State of Louisiana v. Robyn B. Little Davis
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Opinion
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-275
STATE OF LOUISIANA
VERSUS
ROBYN B. LITTLE DAVIS
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 34876-09 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and John E. Conery, Judges.
AFFIRMED.
Conery, J., dissents and assigns written reasons.
Glen D. Vamvoras Shane Hinch Vamvoras, Schwartzberg &Hinch 1111 Ryan St. Lake Charles, LA 70601 (337) 433-1621 COUNSEL FOR DEFENDANT/APPELLANT: Robyn B. Little Davis John Foster DeRosier District Attorney Carla Sue Sigler Karen C. McLellan Assistant District Attorneys Fourteenth Judicial District P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana SAUNDERS, Judge.
On December 10, 2009, the Defendants, Robyn B. Little Davis (Defendant-
Davis) and Carol Noland Saltzman (Defendant-Saltzman) were charged by grand
jury indictment with the first degree murder of Defendant-Davis‟ husband, William
Brian Davis. 1 On May 3, 2011, the indictment was amended to charge both
Defendants with second degree murder. Both Defendants entered a plea of not
guilty on November 7, 2011. The case was called for trial on November 7, 2011,
at which time jury selection began and continued until a jury was selected on
November 10, 2011. Before the conclusion of jury selection, the testimony of one
of the State‟s witnesses, Roxanne Baumgartner, was perpetuated. The day after
jury selection was completed, November 11, 2011, the State requested a
continuance because of the physical health of the prosecutor in the case, Rick
Bryant. Over the objections of defense counsel for both Defendants, the trial court
granted the continuance. The trial court also refused defense counsels‟ request to
swear in the jury.
On November 15, 2011, the Defendants filed a “Motion to Quash
Prosecution and for the Dismissal of the Indictment with Prejudice.”
Subsequently, on January 6, 2012; January 18, 2012; and January 24, 2012, the
trial court heard testimony and argument regarding the motion to quash and
dismissal. Both Defendants argued that double jeopardy attached when the State
perpetuated the testimony of Roxanne Baumgartner before the trial court granted
the State‟s continuance based on Mr. Bryant‟s health. The trial court denied the
motion to quash based on double jeopardy. The Defendants also argued that the
charges against them should be dismissed because of the prejudice they suffered by
1 This opinion addresses Defendant-Davis‟s appeal (13-275). Defendant-Saltzman has filed a separate appeal. (13-276). the granting of the continuance. The trial court denied the motion to quash and
dismiss the charges on the prejudice grounds as well. On March 28, 2012, this
court denied a writ application filed by both Defendants. State v. Davis and
Saltzman, 12-236 (La.App. 3 Cir. 3/28/12) (unpublished opinion). This court
instructed the trial court “to proceed with the trial as expeditiously as possible,
with the original jury, if such can be accomplished without resulting prejudice [sic]
to any party.” Id. If the trial could not proceed with the original jury, this court
instructed the trial court to call a new jury panel. Id. Thereafter, on April 18,
2012, the supreme court denied a writ application filed by the Defendants. State v.
Davis and Saltzman, 12-834 (La. 4/18/12), 85 So.3d 1255.
Attempting to comply with this court‟s instructions, the trial court recalled
the original jurors on April 23, 2012. Because several jurors had to be excused for
cause, the trial court released the original jury and a new jury was selected. Both
Defendants were tried before the same jury in a thirteen-day jury trial. At the close
of the evidence, the defense moved to strike the responsive verdicts of
manslaughter and negligent homicide. By an 11-1 vote, the jury found both
Defendants guilty of second degree murder. The trial court subsequently denied
motions for new trial and for post-verdict judgment of acquittal filed by the
Defendants. Finally, on August 24, 2012, the trial court sentenced both
Defendants to life imprisonment at hard labor without benefit of probation, parole,
or suspension of sentence.
On August 24, 2012, Defendant-Davis‟ attorney filed a timely motion for
appeal. Pursuant to that motion, Defendant-Davis is presently before this court,
alleging nine assignments of error.
