State v. Jones

• Citation: 182 So.3d 251
• Decision Date: 02 December 2015
• Docket Number: No. 2015–KA–0123.,2015–KA–0123.
• Court: Court of Appeal of Louisiana (US)
• Parties: STATE of Louisiana v. Tyrone B. JONES.

182 So.3d 251

STATE of Louisiana

v.Tyrone B. JONES.

No. 2015–KA–0123.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 2, 2015.

Leon A. Cannizzaro, Jr., District Attorney, Kyle C. Daly, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, Tyrone B. Jones.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART ).

MAX N. TOBIAS, JR., Judge.

The defendant, Tyrone B. Jones ("Jones"), appeals his convictions for second degree battery and simple rape. Finding no merit to any of his counseled or pro se assignments of error and no patent errors, we affirm his convictions and sentences.

STATEMENT OF THE CASE

Jones was charged by grand jury indictment on 13 September 2012, in Count 1 with aggravated rape, a violation of La. R.S. 14:42,¹ and in Count 2 with second degree kidnapping, a violation of La. R.S. 14:44.1. Jones pleaded not guilty to both counts at his 18 September 2012 arraignment. On 16 June 2014, the state amended Count 1 to charge aggravated second degree battery, a violation of La. R.S. 14:34.7, and amended Count 2 to charge forcible rape, a violation of La. R.S. 14:42.1.² Jones pleaded not guilty to both amended counts. Jones was tried by a twelve-person jury on 11–13 August 2014 and found guilty on Count 1 of the lesser offense of second degree battery and on Count 2 of the lesser offense of simple rape.³ The trial court denied Jones' motions for new trial and post-judgment verdict of acquittal on 28 August 2014. Jones was sentenced on 15 September 2014 to five years at hard labor on Count 1 and twenty-five years at hard labor without benefit of parole, probation, or suspension of sentence on Count 2, both to run concurrently and with credit for time served. The trial court denied Jones' oral motion to reconsider sentences and granted Jones' motion for appeal.

FACTS

New Orleans Police Department ("NOPD") 911 operator Giselle Bertrand identified two exhibits, respectively, as an audio recording of a 911 call and an incident recall printout.⁴ The recording was played for the jury and the incident recall was published to it. The incident recall reflected a Signal 42, meaning, to Ms. Bertrand's knowledge, a rape. She confirmed that the audio recording was consistent with the incident recall.

NOPD Officer Kenny Guidry testified that on 21 July 2012, he responded to a Signal 42 rape call at 3501 Garden Oaks in the Algiers section of New Orleans. When asked to describe the victim, the officer said she seemed to be "very, very nervous, afraid" and "basically was in a terrified state of mind." He said she was visibly injured; he could see bruises on her body. The officer learned that the perpetrator had gone to Wal–Mart and would be returning to the scene. The perpetrator arrived in the company of a young male child, who the officer estimated was four or five years old. He detained the perpetrator. He did not recall observing any injuries to the perpetrator.

Officer Guidry confirmed on cross examination that Jones identified himself and did not run from or resist him. The young boy was eating candy and did not appear to be harmed. When confronted with his police report, Officer Guidry testified that it noted that Jones was sober and had a minor injury. The officer stated on redirect examination that a minor injury could be a scratch or something very minor.

NOPD Detective Keisha Ferdinand attended to the aggravated rape call on 23 July 2012 at 3501 Garden Oaks, a multi-story apartment complex.⁵ She observed several bruises to the victim's eye; the victim complained of pain, and was very quiet, "kind of in a zombie state," appearing to be disoriented and "out of it." The victim had a small baby and another child to which she was trying to tend. Detective Ferdinand identified an exhibit as a CD from the crime lab marked with NOPD item # G–33993–12. The detective went through photographs depicted on the CD, including photographs of the victim depicting a black left eye, scratch marks on her left breast, and lacerations to her index and middle finger of her right hand. Some photographs depicted the living room and sofa situated in that room, Jones' bedroom, and the bathroom and closet entering the bathroom. A stained towel on the floor was confiscated as evidence. Detective Ferdinand identified an exhibit as a large towel that was on the bed and an exhibit as a white towel from the bathroom. Two exhibits were respectively identified as a pink fitted sheet and a comforter from the bed. One photograph was of a shotgun that Detective Ferdinand testified was recovered from a closet in the residence.

