State of Louisiana v. Marilyn Roman Lively
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 08-1310
STATE OF LOUISIANA
VERSUS
MARILYN ROMAN LIVELY
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 03-458 HONORABLE LORI ANN LANDRY, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and James T. Genovese, Judges.
CONVICTION AFFIRMED.
J. Phillip Haney District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 Counsel for Appellee: State of Louisiana Mark Owen Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 (318) 572-5693 Counsel for Defendant/Appellant: Marilyn Roman Lively
Jeffrey J. Trosclair Sixteenth Judicial District Court 500 Main Street, 5th Floor Franklin, LA 70538 (337) 828-4100 Counsel for Plaintiff/Appellee: State of Louisiana EZELL, JUDGE.
The Defendant, Marilyn Roman Lively, was charged by bill of indictment filed
on March 20, 2003, with first degree murder, a violation of La.R.S. 14:30. The State
sought the death penalty in this matter. The Defendant entered a plea of not guilty
on April 17, 2003. A “Motion to Change Plea of ‘Not Guilty’ to ‘Not Guilty and Not
Guilty by Reason of Insanity’” was filed on April 11, 2007. The motion was granted
on May 17, 2007. The State then requested a sanity commission, and the trial court
ordered that a commission be formed. The Defendant subsequently entered a plea of
not guilty by reason of insanity. On September 6, 2007, the trial court found the
Defendant had the capacity to proceed, and there was no evidence of a mental
infirmity at the time of the commission of the offense.
Following a five-day trial which commenced on October 19, 2007, a jury found
the Defendant guilty of first degree murder. During the penalty phase, the trial court
declared a hung jury. The Defendant was subsequently sentenced on January 29,
2008, to life imprisonment without benefit of probation, parole, or suspension of
sentence.
A motion for appeal was filed and granted on January 29, 2008. The Defendant
is now before this court asserting one assignment of error. Therein, the Defendant
contends the evidence was insufficient to support her conviction.
FACTS
The Victim, Jermasha “Manny” Decuir, and her younger brother, Dean, were
sent to live with the Defendant and her children, Perez and LaShawn, by their mother,
Netravon “Netra” Sam. While in the Defendant’s care, Jermasha died. Jermasha was
five years old at the time of her death and had lived with the Defendant since she was
two-and-a-half or three years old.
1 ASSIGNMENT OF ERROR
In her only assignment of error, the Defendant contends the evidence was
insufficient to convict her of first degree murder.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, __
U.S. __, 128 S.Ct. 537 (2007).
The Defendant was convicted of first degree murder. First degree murder is the
killing of a human being “[w]hen the offender has the specific intent to kill or to
inflict great bodily harm upon a victim who is under the age of twelve[.]” La.R.S.
14:30(A)(5). “Specific criminal intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act.” La.R.S. 14:10(1). “Specific intent
may be inferred from the circumstances surrounding the offense and the conduct of
the defendant.” Draughn, 950 So.2d at 592-93. Additionally, specific intent “may
be formed in an instant.” State v. Wright, 01-322, p. 11 (La. 12/4/02), 834 So.2d 974,
984, cert. denied, 540 U.S. 833, 124 S.Ct. 82 (2003).
Dr. Susan Garcia was accepted as an expert in forensic pathology. Dr. Garcia
performed an autopsy on Jermasha on January 30, 2003. Dr. Garcia testified that
2 Jermasha was thirty-eight inches tall and weighed twenty-seven pounds. Thus, she
was beneath the fifth percentile for both height and weight for her age. Dr. Garcia
testified that Jermasha’s stomach contained “5 cc’s of brown liquid lining the
stomach wall.” Dr. Garcia further testified there was no food or any type of material
in the stomach, very little watery fluid in the small bowel, and no fecal material in the
colon. Dr. Garcia opined that these findings indicated Jermasha had not eaten in six
to eight hours.
Dr. Garcia examined Jermasha’s body and testified that the only external area
of the body that did not show evidence of injury was the genital region. Dr. Garcia
testified that Jermasha had recent bruising to the forehead and scalp. There were
lacerations to the front and back of the head, which were the result of blunt force
trauma, that were in the process of healing. She also had linear marks on the buttocks
that were consistent with a grill from an electric stove. The injuries to the buttocks
were healing and were less than thirty days old. Jermasha also had burn injuries to
both her hands. These injuries occurred prior to the time of death and were consistent
with the hands being forced into and held in hot liquid. The injuries were in the
process of healing.
Dr. Garcia further testified that Jermasha had bruising and a laceration to the
soft portion of the upper lip. The left front middle tooth was missing as a result of
that injury. However, there was no injury to the outer portion of the lip. Dr. Garcia
testified that this indicated the front of Jermasha’s face, especially around the upper
jaw, had been forcefully pushed against a hard object. As a result of trying to move
away from the object, Jermasha cut the inside portion of her lip on the tooth. Dr.
Garcia testified that these injuries occurred at the time of death.
3 Jermasha was pronounced dead on January 30, 2003, at 10:00 a.m. Dr. Garcia
did not make a determination regarding the time of death. Dr. Garcia testified that
asphyxia due to suffocation was the cause of death. Dr. Garcia further testified that
suffocation was a result of the inability to move oxygen through the nose or mouth
caused by a consistent pressure covering that area. Dr. Garcia opined that it would
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
KA 08-1310
STATE OF LOUISIANA
VERSUS
MARILYN ROMAN LIVELY
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 03-458 HONORABLE LORI ANN LANDRY, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and James T. Genovese, Judges.
CONVICTION AFFIRMED.
J. Phillip Haney District Attorney 300 Iberia Street, Suite 200 New Iberia, LA 70560 (337) 369-4420 Counsel for Appellee: State of Louisiana Mark Owen Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 (318) 572-5693 Counsel for Defendant/Appellant: Marilyn Roman Lively
Jeffrey J. Trosclair Sixteenth Judicial District Court 500 Main Street, 5th Floor Franklin, LA 70538 (337) 828-4100 Counsel for Plaintiff/Appellee: State of Louisiana EZELL, JUDGE.
The Defendant, Marilyn Roman Lively, was charged by bill of indictment filed
on March 20, 2003, with first degree murder, a violation of La.R.S. 14:30. The State
sought the death penalty in this matter. The Defendant entered a plea of not guilty
on April 17, 2003. A “Motion to Change Plea of ‘Not Guilty’ to ‘Not Guilty and Not
Guilty by Reason of Insanity’” was filed on April 11, 2007. The motion was granted
on May 17, 2007. The State then requested a sanity commission, and the trial court
ordered that a commission be formed. The Defendant subsequently entered a plea of
not guilty by reason of insanity. On September 6, 2007, the trial court found the
Defendant had the capacity to proceed, and there was no evidence of a mental
infirmity at the time of the commission of the offense.
Following a five-day trial which commenced on October 19, 2007, a jury found
the Defendant guilty of first degree murder. During the penalty phase, the trial court
declared a hung jury. The Defendant was subsequently sentenced on January 29,
2008, to life imprisonment without benefit of probation, parole, or suspension of
sentence.
A motion for appeal was filed and granted on January 29, 2008. The Defendant
is now before this court asserting one assignment of error. Therein, the Defendant
contends the evidence was insufficient to support her conviction.
FACTS
The Victim, Jermasha “Manny” Decuir, and her younger brother, Dean, were
sent to live with the Defendant and her children, Perez and LaShawn, by their mother,
Netravon “Netra” Sam. While in the Defendant’s care, Jermasha died. Jermasha was
five years old at the time of her death and had lived with the Defendant since she was
two-and-a-half or three years old.
1 ASSIGNMENT OF ERROR
In her only assignment of error, the Defendant contends the evidence was
insufficient to convict her of first degree murder.
In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984). Additionally, where circumstantial evidence forms the basis of the conviction, the evidence must exclude every reasonable hypothesis of innocence, “assuming every fact to be proved that the evidence tends to prove.” La. R.S. 15:438; see State v. Neal, 2000-0674 p. 9 (La.6/29/01), 796 So.2d 649, 657, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The statutory requirement of La. R.S. 15:438 “works with the Jackson constitutional sufficiency test to evaluate whether all evidence, direct and circumstantial, is sufficient to prove guilt beyond a reasonable doubt to a rational jury.” Neal, 2000-0674 p. 9, 796 So.2d at 657.
