State v. Gullette
| Decision Date | 13 February 2008 |
| Docket Number | No. 43,032-KA.,43,032-KA. |
| Citation | 975 So.2d 753 |
| Parties | STATE of Louisiana, Appellee v. Rory GULLETTE, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Louisiana Appellate Project, by: William Jarred Franklin, for Appellant.
Rory Gullette, pro se.
Paul Joseph Carmouche, District Attorney, Jonathan Dhu Thompson, John Ford McWilliams, Jr. Sarah Midboe, Assistant District Attorneys, for Appellee.
Before STEWART, PEATROSS and DREW, JJ.
Rory Gullette was convicted by a jury of forcible rape and adjudicated a fourth felony habitual offender. He was sentenced to 47 years of imprisonment at hard labor, with three years to be served without benefit of parole, probation, or suspension of sentence. The defendant appeals. We affirm.
On August 13, 2005, the 57-year-old victim, S.S.,1 who lived alone in a mobile home in Keithville, fell asleep on her daybed while watching television. She woke up at about 1:30 a.m. to a quiet and dark house. She saw movement next to her — a man, whom she later identified as the defendant. Her arm hit and felt his pants zipper and penis. Frightened, she began struggling, but the defendant grabbed her hands and feet and told her he was not going to hurt her — all he wanted was to "make love" to her. She unsuccessfully tried to fight off the defendant. He pinned her down, pushed her arms over her head, pushed her legs apart, and touched her vagina with his mouth and fingers. The defendant attempted vaginal sexual intercourse, but didn't have enough room on the daybed, so he moved the victim to her bedroom. There the defendant made the victim lie back on the bed, held her hands over her head and again touched his mouth and fingers to her vagina. Her panties were removed and her gown was pushed up around her neck. He fondled her breasts and this time succeeded in penetrating her vagina with his penis, but he was unable to maintain an erection. He finished the attack by using his mouth and fingers on her vaginal area. The victim described the defendant's use of his fingers as "very rough," as if he were trying to put his "whole damn hand" inside her. She was afraid for her safety and unable to stop him from raping her.
The defendant wore a baseball cap decorated with gold braid, which he wore backwards during the first part of the attack, and then later turned around. After the attack, the defendant asked the victim if he could use her bathroom. The victim told him, "It's right in there." While he was in the bathroom, the victim got dressed.
The victim went into the kitchen and tightened the lightbulb that the defendant had apparently loosened to darken the home, and began making coffee and smoking a cigarette. The defendant came into the living area and asked for one of her cigarettes. In an attempt to keep the situation calm and avoid further harm, the victim handed the defendant a cigarette. In the well-lit room, the victim recognized the defendant as "Rory," a regular customer of Bentley's, a convenience store where she had been employed as a cashier about ten years earlier. The victim offered him a cup of coffee, which he accepted. They conversed and smoked for about an hour. The victim asked him how he had gotten into her house and he told her she had left the door unlocked. She told him that she had not, but he insisted that she had. She ignored that and they talked about some problems he said he was having with his wife. At about 3:00 or 3:30 in the morning, the victim looked at the clock and told the defendant, "Damn, you've got to go." He asked why, and she related that she had to get up and have breakfast with some friends that morning. He said, "Oh, okay," got up and walked out the back door. He then turned and asked, "Can I come back and visit you sometime?" The victim told him, "Sure, just make it during the daytime." He then left.
The victim had been through menopause and had not had sexual intercourse in the years prior to the attack, which left her with a "raw" and painful vaginal area. The victim dumped out the defendant's coffee cup and cigarettes. She observed that other light bulbs had also been unscrewed. She later observed that the back door frame had been pried away from the door.
Afraid that the defendant would return, she purchased and installed bolt locks, a door plate, a padlock door lock, and a deadbolt. Her main concern was to repair and secure the door and to try to "forget that it happened."
The following day, August 15, 2005, the victim contacted her friend and neighbor, Tammy Hegpeth, to get the phone number of their mutual friend, Carnie Burcham. The victim asked Burcham, a criminal investigator for the Louisiana Department of Agriculture and Forestry, how to get in touch with the police to report a rape. She told Burcham that she had been raped by a man she knew as "Rory." She also informed him that she bought a gun that day to use for protection. Burcham discussed with her the "rules of engagement" and suggested that she take a gun safety course, recommending that she contact Detective Michael Escude of the Caddo Parish Sheriff's Office.
