
    STATE of Louisiana v. William SERIGNE & Lionel Serigne.
    No. 2014-KA-0379.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2016.
    
      James D. “Buddy” Caldwell, Attorney General, David Weilbaecher, Jr., Terri R. Lacy, Assistant Attorneys General, Baton Rouge, LA for Appellee, The State of Louisiana.
    Deborah A. Pearce, Deborah A. Pearce, LLC, New Orleans, LA, Michael C. Ginart, Jr., Ginart & Associates, Chalmette, LA, for Defendant/Appellant, Lionel Serigne, Jr.
    Edward Castaing, Jr., Crull Castaing & Lilly, New Orleans, LA, Rykert Toledano, Jr., Olivier Carriere, II, Toledano & Her-rin, Covington, LA, for Defendant/Appellant, William Serigne, Sr.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU).
   DANIEL L. DYSART, Judge.

11 After a bench trial, brothers, Lionel Serigne, Jr., and ■ William Serigne, Sr., were convicted of sex, crimes committed against juvenile family members. Lionel Serigne was convicted of the aggravated rape of his cousin, D.A., and was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. William Serigne was convicted of the forcible rape of his cousin, D.A.; the sexual battery of his niece, B.M.; and the aggravated incest of his daughter, M.S. He was sentenced to serve a total of forty-four years >at hard labor without benefit of parole, probation or suspension of sentence. The defendants now appeal their respective convictions and sentences.

For the reasons that follow, we reverse the convictions of both defendants, and remand these matters for separate new; trials.

BACKGROUND

In 2009, D.A., then age thirty-nine, came forward to authorities to report sex crimes committed by her first cousins, brothers Lionel and William Serigne. She reported that the crimes had taken place commencing over thirty years prior when Lshe was six years old and continuing through and until she was about twelve years old. She reported that a number of sexual acts were committed against her beginning with Lionel, who is eleven years older, and then followed by William, who is four years older. D.A. subsequently had conversations with her cousins B.M. and M.S., who .thereafter reported that sex crimes were committed against them by William Se-rigne, the uncle of B.M., and the father of M.S.

On April 7, 2010, Lionel Serigne was indicted on a single charge of violation of .La. R.S. 14:42 A(4), aggravated rape of a juvenile (D A.). The indictment read:

During the year 1981, [Lionel Serigne] committed aggravated rape upon a juvenile, where, the vaginal sexual intercourse is deemed to be without lawful consent of the victim, to-wit: The victim is under the age of twelve years, in violation of 1950’ La. R.S. 14:42 A(4).

Also in 2010, William Serigne was indicted on . three charges, aggravated rape during the year 1981(D.A.), sexual battery on or about October 31, 2004 (B.M.), and, aggravated incest during the year 1998 (M.S.). The indictment as to the charge of aggravated rape read: .

During the year of 1981, [William Se-rigne] committed aggravated rape upon a juvenile, where the oral sexual intercourse is deemed to be without lawful consent of the victim, to-wit: the victim is under the age of twelve years, in violation of 1950 La.R.S. 14:42 A(4).

The defendants filed variods motions including Motions to Quash and Motions for Bills of Párticular. On September 28, 2011, the State moved to amend |sboth of the indictments. Specifically, the State moved to amend Lionel Serigne’s indictment as follows:

[T]o substitute the date:- “Prior to the year 1981” for the terms: “ ‘on or about the day of ‘During the year 1981.’”

The motion to amend William Serigne’s indictment read:

[T]o substitute the date: “on or after March 28, 1981” for the terms: “ ‘on or about the day of .During the year 1981[.]” . ,

The State moved" to consolidate the indictments for trial. Also, in response to motions- in limine filed by defendants re-gar ding-- the State’s use of “other crimes” evidence, the State responded that until its motion to consolidate all matters for trial was granted, it could not state which “other crimes” would be before the trier of fact as part of its case in chief. The trial court denied the State’s motion to consolidate.

Being precluded from consolidating the two trials, the State convened a second grand jury and obtained a new indictment on May 30, 2012. This second indictment, which jointly indicted the defendants, added a new element of the charge of aggravated rape as to each defendant, and reflected different dates for the charged offenses. The indictment as to the aggravated rape charge against each defendant how read:

Count 1) That WILLIAM R. SE-RIGNE, SR., ... on or after March 28, 1981 until and throughout the year 1983, ... did commit aggravated rape upon D.A., date of birth December 27, 1970, by having sexual" intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the second offender being LIONEL" R. SERIGNE, JR.; when the victim was prevented front resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[J
J^Count 2) ... LIONEL R. SERIGNE, JR., ... between and including the years 1976 and 1983, did commit aggravated rape upon D.A., date of birth December 27, 1970, ... by having sexual intercourse with D.A.; by having sexual intercourse with D.A. when two offenders participated in the act, the’ second offender being WILLIAM R. SE-RIGNE, JR. [sic]; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE[.]

Additionally, William Serigne was indicted on three other charges:

Count 3) ... WILLIAM R. SERIGNE, SR., on or after March 28, 1981 until and throughout the year 1983, did commit aggravated rape upon. D.A., date of birth December 27, 1970, by having sexual intercourse with D.A.; when the victim was prevented from resisting the act from threats of great and immediate harm, in violation of LA R.S. 14:42, to-wit: AGGRAVATED RAPE,
Count ¡4) ... between October 22, 2004 and November 1, 2004, WILLIAM R. SERIGNE, SR., did commit a sexual battery of B.M., date of birth July 25, 1996, in violation of LA. R.S. 14:43.1, to wit: SEXUAL BATTERY, by fondling the genitals , of the minor victim,
Count 5) ,. during the years 1983[sic], 1994, 1995, 1996, 1997, 1998 and 1999, WILLIAM R. SERIGNE, SR., did commit aggravated incest upon his biological daughter, M.S., date of birth October 19, 1987, by lewd fondling or touching, and engaging in.sexual acts with M.S., including in the alternative, sexual battery, molestation of a juvenile and other prohibited sexual activity considered a crime under the laws of the State of Louisiana, all in violation of LA. R.S. 14:78.1, to-wit: AGGRAVATED INCEST. . .

Prior to trial, each defendant filed a motion to sever parties and for severance of offenses. The trial court denied the motions (joint participation was now charged in Counts 1 and 2 of the .indictment), and the case proceeded to' trial. Lionel Serigne re-urged his motion to sever on the first day of trial before any witnesses were sworn. His motion again was denied. After D.A. testified, defense | ^counsel for both defendants moved for a mistrial and again urged a motion to sever, this time based on the fact that D.A. testified that the defendants did -not participate together in any act of sexual intercourse. Both motions were denied.

At the close of the State’s case, defense counsel re-urged the motions to sever the parties and the offenses. It was argued that D.A. stated unequivocally that Lionel Serigne and William Serigne did not participate together in connection with the alleged rapes, thus disproving the State’s charge pursuant to La. R.S. 14:42 A(5), which was the sole basis for the defendants being tried together. Although the motions were not entitled “Motion to Quash,” the re-urged motions to sever nonetheless had the same substantive complaint.

Counsel for both defendants also argued for a mistrial based on the fact that the indictment contained a charge, specifically violation of La. R.S. 14:42 A(5), that was not substantiated by the trial testimony. They requested that the trial court do an in camera inspection of D.A.’s grand jury testimony in light of the fact that her trial testimony revealed that Lionel Serigne and William Serigne did not participate together in any alleged rape of D.A.. The trial court denied both the defense’s request to review the grand jury testimony and the motion for mistrial.

On November 8, 2013, the trial court found William Serigne guilty on counts 1, 4 and 5. He was found not guilty on count 3. Lionel Serigne was found guilty on count 2 of the indictment.

In ruling on the counts of the indictment the trial court stated:

Count 1 before the Court is the defendant William Serigne, Sr., charged with aggravated rape pursuant to |fiLouisiana Revised Statute 14:42 of [D.A.] based on the victim being under the age of twelve. The Court finds beyond a reasonable doubt the defendant is guilty.
Count 2 before the Court is the defendant Lionel Serigne, Jr., charged with aggravated rape pursuant to Louisiana Revised Statute 14:42 of [DA] based on the victim being under the age of twelve. The Court [sic] beyonds [sic] a reasonable doubt the defendant is guilty.
Count 3 before the court is William Se-rigne, Sr. charged with a second count of aggravated rape of [D.A.]. The Court finds the defendant not guilty on the second count.
Court [sic] 4 before the Court is William Serigne, Sr., charged with a sexual battery pursuant to Louisiana Revised Statute 14:43.1 of a minor. The Court finds beyond a reasonable doubt the defendant is guilty.
Counsel [sic] before the Court is William Serigne, Sr., charged with aggravated incest pursuant to Louisiana Revised Statute 14:78.1, the Court finds beyond a reasonable doubt the defendant is guilty.

On its own motion, on November 22, 2013, the trial court amended its verdict on count 1, finding William Serigne guilty of the lesser and included offense of forcible rape. In its written reasons for amending the verdict, the trial court stated:

The court finds that the testimony of the victim proved that the sexual contact progressed throughout the years and got more severe until it finally reached full sexual penetration. At the end of the progression of sexual contact, the victim was at least' 12 years old and maybe. 13 years old and the defendant was 17 years old and possibly 18 years old. After years of forcing sexual contact with the victim including forcing the victim to have oral sex, defendant finally progressed to forcing the victim’s vagina onto his penis and penetrating her. The defendant’s years of physically forcing himself upon this young victim caused the victim to realize that her resistance would not be successful. The victim’s attempts of resistance were overcome by force and the defendant always got what he wanted and he always made sure he used enough force to accomplish his sexual |7acts (sexual touching, oral sexual contact, sexual penetration).
Due to the age of the victim and her lack of capacity to understand the sexual acts and the physical force used by the defendant over the course of three years the victim learned that her resistance to sexual conduct was unsuccessful. The sexual contact finally culminated by the defendant forcefully holding the victim with two hands and placing down hard enough to allow his penis to penetrate her vagina. This penetration occurred without the consent of the victim and with the victim’s resistance being met with force, which force was overcome on this occasion as happened on so many previous occasions.
The defendant turned 17 years of age on March 22, 1983. The court finds beyond a reasonable doubt that after the defendant turned 17 years of age he committed a sexual act involving vaginal penetration upon the victim, D.A., who was at least 12 years of age. The victim did not give her consent to the sexual intercourse and her resistance to the penetration was overcome by force of the physical actions of the defendant on the day of the rape and by the years of the defendant overcoming her with force making sure the victim knew her resistance to any and all sexual acts would do no good.

Following the verdict, the defense again filed motions to review D.A.’s grand jury testimony to demonstrate perjury, impeachment arid/or non-disclosure of exculpatory material, and to again argue that the motions to sever should have been granted. All defense motions were denied.

Following oral argument in this appeal, this Court ordered the State to produce D.A,’s grand jury testimony taken prior to the 2010 indictments and prior to the 2012 indictments. The requested transcripts were provided to this Court under seal.

Lionel Serigne raises four assignments of error; however, as we find he is entitled to a new trial based on an error patent, we pretermit discussion of them. |sWilIiam Serigne also raises four ■ assignments of error, two of which address the trial court’s denial of motions for severance and a motion for new trial. As we find the trial court erred in jointly trying Lionel and William Serigne together, entitling William Serigne to -a new trial, we preter-mit discussion of his other assignments of error.

DISCUSSION

Error Patent:

We find that binding Supreme Court and Fourth Circuit precedent requires a finding of reversible patent error as Lionel Serigne was charged by indictment with a capital offense, and he was therefore precluded from waiving a- jury trial.

On May 30, 2012, Lionel "Serigne was indicted for the aggravated rape of D.A. “between and including the years 1976 and 1983.”

The Louisiana Constitution of 1974, Article 1, § 17(A), requires that “[a] criminal case in which punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.” La. Const. Art. I, § 17; accord La.Code Crim. Proc. art. 782. Section 17 and Article' 782 specifically state that the jury cannot be knowingly and intelligently waived in a capital case.

Pursuant to La. R.S. 14:42, from the start date charged in the indictment, January 1, 1976, ■ through September 8, 1977, only the death penalty was available 'for those charged, with aggravated rape. The statute provided in pertinent part:

Whoever commits the crime of aggravated rapé shall be’punished by death.

During the.time span- of the indictment, the U.S. Supreme Court held the death penalty for rape to be unconstitutional. Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976). Thereafter, effective September 9, 1977, the Louisiana State Legislature amended La. R.S. 14:42 to provide that,

“[w]hoever commits the crime of aggravated rape- shall punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

La. Acts 1977, No. 343.

In State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), the Court considered the effect on Louisiana law of the United States Supreme Court’s 1972 decision in Furman that invalidated the death penalty. The State argued that Furman “declassified” all former capital cases and thus none of the capital rules of proceeding applied. The Court disagreed, holding;

[W]e conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Furman) interpret Article 7, Section 41 of the Louisiana Constitution as referring to classes of crimes, and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict. Id'. at 209 (adopting “classification” theory).

See State v. Flood, 263 La. 700, 269 So.2d 212, 213-14 (1972) (refusing to ignore constitutional capital case classification provisions simply because Furman was decided; “[tjhose offenses classified as capital before Furman are still classified as capital offenses”). See also State v. Whatley, 320 So.2d 123, 125 (La.1975) (rejecting defendant’s claim that Furman declassified first degree murder from being a capital offense and that he could not be tried as an adult); State v. Lott, 325 So.2d 576, 578-79 (La.1976) (no waiver of jury or unanimous verdict permitted in Imtrial of 1972 murder, even though Furman had invalidated use of the death penalty).