FACTS:
2 On July 1, 2009, a dead body was discovered lying next to a Honda Accord
off of Big Lake Road in Calcasieu Parish. When deputies responded to the scene,
the car‟s trunk and doors were open, and the car looked like it had been jacked up
to change a tire. Deputies discovered that the vehicle was registered to Defendant-
Davis and that Defendant-Davis had reported her husband missing. William Brian
Davis‟ driver‟s license was also found in the vehicle. According to the autopsy
report and death certificate, the body was identified as William Brian Davis by
dental records and the presence of tattoos on his body.
Dr. Terry Welke, the coroner for Calcasieu Parish, estimated William Brian
Davis‟ time of death to be sometime after 12:00 p.m. on June 29, 2009. He died of
four gunshot wounds, one to the head and three to the torso. Dr. Welke ruled the
manner of death as a homicide.
ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find no errors patent.
ASSIGNMENT OF ERROR NUMBER SIX:
We will address this assignment first, as it attacks the sufficiency of the
evidence. A finding of insufficiency would require reversal of the conviction and,
thus, obviate the need for discussion of the other eight assignments of error. See
State v. Hearold, 603 So.2d 731 (La.1992).
This court has stated the following regarding the standard for reviewing a
claim of insufficient evidence:
The standard of review in a sufficiency of the evidence claim is “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.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 3 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing 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)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court‟s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder‟s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-275
STATE OF LOUISIANA
VERSUS
ROBYN B. LITTLE DAVIS
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 34876-09 HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Jimmie C. Peters, and John E. Conery, Judges.
AFFIRMED.
Conery, J., dissents and assigns written reasons.
Glen D. Vamvoras Shane Hinch Vamvoras, Schwartzberg &Hinch 1111 Ryan St. Lake Charles, LA 70601 (337) 433-1621 COUNSEL FOR DEFENDANT/APPELLANT: Robyn B. Little Davis John Foster DeRosier District Attorney Carla Sue Sigler Karen C. McLellan Assistant District Attorneys Fourteenth Judicial District P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR APPELLEE: State of Louisiana SAUNDERS, Judge.
On December 10, 2009, the Defendants, Robyn B. Little Davis (Defendant-
Davis) and Carol Noland Saltzman (Defendant-Saltzman) were charged by grand
jury indictment with the first degree murder of Defendant-Davis‟ husband, William
Brian Davis. 1 On May 3, 2011, the indictment was amended to charge both
Defendants with second degree murder. Both Defendants entered a plea of not
guilty on November 7, 2011. The case was called for trial on November 7, 2011,
at which time jury selection began and continued until a jury was selected on
November 10, 2011. Before the conclusion of jury selection, the testimony of one
of the State‟s witnesses, Roxanne Baumgartner, was perpetuated. The day after
jury selection was completed, November 11, 2011, the State requested a
continuance because of the physical health of the prosecutor in the case, Rick
Bryant. Over the objections of defense counsel for both Defendants, the trial court
granted the continuance. The trial court also refused defense counsels‟ request to
swear in the jury.
On November 15, 2011, the Defendants filed a “Motion to Quash
Prosecution and for the Dismissal of the Indictment with Prejudice.”
Subsequently, on January 6, 2012; January 18, 2012; and January 24, 2012, the
trial court heard testimony and argument regarding the motion to quash and
dismissal. Both Defendants argued that double jeopardy attached when the State
perpetuated the testimony of Roxanne Baumgartner before the trial court granted
the State‟s continuance based on Mr. Bryant‟s health. The trial court denied the
motion to quash based on double jeopardy. The Defendants also argued that the
charges against them should be dismissed because of the prejudice they suffered by
1 This opinion addresses Defendant-Davis‟s appeal (13-275). Defendant-Saltzman has filed a separate appeal. (13-276). the granting of the continuance. The trial court denied the motion to quash and
dismiss the charges on the prejudice grounds as well. On March 28, 2012, this
court denied a writ application filed by both Defendants. State v. Davis and
Saltzman, 12-236 (La.App. 3 Cir. 3/28/12) (unpublished opinion). This court
instructed the trial court “to proceed with the trial as expeditiously as possible,
with the original jury, if such can be accomplished without resulting prejudice [sic]
to any party.” Id. If the trial could not proceed with the original jury, this court
instructed the trial court to call a new jury panel. Id. Thereafter, on April 18,
2012, the supreme court denied a writ application filed by the Defendants. State v.
