State v. Hunter

• Decision Date: 22 August 2018
• Docket Number: NO. 2018-KA-0206,2018-KA-0206
• Parties: STATE of Louisiana v. Andrew J. HUNTER, Jr.
• Court: Court of Appeal of Louisiana — District of US

252 So.3d 1053

STATE of Louisiana

v.Andrew J. HUNTER, Jr.

NO. 2018-KA-0206

Court of Appeal of Louisiana, Fourth Circuit.

August 22, 2018

Leon Cannizzaro, District Attorney, Michael Danon, Assistant District Attorney, Orleans Parish, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/STATE OF LOUISIANA

Sherry Watters, Louisiana Appellate Project, P. O. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )

Judge Roland L. Belsome

The defendant, Andrew Hunter, Jr., challenges his convictions and sentences for the rape of a seven year old female.

Facts

The facts giving rise to the defendant's indictment and conviction occurred in the early morning hours of October 17, 2014, at the victim's home on Franklin Avenue in New Orleans. A man with shoulder-length dreadlocks, later identified as the twenty-three year old defendant, entered the home, where he woke seven-year-old A.S. and told her to get up and lock the back door. When A.S. got up, she went to the bathroom, where the defendant pulled her clothes down and raped her. After the defendant lured A.S. to the laundry room, he sexually assaulted her again, put a gun to her face, and tied her up. The defendant then told A.S. to count to fifty and left.

A.S.'s mother reported that she got up at 5:00 a.m. to lock the door after her brother, Donald Smith, left for work, and then went into her daughter's room to get her ready for school, but A.S. was not in bed. A.S.'s mother began looking for her and eventually went into the laundry room, where she found her partially nude and bound, gagged, and blindfolded under a pile of clothes. A.S.'s mother called 911 and A.S. was transported to Children's Hospital, where Dr. Neha Mehta performed a sexual assault examination and the Children's Advocacy Center's ("CAC") interviewer, Dan Dooley, conducted a forensic interview. Dr. Mehta later informed Detective Jounay Ross that A.S. tested positive for chlamydia; this information prompted Det. Ross to contact A.S.'s mother, who said she was previously infected with chlamydia by a male friend, the defendant. A.S.'s mother later provided Det. Ross with an address where she could locate him.

Det. Ross visited the address and spoke with the defendant, who matched A.S.'s description. The defendant was aware of A.S.'s rape and agreed to provide a DNA sample. Louisiana State Police Crime Lab analyst Elizabeth Hamilton analyzed the defendant's DNA sample and it matched the DNA collected from A.S.'s sexual assault kit. The Orleans Parish District Attorney's Office contacted Det. Ross and informed her. Det. Ross obtained an arrest warrant for the defendant and later found him hiding in the attic of his mother's house in Hammond, Louisiana, where he was arrested on December 22, 2014.

Procedural History

The defendant was charged by bill of indictment with two counts of first-degree rape, in violation of La. R.S. 14:42 ; one count of aggravated burglary, in violation of La. R.S. 14:60 ; one count of aggravated kidnapping, in violation of La. R.S. 14:44 ; and one count of sexual battery of a victim under thirteen years of age, in violation of La. R.S. 14:43.1(C)(2). The charge of aggravated kidnapping was subsequently amended to second-degree kidnapping in violation of La. R.S. 14:44.1. The defendant appeared before the trial court and pled not guilty to the charges. Additionally, the defendant filed several pre-trial motions, including a motion to suppress evidence, which was ultimately denied. The matter proceeded to trial on August 9, 2017, and a jury found the defendant guilty on all charges.

The defendant was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence for each count of first-degree rape. Further, the defendant was sentenced to forty years without benefit of probation, parole, or suspension of sentence for the charges of aggravated burglary and second-degree kidnapping, and fifty years without benefit of probation, parole, or suspension of sentence for the charge of sexual battery of a person under thirteen years of age. The defendant neither objected nor filed a motion to reconsider sentence; rather, he filed a motion to appeal, which the trial court granted.

