State v. Wilhite

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STATE OF LOUISIANA Appellee v. STACEY GLENN WILHITE Appellant

Nos. 55,023-KA, 55,024-KA, 55,025-KA, 55,026-KA, 55,027-KA, 55,028-KA

Court of Appeals of Louisiana, Second Circuit

May 10, 2023

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court Nos. 236043 236043A, 236043B, 236043C, 236043D, 236043E Honorable Michael Nerren, Judge

WINSTON BERGERON, LLP Counsel for Appellant Samuel H. Winston Evan J. Bergeron Jeigh Lynn Britton J. SCHUYLER MARVIN Counsel for Appellee District Attorney

ANDREW C. JACOBS RICHARD R. RAY Assistant District Attorneys

Before PITMAN, THOMPSON, and ELLENDER, JJ.

THOMPSON, J.

Stacey Wilhite was convicted by a unanimous jury of molestation and indecent behavior with several children. He was sentenced to a total of 67 years in prison at hard labor. On appeal, he does not assign as error the sufficiency of the evidence or excessive sentence. Instead, he argues that the trial court erred in failing to grant a motion for change of venue and then a motion for mistrial on that issue. He also argues that the trial court improperly allowed the use of impeachment evidence against his wife during trial and various Brady violations. For the foregoing reasons, we affirm his convictions and sentences.

FACTS AND PROCEDURAL HISTORY

In 2020, Stacey Wilhite ("Wilhite") was accused of molestation and indecent behavior with a juvenile by several children. He was subsequently charged with one count of molestation of a juvenile under 13 in violation of La. R.S 14:81.2, one count of attempted molestation of a juvenile under 13 in violation of La. R.S. 14:81.2, six counts of indecent behavior with a juvenile under 13 in violation of La. R.S. 14:81, and one count of indecent behavior with a juvenile in violation of La. R.S. 14:81. The charges for each child victim were given a separate case number, but all of the cases were tried together.

The first victim, E.B., who was born on November 28, 2007, disclosed to her mother in June, 2020 that sometime in 2014 a man with dark hair allowed her to use the bathroom outside and wiped her after a golf cart ride. The man took her inside his house and touched her, pulled down his pants and asked that she touch him. E.B.'s mother took her to the police station to report the incident, and E.B. had an interview with the Gingerbread House on June 29, 2020. E.B.'s mother posted several times on Facebook about the incident and several of the other parents were notified of the abuse of their children from her posts.

Sometime in 2014, the second victim, L.S., who was born on December 10, 2003, went to Wilhite's house for a sleepover with Wilhite's son, P.W. L.S. testified that while he was showering, Wilhite entered the shower naked and sat down on the shower bench. He pulled L.S. onto his lap and began to wash him. L.S. got up and left the shower. Later that night, L.S. was sleeping with P.W. in his bed when Wilhite came in and asked P.W. to go sleep in another room. L.S. interrupted him and said he had a headache and wanted to go home.

In 2016, the third victim, R.S., who was born on January 9, 2006, spent the night at P.W.'s house for a sleepover. R.S. stated he was sleeping in the living room when Wilhite came downstairs and told his son to go sleep somewhere else. Wilhite began tickling R.S. and moved his hands down toward his pants. R.S. testified that he moved over, and Wilhite did not touch his private area. Wilhite then went upstairs and spent the night there.

Sometime in 2019, the fourth victim, E.S., who was born on July 15, 2010, and P.W. were playing with a remote-control car at Wilhite's house. E.S. got dirty from the mud, and Wilhite sprayed her off with the hose. E.S. testified that he took her to the pool house and asked to pull her shirt up, then pulled her pants down and rubbed her vagina.

The fifth victim, A.L., is Wilhite's stepdaughter and was born on January 10, 2005. In the summer of 2017, on a vacation to Florida, Wilhite put his hand on her thigh, near her shorts line, while they were in a go-cart together. On a family trip in the summer of 2018, while having a pillow fight, A.L. testified that Wilhite grabbed her breast and upper chest area for a few seconds. At the end of 2018, when A.L. was in 8th grade, she saw Wilhite in the mirror in the bathroom while she was taking a bath. She did not know whether he could see her in the bath. In the summer of 2019, at a pool party, A.L. was swimming across the pool while Wilhite was sitting at the deep end of the pool. A.L. testified she could see him doing "something weird" with his bathing suit shorts but she did not see him expose himself.