Applying Holmes, we find its holding applies equally to aggravated rape for which the statutory .penalty remained death through September 9, 1977. State v. Rhymes, 284 So.2d 923, -924-25 (La. 1974). The capital classification and rules of proceeding were also applied to a 1972 aggravated rape that predated the 1973 criminal code amendments that reinvigorated Louisiana’s ability to execute the death penalty postrFurman. State v. Hunter, 306 So.2d 710, 711-12 (La.1975) (Justice Calogero writing and noting the majority’s continued adherence to the Holmes rule, id. 711, n. 1). Hunter illustrates the reasoning of such application: Whereas Furman judicially invalidated the application-of the death penalty, the Louisiana Legislature’s intent that serious crimes (first degree murder, aggravated rape) should be punished by death remained- firm, and, therefore, so did its conviction that these serious allegations deserved capital safeguards. Post-Fur-man, the Legislature took steps to make its desired penalty (death) again enforceable. Thus, the judicial intervention neither affected nor reflected the Legislature’s statement and intent on these crimes’ classification as “serious” and in need of capital case safeguards to ensure a fair trial. ;

In State v. Davies, 350 So.2d 586, 589 (La.1977), the Court expressly stated that at' the time of the alleged crime, March 1976, “the offense of aggravated rape was classified as a capital offense.” 'Id. (citing Rhymes and Holmes). In State v. McZeal, 352 So.2d 592, 604 (La.1977), an alleged October 1974 aggravated rape also was deemed subject to the capital rules of proceeding. Subsequent Supreme Court precedent continued to enforce Holmes for aggravated rapes alleged to have occurred prior to the September 9, 1977 amendment to La. R.S. 14:42. In a thorough opinion, the Court ia-State v. Rich, 368 So.2d 1083, 1084-85 (La.1979), found reversible error patent when the trial of an alleged August 31, 1977 aggravated rape did not result in a unanimous verdict. In State v. Williams, the Court reaffirmed its holding in Rich and rejected an aberrational holding in State v. Carter, 362 So.2d 610, 512-15 (La.1978). Carter attempted to distinguish McZeal on the basis that, by the time of trial, the Legislature’s September 9, 1977 amendment had become effective; in other words, it attempted to treat the statutory change in punishment as a procedural change with retroactive effect. Id. at 513-14. In Williams, the Supreme Court overruled Carter’s holding, stating:

The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict. Williams, 372 So.2d 559, 560 (La.1979).

Therefore, applying the above precedent to the facts of this case, the indictment start date of January 1, 1976, clearly places the charge against Lionel Serigne into the capital case classification. See e.g. State v. Breaux, 08-1061, pp. 9-10 (La. App. 3 Cir.4/1/09), 6 So.3d 982, 989 (La. App. 3 Cir.2009) (reversible error patent for failure to follow unanimous verdict capital rule where indictment 112alleged aggravated rape timeframe that spanned before and after the September 9, 1977 statutory change). The United States Supreme Court’s July 6, 1976 invalidation of the death penalty for rape in Selman neither affected this legislative classification nor application of the capital rules of proceeding. See Davies, 350 So.2d at 589 (Sel-man ’s invalidation of the death penalty has no effect upon our Legislature’s classification of aggravated rape as a capital crime for purposes of Louisiana law.); McZeal, 352 So.2d at 604-05 Rejecting State’s position that post-Selman, the alleged 1974 rape became “de-capitalized,” and holding capital rules of proceeding apply to crime classified as capital at the time it allegedly occurred); Rich, 368 So.2d at 1084 (accord).

As the Court in McZeal stated:

“The Constitution of the state has provided different tribunals for the trial of capital offenses, offenses necessarily punishable by imprisonment at hard labor, etc., and such procedure necessarily constitutes due process of law, and cannot be changed in any class of cases by a mere act of the Legislature.” Id. at 600. It follows, therefore, that the defendant’s right to all of the procedural safeguards which accompany a capital charge remained intact. These necessarily included his right to be tried before a jury of twelve, all of whom must concur to render a verdict, and his right to have quashed an indictment joining this offense with another offense not triable by the same mode of trial. Consequently, the misjoinder of offenses in this case was not cured or rendered benign by Selman. ... “[T]he error must be recognized as ‘prejudicial to the substantive rights of the accused (and) a substantial violation of a ... statutory right.’ ” Id. at 605 (second ellipses original).

Notably, in McZeal, a unanimous jury convicted the defendant of aggravated rape (the error occurred in the joinder of a non-capital offense with the aggravated rape charge). Here, Lionel Serigne had no jury to render any verdict. Louisiana Constitution Article 1, § 17 and La.Code Crim. Proc. art. 782 require that all [iacapital cases “shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.” (Emphasis supplied). Likewise, the waiver of the jury is strictly forbidden in capital cases. Thus, Lionel Serigne’s “agreement” to a bench trial was not “knowing and intelligent” and the resulting judge decision is “invalid and illegal” Id.; see Lott, supra; State v. Davenport, 13-1859,: p. 20 (La.5/7/14), 147 So.3d 137, 150; State v. Porter, 176 La. 673,146 So. 465 (La.1933).

The State argues that the United States Supreme Court’s ruling in 1976 declaring the death penalty for aggravated rape unconstitutional, and the 1977 amendment to La. R.S. 14:42 providing that the penalty for aggravated rape was life imprisonment, created a circumstance where only one year of the timespan (1976) charged in the indictment fell into the realm of a capital offense. The State therefore argues that the change in the law permits the State to choose between trying the case as either a capital or a non-capital offense. In support of this position, the State cites to State v. Hypolite, 13-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687, writ denied, 14-1242 (La.1/23/15), 159 So.3d 1056, arguing that Goodley, 398 So.2d 1068 (La.1981)(re-versible error when first degree murder charge resulted in non-unanimous responsive verdict of manslaughter) is no longer controlling.

Hypolite did not involve a question of waiver of a jury. Rather, it dismissed the defendant’s argument as to the constitutionality of Louisiana’s scheme of allowing non-unanimous jury verdicts in cases where life imprisonment must be imposed. The Third Circuit did not consider the assignment of error, as the defendant had not raised it in the lower court. Id., 13-1365, p. 25, 139 So.3d at 704. That is not the issue facing this Court on review.

| ^Further, Goodley has not been overturned and thus remains our authority. We adhere to the Supreme Court’s consistent analysis and review of this issue, which extends from Holmes through Good-ley in its determination that La. R.S. 14:42 turns upon the determination of when the offense is alleged to have occurred in the indictment. As Justice Crichton observed, “It is imperitive to note that the bill of information sets the parameters and dictates the mode of trial.” State v. Dahlem, 14-1555 (La.3/15/16), — So.3d ——, 2016 WL 1048578.

The Constitution and law of this state require capital/non-capital decisions to be made before a case is tried. La. Const. Art. I, § 17; La.Code Crim. Proc. art. 782, cmt. (c); Goodley, 398 So.2d at 1070-71. The classification cannot be an after-the-fact assessment. Therefore, we find the State was bound to follow the rules of procedure in a capital case.

Sufficiency of the Evidence:

Both defendants argue on appeal that there was insufficient evidence to convict them. When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55 (citing State v. Hearold, 603 So.2d 731, 734 (La.1992).

In this case, however, we decline to review the record as to Lionel Serigne for sufficiency of the evidence, as we con-sidér the patent error to be a structural defect, which is a “deféct affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural errors infect the entire trial process and necessarily render a trial fundamentally unfair; they deprive a defendant of basic protections, without which a criminal trial cannot reliably serve its function as a |isvehicle for the determination of guilt or innocence. See Neder v. U.S,, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also State v. Ruiz, 06-1755, p. 6 (La.4/11/07), 955, So.2d 81, 85. Structural errors are subject to automatic reversal, and therefore harmless error analysis is inapplicable. See Neder, 527 U.S. at 8, 119 S.Ct. 1827; Fulminante, 499 U.S. at 309, 111' S.Ct. 1246; see also State v. Langley, 06-1041, pp. 12-13 (La.5/22/07), 958 So.2d 1160, 1168 (“[A] structural error, by.its very nature, impacts the entire framework of the trial from beginning to end, without reference to any other trial consideration.”).

Therefore,- if the trial has been infected with a structural error, there has been no verdict within the meaning of the Sixth Amendment. See Sullivan v. Louisiana, 508 U.S. 275, 280, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (“There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless.”) (rejecting harmless error analysis for structural error),

A verdict rendered contrary to constitutional or statutory authority is invalid and illegal. See State v. Davenport, 13-1859, p. 20 (La.5/7/14), 147 So.3d 137, 150 (citing State v. Goodley, 423 So.2d 648, 650 (La.1982)). A criminal defendant has no right to an unlawful verdict, nor can he expect that such a verdict will be given effect. See id. (citing State v. Givens, 403 So.2d 65, 67 (La.1981)). As such, where a case presents a structural error, the verdict is without effect, whether it is a verdict of guilty or a verdict of acquittal. See id., 13-1859, p. 21, 147 So.3d at 150 (“[A]n illegal verdict acts as neither an acquittal nor a|,«conviction”) (citing State v. Campbell, 95-1409, p. 5 (La.3/22/96), 670 So.2d 1212, 1214); see also State v. Mayeux, 498 So.2d 701, 705 (La.1986) (jury verdict containing nonwaivable defect operates as neither a conviction nor an acquittal).

As , a general rule, the Double Jeopardy Clause of both the federal and Louisiana constitutions protects a defendant “against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998); U.S. Const. Amend. V. See also Davenport, 13-1859, p. 7, 147 So.3d at 142; La. Const. art. I, § 15; La.Code Crim. Proc. art. 591.

But, if there has been no legal verdict, a defendant is not placed in jeopardy. See Langley, 06-1041, p. 15, 958 So.2d at 1169.' (“Consequently, where there was no structural error or jurisdictional defect, there is no basis whatsoever for concluding that the trial ... should be given no effect in a double jeopardy analysis.”). This follows from thé premise that any verdict, whether a conviction or ah acquittal, is without effect. See Davenport, 13-1859, p. 20, 147 So.3d at 150. Cf Evans v. Michigan, — U.S. -—, 133 5.Ct. 1069,185 L.Ed.2d 124 (2013) (finding that a verdict of acquittal is unreviewable and bars retrial even if based on erroneous evidentiary rulings or erroneous interpretations of governing legal principles).

An examination of La.Code Crim. Proc. art. 595 supports this view. Article 595 provides that “A person shall not be considered as having been in jeopardy in a trial in which ... [t]he court was illegally constituted or lacked jurisdiction.” La. Code Crim. Proc. art. 595(1). An “illegally constituted” court includes cases 117where a verdict was rendered by an unlawful number of jurors. See Goodley, 423 So.2d at 650 (verdict of 10-2 in trial for capital murder which required unanimity was invalid and no jeopardy attached); State v. Gros, 204 La. 705, 16 So.2d 238, 239-40 (La.1943) (trial and conviction by jury of twelve .when should have been by jury of five was not legally constituted; defendant not put in jeopardy); see also State v. Kent, 262 La. 695, 264 So.2d 611, 614 (La.1972) (“Article 595 is meant to be illustrative of non-jeopardy proceedings in trials, setting out examples of frequent bases for dismissal of a prior proceeding where the defendant has not been placed in ‘danger’....”).

We find that Lionel Serigne’s case falls within the meaning of an illegally constituted court under the foregoing jurisprudence, thus rendering the verdict null and void. Likewise,' structural error occurred when Mr. Serigne was tried without a jury, of twelve, all of whom had to concur to reach a verdict, as required by Louisiana law. See Sullivan, 508 U.S. at 281-82, 113 S.Ct. 2078 (“The right to trial by jury reflects, we have said, ‘a profound judgment about the way in which law should be enforced and justice administered’ ;., The deprivation of that right, with consequences that áre "necessarily unquantifiable and indeterminate, unquestionably- qualifies as ‘structural error.’”).

Accordingly, a review for the sufficiency of the evidence cannot be undertaken in a case where no valid verdict has been rendered when a -reviewing court’s two options are to either uphold the .verdict or to legally acquit. See generally State v. Hearold, 603 So.2d 731, 734 (La.1992) (Appellate courts should review sufficiency of the evidence claim first because an accused may be entitled to an acquittal). See , also Sullivan, 508 U.S. at 280, 113 S.Ct. 2078 (Where there has been 118no verdict within the meaning of the Sixth Amendment, “[t]here is no object, so to speak, upon which harmless-error scrutiny can operate.”) (emphasis in original).

We how review the evidence adduced at trial relative to William 'Se-rigne. Th'e standard to' be used when reviewing the sufficiency of the evidence to uphold -a conviction is whether or not, viewing, the evidence in the light most favorable to the prosecution, a rational trier of fact could conclude that the State proved all of the essential elements of the crime charged beyond a reasonable doubt. Marcantel, 00-1629, p. 8 (La.4/3/02), 815 So.2d 50, 55-56 (citing La.Code‘ Crim. Proc. art. 821; State v. Hampton, 98-0331, p. 13 (La.4/23/99), 750 So.2d 867, 880, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999)). The standard is an objective one that tests the overall evi-. dence, both direct and circumstantial, for reasonable doubt. Louisiana Revised Statute 15:438 provides that the fact finder, when analyzing circumstantial evidence, must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. Marcantel, supra (citing State v. Mitchell, 99-3342, p. 7 (La.10/17/00), 772 So.2d 78, 83.

The testimony of a single victim or witness alone is usually sufficient to support a verdict, as appellate courts will not second-guess credibility determinations by the fact finder beyond the constitutional standard of sufficiency. State v. Dorsey, 10-0216, p. 43 (La.9/7/11), 74 So.3d 603, 634 (citing State v. Davis, 02-1043, p. 3 (La.6/27/03), 848 So.2d 557, 559).

The requirement that the evidence be viewed in the light most favorable to the prosecution obliges the reviewing court to defer to “[t]he actual trier of fact’s rational credibility calls, evidence weighing and inference drawing.” State v. Mussall, 523 So.2d 1305, 1311 (La.1988). It is not the duty of the reviewing court 119“to decide whether it believes the witnesses or whether the conviction is. contrary to the weight of the evidence.” Id.

Courts have recognized that in sexual abuse cases that continue over time, exact dates often cannot be supplied. State v. Mazique, 09-845, p. 12, fn. 10 (La.App. 5 Cir. 4/27/10), 40 So.3d 224, 234 (citing State v. Bolden, 03-0266 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050).

