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Date: 04-20-2017

Case Style:

STATE OF LOUISIANA v. ALEJANDRO BRAVO

Sex Offender

Case Number: 16-KA-562

Judge: Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg

Court: FIFTH CIRCUIT COURT OF APPEAL, STATE OF LOUISIANA

Plaintiff's Attorney: n

Paul D. Connick, Jr.
Terry M. Boudreaux
Andrea F. Long
Michael D. Smith, Jr.
Lindsay Truhe

Defendant's Attorney: n

Bruce G. Whittaker

Description: On March 9, 2013, K.O. asked her mother-in-law, S.M., to take care of her
young daughters, N.R. and V.O., so she could take her mother to a baby shower.1
N.R. was seven years old at that time. S.M. and defendant, her live-in boyfriend of
five years, picked up N.R. and V.O. from K.O.’s house and brought them back to
their apartment in Metairie. N.R. testified that she was sitting on the couch next to
defendant while S.M. was on a computer, located in the same room, searching for a
video they could watch. N.R. testified that defendant touched her on her vagina
and hurt her by putting his finger in her vagina. N.R. complained that this hurt and
defendant moved his hand away.
N.R. also testified that defendant touched her “private” before March 9,
2013. She remembered once that she and defendant were alone in the kitchen at
her grandmother’s house where she and her parents lived. N.R. stated she was
sitting on defendant’s lap at the kitchen table. N.R. testified that defendant
touched her “private spot” under her panties and that it hurt.
N.R. also recalled that another time, they were in the living room at her
great-grandmother’s home. She explained that her mother and father were on the
couch and that defendant was “doing it” under the blanket. N.R. said that
defendant did not hurt her that time. N.R. testified that it was hard to remember
every time defendant did this to her and every detail from when she was seven
years old; however, she noted that she would not lie about something so serious
and that she was telling the truth about the times defendant touched her.
S.M. testified that when they arrived at her apartment on March 9, 2013,
N.R. jumped onto defendant’s lap for a second, but S.M. told N.R. to get off. S.M.
recalled saying in her statement that N.R. then said, “Don’t touch my hooha,”
which meant “private” or “vagina” to N.R. S.M. testified that N.R. told her that
defendant had touched her several times before, but that N.R. told her that it did
not happen that day. S.M. also stated that defendant later told her nothing had
happened. S.M. said she then called K.O. and told her what N.R. said about
defendant touching her vagina. Afterward, S.M. took N.R. and V.O. home.
When N.R. arrived home, K.O.’s husband spoke to N.R. and based on that
conversation, K.O. decided to call 9-1-1. She explained that S.M. tried to stop her
and asked her to give defendant a week so he could run. While K.O. was calling 9
1-1, S.M. ran out of the door and got into her van. K.O. overheard S.M. telling
defendant on the phone to “get out now and run” because K.O. was calling the


16-KA-562 3
police. The police arrived at K.O’s home and after conducting interviews, they
instructed K.O. to bring N.R. to the emergency room at Children’s Hospital.
Sergeant Terri Danna of the Jefferson Parish Sheriff’s Office Juvenile Crime
Division testified that, on March 11, 2013, she was assigned to follow-up on the
investigation in the instant case. She further testified that she went to K.O.’s house
the next day and talked to K.O., who told her that she sent her daughters to her
mother-in-law’s apartment and that her mother-in-law called her later in the
afternoon to tell her that N.R. said that defendant touched her inappropriately.
Sergeant Danna then went into N.R.’s bedroom and spoke to N.R. alone. When
Sergeant Danna asked N.R. if she liked visiting S.M. and defendant, N.R.
responded affirmatively, but said that sometimes defendant “digs in my private
place and sometimes it hurts.”
Based on that information, Sergeant Danna scheduled an interview for N.R.
at the Jefferson Children’s Advocacy Center, which occurred on March 27, 2013.
Sergeant Danna monitored the interview in an adjacent office. She explained that
N.R.’s statements at the Advocacy Center were consistent with what N.R. told her
on March 12, 2013. Afterward, Sergeant Danna obtained an arrest warrant for
defendant; however, she was unable to arrest him because she could not find him.
She spoke to S.M., who said that defendant had moved and she did not know
where he went. Sergeant Danna was unable to locate defendant through his
employer and suspended the investigation pending defendant’s apprehension.
Defendant was eventually apprehended in Minnesota in May 2015.
Erika Dupepe testified that she was employed by the District Attorney’s
Office and assigned to the Advocacy Center. Ms. Dupepe conducted a videotaped
interview of N.R. at the Advocacy Center. In that videotaped interview, N.R.
explained that defendant put his finger in her vagina more than one time. N.R.
asserted that sometimes it happened in the kitchen at her house when she was


