Opinion
No. 2009 KA 0750.
October 23, 2009.
ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT NUMBER 477,341, PARISH OF TERREBONNE STATE OF LOUISIANA HONORABLE GEORGE J. LARKE, JUDGE.
Joseph L. Waitz, Jr., District Attorney, Ellen Daigle Doskey, Herbert Barnes, Assistant District Attorneys, Houma, Louisiana, Counsel for Appellee, State of Louisiana.
Bertha M. Hillman, Thibodaux, Louisiana, Counsel for Defendant-Appellant, Herman Paul Bella.
BEFORE: PARRO, KUHN, AND McDONALD, JJ.
The defendant, Herman Paul Bella, was charged by grand jury indictment with aggravated rape (count one) and aggravated oral sexual battery (count two), violations, respectively, of La.R.S. 14:42A(4) and former La.R.S. 14:43.4 (prior to its repeal by 2001 La. Acts, No. 301, § 2). The defendant entered a plea of not guilty. The jury found the defendant guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court imposed a sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count one and a sentence of twenty years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on count two, to be served consecutively. The defendant now appeals, assigning error to the trial court's acceptance of Dr. Jamie Hanna as an expert witness and to the trial court's denial of his challenge for cause of a prospective juror. For the following reasons, we affirm the convictions and sentences.
The defendant's motion for new trial was, in part, based on the issues presented on appeal.
STATEMENT OF FACTS
J.P., the victim, was born on April 18, 1990. When he was 11 months old, his mother, S.P., began a relationship with Darren Bella. Their relationship lasted approximately six years, during which time they had two children together, who are J.P.'s half-siblings. Darren Bella is the brother of the defendant.
In accordance with La.R.S. 46:1844W, the victim's identity will not be disclosed herein to protect his privacy.
Between 1995 and 1998, Rose Lirette, the mother of Herman and Darren Bella, often cared for J.P. and his half-siblings at her house in Gray, Louisiana. The children actually lived there part of the time because their mother worked at night. The defendant also lived at Rose's house while the children were living there. At the time, the victim considered the defendant's brother to be his father, referred to the defendant as his uncle, and referred to Rose as "Maw Maw" Rose.
According to J.P., the defendant sexually abused him when he was about six or seven years of age. The sexually abusive acts began while the victim was living in Terrebonne Parish at Rose's house and happened on five or six separate occasions during a period of approximately three months in 1997 and 1998. The acts included fondling, oral sex, and anal sexual intercourse.
In May of 2006, the victim was hospitalized and diagnosed with condyloma, a sexually transmitted disease, and Burkitt's lymphoma, a form of cancer qualifying as a diagnosis of AIDS. J.P. was 16 years old when he was diagnosed, which was about eight to nine years after the alleged sexual abuse took place. Following his initial diagnosis of HIV, J.P. disclosed to his mother the sexual abuse perpetrated on him by the defendant. His mother reported this to a social worker, who reported it to the police.
During the trial, the defendant denied any sexual activity with the victim, stating he did not know why the victim made the allegations. A physical examination and blood testing of the defendant was performed on February 13, 2007, at Chabert Medical Center. The results were consistent with but not a conclusive diagnosis of condyloma, and the HIV testing was positive.
ASSIGNMENT OF ERROR NUMBER ONE
In the first assignment of error, the defendant argues that the trial court erred in qualifying Dr. Hanna as an expert licensed physician in the field of pediatrics because she did not meet the criteria to be qualified as an expert witness in pediatrics. Dr. Hanna had not completed her residency in pediatrics at the time of the trial, and she testified that the average time for an untreated HIV infection to develop into AIDS is approximately eleven years. This testimony was in conflict with the testimony of the State's uncontested expert witness, Dr. Ronald Wilcox, who testified that it would be an average of five to seven years. The defendant notes that the State did not address the methodology used by Dr. Hanna in arriving at the aforementioned average and contends the conflicting testimony confused the jury. Finally, the defendant contends the admission of Dr. Hanna's testimony was not harmless since her estimate indicates that the victim could have become infected with HIV at the time of the instant offenses, while Dr. Wilcox's testimony suggests the victim was infected after the abuse in the instant case ceased.