1. Sufficiency of the Evidence as to Forcible Rape ofD.A.

William Serigne was charged by indictment with the aggravated rape of D.A. on or after March 28, 1981 through the end of 1983.. He too was charged with having sexual intercourse with a child under the age of twelve, and that he and Lionel Serigne had jointly participated in the act. At trial, D.A. was shown a photo from January 1983, when she was twelve years old. . She testified that William Se-rigne raped her sometime between 1981 and 1983. D.A. testified that both defendants stopped sexually molesting her sometime in 1984. William* Serigne denies that he ever molested or raped D.A. He argues that D.A.’s testimony was inconsistent with her earlier statements and actions.

The trial judge found him guilty as charged on November 8, 2013, but issued a written amended verdict on November 22, 2013, finding William Serigne guilty 'of the lesser and included offense of forcible rape, a violation of La. R.S. 14:42.1. The trial court stated that the evidence failed to show that D.A. was under the age of twelve at 'the time of the offense,' which was the only applicable aggravating circumstance in the aggravated rape statute during the relevant time period.

12f)La, R.S. 14:42.1, as in effect from September 8, 1978, through 1983, provided in pertinent part:

Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

In the trial court’s written reasons for amending its verdict from aggravated rape to forcible rape, it stated:

The court finds that the testimony of the victim proved that the sexual contact progressed throughout the years and got more severe until it finally reached full sexual penetration.

Again, applying the standard of review, we cannot say that the trial court was in error in finding William Serigne guilty of forcible rape. .

2. Sufficiency of the Evidence as to Aggravated Incest of M.S.

In this assignment William Se-rigne argues that the evidence was insufficient to support his conviction for the aggravated incest of his daughter, M.S.

Count 5 of the indictment charged that William Serigne committed aggravated incest upon his biological daughter, M.S., “during the years 1983, 1994, 1995, 1996, 1997,1998 and 1999.”

The crime of aggravated incest, La. R.S. 14:78.1, was added to the Louisiana Criminal Code in 1993, by Acts 1993, No. 525, § 1, eff. June 10,1993. At the time it was enacted through 1999, the statute provided in pertinent part that:

| ⅞1 A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as ... biological child_
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, second degree sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity, constituting a crime under the laws of this state.
(3) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

William Serigne’s argument as to sufficiency is directed to M.S.’s credibility. M.S. testified that her father molested her/sexually abused her from when she was age five or six until she was twelve years old.

Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that at least one time during 1994-1999, William Serigne engaged in lewd fondling or touching of M.S. that was done with the intent to arouse his own sexual desires.

3. Sufficiency of the Evidence as to the Sexual Battery ofBM.

In this assignment, William Serigne argues that the evidence was insufficient to convict him of committing sexual battery on his niece, B.M., who was born July 25, 1996, by fondling her genitals between October 22, 2004 and November 1, 2004.

At the pertinent time, La. R.S. 14:43.1 provided, in part:

A. Sexual battery is the intentional engaging in any of the following acts, with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse ofj^the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus' or genitals of the victim by the offender using any instrumentality or any part of the .body of the offender; or
(2) The touching of the anus or- genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
B. Lack of knowledge of the victim’s age shall not be a defense. However, where the, victim is under seventeen, normal medical treatment or normal sanitary care of an infant shall not be construed as an offense under the provisions of this Section.

B.M., who was in eleventh grade at the time of trial, recalled having gone to a Halloween party at her aunt’s home in 2004, when she was eight years old. She testified that her parents gave William Serigne a ride home. She testified that he carried her to the car and sat her in his lap in the back seat. During the drive, she fell asleep and awoke to William Serigne touching her on her vagina, under .her clothes.

In 2010, when she was fourteen, B.M. met with Detective Rogers of the St Bernard Parish Sheriff’s Office. At trial, B.M. was shown her prior statement to Detective Rogers. In the statement, when asked whether William Serigne had touched her over or under her shorts or underwear, she- had replied: “I don’t know. I think it was under.” At trial she said she had not been siire when she made that statement, and she had been nervous or had not known how to verbalize it. B.M. had also stated that the touching had occurred for only- a few seconds.

As stated above, this Court is not to review the credibility of the witness’s testimony; therefore, viewing all- the evidence in a light most favorable to the prosecution,' a- rational trier of fact could have found beyond a reasonable doubt that William Serigne inappropriately touched M.S. in 2004.

| ^William Serigne’s Motion to Sever; Misjoinder:

Having found that Lionel Se-rigne was mandated to have been tried by a jury, we must consider now the effect of trying William Serigne, all of whose charges were triable by either judge or jury, in a joint trial with Lionel Serigne.

Louisiana Code of Criminal Procedure art. 494 provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the samé act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of- the defendants need not be charged in each count. •

In the case of misjoinder of offenses, “[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or bill of information or by such joinder for trial together, the court may order separate trials, grant a severance of offenses, or .provide whatever other relief justice requires.”- La.Code Crim. Proc. art. 495.1.

This Court reviews de novo questions of joinder. Further, federal authorities are persuasive. See State v. Patout, 00-2241, p. 39 (La.App. 4 Cir. 2/13/02), 812 So.2d 702, 721. The Court may examine the indictment’s language and the trial evidence. Id.

| ¾As discussed previously, the defendants were charged by separate indictments in 2010. Lionel Serigne was originally charged with one count of aggravated rape of D.A., which was alleged to have taken place prior to 1981. William Serigne was charged with three unrelated counts (other than one common victim); the aggravated rape of D.A. alleged to have taken place “during the year 1981;” the aggravated incest of M.S.; and the sexual battery of B.M. The original indictments, as amended in 2011, set the time period for Lionel Serigne’s alleged rape as before 1981, and William Serigne’s as after March 28,1981.

Thus, the time frames set forth in the 2010 indictments, as amended, mutually excluded joint participation. There was no allegation by the State in either indictment that the defendants jointly participated in any crime. Despite the non-related indictments, the State moved to consolidate and sought to introduce evidence of both Lionel Serigne and William Serigne’s alleged actions regarding all alleged victims in the separate trials of each defendant. The defense moved to discover what, if any, “other crimes” evidence the State intended to use, to which the State responded that until its motion to consolidate all matters for trial was granted, it could not state which “other crimes” would be before the trier of fact as part of its case in chief. The trial court denied the State’s motion to consolidate.

After the trial court denied the State’s motion to consolidate the two cases for trial, the State convened a second grand jury, which returned one indictment charging both men with aggravated rape, and again charging William Serigne with aggravated incest and sexual battery. The indictment specifically charged that Lionel and William Serigne had jointly particípate ed in- the rape of D.A. The evidence adduced at trial, specifically the testimony of D.A., failed to establish that a joint rape had occurred.

12sWe find in this instance that an error did occur in the joint prosecution of the defendants, a prejudicial error that was not and could not have been known by the trial court without the benéfit of the grand jury testimony, ' but which error falls squarely on the shoulders of the State’s attorney in allowing the indictment to go forward.

The record reveals that defense counsel moved prior to trial to sever the parties and the offenses. The judge denied the motions and the case proceeded to trial. At the end of D.A.’s testimony and again at the close of the State’s case, counsel re-urged the motions to sever the, parties and the offenses, arguing that D.A. stated unequivocally that Lionel Serigne and William Serigne never acted together in connection with the alleged rapes, thus disproving the State’s charge pursuant to La. R.S. 14:42A(5). This new revelation totally negated the State’s charge as to La. R.S. 14:42A(5), which was the sole basis for the defendants being tried together.

Defense counsel also argued for a mistrial based on the fact that the indictment contained a charge, specifically violation of La. R.S. 14:42A(5), that was not substantiated by the trial testimony. They requested that they be allowed to review D.A.’s grand jury testimony to obtain the facts upon which the indictment was obtained, or, alternatively, .requested that the trial court do an in camera inspection, of the grand jury testimony. The trial court 'denied both the defense’s request to review the grand jury testimony and the motion for mistrial.

La.Code Crim. Proc. art. 434 provides for those instances when disclosure of grand jury materials are permitted. An exception to the requirement that grand jury testimony be kept secret was established in State v. Peters, 406 So.2d 189 (La.1981). The Peters decision required the prosecutor to disclose a witness’s grand laniury testimony to the defendant because that testimony contained material that was exculpatory evidence which the prosecutor was required to disclose to the defendant pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accordingly, State v. Peters recognized that the statutory rule of secrecy of grand jury testimony must yield to constitutional rights. See State v. Poland, 00-0453, p. 5 (La.3/16/01), 782 So.2d 556, 559. The Louisiana' legislature codified the holding in Peters with the addition of La. Code Crim. Proc. art. 434.1.

Following oral argument and based on the trial testimony of the victim, this Court ordered the State to produce D.A.’s grand jury testimony for both the 2010 and 2012 indictments. We reviewed the testimony to determine a basis for the State’s charge of joint participation.

The 2010 grand jury transcript reveals that D.A. denied that she was ever raped by William Serigne. This revelation explains why the State did not charge joint participation in the amended indictment, as it was a factual impossibility. Instead, the 2010 indictment, as amended in 2011, charged Lionel Serigne with aggravated rape prior to the year 1981, and charged William Serigne with aggravated rape “on or after March 28,1981,” thereby making joint participation impossible.

127In the second grand jury, D.A. testified that the alleged sexual acts progressed over time and that she was forced to have intercourse with Lionel on one occasion, and once with William. She stated that they would sometimes be together, but specifically stated that it was not during the two alleged acts of intercourse, again negating joint participation. Despite this, the State moved forward on the 2012 indictment charging joint participation in the aggravated rape.

Based on D.A.’s testimony before the second grand jury, it is clear that these two defendants should not have been tried together on the premise that they acted in concert to commit aggravated rape. See Patout, 00-2241, p. 39, 812 So.2d at 721, quoting U.S. v. Welch, 656 F.2d 1039,1049 (5th Cir.1981) (“[i]t is clear that defendants charged with two separate albeit similar [offenses] having one common participant are not, without more, properly joined.”); also see Patout, supra, quoting U.S. v. Nettles, 570 F.2d 547, 551 (5th Cir.1978) (‘When the connection between different groups, is limited to a few individuals common to each, but those individuals commit separate acts which involve them in separate offenses with no common aim, then the requisite substantial identity of facts or participants is not present.”). ....

It is also apparent, with the benefit of the grand jury testimony, that the State was aware at the time it charged the defendants that they did "not act in unison. Despite this knowledge, the State re-indicted the defendants, and changed the dates for Lionel Serigne’s charge, apparently to overlap the dates of the charges to obtain | gRthe joint indictment based on “joint participation.” The defendants did not become aware of these inconsistencies until D.A. testified at trial that the two defendants never acted together to commit rape, and that the single charge against Lionel Serigne was not related to William Serigne’s charges as to D.A.

In this case, as we now know, Lionel Serigne and William Serigne did not act together in committing an act of rape on D.A.,. as she testified at trial that the defendants acted separately. It is also apparent that the State knew D.A.’s first grand jury testimony did not implicate William Serigne at all in .an aggravated rape; and, that despite the State’s best effort by way of convening a new grand jury, D.A.’s second grand jury, testimony did not support the charge that Lionel Serigne and William Serigne acted together in an aggravated rape.

It is troubling to consider here that the State indicted the defendants for a charge of joint participation in commission of an aggravated rape, when the State had knowledge of evidence quite to the contrary. The defendants were apparently unaware that the additional charge against them, which resulted in a joint trial, was unsupported by evidence until D.A. testified at trial.

As a result of the joint participation charge, defense counsel for each defendant joined forces to prepare and defend the case. William Serigne was clearly tainted by the State’s overreaching theme that this was a family affair and a family secret. (The trial court was clearly influenced by this presentation. It stated in reasons for judgment that “as a result of this remaining a family secret ... another young woman ended up being at stake,” and “since this matter also remained a family secret, we’re up to now a third person.”).

Our review of the record convinces us that from inception of this case, the prosecution was a maladroit attempt to cumu-late and join various and unrelated laooffenses spanning more than two decades to further the State’s prosecution theme of exposing “the dark family secret.” The effort was fraught with misapplication of the law existing at the time of the alleged acts. It is clear to this Court that these two defendants should not have been tried jointly.

Brady/Giglio Material:

At the close of trial, in conjunction with a motion for mistrial, defense counsel requested that the trial court perform an in camera inspection of D.A.’s grand jury testimony.. The State argued that the issue of whether the defendants were guilty of joint participation in a rape of D.A. was now in the hands of the fact-finder, i.e., the judge. The State’s attorney stated: “If at the conclusion of the case the finder of fact would conclude that ... there was not a joint rape as indicated in [the indictment], then actually the perfect remedy ... would be that the two defendants should be found not guilty, not a mistrial.” The Stated added that as the trial had commenced, the.' defendants would have to prove prejudice in relation to a motion to sever. We find, after reviewing the 2010 and 2012 grand jury testimony of D.A., that prejudice has been proven.

In her 2010 grand jury testimony, D.A. denied that she ever had sexual intercourse with William Serigne. In her 2012 grand jury testimony, D.A. testified that she was raped by William Serigne on one occasion. This change in.testimony was never revealed to William Serigne’s defense counsel, despite the State having full knowledge that D.A.’s recollections of alleged events thirty years earlier were constantly changing. Further, and perhaps more importantly, at no time, in any of her statements to the police or testimony before the grand jury, or at trial did D.A. ever state that William Serigne and Lionel Serigne acted together in raping her. ■

hnThe Louisiana Supreme Court has recognized “that a prosecutor’s duty to disclose material exculpatory evidence does'not end with a jury’s verdict and. that after a. conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction,’ ” State v. Pierre, 13-0873, p. 11 (La.10/15/13), 125 So.3d 403, 410.

The 2010 and 2012 grand jury transcripts were provided to this Court by the prosecutors, and, ostensibly had been reviewed by the State at some time after this Court requested them. It should have become blatantly obvious at that point that Brady material should have been provided to the defendants. The admission by D.A. in the 2010 grand jury that she did not have intercourse with William Serigne was completely exculpatory as intercourse was a fundamental element of the crime which William Serigne was charged — aggravated rape.

