State v. Roberts

• Decision Date: 29 March 1989
• Docket Number: No. 20381-KA,20381-KA
• Citation: 541 So.2d 961
• Parties: STATE of Louisiana, Appellee, v. Phillip S. ROBERTS, Appellant. 541 So.2d 961
• Court: Court of Appeal of Louisiana — District of US

Page 961

541 So.2d 961

STATE of Louisiana, Appellee, v. Phillip S. ROBERTS, Appellant.

No. 20381-KA.

541 So.2d 961

Court of Appeal of Louisiana Second Circuit.

March 29, 1989.

James M. Stephens, Winnsboro, for appellant.

William J. Guste, Jr., Atty. Gen., William R. Coenen, Jr., Dist. Atty., E.R. McIntyre, Jr., Asst. Dist. Atty., for appellee.

Before HALL, NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The defendant, Phillip S. Roberts, age 35, and his wife, Lizabeth Roberts, were indicted on four counts of sexual battery, LSA-R.S. 14:43.1, and 24 counts of molestation of a juvenile, LSA-R.S. 14:81.2. After the defendant's case was severed from his wife's, he proceeded to jury trial. He was found guilty on all four counts of sexual battery and on 16 counts of molestation. The trial court sentenced Roberts to ten years at hard labor on each count of molestation, with the first five to run consecutively, and five years on each count of sexual battery, with one count to run consecutively to the molestation charges. All other counts were to be concurrent with the 55-year sentence. Roberts now appeals, advancing three assignments of error. Finding that they do not present reversible error, we affirm.

Facts

The main witnesses at trial were the victims, defendant's sons Scott (age 14) and James (age 12). They described a household in which nudity and sexual openness were the norm. They also testified to repeated, specific acts of a sexual nature that had been going on for years. The acts focused on at trial occurred in 1986 and 1987, when the family lived in a house on Martin Dr. in Winnsboro until it burned in February 1986 (James said it burned in September 1986), and afterwards in an apartment on Airport St. until defendant's arrest in September 1987. Although the acts usually involved one or both of the boys and their mother, they were always done at the defendant's urging, either openly or subtly expressed.

Scott testified his mother sometimes walked about the house or apartment naked or topless, and sometimes the defendant would ask him to touch her breast or kiss it goodnight. Scott said he "kind of" felt he was expected to comply, and admitted he did comply five to seven times. Sometimes the defendant asked his sons to grab Lizabeth's bare breasts and shake them at him. Scott testified he sometimes saw his parents engaging in sexual intercourse. Sometimes this was when he happened into their bedroom in the morning, but sometimes it was when they were sitting on the livingroom couch, with the naked Lizabeth sitting on the defendant's lap and facing him, and they engaged in the act while Scott and James were in the room watching TV. Sometimes as the family was sitting around watching TV, Lizabeth would turn to the defendant and bare her breasts or unbutton her shorts to show her vagina, and she did so in plain view of Scott and James. The defendant did not ask her to do it, but Scott "knew" he wanted her to. Once at the dinner table, the subject of sex came up and the defendant told Scott to "go through the motions" with Lizabeth. Scott was 13 at the time. They undressed and went through the motions, though no actual contact was made. On another occasion, Lizabeth stroked both boys' penises while she had intercourse with the defendant. Once the defendant gave his sons an "anatomy lesson," pointing out the sexual organs on the undressed Lizabeth and instructing Scott and James to stick their fingers into her vagina.

James's testimony was substantially the same. He estimated he had fondled Lizabeth's breasts, at the defendant's request, ten to 15 times. He testified that when she walked around naked, it was at the defendant's instruction. He added the defendant would make a hissing noise and this was apparently the signal for Lizabeth to turn to him and expose her breasts or vagina. Like Scott, James had been urged to "go through the motions" with Lizabeth and had received a "sex education lesson" in which the defendant instructed him to touch parts of Lizabeth's vagina. James testified that his mother knew such acts were wrong, but she also knew that if she refused to comply, the defendant would beat her.

Both Scott and James testified to various incidents of sexual activities between the defendant and his neighbors. The neighbors testified for the defense and either denied the stories, could not remember or admitted them with the explanation that no children were around when they occurred. The jury acquitted Roberts on all these counts. James also testified that the defendant made him wrestle on the floor with his naked mother in exchange for permission to stay up late to watch wrestling on TV, and made him stick his fingers in her vagina until she cried "uncle" to end the "match"; the jury acquitted Roberts on these counts as well.