Davis and Saltzman, 12-834 (La. 4/18/12), 85 So.3d 1255.
Attempting to comply with this court‟s instructions, the trial court recalled
the original jurors on April 23, 2012. Because several jurors had to be excused for
cause, the trial court released the original jury and a new jury was selected. Both
Defendants were tried before the same jury in a thirteen-day jury trial. At the close
of the evidence, the defense moved to strike the responsive verdicts of
manslaughter and negligent homicide. By an 11-1 vote, the jury found both
Defendants guilty of second degree murder. The trial court subsequently denied
motions for new trial and for post-verdict judgment of acquittal filed by the
Defendants. Finally, on August 24, 2012, the trial court sentenced both
Defendants to life imprisonment at hard labor without benefit of probation, parole,
or suspension of sentence.
On August 24, 2012, Defendant-Davis‟ attorney filed a timely motion for
appeal. Pursuant to that motion, Defendant-Davis is presently before this court,
alleging nine assignments of error.
FACTS:
2 On July 1, 2009, a dead body was discovered lying next to a Honda Accord
off of Big Lake Road in Calcasieu Parish. When deputies responded to the scene,
the car‟s trunk and doors were open, and the car looked like it had been jacked up
to change a tire. Deputies discovered that the vehicle was registered to Defendant-
Davis and that Defendant-Davis had reported her husband missing. William Brian
Davis‟ driver‟s license was also found in the vehicle. According to the autopsy
report and death certificate, the body was identified as William Brian Davis by
dental records and the presence of tattoos on his body.
Dr. Terry Welke, the coroner for Calcasieu Parish, estimated William Brian
Davis‟ time of death to be sometime after 12:00 p.m. on June 29, 2009. He died of
four gunshot wounds, one to the head and three to the torso. Dr. Welke ruled the
manner of death as a homicide.
ERRORS PATENT:
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find no errors patent.
ASSIGNMENT OF ERROR NUMBER SIX:
We will address this assignment first, as it attacks the sufficiency of the
evidence. A finding of insufficiency would require reversal of the conviction and,
thus, obviate the need for discussion of the other eight assignments of error. See
State v. Hearold, 603 So.2d 731 (La.1992).
This court has stated the following regarding the standard for reviewing a
claim of insufficient evidence:
The standard of review in a sufficiency of the evidence claim is “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.” State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108, 3 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing 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)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court‟s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.
The factfinder‟s role is to weigh the credibility of witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726–27). Our supreme court has stated:
However, an appellate court may impinge on the fact finder‟s discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ „the factfinder‟s role as weigher of the evidence‟ by reviewing „all of the evidence . . . in the light most favorable to the prosecution.‟” McDaniel v. Brown, 558 U.S. [120,] [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, . . . this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).
State v. Strother, 09-2357, pp. 10-11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).
4 State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533
(alteration in original).
Defendant-Davis argues that the State‟s case against her was a very weak
circumstantial evidence case, devoid of any evidence that she was present during
the commission of the murder, directly committed the murder, aided or abetted in
the murder, or directly or indirectly procured another to commit the murder. She
alleges that the “evidence, when viewed in the light most favorable to the State,
merely showed that Robyn Davis‟ cell phone may have been within the
geographical area, constituting numerous square miles, at times she says she was
not.” There was absolutely no proof, Defendant-Davis argues, that she shot the
victim or was present at the time of his death. Additionally, Defendant-Davis
alleges that the State failed to exclude every reasonably hypothesis of her
innocence: 1) that she was with Defendant-Saltzman running errands in Lake
Charles at the time of the murder; and 2) that the victim was killed by someone
else, possibly his mistress‟ husband, Shane Dietz.
