STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-1008
STATE OF LOUISIANA
VERSUS
ADAM BATISTE, III
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR-141203 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese, Judges.
AFFIRMED.
Keith A. Stutes District Attorney, Fifteenth Judicial District Cynthia K. Simon Assistant District Attorney P. O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana Chad M. Ikerd Louisiana Appellate Project P.O.Box 2125 Lafayette, LA 70502 (225) 806-2930 COUNSEL FOR DEFENDANT- APPELLANT: Adam Batiste, III
Adam Batiste, III Hickory #1 Louisiana State Penitentiary Angola, LA 70712 Pro Se PICKETT, Judge.
FACTS
On January 16, 2013, the defendant Adam Batiste, III called 911 and
requested help for his girlfriend, Gabriella Spencer, stating that she had fallen in
the shower, was not responsive, and was barely breathing. When the fire
department arrived, they saw that Ms. Spencer appeared to have been severely
beaten and summoned the police. Ms. Spencer was taken to the hospital where it
was determined she also suffered from a subdural hematoma which caused her
death shortly thereafter. The defendant was subsequently arrested for the second
degree murder of Ms. Spencer.
The defendant was indicted on March 22, 2013, for the second degree
murder of Gabriella Spencer, a violation of La.R.S. 14:30.1. A jury trial
commenced on April 29, 2015. On May 1, 2015, the jury returned a verdict of
guilty as charged.
The defendant was sentenced on May 6, 2015, to life imprisonment without
the benefit of parole, probation, or suspension of sentence. The defendant did not
file a motion to reconsider the sentence.
The defendant has perfected a timely appeal. He asserts that “[t]he State
failed to offer sufficient evidence that Adam Batiste committed second degree
murder and did not negate the reasonable probability that the fatal injury was
accidentally self-inflicted.” The defendant has also filed a pro-se brief, which
alleges insufficient evidence and ineffective assistance of trial counsel.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find there are no errors patent. ATTORNEY ASSIGNMENT OF ERROR NUMBER ONE, AND PRO SE
ASSIGNMENT OF ERROR NUMBER ONE:
The defendant argues the state failed to negate the reasonable hypothesis that
Ms. Spencer’s injuries were accidently self-inflicted when she fell in the shower.
Alternatively, he suggests her injuries were caused by some unknown persons who
beat her up on December 28, 2012, and possibly caused the head injury at the same
time. Since there was no eyewitness to what caused any of Ms. Spencer’s injuries,
and the defendant did not confess to causing her injuries, the verdict was based
solely on circumstantial evidence. The circumstantial evidence rule states that
“assuming every fact to be proved that the evidence tends to prove, in order to
convict, it must exclude every reasonable hypothesis of innocence.” La.R.S.
15:438. The defendant asserts that with only the circumstantial evidence, the state
failed to prove he caused the victim’s death; accordingly, the evidence was
insufficient to sustain the verdict.
This court has stated that questions of the sufficiency of the evidence are
considered using the following standard of review:
[A] reviewing court must consider the evidence presented in the light most favorable to the prosecution and consider whether a rational trier of fact could have concluded that the essential elements of the offense were proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court defers to rational credibility and evidentiary determinations of the trier of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.
State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ
denied, 03-2913 (La. 2/13/04), 867 So.2d 686.
Additionally, in State v. Williams, 13-497, pp. 4-5 (La.App. 3 Cir. 11/6/13),
124 So.3d 1236, 1240, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this
court noted:
2 “Evidence may be either direct or circumstantial.” State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, ___ U.S. ___, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La.R.S. 15:438.
In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye- witnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of 3 preliminary facts excludes every reasonable hypothesis of innocence.
In the current case, the defendant was convicted of second degree murder,
which is the killing of a human being “[w]hen the offender has a specific intent to
kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). At trial, the
following testimonies and exhibits were presented:
On January 16, 2013, Robert Davis, a firefighter with the Lafayette Fire
Department, responded to a 911 call regarding a woman who was having breathing
difficulties. He was the first responder on the scene. He testified that as he was
walking up to the house, the defendant met him at the door with Ms. Spencer slung
over his shoulder. Mr. Davis directed the defendant back into the house. Ms.
