State v. Drake
| Decision Date | 22 June 2011 |
| Docket Number | No. 46,232–KA.,46,232–KA. |
| Citation | 71 So.3d 452 |
| Parties | STATE of Louisiana, Appelleev.Javontae DRAKE, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Louisiana Appellate Project by Annette F. Roach, for Appellant.Robert W. Levy, District Attorney, John L. Sheehan, Penya M. Moses–Fields, Ashley L. Page, Assistant District Attorneys, for Appellee.Before STEWART, DREW and MOORE, JJ.
[2 Cir. 1] The defendant, Javontae Drake, was convicted of one count of aggravated burglary and one count of forcible rape. He was sentenced to 30 years' imprisonment at hard labor for the aggravated burglary conviction, and 40 years' imprisonment at hard labor, with the first 20 years to be served without the benefit of probation, parole, or suspension of sentence, for the forcible rape conviction. The sentences were ordered to run concurrently. Drake now appeals. For the reasons set forth below, Drake's convictions and sentences are affirmed, but we are remanding this case to provide him with the appropriate notice of the sex offender registration requirements.
On June 17, 2007, M.W. was studying in her home and fell asleep on her couch. At some point after midnight, she was awakened by someone striking her in her right eye. Initially, M.W. tried to fight off her attacker, but she became tired and succumbed to him. He then raped her. M.W. identified her attacker by a tattoo, “Drake.” Javontae Drake was later arrested and charged with two counts of forcible rape of M.W. and one count of aggravated burglary.
A jury trial began in this matter on March 24, 2010. Assistant Police Chief Franklin Bilberry, with the Farmerville Police Department, testified that on June 17, 2007, he was on duty. He further testified that at approximately 3:30 a.m., while he was standing outside a local Huddle House, M.W. and her son drove up and informed him that she had been [2 Cir. 2] assaulted. Bilberry immediately noticed that her right eye was swollen. He dispatched other officers and followed M.W. to Union General Hospital.
Officer Michael Bryan with the Farmerville Police Department testified that on June 17, 2007, he was on patrol working the night shift. At approximately 12:52 a.m., he pulled into a parking lot at Independent Auto in Farmerville because he saw an individual walking through the lot. He stopped the person to identify him. The person was identified as Javontae Drake, the defendant. Bryan asked a few questions, and Drake was free to leave.
Later, Bryan received a call of a possible assault on a female, and he went to Union General Hospital. At the hospital, he interviewed M.W. He observed a bruise around her right eye, scratches, bruises and bite marks on her arms, and a laceration on her thigh. From the information she provided, Bryan believed he knew the possible suspect, who was the defendant, Javontae Drake.
When Bryan left the hospital, he went to 602 Taylor Street, the address where Drake previously stated he lived. Before arriving there, he saw Drake walking on West Boundary Street. Bryan stopped and arrested him. According to Bryan, Drake was wearing a pair of jeans and shoes, but no shirt. He had scratches on his ear and back, and glass fragments on his chest. Before going to the station for questioning, Bryan stopped at Drake's residence to retrieve the shirt he had on earlier when Bryan first had contact with him.
[2 Cir. 3] After bringing Drake to the police station, Bryan went to M.W.'s house to retrieve evidence. At M.W.'s house, Bryan noticed a broken window in the front of the house. There was also broken glass inside the house, with only a small amount outside. He testified that Drake's address was approximately four houses down the street from M.W.'s house. Bryan retrieved some shirts, a comforter and a pillow from M.W.'s house. On cross-examination, Bryan testified that M.W. provided him with a key to enter her residence. He stated that the door was not broken or busted. Bryan also indicated that he took photos of the crime scene, as well as Drake's cuts and scratches, and turned them in to the Farmerville Police Department with all the other evidence. However, the photos were lost.
Officer J.D. Simpson, with the Farmerville Police Department, testified that at approximately 4:00 a.m. on June 17, 2007, he received a phone call from dispatch to assist officers with an investigation. Pursuant to that call, Simpson went to Union General where he met M.W. He noticed numerous lacerations, bruises, and human bite marks on her arms, face and legs. Simpson also noticed that her right eye was swollen and extremely red.
