State of Louisiana v. Jarvis Berard

• Court: Louisiana Court of Appeal
• Decided: October 7, 2015
• Docket: KA-0015-0318
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

KA 15-318

STATE OF LOUISIANA

VERSUS

JARVIS BERARD

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 13265 HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

DAVID KENT SAVOIE JUDGE

Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie, Judges.

AFFIRMED WITH INSTRUCTIONS. Hon. J. Phillip Haney District Attorney Robert Leyton Odinet Assistant District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana

Edward John Marquet Louisiana Appellant Project Post Office Box 53733 Lafayette, LA 70505-3733 (337) 237-6841 COUNSEL FOR DEFENDANT/APPELLANT: Jarvis Berard SAVOIE, Judge.

Defendant Jarvis Berard was indicted for the December 22, 2012, second

degree murder of his wife, Ada Nelson Berard. A jury trial commenced on June 23,

2014, and Defendant was found guilty as charged. Defendant was sentenced on

August 14, 2014 to life imprisonment without the benefit of parole, probation, or

suspension of sentence.

Defendant has perfected a timely appeal wherein he alleges that the evidence

submitted was insufficient to sustain the verdict of second degree murder. He

argues that manslaughter was the correct verdict under the facts and circumstances

of the case.

For the following reasons, we affirm the conviction of second degree murder

and direct the trial court to inform Defendant of the provisions of La.Code Crim.P.

art. 930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of the opinion and to file written proof in the record that Defendant

received notice.

ASSIGNMENT OF ERROR

In the early morning of December 22, 2012, after arguing with his wife,

Defendant stabbed her twenty times with a knife. The victim died as a result of the

stab wounds. Although he admits to stabbing his wife to death, Defendant argues

that the facts do not support a conviction of second degree murder. Defendant

contends that the killing was committed in sudden passion and the heat of blood

caused by his wife’s provocation. Therefore, it is his contention that this court

should reduce the conviction to manslaughter and remand the matter for

resentencing. Second degree murder is defined as the killing of a person “[w]hen the

offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S.

14:30.1(A)(1). Manslaughter is defined in part as:

(1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed[.]

La.R.S. 14:31(A)(1).

When a defendant raises the issue of sufficiency of evidence on appeal, a

reviewing court, considering the evidence in the light most favorable to the

prosecution, must determine whether any rational trier of fact could have found

that the essential elements of the offense were proven beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). “The actual trier of fact’s

rational credibility calls, evidence weighing and inference drawing are preserved

through the requirement that upon judicial review all of the evidence is to be

considered as if by a rational fact finder in the light most favorable to the

prosecution[.]” State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (footnotes

omitted). See also State v. Marcantel, 00-1629 (La. 4/3/02), 815 So.2d 50.

Vanessa and David Parker lived across the street from Defendant and his

wife, Ada Berard. They testified that at approximately 3:00 a.m., on December 22,

2012, they heard screaming and pounding at their door. When they answered, they

found Key’era Green, Ms. Berard’s nine-year-old daughter, crying for help for her

mother. The little girl started back across the street but turned back when she saw

Defendant exit the house. The little girl and the Parkers went back into their house

2 and called 911. The little girl was bloodied from a cut on her hand. The Parkers

testified that they had known the couple for a few years. They both stated that they

had never observed the couple fighting during that time period.

Key’era Green, eleven years old at the time of trial, testified that there were

three other children in the house that night—her older brother, Gregreon Green, a

younger brother, Jaylon, and an infant, Jarvis. She testified that her mother went

out that evening with her aunt, Ms. Berard’s sister, Destiny Nelson. After her

mother came home in the early morning, Ms. Berard and Defendant began

fighting. Ms. Berard put on her nightgown and went into Gregreon’s room to lay

down with him. However, Defendant came into the room, and he and Ms. Berard

continued arguing. When Ms. Berard went into the living room, Key’era,

Gregreon, and Jaylon followed. Ms. Berard sat on the couch with Key’era.

Key’era testified that Defendant pulled a knife from behind his back and began to

stab her mother. She said that when her mother attempted to crawl away,

Defendant kicked her in the face. Key’era tried to protect her mother and was cut

on the hand. She stated that Defendant was drinking that evening, although she did

not know what or how much. Finally, Key’era testified that her mother and

Defendant fought often and, at times, the fights became physical.