Preliminary Investigation
Detective Brent Young testified that he was present when Defendant-Davis
was notified of her husband‟s death. Once told of her husband‟s death, Defendant-
Davis was dry-heaving and/or vomiting. Defendant-Davis was cooperative with
the detectives and told them that on the day he disappeared, the victim was
supposed to be going boat shopping in Beaumont. Defendant-Davis also told
Detective Young that the victim was “ratholing” approximately $700.00 for a new
boat. When asked if the victim kept money in his sock, Defendant-Davis said he
did from time to time because of the nature of his job, collecting insurance
premiums.
5 David Guzzardo, district manager for Union National Life Insurance
Company in Lafayette, testified that the victim was an agent of the insurance
company. Mr. Guzzardo explained that the agents generally collect the premiums
by physically going to the homes of the policy holders, some of whom live in low-
income neighborhoods. The premiums are usually paid in cash, check, or money
orders.
On July 2, 2009, the day after the victim‟s body was discovered, Detective
Les Blanchard spoke with Defendant-Davis in order to gather background
information and establish a timeline of the victim‟s whereabouts on the day of his
murder. Defendant-Davis told Detective Blanchard that the victim left for work
early that morning. According to Defendant-Davis, the victim drove her
Trailblazer to work because the victim‟s Honda Accord was having wheel trouble.
The victim wanted to go boat shopping, so he came home early from work –
around 11:00 a.m. The victim and Defendant-Davis went boat shopping in Lake
Charles and then went to Jerry‟s Marine in Sulphur. They arrived back at home
around 2:00 or 3:00 that afternoon. At that time, the victim took his Honda Accord
and headed to Beaumont to continue boat shopping. Aimee Davis, the victim‟s
sister-in-law, spoke with a boat dealership in Beaumont that remembered the
victim calling to say he was heading that way, but the victim never made it.
Defendant-Davis testified that when the victim headed to Beaumont in his Honda
Accord, she took her Trailblazer to go run errands – the cleaners, the grocery store
and an oil change.
Defendant-Davis told Detective Blanchard that the victim had two life
insurance policies – one for $90,000.00 and one for $40,000.00. Defendant-Davis
also told Detective Blanchard that she learned in March of 2009, that the victim
6 was having an affair with Fannie Dietz, a coworker of the victim. When she found
out about the affair, Defendant-Davis confronted Ms. Dietz.
Several days later, on July 9, 2009, Detectives Blanchard and Young
received permission from Defendant-Davis to search her residence and Trailblazer.
With the help of Defendant-Davis‟ son, Justin Little, the detectives collected a box
of ammunition belonging to the victim. The box of ammunition contained some 9-
millimeter Hydra-Shok rounds.2
Defendant-Davis gave a formal statement to the detectives on July 9 th. In
this statement, Defendant-Davis repeated much of what she had already told
Detective Blanchard on July 2nd. Defendant-Davis also told the detectives that
she spoke to the victim once after she and the victim went their separate ways on
the day of the murder. Then, when she attempted to call the victim again, the call
went straight to voicemail. When the victim did not come home, Defendant-Davis
called the police to see about reporting him missing and was told that she must
wait twenty-four hours from the time she expected him home. The next morning,
Defendant-Davis called the victim‟s work and learned that no one there had heard
from him. David Guzzardo verified that Defendant-Davis called him that Tuesday
morning to see if he had seen the victim. Defendant-Davis called the police that
night, and a policeman came to Defendant-Davis‟ home. Mark Chatman, an
officer with the Lake Charles Police Department, confirmed that he received a call
from Defendant-Davis about a missing person and went to Defendant-Davis‟ home
Tuesday around 4:30 p.m. Defendant-Davis told Officer Chatman that the victim
was supposed to be heading to Beaumont in his Honda.
