State v. Serigne

• Decision Date: 02 May 2016
• Docket Number: No. 2014–KA–0379.,2014–KA–0379.
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. William SERIGNE & Lionel Serigne.

193 So.3d 297

STATE of Louisiana

v.William SERIGNE & Lionel Serigne.

No. 2014–KA–0379.

Court of Appeal of Louisiana, Fourth Circuit.

May 2, 2016.

James D. “Buddy” Caldwell, Attorney General, David Weilbaecher, Jr., Terri R. Lacy, Assistant Attorneys General, Baton Rouge, LA for Appellee, The State of Louisiana.

Deborah A. Pearce, Deborah A. Pearce, LLC, New Orleans, LA, Michael C. Ginart, Jr., Ginart & Associates, Chalmette, LA, for Defendant/Appellant, Lionel Serigne, Jr.

Edward Castaing, Jr., Crull Castaing & Lilly, New Orleans, LA, Rykert Toledano, Jr., Olivier Carriere, II, Toledano & Herrin, Covington, LA, for Defendant/Appellant, William Serigne, Sr.

(Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU ).

DANIEL L. DYSART, Judge.

After a bench trial, brothers, Lionel Serigne, Jr., and William Serigne, Sr., were convicted of sex crimes committed against juvenile family members. Lionel Serigne was convicted of the aggravated rape of his cousin, D.A., and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. William Serigne was convicted of the forcible rape of his cousin, D.A.; the sexual battery of his niece, B.M.; and the aggravated incest of his daughter, M.S. He was sentenced to serve a total of forty-four years at hard labor without benefit of parole, probation or suspension of sentence. The defendants now appeal their respective convictions and sentences.

For the reasons that follow, we reverse the convictions of both defendants, and remand these matters for separate new trials.

BACKGROUND

In 2009, D.A., then age thirty-nine, came forward to authorities to report sex crimes committed by her first cousins, brothers Lionel and William Serigne. She reported that the crimes had taken place commencing over thirty years prior when she was six years old and continuing through and until she was about twelve years old. She reported that a number of sexual acts were committed against her beginning with Lionel, who is eleven years older, and then followed by William, who is four years older. D.A. subsequently had conversations with her cousins B.M. and M.S., who thereafter reported that sex crimes were committed against them by William Serigne, the uncle of B.M., and the father of M.S.

On April 7, 2010, Lionel Serigne was indicted on a single charge of violation of La. R.S. 14:42 A(4), aggravated rape of a juvenile (D A.). The indictment read:

During the year 1981, [Lionel Serigne] committed aggravated rape upon a juvenile, where the vaginal sexual intercourse is deemed to be without lawful consent of the victim, to-wit: The victim is under the age of twelve years, in violation of 1950 La. R.S. 14:42 A(4).

Also in 2010, William Serigne was indicted on three charges, aggravated rape during the year 1981(D.A.), sexual battery on or about October 31, 2004 (B.M.), and, aggravated incest during the year 1998 (M.S.). The indictment as to the charge of aggravated rape read:

During the year of 1981 , [William Serigne] committed aggravated rape upon a juvenile, where the oral sexual intercourse is deemed to be without lawful consent of the victim, to-wit: the victim is under the age of twelve years, in violation of 1950 La.R.S. 14:42 A(4).¹

The defendants filed various motions including Motions to Quash and Motions for Bills of Particular. On September 28, 2011, the State moved to amend both of the indictments. Specifically, the State moved to amend Lionel Serigne's indictment as follows:

[T]o substitute the date: “Prior to the year 1981” for the terms: “ ‘on or about the day of’ ‘During the year 1981.’ ”

The motion to amend William Serigne's indictment read:

[T]o substitute the date: “on or after March 28, 1981” for the terms: “ ‘on or about the day of’ During the year 1981[.]”

The State moved to consolidate the indictments for trial. Also, in response to motions in limine filed by defendants regarding the State's use of “other crimes” evidence, the State responded that until its motion to consolidate all matters for trial was granted, it could not state which “other crimes” would be before the trier of fact as part of its case in chief. The trial court denied the State's motion to consolidate.

Being precluded from consolidating the two trials, the State convened a second grand jury and obtained a new indictment on May 30, 2012. This second indictment, which jointly indicted the defendants, added a new element of the charge of aggravated rape as to each defendant, and reflected different dates for the charged offenses. The indictment as to the aggravated rape charge against each defendant now read:

Count 1) That WILLIAM R. SERIGNE, SR., ... on or after March 28, 1981 until and throughout the year 1983, ... did commit aggravated rape upon D.A., date of birth December 27, 1970, by having sexual intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the second offender being LIONEL R. SERIGNE, JR.; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[.]

