State v. D.D.
| Decision Date | 27 December 2019 |
| Docket Number | NO. 2018-KA-0891,2018-KA-0891 |
| Citation | 288 So.3d 808 |
| Parties | STATE of Louisiana v. D.D. |
| Court | Court of Appeal of Louisiana — District of US |
Leon Cannizzaro, District Attorney, Donna Andrieu, Irena Zajickova, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE
Kevin Vincent Boshea, ATTORNEY AT LAW, 2955 Ridgelake Drive, Suite 207, Metairie, LA 70002, COUNSEL FOR APPELLANT
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )
On December 15, 2016, the defendant/appellant, D.D.2 ("Defendant") was indicted by a grand jury as follows: two counts of first degree rape, a violation of La. R.S. 14:42 ; one count of attempted first degree rape, a violation of La. R.S. 14:27(42) ; and one count of sexual battery, a violation of La. R.S. 14:43.1. Defendant allegedly committed these offenses against his minor biological daughter ("Victim"), who was thirteen years old at the time of his March 2018 trial. The State of Louisiana ("State") in its indictment alleged that the first count of first degree rape occurred between August 5, 2012 and October 23, 2016; the second count of first degree rape occurred on October 24, 2016; and the counts of attempted first degree rape and sexual battery occurred on November 1, 2016.
In early 2018, a unanimous jury delivered a verdict against Defendant finding him guilty on all counts. After denying Defendant's motions for new trial, in arrest of judgment, and to reconsider sentence, the district court sentenced Defendant to life imprisonment on each count of first degree rape, fifty years on attempted first degree rape, and fifty years on sexual battery, with all sentences to be served without benefit of parole, probation, or suspension of sentence.
In 2016, Victim was living at home with Defendant, her mother ("Mother") and her younger siblings, a sister, who was ten years old at the time of trial, and two brothers, who were ten and eight years old at the time of trial. Defendant's brother ("Uncle") also lived at the residence. Defendant, as a nail technician, did not work on Mondays, while Mother and Uncle worked out of the house. Mother speaks only Vietnamese.
Defendant allegedly began raping his daughter in 2012 when she was eight years old and in the fourth grade. The State further alleges that Defendant raped Victim on Mondays with the last rape occurring on Monday, October 24, 2016. The State also charged that on November 1, 2016, Defendant attempted to rape and committed sexual battery on Victim.
Shortly after the last alleged rape, Victim disclosed the sexual abuse to her best friend ("A.A.") stating that her father raped3 her and the rapes occurred on Mondays when her Mother and Uncle were at work and her father was at home from work, and began when she was in the fourth grade. Victim cried as she disclosed the rapes. The disclosure took place at the catholic elementary school that Victim and A.A. attended together. Although she promised Victim that she would not tell anyone, out of fear for the safety of her friend, A.A. told the school's assistant principal and then the school's principal ("Principal") about Victim's statements to her.
After Victim's initial disclosure of the rapes to A.A., Victim consistently confirmed her disclosure of abuse to the following six individuals: Principal, two officers from the New Orleans Police Department ("NOPD"); a caseworker from Louisiana Department of Children and Family Services ("DCFS"); a medical professional at Children's Hospital; and Mother.
On November 4th, after speaking with A.A., Principal called Victim to her office and Victim confirmed the statements she made to A.A. Victim provided additional details of the sexual abuse, telling Principal that Defendant would tell her three younger siblings to go into another room to do homework while Victim cleaned with her father. Principal, as a mandatory reporter,4 then called 911 and DCFS.
Sergeant Christian Lacey with the NOPD arrived at the school and briefly interviewed Victim with Principal present. The interview was captured by a NOPD body worn camera ("BWC videotape"). Shortly thereafter, NOPD Detective Charles Augustus with the Child Abuse Unit, arrived at school and conducted an interview with Victim, which was audio-recorded. During both interviews by the police officers, Victim again confirmed the statements she made to A.A., and specifically told Det. Augustus that Defendant put his "privates in her privates" and that last time he did that was on October 24th; but that Defendant attempted again on November 1st.