After gathering some information from M.W., he went to the police station. Although Drake had previously been read his Miranda rights, Simpson read them again, and Drake acknowledged that he understood those rights. Simpson testified that he observed some scratches and slivers of glass on the defendant. During questioning, Drake denied any involvement with M.W. After that denial, Simpson took a Polaroid photo of [2 Cir. 4] him and prepared a photo lineup. He then went back to Union General Hospital at approximately 5:30 a.m. on June 17, 2007, to show M.W. the lineup. Simpson testified that within a minute or so of viewing the lineup, M.W. positively identified Drake as the man who attacked her. Simpson then returned to the station to interview the Drake.
During this second questioning, Simpson testified that Drake admitted to knowing M.W. and stated that he pushed the door open to M.W.'s house and walked in. He then stated that they began fighting. Simpson testified that Drake told him that prior to the fight, he had not spoken with M.W. but he “liked her.” Drake also told Simpson that he had consensual sexual intercourse with M.W. on two occasions that morning. After Drake gave his statements, he consented to two saliva samples. Those samples were taken to the crime lab.
The victim, M.W., testified that Drake was not a personal acquaintance, and that she never had any contact with him before June 17, 2007. She further testified that she did not consent to Drake's being in her home. After he struck her, she was dazed and tried to stand up, but he was choking her. Eventually, she broke free from his hold and ran outside screaming. He ran after her and began choking her again. Unable to find anything to pry him off of her, she testified that she crashed him into a large window at the front of her house. Drake fell into the glass. She then picked up a piece of glass and started poking him with the glass. M.W. grabbed hold of the support beams to her house and held on to keep him from dragging her back into the house. However, he started biting her. He bit [2 Cir. 5] her approximately 17 times. 1 M.W. testified that she became tired, her body was exhausted, and Drake was then able to drag her back into the house. She testified that he told her to lie on the floor and take her clothes off. He performed oral sex on her and penetrated her vaginally with his penis. After the sexual intercourse, he tried to act normal, “like he was [M.W.'s] friend,” by wrapping his arm around her and talking to her. M.W. testified that after talking to her for some time, Drake told her he wanted to have sex again. He then penetrated her vaginally with his penis again. She testified that both instances of sexual intercourse took place without her consent. After the second time, she pleaded with him to let her go. He finally complied.
M.W. testified that she called 911, but she did so while Drake was sitting next to her on the couch. M.W. stated that her phone was on silent, so he could not hear her dial the number. She testified that after she dialed the number, she just held the phone and continued talking to Drake. As she talked to him, she stated her address so that the 911 operator could send the police to help her.
M.W. testified that her son, Kamrine, was present in the home when these events occurred. However, she testified that he did not hear this incident taking place, since the living room door and his bedroom door were closed, he was listening to a CD, and he sleeps “hard.” Before Kamrine entered the room, M.W. changed her bloody shirt and put on sunglasses so she would not alarm him. She had to call his name numerous times before he responded. As M.W. and Kamrine got in the car, Drake left walking in [2 Cir. 6] the direction of his residence. M.W. drove to the Huddle House, her place of employment, because she knew it was typical for a police officer to be there. When she arrived at Huddle House, she saw Officer Bilberry, who told her to go to the hospital. Accordingly, she went to Union General Hospital in Farmerville. She informed them she had been raped, and she was treated for a cut on her thigh. Later, her mother drove her to St. Francis Medical Center in Monroe for a sexual assault exam by a sexual assault nurse examiner (SANE).
Correando “Cory” Davis testified that he was with Drake at Drake's sister's house the day he was arrested for this crime. According to Davis, M.W. stopped her van in the street in front of Drake's sister's house and asked Drake “is [ sic ] you still going to come to my house?” Davis could not recall Drake's response to that question. After M.W. drove off, Davis testified that he gave Drake $15.00 and Drake went to M.W.'s house as he was asked to do. Davis stated that he saw Drake go up to the house, but he did not see him go inside. Fifteen or twenty minutes later, Davis testified that Drake came back to him and asked for an additional $15.00, but he did not have any more money to give to him. While Drake was at M.W.'s house, Davis testified that he did not hear any screaming or yelling, nor did he see any police until they came later and arrested the defendant. Davis testified that when Drake returned from M.W.'s house, he noticed a cut on him.
Drake testified that on June 17, 2007, he was 17 years old and lived with his sister. His sister's house was...
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