Spencer was laid on the floor at the bottom of the upstairs steps. She was wearing
only a shirt. The defendant went upstairs and was not seen again until the
ambulance and the police arrived. Mr. Davis did not recall if the victim or her
shirt were wet. He testified that her pulse was very weak, and her eyes were
opened but crossed. While he was attending to her, she went into cardiac arrest.
Because he had to cut off her shirt and the defendant had not yet come back down
stairs, Mr. Davis went into the laundry room to look for something to clothe her
with. Mr. Davis said there were towels and rags tossed around, and the laundry
room smelled strongly of bleach. He further stated that the police were called
because of Ms. Spencer’s condition. She was bruised and scratched over much of
her body. Mr. Davis went in the ambulance with Ms. Spencer to the hospital to
help continue with chest compressions.
Ben Smith, a corporal with the Lafayette Police Department, was the first
officer to respond. He testified that the defendant told him that Ms. Spencer had
not been feeling well and that she had not been eating or drinking and had been
4 vomiting a lot. That morning, as she was showering, he heard a crash, and when
he went into the bathroom, she was lying face down in the tub. The defendant took
her out of the bathtub and sat her on the toilet seat. He said he tried to revive her,
but she remained unresponsive. After about twenty minutes, the defendant called
911 for help. The defendant also told Corporal Smith that Ms. Spencer had been
involved in an altercation with a bus driver on December 28, 2012. Corporal
Smith also learned that a friend of the defendant’s, Rodney Joubert, had been
staying at the defendant’s house for three or four days.
Detective Scott Broussard, a crime scene investigator with the Lafayette
Police Department, testified that because of the small cuts on the victim’s body, he
looked for evidence of blood around the house. The detective described a
chemical called Blue Star, which was a blood reagent that reacted with the
hemoglobin in the blood. He stated he sprayed the reagent around the house and in
the defendant’s and Ms. Spencer’s bedroom and bathroom. He said there was a
reaction to the chemical in the bathroom and on the bed. The detective also
explained that when blood was cleaned up using Clorox, the area where the
chemical was sprayed will turn a brilliant blue and then rapidly fade to a quieter
shade of blue. He stated this happened in the bathroom and bedroom. The
detective took photographs of the areas showing the blue luminescence. The
detective also swabbed the spots with a hemastick to test the spots for possible
blood. The swabs were sent to Acadiana Criminalistic Laboratory for analysis.
The detective admitted there was no way to know when the blood was deposited or
whose blood it was. He explained that Clorox destroyed DNA. He further
explained the field testing procedure was only a presumptive test for blood.
Paul Trouard, a detective with the Lafayette Police Department, was the lead
investigator in this case. Ms. Spencer had been removed to the hospital by the time 5 he arrived on the scene. The defendant was seated in the back of a patrol car.
After advising him of his Miranda rights, the detective spoke with the defendant.
The defendant told him primarily what he had told Corporal Smith. He further
advised the detective that Ms. Spencer had not been out of the house for almost
three weeks, since the December 28 incident. The defendant advised the detective
that Ms. Spencer’s bruises and abrasions were the result of being beaten up on the th 28 by unknown persons, at an unknown location, and at an unknown time.
Detective Trouard testified that he had the entire area canvased to see if he could
establish whether Ms. Spencer had been accosted by some men on that date. He
said there was no evidence of such an attack. The detective received permission to
search the house. On a walk-through, the detective noted an open bottle of bleach
in the laundry room. He also noted the door frame to the defendant’s and Ms.
Spencer’s bedroom was splintered away from the wall. The detective testified the
only clean room in the house was the bathroom where Ms. Spencer reportedly
slipped in the tub as she showered. The detective noted that while the bottom part
of the tub was wet, the top part and the shower area were dry. The detective then
went to the hospital and asked if he could see Ms. Spencer. He stated that he was
shocked at the extent of her injuries. He said that he knew then there was a
problem with this case. She had bruises from “head to toe.” At this point, he
requested that one of his detectives go to the hospital and photograph her injuries.
He also requested that one of the detectives contact the bus line and get the video
surveillance tape from the bus the day Ms. Spencer supposedly got into a fight with
the bus driver.