State v. Draughn, 05-1825, p. 7 (La. 1/17/07), 950 So.2d 583, 592, cert. denied, __
U.S. __, 128 S.Ct. 537 (2007).
The Defendant was convicted of first degree murder. First degree murder is the
killing of a human being “[w]hen the offender has the specific intent to kill or to
inflict great bodily harm upon a victim who is under the age of twelve[.]” La.R.S.
14:30(A)(5). “Specific criminal intent is that state of mind which exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act or failure to act.” La.R.S. 14:10(1). “Specific intent
may be inferred from the circumstances surrounding the offense and the conduct of
the defendant.” Draughn, 950 So.2d at 592-93. Additionally, specific intent “may
be formed in an instant.” State v. Wright, 01-322, p. 11 (La. 12/4/02), 834 So.2d 974,
984, cert. denied, 540 U.S. 833, 124 S.Ct. 82 (2003).
Dr. Susan Garcia was accepted as an expert in forensic pathology. Dr. Garcia
performed an autopsy on Jermasha on January 30, 2003. Dr. Garcia testified that
2 Jermasha was thirty-eight inches tall and weighed twenty-seven pounds. Thus, she
was beneath the fifth percentile for both height and weight for her age. Dr. Garcia
testified that Jermasha’s stomach contained “5 cc’s of brown liquid lining the
stomach wall.” Dr. Garcia further testified there was no food or any type of material
in the stomach, very little watery fluid in the small bowel, and no fecal material in the
colon. Dr. Garcia opined that these findings indicated Jermasha had not eaten in six
to eight hours.
Dr. Garcia examined Jermasha’s body and testified that the only external area
of the body that did not show evidence of injury was the genital region. Dr. Garcia
testified that Jermasha had recent bruising to the forehead and scalp. There were
lacerations to the front and back of the head, which were the result of blunt force
trauma, that were in the process of healing. She also had linear marks on the buttocks
that were consistent with a grill from an electric stove. The injuries to the buttocks
were healing and were less than thirty days old. Jermasha also had burn injuries to
both her hands. These injuries occurred prior to the time of death and were consistent
with the hands being forced into and held in hot liquid. The injuries were in the
process of healing.
Dr. Garcia further testified that Jermasha had bruising and a laceration to the
soft portion of the upper lip. The left front middle tooth was missing as a result of
that injury. However, there was no injury to the outer portion of the lip. Dr. Garcia
testified that this indicated the front of Jermasha’s face, especially around the upper
jaw, had been forcefully pushed against a hard object. As a result of trying to move
away from the object, Jermasha cut the inside portion of her lip on the tooth. Dr.
Garcia testified that these injuries occurred at the time of death.
3 Jermasha was pronounced dead on January 30, 2003, at 10:00 a.m. Dr. Garcia
did not make a determination regarding the time of death. Dr. Garcia testified that
asphyxia due to suffocation was the cause of death. Dr. Garcia further testified that
suffocation was a result of the inability to move oxygen through the nose or mouth
caused by a consistent pressure covering that area. Dr. Garcia opined that it would
take three to five minutes without oxygen for brain damage to occur and that a person
was more likely to die after five to ten minutes without oxygen.
Jimmy Dupuis, a paramedic, responded to the residence of the Defendant’s
mother on January 30, 2003, at 9:15 a.m. When Dupuis entered the home, he saw the
Defendant holding a child who was wrapped in a blanket. Dupuis took the child and
placed her on a couch. The child was ice cold to the touch, which indicated she was
dead. Dupuis placed the child on a heart monitor, which “flat-lined.” The child
exhibited lividity, which is a pooling of the blood on the back of her arms. Dupuis
opined that the child had been dead for longer than an hour.
Paul Duplantis was qualified as an expert in the field of “Emergency Medical
Technician and Death Investigators.” As part of his job as death investigator with the
coroner’s office, Duplantis responded to the residence of the Defendant’s mother on
January 30, 2003, at 10:00 a.m. Duplantis testified that Jermasha’s body was cold but
still pliable, and there was lividity to the back.
Duplantis reviewed several photographs that were admitted into evidence at
trial. He pointed to a small laceration on Jermasha’s head, a bruise to the left
temporal area, bruising to the eye, bruising to the shoulder, froth coming from the
mouth, bruising to the rib area, a laceration to the gums, a missing tooth, a puncture
to the shoulder, a laceration to the back of the head, burn marks to the buttocks,
bruising to the lower legs, and skin sluffing from the toes on both feet.
4 Duplantis testified that the injuries to Jermasha’s eye, lip, and gums, the
missing tooth, and the puncture to the shoulder occurred within twenty-four hours of
her death. However, he could not determine if the injuries occurred at the time of
death.
Detective Adisak Thammavong interviewed the Defendant on January 30,
2003. During the interview, the Defendant indicated that on January 29, 2003, she
put Jermasha and Dean out to play at 1:30 p.m., and she waxed the floors. Later,
Jermasha asked for milk and the Defendant left her and Dean in the kitchen and she
went to her bedroom to fold clothes. At that time, the Defendant was cooking gumbo.
She subsequently discovered Jermasha eating salt from the box. The Defendant then
punished Jermasha.
The Defendant’s daughter LaShawn’s track practice ended at 4:00 p.m. or a
little after. She picked up LaShawn then Tina, her other daughter, and dropped them
both off at Domino’s for work. She returned home at approximately 4:45 p.m.
Jermasha urinated on herself on the way to Domino’s. When they got home,
the Defendant gave Jermasha clean clothes, but she refused to change. A little after
5:00 p.m., the Defendant called Jermasha’s mother, Netra, because Jermasha would
not change clothes. Jermasha said she was cold, and Netra told her to change clothes,
which she did. Jermasha then asked for milk.
Between 5:00 and 6:00 p.m., the Defendant’s neighbor Joyce brought mail to
her that had improperly been delivered to Joyce’s home. The Defendant left Jermasha
and Dean inside the house and went outside to get the mail. While speaking to Joyce,
the Defendant told Joyce that Jermasha had been stealing and putting her head in the
toilet. Therefore, the Defendant planned to give Jermasha back to her mother in
February. As the Defendant spoke to Joyce, Dean came to the door and said, “come
5 see.” The Defendant went back inside her residence and found Jermasha with her
head in toilet and feet up in the air. The Defendant also said Jermasha’s feet were
against the toilet. The Defendant indicated Jermasha was not moving at that time.
The Defendant also indicated that when she took Jermasha’s head out of toilet,
Jermasha was fighting with her, and she bit the Defendant’s finger.
Once the Defendant got Jermasha out of the toilet, she laid Jermasha on the
floor and hit her face in an attempt to rouse her. The Defendant also said Jermasha
stood up, but her eyes were closed. The Defendant asserted she was worried because
there may have been ammonia in the toilet, as she had cleaned the toilet earlier in the
day and did not remember if she had flushed the toilet after cleaning it.
After the Defendant struck Jermasha, Jermasha vomited clear water. She then
opened her eyes. The Defendant gave her a cloth to clean up with and went to get
clean clothes for her. Jermasha took a bath, and the Defendant washed her hair.
Jermasha then got dressed for bed. The Defendant asserted she did not have to
perform CPR on Jermasha.
The Defendant further asserted that Jermasha walked out of the bathroom and
asked for a glass of milk. Jermasha then ate her dinner and drank milk, which she had
gotten from Joyce. Jermasha said she was tired and laid down on a pad on the floor.
The Defendant asserted that her son Perez came home later that evening, between
6:30 and 7:30 p.m., and he looked at Jermasha. The Defendant further stated that
LaShawn got home from work at approximately 8:30 p.m., and Jermasha was laying
down and breathing normally at that time.
