State v. Cleveland

115 So.3d 578

STATE of Louisiana

v.Scott G. CLEVELAND.

No. 2012–KA–0163.

Court of Appeal of Louisiana, Fourth Circuit.

April 10, 2013.

Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.

Powell W. Miller, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

MAX N. TOBIAS, JR., Judge.

[4 Cir. 1]On 4 August 2010, the state charged the defendant, Scott G. Cleveland (“Cleveland”) by bill of information with one count of simple rape, a violation of La. R.S. 14:43. He entered a plea of not guilty at his arraignment on 12 August 2010. Defense counsel filed motions to suppress identification and for a preliminary hearing. On 21 January 2011, the trial court denied the motions and found probable cause. On 20 July 2011, a six-member jury found Cleveland guilty as charged. SeeLa.C.Cr.P. art. 782. On 5 August 2011, Cleveland filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which were denied. That same day, the trial court sentenced him to fifteen years at hard labor with credit for time served. Cleveland filed motions for appeal and to reconsider sentence;the former was granted and the latter denied.

S.H., the victim,¹ related that on 23 May 2010, she and friends, Antineeka Williams, Shintia Taylor, and others, went to the Bridge Lounge in New Orleans between 5:00 and 6:00 p.m. after attending a crawfish boil earlier in the day. While at the lounge, she met more friends with whom she socialized and drank until approximately 9:00 p.m. One of the victim's acquaintances assisted the victim from the lounge to a parked car because she was drunk and boisterous. The [4 Cir. 2]next thing the victim remembered was being outside of the car on the sidewalk with Ms. Taylor helping her put her clothes back on. She did not remember how she got from the car to the sidewalk or how her clothes were removed. She denied knowing Cleveland or seeing him outside the Bridge Lounge that evening. She did not consent to having sex with him. The last thing she remembered from that night was arriving at a local hospital with Ms. Taylor and undergoing a rape exam. She spoke with two detectives at the hospital and told them that she did not recall consenting to or having oral sex with anyone that night. The following day, the victim spoke with her friend Isaiah Boyd, who was at the lounge with her the previous night.

On cross-examination as on direct, S.H. admitted that she had several drinks at the crawfish boil, and that she had several more drinks later that evening at the Bridge Lounge. She also admitted to having smoked marijuana at about 1:00 p.m. on that day and also having taken Valium. The victim remembered telling the nurse at the hospital that she was confused about the night's events and did not know how many drinks she had had.

Ms. Taylor testified that she and the victim had been friends since high school and were together on the night of 23 May 2010. She met the victim that day about 3:00 p.m. at a crawfish boil located on the river. During the two hours that she and the victim spent at the crawfish boil, they both drank daiquiris. From the crawfish boil, they went to the Bridge Lounge at about 6:00 p.m. and continued to drink. At about 9:00 p.m., the victim was drunk and getting very loud. Consequently, Ms. Taylor's friend, Robin, escorted the victim to Ms. Taylor's car, which was parked on the side of the lounge, and placed her in the front seat. Robin [4 Cir. 3]returned to the lounge and gave Ms. Taylor her car keys. A few moments later, two male friends entered the lounge and told Ms. Taylor that the victim was in the street unclothed. She went outside and found the victim on the curb next to Ms. Taylor's car. (It took multiple individuals to lift the victim from the ground.) The victim was in a daze and unable to tell Ms. Taylor what had happened. She redressed the victim and drove her to the hospital.

During cross-examination, Ms. Taylor advised the court that she did not know Cleveland, and that she did not see him in the Bridge Lounge on the night of 23 May 2010. She did not witness the victim engage in any sexual act with Cleveland. Though Ms. Taylor recalled speaking to two detectives that night, she could not remember what the conversations were about.