The surveillance tape of the time Ms. Spencer got on the bus until she got
off the bus was shown to the jury. The tape revealed a very thin young woman,
dressed all in pink, getting onto the bus at a bus stop. She stood and spoke with the 6 bus driver for a few minutes without putting any money into the till. When the bus
stopped and a passenger got off, Ms. Spencer yelled at the passenger to get back
on. When the bus driver argued with Ms. Spencer and did not start driving, Ms.
Spencer told her to keep driving. Through the front window of the bus, a Camaro
can be seen driving towards the bus. Ms. Spencer became hostile and started
hitting the bus driver. The Camaro stopped and backed up, and the defendant got
out of the vehicle. By this time, a male bus passenger pulled Ms. Spencer off the
driver and pushed her out the door to the defendant, who attempted to put Ms.
Spencer into the car. The bus driver drove off with Ms. Spencer’s purse still on the
bus. th Carol Andrus was the bus driver involved in the December 28 incident with
Ms. Spencer. She testified that Ms. Spencer got onto the bus when the bus stopped
at a pick-up point. Ms. Spencer told the bus driver that someone had beaten her up
and asked if the bus driver would help her. The driver said Ms. Spencer had a
black eye and some scratches on her face. However, she did not see any other
injuries as Ms. Spencer had on a pink shirt with long sleeves and long, pink pants.
After Ms. Andrus started driving, Ms. Spencer became agitated and wanted her to
drive in a different direction then what the bus route was. She also did not want
Ms. Andrus to open the doors to allow passengers to exit the bus. Ms. Andrus
stated that when she attempted to continue driving, Ms. Spencer started to hit her.
One of the bus passengers pulled Ms. Spencer off the driver, took her off the bus,
and gave her to a man who stopped his car in front of the bus. Ms. Andrus testified
that she did not hit Ms. Spencer. While Ms. Andrus saw Ms. Spencer attempt to
get back on, she drove away knowing that Ms. Spencer’s purse was still on the bus.
Ms. Andrus wanted to keep the purse so that her attacker could later be identified.
7 Dr. Foster Kordish was the emergency room physician the day Ms. Spencer
was taken to the hospital. He testified she came in intubated and in critical
condition. He ordered a CT scan. Doctor Kordish testified that according to the
scan, Ms. Spencer had a bilateral subdural hematoma. He explained there were
two areas on either side of the brain where blood had collected, putting a lot of
pressure on the brain. Plus, her brain was swelling from the lack of oxygen. The
doctor testified that there did not, however, appear to be any fracture of the skull.
The scan also revealed that Ms. Spencer had five fractured ribs and both of her
lungs were partially collapsed. Two of the rib fractures appeared to be new, or
acute. He estimated the fractures were one to two days old. The remaining three
fractures were sub-acute, or several days to a couple of weeks old. However, it
was the brain injury that was the cause of death. The doctor testified that the
extensive bruising on her body was caused by blunt force trauma. He further
stated that while she could have vomited a few times, there was no evidence that
she had not been eating or drinking for several days. She did not appear to be
dehydrated. The doctor discussed the bruising, stating that it appeared some of the
bruising was older and some much more recent. He opined the subdural hematoma
was two to three days old. The doctor also was of the opinion that a fall in the
shower was not the cause of the bilateral subdural hematoma. He stated that if a
young person such as the victim faints in the shower, generally the person will
simply collapse, and a subsequent blow to the head on the tub would not have been
severe enough to cause a bilateral subdural hematoma. He stated with certainty the
subdural hematoma did not occur nineteen days prior to Ms. Spencer’s
hospitalization.
Dr. Christopher Tape, a forensic pathologist, performed the autopsy on the
victim and testified as to the results. Upon removing the skull and examining the 8 brain directly, Dr. Tape found a subdural hemorrhage that extended to both sides of
brain. He stated that the blood was “loosely adherent,” indicating that the injury
was not very old. He further noted that when he pulled back the scalp from the
skull, he found several hemorrhages, on the front and top of the skull area. He
agreed that five ribs were fractured, two of which were relatively fresh fractures.
The doctor described the contusion, abrasions, and bruising to Ms. Spencer’s body.