Around 2:30 or 3:00 a.m., Jermasha went to the bathroom and asked for milk,
which the Defendant gave her. At 6:00 a.m., the Defendant woke her older children
for school and Jermasha was breathing at that time. At 7:30 a.m., Jermasha got up
6 and asked for milk, which she drank, but she did not want to eat breakfast. The
Defendant then got Jermasha’s clothes and helped her get dressed. Jermasha then laid
back down. Between 8:00 and 9:00 a.m., Jermasha was gaging for breath, and the
Defendant phoned her mother. The Defendant’s mother suggested that the Defendant
pick up Tina, the Defendant’s daughter, and go to the hospital, as she recalled how
long it took the ambulance to arrive when the Defendant had a stroke. The Defendant
subsequently took Jermasha, who was breathing at that time, to the car. The
Defendant stated Jermasha was not breathing by the time they got to her mother’s
house. The Defendant also said she picked up Tina and drove as far as the carwash
before Tina said Jermasha was not breathing. When Tina said this, they turned
around and went back to the home of the Defendant’s mother. As a result, Tina then
called 911 and was told to have the Defendant perform mouth to mouth resuscitation
on Jermasha. The Defendant stated it was not normal for Jermasha to stick her head
in the toilet, but it was not the first time she had done so.
The Defendant informed police that she took Dean and Jermasha from Netra
because she was on drugs. The Defendant said that on the day she took Dean, he was
inside Netra’s apartment alone and crying, and Netra was outside smoking marijuana.
The Defendant took Dean, and Netra never came to get him. Three months later,
Netra asked if she wanted Jermasha.
The Defendant said Jermasha had burns to her hands because the child put her
hands in a pot of meat while the Defendant was outside. This occurred the week of
Christmas. The Defendant further stated that Jermasha had blisters on her hands as
a result of putting them in the pot. When she bathed, Jermasha peeled the skin off her
hands. The Defendant asserted Jermasha did not cry when she injured her hands.
The Defendant did not take Jermasha to the doctor, and said she did not tell anyone
7 she had done so. However, she consulted a pharmacist who told her to buy antibiotic
ointment to treat the burns.
As a result of the burns, one of Jermasha’s fingernails was missing. The
Defendant asserted Jermasha’s hands were red because they were healing. She
further asserted that although Jermasha’s hands were injured, she closed her fists and
played outside. The Defendant asserted that Jermasha’s left hand looked worse after
she stuck her head in the toilet.
The Defendant asserted that Jermasha’s foot was burned at the time Netra gave
Jermasha to her. The Defendant also said the burns to Jermasha’s buttocks were
present when Jermasha came to live with her.
The Defendant told police that Jermasha bruised her side when the Defendant
was trying to get her out of the toilet. She contended she did not see any bruises on
Jermasha when she gave Jermasha a bath the previous day. The Defendant also told
police that Jermasha’s tooth fell out while she was playing in the yard on January 29,
2003, and she gave the Defendant the tooth, which the Defendant wrapped in a paper
towel and put on the kitchen counter. The Defendant did not know how Jermasha’s
lip got split, and she did not look at Jermasha’s gums when Jermasha gave her the
tooth. The Defendant also did not see a laceration on Jermasha’s head.
The Defendant asserted she had to lock up everything, including the pantry,
because Jermasha would steal. She would even put cooked food in the pantry or in
her bedroom so Jermasha would not steal it. Jermasha also stole from the rooms of
the Defendant’s children. The Defendant stated that once when returning from the
hospital at 3:00 a.m., she found Jermasha eating raw corn meal. Jermasha also stole
things from the trash, including rice, chicken skin, and pizza crust and ate them.
Jermasha also stole orange juice and hid it in drawers and in her pants. The
8 Defendant never took Jermasha to the doctor to see why she stole food. When
Jermasha stole, the Defendant would not give her snacks and would put her on her
knees.
The Defendant denied beating Jermasha. The Defendant asserted she spanked
Jermasha twice with her hand on the legs. She said she had no paddle in the house
and did not hit Jermasha with an orange piece of plastic found inside her residence.
She would put Jermasha on her knees when she did something wrong. The Defendant
asserted Jermasha was bad, but she never cried.
The Defendant contended Jermasha once went to daycare, but the owner did
not want her there because she would steal and defecate in her clothes and wipe it all
over. The Defendant also asserted that Netra would not pay for daycare.
The Defendant asserted her kids lied if they said they hated Jermasha for
stealing. However, the Defendant later said Perez did not like Jermasha because of
what she did, but he would not hurt her. She further asserted her kids did not hit
Jermasha. However, they could have done so when she was not at home. She then
stated LaShawn would “tap” Jermasha, but did not hurt her. The Defendant informed
police that she would tell them if her kids had hit Jermasha.
The Defendant made a video of Jermasha putting her head in the toilet. She did
this because she was going to send Jermasha home and wanted Netra to see what
Jermasha was doing.
The Defendant asserted Netra sent Jermasha a doll for her birthday. Jermasha
was born on Netra’s birthday, January twenty-eighth. On that day, the Defendant
brought Netra gumbo, and Netra was having a drug party. The police told the
Defendant that Netra said the Defendant did not bring Jermasha because she said
Jermasha had diarrhea. The Defendant denied this.
9 The Defendant said that bloody paper towels found in the residence contained
Dean’s blood, as he had had a bloody nose. The Defendant did not remember if
Jermasha bled.
Detective Chad Gaudet testified that he interviewed the Defendant at 8:36 p.m.
on January 30, 2003. During that interview, the Defendant stated that Netra called
and asked the Defendant if she wanted Jermasha because she could not deal with
Jermasha. The Defendant indicated she said yes because she wanted to raise
Jermasha with her brother, Dean.
The Defendant said Jermasha was a hand full. She defecated on herself when
she went to live with the Defendant. Jermasha had also started urinating on herself,
which she quit doing a month or two after moving in with the Defendant. The
Defendant then discussed things that Netra bought Jermasha and what the Defendant
and her kids bought Jermasha. The Defendant contended that Jermasha urinated on
herself at Christmas because Netra had given Dean more toys than she did Jermasha.
The Defendant asserted Jermasha started putting her hands in pots about two-
and-a-half years ago. The Defendant then explained how Jermasha burnt her hands
the week of Christmas and how the Defendant treated the burns. The Defendant
again told police that Jermasha dug in the trash and ate food she found there.
The Defendant again explained the events that occurred on January 29, 2003.
The Defendant also told police that the owner of the daycare spanked Jermasha a
couple of times. The Defendant further stated that the owner called her to say
Jermasha had taken another child’s banana and that Jermasha disrupted other kids
while they slept.
The Defendant said Jermasha had put her head in the toilet twice, once when
the Defendant videotaped her and the day before she died. The Defendant videotaped
10 Jermasha drinking from the toilet and stealing doughnuts to show Netra. The
Defendant showed the tape to her cousin Dexter. She did not remember when the
tape was made, but it was some time after Jermasha’s hands were burnt.
The Defendant stated she began to lock the bedrooms and pantry in November
to keep Jermasha out of things. The Defendant said she punished Jermasha for
stealing by putting her on her knees, and she whipped her twice, and her daughter
whipped her twice. The Defendant denied whipping Jermasha with a stick, a boat
paddle, a belt, and an orange plastic piece. She asserted a spatula found in her closet
was old and that she used it to dig in flower beds.
The Defendant said she was sending Jermasha home in February, and she had
given Netra two weeks’ notice. The Defendant was also going to send Dean home
because it was time for Netra to start acting like a mother. The Defendant claimed
that she had previously said that when Perez was in the tenth grade it would be time
to send Jermasha and Dean home. Additionally, Netra was getting ready to send
Jermasha to school.
Dexter Latulas, the Defendant’s first cousin, testified at trial. He stated that he
saw Jermasha and the Defendant at the home of the Defendant’s brother around
Christmas of 2002. The Defendant showed him Jermasha’s burnt hands and said
Jermasha tried to put her hands in a hot pot of stew to get a piece of meat.
After the first of the year, Latulas went to the Defendant’s home because he did
not believe Jermasha had put her hands in a pot. Latulas testified that during the visit,
Jermasha was standing, her whole body was shaking, her hands were partially
bandaged, and there was blood on the floor. Latulas guessed the blood had dripped
from Jermasha’s hands. He testified that Jermasha appeared to be getting weak. He
further testified that she appeared to have been standing in the same spot for a while.
11 While Latulas was at the residence, the Defendant sent Jermasha to change
clothes. Latulas testified that Jermasha walked away from the spot she had been
standing in and had one shoulder higher than the other. The Defendant then hit
Jermasha on the left shoulder and said, “Bitch, walk better than that.” Jermasha
screamed in response and did not appear to change the way she was walking. Latulas
testified that the Defendant subsequently said, “I’m gonna end up killing that lil'
bitch[.]” Latulas further testified that he asked the Defendant what was wrong, and
the Defendant said she was trying to break Jermasha from doing weird things.
