State v. Everidge
| Decision Date | 02 December 1997 |
| Citation | 702 So.2d 680 |
| Parties | 96-2665 La |
| Court | Louisiana Supreme Court |
Archie B. Creech, New Orleans, for Applicant.
Henry F. Everidge, pro se.
Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Joseph E. Lucore, for Respondent.
[96-2665 La. 1] TRAYLOR, Justice. *
Henry F. Everidge was charged by the grand jury on an indictment for one count of forcible rape in violation of La.Rev.Stat. 14:42.1. Everidge asserted the defense of consent. After a trial by jury, defendant was found guilty as charged and was sentenced as a triple offender to thirty years at hard labor without benefit of probation, parole or suspension for the first two years of his sentence. 1 The Court of Appeal for the Fourth Circuit affirmed the trial court notwithstanding a finding that the trial court erred in excluding testimony of a defense witness. The appellate court ruled the testimony of the excluded witness could not have overcome the evidence that the victim did not consent to the sexual intercourse. The appellate court therefore found the error was harmless and did not affect the verdict. We disagree with the appellate court and find that the exclusion was an error which prejudiced the defendant by preventing him from effectively asserting the defense of consent.
The verdict rested on the following facts. The victim testified at trial that at approximately 11:00 p.m. on the night of January 19, 1994, defendant Everidge visited her apartment to use the phone. Everidge concluded the call approximately 20 minutes later and the victim walked him to the door. The victim told the police that Everidge pushed the door closed, clutched her wrists and forced her to her bedroom. She reported that he pushed her onto her bed and in the struggle threw her on the floor, where she landed on the center of her back. The [96-2665 La. 2] victim maintains that Everidge vaginally raped her and then left her apartment at approximately 12:00 a.m. on the morning of January 20, 1994. The victim immediately telephoned her brother but his girlfriend, Linda Burt, answered. Burt testified that she and the victim's brother arrived at the apartment approximately six minutes later and immediately phoned the police.
The victim reported to the New Orleans Police that Everidge raped her. The police records reveal that the call was received at 1:55 a.m. 2 The police arrived at 2:30 and found victim crying with her clothes and hair in disarray. 3 The police noted that the apartment was neat but the sheets on the bed were wrinkled. Burt, who was with the victim when the police arrived, told the police that the bed was moved, clothes were displaced from the top of the dresser and that she saw a bruise on the victim's lip and blood on her shirt.
The police accompanied the victim to Charity Hospital for a rape examination. Dr. David Benado, the examining physician, testified that the victim reported that Everidge clutched her wrists and pushed her from the front door into the bedroom. He threw her on the floor, where she landed on the center of her back, and vaginally raped her but did not strike or threaten her. The victim initially reported no soreness but upon palpitation reported tenderness in her upper left arm and left buttock. The doctor noted no external trauma typical of rape victims. The doctor testified he was surprised to find no tenderness in the victim's wrists where she claimed Everidge clutched her.
The pelvic examination for semen was negative but Dr. Benado found secretions, odor and discharge indicative of a vaginosis infection. The doctor noticed a red crescent shaped mark on the victim's cervix which, though not typical, could have resulted from the vaginosis infection. He opined that it more likely the result of a blunt trauma, consistent with that caused by a penis during sex. However, Dr. Benado found no lacerations in the victim's vagina which typically result from rape. He testified, however, that the vaginosis produced abnormal secretions which could explain the lack of lacerations. The victim exhibited no other signs of rape. Dr. Benado reported all tenderness was minor enough that it would have subsided by the [96-2665 La. 3] next day. The only treatment the doctor administered the victim was for the sexually transmitted disease.
At trial, the victim's testimony was inconsistent with her previous reports to the police and Dr. Benado. She testified that Everidge grabbed her by the upper arms and pushed her to the bedroom where he threw her to the bed and floor. They struggled while he held both of her arms, pulled down her pants and underwear and raped her. She testified that she told Dr. Benado that her vagina, arm and back were sore. Dr. Benado's testimony did not substantiate this assertion. The victim testified that the doctor found bruises on her; however, Dr. Benado had stated that he found no signs of trauma except the crescent-shaped spot on her cervix.