The victim's friend, Isaiah Boyd, recounted that he and the victim had been friends since grade school. He recalled running into the victim at the Bridge Lounge on 23 May 2010. They reminisced and had a drink. He received a telephone call just before nightfall and left the lounge. When he returned to the lounge thirty-five to forty-five minutes later, he did not see the victim, so he had a drink, and thereafter left. As he walked to his car, he saw three people, one woman and two men, on the ground engaged in sexual activity that he assumed was consensual. As he made a telephone call in his car, the bartender from the lounge came outside and told the three people they had to leave. Because the bartender was his friend, Mr. Boyd approached the three people to help in dispersing them. Mr. Boyd noticed the female lying on the ground with her clothes open. One male was at her upper torso, and the second was on her lower torso. The women's breasts were exposed, and one of the men was sucking on the woman's breasts. The second man had his head between the woman's legs. Mr. Boyd identified [4 Cir. 4]Cleveland as the man with his head between the woman's legs. After the bartender told the three people to leave, another man walked around the corner and screamed, “That's [the victim].” That being said, Mr. Boyd reentered the lounge and informed the victim's friends. By that time, the two men had departed, and the victim remained motionless on the ground. The victim's friends placed the victim in one of their cars. The following day, the victim called him and asked what happened the night before. He related to her what he observed that night, and she burst into tears.

Wayne Jolla, the bartender at the Bridge Lounge on the night of this incident, testified that the victim arrived at the lounge with friends at about 6:00 p.m. During the night, he prepared one Mojito for her. At about 8:30 p.m., her friends took her outside because they said she was inebriated. Mr. Jolla said S.H. appeared tipsy but not drunk. Later that night at about 10:15 p.m., a man in the bar told Mr. Jolla, “Something is going on on the side of the bar you need to go take a look at.” Mr. Jolla went outside and found the victim on the ground, naked and unresponsive. One of the two men on the victim had his mouth on the victim's vagina, and the other was down there with “his stuff” in his hand. Mr. Jolla said that the victim seemed to be highly intoxicated—that she did not know what was going on. When he told the two men to disperse, they walked in opposite directions. Mr. Jolla went into the bar and informed the victim's friends, who redressed her, called the police, and drove her to the hospital.

Detective Clifton Neely of the New Orleans Police Department (“NOPD”) Sex Crimes Division met the victim at University Medical Center at about 3:30 a.m. on 24 May 2010. He found her incoherent and intoxicated to the point that she was unable to give him a statement. The following day, Detective Neely spoke [4 Cir. 5]to some witnesses and developed Cleveland as a suspect, and thereafter, he secured an arrest warrant for him. Detective Neely compiled a six-person lineup, which he presented to Isaiah Boyd. Mr. Boyd told him that he could not be sure that Cleveland was in the lineup, so the detective wrote “negative lineup” on the photos and put them in his folder. Detective Neely showed Mr. Boyd a copy of the lineup from which Mr. Boyd positively identified Cleveland as the person he saw outside the Bridge Lounge with the victim. Detective Neely spoke with the victim on one occasion following their initial interview, but she was never able to remember the events the night of the assault. The facts Detective Neely gleaned were obtained from the victim's friends.

Ashly Butler, Cleveland's friend and co-worker, testified that he and Cleveland worked together for about two months at the time of the occurrence of the incident. The day after the incident Cleveland arrived late for work in a frantic and disheveledcondition. He told his boss, Paul Tufaro, that he had hooked up with a young black woman the night before. He explained that the woman stumbled out of the Bridge Lounge obviously intoxicated. He approached her, and she told him she wanted him to perform oral sex on her, which he did. Mr. Butler asked Cleveland, “Well, did you f--- her,” and Cleveland replied “no.” Cleveland mentioned to him that during the oral copulation, a “Mexican” man tried to “get in on the action,” but Cleveland shooed him away. Mr. Butler said that Cleveland claimed the woman spoke, but did not say that she was necessarily incoherent, during the sex act.

Paul Tufaro, Cleveland's employer at the time of the incident, recounted that he received a call from Cleveland at about 7:00 a.m. on 24 May 2010, in which Cleveland said he would be late for work. Cleveland explained that a strange [4 Cir. 6]occurrence happened the night before that kept him up all night and that he was not sure if it was worth it. When Cleveland arrived at work, he proceeded to explain to Mr. Tufaro and Mr. Butler what had happened the night before. He said that a woman stumbled out of the Bridge Lounge and asked him to perform oral sex on her, which he did. Cleveland claimed that the victim was coherent and that she wanted him to perform oral sex on her. Cleveland said that eventually the bartender came outside and ran him away. Mr. Tufaro thought Cleveland's story was very strange, so he called the Bridge Lounge to...