Jermasha returned with clothes, and the Defendant changed her shirt and pants.
Jermasha then went to stand in the same spot she had been in earlier. Jermasha never
moved from that spot for the remainder of Latulas’ visit. Latulas testified that he was
at the residence for three to four hours.
On the same day, the Defendant showed Latulas a videotape of the weird things
Jermasha was doing. There was no audio on the tape. However, Latulas saw
Jermasha standing in front of a closet which contained numerous Little Debbie pies
and cakes. The Defendant stated she had videotaped Jermasha stealing from the
closet. He next saw Jermasha standing in the bathroom and putting her head in the
toilet. Latulas testified that it appeared that someone was telling Jermasha what to
do on the video. Latulas came to the conclusion that Jermasha was being abused.
Latulas testified that when he left the residence, Jermasha was reaching toward him
telling him she wanted to go with him.
Latulas testified that he contacted police a few days later. Latulas did not
remember if he told police the Defendant said she would end up killing Jermasha.
However, he did tell police they needed to go to the home or “they was going to kill
her.” Latulas then testified that the Defendant made the statement that she would kill
12 Jermasha, but he was not sure if it was before or after he saw the video. At a previous
hearing, he testified that he told police about the Defendant’s statement. He had not
previously mentioned that Jermasha was shaking.
Deputy Darren Bourque responded to a call by Dexter Latulas in January of
2003. Latulas informed him that a child had burns from touching a hot pot, and he
was suspicious about the circumstances of the injuries. Deputy Bourque generated
a police report regarding Latulas’ complaint. Deputy Bourque testified that Latulas
did not state on what date he saw the injuries. However, he did say he had just
returned from the house. Deputy Bourque further testified that Latulas did not tell
police his cousin would kill the child.
Deputy Bourque attempted to locate the address of the residence but could not.
Therefore, he forwarded the information to the juvenile investigator. Bourque’s
report was dated January 10, 2003.
Kevin Kately was working as a detective on January 30, 2003. He took a
statement from the Defendant on February 1, 2003.
During the interview, the Defendant said she was covering up for someone and
again told police how she came about getting Dean. She then explained that Netra
scalded Jermasha with hot water and then put alcohol on the burns. As a result,
Jermasha had to be rushed to the hospital. Netra subsequently called the Defendant
and told her to come get Jermasha. The Defendant proceeded to discuss Netra’s
inability to care for Dean and Jermasha.
The Defendant again informed police that Jermasha had problems defecating
on herself and spreading it around and that Jermasha put her hands in pots. The
Defendant then explained that when Jermasha misbehaved she would take the child
13 to Netra’s house, and Netra would abuse her. As a result of the abuse, Jermasha
stopped defecating on herself and started urinating on herself.
The Defendant further told police that Netra made the marks on Jermasha’s
buttocks with a hot plate in June or July. Netra said, “the bitch should have been
dead” when the Defendant called to ask what happened. The Defendant again
explained how Jermasha burned her hands, what she used to treat the burns, and how
Jermasha would peel the skin from the blisters.
The Defendant explained the events that occurred on January 29, 2003. Many
of the details regarding what transpired that day are the same as those set forth by the
Defendant in her previous interviews. However, the Defendant did state that Perez
called from school between 6:00 and 6:30 p.m. and that, once he was home, he spoke
to Jermasha.
The Defendant then asserted that her boyfriend, Roosevelt Peter, Jr. came over
to her residence after Perez was home. Roosevelt played with Dean then went to Rite
Aid because he had cut his finger. While Roosevelt was there, Jermasha asked to lie
down, and Roosevelt said she looked tired. Before leaving, Roosevelt asked if he
could come back for sex. The Defendant said she told him she would think about it.
LaShawn called about 8:10 p.m. because she and Tina needed a ride home from
work. The Defendant beeped Roosevelt, who then called her. She requested that he
pick up LaShawn and Tina from work and bring them home, which he did. When
Roosevelt dropped LaShawn off, he stayed in his car, and the Defendant went outside
to talk to him. Roosevelt said he was going to get something to eat and to pick up
candy for his wife, then he would return.
At almost 9:00 p.m., Roosevelt returned. At that time, Dean came out to play
with Roosevelt, and Jermasha was resting. Roosevelt and the Defendant
14 subsequently went to her bedroom. LaShawn was in the bathroom, so the Defendant
could not get a wet towel Roosevelt wanted before they had sex. Therefore,
Roosevelt got mad and left.
After Roosevelt left, Perez watched part of a movie, LaShawn was not feeling
well, and Jermasha was laying down. The Defendant ate, read the newspaper,
watched television, and then laid down. Around 2:00 a.m., Jermasha went to the
bathroom. After 3:00 a.m., the Defendant laid back down. Jermasha turned toward
her, and the Defendant noticed that Jermasha had thrown up oatmeal or something
else. The Defendant cleaned up the pad Jermasha was laying on and, at that time,
Jermasha opened her eyes and was still breathing.
The Defendant said she laid back down. Subsequently, Jermasha was snoring
then grinding her teeth, and the Defendant told her to stop. The Defendant later
looked at Jermasha’s little finger, and it was bleeding. The Defendant tapped the
finger, and Jermasha moved her hand.
The Defendant got up again at 5:00 or 5:30 a.m. in anticipation of Roosevelt’s
usual morning visit. However, he did not stop by that day. The Defendant again
explained how she got her children off to school, and, later that morning, Jermasha
was having trouble breathing. The Defendant then attempted to drive Jermasha to the
hospital. During this interview, the Defendant admitted that she was the sole
caretaker for Jermasha on Wednesday, January 29, 2003.
The Defendant again discussed Dean’s nose bleed and told police that
sometimes Jermasha’s hands would bleed. The Defendant then told police that one
day Jermasha and Dean were wrestling, and Dean hit Jermasha in the head with an
object. As a result, there was blood on Jermasha’s shirt. This may have occurred a
15 week prior to Jermasha’s death. The Defendant also asserted that Dean would pull
Jermasha’s hair. The Defendant again denied beating Jermasha.
During the portion of the interview found on State’s Exhibit 84, the Defendant
began to explain what happened to Jermasha. That portion of the DVD is inaudible.
After the inaudible portion of the DVD, police asked the Defendant what happened,
saying “what did he do to that child.” The Defendant explained that Roosevelt came
over before Perez got home, and he complained because she had stopped going out
to do things with him because Jermasha was living at her residence.
The Defendant asserted that she did not know what happened in the bathroom.
When Roosevelt left the bathroom and the Defendant went in, Jermasha’s head was
in the toilet, and blood was on the wall. The Defendant further asserted that she
grabbed Jermasha and carried her in her arms and tried to give her CPR. Jermasha
threw up oatmeal at that time. She took Jermasha to the living room and changed her
clothes. There was blood on the wall and the floor inside the bathroom, which the
Defendant cleaned up. Jermasha was bleeding from the head, and her hands were
swollen.
The Defendant said she could not pick Perez up after his basketball game
because she was cleaning up. She further said that Perez was telling the truth when
he said Jermasha was wrapped up and not moving when he got home.
The Defendant said she called Roosevelt to pick up LaShawn and Tina. When
Roosevelt dropped LaShawn off at home, he said he was going to get something to
eat. This occurred after 8:00 p.m. Roosevelt returned and complained that there was
always a hold up when he came over to have sex with her. He threw water on her,
and the two of them argued. The Defendant asserted that Roosevelt shoved her and
16 complained about her taking care of kids. He then left and did not stop by or call the
next morning, which he usually did.
The Defendant alleged she did not see Roosevelt go in the bathroom. The
Defendant claimed she never did CPR on Jermasha, although she was barely
breathing when Perez came in. The Defendant claimed Roosevelt told her it was her
house so “they” would come after her.
The Defendant again explained that at 2:30 a.m. she took Jermasha to the
bathroom. Jermasha threw up oatmeal and milk at 3:00 or 4:00 a.m. and was
breathing slowly.
Marquitina “Tina” Lively, the Defendant’s daughter, testified that she lived
with her grandmother, with whom she had resided since she was twelve years old.
