State v. German
| Decision Date | 22 January 2014 |
| Docket Number | No. 2012–KA–1293.,2012–KA–1293. |
| Citation | 133 So.3d 179 |
| Parties | STATE of Louisiana v. Leonardo R. GERMAN. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Charles Joseph Ballay, District Attorney of Plaquemines Parish, Joseph E. Roberts, Assistant District Attorney of Plaquemines Parish, Belle Chasse, LA, for the State of Louisiana/Appellee.
Powell W. Miller, New Orleans, LA, for Defendant/Appellant.
(Court composed of Judge TERRI F. LOVE, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
Defendant, Leonardo German, appeals his convictions and consecutive sentences for attempted aggravated rape, simple kidnapping, aggravated battery, and aggravated burglary. In the six assignments of error presented to this Court on appeal, defendant raises the issues of sufficiency of evidence; denial of due process for failure to appoint a sanity commission; denial of right to fair trial; double jeopardy; and ineffective assistance of counsel.1 Finding no patent errors in the record and no merit to any of defendant's assignments of error, we affirm his convictions and sentences.
On May 27, 2009, Leonardo German was charged by grand jury indictment with one count each of aggravated rape, a violation of La. R.S. 14:42; simple kidnapping, a violation of La. R.S. 14:45; aggravated battery, a violation of La. R.S. 14:34; and aggravated burglary of an inhabited dwelling, a violation of La. R.S.14:60.
On July 6, 2009, defendant appeared at arraignment with his court appointed counsel and he entered pleas of not guilty to all charges. On September 15, 2010, the trial court granted defense counsel's motion to withdraw as counsel of record and ordered the public defender to assign new counsel. 2 On March 15, 2011, the trial court held a hearing on defendant's motion to suppress confession statement. The trial court took the matter under advisement and denied the motion to suppress confession statement on April 19, 2011. On September 1, 2011, defendant's second court appointed attorney was allowed to withdraw as counsel and, on October 14, 2011, a third attorney, Mr. Juan Labadie, was appointed to represent defendant.3 Mr. Labadie made his first appearance in this matter on November 8, 2011, and motions were set for December 15, 2011. On that date, defense counsel appeared with defendant and after all remaining motions were satisfied the case was set for trial on February 7, 2012.
The day before trial, February 6, defense counsel filed a motion to appoint a sanity commission and, on February 7, made an oral motion for continuance. The trial court denied both motions, defense counsel objected to the trial court's rulings and applied for writ of review with this Court on the same day. This Court declined to exercise its supervisory jurisdiction and denied the writ. 4
This case proceeded to trial on February 8, 2012, and the twelve-person jury found defendant guilty of the lesser responsive verdict of attempted aggravated rape and guilty as charged for simple kidnapping, aggravated battery, and aggravated burglary. Defendant filed a motion for new trial that was denied on May 8, 2012. On May 15, 2012, the trial court sentenced defendant to serve consecutive sentences of forty-five years without probation, parole or suspension of sentence for attempted aggravated rape, four years for simple kidnapping, eight years for aggravated battery and twenty-eight years for aggravated burglary. Defense counsel objected to the sentences and noticed its intent to appeal. This appeal followed.
At trial, Richard Mickey Gibbons testified that in April 2009 he owned rental properties on Scarsdale Road in Plaquemines Parish. The victim, S.R., 5 lived in one of Mr. Gibbon's apartments at 137 Scarsdale Road with her fiance. The defendant, Mr. German, lived in another of Mr. Gibbon's apartments at 3833 Highway 39. The two apartments are located at the intersection of Scarsdale Road and Highway 39, one facing Scarsdale Road and the other facing Highway 39.
Mr. Gibbons testified that, on the evening of April 26, 2009, he received a phone call from S.R.'s fiance that prompted Mr. Gibbons to check in on S.R. at her apartment. When he got to the apartment, Mr. Gibbons saw that windows had been broken out in the door, that the house appeared to have been broken into, and S.R. was nowhere in the apartment. At that time, Mr. Gibbons called the Plaquemines Parish Sheriff's Office.