2 Douglas Lancon, the State‟s expert in firearms and tool mark identification and ballistics, defined “hydroshock” as a “patented proprietary bullet design by Federal.”
7 In her July 9th statement, Defendant-Davis told detectives that before she and
the victim left to go boat shopping on June 29 th, the victim went to Kroger to get
his sick daughter (Bailey) some soup. Catherine Davis, the victim‟s sister, testified
that Defendant-Davis told her that the victim never returned from Kroger. In her
statement to detectives, however, Defendant-Davis explained that she and the
victim went boat shopping after he returned from Kroger and later split ways.
When they split ways, Defendant-Davis picked up Defendant-Saltzman to go run
errands. As for the victim‟s mistress, Defendant-Davis told Detective Young that
the mistress‟ husband, Shane, had threatened to beat the victim‟s “a_ _” and get
him fired. Mr. Guzzardo, the district manager for Union National Life, testified
that the victim told him that his mistress‟ husband, Shane Dietz, might try to have
him fired.
As for their financial situation, Defendant-Davis stated that her account was
overdrawn by almost $800.00, that her house note had not been paid since March,
and that they had no car insurance. Defendant-Davis also stated that she thought
the victim gambled more than she was aware. Julius Oaties with Union National
Life Insurance testified that both Defendant-Davis and Defendant-Saltzman
worked for Union National at one time. Defendant-Saltzman was terminated in
March of 2009, and Defendant-Davis was terminated one week later. Despite their
financial situation, Darrell Pettifer of Jerry‟s Marine testified that on the day of his
murder, the victim was looking at a $30,000.00 boat. The victim told Mr. Pettifer
that he planned to pay for the boat with a settlement or lump sum of cash that he
was getting in the near future.
After Defendant-Davis‟ July 9th statement and before her July 13th statement,
Detective Young became concerned with information he learned from Defendant-
Davis‟ cell phone records. A call made by Defendant-Davis at 3:50 p.m. “pinged” 8 off of a tower on Elliot Road in Lake Charles. According to Detective Young, the
tower is south of the area in which Defendant-Davis claimed to have been running
errands.3
In her next statement to police on July 13, 2009, Defendant-Davis repeated
much of the same information given in her previous statements but added
information about Defendant-Saltzman‟s use of the victim‟s Honda Accord.
Defendant-Davis explained that the victim‟s Honda Accord was not at the house
the morning of the murder because Defendant-Saltzman drove it home the night
before when her car would not start because she left her lights on. On the morning
of the murder, while the victim was at work, Defendant-Davis jumped Defendant-
Saltzman‟s car off so that Defendant-Davis could drive to the drugstore.
According to Detective Young, Defendant-Davis said she called Defendant-
Saltzman to tell her the Jetta was “good” and that she could come pick it up.
According to Defendant-Davis, Defendant-Saltzman picked up the Jetta and left
the Accord at their house while Defendant-Davis and the victim were boat
shopping. Defendant-Davis reiterated that that she and the victim split ways
between 2:30 and 3:00 the afternoon of the murder. Defendant-Davis talked to the
victim about 3:00 while driving to Defendant-Saltzman‟s house. Defendant-Davis
had to wait for Defendant-Saltzman to get ready. The two then went to the
cleaners, Albertson‟s, and back to the Davis residence.
When told by Detective Young that her cell phone was being used in the
area of the victim‟s murder, Defendant-Davis stated that she was not there. In fact,
she stated that she had never been in the area where the murder occurred until after
3 Detective Young did not testify that this call was made on the day of the murder. It is clear from his testimony as a whole, however, that it was made that day. 9 the victim‟s body had been found. Defendant-Davis had no explanation for her
cell phone being used in the area of the victim‟s murder.
Defendant-Saltzman also gave a statement to detectives on July 13, 2009.