On January 29, 2003, she was working at Domino’s. She was scheduled to be at
work at 5:00 p.m., and her mother took her. Jermasha, Dean, and LaShawn were also
in the car. Jermasha was sitting on the floor in the back of the car. She was alive, but
did not speak to anyone. She had a cut “behind her head” that day. Tina testified that
Roosevelt picked her up when she got off work at 8:00 p.m. and dropped her off at
home by 8:30 p.m.
The following morning, January 30, 2003, the Defendant called and asked Tina
to go with her and Jermasha to the hospital. The Defendant stated Jermasha stuck her
head in the toilet, and she was not breathing. The Defendant subsequently blew the
horn, and Tina went outside to meet her. Tina testified that Dean and Jermasha were
in the car with the Defendant. As they drove, the Defendant asked Tina to see if
Jermasha was breathing. Jermasha was not breathing, so the group returned to Tina’s
house. Tina thought Jermasha was dead.
17 Once at the house, the Defendant took Jermasha out of the car and told Tina to
call 911. The Defendant gave Jermasha mouth-to-mouth resuscitation, and Jermasha
threw up. The Defendant then sat on the sofa with Jermasha in her lap. At a previous
hearing, Tina said Jermasha coughed. Tina read from her statement to police, as
follows: “She was coughing like and my mom give her mouth to mouth to bring her
back, but some threw-up came out of her mouth.”
Tina testified that she had seen the Defendant whip Jermasha when Jermasha
urinated on herself. The Defendant told Tina that she whipped Jermasha for stealing
food. Tina also saw Jermasha’s hands, and the Defendant said Jermasha stuck them
in a hot pot of meat.
Tina testified that the Defendant said Jermasha could not return to daycare
because she put feces on the walls. The Defendant showed Tina a video tape, which
had no audio, of Jermasha. Tina described what was on the video as follows: “She
got to the toilet, she kept looking. She didn’t put her head all the -- like in the toilet.
She just turned her head the other way.” Tina thought the video looked like someone
was telling Jermasha to put her head in the toilet, but she would not do so.
LaShawn Lively, the Defendant’s daughter, lived with her in January 2003.
LaShawn testified that on January 29, 2003, her mother picked her up after school
and brought her to work at Domino’s. Jermasha, Dean, and Tina were with the
Defendant, and Jermasha spoke to her at that time.
LaShawn testified that after work, Roosevelt picked up her and Tina. Tina was
dropped off at her grandmother’s home, and Roosevelt brought her to the Defendant’s
house. After LaShawn got home, she saw Jermasha covered up on a pad on the floor,
and she was still on the pad when LaShawn left for school the next morning at
approximately 6:20 a.m.
18 LaShawn testified that she had seen the Defendant strike Jermasha less than ten
times. When she did strike Jermasha, the Defendant used a slipper, a belt, her hands,
and an orange plastic object. LaShawn further testified that at the time Jermasha
came to live at her house, Jermasha had burn scars on her legs, but not her buttocks.
LaShawn indicated there were no special locks on the pantries at the Defendant’s
residence.
Perez Lively, the Defendant’s son, lived with his mother in January 2003.
Perez testified that he did not see Jermasha on the morning of January 29, 2003.
After his basketball game that day, he called home at approximately 6:30 p.m. to have
the Defendant pick him up. She told him she was doing something, and he needed
to have someone else bring him home.
Perez testified that when he got home, the door was locked, and it took the
Defendant a “minute or longer” to come to the door. Once inside, Perez went to his
room, changed clothes, then went to the kitchen, and heated a bowl of gumbo. Perez
then left the kitchen and saw Jermasha on the Defendant’s lap. The Defendant was
giving her mouth to mouth. Perez then told the Defendant she could not blame it on
Netra. Perez testified that he made this comment because Jermasha had injuries to
her foot at the time she came to live with the Defendant. The Defendant then said
“she didn’t know if [Jermasha] stuck her head in the toilet, or if she put chemicals in
the toilet.” The Defendant also told Perez she was not taking the blame and did not
want to go to jail. Perez subsequently threw his gumbo away and went to his room.
Perez testified that he came out his room later, and Jermasha was covered up
on a pad in front of the television. She was not moving at that time. Perez did not see
Jermasha move, talk, or breath. He admitted that he assumed Jermasha was not
breathing.
19 Later, while Perez was on the computer, Roosevelt came over, but did not stay
long. Roosevelt subsequently brought LaShawn home from work, and he came in
again. Perez testified that Roosevelt was at their residence for a short period of time
and then left. Perez further testified that after LaShawn came home, he spoke to her
in her room and told her something did not feel right.
The next morning Perez woke up at 6:30 a.m. He tried to go to the bathroom,
but the Defendant told him “that man was in the bathroom.” He then returned to his
room and got dressed. He subsequently went to the bathroom and left for school. On
the school bus, Perez told LaShawn that “it didn’t feel right” and [s]omething
“funning”[sic] was going to happen to the Defendant, Jermasha, or Dean. Perez never
told LaShawn he saw the Defendant giving Jermasha mouth to mouth.
Perez testified that he had seen the Defendant hit Jermasha. This began to
happen when Jermasha started drinking from the toilet and stealing food. Perez
testified that when Jermasha stole food, the Defendant would get mad, take the food
away, and whip her. Because Jermasha stole food, locks were put on the pantry.
Jermasha also stole food from a small refrigerator Perez had in his bedroom.
Perez testified that he saw the Defendant give Jermasha severe whippings
about every day. As a result, Jermasha would urinate on herself. The Defendant
struck Jermasha with her hands, fists, and a plastic toy depicted in State’s Exhibit 80.
Perez would go to his room during these events. Perez testified that the Defendant
punished him in the same manner.
Perez further testified that he returned from football practice in 2002, and
Jermasha’s hands were wrapped. Jermasha told him she put her hands in a hot pot of
meat. The Defendant told Perez she had taken Jermasha to the doctor.
20 Perez remembered Latulas being at his home in January 2003. Perez testified
that on that day, Jermasha was on her knees by the door. Jermasha left that area
because her hands were bleeding, and the Defendant told her to get something to
clean up the blood. Jermasha was walking slowly, so the Defendant hit her on the
shoulder with a plastic object. Jermasha then cleaned up the blood and got back on
her knees. She was on her knees for more than two hours.
Perez testified that Jermasha had previously gone to daycare. The Defendant
told him Jermasha quit going because she put feces on the wall of the daycare center.
Joyce Joseph, the Defendant’s neighbor, testified that she had a letter in her
mailbox for the Defendant on January 29, 2003. Joyce rang the Defendant’s doorbell,
the Defendant answered, and she gave the Defendant her mail. During their
conversation, the Defendant told Joyce that Jermasha stole, lied, and burned her
hands in a pot of stew. The conversation was interrupted by a little boy who came to
the Defendant’s door. The child was yelling, “mama” and pointing at something.
The Defendant then left.
Joyce testified that night at approximately 7:15 or 7:30 p.m., the Defendant
came to her home and asked for milk. Joyce further testified that the Defendant said
she needed the milk because she wanted to eat a piece of cornbread. Joyce gave the
Defendant the milk she requested, and the Defendant left. Joyce further testified that
she heard the car at the Defendant’s house starting “[a]fter 7:00 or something like
that.”
Henrietta Broussard operated a daycare that Jermasha had once attended.
Henrietta testified that Jermasha began attending daycare in August 2001. On the
first day Jermasha was at daycare, Henrietta accompanied Jermasha to the bathroom
21 and noticed scratches on her back, which she documented. Henrietta brought the
scratches to the Defendant’s attention.
Henrietta further testified that Jermasha attended daycare for approximately a
week and a few days and did not return. The Defendant told Henrietta she could not
afford to send Jermasha to daycare. Henrietta asserted that she never told the
Defendant that Jermasha could not return because she wiped feces on the wall.
Roosevelt “Duke” Peter, Jr., testified that the Defendant was his mistress in
January 2003.1 He stopped by the Defendant’s house on his way to work on January
29, 2003, between 5:15 and 5:30 a.m. On that day, Roosevelt saw Jermasha.