An appointment was scheduled for the next day, August 16, 2005, for the victim to meet Det. Escude at the hospital for a forensic rape examination. Chris Philbar, an expert in the area of sexual assault nurse examinations, performed the victim's physical examination. The victim's injuries included vaginal and urethral pain, abrasions and tears, as well as purple marks on her breasts and abdomen. A significant tear in the labia minora was three centimeters long. The victim was unable to tolerate a vaginal exam with a speculum because of the pain. Philbar opined that it was possible, but not probable, that the victim's injuries were sustained during consensual sex. Between the rape and the examination, the victim had taken two baths, frequently urinated, and washed the clothes she was wearing at the time of the attack. Swabs were taken for DNA testing, and blood was drawn.
Det. Escude interviewed the victim after the examination. She related the defendant's name, "Rory," and described the defendant's appearance, including his build and severe facial scars. The victim also described the defendant's clothing, including his baseball cap and big, brown work boots. Det. Escude then accompanied the victim to her home, where the Caddo Parish Crime Scene Investigation Unit collected physical evidence, including the coffee cup and cigarettes from the trash, a comforter, clothing, and a tool that did not belong to the victim. The tool, which the victim had moved from the bedroom to a utility room, was determined to be a steel chainsaw tool commonly used to tighten or loosen chainsaws. The tool and the coffee cup were swabbed for forensic DNA analysis. The visible pry marks on the rear door were also observed and documented. The victim was subsequently shown a six-person photographic lineup from which she confirmed the identity of the defendant as her assailant.
The defendant was arrested while on the job at Asplundh Tree Service Company and was charged by bill of information with one count of forcible rape, in violation of La. R.S. 14:42.1(A)(1), for having vaginal and oral intercourse with the victim. His baseball cap and brown work boots were seized. The cap was later identified by the victim as the same one worn by the defendant during the attack, and the boots were identified as similar to those worn by the defendant. A buccal swab was taken from the defendant for forensic DNA analysis. After being advised of and waiving his Miranda rights, the defendant gave a recorded custodial statement to Det. Escude on August 18, 2005. The defendant explained that on the night of August 13 and the early morning hours of August 14, he was at his mother's home with his mother and wife. Det. Escude spoke to the defendant's wife, who confirmed the alibi; however, the defendant's mother did not. Det. Escude then confronted the defendant's wife, who recanted and said she lied because she wanted to protect the defendant. Det. Escude then re-interviewed the defendant, who told Det. Escude that he had forgotten that his wife had gone to her grandmother's house in Greenwood, but who maintained that he was at his mother's house during the time of the crime. Det. Escude testified that at no time during the investigation and trial preparation did he ever get information that the defendant claimed the intercourse to be consensual.
The victim made an in-court identification of the defendant as her assailant. She further denied having consensual sexual intercourse with the defendant prior to the crime, or knowing that he was married. The victim testified that she only knew the defendant because he had been a customer at Bentley's, and did not know anything about his family or marriage. She testified that she first learned that the defendant's mother, Faye, lived near her home from her conversation with Burcham, who knew the defendant and his family. However, Burcham testified that the victim remembered the defendant's name was Rory, and that he was the son of her neighbor, Faye. The victim admitted telling Det. Escude that she knew the defendant's mother's name was Faye and that she lived on the adjacent street. However, on redirect examination, the victim clarified that she learned about the defendant's mother from Burcham and later related that information to Det. Escude. DNA samples were consistent with the state's theory of the case.
A 12-person jury rendered a verdict of guilty as charged by a vote of 10 to 2. The defendant's motions for new trial and post-verdict judgment of acquittal were denied by the trial court. The defendant was charged and adjudicated to be a fourth felony habitual offender.
Before sentencing the defendant, the trial court noted that it had given both the defense and the state the benefit of knowing what the sentence would be prior to arguments. The trial court then listened to the arguments...
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