Count 2) ... LIONEL R. SERIGNE, JR., ... between and including the years 1976 and 1983, did commit aggravated rape upon D.A., date of birth December 27, 1970, ... by having sexual intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the second offender being WILLIAM R. SERIGNE, JR. [sic]; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[.]

Additionally, William Serigne was indicted on three other charges:

Count 3) ... WILLIAM R. SERIGNE, SR., on or after March 28, 1981 until and throughout the year 1983, did commit aggravated rape upon D.A., date of birth December 27, 1970, by having sexual intercourse with D.A.; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE,

Count 4) ... between October 22, 2004 and November 1, 2004, WILLIAM R. SERIGNE, SR., did commit a sexual battery of B.M., date of birth July 25, 1996, in violation of LA. R.S. 14:43.1, to wit: SEXUAL BATTERY, by fondling the genitals of the minor victim,

Count 5) ... during the years 1983[sic], 1994, 1995, 1996, 1997, 1998 and 1999, WILLIAM R. SERIGNE, SR., did commit aggravated incest upon his biological daughter, M.S., date of birth October 19, 1987, by lewd fondling or touching, and engaging in sexual acts with M.S., including in the alternative, sexual battery, molestation of a juvenile and other prohibited sexual activity considered a crime under the laws of the State of Louisiana, all in violation of LA. R.S. 14:78.1, to-wit: AGGRAVATED INCEST.

Prior to trial, each defendant filed a motion to sever parties and for severance of offenses. The trial court denied the motions (joint participation was now charged in Counts 1 and 2 of the indictment), and the case proceeded to trial. Lionel Serigne re-urged his motion to sever on the first day of trial before any witnesses were sworn. His motion again was denied. After D.A. testified, defense counsel for both defendants moved for a mistrial and again urged a motion to sever, this time based on the fact that D.A. testified that the defendants did not participate together in any act of sexual intercourse. Both motions were denied.

At the close of the State's case, defense counsel re-urged the motions to sever the parties and the offenses. It was argued that D.A. stated unequivocally that Lionel Serigne and William Serigne did not participate together in connection with the alleged rapes, thus disproving the State's charge pursuant to La. R.S. 14:42 A(5), which was the sole basis for the defendants being tried together. Although the motions were not entitled “Motion to Quash,” the re-urged motions to sever nonetheless had the same substantive complaint.

Counsel for both defendants also argued for a mistrial based on the fact that the indictment contained a charge, specifically violation of La. R.S. 14:42 A(5), that was not substantiated by the trial testimony. They requested that the trial court do an in camera inspection of D.A.'s grand jury testimony in light of the fact that her trial testimony revealed that Lionel Serigne and William Serigne did not participate together in any alleged rape of D.A. The trial court denied both the defense's request to review the grand jury testimony and the motion for mistrial.

On November 8, 2013, the trial court found William Serigne guilty on counts 1, 4 and 5. He was found not guilty on count 3. Lionel Serigne was found guilty on count 2 of the indictment.

In ruling on the counts of the indictment the trial court stated:

Count 1 before the Court is the defendant William Serigne, Sr., charged with aggravated rape pursuant to Louisiana Revised Statute 14:42 of [D.A.] based on the victim being under the age of twelve. The Court finds beyond a reasonable doubt the defendant is guilty.

Count 2 before the Court is the defendant Lionel Serigne, Jr., charged with aggravated rape pursuant to Louisiana Revised Statute 14:42 of [D.A.] based on the victim being under the age of twelve. The Court [sic] beyonds [sic] a reasonable doubt the defendant is guilty.

Count 3 before the court is William Serigne, Sr. charged with a second count of aggravated rape of [D.A.]. The Court finds the defendant not guilty on the second count.

Court [sic] 4 before the Court is William Serigne, Sr., charged with a sexual battery pursuant to Louisiana Revised Statute 14:43.1 of a minor. The Court finds beyond a reasonable doubt the defendant is guilty.

Counsel [sic] before the Court is William Serigne, Sr., charged with aggravated incest pursuant to Louisiana Revised Statute 14:78.1, the Court finds beyond a reasonable doubt the defendant is guilty.

On its own motion, on November 22, 2013, the...