State v. Breaux

• Decision Date: 08 February 2012
• Docket Number: 2011 KA 0015
• Parties: STATE OF LOUISIANA v. HENRY BREAUX, JR.
• Court: Court of Appeal of Louisiana — District of US

STATE OF LOUISIANA

v.HENRY BREAUX, JR.

2011 KA 0015

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Judgment Rendered: February 8, 2012

NOT DESIGNATED FOR PUBLICATION

APPEALED FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT

IN AND FOR THE PARISH OF LAFOURCHE

STATE OF LOUISIANA

DOCKET NUMBER 463597

THE HONORABLE JEROME J. BARBERA III, JUDGE

Camille A. Morvant, II

District Attorney

Thibodaux, Louisiana

Kristine M. Russell

Assistant District Attorney

Attorney for Appellee

State of Louisiana

Frank Sloan

Mandeville, Louisiana

Attorney for Defendant/Appellant

Henry Breaux, Jr., Pro Se

Angola, La.

MCDONALD, J.

Defendant, H.B.¹ , was charged by grand jury indictment with sexual battery of a person under the age of thirteen (count 1) and second degree cruelty to a juvenile (count 2), violations of La. R.S. 14:43.1² and 14:93.2.3, respectively. Defendant pleaded not guilty and, following a trial by jury, was unanimously found guilty as charged on both counts. The trial court sentenced him for the sexual battery conviction to 40 years at hard labor, with the first 25 years to be without benefit of parole, probation or suspension of sentence, and to 30 years at hard labor for the second degree cruelty to a juvenile conviction. The sentences were made concurrent. Thereafter, the state filed a habitual offender bill of information seeking to enhance defendant's sentences pursuant to La. R.S. 15:529.1.³

Following a habitual offender hearing on October 12, 2010, the trial court adjudicated defendant to be a fourth-felony habitual offender and sentenced him to life imprisonment without benefit of parole, probation or suspension of sentence. The trial court subsequently realized it had failed to specify which sentence was enhanced and, on its own motion, set a hearing to modify and amend the habitual offender sentence it imposed. Accordingly, on November 23, 2010, the trial court sentenced defendant pursuant to La. R.S. 15:529.lA(l)(b)(i) as a third-felony habitual offender on his conviction for sexual battery of a person under the age of thirteen to 75 years at hard labor, the first 25 years to be without benefit of parole, probation or suspension of sentence. Pursuant to La. R.S. 15:529.1 A(l)(c)(ii), defendant was sentenced as a fourth-felony habitual offender for the second degreecruelty to a juvenile conviction to life imprisonment at hard labor. The sentences were made concurrent.

Defendant now appeals, raising four counseled and six pro se assignments of error. For the following reasons, we affirm both convictions and defendant's adjudication and sentence as a third-felony habitual offender on count one (sexual battery). We reverse defendant's adjudication and sentence as a fourth-felony habitual offender on count two (second degree cruelty to a juvenile) and remand this matter for resentencing on that conviction.

ASSIGNMENTS OF ERROR

Counseled Assignments of Error:

1. The trial court erred and/or abused its discretion in preventing defendant from impeaching the reliability of the victim's testimony by introducing evidence that she previously had recanted rape allegations she made against her uncle.

2. The trial court erred and/or abused its discretion in preventing defendant from presenting evidence that the victim's uncle had the predisposition and opportunity to have caused the injuries to the victim's "privates."

3. The trial court erred in adjudicating defendant to be a fourth-felony habitual offender and in sentencing him to life imprisonment.

4. The trial court erred in failing to vacate the life sentence previously imposed when it resentenced defendant.

Pro se Assignments of Error:

1. The trial court erred in charging defendant as a fourth-felony habitual offender.

2. The disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were violated by the state and the trial court.

3. The sentence imposed upon defendant for the sexual battery conviction was grossly excessive because it exceeded the sentencing guidelines.

4. The grand jury indictment was defective in that it failed to include the essential facts constituting the offenses charged against defendant, as required by La. C.Cr.P. art. 464.

5. The trial court lacked subject matter jurisdiction over the instant prosecution.

6. The trial court erred in sentencing defendant under the habitual offender statute, La. R.S. 15:529.1, which is an unconstitutional statute.

