and the difference between truth and falsehood. This was followed by a hearing on the admissibility of Ms. Floyd's testimony under La. C.E. art. 801(D)(1)(d) as the first person to whom the rape was reported; the trial court ruled that it was admissible as nonhearsay under that provision.

         At trial, the state presented the testimony of the victim; Ms. Floyd, the first person to whom the victim reported the rape; the victim's mother; Captain Evans (now the assistant police chief of the Bastrop Police Department); Ms. Daniel, the SANE nurse; Ms. O'Neal, the CAC interviewer; and Michelle Vrana, the DNA section supervisor and a forensic DNA analyst at the North Louisiana Criminalistics Laboratory.[3] The video of the victim's CAC interview was played for the jury during Ms. O'Neal's testimony. Ms. Vrana testified that the Y STR haplotype profile obtained from the victim's perineal swab and the partial Y STR haplotype profile obtained from the victim's anal swab were consistent with the Y STR haplotype obtained from the defendant's reference sample. Consequently, the defendant and all males in his paternal lineage could not be excluded as a donor. By her mathematical calculations, approximately 22, 500 African-American males in the United States could meet that criteria. While the defendant chose not to testify, he presented the testimony of the victim's aunt, who was his girlfriend at the time of the offenses. The jury unanimously convicted the defendant as charged on both counts.

         The defendant filed a motion for post-verdict judgment of acquittal, which was primarily based upon inconsistencies in the victim's testimony; it was denied. He also filed a motion for new trial on the same grounds. However, he later supplemented his motion for new trial to allege that the victim had admitted to his daughter that she lied about him raping her. At a hearing, the defendant's daughter testified on direct examination that the conversation occurred a few days after the trial. On cross-examination, she said it happened before the trial and that she told her parents about it. On redirect, she admitted that she was not "absolutely sure" of the date. A friend of the defendant's daughter testified that she was on the phone with the daughter and overheard the victim's admission. She said that she immediately told her mother. However, the friend testified that she attended the defendant's trial and that she was sure this incident happened before the trial. The trial court denied the motion for new trial. It questioned the veracity and motives of the witnesses, as well as the timing of the supposedly "newly discovered evidence."

         In July, 2018, the trial court sentenced the defendant to the maximum penalty for each offense, 40 years at hard labor without benefit of parole, probation, or suspension of sentence for second degree rape, and 20 years at hard labor without benefit of parole, probation, or suspension of sentence for attempted second degree rape. It ordered that the sentences be served concurrently with each other, but consecutively to any other sentence. The defendant's timely motion to reconsider sentence was denied.

         The defendant appeals. His appellate counsel argues that the trial court erred in the following respects: denying the motion for new trial; permitting the state to play the CAC video for the jury; admitting Ms. Floyd's testimony; allowing the CAC interviewer and the SANE nurse to testify as experts; and imposing an excessive sentence. The defendant also raised three pro se assignments of error in which he claimed that the trial court failed to protect his right of review based on a complete record and that his trial counsel was ineffective for failing to object to improper statements allegedly made by the prosecutor during closing arguments or move for a mistrial based on prosecutorial misconduct.

         MOTION FOR NEW TRIAL

         The defendant contends that the trial court erred in denying his motion for new trial, which was based upon testimony from his daughter and her friend that the victim had admitted lying about him raping her.

         Law

         In order to obtain a new trial based on newly discovered evidence, the defendant has the burden of showing that (1) the new evidence was discovered after trial, (2) the failure to discover the evidence at the time of the trial was not caused by lack of diligence, (3) the evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably have produced a different verdict. La.C.Cr.P. art. 851(B)(3); State v. Bell, 09-0199 (La. 11/30/10), 53 So.3d 437, cert. denied, 564 U.S. 1025, 131 S.Ct. 3035, 180 L.Ed.2d 856 (2011); State v. Matthews, 50, 838 (La.App. 2 Cir. 8/10/16), 200 So.3d 895, writ denied, 16-1678 (La. 6/5/17), 220 So.3d 752.

         In ruling on a motion for a new trial based on newly discovered evidence, the trial judge's "duty is not to weigh the new evidence as though he were a jury determining guilt or innocence, rather his duty is the narrow one of ascertaining whether there is new material fit for a new jury's judgment." State v. Prudholm, 446 So.2d 729 (La. 1984); State v. Thomas, 48, 530 (La.App. 2 Cir. 12/4/13), 131 So.3d 84. The decision of whether to grant or deny a motion for new trial is within the trial judge's sound discretion. State v. Brisban, 00-3437 (La. 2/26/02), 809 So.2d 923; State v. Matthews, supra.

         Discussion

         The basis for the defendant's motion for new trial was newly discovered evidence, i.e., an alleged conversation between the victim and the defendant's daughter in which the victim admitted lying about the defendant raping her. However, the testimony of the defendant's daughter and her friend who claimed to have overheard the admission did not prove that this conversation occurred after the trial or that the failure to discover the evidence at the time of the trial was not caused by lack of diligence on the part of the defense. The friend unequivocally testified that the incident occurred before the trial, which she attended. After initially testifying that the conversation happened after the trial, the defendant's daughter stated on cross-examination that it was before the trial. Then she said she did not know when it occurred. On redirect, she said she was not "absolutely sure" when it took place. Both girls testified that they told adults about the conversation; however, they did not meet with the defense's investigator until February 2018, about three months after the trial.

         The defense failed to show that the new evidence was discovered after trial and that the failure to discover the evidence was not caused by lack of diligence. Furthermore, the trial court strongly questioned the credibility of the two witnesses. It specifically referred to the inconsistencies in their testimony, as well as its observations of their behavior and responses on the witness stand. Therefore, the trial court correctly denied the motion for new trial. This assignment lacks merit.

         CAC VIDEO

         The defendant argues that the trial court's admission of the CAC video evidence did not adhere to the requirements of La. R.S. 15:440.4, and accordingly violated his rights under the Sixth Amendment Confrontation Clause. Specifically, the defendant asserts that the procedures did not adequately protect against leading questions and, thus, failed La. R.S. 15:440.4(A)(3). He asserts that the CAC interviewer received questions through an earpiece from both the police and her supervisor and that those questions were not recorded. He contends that, from those questions, the victim began to discuss the second offense for which Hilliard was ultimately charged.

         Law

         La. R.S. 15:440.4 provides, in relevant part:

A. A videotape of a protected person may be offered in evidence either for or against a defendant. To render such a videotape competent evidence, it must be satisfactorily proved:
(1) That such electronic recording was voluntarily made by the protected person.
(2) That no relative of the protected person was present in the room where the recording was made.
(3) That such recording was not made of answers to interrogatories calculated to lead the protected person to ...

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