Dr. Hanna is a licensed physician who received her medical degree at the University of Alabama School of Medicine in 2005. Dr. Hanna was also a resident at Louisiana State University from 2005 to the date of the trial in January 2008, practicing in pediatrics and psychiatry. Dr. Hanna had completed two years of her three-year residency requirement and planned to complete a two-year fellowship in psychiatry upon completion of her residency. The residency consisted of hospital work under another physician.
The State offered Dr. Hanna as an expert resident in pediatrics and child psychiatry. The defendant opposed the State's tender. The trial court removed the jury and held a Daubert hearing. The trial court noted that Dr. Hanna treated the victim, and it recognized Dr. Hanna as an expert in the general field of medicine, acknowledging her residency in the general field of pediatrics.
The trial judge has wide discretion in determining the competence of an expert witness, and his ruling on a witness's qualification will not be disturbed absent an abuse of that discretion. State v. Trahan, 576 So.2d 1, 8 (La. 1990). In State v. Foret, 628 So.2d 1116, 1121-23 (La. 1993), the Louisiana Supreme Court clarified the trial judge's role under La. Code Evid. art. 702, which provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The Foret court explained that the trial judge, in ruling on the admissibility of scientific evidence, performs a "gatekeeping function in balancing the probative value of the evidence against its prejudicial effect." Foret, 628 So.2d at 1123.
The Foret court adopted the guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-95, 113 S.Ct. 2786, 2796-98, 125 L.Ed.2d 469 (1993), for determining the reliability of expert scientific testimony. In Daubert, the United States Supreme Court set a new standard to assist federal district courts in evaluating the admissibility of expert testimony. The new standard required the district courts to perform a "gatekeeping" function to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. See State v. Chauvin, 2002-1188, p. 5 (La. 5/20/03), 846 So.2d 697, 700-01. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999), the United States Supreme Court held that the analysis established by Daubert is to be applied to determine the admissibility of all expert testimony, not just scientific testimony.
Daubert established the following non-exclusive factors to be considered by federal district courts to determine the admissibility of expert testimony: (1) the "testability" of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97. In Chauvin, the Louisiana supreme court characterized the Daubert factors as "observations" that provide a "helpful guide for our lower courts in considering this difficult issue." Chauvin, 2002-1188 at p. 5, 846 So.2d at 701.
In Cheairs v. State ex rel. Department of Transp. and Development, 2003-0680, p. 10 (La. 12/3/03), 861 So.2d 536, 542, the supreme court adopted a three-part inquiry to more fully assist district courts in determining all of the relevant issues related to the admissibility of expert testimony, with the Daubert analysis serving as one of the three prongs. This three-prong inquiry was first set forth in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998), in which the court stated that the admission of expert testimony is proper only if all three of the following things are true: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Harcros Chemicals, 158 F.3d at 562.
According to Dr. Hanna's testimony during the Daubert hearing, as a resident, she practiced as a licensed physician in patient care and hospitals. Dr. Hanna received training as a resident in the sub-specialties of general pediatrics and child psychiatry. She confirmed that she was in a position to give opinions regarding general medical information on the HIV virus and treatment and on condyloma. Dr. Hanna treated the victim in the field of pediatrics at the Children's Hospital. As noted by the defendant on appeal, Dr. Hanna testified that the average time it takes for untreated HIV to convert to AIDS is eleven years. She confirmed that she never examined the defendant or his medical records. She also admitted that she could not say with certainty that the victim contracted AIDS between 1996 and 1999, only that such a contraction was consistent with the AIDS-defining illness that the victim had and information provided by the victim. We do not find the differing opinions regarding the average time period for the conversion of untreated HIV to AIDS a determinative factor herein regarding Dr. Hanna's qualification as an expert witness on the subject. Considering Dr. Hanna's qualifications, methodology, and the assistance provided by her testimony, we find no abuse of the trial court's exercise of its broad discretion in its determination to allow Dr. Hanna to testify as an expert in general medicine and pediatrics. This assignment of error lacks merit.
ASSIGNMENT OF ERROR NUMBER TWO
In the second assignment of error, the defendant contends that the trial court erred in denying his challenge for cause against P.F., a potential juror. The defendant notes that P.F. did not reply when the trial court asked the jurors whether they had been a victim of a crime. The defendant further notes that P.F. later during the voir dire process disclosed that he had been molested as a child. The defendant argues that P.F.'s reluctance to come forward and his ultimate responses to questioning indicate a difficulty by him in setting the incident aside.