Defendant-Saltzman stated that she was at the Davis home all afternoon on the day
before the murder, which was a Sunday. When Defendant-Saltzman started to
leave around midnight, her car would not start. Defendant-Davis told Defendant-
Saltzman to take the victim‟s Honda Accord since the victim would be driving
Defendant-Davis‟ Trailblazer to work the next morning. The next morning,
Monday, Defendant-Davis called Defendant-Saltzman to tell her that the victim
would be needing the Honda Accord. Defendant-Saltzman put $5.00 to $10.00
worth of gas in the car and drove it to the Davis residence. According to Detective
Blanchard, a video from Shop Rite showed Defendant-Saltzman at the store shortly
after 11:00 p.m. According to Defendant-Saltzman, she drove the Honda Accord
to the Davis residence, and Defendant-Davis then drove Defendant-Saltzman back
home.4 Defendant-Saltzman claimed that she stayed home until Defendant-Davis
picked her up to run errands later that afternoon. Defendant-Saltzman was not
ready when Defendant-Davis arrived, so they did not leave to run errands until an
hour later. When the two left Defendant-Saltzman‟s house, they went straight to
the dry cleaners and then to Albertsons. At first, Defendant-Saltzman stated that
Defendant-Davis drove while running errands but later remembered that she
(Defendant-Saltzman) drove. The two women completed the errands and arrived
at the Davis residence around 5:00 or 5:30 p.m.
When the victim was still missing on Tuesday, Defendant-Saltzman drove
around looking for him. Because the victim had previously taken them fishing at
4 We note that Defendant-Saltzman‟s statement about when she returned the Honda Accord is inconsistent with Defendant-Davis‟s statement that Defendant-Saltzman returned the Honda Accord sometime while Defendant-Davis and the victim were boat shopping. 10 Calcasieu Point, Defendant-Saltzman drove to Calcasieu Point to look for the
victim. When asked what she thought about the fact that Calcasieu Point was close
to the murder scene, Defendant-Saltzman replied that she never thought about that.
According to Detective Blanchard, the victim‟s body was found less than a mile
from Calcasieu Point Landing.
In a separate interview conducted on that same date (July 13, 2009),
Defendant-Saltzman stated that she had previously lived with the Davises for three
years. Defendant-Saltzman told Detective Blanchard that she had no knowledge of
the victim‟s death. When Detective Blanchard explained to Defendant-Saltzman
the difference between first and second degree murder, Defendant-Saltzman asked
if he thought she killed the victim. Detective Blanchard told Defendant-Saltzman
that he thought she had either direct or indirect knowledge of the victim‟s murder.
Defendant-Saltzman stated that she did not know what happened and asked to
leave the interview. At that point, the interview was concluded.
Stephanie Wells, a good friend who was living with the Davises at the time
of the murder, testified that she had eye surgery the day the victim disappeared.
Ms. Wells testified that she remembered seeing Defendant-Saltzman‟s car parked
in the grass when she left for surgery. When Ms. Wells returned home from her
surgery around 10:30 a.m., she did not recall seeing Defendant-Saltzman‟s car at
the Davis residence. Defendant-Davis was at home when Ms. Wells returned
home, and the victim arrived a few minutes later. The victim asked Ms. Wells if
she would watch his daughter, Bailey, while he and Defendant-Davis went boat
shopping. Although Ms. Wells never saw the victim again, Defendant-Davis
returned home around 5:00 p.m. Ms. Wells called the victim between 3:00 and
3:30 p.m., but the phone call went to voicemail. At 3:42 p.m., Ms. Wells sent the
victim a text message stating that Bailey was not feeling well. Detective Young 11 testified that the victim‟s cell phone records indicate Ms. Wells tried to call him at
3:42 p.m., and the phone call went straight to voicemail. The voicemail was
followed by a text message stating that Bailey was ill. Although Ms. Wells did not
receive a call back from the victim, she did receive a call from Defendant-Davis.
According to Detective Young, Defendant-Davis called Ms. Wells at 3:50 p.m..
Ms. Wells assumed the victim and Defendant-Davis were still together. Ms. Wells
thinks Defendant-Davis told her she was going to run errands. She acknowledged
that in her previous statement to police she said that Defendant-Davis told her she
was going to pick up Defendant-Saltzman to run some errands. Ms. Wells also
acknowledged that Defendant-Davis made this call to her around 3:50 p.m..
