State v. Davis
| Decision Date | 07 December 2011 |
| Docket Number | NO. 2011-KA-0288,2011-KA-0288 |
| Parties | STATE OF LOUISIANA v. BYRON DAVIS |
| Court | Court of Appeal of Louisiana — District of US |
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 475-618, SECTION "F"
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Patricia Rivet Murray, Judge Michael E. Kirby)
LEON A. CANNIZZARO, JR.
DISTRICT ATTORNEY
ALYSON GRAUGNARD
COUNSEL FOR STATE OF LOUISIANA
LOUISIANA APPELLATE PROJECT
COUNSEL FOR BYRON DAVIS
The defendant, Byron Davis, appeals his conviction for aggravated rape of the minor victim, K.R. 1 For the following reasons, we affirm the conviction and sentence.
STATEMENT OF CASE:
On January 31, 2008, the defendant was indicted for aggravated rape of a child under the age of thirteen. At his arraignment on February 13, 2008, the defendant entered a plea of not guilty. On May 10, 2010, following a four day jury trial, the defendant was found guilty as charged. On June 18, 2010, the defendant was sentenced to serve life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant's motion for reconsideration of his sentence was denied. The defendant's motion for an appeal was granted. The Louisiana Appellate Project was appointed to represent the defendant on appeal.
STATEMENT OF FACT:
On October 5, 2007, the defendant resided with his brother Carnis Davis; his sister-in-law, Danchel Davis; and his four minor nephews at 507 South Scott Street. At approximately 4:00 or 5:00 p.m., the eleven year old victim, K.R., daughter of Danchel's friend Y.R. and godsister to one of the Davis children, went to the Davis house to help Danchel with her four sons. Later, after putting her sons and K.R. to bed, Carnis and Danchel Davis left the house. When the couple left, the defendant was resting in his room in the rear of the house; K.R. was in bed watching television in the middle room of the house with the Davis' four sons. Subsequently, the defendant entered the middle room and told K.R. to follow him into his bedroom. Initially, K.R. ignored the defendant's request. The defendant then jerked her up by the hand; K. R. followed the defendant to his bedroom at which time the defendant closed the door, exposed himself to K.R., and threatened to kill her if she told anyone. He then pulled K.R.'s pants and underwear down and forced her face down onto his bed. The defendant then told K. R., The defendant climbed on top of K.R. and attempted to penetrate her anally. K.R. testified that the defendant "put his private in me". K.R. began to cry. The defendant then told her to leave his bedroom; K.R. returned to the middle bedroom. Shortly thereafter, the defendant again took K.R. into his bedroom and proceeded to expose himself again. He pulled K.R.'s pants down and penetrated her anally. Again, she began to cry and again, he ordered her to get out of his room. K.R. ran into the bathroom to use the toilet. During questioning, K.R. correctly identified the defendant's"private" as his "penis". K.R. stated that she did not tell anyone about all of the details of the assault because she was scared that the defendant would harm her.
Approximately thirty to forty-five minutes later, Carnis and Danchel Davis returned home. Danchel noticed that K.R. was not asleep in the middle bedroom and felt that something was not right. She observed the defendant standing in his room with his head down. Danchel began to search for K.R. As Danchel walked into the bathroom K.R. became startled as the door opened. K.R., who appeared frightened, scared and shaken, told Danchel that she "jumped" because she thought that the defendant was coming back to get her again. Danchel twice questioned K.R. as to what was wrong. K.R. responded, Danchel repeatedly questioned K.R. as to what was wrong. She assured K.R. that she was not in trouble, and the two went into the living room for privacy. K.R. told Danchel that the defendant tried to rape her. Danchel asked K.R. if she understood what she was saying and if she knew the seriousness of what she was saying. K.R. was adamant that the defendant tried to rape her. Danchel called Carnis into the living room. Danchel testified that she asked K.R. to repeat what she had told her. K.R. testified that she told Carnis that the defendant tried to rape her. Carnis testified that K.R. only told him that the defendant touched her hand; he was not told that the defendant tried to rape K.R. On cross-examination, Carnis admitted that because K.R.'s allegations involved his brother that he never wanted to get involved in the case. Danchel and K.R. went into the bathroom to check for signs of intercourse. No blood or other fluids were found on K.R.'s underwear or on the tissue she used to wipe herself.
