State v. Maise

• Decision Date: 15 January 2002
• Docket Number: No. 2000-K-1158.,2000-K-1158.
• Parties: STATE of Louisiana v. Allen MAISE (Sentenced as "Alan Maise").
• Court: Louisiana Supreme Court

805 So.2d 1141

STATE of Louisiana v. Allen MAISE (Sentenced as "Alan Maise").

No. 2000-K-1158.

Supreme Court of Louisiana.

January 15, 2002.

Rehearing Denied February 22, 2002.

Bruce G. Whittaker, Esq., for Applicant. Allen Maise, pro se.

Rebecca J. Becker, Esq., Terry M. Boudreaux, Esq., Richard P. Ieyoub, Atty. Gen., Paul D. Connick, Jr., Dist. Atty., for Respondent.

TRAYLOR, J.¹

Allen Maise was indicted by a grand jury for the aggravated rape of a juvenile under the age of 12, a violation of La.Rev. Stat. 14:42. After a jury trial, defendant was found guilty as charged. The trial court sentenced defendant to life imprisonment at hard labor without the benefit of probation, parole, or suspended sentence. The Louisiana Fifth Circuit Court of Appeal affirmed. State v. Maise, 99-734 (La. App. 5th Cir.3/22/00), 759 So.2d 884. We granted the defendant's application to consider whether the court of appeal correctly applied the harmless-error standard of review. State v. Maise, 00-1158 (La.9/14/01), 795 So.2d 1219. After a review of the record, we agree with the court of appeal and affirm defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On an evening in April 1996, defendant was visiting the home of his aunt, Ethel Sampey, when his six-year-old cousin, C.M., asked him to play a video game with him in his bedroom.² According to Ms. Sampey's testimony, the defendant left the living room and entered her grandson's bedroom. Shortly afterwards, Ms. Sampey heard her grandson scream. She went to C.M.'s room, and saw C.M. lying on the foot of the bed. Ms. Sampey testified that defendant was hugging C.M. telling him, "be quiet, everything's going to be okay." Ms. Sampey said that when she entered the room, C.M. was wearing his underwear and a tee shirt.³ The defendant was wearing shorts and a tee shirt.

Later that evening, after the defendant was sent home, C.M. told his grandmother, "A.J. hurt me real bad."⁴ When questioned as to how A.J. hurt him, C.M. responded, "my booty." She said, "How did he hurt your booty?" C.M. told her, "with his privates." Later that evening Ms. Sampey confronted the defendant's stepfather, Frank Polito, who told her that the defendant's mother had been instructed not to leave the defendant with small children.

On April 27, 1998, the defendant's mother telephoned the Crisis Center and spoke with one of the social workers. She informed the social worker that she was concerned that her son had re-offended.

Three days later, on April 30, 1998, during one of defendant's regularly scheduled group therapy sessions, he told the group that he had re-offended by anally penetrating his six-year-old cousin. According to Phillip Hemphill, the social worker, the defendant stated he knew that he penetrated C.M., because he heard him yell and scream. Defendant further stated, according to Hemphill, that he attempted to cover C.M.'s mouth or tell him to quiet down, but then the child's grandmother came in the room. After the group therapy session, Hemphill telephoned the defendant's probation officer and informed her of the need for intervention.

On May 20, 1998, C.M. was interviewed by Amelie Gorgon of the Jefferson Parish Sheriff's office. C.M. recounted the events of the incident to Ms. Gordon. The interview was videotaped and subsequently used at trial.

On June 4, 1998, defendant was charged as an adult by grand jury indictment. He pled not guilty and was subsequently found competent to stand trial by a sanity commission.

On the morning of trial, at a Prieur and suppression hearing, the state sought to introduce testimony from defendant's social worker, the defendant's statement to his probation officer, and evidence regarding the prior sexual battery adjudication. The trial court denied the motion to exclude the statements and allowed the prior sexual battery adjudication. The court of appeal reversed, finding both the telephone statements and the other crimes evidence inadmissable. State v. Maise, 99-0024 (La.App. 5th Cir.1/7/99). Trial was stayed and the state sought review in this court. This court granted the state's application, vacated the Fifth Circuit's ruling and reinstated those of the trial court. State v. Maise, 99-0051 (La.1/13/99), 735 So.2d 641. The trial commenced on January 5, 1999.