16-KA-562 4
sitting on his lap. N.R. explained that defendant was sitting on a chair at a table
and he touched her vagina under the table. N.R. stated that the last time it
happened was at S.M.’s apartment while they were sitting on the couch in the
living room. At that time, N.R. was sitting on defendant’s lap and S.M. was
looking at her computer. She stated that defendant “digged” in her vagina on the
couch.
Defendant testified that on the day of the alleged incident, he was sitting
with S.M. on the couch. S.M. told N.R. to pick up her toys, but she would not.
Defendant explained that N.R. stood up, came by him, and tried to sit on his lap,
but S.M. said, “No.” Defendant stated that N.R. kept walking, stood up by his
side, and said, “Why are you touching me?” He testified that he did not touch N.R.
inappropriately. Defendant said that S.M. screamed, “What did you say?,” and
N.R. said defendant touched her. Defendant recalled S.M. stating that was not true
and that she did not see anything. Afterward, S.M. brought N.R. to the bathroom
and then home.
Defendant testified that shortly thereafter, he received a call from S.M.
informing him that N.R.’s family called the police. Defendant was afraid and
called his friend, who picked him up. He claimed he was in Louisiana for
approximately six weeks, after which he left. Defendant stated that he got jobs in
New York and Minnesota, respectively, and stayed one year in each place.
Defendant claimed he left Louisiana because he had two daughters, one of whom
had many medical bills. Defendant testified that he never touched N.R.
inappropriately at any time and that he was never alone with N.R.
LAW AND DISCUSSION
In his first assignment of error, defendant argues the trial judge erred by
allowing the State to ask prospective jurors hypothetical questions during voir dire,
which sought a commitment regarding evidence and issues to be decided in the


16-KA-562 5
case. Defendant specifically objects to questions regarding (1) whether the
prospective jurors could rely on witness testimony in the absence of DNA
evidence; (2) whether the prospective jurors would expect there to be physical
evidence in a crime of a sexual nature and whether they would need such evidence
in order to find someone guilty as charged; (3) whether the prospective jurors
would be less likely to believe the victim in this case if the victim did not
immediately report the crime; and (4) whether the trial judge improperly asked a
prospective juror if she would be able to find a person guilty based upon the
testimony of one witness or one victim.
During voir dire, the State told the prospective jurors they would not hear
DNA evidence in this case and asked them whether they could rely on witness
testimony in the absence of DNA evidence. Defense counsel objected, arguing
that the State was getting into possible facts of the case. The trial judge overruled
the objection.
The record also reflects that later in voir dire, the State asked prospective
jurors whether in a crime of a sexual nature, they would expect to see physical
evidence, whether the prospective jurors would need physical evidence in order to
find someone guilty as charged, and whether anyone would expect there to be
DNA evidence in a sexual battery case where an adult touched a child’s penis. The
State also asked prospective jurors if the victim in this case did not immediately
report the crime, would that make them less likely to believe her. Defense counsel
did not lodge objections to any of these inquires.
Lastly, the record indicates that during a bench conference, the trial judge
asked whether there were any challenges for cause, and the State responded that it
was challenging Ms. Bodden, a prospective juror. The trial judge asked Ms.
Bodden to approach the bench and to confirm whether she said that she could not
find a defendant guilty based on the testimony of one witness or victim. Ms.


16-KA-562 6
Bodden confirmed that this was her position. The trial judge asked defense
counsel if he had any questions. Defense counsel stated that he objected to the
form of the question because there would be more than one witness testifying in
the instant matter, and the trial judge noted his objection.
In order to preserve the right to seek appellate review of an alleged trial
court error, the party alleging the error must state an objection contemporaneously
with the occurrence of the alleged error, as well as the grounds for that objection.
La. C.Cr.P. art. 841; State v. Gaal, 01-376 (La. App. 5 Cir. 10/17/01), 800 So.2d
938, 949, writ denied, 02-2335 (La. 10/3/03), 855 So.2d 294. The purpose behind
the contemporaneous objection rule is to put the trial judge on notice of an alleged
irregularity, allowing him the opportunity to make the proper ruling and correct
any claimed prejudice to the defendant. Id. Also, a defendant is limited to the
grounds for objection that he articulated in the trial court, and a new basis for the
objection may not be raised for the first time on appeal. State v. Taylor, 04-346
(La. App. 5 Cir. 10/26/04), 887 So.2d 589, 594.
In the instant case, the record indicates that defense counsel only lodged an
objection to the State’s inquiry as to whether the prospective jurors could rely on
witness testimony in the absence of DNA evidence. He did not lodge objections to
the State’s other inquiries regarding other physical evidence and the failure to
immediately report a crime, which he now raises on appeal.
Additionally, with respect to the trial judge’s question to Ms. Bodden, defense counsel only objected to the form of the question asked by the trial judge
based on counsel’s position that the hypothetical was inaccurate because more than
one witness was expected to testify at trial. On appeal, defendant now contends
the trial judge’s question was improper because his hypothetical sought a
commitment from the prospective juror on an issue to be decided at trial. This is
different from the ground raised during voir dire. Therefore, we find that


