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NEWS RELEASE # 74 COMPLETE OPINION - Handed down on the 15th day of October, 2002.

BY TRAYLOR, J.: 2002-KK- 0898 C/W 2002-KD- 1030 STATE OF LOUISIANA v. HENRY RAY WILLIAMS Terrebonne) (Aggravated Rape) (Parish of

STATE OF LOUISIANA v. VICTOR VERDUN, JR. (Parish of St. Tammany) (Aggravated Rape) For the reasons assigned herein, the decisions of the Court of Appeal, First Circuit, are AFFIRMED. CALOGERO, C.J., concurs and assigns reasons.

10/15/02

Supreme Court of Louisiana
No. 2002-KK-0898 STATE OF LOUISIANA vs. HENRY RAY W ILLIAMS c/w No. 2002-KD-1030

STATE OF LOUISIANA vs. VICTOR RAYMOND VERDUN, JR.

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of Terrebonne On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of St. Tammany

TRAYLOR, J. We granted certiorari in these two criminal matters and consolidated them for oral argument in order to address the issue of whether the procedural requirements of State v. Prieur, 277 So.2d 126 (La. 1973) applies to evidence of other sexual offenses admitted pursuant to newly enacted La. Code Evid. art. 412.2. After reviewing the records and applicable law, we hold the procedural requirements of State v. Prieur do not apply to La. Code Evid. art. 412.2. FACTS AND PROCEDURAL HISTORY

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Henry Ray Williams and Victor Raymond Verdun, Jr. were indicted separately for aggravated rape in violation of La. R.S. 14:42.1 Both defendants filed motions for an admissibility hearing after the state gave notice of its intent to introduce evidence of other sex offenses under La. Code Evid. Art. 412.2. In the Williams case, the trial court granted Williams' motion, reasoning that under La. Code Evid. art. 404, evidence of other crimes, wrongs or acts is not admissible except under certain circumstances. The trial court further stated that its interpretation of La. Code Evid. art. 412.2 is that the article expands the type of other crimes evidence which would ordinarily be inadmissable under La. Code Evid. art. 404. The court concluded, based on its finding that Prieur jurisprudence was applicable to La. Code Crim. Pro. art. 412.2, that the evidence should be subject to a pretrial hearing on admissibility. The state sought review of the trial court's determination. The Court of Appeal, First Circuit, granted the state's application and reversed the trial court's ruling. State v. Williams, 02-0320 (La. App. 1 st Cir. 2/21/02), --So.2d--. Conversely, in defendant Verdun's case, the trial court denied the motion and the Court of Appeal, First Circuit, affirmed. State v. Verdun , 02-0767 (La. App. 1 st Cir. 4/12/02). Defendants Williams and Verdun applied for writs in this court. This court granted both applications and consolidated the writs for oral argument. State v. Williams, 02-0898 (La. 4/26/02), 813 So.2d 1096 and State v. Verdun , 02-1030 (La. 4/26/02), --So.2d --. LAW AND DISCUSSION In 2001, the Louisiana legislature enacted La. Code Evid. art. 412.2 which provides:

While the underlying facts of these cases are not relevant to our resolution of this matter, both men were indicted for raping minor children over an extended period of time. Williams was indicted on August 29, 2001, for the aggravated rape of his ex-girlfriend's daughter which allegedly occurred between the years of 1981 and 1983. Verdun was indicted on December 16, 1999, for the aggravated rapes of his ex-girlfriends twin daughters. 2