The state's first witness was Dr. Scott Benton, an expert in pediatric forensic medicine. He testified that he performed a sexual abuse examination on C.M. on June 30, 1998 (approximately two months after the incident). His findings revealed no indication of sexual abuse. Dr. Benton told the jury, however, that he would expect the exam to be normal, because the area heals easily.

Dr. Benton testified that during his interview with C.M., C.M. told him, "A.J. [the defendant] would get on top of me while I was watching TV or playing Nintendo.... Sometime he stick his private in my hiney. It made me cry and cry because it hurted." Dr. Benton found C.M.'s statements to be detailed and consistent, with no evidence of fabrication.

Next, River Oaks Psychiatric Hospital social worker, Philip Hemphill, testified that defendant was a referral from juvenile probation. After a defense objection was overruled, the witness testified that defendant was on probation for taking a three year old female into a bedroom, where he "pulled her pants down, pulled his pants down, rubbed his penis on her genital area as well as his hand on her genital area." As to the present offense, Hemphill testified that the defendant admitted, during group therapy, that he had anally penetrated his six-year-old male cousin. According to Hemphill's testimony, the defendant said that he knew he had penetrated the child because the boy yelled and screamed. Hemphill stated that he later contacted the defendant's probation officer and informed her of the incident.

Wanda Brown of the Department of Juvenile Services identified the defendant as her client, on probation for a sexual battery. She told jurors that the defendant was in group therapy for being both a victim and a perpetrator of sexual abuse. Brown testified that the defendant's social worker contacted her and told her that the defendant wished to speak with her. Brown got on the phone with the defendant and asked "if he knew what was going on with him in regards to what was being said." He responded, "Yes." She then asked if he wanted to talk about it and he did. She asked the defendant if he had sex with the little boy. The defendant said, "Yeah." She then asked him what happened. The defendant told her that he undressed the boy, undressed himself, and got on top of the boy. Brown said further:

"I remember asking him did he penetrate him." And his response was ..., "Well, the doctor said I didn't." And I said, "You should know if you did. Did you penetrate him?" And he said, "Yes."

The victim's grandmother told jurors that she and the defendant were watching television when her grandson asked defendant to come to his room to play a game. Shortly thereafter she heard C.M. scream. Entering the room, she found both the defendant and C.M. on the bed, defendant was telling C.M. that everything would be alright. Later that evening, C.M. told his grandmother that A.J. "Hurt him real bad."

C.M., the victim, testified that he remembered making the videotape on May 20, 1998, approximately three weeks after the incident. The videotape then was played for the jury. On the videotape C.M. told Amelie Gordon that "A.J.," his "big cousin," whom he also identified as "Allen," got on top of him and hurt his "butt" with his "wee-wee." C.M. said, "He came right up to the heart and it hurted bad bad.... It hurted so bad, I cried so loud." After the videotape concluded, C.M. testified that everything he said on the tape was truthful. He identified the defendant in open court and said that the defendant was the one who did "those things to him." On cross-examination he was asked whether the defendant "touched your butt with his wee-wee" and he responded, "Yeah."

When Detective Sergeant Kelly Jones of the Jefferson Parish Sheriffs Office was called to testify, the defense sought a limiting instruction on the other crimes evidence. The trial court denied the request remarking, "[not] right now." Jones testified that she investigated an incident that occurred on September 13, 1996, wherein the defendant sexually abused a three-year-old girl. Jones said that defendant took the child, who was playing with neighborhood children, into a neighbor's home while the neighbor was outside talking to other parents. He took her into a bedroom, removed her clothing, removed part of his clothing, touched her on the vaginal area with his hand, and inserted his penis in her vagina. Jones said the defendant denied penetrating the victim. He subsequently was adjudicated delinquent for sexual battery.

When the defense presented its case, its primary defense was that penetration never occurred. Allen Maise testified on his own behalf. He reiterated his own history, confirming that he was molested by his father from the age of two and by his brother from the age of six until he was twelve. He was afraid to report it to anyone because of threats from his brother. The defendant admitted that he had previously been adjudicated delinquent because of an incident with a little girl. He said that he accepted responsibility for that incident and knew he had a problem. He testified that he attended group therapy with Phillip Hemphill at the New Orleans Adolescent Home and at Family Services of Manhattan with therapist Joan Bell.

The defendant discussed the incident resulting in this case. He said that the night of the incident he was watching television with his aunt and C.M. kept coming in asking him to play a video game, so he left the room to go and help C.M. with the game. The defendant testified that he went into the victim's room and rubbed C.M.'s "private area" with his hand.

The defendant...