State v. Primeaux

305 So.3d 1014

STATE of Louisiana

v.Noah Drake PRIMEAUX a/k/a Noah Primeaux

19-841

Court of Appeal of Louisiana, Third Circuit.

October 21, 2020

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.

GREMILLION, Judge.

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.

FACTS

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.

ANALYSIS AND DISCUSSION

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:

The Sixth Amendment to the United States Constitution entitles Defendant to confront witnesses who bear testimony against him. Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). " ‘Testimony [ ]’ is ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ " Id . at 1364 (citation omitted). "The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[ ] ...." Melendez–Diaz [v. Massachusetts] , 129 S.Ct. [2527] at 2542 [174 L.Ed.2d 314 (2009) ]. Surrogate testimony "introduc[ing] a forensic laboratory report containing a testimonial certification-made for the purpose of proving a particular fact-through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification [ ]" does not satisfy the Confrontation Clause.

Bullcoming v. New Mexico , 564 U.S. 647, 131 S.Ct. 2705, 2710, 180 L.Ed.2d 610 (2011).

Here, testing confirmed J.S.'s testimony that she wiped Defendant's semen on her shirt. Testimony about those tests, the profiles they generated, and the resulting DNA matches established and proved the facts. The tests, and the testimony about them, provided evidence against Defendant, not the act of cutting fabric which Mr. Young suspected to contain semen. Mr. Young made no "certification" to the court by clipping samples later subjected to tests, and his actions cannot be equated with the " ‘core class of testimonial statements’ " envisioned by Melendez–Diaz and intended to prove a particular fact. 129 S.Ct. at 2532. The cutting of the samples merely preserved the basis for the tests and profiles that eventually provided the evidence against Defendant. "[I]t is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Id . n. 1.

In the course of the investigation of this crime, Mr. Young simply identified stains he suspected to be semen and preserved those samples according to ACL's protocol. Years later, Dr. Butt confirmed Mr. Young's suspicion and independently identified seminal fluid on the cuttings Mr. Young had collected. Dr. Butt offered the testimonial statement at trial that he developed a DNA profile from the cuttings. Ms. Booker offered the testimonial statement that the profile developed by Dr. Butt matched a DNA profile that CODIS identified as belonging to Defendant. Mr. Schiro offered the testimonial statement that the blood sample given by Defendant in 2004, in

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