The injuries covered mostly her arms and legs and were very extensive. There
were small, stab-like wounds to her arms, legs, and hands. There were contusions
and bruises on her forehead, around her eyes, neck, shoulder, right breast, and
lower abdomen. Furthermore, Dr. Tape agreed that the brain injury was most
probably not the result of a fall in the shower. He explained that a number of
things could cause this type of brain injury:
[I]t has to be some sort of violent action, usually an acceleration or deceleration or multiple blows of some kind. . . . These are generally thought not to be from falls because when you have a fall, you have something called a ‘coup countercoup injury.’ When you fall, you’ll have a mark wherever you hit on the external surface, but paradoxically, you might not expect the opposite side of the brain gets major injury. And it’s the subarachnoid hemorrhage that happens. Subarachnoid just means it’s within the brain parenchyma itself. It’s within the brain tissue itself. And this is very different than this and it’s very clear that you have the external coup injury and the internal countercoup injury, and that wasn’t here in this case. So, I can say that there wasn’t a major fall that caused the death here because there’s no countercoup injury in the brain.
Dr. Tape testified that the cause of death was the traumatic brain injury, and
considering the condition of the victim’s body, he concluded the manner of death
was homicide. He stated the brain injury was three to five days old, which
included the one day the victim’s body was on life support awaiting harvesting of
her organs.
Rodney Joubert, a childhood friend of the defendant’s, testified that of the
three to four days prior to Ms. Spencer’s death he spent in the defendant’s house, 9 he never once saw her. In fact, he testified that he was not really aware of her
existence. He did state that he might have heard them laughing once upstairs but
agreed that it could have been the TV.
Finally, the defendant testified that he and Ms. Spencer had been dating for
about eight months. She moved into his house after his mother died a few months th before. He said when he left Ms. Spencer on December 28 , she was fine. But
after the bus incident, when they got home, Ms. Spencer had bruises all over her
body. She told him that she had gotten beat up by a couple of men while walking
to the store. However, she would not tell him who, where, or when. He said he
asked her every day if she wanted to go to the hospital, but she refused because she
was concerned about an arrest warrant that had been issued after the situation with
the bus driver. The defendant testified that for a few days before the slip in the tub,
she had been complaining about a headache. She would not eat or drink anything.
She was vomiting up everything she ate. That morning, he suggested she take a
shower and try to get back into a routine. He was dressing in their room when he
heard a crash. When he went into the bathroom, he found her face down in the tub.
He said he attempted to pick her up out of the tub, but she slipped out of his hands,
and he dropped her, and she hit her head on the side of the tub. He denied that he
ever hit her at any time.
In brief, the defendant refers to State v. Shapiro, 431 So.2d 372 (La.1982),
wherein the supreme court reversed a second degree murder conviction founded on
circumstantial evidence because the state failed to exclude the reasonable
hypothesis that the victim committed suicide. The defendant does not discuss
Shapiro relative to the current case. However, in Shapiro the supreme court
discussed at length the application of the circumstantial evidence rule, which may
10 be helpful in determining whether the conviction in the current case was based on
sufficient, albeit, circumstantial evidence.
In Shapiro, the only eyewitness to the victim’s death was the defendant, and
he asserted that the victim killed herself, either accidentally or intentionally.
Initially, the supreme court affirmed the conviction. The physical evidence, gun
powder residue on the palm of the defendant’s hand but a minuscule amount on the
victim’s hand, indicated that the defendant fired the gun. Moreover, the position of
the body and the gun led to speculation by an expert that the victim could not have
possibly shot herself. However, upon reexamination of the facts of the case, the
supreme court noted that while the defense’s and the state’s experts were in
disagreement, each of their opinions were also solely assumptions, probabilities,
possibilities, and suggestions. The supreme court noted:
[W]hile perhaps it might be concluded that the evidence does “tend” to prove that Shapiro fired the gun, the evidence similarly “tends” to prove that Ryland fired it. We therefore conclude that the state did not exclude the reasonable hypothesis that Lavonna D. Ryland’s death resulted from a self-inflicted gunshot wound.
The evidence in this circumstantial case is simply insufficient as a matter of law under La.R.S. 15:438. The defendant’s conviction and sentence are reversed.
Id. at 388 (on rehearing).
The defendant offers two hypothesis of innocence in this case. Insisting that
Ms. Spencer received the bruises, broken ribs, cuts, and contusions on December
28, the defendant contends that in all probability, Ms. Spencer caused her own
head injury when she slipped or fainted in the shower and hit her head on the tub.
