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STATE OF LOUISIANA VERSUS PAUL FERNANDEZ

NO. 03-KA-987 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 01-4573, DIVISION "E" HONORABLE GREG GERARD GUIDRY, JUDGE PRESIDING

DECEMBER 30, 2003

CLARENCE E. McMANUS JUDGE
Panel composed of Judges Edward A. Dufresne, Jr., Susan M. Chehardy and Clarence E. McManus

Paul D. Connick, Jr. District Attorney Juliet Clark Terry M. Boudreaux Kia Habisreitinger Assistant District Attorneys 100 Derbigny Street Gretna, Louisiana 70053 Counsel for State Frank G. DeSalvo 201 South Galvez Street New Orleans, Louisiana 70119 Counsel for defendant-appellant

CONVICTION AFFIRMED; REMANDED WITH INSTRUCTIONS

The Jefferson Parish District Attorney filed a bill of information charging defendant, Paul Fernandez, with sexual battery, a violation of LSA-R.S. 14:43.1, for acts allegedly committed on July 29, 2001. Defendant pled not guilty at the arraignment. The following facts were elicited at trial. S.M. and her husband, along with some friends, were at Studio II Lounge in Jefferson Parish.' S.M. was dancing
with one of her friends when she felt a man's hand brush her rear end. She looked

down and saw a man's hand coming from under her dress. Immediately thereafter, the man put his "full hand" in between her legs. S.M. looked around and saw only
one man, later identified as the defendant, near her. S.M. became very upset and

told her husband, who was nearby, what had happened. S.M's husband and another friend, Mark Jackson saw the defendant pulling his hand from underneath S.M.'s skirt. S.M's husband became very angry and started to confront the

As provided by LSA-R.S. 46:1844(W), the sex crime victim is identified by her initials.

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defendant, but S.M. and other friends restrained S.M.'s husband. S.M. then told
the disc jockey what had happened, and he recommended that she call the police.

After S.M. went to call the police, Mark, who was a St. Bernard Parish
detective, followed defendant into the restroom, where Mark overheard the defendant say that "her husband is no man." Mark testified that he told the defendant that the police were on the way. Deputy Brian Scheyler of the Jefferson

Parish Sheriff's Office responded between 3:00 and 4:00 a.m. Deputy Scheyler
testified that, after he interviewed the victim, he escorted the defendant outside of

the lounge, where Deputy Scheyler handcuffed the defendant. According to
Deputy Scheyler, no one came forward to tell a different version of the events on

the defendant's behalf. According to the victim's husband, while the defendant
was in the police car after he was arrested, the defendant threatened him and told

S.M. that he would rape her when he got out ofjail.
The defendant and several witnesses testified on his behalf. According to

the defendant, he met up with several friends at Studio II. He admitted that he might have accidentally bumped into S.M. while dancing on the crowded dance
floor, but denied that he had intentionally reached under her dress. The defendant

also said that S.M. bumped into him several times when she was "dancing wildly." The defendant said that he was dancing with Christine Chambers and another girl,
Trish, when he noticed that S.M. became angry. The defendant said that he was

unaware of any problem until the victim's husband and another man approached him and tried to start a fight.
Christine Chambers testified that she and her sister, Rebecca Castex, had seen the defendant earlier in the evening at Legends lounge. Before leaving Legends, Christine, Rebecca, and the defendant agreed to meet at Studio II.

According to Christine, they arrived separately at Studio II between 2:30 and 3:00 a.m. Christine testified that she and a group of three or four girls were dancing in a -3-

group with the defendant. Christine said that she saw the defendant as he was

escorted out of the lounge, but unaware that he had been arrested. Christine did
not see the defendant reach undemeath a woman's dress while they were dancing, nor did she see an altercation between the defendant and two men. Rebecca said

that she saw the defendant dancing with Christine and other friends, but she did not
see anything happen between the victim and the defendant. Both Rebecca and Christine subsequently leamed that the defendant had been arrested.

Chris Taylor, the defendant's nephew, and his date, Christina Leslie, were also at Studio II that moming. Both of them saw the defendant dancing with some
women. Christina saw a woman become upset, followed by an altercation between

the defendant and two men. Chris also saw the altercation, but neither Christina nor Chris saw the defendant reach undemeath a woman's skirt.
Finally, Nathan Bares, one of the defendant's co-workers at the Italian Pie,

saw the defendant that moming at Studio II. According to Nathan, the defendant was already there when Nathan arrived. The defendant was dancing with Christine
at the time, approximately one foot away. Nathan did not see the defendant reach

undemeath a woman's skirt. After trial, a six-person jury found defendant guilty as charged on August 20, 2002. On August 27, 2002, the trial judge sentenced defendant to three years at
hard labor without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR NUMBER ONE
Defendant claims that the prosecution in closing argument encouraged the
jury to convict him because he was a bad person in that he had been previously convicted of a felony. The State responds that the remarks were appropriate because they were in response to the defendant's closing argument. The defendant complains of the following comments made by the prosecutor

during rebuttal: -4-

Defense Counsel wants you to believe that the fact that he's a convicted felon is a plus. He's got a conviction for possession of a schedule two controlled dangerous substance, coke, cocaine, and that's a plus. That's not a plus. He wants you to believe that he came to court before and he pled guilty and therefore he's not guilty this time. This is an experienced individual. This is a man who has come to court. This is a man who has learned to lie. He's already been through the justice system. He's learned to lie. Now, the Judge is going to tell you when he reads the jury instructions in a few moments that you are the sole judge of the weight and credibility of the evidence. you [sic] are the sole individuals who can determine and judge the credibility of the defendant. If you chose not to believe an individual who is inconsistent with all of his witnesses, and who is a convicted drug offender, then you have the right to do that. . . .

