State v. Webb

• Decision Date: 30 January 2014
• Docket Number: No. 2013–KA–0146.,2013–KA–0146.
• Citation: 133 So.3d 258
• Parties: STATE of Louisiana v. Benjamin T. WEBB.
• Court: Court of Appeal of Louisiana — District of US

133 So.3d 258

STATE of Louisiana
v.
Benjamin T. WEBB.

No. 2013–KA–0146.

Court of Appeal of Louisiana,
Fourth Circuit.

Jan. 30, 2014.

[133 So.3d 261]

Leon A. Cannizzaro, Jr., District Attorney of Orleans Parish, Matthew R. Payne, Assistant District Attorney of Orleans Parish, Donna Andrieu, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for State of Louisiana.

Powell W. Miller, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

(Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).

JAMES F. McKAY III, Chief Judge.
STATEMENT OF THE CASE

On February 24, 2011, the State indicted Benjamin T. Webb, also known as Webb Benjamin, also known as Tyronne Benjamin (defendant) with two counts of aggravated rape (counts 1 and 2), violations of La. R.S. 14:42, and one count (count 3) of aggravated kidnapping, a violation of La. R.S. 14:44. The defendant pled not guilty on all charges on March 15, 2011.

On July 14, 2011, the district court heard and granted the State's motion to introduce evidence of other crimes.

On July 23, 2012, the defense filed a motion to suppress the DNA evidence; and a motion in limine to bar the State's DNA expert giving opinion testimony about tests she had not performed personally; and challenged the constitutionality of non-unanimous jury verdicts. The district court denied those motions the same day.

The defendant's jury trial began July 23, 2012; and on July 25, 2012, the jury returned verdicts of guilty of forcible rape (La. R.S. 14:42.1) as to count 1, guilty of aggravated rape (La. R.S. 14:42) on count 2, and guilty of second degree kidnapping (La. R.S. 14:44.1) on count 3.

On August 10, 2012, the defendant filed motions for post-verdict judgment of acquittal, for new trial and to reconsider sentence, all of which were denied. That same day, the defendant filed a motion for

[133 So.3d 262]

appeal and designation of record, which was granted.

On August 14, 2012, the district court sentenced the defendant to life imprisonment at hard labor on count 2 and to forty years at hard labor on each of counts 1 and 3, with credit for time served, sentences to be served concurrently.

On September 5, 2012, the defendant filed another motion for appeal and designation of record.

STATEMENT OF THE FACTS

On November 30, 1999, Detective Clifton Neely of the New Orleans Police Department (“NOPD”) Sex Crimes Division responded to a call of sexual assault at 2228 Port Street. He met with M.M.,¹ the victim, who was terrified and recounted that she had been raped in her bedroom by an unknown assailant. The detective instructed the crime lab to photograph the scene and the bruises on the victim's wrists. During the investigation, Detective Neely found a length of telephone cord that was used to bind the victim's hands. He also retrieved a multicolored handkerchief or cloth from under the victim's bed.

The victim directed Detective Neely to the point of entry—the rear door of the house. The detective observed that the assailant pried out the middle panel of the door and pushed it open.

Detective Neely identified the six-page crime lab report, which listed the evidence obtained from the crime scene, including pictures, two latent fingerprints, and one set of elimination prints from the victim and the multicolored handkerchief. The detective testified that the evidence retrieved from the scene was deposited in Central Evidence and Property (CE & P) by the crime scene technician.

The victim was transported to the hospital where she underwent a sexual assault exam. The sexual assault kit was deposited in CE & P pending further testing. A receipt was identified, as the receipt that was issued by CE & P upon receiving the sexual assault kit, a pair of striped pants and white underwear, both of which the victim wore after the attack.

On cross-examination, Detective Neely admitted that he was not in the room at the time hospital personnel performed tests and completed the sexual assault kit, but he explained that he retrieved the kit from the hospital on December 15, 1999, from the “SANE” (Sexual Assault Nurse Examiner) room (a separate, refrigerated, secure area at the hospital) and deposited it with CE & P that same day. The clothing taken from the victim at the time of the sexual assault exam was also stored under refrigeration with the kit. Detective Neely explained that the name “Dante Rivers” was listed as a suspect on the CE & P receipt for the sexual assault kit at the time of deposit. However, that was a typographical error, which explains why the name “Dante Rivers” was crossed through and replaced with “unknown” on the line identifying the suspect.