Carnis Davis summoned the defendant into the living room. Danchel and K.R. were present. Danchel told K.R. to look the defendant in the face andconfront him about what she said that he did to her. K.R., still visibly shaken, told the defendant that he tried to rape her while Carnis and Danchel Davis were gone from the house. The defendant denied the accusation and accused K.R. of lying. However, K.R. insisted that the defendant tried to rape her. Danchel put K.R. back to bed and ordered the defendant to leave her house.
Not knowing exactly how to handle the situation, and because Y.R. was having a baby shower for her sister the following day, Danchel decided not to immediately inform Y.R. of what K.R. accused the defendant of doing to her. Danchel was concerned that the accusation would ruin the baby shower and cause trauma to Y.R.'s sister.
On the morning of October 7, 2010, Danchel asked Y.R. to come to her house because she had something urgent to tell her. Danchel informed Y.R. of K.R.'s accusations against the defendant. Y.R. was visibly shaken and distraught. Carnis Davis called the defendant and asked him to come to the house to speak to Y.R. but the defendant never arrived. Subsequently, Danchel, Carnis, Y.R. and K.R.'s grandmother discussed the incident with K.R. K.R. again told them that the defendant tried to rape her; the police were contacted.
Detective Lietreian Johns, of the Child Abuse Sex Crimes unit, was assigned to investigate the case. Upon arrival at the Davis home, Detective Johns was met by Y.R. and Danchel who informed her that K.R. told them that the defendant tried to put his penis inside her "butt". Danchel told Detective Johns that K.R. told her that she began to cry when the defendant tried to put his penis in her "butt" and that the defendant ordered her to leave his room. Danchel also informed Detective Johns that when confronted, the defendant denied K.R.'s accusations. Detective Johns testified that when she asked K.R. if the defendant exposed himself to her,K.R. answered, "Yes". Detective Johns referred K.R. to the Children's Advocacy Center and Children's Hospital.
Ahna Patterson, a forensic interviewer with the Children's Advocacy Center, conducted a taped interview of K.R. on October 10, 2010. The taped interview was played for the jury. Patterson testified that it is common for child rape victims to report additional information to her or to a doctor, and that they often report various aspects of the sexual assault to different people. K.R. told Patterson that the defendant tried to rape her. K.R. never reported to Patterson that either vaginal or anal penetration had occurred. K.R. testified that all she could think about during the interview was that the defendant had threatened to kill her if she told anyone about the incident.
Approximately two weeks after the incident K.R. began to feel ill. She experienced fever, vomiting, loss of appetite and itching in the genital area. Y.R. brought K.R. to see her primary care physician. K.R. testified that following the doctor's examination, she told her mother, "Ma, I have something to tell you." She said, "What?" I said, "I know you're going to be mad but I have to tell you this." And she said, "What it is?" I said, "He really did rape me."
On October 27, 2010, Detective Johns met with K.R. and Y.R. Detective Johns presented a photograph of the defendant to K.R. K.R. confirmed that the defendant was the person who sexually assaulted her. On November 1, 2007, Detective Johns met with K.R. and Y.R. for a third time. During this interview, K.R. told Detective Johns that the defendant raped her. Detective Johns then scheduled an appointment for K.R. to be examined by a physician at Children's Hospital.
On November 9, 2007, Dr. Adrienne Atzemis, a child abuse pediatrician at Children's Hospital, conducted a comprehensive examination of K.R. at an outpatient clinic. Dr. Atzemis testified that her physical examination of K.R. revealed multiple condalomitas growths on K.R.'s vaginal lips and around her anus. These growths indicated that K.R. had genital warts which are caused by the human papillomavirus (HPV). Dr. Atzemis also observed white plaques adhered to K.R. vagina. Dr. Atzemis testified that she did not observe trauma to K.R.'s anus or vagina but stated that, because the tissue in these areas is designed by nature to stretch, the absence of trauma does not indicate that sexual penetration did not occur. Dr. Atzemis stated that a majority of victims of sexual assaults of the anus do not sustain physical trauma due to the elasticity of the skin. Even if a tear would occur, it would heal very quickly. Dr. Atzemis opined, that even if K.R. had been raped, it would be possible that she would not display visible injuries. Dr. Atzemis stated that although genital warts can be contracted in various ways, it was more likely than not that K.R.'s...
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