State v. Patton

• Decision Date: 26 July 2011
• Docket Number: No. 2010 KA 1841.,2010 KA 1841.
• Citation: 68 So.3d 1209
• Parties: STATE of Louisianav.Billy Joe PATTON.
• Court: Court of Appeal of Louisiana — District of US

68 So.3d 1209

STATE of Louisiana

v.Billy Joe PATTON.

No. 2010 KA 1841.

Court of Appeal of Louisiana, First Circuit.

June 10, 2011.Rehearing Denied July 26, 2011.

Ricky L. Babin, Donaldsonville, LA, Donald D. Candell, Gonzales, LA, for Appellee, State of Louisiana.Jane L. Beebe, New Orleans, LA, for Defendant/Appellant, Billy Joe Patton.Billy Joe Patton, In Proper Person.Before WHIPPLE, McDONALD, and McCLENDON, JJ.WHIPPLE, J.

[1 Cir. 2] On June 30, 2008, the defendant, Billy Joe Patton, was charged by grand jury indictment with aggravated kidnapping (count one) and forcible rape (count two), violations of LSA–R.S. 14:44 and LSA–R.S. 14:42.1. On July 14, 2008, the defendant entered a plea of not guilty on both counts. After a trial by jury, on July 15, 2009, the defendant was found guilty as charged. On December 14, 2009, on count one, the defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count two, the trial court originally sentenced the defendant to forty years imprisonment at hard labor, but after adjudicating the defendant a habitual offender on July 12, 2010, the trial court vacated the sentence, and imposed a sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence.¹

The defendant now appeals, assigning as error the denial of his right to confront his accuser and cross-examine the analyst who performed DNA testing, and the ineffectiveness of trial counsel for not objecting to analyst testimony regarding another analyst's report. The counseled brief also requests a review of the record for errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence, pursuant to LSA–C.Cr.P. art. 920(2). In a pro se brief filed in this matter,² the defendant raises additional [1 Cir. 3] assignments of error alleging or challenging the admission of hearsay testimony, prosecutorial misconduct, insufficient evidence, double jeopardy, the propriety of the habitual offender adjudication, the admission of scientific evidence, and ineffective assistance of counsel. For the following reasons, we affirm the convictions and the sentence imposed on count one, vacate the habitual offender adjudication and the enhanced sentenced imposed on count two, and remand for resentencing.

STATEMENT OF FACTS

The defendant's aggravated kidnapping and forcible rape convictions arose from the following circumstances. On February 7, 1987, during the nighttime hours and extending into the early morning hours of February 8th, John Palmer and E.B. (the victim), went out with other friends to college bars in an area called “The Strip” in Lafayette, Louisiana. After the bars closed, Palmer and the victim decided to go to an after-hours club called “Cowgirls.” Both Palmer and the victim consumed alcohol that night. Palmer was driving the victim's car, with the victim travelling in the vehicle. As Palmer lost control of the vehicle while travelling on I–10, the vehicle slid off the shoulder of the highway and landed in a ditch. A vehicle described as a dark-colored Firebird or Camaro approached and the male driver/perpetrator offered assistance, agreeing to take Palmer to get a wrecker while the victim waited in her vehicle. After Palmer and the perpetrator drove off, leaving the victim in her vehicle, they pulled over, the perpetrator stated that he had to urinate, and they both exited the vehicle. However, the perpetrator then quickly re-entered his vehicle and drove off, leaving Palmer on a roadside, and headed back in the direction of the location where the victim's vehicle was stuck.

The perpetrator picked up the victim under the pretense that Palmer needed her to meet him at the next interstate exit because he did not have any cash or a [1 Cir. 4] credit card for the tow truck. When the victim questioned the driver's actions as he kept driving past interstate exits, he told her to be quiet. The perpetrator was consuming beer and asked the victim to drink with him, but she refused. The perpetrator then began asking the victim to have sex with him and continued driving, refusing to take the victim to meet Palmer. At some point, the victim passed out, having previously consumed alcohol and having been awake for eight to nine hours.

A Louisiana State Police trooper, Joseph Salvador, III, received and responded to a dispatch concerning a vehicle accident, or a vehicle off the roadway. As he proceeded westbound on I–10, he received a CB communication regarding a white male, Palmer, who was on foot on the highway. Trooper Salvador located Palmer at approximately 4:00 a.m. and took him back to the victim's vehicle. When they arrived at the vehicle, the victim was no longer present and the vehicle was locked and abandoned.