Gregreon Green, aged fourteen at the time of trial, also testified. His

testimony corroborated his sister’s testimony. Ms. Berard went out at about nine

or ten in the evening. She arrived back at home around two in the morning. She

went into Gregreon’s room, and when Defendant followed her into that room, Ms.

Berard went into the living room and sat on the couch with Key’era. He testified

that Defendant pulled a knife out of the pocket of his shorts and began to stab Ms.

Berard. Gregreon said that his mother kept crying for him to stop. Gregreon

3 begged Defendant to take her to the hospital, but Defendant told the boy to find

Ms. Berard’s car keys. Defendant then left the house in the victim’s vehicle.

Richard Watson, a Louisiana State Police trooper, was on duty the evening

of December 22nd and he was the first responder on the scene. He testified that

Defendant was not at the house when he entered and that he found Ms. Berard

dead on the living room floor. Three of the children were across the street.

Gregreon told him that his step-father probably went to his mother’s house.

Gregreon gave him directions to the house. Trooper Watson called for back-up

and went to the address given to him. He found Defendant there, standing on the

front porch with an infant in his arms. He did not approach Defendant until back-

up arrived. Defendant was taken into custody without incident.

Destiny Nelson testified that the couple had been married for two years. She

said that she did not go out with Ms. Berard that night, although Ms. Berard visited

her house that evening. Ms. Nelson said that Defendant had called her during the

day and was aggravated that his wife wanted to go out that evening. Ms. Nelson

said that Defendant would often go out alone and sometimes stayed gone for

several days. When that happened, Ms. Berard would go out by herself just to get

back at him. Sometimes, she would just drive around.

Doctor Christopher Tape, a forensic pathologist with the Lafayette Forensic

Center in Lafayette, conducted the autopsy on the victim. He testified that there

were seventeen stab wounds and three incise wounds. The injuries were spread out

across the body, mostly in the front, left chest area, left arm, and back. Four of the

stab wounds were fatal injuries. He also reported that toxicology did not find any

drugs or alcohol in the victim’s system.

4 Defendant’s argument that Ms. Berard intentionally provoked him to such a

degree that he killed her in the heat of passion is not supported by the record.

Manslaughter is a homicide, which would either be first or second-degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his cool reflection and self-control. State v. Dressner, 08-1366 (La.7/6/10), 45 So.3d 127 (citing La. R.S. 14:31(A)(1)). Additionally, the defense has the burden of proof of mitigating circumstances by a preponderance of the evidence. Dressner, supra; State v. Lawson, 08-123, p. 8 (La.App. 5 Cir. 11/12/08), 1 So.3d 516, 523. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed. Lawson, supra (citing La. R.S. 14:31(A)(1)).

Sudden passion and heat of blood distinguish manslaughter from murder, but they are not elements of the offense. Instead, they are mitigatory factors that may reduce the grade of the offense. Lawson, supra.

Whether sufficient provocation existed for the reduction of the offense to manslaughter is a question to be determined by the jury under the standard of the average or ordinary person, one with ordinary self-control. Lawson, supra. It is the role of the fact-finder to weigh the respective credibilities of the witnesses, and a reviewing court should not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. State v. Christian, 07-684, p. 5 (La.App. 5 Cir. 3/25/08), 984 So.2d 132, 135. The question for this Court on review is whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found that the mitigatory factors were not established by a preponderance of the evidence. Lawson, supra (citing State v. Lombard, 486 So.2d 106, 111 (La.1986)).

State v. Patterson, 10-415, pp. 15-16 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 150-

51, writ denied, 11-338 (La. 6/17/11), 63 So.3d 1037.

Defendant further argues that “[c]onsidering the mutually antagonistic

relationship between Mr. Berard and Ada, the inconsistent statements given by the

eye-witnesses, and the antagonizing and provocative nature of their relationship,

the defense proved by a preponderance of the evidence the defendant to [sic]

5 reacted in sudden passion or heat of blood, that his blood had not cooled, and that a

verdict of manslaughter is the only proper verdict.”