Defendant-Davis and Defendant-Saltzman arrived home from running errands
around 5:00 or 5:30 p.m.. According to Ms. Wells, Defendant-Davis was very
distraught and crying when the officers notified her of the victim‟s death.
As for the cars at the Davis residence, Ms. Wells testified that when she left
that morning for her eye surgery, Defendant-Saltzman‟s Jetta was parked off to the
side of the driveway on the grass. Ms. Wells did not believe the victim‟s Honda
was there when she left. When Ms. Wells returned, however, she believed
Defendant-Saltzman‟s Jetta was gone and the victim‟s Honda was there. Ms.
Wells also testified that after she went inside, she does not know what vehicles
were picked up or dropped off.
Kelsey Little, Defendant-Davis‟ daughter, arrived at the Davis residence
around 7:30 the morning of the victim‟s murder. Kelsey was with her boyfriend
and went to sleep until approximately 2:00 p.m.. Kelsey left with her boyfriend
and did not arrive back at home until around 9:00 that night. According to Kelsey,
Defendant-Davis told her that the victim never came home from work, and no one
12 could get in touch with him. When the police notified Defendant-Davis of the
victim‟s death, Defendant-Davis was crying and throwing up.
Babette Bartholomew, Defendant-Davis‟ mother, testified that she deposited
$4,000.00 into Defendant-Davis‟ account around the time of the victim‟s
disappearance. Defendant-Davis told Ms. Bartholomew that she was instructed by
police not to use the account since the victim was missing. Ms. Bartholomew
stated that she did not know the victim was deceased when Defendant-Davis asked
her for the money. When asked if she ever told the police that Defendant-Davis
told her the account was frozen because of the death investigation, Ms.
Bartholomew stated that if she did, it was because the victim was already dead at
the time she was being interviewed. In her statement to police, Ms. Bartholomew
stated:
I deposited $4,000 into a new account for my daughter, Robyn Davis, around the time of the funeral. I don‟t exactly remember when, but it was after he had died. Robyn said she couldn‟t use her account or they, detectives, wouldn‟t let her use the account because they wanted to watch the activity of Robyn‟s deceased husband‟s credit card or account as part of the investigation. I don‟t remember if Robyn told me that the account was frozen, I just assumed that, but I think I told them she said it was frozen.
At trial, Ms. Bartholomew testified that she deposited the money into Defendant-
Davis‟ account before the victim died.
Detective Young testified that Ms. Bartholomew told him and Detective
Blanchard that she deposited the money into Defendant-Davis‟ account because
Defendant-Davis said the police froze the account due to the victim‟s death
investigation. At first, this statement did not concern Detective Young. The
detective became concerned, however, when he reviewed the financial records and
learned that Ms. Bartholomew‟s deposit was made on July 1, 2009, the same date
the victim‟s body was found.
13 Fannie Dietz confirmed that she and the victim had had an affair for about
one and a half years. The affair ended in March 2009, when Defendant-Davis
confronted her about the affair. According to Mrs. Dietz, her husband, Shane, also
confronted the victim about the affair. Shane confirmed that he confronted the
victim about the affair but denied ever threatening the victim. Mrs. Dietz was
questioned by police on July 7th and took the officers to a spot at which she had
previously met the victim. Detective Brent Young described the spot as being “off
of Henry Pugh Boulevard, which runs off of Big Lake Road near Calcasieu Point
landing.” According to Detective Blanchard, the victim‟s body was found less
than a mile from Calcasieu Point Landing.
Detective Young testified that Mrs. Dietz‟s cell phone records showed that
she was in the Iota and Crowley area on June 29th. Detective Young also testified
that Shane Dietz‟s phone records showed that he was not in the Lake Charles area
on June 29th. However, Detective Young admitted that there was a gap of several
hours between phone calls for both Mr. and Mrs. Dietz. Shane Dietz‟ records
showed that he made a phone call at 2:50 p.m. and then received no other calls or
texts until he received a text at 10:54 p.m. Likewise, the phone records for Mrs.