In State v. Higgins, 03-1980 (La.4/1/05), 898 So.2d 1219, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005), the Louisiana Supreme Court outlined the principles applicable to review of grand jury testimony for exculpatory material, as follows:

As a. general matter, a defendant is not entitled to production of a transcript of a secret grand jury proceeding against him, even for use at trial in conducting cross-examination. La.Code Crim. Proc. art. 434; State v. Peters, 406 So.2d 189, 190-91 (La.1981). The purpose of this rule is not to protect a defendant or witness at a subsequent trial, .but to encourage the full disclosure of information about crime. Id.; see also State v. Ivy, 307 So.2d 587 (La.1975). However, the rule of secrecy is not absolute. In some situations justice may require that discrete segments .of grand jury transcripts be divulged for use in subsequent proceedings. State v. Trosclair, 443 So.2d 1098, 1102-03 (La.1983)(citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979)). Thus a trial court Isimay act upon a specific request stated with particularity and review grand jury transcripts in camera to determine if information contained therein is favorable to the accused and material to guilt or punishment. Trosclair, 443 So.2d at 1103; Peters, 406 So.2d at 191.

Non-disclosure of exculpatory evidence once requested violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady, supra; State v. Johnson, 48,325, p, 20 (La.App. 2 Cir. 9/18/13), 135 So.3d 705, 716-17. This rule has been expanded to include evidence which would impeach the testimony of a witness where the reliability or credibility of the witness may be determinative of guilt or' innocence. Giglio v. U.S., 405 U.S. 150, 92 S.Ct., 763, 31 L.Ed.2d 104 (1972).

A “Brady” violation is composed of three elements:' 1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; 2) the evidence must have been suppressed by the State, either willfully or inadvertently; and 3) prejudice must have ensued. Johnson, 48-325, p. 20-21, 135 So.3d at 717 (citing State v. Garrick, 03-0137 (La.4/14/04), 870 So.2d 990). Failure to disclose exculpatory evidence does not require reversal as a matter of due process unless the non-disclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different result. Id. Should non-disclosure of exculpatory material be discovered, the trial court has the discretion to order a mistrial. La.Code Crim. Proc. art. 729.5.

Reversible error occurs when failure to disclose the exculpatory material actually prejudices the defendant and the trial court’s failure to remedy the error demonstrates an abuse of discretion. Only when the defendant is “lulled into a misapprehension of the state’s case through the prosecution’s failure to disclose |s?timely or fully, and the defendant suffers prejudice,” ..., that basic unfairness results which constitutes reversible error., State v. Allen, ,94-2262 (La.11/13/95), 663 So.2d 686. Ordinarily, the effects of a discovery violation may be remedied by effective cross-examination.

We have reviewed the 2010 grand jury testimony of D.A., and find that the State’s withholding of exculpatory evidence is reversible error. This non-disclosure clearly impacted the defendants’ decision to waive a jury (as discussed previously). Further, had this evidence been before the trial court, it may have ruled differently on key procedural motions, e.g., motion to sever defendants, motion for new trial. It is also compelling to consider that D.A. was the sole witness against both of the defendants, and that she was recalling memories from thirty years earlier. The reliability/credibility of D.A.’s testimony was clearly a factor in determining guilt or innocence. The withholding of the 2010 grand jury testimony, in which the sole witness recounted a completely different version of events than the version later given at trial, deeply prejudiced the defendants.

We find that William Serigne is entitled to a new trial.

Conclusion:

Accordingly, as Lionel Serigne was charged with a capital offense, he could not by law1 knowingly and intelligently waive a jury trial, with' the jury' returning a unanimous verdict. William Serigne was charged with three non-capital offenses, any of which could be tried by the judge or a jury. As such, the" two defendants should not have been tried together. Lastly, as both defendants were denied the benefit of crucial exculpatory evidence that weighed directly on the issue of guilt, and influenced their attorneys’ trial strategy, we And they aré both entitled to a new trial on these grounds.

| ^Therefore, the convictions of both defendants are reversed, and these matters are remanded for new trials in accordance with this opinion.

CONVICTIONS REVERSED; REMANDED

BONIN, J., concurs with additional reasons.

BONIN, J.,

concurs with additional reasons.

hi respectfully concur in ordering new but separate trials of the two defendants. I write separately to highlight additional considerations with respect to each reversal.

I

With respect to Lionel Serigne, I elaborate on two points in the majority opinion: first, that the error identified regarding the jury waiver is an error patent, and, second, that the prosecution’s reliance upon Third Circuit jurisprudence is misplaced. •

A

First, it is important to establish that, because this specific issue constitutes an error patent, it falls within the scope of our appellate review, notwithstanding Mr. Serigne’s failure to include it in his brief. See State v. Goodley, 398 So.2d 1068, 1069 (La. 1981) (finding error patent where only ten out of twelve jurors rendered verdict in capital charge); State v. Rich, 368 So.2d 1083, 1084 (La.1979) (finding error patent in failure to comply with procedural rules for capital crimes, even though defendant could not actually be put to death); State v. Hunter, 306 So.2d 710, 711 (La.1975) (noting error patent in failure to sequester jury as required by capital procedural rules); State v. Breaux, 08-1061, pp. 9-10 (La.App. 3 Cir. | ,.4/1/09), 6 So.3d 982, 989 (finding reversible error patent in absence of unanimous verdict for crime classified as capital).

An error patent is one “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” See La.C.Cr.P. art. 920(2). For purposes of an error patent review, the record in a criminal case “includes the caption, the statement of time and place of holding court, the indictment or information and the endorsement thereon, the arraignment, the plea of the accused, the mentioning of the impanelling of the jury, the verdict, and the judgment_” State v. Oliveaux, 312 So.2d 337, 339 (La.1975); State v. Jones, 544 So.2d 1294, 1296 (La. App. 4th Cir.1989).

B

The prosecution acknowledges that it charged Mr. Serigne with an offense that was classified as capital for the first year alleged in the indictment. Without citing any supporting authority, however, and contradictory to established jurisprudence, the prosecution claims that the “State was afforded the discretion to prosecute the aggravated rape against Lionel Serigne as either a capital or non-capital matter.” The prosecution rests this argument on the recent Third' Circuit decision in State v. Hypolite, 13-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687.

The defendant in Hypolite was charged with aggravated rape of a victim under the age of thirteen. The rape occurred in 2009. Prior to 1997, the statute provided that a person convicted of aggravated rape “shall be punished by death or life imprisonment ... in accordance with the determination of the jury.” In 1997, the Louisiana- legislature amended La. R.S. 14:42 to alter the offense of aggravated rape of a victim under the age of thirteen. Importantly, 1 the statute was also amended in 1997 to allow the district attorney to choose between seeking a capital Rverdict or a non-capital verdict in prosecutions for aggravated rape of a victim under thirteen. Post-amendment, the pertinent section of the statute read, and still reads, as follows:

(2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.

Thus, if the prosecution elects to pursue a capital verdict, even if the jury ultimately sentences the offender to life imprisonment, it must also comply with the procedural requirements for capital cases pursuant to La.C.Cr.P. art. 782 because the punishment “may be capital.” See also La. Const, art. I, § 17. But, however, if the prosecution chooses a non-capital verdict, where the only punishment is life imprisonment, then capital procedural rules do not apply.

Notably, the offense in Hypolite occurred after the 1997 amendments, and the prosecution was pursued as a non-capital offense, as allowed by the statute. The offenses in Mr. Serigne’s case occurred well before the 1997 amendments, where the statute did not give the district attorney any option to prosecute an aggravated rape case as capital or non-capital. In 1976, and the majority of 1977, the punishment for aggravated rape was a mandatory death sentence. Interestingly, the Third Circuit has rejected the very argument which the prosecution now raises. 14See State v. Self, 98-39 (La.App. 3 Cir. 8/19/98), 719 So.2d 100. The court in Self noted that, while the aggravated rape statute had been amended in 1997 in an apparent effort to legislatively overrule Goodley, it was not in effect at the time the offenses were committed and therefore the amendment was not applicable. See id. at pp. 6-7, 719 So.2d at 103.

I also note that the Third Circuit reached a different conclusion when faced with facts similar to Lionel Serigne’s case. See Breaux, 08-1061, pp. 9-10, 6 So.3d 982, 989. The defendant in Breaux was charged with committing aggravated rape between May 1, 1977 and December 31, 1980. The court found that because some of the allegations subjected the defendant to capital punishment, he was required to be tried in accordance with capital procedural rules. The prosecution appears to have overlooked this case.

The prosecution also argues that because the death penalty could not be legally carried out in light of Kennedy v. Louisiana, 564 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), which held that the Eighth Amendment prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim. As previously discussed, however, jurisprudence from our state supreme court has already rejected this argument. See Williams; Rich; Hunter; Holmes; Flood. The prosecution’s arguments are not persuasive.

II

I turn now to address the result with respect to William Serigne’s appeal.

•A

From our examination of D.A.’s testimony, it is clear that her trial testimony was consistent with her grand jury testimony of April 7, 2010 and of May-30, 2012 with respect to the non-participation of the brothers together in any act of intercourse. But’ during our examination of the grand jury transcripts we | ^discovered an inconsistency in her 2010 grand jury testimony from that of her trial testimony.

The discrepancy pertains to an essential element of the offense for which Mr. Se-rigne was charged (aggravated rape) and for which he was adjudged guilty (forcible rape). At.trial D.A. testified that.he sat her on top of his lap. with her “panties down” and was putting his penis into her vagina. '-When questioned how it felt to have his penis in her vagina,- she replied that it hurt. She testified that this-was the only occasion on which they had intercourse and that she was certain it occurred between 1981 and 1983. During her 2010 grand jury testimony, however, she testified that “William would always touch. He would also ask me to perform oral sex but no intercourse.” (emphasis added). “Oral intercourse,” however, as we note, was not added as an element of the applicable rape statutes (La. R.S. 14:41,14:42, and 14:42.1) until 2001. And, of course, a conviction of William Serigne for rape (aggravated or forcible) based upon proof of oral intercourse would violate the federal and state constitutional prohibitions on ex' post facto laws. See Article I, § 10; La. Const, art. I, § 23; Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); State ex rel. Olivieri v. State, 00-0172, 00-1767 (La.2/21/01), 779 So.2d 735. See also State v. Wallace, 13-0149 (La.App. 4 Cir. 6/25/14), 143 So.3d 1275 (reversible error to instruct jury on. oral intercourse when it did not exist, in the aggravated rape statute at the time of the offense).

B

“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Importantly for our purposes, the Brady rule encompasses not only exculpatory evidence but impeachment evidence where the credibility or reliability of the'testifying witness may be determinative of guilt or |fiinnoeence. See U.S. v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31. L.Ed.2d 104 (1972) (clarifying that the rule stated in Brady, applies to evidence undermining witness credibility); State v. Sparks, 88-0017, p. 67 (La.5/11/11), 68 So.3d 435, 485. Here, of course, it bears emphasis, this prior inconsistent statement is relevant to the existence of an essential element of the offense and thus necessarily could bear upon the guilt or innocence of William Serigne.' And, according to the testimony of D.A. herself, she was the- sole witness to her rape by Mr. Serigne.

That the Brady material is contained in grand jury testimony is of no moment. The statutory provisions regarding the secrecy of grand jury proceedings and testimony by their own explicit terms yield to Brady. See La.C.Cr.P. art. 434.1 B (“The district attorney shall also disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury.”); see also State v. Peters, 406 So.2d 189 (La.1981) (prosecutor compelled to disclose witness’s grand jury testimony to defendant because it contained material exculpatory evidence under Brady).

' And, similarly, it is of no moment that it was an assistant district attorney who questioned D.A. before the 2010 grand jury, a different assistant attorney general who questioned her before the 2012 grand jury, and still another assistant attorney general who questioned her at the trial. The state is not absolved of its duties under Brady simply because an individual prosecutor' does not possess or have knowledge of the evidence. See Giglio, 405 U.S. at 154, 92 S.Ct. 763; Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”). Moreover, the prosecution’s duty to disclose remains I gin force even when no specific or general request for the evidence has been made by the defense. See Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citing U.S. v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). And, beyond their duties under the constitution, prosecutors are bound by the Louisiana Rules of Professional Conduct to disclose material evidence favorable to the defense. See Rule 3.8(d), Rules of Professional Conduct, (“.The prosecutor in a criminal case shall ... make timely disclosure to the defense of all evidence, or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or -mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor.... ”). Thus, a prudent prosecutor errs on the side of .disclosure when confronted with possible Brady evidence. See Kyles, 514 U.S. at 439-40,. 115 S.Ct. 1555 (“This means, naturally, that a prosecutor anxious about tacking too close to the wind will • disclose a favorable piece of evidence.... The prudence of the careful prosecutor should not therefore be discouraged.”).

We, regrettably, have no indication whatsoever that the prosecutor has made any disclosure to Mr. Serigne about the inconsistencies between D.A.’s grand jury and trial testimonies.

C

It is true that the mere possibility that a piece of undisclosed evidence might have helped the defénse or might have affected the outcome of the trial, does not establish “materiality” under the Fourteenth Amendment. See Agurs, 427 Ú.S. at 109-10, 96 S.Ct. 2392. Here, there is no doubt that the undisclosed evidence is material .and a new trial is required. See Giglio, 405 U.S. at 154, 92 S.Ct. 763.

| sWilliam Serigne need not show that.it is more likely than not that he would have been acquitted had the evidence of D.A.’s grand jury testimony b,e admitted. See Smith v. Cain, 565 U.S. -, -, 132 5.Ct. 627, 630, 181 L.Ed.2d 571 (2012). He need only show that this “new” evidence is sufficient to “undermine confidence” in the judgment. Id. See also Wearry v. Cain, 577 U.S. -,-, 136 S.Ct. 1002, 1006, 194 L.Ed.2d 78 (2016) (per curiam).

I am satisfied that the trial judge in this case should have reviewed the grand jury transcripts in camera for the purposes of determining whether disclosure of favorable evidence was required. See State v. Higgins, 03-1980, pp. 35-36 (La.4/1/05), 898 So.2d 1219, 1241. And I am convinced that had he reviewed D.A.’s grand jury testimony, he would have authorized or directed disclosure of those portions of her testimony, repeated here. Id. The remedy for a material Brady violation is reversal of the conviction and a new trial. See State v. Bright, 02-2793, 03-2796 (La.5/25/04), 875 So.2d 37; State v. Kemp, 00-2228 (La.10/15/02), 828 So.2d 540 (per curiam); State v. Cousin, 96-2973 (La.4/14/98), 710 So.2d 1065.