16-KA-562 7
defendant only preserved the first issue regarding the DNA evidence for appeal
and all other issues raised regarding the voir dire questions are waived.
The Sixth Amendment of the United States Constitution guarantees the
accused the right to a trial by an impartial jury. State v. Nelson, 09-807 (La. App.
5 Cir. 3/23/10), 39 So.3d 658, 661. Included in this right to an impartial jury is the
right to an adequate voir dire to identify unqualified jurors. United States v.
Beckner, 69 F.3d 1290, 1291 (5th Cir. 1995). Article I, § 17(A) of the Louisiana
Constitution grants a criminal defendant the right to a full and complete voir dire.
“The court, the state, and the defendant shall have the right to examine prospective
jurors.” La. C.Cr.P. art. 786. The purpose of voir dire is to give counsel the
opportunity to determine the qualifications of prospective jurors by testing their
competency and impartiality and to formulate reasons for cause and peremptory
challenges. State v. Ball, 00-2277 (La. 1/25/02), 824 So.2d 1089, 1110, cert.
denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002).
Although a court has discretion to restrict voir dire, it must nevertheless
afford the attorneys wide latitude in examining prospective jurors as a means of
giving effect to an accused’s right to a full voir dire. State v. Thibodeaux, 98-1673,
(La. 9/8/99), 750 So.2d 916, 924, cert. denied, 529 U.S. 1112, 120 S.Ct. 1969, 146
L.Ed.2d 800 (2000). It is permissible for voir dire questions to “reasonably
explore the juror’s potential prejudices, predispositions or misunderstandings
relevant to the central issues of the particular case.” State v. Duplessis, 457 So.2d
604, 606 (La. 1984). Nevertheless, Louisiana law provides that a party
interviewing a prospective juror may not ask a question or pose a hypothetical
which would demand a commitment or pre-judgment from the juror or which
would pry into the juror’s opinions about issues to be resolved in the case. Id.
The trial court is granted broad discretion in regulating the conduct of voir
dire, and its rulings will not be disturbed on appeal absent a clear showing of an


16-KA-562 8
abuse of discretion. La. C.Cr.P. art. 786; Ball, 824 So.2d at 1110. In evaluating
the fairness of the trial judge’s ruling, the entire voir dire examination should be
considered. State v. Housley, 05-502 (La. App. 5 Cir. 1/31/06), 922 So.2d 659,
662, writ denied, 06-1183 (La. 11/17/06), 942 So.2d 531.
In State v. Munson, 12-327 (La. App. 5 Cir. 4/10/13), 115 So.3d 6, writ
denied, 13-1083 (La. 11/22/13), 126 So.3d 476, during voir dire, the State
explained the law regarding convictions based on witness testimony alone without
corroborating physical evidence to prospective jurors. The State then questioned
prospective jurors about their ability to apply this law since it was a relevant issue
in the case. This Court found that the trial court did not allow improper
hypothetical questioning because the State did not seek to acquire any pre
judgment conclusions concerning the facts of the case. Id. at 13.
In State v. Mitchell, 13-426 (La. App. 3 Cir. 11/6/13), 125 So.3d 586, writ
denied, (La. 6/20/14), 141 So.3d 807, the State asked prospective jurors if they
could convict based on eyewitness testimony alone and defense counsel objected
on the grounds that the question was an improper hypothetical. The trial court
overruled the objection. On appeal, the Third Circuit found the State’s questions
were permissible in order to allow the State to determine whether the prospective
jurors could follow the law that a positive identification by a single witness was
sufficient to support a conviction. Id. at 598.
Also, in State v. George, 08-1115 (La. App. 4 Cir. 1/28/09), 4 So.3d 175,
179-180, the State told the jurors that no fingerprint evidence would be presented
and asked prospective jurors if they could return a guilty verdict if the State
proved the case beyond a reasonable doubt, but did not submit fingerprint
evidence. The Fourth Circuit concluded that such an inquiry was not improper and
did not violate the proper scope of voir dire. Id. at 179-80.


