State v. Primeaux
Decision Date | 21 October 2020 |
Docket Number | 19-841 |
Citation | 305 So.3d 1014 |
Parties | STATE of Louisiana v. Noah Drake PRIMEAUX a/k/a Noah Primeaux |
Court | Court of Appeal of Louisiana — District of US |
Chad M. Ikerd, Louisiana Appellate Project, P.O. Box 2125, Lafayette, LA 70502, (337) 366-8994, COUNSEL FOR DEFENDANT/APPELLANT: Noah Drake Primeaux
Noah Drake Primeaux, 17544 Tunica Trace, Louisiana State Prison, Angola, LA 70712, In Proper Person Hon. Keith A. Stutes, Fifteenth Judicial District Attorney, P. O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana
Scott J. Privat, Assistant District Attorney, P. O. Box 288, Crowley, LA 70526, (337) 788-8831, COUNSEL FOR APPELLEE: State of Louisiana
Court composed of Billy Howard Ezell, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
Defendant, Noah Primeaux, was indicted by a grand jury with first degree rape of a victim under the age of thirteen, a violation of La.R.S. 14:42. After being convicted by a unanimous twelve-person jury, Defendant was sentenced to life at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant appeals his conviction raising three assignments of error.
The testimony at trial adduced the following: Nicole Semar, mother of the victim, V.G., had known Defendant for eighteen years at the time of the incident and had recently been engaged to him.1 , From May of 2014 to July of 2015, Ms. Semar lived with Defendant in the towns of Rayne and Richard. Her three children lived with them, and V.G. called Defendant "Dad."2
On July 6, 2015, the family was living with Ms. Semar's mother. Defendant and Ms. Semar were staying in the master bedroom, and V.G. was sleeping on the sofa. When Defendant and Ms. Semar retired to bed that evening, they engaged in sexual relations. In the early morning hours of July 6, 2015, Ms. Semar woke up and realized Defendant was not in bed. She found him in his truck having sexual intercourse with V.G., who was ten years old at the time. Ms. Semar confronted Defendant and he left, but five minutes later he returned, apologizing. Ms. Semar contacted police. Ms. Semar admitted to corresponding with Defendant while he was incarcerated and to requesting that the charges be dropped because she was still in love with Defendant despite what he had done.
V.G., fifteen at the time of trial, testified that around 1:00 or 2:30 a.m., the time Defendant "would wake [her] up ... to have sex," she was awaked by Defendant and told to go to his truck. He joined her there and had sex with her. V.G. testified that this was not the first time Defendant had sex with her. V.G. confirmed that her mother interrupted Defendant and contacted the police.
Bethany Harris, a DNA Analyst with the Acadiana Crime Lab, analyzed seventeen samples taken the night of the event. Defendant objected to testimony about the results of testing on a sample identified as a penile swab on the grounds that Ms. Harris did not perform the swab. The characterization of this sample as a penile swab, Defendant argued, without the opportunity to confront and crossexamine the technician who actually performed the swab, violated his Sixth Amendment right to confront his accuser. The trial court overruled Defendant's objection and allowed the testimony.
Of the seventeen samples Ms. Harris analyzed, two contained no DNA. Two more had DNA from only one person. The rest contained "mixed profile" DNA, meaning the DNA was from more than one person. Testing done on DNA obtained from the crotch of Defendant's shorts and the crotch of his boxer shorts could not exclude either V.G. or Ms. Semar as contributors.3 DNA obtained from the penile swab of Defendant could not exclude V.G. as a contributor.4 Samples taken from the crotch of V.G.'s shorts could not exclude her or Ms. Semar as contributors.
Dr. Anne Troy, a nurse practitioner with the Audrey Hepburn Care Center, examined and treated V.G. She noted no trauma to V.G.'s genitalia. Dr. Troy testified that this was expected, due to the fact the tissue quickly regenerates. Dr. Troy explained that there is an increased ability to obtain DNA in adolescents and adults because a speculum can be used; however, this is not the case with a child V.G.'s age.
Defendant, through his counsel, argues that the conviction should be overturned because his right to confrontation was violated by the admission of testimonial evidence without the declarant being unavailable or subject to previous cross-examination. Because the evidence was offered for the truth of its assertion, Defendant contends a new trial should be granted. In his second assignment of error, Defendant argues that improper comments by the State during rebuttal argument denied him the right to a fair trial. Issues with disclosure of the field of expertise in which the State intended to qualify Dr. Troy form the basis of Defendant's third assignment of error presented by counsel. In a pro se brief, Defendant argues that the exclusion of Mr. Kenny Sinegal as a juror violated Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Finally, Defendant, in his pro se brief, argues that the trial court erred in instructing the jurors that he could be convicted by a nonunanimous verdict.
In every criminal appeal before this court, we scrutinize the record for errors that are patent. La.Code Crim. P. art. 920. We find one. The sentencing transcript indicates that the trial court sentenced Defendant to life imprisonment without the benefit of probation, parole, or suspension of sentence, and that the sentence was to be served at hard labor. The court minutes, though, do not indicate that Defendant's sentence was to be served at hard labor.
"[W]hen the minutes and the transcript conflict, the transcript prevails." State v. Wommack , 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied , 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we order the trial court to amend its minutes to correctly reflect the sentence is to be served at hard labor.
Assignment of error number 1
Defendant contends that allowing Ms. Harris to testify to the identification of one of the DNA samples as a penile swab deprived him of his right to confront his accuser. Because Ms. Harris did not herself procure the sample, Defendant argues, she had no firsthand knowledge of its source, and the medical personnel who actually took the swab should have been called to testify. Additionally, Defendant was unable to question whether the nurse or doctor could have been the source of the additional DNA on Defendant's penis because, he contends, no masks or gloves were worn. Defendant claims the improper admission of this evidence was not harmless beyond a reasonable doubt and should result in the granting of a new trial.
In State v. Savoy , 11-1326 (La.App. 3 Cir. 5/2/12), 109 So.3d 910, writ denied , 12-1114 (La. 10/26/12), 99 So.3d 641, the defendant contended that his constitutional right to confront witnesses was violated when the trial court allowed DNA evidence to be introduced without the testimony of the person who collected the evidence, some cuttings from a shirt which appeared to contain semen stains. The DNA profile generated from the cuttings matched the defendant. This court's analysis of the issue was as follows:
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