LANDRIEU, J., dissents and assigns reasons.

LANDRIEU, J.,

dissents and assigns reasons.

|tFor the following reasons, I respectfully dissent from the majority’s reversal of Lionel Serigne’s conviction of aggravated rape and William Serigne’s convictions of forcible rape, sexual battery, and aggravated incest.

This case involves sexual abuse of children perpetrated by the two defendants, who are brothers, upon female family members, beginning with the molestation of their cousin D.A. in the late 1970’s and early 1980’s. D.A. did not reveal this molestation to anyone until approximately 1992, when, at the age of twenty-one, she attended a family event and saw her cousin, Lionel Serigne, walk into the room carrying his four-year-old niece, M.S., who was also D.A.’s cousin. D.A.’s concern for M.S. prompted her to reveal her childhood abuse by Lionel to her mother, which resulted in a “family meeting” at which D.A. confronted Lionel about his abuse of her. D.A., her parents, Lionel, his parents, his then fiancée, and his uncle agreed at that time to keep D.A.’s accusations private and to handle the matter within the family. D.A. did not reveal then that she also had been abused by William Serigne. She testified that after the family meeting, all contact between her nuclear family and the Serigne branch of the family essentially ceased. Approximately twenty years later, M.S. disclosed that she had been sexually abused as a child by her father, William Serigne. This disclosure prompted D.A. to | ¿report her abuse by both Lionel and William to the police, at the same time that M.S. and a third victim, B.M., came forward with their allegations against William. The grand jury testimony of these three victims led to the indictments of Lionel and William in 2012.

The majority concludes that the evidence presented was sufficient to convict both Lionel and William on the charges of which they were found guilty. I agree with this conclusion. I disagree with the majority’s reasons for reversal of the convictions, which I address separately.

I. Lionel Serigne

The majority concludes that “binding Supreme Court and Fourth Circuit precedent requires a finding of reversible patent error” in that Lionel was legally precluded from waiving a jury trial because he was charged with a capital offense. This conclusion is based upon what I believe to be a flawed analysis of the law. Lionel Se-rigne was indicted in 2012 and tried in 2013. At no time, from his indictment through his conviction, did he ever face the possibility of being sentenced to the death penalty. When he waived his right to a jury trial, he was represented by private counsel, and he has not assigned as error on appeal that the trial court’s allowing him to waive a jury trial was illegal. The aggravated rape statute (La. R.S. 14:42) in effect at the time of Lionel’s indictment and trial had been amended multiple times since the time period (1976-1983) cited in the indictment for the commission of the crime. In particular, the legislature amended the statute in 1997 to enact a “hybridized” version applicable to the rape of a child. Therefore, at the time of Lionel’s indictment and trial, the statutory lapunishment for aggravated rape was life imprisonment at hard labor, except for the provision in La. R.S. 14:42 D(2), which read:

D 2) However, if the victim was under the age of thirteen years, as provided by Paragraph (A)(4) of this Section:
(a) And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment may be capital shall apply.
(b) And if the district attorney does not seek a capital verdict, the offender shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The provisions of Code of Criminal Procedure Art. 782 relative to cases in which punishment is necessarily confinement at hard labor shall apply.
Article 782 states, in pertinent part:
A. Cases in which punishment may be capital shall be tried by a jury of twelve jurors, all of whom must concur to render a verdict. Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, all of whom must concur to render a verdict.
B. Trial by jury may be knowingly and intelligently waived by the defendant except in capital cases.

In 2008, prior to Lionel’s indictment, the death penalty as provided in La. 14:42 D(2) was declared unconstitutional by the United States Supreme Court (“Based both on consensus and our own independent judgment, our holding is that a death sentence for one who raped but did not kill a child ... is unconstitutional under the Eighth and Fourteenth Amendments.”) Kennedy v. Louisiana, 554 U.S. at 421,128 S.Ct. at 2650-51. There is no- evidence in this record that the district attorney ever sought the death penalty against Lionel Serigne.

^Nevertheless, the appropriate inquiry to decide whether Lionel Serigne- could legally waive his right to a jury is whether the Í997 amendment “hybridizing” La. R.S. 14:42,- which was in effect at the time of Lionel’s indictment and trial but not at the time of the commission of the crime, should be applied retroactively to him. The majority fails to address this issue. Although neither the Louisiana Supreme Court nor the Fourth Circuit has considered ' this issue, other appellate circuits have. As explained below, after reviewing the applicable law and jurisprudence, I conclude that the amendment is procedural in nature insofar as it delates to the mode of trial. As such, the amended version of La. R.S'. 14:42 was applicable to Lionel Serigne. Under that version, because the State never sought (or could have sought, given its' unconstitutionálity) the de’áth penalty, the trial court’s allowing Lionel to waive a jury trial was not an error, much less an- error patent.

Lionel Serigne was indicted in 2012 for aggravated rape of D.A., “between and including the years 1976 and 1983.” In convicting Lionel, the trial judge found the rape occurred in 1981 when D.A. was ten or eleven. The cases relied upon by the majority stem from 1972 to 1981, an era when Louisiana was grappling with how to adjust , its laws to comply with a series of United States Supreme Court decisions (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976); Coker v. Georgia, 433 U.S, 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)) establishing the unconstitutionality of the death penalty as punishment for certain crimes,, including murder under certain circumstances and aggravated rape. Although technically, Louisiana’s aggravated rape statute provided for the death penalty for the first year, (1976 through Sept. 9, 1977) of the seven-year time span recited in the indictment of Lionel, that penalty had been held unconstitutional by Furman in 1972 and again by Selman in 1976. As noted ^previously, the Louisiana legislature’s subsequent attempt, in 1995, to again provide the death penalty as a possible punishment for the aggravated rape of a child was also held to be unconstitutional before Lionel was ever indicted in this case. See Kennedy v. Louisiana, supra,

In the seminal case cited by the majority, State v. Holmes, 263 La. 685, 269 So.2d 207 (1972), the Louisiana Supreme Court held, with strong dissents by Justices Bar-ham and Tate, that Louisiana’s procedural rules relating to capital cases, specifically the unanimous jury verdict requirement, still applied to cases in which the defendant could have been subject to the death penalty except for the United States Supreme Court’s invalidation of it in Furman v. Georgia. The Holmes Court ’ clearly recognized the impermanent nature of its holding, however, stating:

Although the hiatus is obvious and the situation undesirable, we conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Fur-man) interpret Article 7, Section 41 of the Louisiana Constitution as referring to classes of crimes; and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict. ,

Id., 263 La. 685, 691-92, 269 So.2d-207, 209 (1972) (Emphasis supplied). As a result of Furman and Selman v. Louisiana, the Louisiana legislature amended La. R.S. 14:42, effective September 9, 1977, to provide life imprisonment at hard labor as the punishment for aggravated rape. Also.in response to Furman, Holmes, and State v. Flood, 263 La. 700, 269 So.2d 212 (1972), the legislature in 1974 amended La. R.S. 14:30 to classify murder in two categories, first and second degree. The amendment maintained the death penalty as the mandatory sentence for first degree murder but provided life imprisonment, as the mandatory minimum sentence for second degree murder. State v. Washington, 294 So.2d 793, 794 (La.1974). In Washington, the Louisiana Supreme Court faced the issue of whether a defendant charged with second degree murder was prohibited from applying for bail because lfiLa.C.Cr. P. art. 313 then provided that persons charged with capital offenses were not eligible for bail.' The Washington Court again recognized the temporary nature of its prior holding in Holmes, finding:

The issue to be decided is whether the system of ‘classification’■ of crimes _ as announced in Flood and Holmes still applies to render second degree murder non-bailable under C.Cr.P. Article 313.
In Holmes the majority held that even though the United States Supreme Court in its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) declared the death penalty unconstitutional as it was then imposed, this did not destroy the system ■of classification of crimes in Louisiana. In Holmes the majority held ‘ murder should be classed as a capital offense ‘at least until the legislative process has reorganized the criminal.law and procedure in view of Furman.’ Murder, prior to the 1973 amendments, was still classified in the. statute as a capital crime, although the penalty , of death could not be enforced. Accordingly, in Flood, the majority held. that those persons charged with ‘capital.offenses’ were not entitled to-.bail where the proof was evident or the presumption great.-
The legislature has now acte'd ahd reorganized the criminal law in defining murder. The capital offense of murder is, now'defined by R.S. 14:30. Second degree murder under R.S. 14:30.1 is not now classified as a' capital offense. There being no death péñálty 'for the crime with which defendant is Charged, bail must be granted.

Washington, 294 So.2d at 794.

Despite the comparable evolution of Louisiana’s statutory and procedural' law on aggravated rape since the Holmes decision, however, the majority finds not merely error, but an error patent, based upon the fact that, a tangentially-related line of cases following Holmes from 1972 to 1981 has not been overruled. Not one of :these cases is directly on point. Moreover, having been decided long prior to the amended version of the aggravated rape statute in effect at the time of Lionel’s trial, none addresses the issue presented here — which is whether the amendment applied retroactively to Lionel.

In State v. Washington, 02-2196, pp. 2-3 (La.9/13/02), 830 So.2d 288, 290 {per cu-riam ), the Louisiana Supreme Court delineated the two-fold inquiry necessary to determine whether a law should be applied retroactively:

17First, it must be ascertained whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends_ [T]he second step is to classify the enactment as either substantive, procedural or interpretive.' Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretive laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of laws.
Laws that are procedural or interpretive may be applied retroactively.

Id. (Citations omitted).

The Louisiana Supreme Court has consistently held that changes in procedural rules made after the commission of the offense, but before the commencement of trial, may be employed at a defendant’s trial. See State v. Loyd, 96-1805, pp. 12-13 (La.2/13/97), 689 So.2d 1321, 1328; State v. Sepulvado, 342 So.2d 630, 635-36 (La.1977), abrogated on other grounds, State ex rel. Olivieri v. State, 2000-0172, 2000-1767 (La.2/21/01), 779 So.2d 735. With regard to the 1997 amendment to the aggravated rape statute, the appellate courts that have addressed the issue have found the amendment to be procedural, and therefore have applied it retroactively.

In State v. Kinsel, 2000-1610 (La.App. 5 Cir. 3/28/01), 783 So.2d 532, writ denied, 2001-1230 (La.3/28/02); 812 So.2d 641, the Fifth Circuit considered the retroactivity of the 1997 amendment to La. R.S. 14:42 D, which, as previously mentioned, created a hybrid capital/non-capital statute for aggravated rape of a child below the age of twelve. In Kinsel, the defendant was tried in 1999 and was convicted by a non-unanimous jury of the aggravated rape of a child under the age of twelve. The time period alleged in the indictment for the commission of the offense was from November, 1992 through October, 1995. For approximately the [Jast three months of that time period, La. R.S. 14:42, by virtue of its amendment in 1995, provided for the death penalty as a possible punishment for the offense. Id., pp. 11-12, 783 So.2d at 539. Moreover, the “trial testimony established, that defendant would have committed at least some of the acts after the 1995 amendment to LSA-R.S. 14:42 became effective, and thus, the death penalty was applicable.” Id., p. 12, 783 So.2d at 539. The subsequent 1997 amendment to the statute, which was in effect at the time of trial, provided that if the State opted to seek a penalty of life imprisonment, rather than death, only ten of twelve jurors were required to concur in the verdict. The State did not seek the death penalty in Kinsel. Nevertheless, the defendant argued that the jury’s non-unanimous verdict was error because the 1997 amendment was not in effect when the crime was committed. The Fifth Circuit rejected this argument, stating:

Although LSA-R.S. 14:42 D(2)(b) was not in effect at the time that defendant committed the alleged offenses, it had been enacted prior to the time of defendant’s trial. We find this procedural provision applicable to the instant case. As a result, the provisions of C.Cr.P. art. 782 were properly triggered when the state did not seek the death penalty. Accordingly, we find that the trial court did not err in failing to require a unanimous verdict for defendant’s aggravated rape conviction.

Id., pp. 12-13, 783 So.2d at 539. Kinsel, although it did not involve the waiver of a jury trial, is similar to the instant case in that the hybrid capital/ non-capital -statute for aggravated rape of a child was in effect at the time of Lionel Serigne’s trial, and the death penalty was available as a punishment for a portion of the time span in which the crime was alleged to have been committed in the indictment. Here, however, the evidence at trial showed the aggravated rape of D.A. was committed in 1981, when the death penalty was not a part of the statute. Moreover, by the time of Lionel’s indictment and trial, the death penalty for aggravated rape of a child had been held unconstitutional in Kennedy v. Louisiana, [nsupra. Therefore, the instant situation presents an even more compel-ling case for applying the version of -La. R.S. 14:42 D in effect at the time of trial.

Relying on Kinsel, the Fifth Circuit in State v. Singleton, held that a defendant convicted in a bench trial of aggravated rape of a child was legally entitled to waive a jury trial, reasoning:

While no cases were found directly on point, the following cases lend guidance for this court’s analysis of this issue. In State v. Louviere, 00-2085 (La.9/4/02), 833 So.2d 885, 893, cert. denied, 540 U.S. 828, 124 S.Ct. 56, 157 L.Ed.2d 52 (2003), the Louisiana Supreme Court noted that the right to trial for criminal defendants derives from Article I, § 16. It decided that nothing in Article I, § 17 required the jury to decide all phases of the trial, from indictment to sentence, and that only the issue of the ultimate penalty of death is strictly required to be put before the jury. In this case, which involved a. defendant who pled guilty to first degree murder, the court found that the Louisiana Constitution did not preclude defendant from pleading guilty and waiving a guilt-phase jury trial.