He also suggested that Ms. Spencer had possibly gone out of the house on her own
while he was gone from the house and was attacked by someone who caused the
brain injury or that someone came into the house when he was not home and
caused all the injuries, including the brain injury. 11 The defendant argues incorrectly that “[t]he two doctors that testified for the
State disagreed amongst themselves as to whether a fall or falls in the shower
could have caused the injuries to Ms. Spencer’s brain in this case.” Both doctors,
however, agreed that it was highly unlikely that a fall in the shower was the cause
of the subdural hemorrhage. They both explained that the subdural hemorrhage
was not consistent with that type of fall. Both doctors agreed that the bleeding in
the brain was extensive, extending from one side of the brain to the other side.
They both agreed that one or more blows to the head could have caused the
bleeding. Finally, both doctors testified that the brain injury was two to three days
old from the date Ms. Spencer was admitted to the hospital.
In this case, the forensic evidence tended to disprove the defendant’s
assertion that, except for the brain injury, Ms. Spencer received all the injuries
nineteen days before her death. The state’s expert forensic pathologist, Dr. Tape,
and the emergency room physician, Dr. Kordish, both agreed that several of the
bruises, the broken ribs, and the contusions were no more than a few days to a
week or more old, including the fatal brain injury.
The defendant further argues that the brain injury should have been
considered separately when determining the manner of death. He argues that “Dr.
Tape stated his reasoning was because he considered all the injuries together,
instead of the possibility that at least the final injury was separate or occurred due
to different reasons, like an accident.” This statement might have merit had not
both doctors testified that the infliction of the injuries was progressive. Both
doctors testified that while many of the injuries were older, several were fairly
recent. The rib fractures were from two or three days to a few weeks old. The
bruising was in various stages of healing. The cuts and scratches on her arms and
hands were beginning to scab over, but still open wounds. Dr. Tape testified: 12 Because there are so many injuries that I don’t have a better explanation for them. An autopsy is diagnosis exclusion. We go down the line and there’s all these injuries. There doesn’t seem to be an accidental explanation for them. They don’t seem to be as old as this three week explanation. The subdural hemorrhage - - assuming that is old as three weeks. There’s multiple scalp hemorrhages, so therefore, I have to think that there was likely an assault, more likely an assault than anything else.
The defendant suggested at trial that, excluding the brain injury, all the
injuries resulted from a beating Ms. Spencer took on December 28, 2012. He
pointed out that Ms. Spencer told the bus driver that she had been beaten and asked
for help. He testified that she told him she was walking to the store and was beaten
up by some men for some reason. However, testimony established that she got
onto the bus at the stop by her house. In brief, the defendant suggests that because
she had been beaten up by two men, she got onto the bus in an effort to find him.
However, considering the extent of the injuries, it seems unlikely that if Ms.
Spencer had been beaten up as she walked to the store, instead of getting help right
then, she went home and then decided to get on a bus to look for the defendant. In
addition, the state established the extensive injuries were not nineteen days old.
The defendant initially indicated to Detective Trouard that following the
incident on the bus, Ms. Spencer did not leave the house. Considering the fact that
testimony established the infliction of the injuries was on-going, it was reasonable
that the jury concluded it was the defendant who was beating her. The defendant
testified that on the morning of the bus incident, Ms. Spencer was okay, but later
that day she appeared with injuries which she said she got when some unknown
person beat her up. The bus driver testified that when Ms. Spencer got on the bus,
she had a black eye and a cut to her face. This was nineteen days before her death.
The emergency room doctor and the pathologist who did the autopsy each testified
that her injuries were from a few days old to a few weeks old. Accordingly,
13 approximately four or five days following the bus incident, Ms. Spencer received
more injuries. Then approximately ten or twelve days after the bus incident, she
received more injuries. Finally, a few days before she collapsed, she received at
least the fatal injury, the injury to her brain. There were other inferences tending to
disprove the defendant’s hypothesis: the fractured bedroom door frame, the half-
wet shower, and the victim who reportedly collapsed in the shower while wearing
a shirt. The firefighter who first attended Ms. Spencer did not remember if her
shirt was wet. Furthermore, there was evidence of a clean-up in the bedroom and
bathroom with bleach. All the inferences which may reasonably be drawn from
the facts were consistent with the defendant’s guilt, and inconsistent with the
defendant’s assertion that the injuries were received on the day of the bus incident,
and then, nineteen days later, she slipped in the tub and hit her head.