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A. When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another sexual offense may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403. B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes. C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule. According to the defendants, La. Code of Evid. art. 412.2 contains a requirement that the trial court hold a Prieur hearing prior to trial to determine whether the other sex offenses sought to be introduced by the state are admissible at trial. Defendants complain that the lack of a pretrial hearing deprives their attorney of the ability to prepare a defense and can result in issues associated with ineffective assistance of counsel. In support of the former argument, defendants cite to an appellate case in which the court suggested Article 412.2 requires a Prieur hearing be held prior to the admissibility of the evidence. Defendants also contend that the legislative history of Article 412.2 reveals the legislature intended a pre-trial hearing as a requisite to admission of the evidence. First, defendants erroneously rely on a notation in a Fifth Circuit Court of Appeal unpublished writ grant with order. State v. Williams, 01-1124 (La. App. 5 th Cir. 12/4/02), Not Designated for Publication; writ denied, 02-0023 (La. 2/1/02), 807 So.2d 847. Defendants contend Williams stands for the proposition that evidence introduced pursuant to La. Code Evid. art. 412.2 must follow the Prieur requirements, i.e. a Prieur hearing must be held. Unpublished opinions and/or writ grants with orders should not be "cited, quoted or referred to," and therefore will not be
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considered by this Court. See Uniform Rules-Courts of Appeal 2-16.3. Next, defendants argue the legislative history demonstrates the legislature intended for a Prieur hearing to be held prior to trial to determine the admissibility of other crimes evidence. After review of the legislative committee hearing, we disagree with the defendants' contention. The transcript of the committee hearing reveals that Act 1130 was prompted primarily by two decisions of this Court, State v. McArthur, 97-2918 (La. 10/20/98), 719 So.2d 1037, and State v. Kennedy, 2000-1554 (La. 4/3/01), 803 So.2d 916. Both cases involved prosecutions for aggravated rape in which the state sought to introduce evidence of other sexual offenses committed by the defendants pursuant to what the state labeled a "lustful disposition" exception to other crimes evidence. In both cases, this Court refused to recognize the so-called "lustful disposition" exception to Article 404's other crimes prohibition, but, in doing so, noted that the evidence sought to be introduced would be admissible if Louisiana had a rule similar to Federal Rule of Evidence 413.2 The enactment of Article 412.2 was apparently the legislature's response to this Court's statements in McArthur and Kennedy as the language of Article 412.2 closely follows that of Federal Rule of Evidence 413.3 However, one

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Chief Justice Calogero, writing for the majority in Kennedy, explained: Writing for the court, Justice Victory cautioned in McArthur, "[u]nless and until the legislature changes our statutory law to follow Rule 413(a) of the Federal Rules of Evidence, we will continue to apply the law as it presently exists." McArthur, 972918, p.10, 719 So.2d at 1043. We therefore desist from the exhortation to legislate when our legislature has chosen to leave the law as written.

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Federal Rule of Evidence 413 provides, in pertinent part: (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. In a case in which the Government intends to offer evidence under this 4

(b)

distinction exists between the federal rule and the Louisiana rule. Federal Rule of Evidence 413 provides that the "defendant's commission of another offense or offenses of sexual assault is admissible , and may be considered for its bearing on any matter to which it is relevant." Conversely, Louisiana's counterpart, Article 412.2 provides that the evidence "may be admissible... subject to the balancing test provided in Article 403." Although the legislature opted not to make the evidence

automatically admissible, it nonetheless determined evidence of past sexual behavior of an accused should not be totally foreclosed to the state. Prior to Article 412.2, evidence pertaining to other crimes in sexual assault could only be admitted under the limited exceptions of 404(B). The committee minutes indicate the senators were concerned with the defendant's right not to be ambushed with evidence of prior sexually deviant behavior, but were even more concerned regarding the increase in sexual assaults on minors. In an attempt to balance the latter concerns, the committee inserted language into the final draft of the bill, which is in the current statute, requiring the state to provide "reasonable notice" to the defendant regarding the information to be introduced. The committee elected to insert this notice requirement, but did not insert a requirement that a hearing be held.4 La. Code Evid. art. 412.2 does not contain any language requiring a hearing.5 The only requirement contained within

rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or an such later time as the court may allow for good cause. See also La. Code Evid. Art. 412 which contains "other evidence exceptions." This article provides that evidence of past sexual behavior with persons other than the accused may be used in certain limited circumstances. However, the significant element of this article is that is does contain a hearing requirement. Subparagraph E provides that the "court shall order a hearing which shall be closed to determine if such evidence is admissible." It should be noted that other states, which have formally adopted the rules similar to Federal Rules Evidence 413 and 414, do not require a pretrial hearing to determine whether the evidence is admissible. See Cal. Evid. Code

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