However, he did not recall if she was up and moving around. Roosevelt testified that
he worked that day from 6:00 a.m. until 4:30 p.m.2 After work, he brought a co-
worker home. Roosevelt got home at approximately 5:00 p.m. He then began cutting
his son’s hair between 5:15 and 5:20 p.m. Roosevelt’s cousin, Eugene Joseph, came
over between 5:00 and 6:00 p.m. He subsequently left with Eugene and helped him
install an air conditioner, during which Roosevelt cut his finger. Roosevelt then
returned home, finished cutting his son’s hair, cleaned himself up, and left.
Roosevelt testified that he then went to the Defendant’s house. At that time,
Perez was on the computer, and Jermasha was covered up on the floor in front of the
sofa taking a nap. Roosevelt testified that he was in the residence for five to ten
minutes and did not see Jermasha move. He then left and went to the drug store.
While Roosevelt was at the drugstore, the Defendant contacted him and asked
him to pick up her daughters from work. Roosevelt complied with the request.
Roosevelt testified that when he dropped LaShawn off, he did not get out of the car.
1 The witness’s last name is spelled Peters and Peter in the record. 2 Roosevelt’s time card was admitted as State’s Exhibit 91. The time card indicated he worked on Wednesday from 5:59 until 4:30.
22 However, the Defendant approached his car and asked if he was going to return.
Roosevelt then went to Exxon and Chevron.3
Roosevelt subsequently returned to the Defendant’s residence, and the two
went to the Defendant’s bedroom, as they planned to have sex. However, they did
not. Roosevelt testified that he did not see any children while he was in the house.
Roosevelt further testified that the Defendant did not want him to leave. She then
blocked the door, and he had to physically move her.4 He turned over the clothes he
wore that night to police and provided them with DNA samples.
Roosevelt testified that he saw injuries to Jermasha’s hands. The Defendant
told him Jermasha tried “to steal meat out of the pot, so she burned her hands.” The
Defendant told him she brought Jermasha to the doctor. The Defendant also
complained that Jermasha was stealing food and “using it on herself.”
The Defendant sent a letter to Roosevelt, which was admitted as State’s Exhibit
93. The letter was postmarked April 14, 2003, and read as follows:
Duke, nothing wrong. Just a short letter. Look, before I start, let me say that I’m sorry for what I put you through.
Those detectives kept on putting your name in there.
Please forgive me. I never could tell you about how I felt about you. But I did love you and I also know that I would never have you for myself.
What I need to tell you, keep your wife. Because when you lose something you love, it hurts real bad. I know, because I lost everything. Children, parent, brothers, sister.
Take care - - my word on that, please. Turn your life around. Be there for your wife. There’s nothing out there. Tell her how much you love her.
3 State’s Exhibit 24 contains video surveillance of Roosevelt at one of the stores. The time on the video was 21:34:03, and that time was off by one hour. 4 Roosevelt testified that he had previously been convicted of a simple battery involving the Defendant.
23 Believe me, I’m so tired. Looks like things is getting harder each day. There is one thing I need to ask of you. Please, every once in a while check on my children. Kind of be there for Perez. He don’t have a father. Now it look like he won’t have a mother. Talk with him. Do things with him, please. You was like a father for him and my girls. I will - - (Not audible) - -
Well, I am closing this letter. Remember what I said.
Love you from my heart. Always will, no matter what.
Take care of yourself and those kids.
Marilyn Lively.
Denise Peter testified that on January 29, 2003, her husband, Roosevelt Peter,
Jr., returned home from work between 4:45 and 5:00 p.m.5 Roosevelt subsequently
cut their son’s hair. Eugene Joseph came over between 5:30 and 6:00 p.m., and her
husband left with him and returned after fifteen to twenty minutes. While Roosevelt
was helping Eugene, he cut himself. Denise testified that Roosevelt left home again
at approximately 7:00 p.m. and returned at 9:10 or 9:15 p.m. and remained home
through the next morning.
Eugene Joseph testified that Roosevelt assisted him with an air conditioner
between 6:00 and 7:00 p.m. During the installation, Roosevelt cut his finger. Once
the job was complete, Eugene brought Roosevelt back home.
Scott Hotard, a former employee of the Iberia Parish Sheriff’s Office,
interviewed the Defendant on January 31, 2003. He interviewed her again on
February 2, 2003. During the interview, the Defendant told police Roosevelt made
her feel like she was guilty because Jermasha’s death occurred in her home. She said
she should have told police the truth from the beginning. She could not say what the
time of death was.
5 The witness’s last name is spelled Peter and Peters in the record.
24 The Defendant told police that Perez got home between 7:00 and 7:30 p.m. and
the incident involving Jermasha took place before Perez got home. The Defendant
asserted that a little after 6:00 p.m. Roosevelt came over to her residence, and he had
an attitude. The Defendant would not have sex with Roosevelt because Jermasha was
up. Dean came into the kitchen and told her to come see. She went into the bathroom
and saw Jermasha’s head in the toilet and Roosevelt’s right hand on top of Jermasha’s
head. The Defendant asked Roosevelt what he was doing, and he shoved her, causing
her to hit the door. She said she was not lying, and she was tired of covering up for
Roosevelt, who was an abusive person.
The Defendant said Roosevelt told her he cut his finger at work. When he was
leaving her residence, he told her he was going to buy bandages. The Defendant
asserted that when Roosevelt arrived at her residence he did not have a bandage on
his finger, but he did when he left. The Defendant further asserted that when
Roosevelt left, there was blood on the toilet seat, the floor, the tub, and the shower
door. She picked up Jermasha and rocked her. Jermasha was breathing, and her eyes
were open. However, Jermasha did not say anything.
The Defendant asserted she wanted to find out what happened, so she beeped
Roosevelt. Roosevelt brought LaShawn home but did not get out. She went to the
car, and he said he did not have time for her. He was still “pissed off.” The
Defendant said she told Roosevelt that if he would get out, she would have sex with
him. He said he had to go across the street to get candy for his wife and to get
something to eat.
Roosevelt returned to the Defendant’s house at 8:30 or 8:45 p.m. The two went
into her bedroom, and she asked him what happened. He went into a rage and shoved
25 her on the bed and threw water on her. He went outside and left after ten or fifteen
minutes. This occurred before 9:00 p.m.
The Defendant stated that when she picked Jermasha up out of the toilet,
Jermasha’s teeth hit her causing a scrape to the Defendant’s hand. The Defendant
further stated that she grabbed Jermasha and gave her CPR in the Defendant’s
bedroom. She did not remember if Roosevelt had blood on him.
The Defendant asserted she would never hurt Jermasha. She informed police
that Roosevelt had been arrested twice. She stated that when they argued he would
grab her jaw and hold it tightly. The Defendant then asserted that a week prior to
Jermasha’s death, Jermasha put her head in the toilet, and Roosevelt told her if she
did it again he would whip her.
Hotard also interviewed the Defendant again on February 4, 2003. During the
interview, the Defendant explained that the events at issue got kicked off on Tuesday,
January 28, 2003, because Jermasha had gotten into Roosevelt’s fried chicken, and
he “went off.” Roosevelt had Jermasha by the arm whipping her with a piece of
plastic, and Jermasha was hollering. The Defendant indicated that Roosevelt hit
Jermasha in the area of her shoulder. The Defendant gave him five dollars and told
him to leave.
Roosevelt came over Wednesday, a little after 6:00 p.m., which was before
Perez called for a ride. The Defendant asserted that Jermasha’s head injuries must
have occurred when Roosevelt shoved Jermasha’s head in the toilet. She got
Jermasha out of the toilet, slapped her face a couple of times, and cleaned her up.
Jermasha then asked for milk. The Defendant put her on the bed after Roosevelt left.
The Defendant said she had blood on the front of her own shirt. Jermasha’s hair was
26 wet and dripping, and the Defendant cleaned her up. Jermasha did not talk, but her
eyes were moving and she was breathing.
The Defendant then explained what happened when Perez called home and that
Roosevelt picked her daughters up from work. Roosevelt did not get out when he
dropped LaShawn off at home but came back later. At that time, she confronted him,
and Roosevelt told her she should send Jermasha and Dean home and stormed out of
the house.
The Defendant then explained her version of the events that occurred on
January 29, 2003, again. She also discussed the injuries to Jermasha’s hands again.
Hotard testified that a conversation between Roosevelt and the Defendant that
occurred on February 5, 2003, had been recorded. During that conversation, the
Defendant said she knew what happened and asked Roosevelt where his shirt was.