The defendant also suggested the possibility that while he was out of the
house, she left the house and was assaulted again. As noted at trial, there was
testimony that the defendant initially told the police Ms. Spencer had been
continuously in his presence since the bus incident. The defendant, however,
testified that he left the house for periods of time during the nineteen days since the
bus incident. He argues in brief that “[t]he State could not rule out the possibility
what while home alone, Ms. Spencer left the house and suffered any of the non-
fatal or fatal injuries documented in this case[.]” This explanation was not a
reasonable hypothesis of innocence. The defendant claimed that Ms. Spencer had
headaches and was vomiting. This contention is contrary to his assertion that she
could have left the home, sustained further injuries, and then failed to report that
beating. She did not even venture downstairs to greet the defendant’s childhood
buddy, who was there for three or four days before she collapsed, and whom she
had never met. 14 As noted above, the evidence must have a legitimate tendency to compel
belief in and finding of the defendant’s guilt. The evidence in this case was of
such a character and tendency as to produce a proof of the defendant’s guilt to the
exclusion of reasonable doubt. Based on the apparent timeline of the injuries, the
jury could have reasonably concluded the only logical explanation was that the
defendant was systematically beating Ms. Spencer, which resulted in her death.
Quoting State v. Captville, 448 So.2d 676, 680 (La.1984), this court in State v.
Jackson, 14-9, p. 4 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 634-35, writ denied,
14-1544 (La. 2/27/15), 159 So.3d 1066, noted that in case of circumstantial
evidence, “the fundamental principle of review means that when a jury ‘reasonably
rejects the hypothesis of innocence presented by the defendant’s own testimony,
that hypothesis falls, and the defendant is guilty unless there is another hypothesis
which raises a reasonable doubt.’” As already noted, the hypotheses offered by the
defendant were implausible in light of the medical testimony.
Specific intent is a state of mind and as such, it need not be proven as a fact,
but may be inferred from the circumstances of the transaction and the actions of
the defendant. State v. Williams, 383 So.2d 369 (La.1980), cert. denied, 449 U.S.
1103, 101 S.Ct. 899 (1981); see also La.R.S. 14:10(1). Further, the intent to kill
or to inflict great bodily harm may be inferred from the extent and severity of the
victim’s injuries. State v. Keating, 00-51 (La.App. 5 Cir. 10/18/00), 772 So.2d
740, writ denied, 00-3150 (La. 10/12/01), 799 So.2d 494. The circumstances
indicated beyond a reasonable doubt that the defendant intentionally inflicted
serious bodily harm on Ms. Spencer and that she died as a result.
There is no merit to either the attorney-filed or the pro se assignments of
error number one.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO 15 The defendant asserts that defense counsel should have objected to Detective
Broussard’s testimony regarding the use of the Blue Star reagent to locate blood in
the bathroom and the bedroom. He argues that the jury was allowed to hear
testimony which prejudiced him by inferring that he cleaned up a crime scene,
thereby hurting his chances of a not guilty verdict. Accordingly, defense counsel
rendered ineffective assistance.
The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. Egan, 44,879 (La.App.2d Cir.12/9/09), 26 So.3d 938; State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish that his attorney was ineffective, the defendant first must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. See Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir. 4/4/07) 954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).
Second, the defendant must show that counsel’s deficient performance prejudiced his defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, i.e., a trial whose result is reliable. Strickland, supra. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show the error had some conceivable effect on the outcome of the proceedings. Rather, he must show that, but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Grant, supra.
As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates 16 the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Egan, supra. Because the record is sufficient to adequately resolve the issue of the effectiveness of the defendant’s counsel, and in the interest of judicial economy, we will address this defendant’s claims on appeal.
State v. Moran, 47,804, pp. 9-10 (La.App. 2 Cir. 4/10/13) 135 So.3d 677, 683-84,
writ denied, 13-1052 (La. 11/15/13), 125 So.3d 1101.
