State v. Warner
| Decision Date | 29 May 2019 |
| Docket Number | NO. 2018-KA-0739,2018-KA-0739 |
| Citation | 274 So.3d 72 |
| Parties | STATE of Louisiana v. Tyrone WARNER |
| Court | Court of Appeal of Louisiana — District of US |
Leon Cannizzaro, DISTRICT ATTORNEY, Donna Andrieu, Chief of Appeals, Kyle Daly, Irena Zajickova, Assistant District Attorneys, Parish of Orleans, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Timothy T. Yazbeck, SMITH & FAWER, LLC, 201 St. Charles Avenue, Suite 3702, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Roland L. Belsome, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins )
Defendant, Tyrone Warner1 (hereinafter referred to as "Defendant"), appeals the jury's verdict finding him guilty of aggravated rape2 and aggravated kidnapping and the district court's March 15, 2018 judgment sentencing him to life imprisonment, without benefit of parole, probation, or suspension of sentence on both counts. Defendant also appeals the district court's judgment assessing prosecution costs and court costs against him in the amount of $ 57,387.00. For the reasons that follow, we affirm, in part, and reverse, in part.
On October 27, 2011, Defendant was indicted on one count of aggravated kidnapping, in violation of La. R.S. 14:443 and one count of aggravated rape, in violation of La. R.S. 14:424 for the kidnapping and rape of the victim, V.P. (hereinafter referred to as "V.P."),5 that occurred on January 31, 1990. Defendant entered a plea of not guilty. On June 12, 2014, Defendant appeared for a Quatrevingt hearing to challenge the admissibility of the DNA evidence6 , which the district court denied and allowed the introduction of the DNA evidence by the State of Louisiana ("the State"). Thereafter, the State noticed its intent to introduce evidence under La. C.E. art. 412.2,7 which the district court granted. In response, Defendant filed a writ application for supervisory review of the district court's ruling. Both this Court and the Louisiana Supreme Court denied Defendant's writ applications. State v. Warner , 2016-0339, p. 1 (La. App. 4 Cir. 5/18/16), writ denied , 2016-1154 (La. 10/10/16), 207 So. 3d 404.
The jury trial commenced on December 4, 2017, and on December 6, 2017, the jury returned a ten-to-two verdict finding Defendant guilty on both counts of aggravated kidnapping and aggravated rape. On January 26, 2018, the district court denied Defendant's motion for a new trial. On March 15, 2018, the district court sentenced Defendant to life imprisonment without the benefit of parole, probation, or suspension of sentence on both counts with credit for time served. The district court also assessed prosecution costs and court costs against Defendant in the amount of $ 57,387.00. Defendant now files this appeal and asserts five (5) assignments of error.
On January 31, 1990, V.P. was walking home with her infant son on Annunciation Street near the St. Thomas Housing Development in New Orleans, when she was approached by a black male suspect in a vehicle. The suspect brandished a gun and ordered V.P. and her son into the vehicle. The suspect then drove V.P. and her son to the nearby park and forced her to perform oral sex on him. Subsequently, the suspect vaginally raped V.P. After the incident, V.P. underwent a rape examination. The male's DNA produced from the examination was then uploaded to the Combined DNA Index System ("CODIS").
At Defendant's trial, the State called Officer Derrick Williams ("Officer Williams"), of the New Orleans Police Department ("NOPD") Sex Crimes Unit, as its first witness to testify to the "other crimes" evidence.8 On direct examination, Officer Williams testified that there was a call of attempted aggravated rape, during the early morning hours of November 2010, at the intersection of Broad Street and Washington Avenue. He explained that he was not the responding officer; however, he had an opportunity to interview the victim at NOPD's office. Based on the information provided during that interview, he was able to obtain an arrest warrant for Defendant, for the charge of attempted forcible rape.
On cross-examination, Officer Williams confirmed that he was made aware of the tenant-landlord relationship between the victim and Defendant. Officer Williams denied knowledge of communications between the parties regarding an invitation for Defendant to come to the victim's apartment for dinner in exchange for rent payment.9 Officer Williams also confirmed that there was no physical evidence or sexual assault kit available to corroborate the victim's allegations.10 However, on re-direct examination, Officer Williams recounted that the victim seemed very matter of fact while explaining the incident. Additionally, he testified that the victim stated there was no penile-vaginal penetration, but Defendant's penis did touch her vagina.