Deputy Kevin Bryan testified that he responded to a call for service reporting a residential burglary on Scarsdale Road. He spoke with Mr. Gibbons and inspected the residence at 137 Scarsdale Road. Deputy Bryan then asked Mr. Gibbons if he knew where the residents were and Mr. Gibbons stated that the fiance was at work and S.R. was “at the house on the front of the lane.” Deputy Bryan and Deputy Craig Hudson went to that location, knocked on the door, and announced “Sheriff's Office.” A female opened the door and ran out screaming that the man inside had a gun and was trying to kill her. Deputy Bryan stated that she was hysterical, crying, and shaking. Another deputy was called over for assistance, and the female was escorted across the street and kept behind police units for safety. Following procedures for armed and barricaded individuals, the deputies made notifications to the Sheriff's Office and the Special Response Team (SRT), set up a perimeter around the location, and waited for backup.
Plaquemines Parish Narcotics Agent Ryan Martinez testified that he was a member of the SRT that responded to an incident on April 26, 2009 on Scarsdale Road. He and another SRT member arrived at the scene first and were advised to get on their gear and watch the rear of the residence on Highway 39 to make sure no one fled from the rear of the home. Agent Martinez testified that between 3:00 and 3:30 a.m. he observed an individual, draped with a sheet over his/her head, walking quickly from the residence. Agent Martinez and another SRT member gave loud verbal commands telling the individual to get on the ground and place his hands behind his back. The individual complied and Agent Martinez detained the individual.
During his testimony, Agent Martinez identified defendant as the individual detained on the night of the incident. Agent Martinez testified that he did not advise defendant that he was under arrest, he did not question or attempt to question defendant, and defendant made no statement to him. He did not recall whether defendant was advised of his rights at that time. Defendant was transferred to the custody of one of the uniformed patrol deputies on the scene.
On the night of this incident, the victim, S.R., gave a written statement to the Plaquemines Parish Sheriff's Office about the events of that night. S.R. also gave an audio-recorded statement to Det. Mary McClendon on April 27, 2009, and she testified at trial. S.R. testified she had lived at 137 Scarsdale Rd. with her fiance in April 2009. She knew defendant as a neighbor, had talked with him in the previous four or five months prior to the incident, and that defendant had given her a ride to the Dollar Store on occasion. S.R. testified that her relationship to defendant never extended beyond neighbors and she never had any sexual relationship with him.
S.R. testified that on April 26, 2009, she was at her apartment and talking on the phone with her fiance at approximately 9:00 p.m. She stated that she heard a loud knock on the door and she called out “Just a minute.” She testified that she told her fiance that defendant was at the door and it sounded like he was kicking the door. She stated that she called out to defendant saying “What do you want?” and defendant yelled at her, “Open the door, you bi–––.” She called out to defendant saying she was going to call the landlord and ended the call with her fiance. She stated that defendant went around to her other door, (what she considered her front door) broke through the window pane in the door with a gun, reached in and unlocked the door. She testified that defendant came into her apartment with the gun, threw her down, and told her he was going to kill her.
S.R. stated that defendant dragged her out of her apartment through the grass and into one of the nearby unoccupied apartments. She stated that it was dark inside and she could not tell if defendant put her on a bed or couch, and “he just kept beating me and telling me to do things.” When asked what defendant was telling her to do, she stated that he told her to “suck his anaconda” referring to his penis. She stated that he told her to open her mouth; defendant pushed the gun into her mouth and chipped her teeth. She stated that defendant told her to bite his neck and his nipples, and she did this so that he would stop hitting her. But defendant did hit her again with the gun and said he would kill her. She testified that she was scared for her life, particularly when she saw him pull back on the gun and heard it click.
S.R. thought the ordeal in that unoccupied apartment lasted about 20 minutes. At some point, defendant took her out of that apartment and stated that he wanted her to go to his truck. But defendant could not find his keys so he took her to his apartment. While in his apartment, she stated that defendant undressed. She testified that she knew defendant had a roommate but he did not come out of his room. Defendant had gotten another gun, a silver one, and held it to her side while he put the first gun to her mouth and told her to open her mouth. She told him she needed to use the bathroom. She testified that defendant went with her to the bathroom, she pulled down her pants, and he told her to sit there and shut up. Then he hit her with the gun and dragged her back to his room. She stated that he again told her to “suck his anaconda.”
At some point, S.R. heard the Plaquemines Parish Sheriff's Office beating on the door and saw a light through...
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