The record reflects that the defendant did not object to these remarks. LSA-

C.Cr.P. art. 841(A) provides that "[a]n irregularity or error cannot be availed of
after verdict unless it was objected to at the time of occurrence." The purpose

behind this rule is to put the trial judge on notice of an alleged irregularity so that the problem may be cured by the judge, as well as to prevent the defendant from gambling on a favorable verdict and then resorting to appeal on errors that might
easily have been corrected by an objection. State v. Ware, 01-194, p. 14 (La. App.

5 Cir. 8/28/01), 795 So.2d 495, 504.
Nevertheless, this Court has addressed on appeal, a prosecutor's comments in closing argument even in the absence of an objection at trial by the defendant.

See, State v. Rochon, 98-717, pp. 5, 9 (La. App. 5 Cir. 3/10/99), 733 So.2d 624, 628, 630. Accordingly, we will address the prosecutor's comments. LSA-C.Cr.P. art. 774 defines the scope of argument and rebuttal:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

The argument shall not appeal to prejudice. The state's rebuttal shall be confined to answering the argument of the defendant.

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Nevertheless, a conviction is not reversed due to improper remarks during closing argument unless the reviewing court is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Snyder, 981078, pp. 17-18 (La. 4/14/99), 750 So.2d 832, 846, State v. Rochon, supra, at 630. Further, a prosecutor retains "considerable latitude" when making closing arguments. State v. Snyder, supra, quoting, State v. Taylor, 93-2201, p. 19 (La. 2/28/96), 669 So.2d 364, 374, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136

L.Ed.2d 106 (1996).
In the present case, the defendant admitted on direct examination that he had

previously pled guilty to possession of cocaine in 1997. In closing argument, the defense sought to bolster the defendant's credibility by pointing out that he had admitted his guilt in the prior conviction: And, you know, when Paul Fernandez first testified, what did I ask him? First thing I asked him, didn't you plead guilty to possession of cocaine? So the last time he was in court, he came in and told the judge he was guilty. This time he's telling you he's not guilty because he's not guilty. According to LSA-C.E. art. 609.1, a defendant's credibility may be tested
with evidence of prior convictions when a defendant chooses to testify. See, State

v. Johnson, 94-1379 (La. 11/27/95), 664 So.2d 94, 99. Accord, State v. Smothers, 02-277, p. 14 (La. App. 5 Cir. 12/30/02), 836 So.2d 559, 568, writ denied, 03-447 (La. 10/13/03), 855 So.2d 329. In State v. Davis, 02-2059 (La. App. 4 Cir.
1/22/03), 839 So.2d 176, the court held the prosecutor's reference to the defendant's prior convictions during closing argument was proper, when the
defendant testified on his own behalf at trial and admitted his prior convictions at

that time. In this case, the defense invited the jury in closing arguments to infer that the defendant was telling the truth because he had previously admitted his guilt when

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he pled guilty to possession of cocaine. The prosecutor's comment about the

defendant's prior conviction in rebuttal was in response to those remarks. Even if the prosecutor's comment that the defendant was a "man who has
learned to lie" was improper, it does not appear that the remark was so inflammatory or prejudicial as to necessitate reversal. In State v. Burge, 515 So.2d

494, 505 (La. App. 1 Cir. 1987), writ denied, 532 So.2d 112 (La. 1988), the court
held that the implicit characterization of defendant as "scum" by the prosecutor in closing argument, while inadvisable, was not so overwhelmingly inflammatory and
prejudicial as to require reversal of the defendant's conviction. The Louisiana Supreme Court has recognized that "much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the

arguments, and have been instructed repeatedly by the trial judge that arguments of counsel are not evidence." See, State v. Martin, 93-285, p. 18 (La. 10/17/94), 645

So.2d 190, 200, cert. denied, 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260
(1995). Here, the trial judge instructed the jury that the opening statements and
closing arguments of the attorneys were not to be considered as evidence.

Considering the prosecutor's remarks in context, we find that the bulk of the
remarks were in response to the defense's closing argument. Further, based on the jurisprudence, the references to the defendant as a "man who has learned to lie"

were not so inflammatory as to warrant reversal. Thus, we find the prosecutor's remarks were proper and we affirm the
defendant's conviction of sexual battery.

ASSIGNMENT OF ERROR NUMBER TWO
The defendant contends that his attorney was ineffective in failing to object to the prosecutor's remarks and to move for a mistrial thereafter. The State responds that the defendant was not prejudiced by his attorney's inaction because

the prosecutor's remarks were proper. -7-

Although claims of ineffective assistance of counsel are more appropriately addressed through an application for post conviction relief, it appears that this allegation may be readily addressed, since the record contains sufficient evidence

to decide the claims. See, State v. Snavely, 99-1223, p. 14 (La. App. 5 Cir.

4/12/00), 759 So.2d 950, 959, writ denied, 00-1439 (La. 2/16/01), 785 So.2d 840.
A defendant is entitled to effective assistance of counsel under the Sixth

Amendment to the United States Constitution and Article I,

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