The State's next witness was Gina Pineda Murphy ("Ms. Murphy"), a DNA consultant with a specialty in forensic human DNA testing. Ms. Murphy was formerly employed by ReliaGene Technologies ("ReliaGene"), the testing company that received V.P.'s rape kit in May 2005. Ms. Murphy explained that ReliaGene was contracted with the NOPD Crime Laboratory in 2005 to test the backlog of rape kit cases. All of the rape kits that tested positive for seminal fluid were analyzed to obtain DNA profiles. She explained the document handling, standard operating procedure, and testing protocols employed to ensure the integrity of DNA samples and reliability of results. She stated that once the integrity of the samples was determined to be adequate, the samples were assigned a case number and logged into a computer database.11 She explained that those procedures and protocols were properly followed to ensure that the integrity of DNA samples had not been compromised.
She recalled the rape kit, in the present case, contained two samples: (1) an intimate swab from the victim and (2) a victim-known blood stain card, which were tested by two independent analysts. From these results, a report was generated that included the summary of ReliaGene's findings. The initial report was issued in September of 2005. Ms. Murphy recounted that, while Hurricane Katrina ("Katrina") occurred in August of 2005, the laboratory neither received any water damage, nor were any of the samples housed in that facility damaged or harmed.12 She also recounted that the testing of the DNA samples in this case were performed prior to Katrina, and only the generation of the data analysis and final report was needed after Katrina.
Ms. Murphy then explained the DNA test results, asserting that a male DNA profile was developed from the testing of the vaginal swab obtained during V.P.'s rape examination.13 She further explained that, at the time of testing, the donor's identity could not be determined because there were no known samples in CODIS to compare; thus, the profile was uploaded in CODIS to await "a hit." To qualify the integrity of the male DNA profile developed in this matter, Ms. Murphy indicated that the DNA sample tested was neither "contaminated" nor "degraded."14
On cross-examination, Ms. Murphy testified as to the chain of custody of the DNA samples received from V.P.'s rape examination. She indicated that they received the DNA samples from NOPD's Crime Lab, and once it was at the facility, there was an internal chain of custody followed in handling the samples. Defendant indicated that the chain of custody document, introduced as Defense Exhibit 1, did not indicate that the DNA samples were transferred from NOPD's Crime Lab to ReliaGene's facility. To contest this assertion, Ms. Murphy indicated the signature of the agent who transferred the samples was evidenced on the document, even though she admitted the document did not evince the term "transfer" on its face.
On redirect examination, Ms. Murphy indicated that the chain of custody document introduced is a three-page document that contains different rows or lines utilized to document the transfers of the DNA samples. She urged that the documents indicate that the DNA samples were transferred and evinces the time and the agent who completed the transfer.
V.P. testified that, on the night of the incident, she was playing cards, with her infant son, at a friend's residence in the St. Thomas Housing Development. At the end of the night, she decided to find the nearest pay phone to call for a ride home because it was very late.15 As she waited at the pay phone, a vehicle pulled up. The suspect brandished a gun and ordered her to "get in." She testified that, once she got into the vehicle, the suspect attempted to force her to perform oral sex. Her infant son, who had been placed in the backseat, was incessantly crying and trying to get in the front seat with her. However, she testified that the driver continuously knocked him down over the seat. The suspect then drove V.P. and her son to a nearby park, where he ordered her to get out of the vehicle. However, due to her son's crying, he brought her back to the vehicle. Once back inside of the vehicle, the suspect ordered her to perform oral sex on him and then vaginally raped her. After the incident was over, the suspect dropped V.P. and her son off on a corner and ordered them out of the vehicle. It was at this time that V.P. used a phone to call her mother to inform her of the rape. V.P. testified that her mother picked her up and drove her to the police station. From there, she was transported to a hospital to receive a rape examination where a vaginal swab was taken.16
V.P. testified that, at that time, she could not provide an accurate description of her attacker because it was dark outside. However, sometime later, she contacted the police to identify a suspect she believed to be her attacker based on a conversation she had with her former boyfriend.17 Based on the description of the man provided by...
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