Dr. Bobby Stephenson, a licensed psychologist, testified that he had examined Scott and James and found that they showed serious adjustment problems. They had been exposed to physical conflict, emotional abuse and inappropriate sexual activity. He suggested a "long history of intimidation" on the part of the defendant. Although he did not interview the defendant, Dr. Stephenson believed he had trouble getting sexually aroused and his intent much of the time was to achieve more gratification by getting the boys involved. On cross-examination he stated that Scott's rendition of events may have minimized the conduct, and that both boys were probably not sophisticated enough to grasp the defendant's motivations. Dr. Stephenson concluded that the boys would need intensive psychotherapy for the next 15 or 20 years.

Mrs. Crockett, a child protection investigator, interviewed the defendant twice. Without objection, she testified that he mentioned problems in his relationship with Lizabeth in that "old things didn't excite him any more."

As noted, the jury found Roberts guilty on four counts of sexual battery that alleged that Scott and James, once each in 1986 and in 1987, touched their mother's vagina upon the defendant's instruction and consent. The jury also found him guilty on 16 counts of molestation. These counts referred to one act with each child in each year: letting them watch him and Lizabeth in intercourse, letting them view her sexual organs, letting them view her exposed breasts and letting them fondle her breasts. In each case, the conduct was compelled by virtue of the defendant's position of control or supervision over the children. Eight other counts of molestation resulted in acquittal.

Assignment No. 1

By his first assignment Roberts urges the trial court erred in chastising and intimidating him during trial by threatening to remove him from the courtroom if he stared at the witnesses. He adds, without elaboration, that this infringed his constitutional right to confront his accusers and deterred him from taking the stand in his own defense.

At the end of the first day of trial, the court stated outside the jury's presence:

Mr. Roberts, I have cautioned your counsel twice. I am now going to caution you. When the witnesses are on the stand you are not to stare at them in any manner, to be intimidating, nor are you to shake your head either agreeing or disagreeing with the witnesses. There are going to be things said that you either like or don't like. Most particularly you are not to do that when the younger boy takes the stand or I will remove you from the court room. Now I have warned your counsel twice, I am warning you now. This is the last one. All right. R.p.p. 280-281.

Roberts correctly asserts that both the federal and state constitutions guarantee the right of a defendant to confront his accusers. USCA-Const. amend. 6; LSA-Const. art. 1 Sec. 16 (1974). "Confrontation" means a face-to-face meeting between witness and defendant. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899); Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); State v. Phillips, 343 So.2d 1047 (La.1977). The right, however, is not absolute. State v. Ranker, 359 So.2d 129 (La.1978). It is subject to the inherent power of courts to conduct criminal proceedings in a dignified, orderly and expeditious manner. LSA-C.Cr.P. art. 17; Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Louisiana and other states have enacted statutes to permit child victims of sex crimes to testify under conditions that are less confrontational, less traumatic to the child and more conducive to truthful testimony. See LSA-R.S. 15:440.1 through 440.6; State v. In Int. of R.C. Jr., 494 So.2d 1350 (La.App. 2d Cir.1986), and citations therein; but see also Coy v. Iowa, --- U.S. ----, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). Any abridgment of the right must be justified by necessity and attended by strong assurances that the evidence admitted will be reliable. State v. Monroe, 345 So.2d 1185 (La.1977), and citations therein.

The record shows that the judge did not prohibit Roberts from facing the witness; rather, he admonished him not to stare at the witness in an intimidating manner and not to nod or shake his head as if to prompt the witness. The record does not support defendant's contention that the judge in effect told him to hang his head in shame and portray to the jury the essence of guilt. Even defense counsel conceded at the time that the court's admonition was well taken with respect to the younger witness, James. R.p. 281. Admittedly, Roberts's conduct was not as extreme as that reported in Illinois v. Allen, supra, or in State v. Washington, 322 So.2d 185 (La.1975), but the warning was under the circumstances a reasonable exercise of the court's authority. This is especially so in the context of an offense like molestation, in which the defendant is alleged to have exploited his position of authority over his children to compel participation in lewd or lascivious acts. Reasonable caution was warranted to prevent exercise of similar...