According to Everidge, he had been writing to the victim on behalf of her illiterate step-father. Everidge testified that he met the victim briefly when she visited his apartment to meet the man who had been writing to her. Approximately two and one half days after this initial meeting, Everidge, accompanied by Ernest Domino, while walking through the housing project where he and the victim resided, encountered the victim on her porch. Domino left Everidge to purchase a candy bar in the next building and Everidge approached the victim. At this point, Everidge contends that he and the victim made plans to meet that night to have sex. They hugged and kissed while Domino, who was nearby, observed. Everidge testified that they had sex as planned; however, upon his departure he and the victim began to argue because she expected him to remain. Everidge told her that he probably should not have had sex with her and planned to return to his girlfriend and family. At this news, the victim became irate and threatened, "You ain't even going to have a life when I get through with you."
At the conclusion of the State's case, during a hearing outside the presence of the jury, the defense called two witnesses to testify relative to the victim's reputation for truthfulness in the community. One of the witnesses, Ernest Domino, 4 would have also testified regarding a conversation he overheard and witnessed between the victim and Mr. Everidge on the day of the incident. Domino's testimony was that hours before the alleged rape, he saw the victim and Everidge hug and kiss and overheard the victim arrange a rendezvous with the defendant. This would contradict victim's testimony at trial that she had never met with the defendant alone and [96-2665 La. 4] would also support the defense of consent.
The State objected to the admissibility of the above testimony under La.Code Evid. art. 412, the "rape shield statute," which restricts testimony regarding a victim's past sexual behavior in sexual assault cases. The State further objected that the defense did not timely file its motion for pretrial hearing on the Article 412 evidence. Defense counsel averred that he could not comply with the Article 412 delays due to his recent appointment and difficulty in finding an incarcerated witness.
The court ruled that Domino could only offer character testimony and any testimony regarding what he witnessed on the porch was excluded. Without addressing the relevance of the testimony to the defense of consent, the court ruled the balance of the testimony inadmissible for impeachment purposes because defendant did not lay the proper predicate by asking the victim if she had invited Everidge to her apartment. Additionally, the court ruled that Domino, who was incarcerated at the time of this trial, could not testify in street clothes. Left with a witness dressed in prison garb who could only testify as to victim's character for truthfulness, the defense opted not to call the witness.
The jury found defendant guilty and he was sentenced. The defendant appealed and the Court of Appeal for the Fourth Circuit affirmed the trial court despite a finding that the trial court erred in excluding testimony of defense witness Domino. On appeal, defendant relies on eight assignments of error for reversal of his conviction and sentence. We find merit in Assignment of Error Number 5 wherein defendant contends the trial judge erred in excluding testimony which would contradict that of the victim.
At issue are two evidentiary rulings made by the trial court which excluded defense testimony. The State argued that the testimony be excluded under the Article 412 rape shield statute and hearsay exclusions. Defendant contends that these rulings constitute reversible error. We will discuss each of these objections and the corresponding rulings in that order.
In order to determine if evidence was improperly excluded, we first examine what evidence may properly be excluded under the La.Code Evid. art. 412 rape shield statute. The [96-2665 La. 5] statute provides in pertinent part:
A. Opinion and reputation evidence. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible.
B. Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:
* * * * * *
(2) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.
Under Article 412, the accused must provide a written in camera motion offering the evidence of specific instances of past sexual behavior he intends to introduce at trial. The motion shall be...
To continue reading
Request your trial
-
State v. Jinks
...beyond a reasonable doubt the trial court's rulings did not affect the jury's verdict on the remaining count. SeeState v. Everidge, 96-2665, p. 8 (La.12/2/97), 702 So.2d 680, 685 ("A reviewing court must find beyond a reasonable doubt that excluded evidence could not have affected the jury'......
-
State v. Blank
... ... A reviewing court must find beyond a reasonable doubt that excluded evidence could not have affected the jury's verdict for the error to be harmless. State v. Everidge ... ...
-
State v. Reed
... ... In support, defendant points to this Court's instructive explanation in State v. Everidge concerning what kind of statements constitute hearsay: In order to fall within the definition of hearsay, the statement must be offered to prove the truth of the statement's contents. To illustrate this point, the victim stated, Come over to my apartment tonight or words to that effect. The ... ...
-
State v. Breaux
...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 th......