Later on the afternoon of November 4th, Christopher Martinez, a DCFS caseworker, came to Victim's school to interview Victim, Victim's siblings, and Mother. Victim told Martinez that Defendant had been sexually assaulting her on Mondays since she was eight years old. Martinez spoke to Mother, who was in disbelief and denied Defendant did that to his daughter. Martinez spoke also to D.D. Jr., the then eight-year-old brother of Victim, who confirmed that Victim's three younger siblings were placed in a different room when Victim cleaned with Defendant in another part of the house.
Weeks later in the schoolyard, A.A. saw Victim with a piece of paper and Victim told A.A. that Mother and Uncle made it for her to rehearse saying she had lied about Defendant and he had not abused her. Victim told A.A. that she would get in trouble with Mother if she did not remember it.
On December 2, 2016, Mother bought Victim to the Children's Advocacy Center ("CAC") where Kate Homan ("CAC interviewer"), a forensic interviewer, interviewed Victim. The interview was video-taped, and Det. Augustus observed the interview on a monitor in another room. Before beginning the interview, the CAC interviewer asked Victim if she had any fears that day. Victim replied, "I'm scared I might say the wrong thing." Victim said she didn't want to get Defendant in trouble and did not know that she would get Defendant in trouble. When asked about her disclosure to A.A., Victim said she lied because she was getting bad grades and that Defendant said if they (she and her siblings) got bad grades, he would make them all leave and not come back. Victim stated that she was getting a lot of bad grades at the time; however, Det. Augustus later checked with Principal and was told that Victim was an honor roll student except her grades declined after her disclosure of abuse, then the grades were brought up again.
On December 14, 2016, Mother brought Victim to Children's Hospital at the Audrey Hepburn Care Center. Nurse Practitioner Anne Troy ("N.P. Troy") performed a medical examination on Victim, including an incident history, which included a disclosure of rapes. The exam was facilitated by a Vietnamese-to-English translator to communicate with Mother, who did not speak English. Mother was not present in the room when N.P. Troy initially spoke to Victim. Victim told N.P. Troy that she lied to A.A. because they were telling their most embarrassing moments and that precipitated her speaking about sexual abuse by Defendant. At first, Victim recanted her prior statements to A.A. but then confirmed that the sexual abuse had happened after N.P. Troy asked about her younger sister. N.P. Troy told Victim that she was worried that Victim could not protect her younger sister, then ten-years-old. At this point Victim began to cry and told N.P. Troy that it was not going to happen to her sister because she (Victim) was the only one Defendant calls into the room. N.P. Troy and Victim met with Mother; and, in front of Mother, Victim confirmed the sexual abuse. Mother had tear in her eyes. N.P. Troy diagnosed Victim with chronic child sexual abuse and prescribed treatment for Victim, which included counseling, blood work, and testing for HIV, hepatitis, and syphilis. However, Mother never brought Victim back to see N.P. Troy for follow-up care, testing, or counseling despite directives to do so.5 Additionally, N.P. Troy requested to examine Victim's younger sister and provide counseling to the non-offending family members, which also did not occur.
While Victim's reports of abuse were consistent, her recantations of abuse were not. When asked why she lied to A.A., Victim provided various inconsistent motives behind making the initial disclosure to A.A. At the 2018 trial, Victim testified as to various motives; however, she did not clearly confirm her motives for lying given to CAC Interviewer as to "bad grades" and given to N.P. Troy as to "embarrassing stories." Victim testified as to various concerns she had regarding her disclosure of rape against Defendant, including blaming herself for the pain the disclosure caused her family and for Defendant being removed from their home. Victim testified to these family concerns at trial, including her concerns for Defendant's safety and well-being in jail.
At trial, the State called as witnesses: A.A., Principal, Det. Augustus, Victim, Mother, D.D. Jr. (Victim's brother), and N.P. Troy as an expert and fact witness; and introduced the following evidence: Police BWC videotape, NOPD audio-recording, a portion of the DCFS Report, Victim's medical reports from N.P. Troy, Victim's school report card, and the 911 tape.
The defense called Principal, Uncle and two character witnesses and introduced the following evidence: CAC videotape, N.P. Troy audio-recording, and Victim's school report card. Prior to trial, the district court denied Defendant's motions in limine to exclude the following evidence: hearsay statements in BWC videotape; "first reporter" hearsay to A.A.; Victim's medical record hearsay; and the 911 audio-recording hearsay.
In the beginning of November 2016, Victim first disclosed allegations of sexual abuse by her father to her best friend, A.A. Victim and A.A. had been friends since...
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