When the victim awoke, the perpetrator had pulled off the interstate and into a field. The victim could still hear the interstate traffic. The perpetrator continued to proposition the victim for sex. The victim offered to go to a motel with the driver in an effort to create an opportunity to escape. The driver became irate, started screaming, and told the victim that he was going to have his way. The perpetrator then crossed over the console to the passenger seat, ripped the victim's shirt off, pulled her pants down, and raped her. When the perpetrator exited the vehicle to pull his pants up, the victim got out of the car and started running toward the highway. The perpetrator got back in his car, pulled in front of the victim before she could reach the highway, and forced her back into his vehicle.

As they travelled on the interstate, the victim begged the perpetrator to release her. At approximately 6:00 a.m., the perpetrator drove the victim to Lone Oak Grocery store on LA Highway 73 in Dutchtown and released her. The [1 Cir. 5] perpetrator threw two twenty-dollar bills at the victim and told her she was in Mississippi and would need the money to get home.³ The victim entered the store and reported the rape to the clerk, who contacted the police. The victim was taken to Riverview Medical Center in Gonzales where a rape examination was conducted. A bruise on the right side of the victim's neck was noted and vaginal secretions, including viable mobile sperm, were collected and turned over to the sheriff's department with the rest of the sexual assault kit. Palmer and the victim gave statements to the Ascension Parish Sheriff's Office describing the perpetrator and his vehicle, but the witnesses did not select anyone from the photographic lineup viewed at that time. The police were unable to develop a suspect and the file became a cold case. The evidence, consisting of the sexual assault kit, the victim's clothing, and the two twenty-dollar bills, was sent to the Louisiana State Police Crime Lab. At that time, DNA testing was not available, but serological (substance identification) testing was performed.

In 2004, the Louisiana State Police Crime Lab received state and federal funding for backlogged DNA cases. As a result, the lab outsourced evidence collected in over one thousand cases. Lab personnel sent the evidence collected in this case, including a partial vaginal swab and a portion of a saliva sample from the victim, to Bode Technology Group to conduct DNA analyses, develop DNA profiles, and look for the presence of semen or sperm. At that time, there was still no suspect in this case and no male reference sample was provided. A male profile was obtained from the partial vaginal swab and submitted to the crime lab. After reviewing the report and data from Bode Technology Group, the crime lab generated a report and entered the profile from the unknown person into a national database called Combined DNA Index System (CODIS).

[1 Cir. 6] On January 9, 2007, the crime lab received a letter from the Texas Department of Public Safety, indicating that Texas officials had a match of the perpetrator's DNA profile with a subject named Billy Joe Patton, the defendant. The Louisiana State Police Crime Lab verified the match, notified the Ascension Parish Sheriffs Office, and instructed them to collect a known reference sample from the defendant for further testing. In March 2007, Detective Chris Moody created a photographic lineup with a current photograph of the defendant, but the victim did not identify anyone as the perpetrator.

Detective Moody obtained a search warrant for the defendant's DNA and executed the warrant in Texas in July 2007. The buccal swab sample from the defendant was consistent with the DNA profile provided by Bode Technology Group and the sperm sample obtained from the vaginal swab of the victim. The victim's and the defendant's DNA mixture were detected.

On June 3, 2008, the defendant was located in Alabama and placed under arrest as a fugitive from Ascension Parish and transported to the parish prison. Detective Moody created a second photographic lineup that included an older photograph of the defendant that was more closely related to the time and date of the incident in question. On July 25, 2008, the victim identified the defendant as the perpetrator in the second photographic lineup, and Palmer did the same on June 3, 2009.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In the first counseled assignment of error, the defendant argues that he was denied a fair trial because DNA evidence was admitted without affording him the opportunity to confront Darryl Oubre, the analyst who performed the testing. The defendant hypothesizes that the test results could have been inaccurate or based on a contaminated sample. The defendant notes that the State called another analyst, Joanie Wilson, who did not supervise or have any knowledge of the samples or [1 Cir. 7] how the testing was conducted, to read Oubre's report during the trial. The defendant notes that the State's witness admitted that the Louisiana State...