State v. Singleton, 2005-0622, pp. 8-9 (La. App. 5 Cir. 1/31/06); 922 So.2d 647, 652. On the basis of Louviere, as well as its prior decision in Kinsel, the Fifth Circuit held that because the State did not seek a capital verdict, the defendant was entitled to waive his right to'a jury trial. Id., pp. 9-10, 922 So.2d at • 652. The Singleton court additionally noted that “several cases in which the defendant was charged with the aggravated rape of' a child under twelve have "involved bench trials,” citing: State v. Ross, 2003-0564 (La.App. 3 Cir. 12/17/03), 861 So.2d 888, writ denied, 2004-0376 (La.6/25/04), 876 So.2d 829; State v. Chatman, 37,523 (La.App. 2 Cir. 9/24/03), 855 So.2d 875, writ denied, 2003-2821 (La.2/13/04), 867 So.2d 685; and State v. Holley, 2001-0254 (La.App. 3 Cir. 10/3/01), 799 So.2d 578. Singleton, 2005-0622, p. 10 n. 3, 922 So.2d 647 at 653 n. 3. Relying on this jurisprudence, the Third Circuit, in State v. Craig, 2009-1547 (La.App. 3 Cir, 6/2/10), 2010 WL 2179724 (unpub.), held that a defendant charged with the | inaggravated rape of a child could validly waive a jury trial whén there was no évi-dence in the record that the State had ever sought the death penalty.

Similarly, in State v. Lewis, 2009-0846 (La.App. 3 Cir. 4/7/10), 33 So.3d 1046, writ denied, 2010-0967 (La.11/24/10); 50 So.3d 825, the Third Circuit considered whether to retroactively apply the 2007 amendment to La. R.S. 14:30, relative to first degree murder, providing that if the district attorney sought life imprisonment rather than a capital verdict, the procedural rules of La. C.Cr. P. art. 782 as to cases in which punishment • is necessarily at hard labor would apply rather than those relating to capital cases. In Lems, the amendment had become effective before the defendant’s trial but after the commission of the two murders with which he was charged. Id., p. 8, 33 So.3d at 1054. The Third Circuit expressly relied upon the above-cited .appellate jurisprudence relative to the retroactive application of the 1997 amendment to the aggravated rape statute., Id. It held that Mr. Lewis, who had pled not guilty by reason of insanity and had been convicted in a bench trial of both counts of first-degree murder, had validly waived his right to a jury because the State had elected not to pursue the death penalty. Id., p. 11, 33 So.3d at 1055.

Recently, in State v. Hypolite, 2013-1365 (La.App. 3 Cir. 5/14/14), 139 So.3d 687, writ denied, 2014-1242 (La.1/23/15), 159 So.3d 1056, the Third Circuit held that since the enactment of the “hybrid” capital/non-capital aggravated rape statute, a unanimous jury verdict is no longer required in aggravated rape cases where the State elects not to pursue the death penalty. In that, case, the defendant was convicted of raping his ten-year-old granddaughter. . The court noted:.

We agree with appellate counsel in that the State made no indication in the grand jury indictment as to whether or not it was charging Defendant with aggravated rape as a capital or non-capital offense. However, there is nothing in the record to indicate that the State was charging Defendant with a capital offense. In fact, the record supports |T1a finding that the State was pursuing a non-capital offense. The trial court informed the jury, without any objection or comment by either the State or the defense, that the possible imprisonment was life.... Finally, as argued by the State in brief, the death penalty was not an option in this case in light of the Supreme Court’s ruling in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), that the Eighth Amendment of the United States Constitution prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to re-suit,, in the victim’s death.

Id., p. 17, 139 So.3d at 699. Accord: State v. Kaigler, 2010-1839 (La.App. 1 Cir. 6/10/11), 2011 WL 3244803 (unpub.), wherein the First Circuit held that a unanimous jury verdict was not required where the defendant was convicted of first-degree murder, and the State did not seek the death penalty.

As previously noted, there is no evidence in this record that the State ever sought the death penalty against Lionel Serigne. Considering the applicable law and jurisprudence, I find that the trial court was not required to apply the procedural rules applicable to capital cases in this case. I therefore' conclude that,'pursuant to La. R.S. 14:42 D(2)(b), the trial court’s having allowed Lionel Serigne to waive a- jury t&l was not-error. '

II. William Serigne

The majority reverses William’s conviction on the. basis that the trial court abused its discretion by denying his motion for new trial and by refusing to order D,A.’s grand jury "testimony for in camera inspection prior to deciding the motion for new trial. The majority finds that William should be granted a new trial because he was unfairly prejudiced by being tried jointly with Lionel. I disagree. On the basis of the record, I do not find that William suffered an injustice or was denied a fair trial because he was tried jointly with Lionel.

The majority begins its analysis by suggesting that the State acted improperly.by withdrawing the separate indictments of these two defendants, |19which were based upon the 2010 grand jury proceedings, convening a second grand jury in 2012, and re-indicting the defendants jointly, based upon D.A.’s 2012 grand jury testimony. In 2010, D.A. told the grand jury that Lionel and William had molested her together but had not been together when Lionel raped her, saying: “There were times where William would be there, and they both would touch me — not during — it wasn’t during the time where there was actual, if you want to call it intercourse, not that both of them were there then.” She further testified that Lionel had penetrated her vaginally at least once, and that William had forced her to perform oral sex on him. She said: “They would both be in the room, you know, touching me. Lionel was more the one that would say do this or do that, and William, would do it.” The majority correctly notes that in 2010, D.A. did not testify that William had raped her or that William had been present when Lionel raped her. Then in 2012, D.A. told the grand jury that on one occasion, William “actually had me sit on top of him,” which incident had not been apparent to her as rape at the time of her 2010 testimony but which she now knew to be penetration. She continued to maintain that although there were times when Lionel and William were together while exposing themselves to her, they were not together when either one penetrated her. She indicated that the incident where William had her sit on top of him occurred downstairs in the basement. The incident with Lionel happened upstairs. D.A. said both Lionel and William were downstairs with her just before Lionel took her to an upstairs bedroom and raped her, with William remaining downstairs and Lionel rejoining William afterward.

Comparing the two testimonies, the majority concludes that the sole reason the district attorney could have had for withdrawing the separate indictments and convening á second grand jury was to obtain a false basis upon which to indict the' two defendants jointly and try them jointly. I disagree. The transcript of D.A.’s 2010 testimony reveals that the grand jurors were then ’ instructed that “oral | ^intercourse,” specifically, “the touching of touching of the genitals of the offender by the victim using the mouth of the victim” fit the definition of aggravated rape. However, as the majority correctly points out, La. R.S. 14:41 was not amended to include oral intercourse in the definition of rape until 2001. Therefore, although oral intercourse was part of the definition at the time the 2010 grand jury met, it was not defined as rape at the time the offenses were allegedly committed. Because the change in defifiition is arguably a substantive change in the law, it is a reasonable possibility that the district attorney convened a second grand jury because he recognized that the first grand jury had been wrongly instructed on the applicable law. This explanation is, at the very least, as plausible as the one suggested by the majority. In any case, it is impossible to determine from this record why the State chose to convene a second grand jury, and the majority’s speculation as to the State’s motive for doing so serves no purpose.

Based upon the second grand jury, the State jointly indicted the two defendants in 2012 for aggravated rape, alleging that .they participated together in the act of. raping D.A. Whether that indictment was proper is not at issue here because neither defendant filed a motion to quash the indictment. La. C. Cr. P. art. 494 provides, in pertinent part: “Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” However, according to article 495, objections of misjoinder may be urged “only by a motion to quash the indictment.” As neither defendant filed a motion to quash, the issue of whether the joint indictment was proper is moot.

On appeal, William argues that the trial court erred by denying his motion for new trial, in part because it was unjust to try him jointly with Lionel. In this respect, he adopts Lionel’s arguments regarding misjoinder, severance and the trial 114court’s refusal to review the grand jury testimony. La. C. Cr. P. art. 851, governing motions for new trial, states, in pertinent part:

A. The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
B. The court, on motion of the defendant, shall grant a new trial whenever any of the following occur:
(1) The verdict is contrary to the law and the evidence.
(2) The court’s ruling on a written motion ... shows prejudicial error.
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The above-cited grounds are the only Article 851 grounds arguably raised by the defendants’ motions for new trial. A trial court’s ruling on a motion for a new trial will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Cox, 2010-2072, p. 1 (La.11/19/10), 48 So.3d 275 (citing State v. Humphrey, 445 So.2d 1155, 1160 (La.1984)). Specifically with regard to the “ends of justice” ground expressed in art. 851 B(5), the Louisiana Supreme Court has stated:

In deciding whether the trial court in the matter before us abused its great discretion in granting a new trial solely on La.Code Crim. Proc. art. 851(5), we keep in mind two precepts. One, in this provision the trial court is vested with almost unlimited discretion and its decision should not be interfered with unless there has been a palpable abuse of that discretion. State v. Bolivar, 224 La. 1037, 71 So.2d 559, 560 (1954). Two, “[t]he motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.”

State v. Guillory, 2010-1231, p. 4-5 (La.10/8/10), 45 So.3d 612, 615-616.

| tfiWilliam essentially argues that his being tried with his brother was unfairly prejudicial to him because there was no evidence to indicate that he and Lionel acted together in molesting D.A. At trial, D.A. clearly testified that Lionel and William raped her on separate occasions in separate areas of the Serigne house (Lionel in an upstairs bedroom and William in the basement).

A trial court’s denial of a motion to sever will not be disturbed absent a clear abuse of discretion. State v. Everett, 2011-0714, p. 33 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 629. Whether justice requires a severance must be determined by the facts of each case. State v. Nora, 2013-0892, p. 10 (La.App. 4 Cir. 6/18/14), 143 So.3d 1237, 1245. A defendant is. not entitled to a severance as a matter of right; the decision is one resting within the sound discretion of the trial court. Id.

Under these guidelines, I cannot say that the trial court abused its discretion by declining to grant William a new trial. In his argument that trying him with his brother was unjust, William points to the State’s repeated references to “family secrets” in its opening statement.. The majority finds that William was unjustly prejr udiced by being tried jointly with Lionel because the trial court indicated in its reasons for judgment that “as a result of this [D.A.’s allegations of abuse by Lionel] remaining a family secret ... another young woman [and then ultimately, a third person] ended up at stake.” I disagree that these comments demonstrate prejudice or injustice to William.

In order to determine whether William was unfairly prejudiced by the joint trial, it is necessary to consider the evidence heard by the trial judge. The State’s primary witnesses at trial were the three victims and their respective mothers. 11fiBoth Lionel and William Serigne then testified in their own defense. The testimony is. summarized as follows:

D.A. and her mother, M.M.

At the time she testified, D.A. was forty-two years old and the mother of three children, who were then ages twenty-five, eighteen and thirteen. D.A. testified she had been sexually molested on multiple occasions by her cousin, Lionel, beginning in approximately 1975 when she was four years old, and also by Lionel’s younger brother William, beginning when she was about nine years old. She testified that both cousins had stopped abusing her by 1984, at which time she was thirteen.

D.A.’s mother, M.M., testified that she had three daughters, one of whom was D.A., who was born on December 27,1970. M.M. was married to the defendants’maternal uncle, making the defendants, Lionel and William, D.A.’s first cousins. From the time D.A. was born until early 1976, her family resided on Florissant Hwy., one lot over (a vacant lot with a large oak tree was in between the two homes) from the defendants’ (Serigne) home. The two famines saw each other every day during that period. The children played together, going' in and out of the respective family homes during the day.' The Serigne family home was raised, with a large cinder-block-enclosed basement area divided by an inside stairwell going up to the living area of the residence. According to D.A., Lionel (eleven years older than her) began abusing her in the basement of the Serigne home during the time her family lived next-door. After her family moved to Ycloskey when D.A. was five, the incidents of abuse by Lionel and William, who also began abusing her when he 'became a-teenager, continued whenever she visited her paternal grandparents, who lived across the street from the Serigne’s.

|17D.A. testified that she told no one about-'the abuse at the time because she was scared of the defendants and of their mother, who was “mean”' The abuse continued until 1984. D.A. kept quiet until sometime in 1991 or 1992 when she attended a family reunion at the Ycloskey Community Center. She was about twenty-one years -old at the time. D.A. got upset when she saw her cousin Lionel-walk into' the room holding her younger cousin, M.S. (approximately four years old at the time), who was William’s daughter. D.A. testified that when she. saw the two of them together, she got “sick” and called her flanee, B.A., to come get her, which he did. D.A. then told her fiance about what Lionel had done to her. D.A,’s mother, M.M., was also at the reunion and noticed that Lionel and William came in together, with Lionel carrying M-S. When M.M.- looked for D.A., she was' told her daughter had left crying. Later that night, D.A.’s fiance came to M.M.’,s home and told, M;M. what her daughter had said to him about Lionel. M.M. spent the whole night crying. When she- did talk to her daughter, D,A. confirmed that Lionel had molested and raped her at the house on Florissant Hwy,

A day or so later, D.A. and-her parents met with Lionel, his parents, and- his then fiancée,- P.S., at a home across from the Serigne family boat launch -in Delacroix. At this meeting, D.A.- confronted Lionel with her accusations, which he denied. There was screaming and shouting. M.'M. recalled the meeting as being vicious, saying things got physical. D.A. “got in [Lionel’s] face.” When he refused to admit anything, she punched him. The meeting concerned only Lionel, as D.A. had not yet told anyone about William, and did not mention him at the meeting. No one went to the police as a result of the meeting because the family members decided to take care of “it” themselves. M.M. said she agreed to this Indecision because she was stupid, and because her husband’s family was too prideful to admit they had any skeletons.

Approximately eighteen years after the family meeting, William’s' wife, J.B., went to see D.A. J.B. had’ just learned of accusations of childhood sexual abuse made by her then twénty-one-year-óld daughter, M.S., against her father, William. D.A. told J.B. that if there was anything she' could do to help M.S., she would do it. As a result of J.B.’s visit, D.A. went to the St. Bernard Parish Sheriffs Office on November 9, 2009, and gave a statement to Detective Rogers detailing, her childhood abuse by Lionel and William. D.A. confirmed at trial that William-had once apologized to her, as she had told Detective Rogers.

At trial, D.A, was shown photographs depicting her and other family members, including the defendants, at various ages, to aid in her recollection of- the specific incidents: of abuse. ■ Although -she could not give the exact dates and times she was molested, she could judge based on hér appearance as compared to that of the defendants at particular times. She therefore “guesstimated” the .dates, when the incidents of molestation had occurred, using the photos as a timeline for the events.