While Defendant asserts that Ms. Berard was the antagonist, Ms. Nelson’s

testimony revealed that it was a back and forth affair. She testified:

Q. And when you say “that’s how they always do.” Can you be a little more specific about that.

A. When he would - -

Q. What would they do to each other?

A. When he would leave or whatever, like when he would leave a week or just a day, she would get mad and he would come home and if she wanted to go out, she was going out.

Q. And did you reach any conclusion of why she was doing - - why your sister was doing what she was doing?

A. Because she was getting tired of Jarvis doing what he was doing.

Apparently, this behavior was nothing new to the couple. Furthermore, both

children testified that Ms. Berard went into Gregreon’s room to lie down and

Defendant followed her into the room to continue the argument. When she left

Gregreon’s room, she went into the living room and sat on the couch—hardly the

behavior of someone trying to escalate an argument. Also, it is notable that

Defendant was carrying a knife at three o’clock in the morning.

There was also testimony that Defendant had been violent toward Ms.

Berard in the past. Detective Luke Boudreaux and a former patrol officer, Todd

Daigle, both with the Iberia Parish Sheriff’s Office, testified that on two occasions

in 2010 they were called to the Berard’s residence because of domestic abuse

complaints. In both cases, they testified that Ms. Berard was beaten, severely

enough that on one occasion she was taken to the hospital by paramedics.

6 Defendant contends that Key’era’s testimony was inconsistent with the

testimony given by Gregreon. At trial, Key’era testified that Defendant took the

knife out from behind his back, whereas Gregreon testified that Defendant pulled

the knife from his short’s pocket. Key’era also testified that her mother had gone

out that evening with her aunt, the victim’s sister. However, as later explained by

Ms. Nelson, she was planning on going out with the victim but later decided

against it. We conclude that these two inconsistencies were inconsequential and

would not have affected the jurors’ decision of whether Defendant was guilty of

second degree murder or manslaughter.

Doctor Tape’s description of how many times Ms. Berard was stabbed may

be evidence of Defendant’s anger; however, it was not sufficient to mitigate the

second degree murder to manslaughter. While they were arguing and did have a

rancorous relationship, arguments do not suffice to reduce a murder to

manslaughter. State v. Miller, 98-642 (La.App. 3 Cir. 10/28/98), 720 So.2d 829,

writ denied, 98-3119 (La. 5/14/99), 741 So.2d 659. Furthermore, the fact that

Defendant stabbed his wife so many times exhibited his intent to at least cause her

great bodily harm. Specific intent may be inferred from the circumstances

surrounding the offense and the conduct of the defendant. La.R.S. 14:10(1); State

v. Butler, 322 So.2d 189 (La.1975); State v. Martin, 92-0811 (La.App. 5 Cir.

5/31/94), 638 So.2d 411. The evidence was sufficient to find Defendant guilty of

second degree murder beyond a reasonable doubt.

The couple’s behavior was nothing new, and Defendant had exhibited

violence towards his wife in the past. Questions of whether there was sufficient

provocation to reduce the offense of second degree murder to manslaughter are for

the trier of fact to answer under the ordinary man with ordinary self-control

7 standard. Patterson, 63 So.3d 140. Finally, the record shows that the jury, after it

began deliberation, requested that the trial court give it the definition of second

degree murder and manslaughter. Therefore, the jury did consider whether the

evidence was sufficient to mitigate the offense of second degree murder to

manslaughter and obviously concluded there was insufficient evidence of

provocation.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find one

error patent.

The record before this court does not indicate that the trial court advised

Defendant of the prescriptive period for filing post-conviction relief as required by

La.Code Crim.P. art. 930.8. Accordingly, the trial court is directed to inform

Defendant of the provisions of Article 930.8 by sending appropriate written notice

to Defendant within ten days of the rendition of the opinion and to file written

proof in the record that Defendant received the notice. State v. Roe, 05-116

(La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924

So.2d 163.

DECREE

Based on the foregoing, we affirm Defendant’s second degree murder

conviction. Further, the trial court is directed to inform Defendant of the

provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to

Defendant within ten days of the rendition of the opinion and to file written proof

in the record that Defendant received the notice.

AFFIRMED WITH INSTRUCTIONS.

8 This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2–16.3.