Finally, K.A., the sixth victim, who was born on May 18, 2002, testified that when she was nine, Wilhite touched her on the vagina over her clothes when she was playing with P.W. She also testified that she saw him naked after showering once and he motioned for her to go with him. She testified that while she was taking a nap at Wilhite's house, he put his penis near her face. On another occasion, she testified that he had her rub up against him while she was on top and he was lying on the floor. She testified that neither of them was wearing bottoms when this incident occurred. She testified that this happened on more than one occasion.

Several months before his trial, Wilhite filed a motion to change venue, pursuant to La.C.Cr.P. art. 622, arguing that it was not possible for him to receive a fair trial in Bossier Parish due to pretrial publicity. The trial court stated that it would rule on the motion after jury selection, as the voir dire of the potential jurors could provide insight on the issue.

During jury selection, the trial court learned of inappropriate communication between a prospective juror, Ms. Harris, and an employee of the district attorney's office. At that point in jury selection, several prospective jurors, including the juror in question, had been agreed upon by the parties, but the entire jury had not yet been seated. After questioning by the trial court, Ms. Harris admitted to texting with a friend who worked in the D.A.'s office, although she was not entirely truthful about the extent of the texting until the trial court looked at her phone. She also admitted that she asked her fellow prospective jurors, out of the presence of the court, if they had been asked if they knew anyone in law enforcement or the D.A.'s office.

The court dismissed Ms. Harris as a juror, and called the remaining prospective jurors individually into court to question them about whether they had had contact with anyone related to the case, whether Ms. Harris had asked them about whether they knew anyone in law enforcement or the D.A.'s office, and whether they believed they could be impartial. Wilhite's defense counsel agreed to this course of action by the trial court. After individual questioning all of the jurors, the trial court confirmed that Ms. Harris had only asked the one question that she related to the court. During questioning, the trial court also found that one other prospective juror mentioned that she believed Wilhite was a realtor to some of the other jurors and that others had a conversation about other, similar cases in Bossier Parish. However, the trial court reiterated that each juror confirmed that nothing that was said out of the presence of the court would affect their ability to be fair and impartial. Defense counsel moved for a mistrial, which was denied by the trial court. The trial court noted that each side still had juror challenges remaining, if they wished to use them.

Jury selection continued until the prospective jury panel had been selected. At the end of the jury selection, the trial court denied Wilhite's motion to change venue and noted that defense counsel did not use two of its peremptory challenges. No additional challenges for cause were raised about any jurors whom the court questioned about Ms. Harris's comments.

Trial began on January 24, 2022. During trial, the defendant's wife, Michele Wilhite ("Michele"), testified on his behalf about their marriage and her observations of the actions of the defendant. On cross-examination, the state asked Michele if she had ever been convicted of a felony, and she replied no. The state then presented evidence that she had pled guilty and was sentenced for felony access device fraud on June 16, 2009. She was sentenced to three years of hard labor, suspended, and placed on three years of active supervised probation in order to make restitution of no less than $20,231.51 within the first ten months of that probation. The defense moved for a mistrial pursuant to La.C.Cr.P. art. 973, the effects of an expunged record for arrest or conviction. The trial court held that there was no acquittal in the record, only deferment, and as such, the evidence was admissible. The trial court denied the motion for a mistrial.

On February 2, 2022, the jury returned guilty verdicts to one count of molestation of a juvenile under the age of 13, one count of attempted molestation of a juvenile under the age of 13, six counts of indecent behavior with a juvenile under 13, and one count of attempted indecent behavior with a juvenile. On May 13, 2022, Wilhite was sentenced to serve a total of 67 years at hard labor with the first two years without benefit of probation, parole, or suspension of sentence. Wilhite now appeals.

DISCUSSION

Wilhite asserts three assignments of error.

First Assignment of Error: The district court abused its discretion in denying both the appellant's motion to change venue and the motion for mistrial regarding the same.

Change of Venue

On August 27, 2021, Wilhite filed a motion for change of venue asserting that ...