Detective Ferdinand confirmed that she transported the victim to University Hospital for a sexual assault examination. She had to secure an NOPD chaplain because the victim was crying and unable to formulate her statement because she was so upset. She also applied for a search warrant to obtain a buccal swab from Jones to compare his DNA profile to any male DNA profile obtained from the victim, all of which evidence was sent to the Louisiana State Police Crime Lab for analysis. Detective Ferdinand also testified that on 10 August 2012, she monitored from a separate room the interview of the victim's five-year-old son at the Child Advocacy Center ("CAC"). The detective was able to relay questions to the interviewer which were then asked of the child. Detective Ferdinand testified on cross examination that she did not observe any injuries on the victim's son.

Laura Andrews was qualified as an expert in the field of sexual assault examinations. She conducted a sexual assault examination of D.M., the victim, on 23 July 2012. Ms. Andrews identified an exhibit as forensic forms filled out by nurse sexual assault examiners in their examinations. The forms reflected that D.M. reported having an altercation with her ex-boyfriend that involved a physical assault. D.M. reported being pushed and punched repeatedly in her face and stomach. She said her face was stepped upon and she was twice strangled with her attacker's forearm. During one episode she experienced a nose bleed. Jones hit her and she saw stars; she believed that she lost consciousness. She next recalled waking up naked in a shower and her attacker throwing water in her face. She slept a lot afterward. Jones removed his clothes and got into bed with her. She told him she was not having sex with him. She tried to push him off but he vaginally penetrated her, whereupon she screamed and said no. Jones continued and ejaculated without a condom. Jones took her phone so she had to go next door to a neighbor's house to ask the neighbor to telephone the police.

Ms. Andrews testified that the victim had lacerations to the first and second fingers of her right hand and a bite mark on the second finger of her right hand. D.M. told her she sustained the lacerations when Jones held a knife to her abdomen, she grabbed it, and he then pulled it out of her hand. D.M. had swelling and dark purple bruising around her left eye. The victim complained of pain in her neck and her right rib area, and had multiple bruises on both sides of her arms with tenderness to her abdomen. Ms. Andrews recalled that the victim had some scars that resulted from previous physical assaults by Jones. The victim reported that she last had sexual intercourse over three weeks earlier. The report noted that the victim was crying and shaking, and that her voice was quivering during the interview. Ms. Andrews identified an exhibit as a CD of photographs she took of the victim's injuries during the sexual assault examination, which photos were displayed to the jury in a video presentation.

Ms. Andrews detailed her pelvic examination of the victim. She observed one abrasion during this examination, to the posterior fourchette—the bottom of the entrance to the vagina—at the seven o'clock position. She said most likely it was caused by blunt force trauma, and she confirmed that a sexual encounter, a rape, can be blunt force trauma. Ms. Andrews said it was highly unlikely that one could sustain that type of abrasion from everyday activities, and that those types of abrasions usually heal within three days, or a week at the most, to where they are not visible to the naked eye. She collected vaginal and anal swabs, swabs from under the victim's fingernails, swabs from her fingers, and a swab from the bite mark on her left breast. Ms. Andrews testified that the victim was with her approximately four hours, but that afterward, because of what she characterized as the victim's "extensive injuries," she went to the emergency room for more x-rays and scanning.

Ms. Andrews confirmed on cross examination that the vaginal abrasion was superficial, that one can never say exactly what caused such an injury, and that one could not say that it necessarily was caused by forced sex. It was also established on cross examination that the vaginal abrasion was the only non-normal finding made during the pelvic and anal examination. She confirmed that x-rays and scans revealed no fracture and no internal bleeding.

Ms. Andrews confirmed that it was only after she noticed the lacerations that the victim told her about Jones using the knife.

Ms. Andrews stated on redirect examination that the vaginal abrasion was suggestive of a sexual assault injury; it was uncommon for that injury to occur during consensual sex. She also testified that the majority of sexual assault victims have no external vaginal injuries, and that injury to the external fourchette (bottom of the vagina) was the most common such injury. Ms. Andrews stated that sexual assault victims often do not recount the events in a "linear" manner. Thus, she did not think it peculiar that D.M. did not mention the knife aspect of her assault until she noticed the lacerations on her fingers and asked her about it—"[t]hat happens all the time," she said.

Glenn...