Roosevelt told the Defendant she was trying to “put me in some bull sh__.”
Roosevelt then stated that Perez was home when he arrived at the Defendant’s
residence. The Defendant continued to ask Roosevelt where his shirt was, and
Roosevelt hung up on her.
Hotard interviewed the Defendant again on February 7, 2003. During that
interview, the Defendant discussed Roosevelt’s clothes. She informed police that
they seized the wrong clothes. The Defendant then said she had to nail Roosevelt.
The Defendant told police she lied because the incident occurred at her house.
She then said she knew how to get to Roosevelt. The Defendant wanted to get him
to talk about the blood on his clothes and the injury to his hand. The Defendant then
told police that Roosevelt bought all his clothes in twos and that police had gotten the
wrong shirt from Roosevelt.
27 The Defendant explained that she had been with Roosevelt for nine years, that
his family knew about their relationship, and the family told Roosevelt’s wife that
Roosevelt and the Defendant were cousins.
Hotard interviewed the Defendant again on February 8, 2003. During that
interview, the Defendant asserted Jermasha put her hands in Roosevelt’s chicken on
January 28, 2003, and he whipped her.
Police then showed the Defendant the orange object found at her home and
a spatula that they thought had blood on it. Police then put out photos of Jermasha
and asked the Defendant about the “grill.” The Defendant told police that Jermasha’s
mother burned the child’s buttocks.
The Defendant again explained that she saw Roosevelt with his hand on
Jermasha’s head, which was in the toilet. The Defendant did not know how Jermasha
received an injury to her head, as she washed and braided Jermasha’s hair on Tuesday
and did not see the injury. The Defendant admitted that her clothes had blood on
them, and police questioned how it was that Jermasha did not have blood on her when
she was found. The Defendant then asserted that the gash on Jermasha’s head
happened on Tuesday the twenty-eighth, and, when Roosevelt shoved her head in the
toilet, it started bleeding again. The Defendant then said she saw the gash on
Tuesday after Roosevelt whipped Jermasha with the orange plastic object. Defendant
also said there was blood in the living room.
The Defendant further informed police that she left Jermasha home one day
with Perez’s friend while she dropped Tina off at work. Jermasha was sitting with
her head down when the Defendant returned home. A few days later, LaShawn
caught Jermasha in her bag of cookies and “gave her a lick.” Later, there was blood
on the pillow, but the Defendant did not remember what day this occurred.
28 The Defendant further stated that Jermasha was in the car crying and said
LaShawn hit her. The Defendant dropped LaShawn off, and, once home, she noticed
that Jermasha’s shirt had blood on it. The Defendant used peroxide and neosporin to
clean Jermasha, then braided her hair. Later, Jermasha did something else, and
LaShawn hit her again. LaShawn had a graduation ring and other rings on when she
hit Jermasha, and she also used the orange plastic piece. The Defendant did not
remember what date this occurred.
The Defendant told police that on another occasion LaShawn hit Jermasha
because Jermasha had been in LaShawn’s room touching her things. The Defendant
further asserted that one time Jermasha had a knot on her head. Additionally, the
Defendant’s children got to the point that they did not want to be around Jermasha.
The Defendant told police that Perez would not interact with Jermasha, and LaShawn
did not want Jermasha to sleep in her bed. Additionally, Dean would pull Jermasha’s
hair and hit her in the head with a toy truck.
The Defendant explained Wednesday’s events again. She also discussed how
Jermasha burnt her hands.
Hotard testified that the stove burners retrieved from the Defendant’s residence
were a perfect match to the injuries on Jermasha’s buttocks. He also investigated
Roosevelt Peter, Jr., who was very cooperative. Hotard investigated whether
Roosevelt went to Rite Aid and made a purchase there. Hotard found that Roosevelt
had purchased bandages at 8:05 p.m. on January 29, 2003.
Hotard further testified that phone records revealed a call to the Defendant’s
residence from Westgate High School, which Perez attended, at 6:30 p.m. Someone
got on the internet at 7:09 and 7:23 p.m. There was a call by the Defendant to
Domino’s at 7:50 p.m. There was a one minute call from the Defendant’s residence
29 to Roosevelt’s cell phone at 7:53 p.m. Additionally, someone was on the internet
again at 7:54 p.m. There were no calls to Domino’s after that time.
The parties stipulated that the Defendant left her home at approximately 8:30
or 9:00 a.m. on January 30, 2003, and did not return through February 15, 2003. The
parties further stipulated that a letter found in the Defendant’s residence was written
by her. The letter read as follows:
“LaShawn and Perez, don’t look for me. Everything will be all right. Writing to tell you that I love you and you will always be in my heart. Please read this letter good and do just what I say to do. Return the computer and desk back to Rentway. Those two freezers, freeze, washer machine, Play Station II, in my room go to Affordable.
Let Ashley and Tina know that I love them and you stay on the right track. One of you need to pick up my check from Fremin on February 7th and don’t forget to get the five hundred from Kendrall. My check from Van’s Kiddy Care, also. Take that and put everything in a storage. Don’t worry, I know I should have been send Manny home but I was tried to work with her. After everything she did, I just didn’t want her to go home. But now, I am so sorry that I didn’t send her home. I just turned our family home -- I just turned our family good home to nothing. If everything turn out okay I will never take another child in my home again.”
Hotard admitted that when police told the Defendant the time of death was
between 6:00 and 9:00 p.m. on January 29, 2003, they were not providing her with
information that was correct. Additionally, information that Jermasha died from a
blow to the head was incorrect.
George Schiro, an employee of the Acadiana Crime Lab who was qualified as
an expert in DNA analysis and blood stain pattern analysis, performed tests on
evidence recovered in this case. He testified that Jermasha’s blood was found on the
toilet, the toilet plunger, the left side of the vanity cabinet, the bathroom door, the
bathroom wall, the bathroom trash can, the right and left sides of the hallway, and the
living room couch.
30 Schiro further testified that sweat pants found in the master bedroom tested
positive for Jermasha’s blood. Another stain on the pants contained a mixed DNA
profile. Schiro could not confirm the presence of blood. The DNA profile confirmed
that Jermasha was the major contributor of the stain and the minor contributor was
a male that did not match the DNA profile of Perez, Roosevelt, or Dean. Two human
blood stains were found on a T-shirt found in the master bedroom. Both blood stains
came from Jermasha. A spatula found in the closet of the master bedroom did not test
positive for blood. Jermasha was the major contributor of DNA on the spatula, and
the Defendant was the minor contributor. An orange piece of plastic also had
Jermasha’s blood on it.
Testing was done on a white Toyota Camry. Blood found on the back of the
driver’s seat contained a mixed DNA profile. The major contributor was Jermasha,
and the minor contributor was an unknown male. The rear passenger seat had a
“swipe” of blood that came from Jermasha. Schiro testified that the swipe had a
paintbrush quality which indicated it could have been from bloody hair rubbing
across the door.
Blood found on the bathroom vanity cabinet was in a vertical drip pattern,
meaning blood was dripping down from the source. Blood found on the bathroom
wall was medium velocity impact spatter. The point of origin occurred in the
bathroom from the vanity to the bathtub. Schiro testified that this type of blood
spatter was associated with stabbings, beatings, and/or sudden movements of a
bloody object or body part.
In brief to this court, the Defendant asserts the first weakness in the State’s
case was the medical evidence. The Defendant contends the State failed to prove
31 when Jermasha died, as neither the coroner nor the doctor performing the autopsy
made a determination of the time of death.
The Defendant further contends the State failed to prove how the mouth injury
proved intentional suffocation. The Defendant asserts that although Dr. Garcia
testified that the mouth injury occurred at the time of the suffocation, she did not
negate the reasonable hypothesis that the injury and resulting suffocation was an
accident. The Defendant notes that in State v. Clark, 97-359 (La.App. 4 Cir.
11/12/97), 703 So.2d 131, writ granted, 97-3184 (La. 4/24/98), 717 So.2d 1165, on
remand, 97-359 (La.App. 4 Cir. 10/7/98), 720 So.2d 134, writ denied, 99-330 (La.
6/18/99), 745 So.2d 617,6 Dr. Garcia made the same diagnosis - that an internal cut
on the lip by a tooth indicated that the injury had occurred during suffocation. The
Defendant asserts that in Clark, the manslaughter conviction was affirmed because
other evidence established the suffocation was not accidental.