16-KA-562 9
In the instant case, the record reflects that during voir dire, the State told the
prospective jurors that they would not hear DNA evidence in this case and asked
them whether they could rely on witness testimony in the absence of DNA
evidence. Defense counsel objected, arguing that the State was getting into
possible facts of the case. Similar to Munson and George, supra, the State in the
instant case sought to evaluate the prospective jurors’ ability to apply the law
regarding witness testimony in the absence of DNA evidence.2 As such, we find
the State did not seek to acquire any pre-judgment conclusions concerning the facts
of the instant case and did not improperly allow hypothetical questioning.
Therefore, this assignment of error is without merit.
In his second assignment of error, defendant argues the trial judge erred by
denying his motion challenging the constitutionality of La. C.Cr.P. art. 782(A),
which provides that ten of twelve jurors must concur to render a verdict in cases
where punishment is necessarily confinement at hard labor. He further argues that
a non-unanimous verdict violates due process and the U.S. Sixth and Fourteenth
Amendments.
The State contends this claim should not be considered on appeal because
defendant did not raise the issue prior to trial, and further failed to object when the
trial court charged the jury on the voting requirements and when the jury returned
its verdict. The State further responds that defendant failed to serve the Louisiana
Attorney General with the motion he filed after trial. In addition, the record
contains no reference to or appearance by a representative of the Office of the
Louisiana Attorney General at the post-trial hearing.3 The State finally contends
that even if defendant properly preserved this issue for review, defendant would
2 La. C.Cr.P. art. 797(4) provides that the State or the defendant may challenge a juror for cause on the ground that the juror will not accept the law as given to him by the court. Under Louisiana law, in the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La. App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied, 05-2591 (La. 5/26/06), 930 So.2d 20.

3 La. C.C.P. art. 1880 provides that if a statute is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.


16-KA-562 10
still not be entitled to relief because the United States Supreme Court has
determined that the United States Constitution does not require unanimous jury
verdicts in felony criminal trials conducted in state court, and the argument has
similarly been rejected by numerous Louisiana courts.
The record indicates ten jurors found defendant guilty of sexual battery on a
victim under the age of thirteen years and two jurors found defendant not guilty.
Defendant did not challenge the constitutionality of La. C.Cr.P. art. 782(A) prior to
trial. Defendant did not object to the jury charge instructing the jurors regarding
the requirement that ten of the twelve jurors must concur to render a verdict.
Finally, defendant did not object to the verdict at the time it was rendered. Rather,
defendant challenged the constitutionality of La. C.Cr.P. art. 782(A) for the first
time in the motion he filed two weeks after the jury found him guilty as charged.
La. C.Cr.P. art. 841 provides that an error cannot be availed of after verdict
unless it was objected to at the time of the occurrence. In order to seek appellate
review of an alleged trial court error, a party must make a contemporaneous
objection at trial, and he must state the grounds for the objection. La. C.Cr.P. art.
841; State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 613-14,
writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030; Gaal, 800 So.2d at 949.
Furthermore, a post-conviction motion is not the proper procedural vehicle to
attack the constitutionality of La. C.Cr.P. art. 782(A). See State v. Ellis, 13-1401
(La. App. 4 Cir. 2/4/15), 161 So.3d 64, 82, writ denied, 15-489 (La. 1/15/16), 184
So.3d 704 (“The Louisiana Code of Criminal Procedure makes no provision for the
filing of a post-conviction motion to declare jury unanimity laws
unconstitutional.”)
In addition, the record indicates that defendant failed to serve or otherwise
notify the attorney general regarding the motion challenging the constitutionality
of La. C.Cr.P. art. 782(A). In State v. Veal, 11-44 (La. App. 5 Cir. 12/28/11), 83


16-KA-562 11
So.3d 211, 213-14, writ denied, 12-2373 (La. 4/5/13), 110 So.3d 1072, this Court
declined to address the merits of a similar assignment of error because defendant
did not serve the attorney general with his motion challenging the constitutionality
of the statute. Due to the failure to raise this issue prior to the verdict and the
failure to properly serve the attorney general, defendant is not entitled to review by
this Court.4

Outcome:

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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