Preview:

4/3/01

SUPREME COURT OF LOUISIANA No. 2000-KK-1554 STATE OF LOUISIANA VERSUS PATRICK KENNEDY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FIFTH CIRCUIT, PARISH OF JEFFERSON CALOGERO, Chief Justice* This difficult case involving the capital crime of the rape of a child tests this court's resolve in upholding the law as written and as consistently followed by this court for nearly thirty years. The law governing the admission of other crimes evidence has not been changed, and however repugnant the alleged criminal conduct may be, we must apply to this case, just as we do any other, well-settled evidentiary rules that promise a process for determining guilt or innocence fairly. We granted a writ of certiorari in this case to determine whether evidence of the defendant's alleged sexual misconduct involving the rape of a minor child in 1984 is admissible under La. Code Evid. art. 404(B) at his trial for capital aggravated rape of a different minor victim allegedly committed in 1998. The State asserts such other crimes evidence is admissible in this child sexual abuse case under a so-called "lustful disposition exception" to Article 404(B), which prohibits the introduction of evidence of other crimes, wrongs, or acts to prove the criminal character of the accused in order to show that he acted in conformity therewith. We find, however, no such exception applicable to the instant case. Furthermore, we decline to rewrite the

Melvin A. Shortess, Associate Justice ad hoc, sitting for Associate Justice Jeannette T. Knoll, recused. 1

*

evidentiary rules to allow the introduction in child sexual abuse cases of evidence of other crimes, wrongs, or acts tending to show the defendant's "lustful disposition" toward children in the absence of one of the otherwise permissible purposes enumerated in Article 404(B). Because the evidence sought to be introduced here is not independently relevant under any of the permitted purposes recited in Article 404(B), such as proof of motive, intent, or identity, we find that the court of appeal was correct in applying Article 404(B) of the Louisiana Code of Evidence and our decision in State v. Miller, 98-0301 (La. 9/9/98), 718 So. 2d 960. We therefore affirm the court of appeal's decision reversing the ruling of the district court and remand to the district court for further proceedings. FACTS AND PROCEDURAL HISTORY Defendant has been indicted by a grand jury on one count of capital aggravated rape involving his eight-year-old step-daughter on March 2, 1998, a violation of La. Rev. Stat. 14:42. The State is seeking the death penalty.1 In a pre-trial motion pursuant to State v. Prieur, 277 So. 2d 126 (La. 1973), the State sought to introduce evidence of the defendant's unadjudicated rape of another eight or nine-year-old girl allegedly committed sixteen years earlier in 1984.2 At the Prieur hearing in April of 2000, this witness, now an adult, testified that sixteen years earlier the defendant, who had had temporary custody of her by permission of her mother, had inserted his penis into her vagina on three occasions. The witness did not

By Acts 1997, No. 898 and 757, the legislature made capital the crime of aggravated rape of a child under the age of twelve years, providing for a punishment of "death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury." La. Rev. Stat. 14:42(D)(2)(a). The State also moved to introduce evidence of the defendant's alleged sexual assaults on the instant victim prior to the March 2, 1998 charged conduct. The district court ruled that evidence of the first incident described by the victim could be introduced at the defendant's trial for aggravated rape, but that evidence of the two other incidents was insubstantial and, thus, could not be admitted at trial. The court of appeal affirmed these rulings, and neither party has sought writs thereon. 2
2

1

tell anyone other than her younger sister until some four years later, at which time a police investigation was commenced. No charges were made against the defendant after the witness withdrew her claims of sexual abuse. At the time of the Prieur hearing in the instant case, the witness was twenty-four years old. The district court found this evidence to be admissible, noting this court's holding in Miller that "lustful disposition" evidence may be relevant to the element of specific intent. The court reasoned as follows: To the extent that we have heard testimony today regarding the relationship of the Defendant, that is alleged to be superior to possibly even custodial in the broadest sense over these children; the fact that these children have testified were in his home and that he had access to them; that the opportunity for predation, albeit alleged, was there; certainly is consistent with what this Court considers to be the guidelines and guidepoints; a[s] enunciated by the Louisiana Supreme Court.

The district court went on to find that the State had proved the other crimes against the witness by a preponderance of the evidence and that the probative value of the evidence exceeded its prejudicial effect. The defendant successfully sought writs in the Court of Appeal, Fifth Circuit, which reversed the ruling of the district court admitting the other crimes evidence. The court of appeal reasoned: As to [the witness's] testimony, regarding other sexual acts committed by the Defendant upon her, we find the trial court erred in ruling that it was admissible. Even evidence of "lustful disposition" is not admissible unless it is to prove some element of the charged offense, like specific intent. State v. Miller, 98-0301 (La. 9/9/98), 718 So. 2d 960. Since specific intent is not at issue in the case, the evidence is not admissible to prove the Defendant's bad character, which is prohibited. La. C.E. art. 404(B); State v. Maise, 99-0734 (La. App. 5 Cir. 3/22/00), [759 So. 2d 884, writs applied for, 00-1158].

We granted the State's writ application to review the correctness of that ruling, 00-1554 (La. 6/14/00), 763 So. 2d 608, and now affirm the court of appeal.

3

DISCUSSION The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is, and has been, that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. See State v. Hatcher, 372 So. 2d 1024, 1036 (La. 1979) (Tate, J., concurring on rehearing). Enacted in 1928, La. Rev. Stat. 15:446 authorized the introduction of other crimes evidence to prove guilty knowledge and intent, but it expressly prohibited the admission of such evidence "to prove the offense charged."3 Although La. Rev. Stat. 15:446 was repealed in 1988 when the legislature adopted a formal code of evidence,4 the principle embodied in La. Rev. Stat. 15:446 was retained and made more explicit in our Code of Evidence at Article 404(B)(1). That article now provides: Except as provided in Article 412 [regarding a victim's past sexual behavior in sexual assault cases], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. Code Evid. art. 404(B)(1) (emphasis supplied). Simply put, the rule articulated in Article 404(B)(1) prohibits the State from
Former La. Rev. Stat. 15:446, entitled "Evidence where knowledge or intent is material and where offense is one of system," provided:. When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged. La. Acts 1988, No. 515,

Download 2000-KK-1554 STATE OF LOUISIANA v. PATRICK KENNEDY.pdf

Louisiana Law