When D.A. was four, Lionel would sit her down in a room in the Serigne basement. There was a freezer and “bags of salt in there.” Lionel, who would have been fifteen at that time, would expose .his erect penis to her, grab her hand, and then make her put her hand on his penis and leave it there. D.A.’s mother recalled that one time when D.A. was about four, she had come home from playing with her panties inside out but did not have an explanation, except to say she had gone to the bathroom. Lionel was still making her touch his penis when D.A. was seven. She remembered that there was fluid, which he would want her to touch. 11flLionel sometimes would take off D.A.’s pants and panties, look at her vagina, and masturbate. He also would take her hand, put his semen in it, and ask her to put her hand in his mouth. If she refused, he would put the semen on his' own hand and put it in her mouth. When D.A. was about seven and one-half years old, Lionel began touching her vagina with his fingers while he stood looking, with an erection. When asked whether there was anyone else involved at that time, D.A. said no. Lionel did these things to her whenever she and her family went to her paternal grandparents’ home.

D.A. was shown a photograph from December 1981, when she was about eleven, and was asked by the prosecutor: “[Sjometime between 1978 and the- end of 1981, was there any different sort of activity between you and Lionel?” D.A. replied yes. She said that once during that time period, Lionel took her into a bedroom in his family’s home on Florissant Hwy., removed her bottoms, “forced himself on top of her, and put his penis in her vagina.” She knew he had put- his penis inside her because: it hurt. He was moving while on top of her, which hurt and burned, but it did not last long.

There were no other incidents involving penetration by- Lionel: However, by December of 1981, William was also molesting D.A. He would expose his erect penis to' her in the basement, wanting her to take off her panties and her‘bottoms, and would then touch and look at her. Over the years he got more aggressive, wanting her to hold his penis in her hand and to taste his semen, and putting it on her lips. About January of 1988, when she was twelve years old, William took her in the basement, sat on the bags óf salt with his pants off, had her sit in his lap with her panties off, and put his penis in her vagina. It hurt, but there was no movement because she stopped him and got up. D.A. said that this one instance, which occurred sometime between 1981 and 1988, was the only time William penetrated |2nher. Both defendants stopped molesting her sometime in 1984, by which time D.A. had stopped going to her grandparents’ home.

M.S. and her mother, J.B.

M.S., the daughter of J.B. and William, was twenty-six years old on the date she testified at trial. Her allegations of abuse by her father first came out on Thanksgiving night in 2008, when she was twenty-one. After leaving a friend’s bar with her father, m,other, and boyfriend, the group stopped at the Par 3 Diner to get something to eat, but it was closed. M.S., who was drunk, was 'beating on the back door of the diner when her father-grabbed, her arm to get her to leave.. When; he did, M.S. yelled at him, telling him not to touch her. According to her mother, J.B., M.S. told William: ,“[D]on’t fing touch me ever again. You know what I mean ...” M.S. testified that no one except her father knew what she really meant when she said, “I’m tired of you touching me.” Her boyfriend, E.N. did know because she had told him she had been sexually abused by her father. When M.S.’s mother, J.B., asked her what she meant, M.S. turned to . her father and said, “Why don’t you tell her?” J.B, then got into the car with M.S. and E.N. to drive them home. On the way, both M.S. and her boyfriend were crying. J.B. pulled the car over in front of a Burger King and asked them what was going on. J.B. had never seen E.N. crying. E.N. told her to leave him out of it, and that he had “promised” not to say anything. M.S. blurted out, crying: “Mom, this has been happening a long time. Dad has been doing this a long time to me.” M.S. said it had been happening since “Lynn Oaks,” which was the school she had attended from pre-kindergarten through second grade. At trial, M.S. said she really did not know why she had not told her mother before, except that she did not think she would have come out with the allegations if she had not been intoxicated. Also, because she was living with her boyfriend at the time, she felt she was in a safe, comfortable and secure place.

I When the three of them arrived at E.N.’s home, William was sitting in his truck outside. William and M.S. got into a confrontation in which William called his daughter a liar. When M.S. went inside E.N.’s residence for the night, it was the last time she ever spoke to her father. When J.B. went home that night, William again insisted that M.S. had been lying. The next day, J.B. went to E.N.’s to talk with her daughter, who said her father had been making her touch his penis and had been touching her vagina for as long as she could remember. M.S. told her mother she did not want to be around her father anymore. When William got home that day, J.B. again asked him whether M.S. had been telling the truth. William never answered her but took the palms of his hands, leaned on the kitchen bar, and began crying. J.B. said M.S. did not want to go to the police yet because she wanted to make sure it was the right thing to do.

The first incident of abuse M.S. remembered happened when she was about five or six years old and in the first grade. At this time the family was living in a double-wide trailer on Suzy Drive. It was a night when her mother was at bingo, which J.B. used to play three or four nights a week. On these evenings William would watch the children. M.S. and her father were hiding in a closet while playing hide-and-go-seek with her younger brother. M.S. felt her father’s erect or partially erect penis “[ijnside of his boxers or briefs, whatever they were,” on her backside, her buttocks. The second incident occurred in the same trailer in her parents’ bedroom, also when her mother was at bingo. M.S. was little older. She remembered standing while her father sat on his bed and touched her vagina with his hand, over her underwear. Her mother came home, and she ran out of the master bedroom. She remembered that her mother had won a bingo “pot” that night and was excited about it. Her father also came to M.S.’s bedroom in the trailer “numerous times” between 3:00 and 4:00 a.m., before he left for work. William worked at the Serigne Boat Launch and generally arose at approximately | gg3:30 a.m. On these occasions he would “creep up next to M.S.’s bed,” “work” one of his hands underneath the blankets, and touch her vagina over her underwear. She would not really be sleeping because she “knew he was coming.”

The family moved to Sylvia Blvd. in 2001. The early morning incidents of molestation continued there, where M.S.’s bedroom was on the second floor, directly above her parents. She said the molestation ceased when she was around the age of twelve. J.B. said that when the house on Sylvia Blvd. was. eventually sold, the buyer asked her to. inspect the attic. At that time, she noticed lights, graffiti and wine bottles,, which led her to question M.S. M.S. admitted that she used to go up to the attic to hide from her father so he would not wake her up in the morning. M.S. was sad about the abuse, knowing that what her father did was not right, but at the same.time being afraid to say anything. She did not tell her mother at the time because she was afraid, ashamed, confused, and scared. Keeping the knowledge inside, however, ate her up and made her angry.

In. junior high and high school, M.S. began to act up. Her grades.dropped, and she began drinking alcohol and using drugs. She ran away from home a few times. M.S. began dating E.N. when she was fifteen, and the relationship lasted until she was twenty-two. When M.S. was. about sixteen, she ran away, came home drunk, and had a very aggressive argument with her mother, whom she slapped. Afterwards M.S. went upstairs and slit her wrist, resulting in her being placed in “River Oaks” (a psychiatric treatment facility) for a time. She did not report any sexual abuse by her father to her therapists while she was at River Oaks.

M.S. agreed with her mother’s description of her as a “Daddy’s girl.” She explained the loving message on a Father’s Day card she had given William since the alleged abuse by saying that she did love her father, but was not happy he was | Pathe father she had. Despite what he had done to her, she was grateful to him for having provided her family, noting that her mother did not have to work and was able to be a full-time mother, M.S. acknowledged that she had never really wanted for. anything growing up because money was never an issue.

M.S. said that although her father never instructed her not to tell anyone about the molestation, it was understood. M.S. did not go to the police immediately after the Thanksgiving 2008 revelations because she said she wanted to give her father time to admit what he had done, but' he never really did. She first talked to a police detective in 2009, and eventually gave a taped statement.

M.S. was asked if she- could tell her mother almost anything, to which she responded: “Now, I can.” J.B. confirmed that she left William shortly after M.S.’s revelations. J.B. and M.S. lived for almost two years with J.B.’s sister, S.B., her fian-cé and their daughter, B.M. J.B. confirmed that in 2008, when she went to see D.A. about M.S.’s allegations, D.A. lived on Sylvia Blvd. down the block from where J.B., William and their children were living at the time. D.A.’s son and J.B.’s son were friends. J.B. also confirmed that she and William had -not lived together since November or December of 2008 and remained divorced as of the time of trial.

B.M. and her mother, S.B.

B.M. was seventeen years old and in the eleventh-grade at the'time of trial. Her mother, S.B., is the sister of J.B., who was then married to William. J.B. is therefore the aunt of B.M., and William is B.M.’s uncle and godfather. In October, 2004, when she was eight years old, B.M. went to a Halloween party at another aunt’s home with her mother, father and brother. Many other family members were there, including William and J.B.

B.M.’s parents gave William a ride home because his wife had left the party early. William carried B.M. to the car and sat her in his lap in the back seat. |mB.M.’s father was driving and her mother was in the front passenger seat. During the drive, B.M., who was half asleep, awoke to William touching her on her vagina, underneath her clothes. He touched her inside of her body. The touching lasted a few seconds and stopped when they dropped William off at home. B.M. did tell anyone at the time because she thought everyone would be angry at her. She finally told her mother, S.B., at a bingo hall sometime between 2005 and 2008, after Hurricane Katrina. She just blurted it out, began crying, and cried the entire. ride home. S.B- said B.M. made this revelation in 2008 about two weeks after the incident in the parking lot of the Par 3. Diner when M.S. had yelled at her father.' S.B. wanted to talk to her sister, J.B., before going to the police. Although B.M. begged her mother not to tell J.B., S.B. did tell her. B.M. believed it was her parents who ultimately made the decision to go to the police. B.M. confirmed that she met with Detective Michelle Rogers in August of 2010, at which time B.M. was fourteen years old. Prior to the time B.M. spoke to Det. Rogers, J.B. had lived with B.M.’s family for a period, during which time J.B.’s daughter, M.S., frequently slept over. When M.S. spent the night, she and B.M. would sleep in B.M.’s bedroom, and they would talk about William’s sexual abuse - of -them. These conversations were taking place for about one and one-half years prior -to B.M.’s interview with Det. Rogers..

Lionel Serigne

Lionel, who was fifty-four at the time he testified, confirmed that he was eleven years older than his cousin, D.A., and seven years older than his brother and co-defendant, William. Lionel began working at his family’s boat launch/marina when he was twelve, selling ice and shrimp and catching shrimp. After-high school he attended Nunez-- Community College for a few years and then worked a succession of jobs. After being laid off from his last job two years prior to trial, he 12Bwas again working at the boat launch, as well as doing some independent contract work in marine electronics.- -

Lionel denied that he had ever molested D.A. He said that from the time he got his first car at age fifteen, he did riot see much of his family because he was busy with school, \Vork, hanging out with friends, and playing sports. After D.A.’s family moved away from Florissant Highway in 1976, they still came back to visit D.A.’s paternal grandfather, who was also Lionel and William’s grandfather. Lionel indicated that D.A. had played with his younger brother, J.'J.S., who was approximately her age, and that his grandmother had kept a close eye on all the children.

Lionel began dating his first wife when they were freshmen in high ’ school and married her when he was twenty. He testified that they were both virgins when they got married. After marrying they lived for a year in a trailer on the Floris-sant Highway property. Lionel described the basement of the Serigne house as having a garage" door and next to it, a single door that was the primary access to the basement, as well as a door on the other side that was kept locked. There were no interior doors except for One to a narrow closet under the walled stairway leading up to the house. According to Lionel, there were no bags of salt stacked in the basement. He said they had no use for salt at the marina and did not sell salt. He said his uncle, J.M., stored salt at his home in Ycloskey. When shown a photograph depicting a bag of something under a piece of furniture, Lionel said it was not salt but might be corn, which they used for deer hunting.

Lionel met his second wife, P.S., about one year before their August 1, 1992 marriage. Before they got married, Lionel told P.S. that his uncle, J.M., had molested him in his grandmother’s basement three times when Lionel was between eleven and twelve years old. Lionel had never told anyone else about these incidents. He told P.S. because he was afraid he would lose her due to the [ 2f¡accusations being made against him by D.A. At the family meeting in Delacroix, P.S. confronted Lionel’s uncle about his molestation of Lionel and accused the uncle of having molested his own daughter. Lionel recalled that his uncle had responded by saying he would touch his children any way he wanted to and that it was nobody else’s business. Lionel again denied that he had ever touched D.A. in a sexually inappropriate manner, saying that there was no way he would do that to anyone because it had been-done to him.

William Serigne

William denied all the allegations made against him by the three alleged victims: M.S., B.M., and D.A, At the time of trial, William was forty-seven years old and was divorced from J.B., the mother of his daughter, M.S., and his son, W.S. His son was living with him. William worked at the Serigne’s marina/boat launch, where he had been working for as long as he could remember, since elementary school when he had begun helping his father there. William normally got up at 3:30 a.m., got to the marina at 4:15 a.m., and did not leave there until 5:00 p.m.

William said his daughter, M.S., was nine or ten when she began coming to the marina. She operated the cash .register and was in charge of the inside .until she was perhaps thirteen or fourteen. They lived in a trailer before moving to a residence on Sylvia Boulevard in 2001. William said that hiost of the time if M.S. was coming to work with him, she would be up. Sometimes his wife, J.B., would go to get her, or William would holler for her to come, or he would knock and tell M.S. it was time to roll. If M.S. was not up and ready to go, he would leave without her. William testified that he had a great relationship with M.S. until she was about age fourteen, except that he had to be the disciplinarian. He. said M.S. became a completely different -person when she reached high school age. She was drinking, using drugs, and lying to him and J.B. .One time M.S. cut her wrists 127after slapping J.B., which led to her being placed .in River Oaks for a while. At fifteen or sixteen, M.S. wanted to be emancipated, and at seventeen she wanted them to leave her alone. During that time, M.S. never accused William of having molested her, nor was he ever informed by anyone at River Oaks- that M.S. had made, such an accusation while there.