Errors Patent

A review of the record for errors patent reveals one. The defendant was convicted of aggravated burglary in violation of La. R.S. 14:60 and sentenced to forty years at hard labor without the benefit of probation, parole, or suspension of sentence, in excess of the maximum of thirty years currently authorized by statute. Accordingly, we must vacate the defendant's sentence as to that charge and remand the matter to the trial court for resentencing of the aggravated burglary conviction.

Assignments of Error

On appeal, the defendant asserts three assignments of error:

1. The State failed to prove beyond a reasonable doubt that the defendant was guilty of second-degree kidnapping in violation of La. R.S. 14:44.1.

2. The trial court erred in denying the defendant his due process right to a fair trial which constitutes reversible error.

3. The trial court erred in imposing excessive sentences upon the defendant which constitutes an abuse of discretion.

Sufficiency of the Evidence (Second –Degree Kidnapping)

In his first assignment of error, the defendant challenges the sufficiency of the evidence to support his conviction for second-degree kidnapping. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court, in State v. Gibson , 15-1390, p.5 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, 696 stated that the Jackson standard is legislatively embodied in La. C. Cr. P. art. 821(B), which provides that "a post-verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably permit a finding of guilty."

However, a reviewing court is not permitted to consider just the evidence most favorable to the prosecution, but must consider the record as a whole. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution should be adopted. Id. Additionally, "a factfinder's credibility decision should not be disturbed unless it is clearly contrary to the evidence." Id.

La. R.S. 14:44.1 provides, in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:

(1) Used as a shield or hostage;

(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;

(3) Physically injured or sexually abused;

(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5) ; or

(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.

B. For purposes of this Section, kidnapping is:

(1) The forcible seizing and carrying of any person from one place to another; or

(2) The enticing or persuading of any person to go from one place to another; or

(3) The imprisoning or forcible secreting of any person.

The defendant's primary contention is that the State failed to prove beyond a reasonable doubt that a kidnapping occurred. The defendant contends that he never carried "any person from one place to another" as required by La. R.S. 14:44.1(B)(1). However, only one of the three enumerated acts in La. R.S. 14:44.1 must have occurred to satisfy the statute's requirements. As we did in State v. Gibson , we find that the defendant's actions clearly satisfy La. R.S. 14:44.1(B)(3) – namely, that he "imprisoned or forcibly secreted" A.S. 15-1390, p. 7, 197 So.3d at 698. This court in State v. Williams , 2002-0260 (La. App. 4 Cir. 3/12/03), 842 So.2d 1143, found that moving of victim within their home satisfied this very element.

Here, the record shows that the defendant bound, gagged, and blindfolded A.S. before hiding her under a pile of clothes in the laundry room. These actions are clearly sufficient to show that defendant "imprisoned or forcibly secreted" her. For these reasons, we find that there was sufficient evidence to convict defendant of second-degree kidnapping.

Denial of Due Process Rights

In his second assignment of error, the defendant sets forth several arguments revolving around the central assertion that he was denied his due process right to a fair trial. We address each argument individually below.

Prejudicial Comments and Bias by the Court

The defendant asserts that the trial court made disparaging remarks to defense counsel that prejudiced the jury against the defendant.

Article I, Section 16 of the Louisiana Constitution grants the defendant the right "to an impartial jury and a fair trial." La. Const. art. I, § 16. During a jury trial, the judge must act as a neutral administrator of the law. State v. Diggins , 12-0015, p. 13 (La. App. 4 Cir. 10/23/13), 126 So.3d 770, 784. In discharging this duty, the judge must refrain from commenting upon the facts of the case in the presence of the jury, either by commenting on evidence or testimony or by giving an opinion as to what has been presented, proved, or not proved. La. C.Cr.P. art. 772. If, during trial, a defendant believes that the trial court commented improperly on the evidence, or made prejudicial comments in the presence of the jury, then defendant should object or move for a mistrial. La. C.Cr.P. arts. 770, 775. A motion for mistrial or a contemporaneous objection to the alleged...