The State or the defendant may challenge a juror for cause on the ground that the juror is not impartial, whatever the cause of his partiality, or on the ground that the juror will not accept the law as given to him by the court. La. Code Crim. P. art. 797(2) (4). For a defendant to prove reversible error warranting reversal of both his conviction and sentence, he must establish the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. In this case, the defendant exhausted all his peremptory challenges. Prejudice is presumed when a defendant's challenge for cause is erroneously denied and the defendant exhausts all his peremptory challenges. An erroneous ruling depriving an accused of a peremptory challenge violates his substantial rights and constitutes reversible error. State v. Taylor, 2003-1834, pp. 5-6 (La. 5/25/04), 875 So.2d 58, 62. A challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the prospective juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment according to the law reasonably may be inferred. However, the trial court is vested with broad discretion in ruling on a challenge for cause; its ruling will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Henderson, 99-1945, p. 9 (La. App. 1st Cir. 6/23/00), 762 So.2d 747, 754, writ denied, 2000-2223 (La. 6/15/01), 793 So.2d 1235. A trial judge's refusal to excuse a prospective juror for cause is not an abuse of his discretion, notwithstanding that the juror has voiced an opinion seemingly prejudicial to the defense, when subsequently, on further inquiry or instruction, he has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Taylor, 2003-1834 at p. 6, 875 So.2d at 63.
The rule is now different at the federal level. See U.S. v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (exhaustion of peremptory challenges does not trigger automatic presumption of prejudice arising from trial court's erroneous denial of a cause challenge).
P.F. had a bachelor's degree in history and completed some graduate work on a master's degree in education. He was employed as an eighth grade teacher. In response to the State's inquiry as to whether the prospective jurors had any information to share related to the purpose of the voir dire, P.F. stated, "You asked — You didn't ask if anyone else had been molested." The State noted its hesitancy to ask that direct question. P.F. then revealed that he was molested but did not report it. The following colloquy took place between the State and P.F.:
MR. BARNES:
Thank you very much.
I guess the follow-up question to that is can you listen to the evidence in this case and make your decision solely on that evidence, not because of what happened to you but because of what happened as described by that evidence?
MR. P.F.:
I don't know.
MR. BARNES:
How long ago did this happen?
MR. P.F.:
Oh, this was a long time ago. This was like way over 30 years ago. I was under five.
MR. BARNES:
. . . All of us have to put aside sympathies when we're called for a jury, no matter what jury you serve on really . . . What the law says is you can't decide this case based on that sympathy, even though that sympathy for children was there, you've got to decide this case based on the evidence. So you've got to recognize the fact that you've got a sympathy or some feeling back there, but you've got to make a conscious decision that my decision is going to be based on the evidence, not on my sympathy and not on what happened to me.
Can you do that? Can you make that conscious decision to do that?
MR. P.F.:
I guess I could. I guess I could. I mean, if — I mean it's something just in the back of my head; but it certainly hasn't dominated my life for all these years.
The trial court further reiterated the requirement that the verdict be based on the evidence presented or the lack thereof. The trial court specifically asked P.F. if he could make a decision based on the facts of this case and P.F. stated, "I think I can do that."
In challenging this prospective juror for cause, the defense attorney admitted that P.F. would try desperately to be fair but noted that he was molested and that it occurred when he was near the same age as the victim was at the time of the alleged offenses. The State noted that the issue was addressed after P.F. volunteered the information, and P.F. clearly stated he could base his decision on the evidence of this case. The trial court agreed, noting that P.F. was honest, and concluded that based on his responses his ability to be a fair and impartial juror would not be affected.
Based on our review of P.F.'s responses, we find that the trial court did not abuse its broad discretion in denying the challenge for cause against P.F. Despite the uncertainty in his initial response, he subsequently demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. We find that his responses as a whole did not reveal facts from which bias, prejudice, or inability to render judgment according to the law could reasonably be inferred. This assignment of error lacks merit.
CONCLUSION
For these reasons, we affirm the defendant's convictions and sentences.