In November, 2008, M.S. was enrolled in the Paul Mitchell cosmetology school in Slidell. She had expressed a desire to transfer to the Paul -Mitchell school in Chicago, where her boyfriend; E.N., lived, but William and J.B. refused to pay for her tuition. They had taken out a loan to pay the tuition for the school in Slidell, and were unwilling.to borrow more money. On Thanksgiving morning of 2008, M.S. stopped by the home where the family was having Thanksgiving dinner to say hello and then left.- Later that evening William and J.B. were with M.S,, her boyfriend, E.N., and .many other family members at a bar. M.S. became intoxicated toward.the end of the night and did not want to leave when the bar was closing. Finally, M.S. and E.N. left, and they all ended up at the Par 3 Diner to get something to eat. When he and J.B. pulled in behind E.N.’s car, E.N. ran to them saying that M.S. was going nuts, beating everything up. M.S. jumped out of E.N.’s car and banged on the door of the closed diner. William went to get her, preventing her from running onto Judge Perez Highway. He grabbed her, threw her in the back of E.N.’s car, and told him to take her home. William got back into his car, but M.S. ran out again to the opposite side of the diner. William followed her, whereupon she said: “Stay away from me, you [expletive] child molester.” William was shocked by her statement. J.B. came over and asked him if he had heard what his daughter had called him. ' He went home alone and did not know what time J.B. arrived home. Later he and J.B. had a discussion in the kitchen about what M.S. had said, during which William was upset and crying. J.B.’s attitude toward William changed at some point around that time. William testified Lsthat he still cried every day. He denied having molested his daughter. He said that being accused of that made him feel dead inside.

William confirmed that he was asked by the St. Bernard Sheriffs Office to provide a voluntary statement with regard to the accusations by M.S., which he did, denying that he had ever molested M.S. He had never played hide and seek with his son, W.S., and M.S. He had never gone into a closet with M.S. for any reason. He had never gone into M.S.’s room in the-'early ■morning hours to awaken her, or for any reason. Instead, he would knock on the wall or holler for her to get up, telling her they had to go (to the boat launch). After M.S. made the accusations, -he had no more contact with her. After a year or two, he stopped paying for M.S.’s- automobile insurance, her car, and the Paul Mitchell school tuition.

William confirmed that he was approximately four years older than his cousin, D.A., whom he was accused of raping. He had lived on Florissant Hwy. until he was about twenty years old. D.A. also lived there, but the only time William played with her was when the family had get-togethers. William’s mother was very strict and watched him and his brothers like a hawk. If William went into the basement to get the tire pump for a flat tire, his mother would call for him, asking him what he was doing down there. William said he had never put a hand on D.A., and had not raped her or molested her. He denied that he or his brother had ever gone into the basement with D.A., and said he had never even seen his brother around D.A. He testified that his family did not use salt at the boat launch or keep bags of salt in their basement or on their property. His.uncle, J.M., who was a commercial shrimper, did stockpile salt on his property. According to William, the only time he ever spoke to D.A. was when they were older and he lived near her on Sylvia Boulevard. He said that during the three or four years he | ^lived there, D.A. dropped her children off at his house no less than once or twice a week to play with his kids.

Regarding the allegations made by B.M., William said that B.M. was his goddaughter, and her father, D.M., was his best friend. D.M.’s mother, S.B., was the sister of William’s ex-wife, J.B. After the October 2004 family Halloween party, D.M. and S.B. gave William a ride home in their Chevrolet extended-cab pickup truck. B.M. and two other children were also in the truck. As William got into the back seat of the truck, S.B. handed the sleeping B.M. to him. He handed B.M. off to S.B. when they got to his home. He denied that he had touched B.M. inappropriately that night or ever. After that night, William and his family continued to associate with D.M.’s family. They went on almost every vacation together, and evacuated together from Hurricane Katrina to the same Birmingham, Alabama hotel. After travelling from there to Lafayette, Louisiana, for a period, the two families moved to the same property in Mandeville, where they lived in campers until they were able to return to St. Bernard Parish. At this time, B.M. had not yet accused William of having molested her.

Considering the testimony, I cannot say that the trial court’s reference to there being a “family secret” is inconsistent with the evidence presented at trial. The State had to present evidence to explain why the alleged acts of molestation did not come to light until nearly three decades after they occurred. D.A. did not disclose her childhood sexual abuse until she, as a young adult, became upset when she saw her cousin Lionel, one of her former abusers, walk into a family function carrying her four-year-old cousin, M.S. It is undisputed that the authorities were not contacted at that time because certain family members met to address D.A.’s accusations against Lionel, and it was decided at this time that the matter would be handled privately by the family. From this testimony, it is reasonable for the trial | sncourt to infer that had D.A. reported her abuse to the police then, the molestation years later of two other young family members by William may not have occurred.

The testimony demonstrates that, the pertinent facts in this case actually are so intertwined that it would be difficult to separate them. Nevertheless, at trial the charges against the two defendants were clearly differentiated. There is nothing in this record to suggest that the trial judge, who was the trier of fact, did not understand'or appreciate the separate allegations against each. There was no potential for juror confusion because there was no jury. The defendants did not try to point the finger at each- other, or assert antagonistic defenses.

Despite the fact that the defendants were being tried together, the trial judge heard D:A.’s unequivocal testimony that Lionel and William were not together when she was raped by each. Lionel was convicted of ,one. count of aggravated rape of D.A. based upon one occurrence, which D.A. testified happened in an upstairs bedroom when he got on.top of her. William, who was charged with two counts of aggravated rape of D.A., was convicted of only one count of forcible rape, presumably based upon D.A.’s testimony as to the one incident in the basement when William had her sit on his lap and then penetrated her. William was also convicted of one count of sexual battery as to his goddaughter and one count of aggravated incest as to his daughter. The record does not demonstrate that an injustice was done to William (or to Lionel) as a result of the two defendants being jointly tried. I therefore find that the trial court did not abuse its discretion by denying William’s motion for new trial.

Moreover, while I agree with the majority that the trial court erred by declining to review D.A.’s grand jury testimony in camera, I do not agree that this error warrants a new trial for either defendant. To the extent that the grand jury | S1 testimony contains undisclosed Brady evidence, such evidence does not warrant a new trial unless it is material. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (adopting materiality test from Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id.

In the present case, the trial court did not have the opportunity to consider what evidence contained in the grand jury testimony would be subject to disclosure under Brady, or whether the non-disclosure of that evidence is material, so as to warrant a new trial for either defendant, Because the trial court did not rule on these issues, there is nothing for this court to review. Those issues would be better developed' in a póst-conviction posture, where the trial court can conduct a thorough evidentiary hearing. See State v. Wells, 2011-0744, pp. 5-6 (La.App. 4 Cir. 4/13/16), 191 So.'3d 1127. Therefore, I would pretermit those issues and preserve them for the defendants to raise on application for post-conviction relief, where a sufficient record may be developed. See Wells, supra-, State v. Neal, 2000-0674, pp. 13-14 (La. App. 4 Cir. 6/29/01), 796 So.2d 649, 659-60.

Conclusion

Accordingly, I respectfully dissent from the majority’s reversal of the convictions of Lionel and William Serigne. I would affirm the trial court’s convictions of both defendants. 
      
      . We note that the word '‘oral’' wás not added to La. R.S. 14,:42A until 2001, by Acts 2001, No. 301, § 1, which also amended La. R.S, 14:41, the definition of rape.
     
      
      
        . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
     
      
      . By La. Acts 1973, Nos. 125-26, effective July 2, 1973, the Legislature eliminated from La.Code Crim. Proc. arts. 813 and 817, the jury’s ability to qualify its verdict or render a responsive verdict of life in prison. The change suggests that the legislature believed that Furman’s invalidation of the death penalty turned upon wrongful allowance of this discretion. Rhymes, 284 So.2d at 923-24.
     
      
      . Notably, La. R.S. 14:42, which provides the penalty for aggravated rape, is not a procedural article,
     
      
      . The United States Supreme Court has found structural error in a limited class of cases, including the total deprivation of the right to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of the defendant's race, deprivation of the right to self-representation at trial, the right to a public tical, and erroneous reasonable doubt instructions. See Neder, 527 U.S. at 8, 119 S.Ct. 1827 (citing Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); see also State v. Harris, 11-0941, p. 20 (La.App. 4 Cir. 8/2/12), 98 So.3d 903, 917.
     
      
      . Davenport recently held that where the trial judge acts beyond his power or authority, his ruling of acquittal “is ultra vires and is of no effect.” .Thus, the .acquittal did not bar retrial of the defendant for the same crime.
     
      
      . D.A. turned twelve on December 27, 1982.
     
      
      .- Guilty of forcible rape has been a legislatively provided for responsive verdict to the charge of aggravated rape since 1975, prior to the dates of the allegation in Count 1 of the indictment. See La. Code Crim. Proc. art. 814(A)(8), as amended by Acts 1975, No. 334, § 1.
     
      
      . As M.S. was not born until 1987, the year "1983" alleged in the indictment is presumed to be a typographical error that was supposed to read "1993.”
     
      
      . The earliest date charged in William Se-rigne’s 2012 indictment for. aggravated rape was March 28, 1981, at which time it was no longer a capital offense. As such, William Serigne was free to choose- to be tried by either a judge or a jury.
     
      
      . La.Code Crim. Proc. art. 434.1 provides for exceptions to the general rule. The exceptions are that the prosecution may disclose grand jury proceedings to others in law enforcement or prosecution, but those to whom the information is disclosed are also bound to secrecy. The district attorney shall disclose to the defendant material evidence favorable to the defendant that was presented to the grand jury. The district attorney may also disclose to a witness at trial any statement of that witness, including the defendant if he testifies, that is inconsistent with the trial testimony of that witness. Acts 2012, No. 842, § 1, effective 8/1/12.
     
      
      . The indictment charges that William Se-rigne had "oral sexual intercourse” with a victim under the age of twelve. "Oral sexual intercourse” was not added to the definition of rape, La. R.S. 14:41, until 2001. See La. Acts 2001, No. 301, § 1.
     
      
      . We again note that La. R.S. 14:42 did not include “joint participation” until 1984. See La. Acts 1984, No. 579 (effective 9/3/84).
     
      
      . Hypolite cites a First Circuit case in support of its conclusion that the addition of a "hybrid" statute in 1997 gave the prosecution the discretion to choose whether to capitalize a case or not, and therefore capital procedural rules did not apply if the state did not pursue a capital verdict. See State v. Mizell, 05-2516, p. 7 (La.App. 1 Cir. 6/9/06), 938 So.2d 712, 716.
     
      
      . The Third Circuit noted that the prosecution had failed to state explicitly whether it was pursuing a capital or non-capital verdict, but the court found that all the circumstances indicated it was pursuing a non-capital verdict.
     
      
      . For reasons not apparent from the record, the district attorney recused himself between indictments.
     
      
      . We understand that this assistant attorney general died before the trial.
     
      
      . The rule, in at least one aspect, imposes a more onerous burden thán Brady requires in light of its requirement that the prosecutor not only disclose exculpatory evidence, but also evidence that tends to mitigate the offense. See Kyles, 514 U.S. at 437, 115 S.Ct. 1555 (discussing ABA Model Rule of Professional Conduct 3.8(d), which sets forth the same standards as Louisiana Rule 3.8(d)).
     
      
      . In colloquially referring to this concealed evidence as "new,” I do not overlook an important distinction: "the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial” as is the usual case with a motion for new trial based on newly discovered evidence. Agurs, 427 U.S. at 111, 96 S.Ct. 2392.
     
      
      . It was not until this court ordered the parties to file additional briefs on the issue of whether Lionel's waiver of the jury constituted an error patent that the appellants addressed this issue.
     
      
      . The amendment hybridizing the statute followed the 1995 amendment whereby the legislature once again made the death penalty, which had been removed from the statute in 1977, available as an optional sentence for certain types of aggravated rape, including the rape of a child. See La. Acts 1995, No. 397, § 1; La. Acts 1997, No. 898, § 1.
     
      
      . La. R.S. 14:42 was again amended by La. Acts 2015, No, 184, § -1; and Acts'2015, No. 256, § 1, effective August 1, 2015, to provide for “First degree rape," which carries the option of the death penalty if the district attorney chooses to pursue capital punishment, and “Second degree rape,” in La. R.S. 14:42,1, which does not include the option of capital punishment. That amendment is not pertinent to this case. -
     
      
      . 1977 La. Acts. No. 343, effective September 9,-1977.-
     
      
      . Although the Singleton court held the defendant was legally entitled to waive a jury trial, it remanded the matter for an evidentiary hearing on whether Mr. Singleton’s waiver was knowing and voluntary under the circumstances of that case, 2005-0622, p. 12, 922 So.2d at 654.
     
      
      . The Hypolite court also noted that the Louisiana Supreme Court's decision in State v. Goodley, supra, was not controlling, 2013-1365, p. 15, 439 So.3d at 698.
     
      
      . A trial court’s ruling on ground 1, that the verdict is contrary to the law and evidence, is not reviewable on appeal. State v. Snyder, 98-1078, p. 37, n. 21 (La.4/14/99), 750 So.2d 832, 8591; State v. Colbert, 2007-0947, p. 14-15 (La.App. 4 Cir. 7/23/08), 990 So.2d 76, 85-86.
     
      
      . At trial the birthdates of the two defendants and their three accusers were stipulated to: William Serigne, March 28, 1966; Lionel Se-rigne, February 13, 1959; D.A., December 27, 1970; M.S., October 19, 1987; and B.M., July 25, 1996.
     
      
      . The defense witnesses also included the detective who had originally investigated the victims’ allegations, and thirteen of the defendants' relatives and friends, each of whom offered factual and/or character evidence as to one or both of the defendants.
     
      
      . She testified she told a friend several months afterward about William’s abuse of her, and that the friend had since died,
     
      
      , At this time J.B., William and'their children were living on Sylvia Blvd, near D.A., her then husband, B.A, and-their, children. J.B.- and William subsequently divorced, as did D.A. and B.A.
     
      
      . This statement was introduced into evidence.
     
      
      . These photographs had been identified by D.A.’s mother and introduced into evidence.
     
      
      , On cross-examination M.S. conceded that she would have been fourteen in 2001, when the family moved to Sylvia Blvd,
     
      
      . A series of cases have developed the so-called "antagonistic defenses” test which, if and when satisfied, would require a severance. To meet the test, a defendant must show that a joint trial would be prejudicial to his interests. State v. Williams, 416 So.2d 914, 916 (La.1982).
     