In Clark, the defendant was charged with first degree murder. The jury found
him guilty of manslaughter. The defendant asserts the manslaughter conviction was
affirmed because the defendant told someone he thought he killed his mother, the
bedroom showed clear signs of a struggle, and the defendant’s blood was on the
victim. The court found that even if the evidence could not negate an intentional
suffocation, it still supported a manslaughter conviction since it occurred during the
commission of a battery.
6 The case was remanded in accordance with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, in which the supreme court stated that in an Anders brief, counsel must review not only the procedural history of the case and the evidence presented at trial but must also provide a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.
32 The Defendant further contends the State failed to prove Jermasha was being
starved. The Defendant points out that Dr. Garcia found that Jermasha was
underweight and had not eaten within six to eight hours of her death. Dr. Garcia also
testified that she performed tests to preclude the existence of disease, but the State
never asked Dr. Garcia about the results of those tests. The Defendant further asserts
that without a time of death, it would be impossible to determine if the fact that
Jermasha had not eaten within six to eight hours of her death was relevant.
The Defendant further points out that much was made of the fact that Jermasha
had numerous scars and burns on her body that were over thirty days old. The
Defendant notes that Dr. Garcia could not determine when the old injuries were
sustained. The Defendant further notes that nothing links her to those injuries. The
Defendant then asserts that testimony established that when Jermasha came to live
with her, Jermasha already had numerous scars and burns on her body.
The Defendant next points out that Dr. Garcia documented cuts, bruises, and
burns to Jermasha’s body that occurred “prior to thirty days.” The Defendant asserts
that, except for the burned hands, Dr. Garcia was never asked whether any of the
injuries could have been accidental. “As a consequence, the reasonable possibility
that some of these injuries were accidental, cannot be excluded.”
The Defendant asserts the second weakness in the State’s case is the testimony
from lay witnesses. The Defendant contends the State failed to ask questions of the
lay witnesses that could have excluded the reasonable hypothesis that she was
innocent. The Defendant further contends there was no question that Jermasha was
abused by someone. Yet, nothing linked her to the abuse.
The Defendant asserts that no witness testified about seeing her inflict any
injuries upon Jermasha. Additionally, no witness was asked about seeing burns on
33 Jermasha’s buttocks. The Defendant asserts the State relies on the caretaker argument
that since she was the child’s caretaker, only she could have caused the various
injuries, including the fatal injury. The Defendant then cites Wright, 834 So.2d 974,
in which she contends the caretaker argument was upheld in the first degree murder
of a five-year-old child because the defendant told police he was watching the victim
twenty-four hours a day, and this claim was supported by family and neighbors.
The Defendant asserts there was nothing adduced to show that only she was
alone with Jermasha when “the injuries occurred.” The Defendant further asserts that
none of the lay witnesses were asked any questions to establish that she was the only
person that could have inflicted the physical abuse upon Jermasha. The Defendant
contends that it is noteworthy that none of the witnesses were asked if they had
inflicted any of the abuse. The Defendant asserts that if the State is going to single
out one family member and accuse her of a pattern of abuse, the State “obviously has
to give the jury some evidence that it could use to exclude everyone else.”
The Defendant asserts that without a time of death or evidence that could allow
a jury to exclude all other persons as sources of the abuse, she cannot be convicted
merely because she was Jermasha’s caretaker. She further asserts that the fact that
she gave conflicting statements does not prove she harmed Jermasha.
The Defendant then asserts the record shows that she functions at a borderline
mental retardation level, and there is a high probability that she suffers from a brain
dysfunction, particularly in the executive functioning area of the prefrontal lobe.7 She
asserts this could cause inappropriate responses to stressful situations. Thus, the State
failed to prove that her conflicting statements establish her guilt.
7 We note that evidence regarding the Defendant’s mental functioning was presented during the penalty phase.
34 We submit the Defendant’s assertion that the State failed to prove the time of
death is correct. However, time of death is not an element of the offense of first
degree murder and need not be proven by the State. See La.R.S. 14:30.
The Defendant also asserts that Dr. Garcia did not rule out the possibility that
the injury to Jermasha’s mouth and resulting suffocation were accidental. Dr. Garcia
testified that Jermasha had bruising and a laceration to the soft portion of the upper
lip, and the left front middle tooth was missing as a result of that injury. However,
there was no injury to the outer portion of the lip. Dr. Garcia testified that this
indicated the front of Jermasha’s face, especially around the upper jaw, had been
forcefully pushed against a hard object. As a result of trying to move away from the
object, Jermasha cut the inside portion of her lip on the tooth. Dr. Garcia testified
that these injuries occurred at the time of death. Dr. Garcia further testified that it
would take consistent pressure covering the area of the mouth and nose for five to ten
minutes for death to occur.
Based on Dr. Garcia’s testimony that Jermasha’s face was forcefully pushed
against a hard object and that she was deprived of oxygen for five to ten minutes, we
find that the State proved Jermasha’s death was not accidental and that the person
who committed the act had the specific intent to kill or inflict great bodily harm.
The Defendant asserts the State did not prove Jermasha was being starved. We
find that evidence regarding starvation or whether Jermasha had eaten within six to
eight hours of her death was not relevant to prove any element of first degree murder.
Thus, whether Jermasha had an illness that would explain her weight is not necessary
to a determination of the sufficiency of the evidence in this case.
We find that testimony regarding old and new injuries to Jermasha’s body and
who inflicted those injuries are not relevant to a determination of sufficiency of the
35 evidence in this case. The only injuries relevant to a sufficiency review are those that
occurred at the time of death.
The Defendant asserts the State did not ask nor prove she was the only person
who could have injured and killed Jermasha. In her numerous statements to police,
the Defendant asserted Jermasha put her own head in the toilet and that Roosevelt
forced Jermasha’s head in the toilet while, she, Jermasha, and Dean were at home.
Testimony indicates that Perez was at a basketball game, LaShawn was at work, and
Dean was younger than Jermasha. Thus, a jury could reasonably conclude that the
Defendant or Roosevelt pushed Jermasha’s head into the toilet on January 29, 2003.
The Defendant asserted that Roosevelt came to her residence before Perez got
home, and he came home between 6:00 and 7:30 p.m. Roosevelt got off work at 4:30
p.m., and his wife testified that he got home between 4:45 and 5:00 p.m. Roosevelt
then left home with Eugene and assisted him in installing an air conditioner. He then
returned home and left. Based on this testimony, Roosevelt left home to help with the
air conditioner between 5:00 and 7:00 p.m. His wife testified that after he returned
home from installing the air conditioner, he left home again at 7:00 p.m. The jury’s
verdict indicates it chose to believe the testimony concerning Roosevelt’s
whereabouts, along with Perez’s testimony that he saw the Defendant performing
CPR on Jermasha after he got home from the basketball game, which was between
6:00 and 7:30 p.m. on January 29, 2003.
Based on the testimony presented by the State, the only people at the
Defendant’s home during the time the Defendant asserts Jermasha’s head was in the
toilet were Jermasha, Dean, and the Defendant.
The following morning, when the Defendant asserts Jermasha was gagging for
her breath, the only people home were the Defendant, Jermasha, and Dean, as
36 LaShawn and Perez had already left for school, and Roosevelt did not stop by the
house that morning. We find that the jury would not believe that Jermasha forced her
own head in the toilet (or against another hard object) with such force as to knock out
a tooth and bust her lip nor would they believe that she could leave her head against
that object for five to ten minutes with sufficient force to cause her own death.
Additionally, a jury would not believe this act was performed by Dean, a child under
the age of five.
Based on the evidence presented, the State proved that the Defendant was
Jermasha’s sole caretaker during the times which Jermasha’s head was in the toilet
and when she was gagging for breath. Additionally, the State proved the Defendant
had the specific intent to kill or inflict great bodily harm, as it took five to ten minutes
for Jermasha to die. The State further proved that Jermasha was under the age of
twelve at the time of her death. Accordingly, the Defendant’s conviction is affirmed.
CONCLUSION
The Defendant’s conviction is affirmed.
Related
Cite This Page — Counsel Stack
State of Louisiana v. Marilyn Roman Lively, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-marilyn-roman-lively-lactapp-2009.