In the current case, a review of the trial record shows that regarding this
particular allegation, the record is sufficient to address the issue of ineffective
assistance.
At trial, following the state’s direct examination of Detective Broussard,
wherein he testified the Blue Star reagent could detect blood that has been cleaned
up and that he sent swabs of the area where he found presumptive blood off for
analysis, defense counsel questioned him regarding the alleged blood located in the
bedroom and bathroom:
Q. Okay. Now, I’ve got some things I’m real curious about. On two occasions in your testimony, you refer to it as possible blood. You said it shows possible blood.
A. Yes, both testing procedures, the Blue Star [and] indicating sticks are both presumptive testing for blood. That’s what they are, they’re for presumptive test of blood.
Q. Okay. And let me just suppose because I have the report from the Acadiana Crime Lab, and the Acadiana Crime Lab - - well, you swabbed it and sent it to them, didn’t you?
A. Yes.
Q. And suppose because I have the report, Acadiana Crime Lab said there was no blood –
At this point, the state objected, arguing that the defense was questioning the
detective about “something that’s not in evidence.” The defense pointed out that 17 the state had subpoenaed the crime lab records. However, apparently the state
decided not to use the report issued by the crime lab. Defense counsel then
requested the trial court to issue an instanter subpoena for whoever issued the
report. Accordingly, during the defendant’s case, defense counsel examined Ms.
Winnie Kurowski, an expert in biological fluids and DNA analysis for Acadiana
Criminalistic Laboratory. Ms. Kurowski testified that there was no blood detected
on the swabs that were sent to the laboratory for analysis.
It is obvious that rather than exclude the testimony, defense counsel decided
it would be more effective to the defendant’s plea of innocence to impeach the
detective’s testimony. Defense counsel’s decision not to attempt to exclude the
testimony was apparently trial strategy.
In State v. Truehill, 09-1546, p. 17 (La.App. 3 Cir. 6/2/10) 38 So.3d 1246,
1257-58, this court discussed ineffective assistance and trial strategy, as follows:
Ineffective assistance of counsel does not exist unless there was a deficient performance by the attorney. [State v.] James, [95-962, p. 4 (La.App. 3 Cir. 2/14/96), ] 670 So.2d [461,] 465. An alleged error can be construed as trial strategy if there are differing views regarding the advisability of a tactic: This court has long agreed with our brethern of the fourth circuit in recognizing “that if an alleged error falls ‘within the ambit of trial strategy’ it doesn’t ‘establish ineffective assistance of counsel.’ State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).” State v. Sias, 03-891, p. 6 (La.App. 3 Cir. 12/10/03), 861 So.2d 829, 834, quoting State v. Schexnaider, 03-144, p. 18 (La.App. 3 Cir. 6/4/03), 852 So.2d 450, 462. This court has repeatedly used this approach to trial strategy. State v. F.B.A., 07-1526 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La.3/27/09), 5 So.3d 138; State v. Duplichan , 06-852 (La.App. 3 Cir. 12/6/06), 945 So.2d 170, writ denied, 07-148 (La.9/28/07), 964 So.2d 351; State v. Collins, 04-1441 (La.App. 3 Cir. 3/2/05), 896 So.2d 1265, writ denied, 05-1334 (La.1/9/06), 918 So.2d 1040.
The Louisiana Supreme Court has directly addressed the issue of trial
strategy when reviewing an ineffective assistance of counsel claims in State v.
Brooks, 505 So.2d 714, 724 (La.1987) where it stated:
18 While opinions may differ on the advisability of such a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful. Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052] (1984).
The jury heard Detective Broussard’s testimony. The detective repeatedly
explained the supposed blood evidence located in the bathroom and the bedroom
were presumptive. Defense counsel questioned the detective at length regarding
the testing procedure, and defense counsel had the opportunity to put before the
jury the fact that there was no blood evidence on the swabs sent to Acadiana
Criminalistic Laboratory. The defendant has failed to show defective performance
or that the case was prejudiced by the testimony.
The defendant’s pro se assignment of error is without merit.
CONCLUSION
The state proved that beyond a reasonable doubt the defendant committed
second degree murder of Gabriella Spencer, to the exclusion of any reasonable
hypothesis of innocence. The defendant’s conviction is affirmed.