FACTS

In April 2008, defendant obtained custody of his five-year-old biological daughter, P.L. Several months later, on August 18, 2008, shortly after the child returned to defendant's home following a court-ordered visitation with her maternal relatives, defendant filed a complaint with the Lafourche Parish Sheriff's Office (LPSO) concerning bruises on the rear portion of her body. During the follow-up investigation, the child was observed to be frail and limping. Investigators were told by both defendant and P.L. that she had fallen off a jungle gym and broken her left leg in July of 2008, and had required surgery on that leg.

As a result of the continued investigation by the Office of Community Services and the LPSO, P.L. eventually was removed from defendant's home and placed in a foster home. On her first evening in the foster home, P.L.'s foster mother noticed what appeared to be blood on P.L.'s panties. On August 28, 2008, P.L. was taken to Children's Hospital in New Orleans for an examination by Dr. Yameika Head, stipulated by the parties to be an expert in the field of child abuse pediatrics.

The results of the examination by Dr. Head were highly abnormal. Dr. Head, who indicated that she has seen over a thousand children suspected of being maltreated, indicated that the traumatic genital and anal injuries she observed during P.L.'s examination were the worst she had ever seen. Additionally, Dr. Head testified that, while P.L. initially told her she broke her leg falling off of monkey bars, she later stated that defendant broke her leg.

At trial, P.L. testified that defendant wiped her "bottom," which she alsocalled her "privates," frequently while they were in the bathroom together. In describing how defendant broke her leg she stated, "He was wiping me and I always kick because it hurts and he didn't want me to kick him so he pulled my leg back and it broke." She indicated defendant was wiping her "hard" when this occurred.

RECANTATION OF PRIOR ACCUSATIONS

In his first counseled assignment of error, defendant contends the trial court erred in barring the introduction of evidence that P.L. had recanted prior accusations of sexual abuse that she had made against her uncle. Defendant argues this ruling violated his constitutional rights to confront his accuser and to present a defense, because it prevented him from attacking the reliability and credibility of P.L.'s accusations against him.

Prior to trial, defendant filed a motion in limine to allow admission of evidence regarding allegations of sexual abuse made and later recanted by P.L. in March or April of 2008. The motion was based on the fact that, prior to defendant obtaining custody of P.L. in 2008, she made accusations of being sexually abused by her maternal uncle, U.L., and a juvenile cousin. She later recanted the accusations made against her uncle. However, her uncle gave a detailed confession and pleaded guilty to forcible rape in connection with the accusations made by P.L.

At the hearing on the motion in limine, defendant argued that the rape shield law, La. C.E. art. 412, did not prevent him from cross-examining P.L. for impeachment purposes on her history of recanted accusations. Defendant maintained that since the accusations and recantation were inconsistent with each other, the jury could conclude either that the accusations by P.L. were false or that she was susceptible to undue influence by maternal family members. The trial court denied the motion in limine, finding that a reasonable juror could not haveconcluded, despite the recantation, that P.L. made false accusations against her uncle.⁴

The Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. This right includes the right to cross-examine the prosecution's witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); State v. Vaughn, 448 So.2d 1260, 1267 (1983) (on rehearing). Further, an accused also has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

However, constitutional guarantees do not assure the defendant the right to the admissibility of any type of evidence, only that which is deemed trustworthy and has probative value. State v. Governor, 331 So.2d 443, 449 (La. 1976); State v. Freeman, 07-0470, p. 6 (La. App. 1st Cir. 9/14/07), 970 So.2d 621, 624, writ denied, 2007-2129 (La. 3/14/08), 977 So.2d 930. Even relevant evidence may be excluded if its probative value is substantially outweighed by its prejudicial effect. See La. C.E. art. 403. Further, a trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. Freeman, 07-0470 at p. 7, 970 So.2d at 625.

Generally, a defendant may attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E. art. 607C. However, the right of an accused sex offender to present a defense must be balanced against the victim'sinterests under La. C. E. art. 412, which is intended to protect a victim of sexual assault from having her sexual history made public. State v. Everidge, 96-2665, p. 5 (La. 12/2/97), 702 So.2d 680, 684. Thus, in a prosecution for sexually assaultive behavior, Article 412 prohibits the introduction of evidence of the victim's...