NOPD Officer George Jackson, a fingerprint examiner for the city, testified that he had conducted latent print examinations testing thousands of times and been qualified as an expert in his field. Officer Jackson identified State's exhibit 2, bearing case number K52439, as a set of victim elimination prints and two latent prints lifted from the scene. He compared

[133 So.3d 263]

State's exhibit 5, a set of ink-rolled fingerprints and flat impressions taken from the defendant immediately prior to trial, to State's exhibit 2 but was unable to link the defendant to the latent prints lifted at the crime scene.

Sergeant James Kelly of the NOPD Sex Crimes Unit investigated the aggravated rape of M.M., as well as the aggravated rape of N.S. The two rapes did not occur at the same time, but Sergeant Kelly was aware of the DNA (CODIS ²) match to the defendant as to both M.M. and N.S. He contacted M.M. in 2010 in connection with a follow-up investigation. Sergeant Kelly did not show M.M. the defendant's picture because DNA identified the defendant as her assailant. Based upon his investigation, the sergeant obtained a warrant for the defendant's arrest at his 2224 Port Street residence. Sergeant Kelly testified that at the time of the investigation of the CODIS match in this case, he was assigned to investigate the aggravated rape of N.S., which also produced a CODIS match to the defendant.

Sergeant Kelly obtained a buccal swab from the defendant after his arrest. Sergeant Kelly explained that a buccal swab serves as an additional identity confirmation to a match with the CODIS system. Sergeant Kelly identified State's exhibit 6 as the sealed buccal swab he received from the defendant, and he confirmed that it was a match to the defendant as to the aggravated rapes of M.M. and N.S.

M.M. testified that she was raped three times on the night of November 30, 1999. At that time, she was living with her three young children at 2228 Port Street—one half of a shotgun house. Her mother lived next door to her at 2226 Port Street. M.M. recounted that she went to bed at about 10:00 p.m. on November 30, 1999. She was sleeping on a bed in the living room with two of her children when she was awakened by a man clothed in black, wearing a hood and tapping a gun on her foot. The man told her to be quiet and made her face the wall. He removed her jewelry and told her to exit the bed backwards, which she did. The man removed her scarf from her head and blindfolded her with it. Then he tied her hands behind her back with a telephone cord. As M.M. stood there, the man searched the living room. After that, he ordered M.M. to go to the bedroom, where he placed her on the bed on her back and removed her pajama pants. He raped her for the first time. As M.M. lay on the bed crying, the man began to search her home for money, drugs and jewelry. When he had searched the house, the man returned to her in the bedroom and raped her for the second time. M.M. was still blindfolded with her hands tied behind her back. He told her that he had been watching her for about three years and asked her why she had no man and lived alone. She continued talking to him because she feared for her children. At that point, her assailant raped her for the third time. After that, he led her to the kitchen to get a cold drink. From there he accompanied her to the bathroom, after which they returned to the kitchen. When the man had taken all the jewelry in the house and a BB gun she kept on hand, he sat M.M. on the bed and untied her hands but kept her blindfolded. He told her not to uncover her eyes until after she counted to fifty. He told her “to get an alarm system, a gun or some type of protection, because next time [she] might not be so lucky.” M.M. could feel the man's presence standing and watching

[133 So.3d 264]

her. When she was certain he was gone, she removed the blindfold, ran to check on her children, and called the police. When the police arrived, M.M. recounted her ordeal. They transported her to the hospital where she underwent a sexual assault exam.

M.M. denied knowing her assailant, and she testified that she did not consent to any sexual activity with the assailant.

NOPD Complaint Operator Erin Williams testified, explaining that when a 911 call is received by the department, the call is recorded and assigned an item number, in this case L–32758–99. The call is also assigned an incident recall, which is a hard copy of the contents of the call.³ The incident recall reflected that a signal 60 (home invasion) call came into the 911 operator in November 1999 at 5:42 a.m. from 2414 S. Rocheblave giving a clothing description of two black male suspects. Police dispatch reported that the call was actually of an aggravated rape.

Ms. Williams explained that the tape of this 911 call was unavailable at the time of trial because 911 calls in 1999 were kept for only three years.

N.S. testified that she was nineteen years old on December 19, 1999, when she was raped. At the time of the assault, N.S. lived with her grandmother and twin sister on Louisiana Avenue Parkway. That night, N.S. left the house at midnight to visit a friend, who lived on the corner of Walmsley and Broadmoor Streets. As she walked, a black male drove up...