Dietz show no activity between 9:28 a.m. and 4:56 p.m. According to Detective
Blanchard‟s testimony at trial, Detective Young also spoke with Shane‟s boss, who
verified that Shane was at work on the day of the victim‟s disappearance.
Murder Scene
Matt Vezinot, one of the deputies that responded to the murder scene,
testified that the victim‟s vehicle appeared to have been having tire trouble. The
lug nuts were taken off of one of the tires, and the car‟s spare tire was on the
ground. In order to protect the tire from further damage during the towing process,
Deputy Vezinot replaced the seemingly damaged tire with the spare. The tire was 14 taken to Southern Tire Mart to be examined for defects. Billy Carnahan, Southern
Tire Mart‟s store manager, testified that he found no defects in the tire. Mr.
Carnahan also testified that if a flat tire was driven over the terrain he saw in a
photograph shown to him by the State, the tire would have been damaged. On
cross-examination, Mr. Carnahan acknowledged that although it does not happen
often, new tires will leak if they are not sealed well around the rim. Mr. Carnahan
also agreed that there are situations in which a tire can go flat even if there is no
damage to the outer part of the tire.
Lynn Miller, with the Southwest Louisiana Crime Lab, was asked to
examine fingerprints lifted from the crime scene in the present case. The
fingerprints were lifted from the carjack, the windows of the victim‟s Honda
Accord, an iPOD found in the car, the spare tire rim, and the mirror on the sun
visor of the Accord. The only fingerprint that Ms. Miller was able to identify was
Defendant-Davis‟ fingerprint on the mirror of the sun visor.
LeAnne Suchanek, also with the Southwest Louisiana Crime Lab, performed
a DNA analysis on items recovered from the crime scene. According to Ms.
Suchanek, the victim‟s body was too decomposed to yield a blood sample. Ms.
Suchanek explained that the only way to obtain a “known [DNA] profile” from
someone is to obtain a sample directly from the person‟s fluid or cellular material.
Ms. Suchanek concluded that DNA found on the victim‟s belt, on the victim‟s
fingernails, a bottle cap found at the scene, and the victim‟s driver‟s license
belonged to an unidentified male. In Ms. Suchanek‟s opinion, the unidentified
male was most likely the victim. Ms. Suchanek reached this opinion by examining
the victim‟s left and right fingernails, from which she obtained a single DNA
profile. Because the fingernails are an “intimate sample” taken from the victim,
Ms. Suchanek expected the victim‟s DNA to be present. Ms. Suchanek compared 15 the DNA found on the victim‟s belt buckle, beer bottle cap and driver‟s license
with the profile obtained from the victim‟s fingernails and concluded that they
were consistent. Finally, Ms. Suchanek testified that she discovered no female
DNA on the items recovered from the scene.
Testimony Regarding Victim’s Gun and Weapon Used to Kill Victim
Jody Baiamonte, an agent with Union National Life Insurance, testified that
he knew the victim very well and knew that the victim carried a firearm in his car.
Another agent, Robert Konrady, introduced the victim to a shooting club when the
victim bought a Springfield automatic pistol and wanted to learn how to shoot
better. Mr. Konrady testified that the victim was proficient in firearms and carried
a gun in his vehicle. Justin Little, Defendant-Davis‟ son, testified that the victim
always kept a Springfield XD 9-millimeter handgun either on his person or in his
car.
Douglas Lancon, accepted as an expert in firearms and tool mark
identification and ballistics, examined two projectiles found in the victim‟s body.
According to Mr. Lancon, these two projectiles were fired from the same gun and
were characteristic of “Federal‟s hydroschock design.” On cross-examination, Mr.
Lancon acknowledged that there are at least eleven manufacturers that could have
made the gun that fired these bullets, one of which was Springfield.
Crime Scene Reconstruction Expert
Mr. George Schiro testified for the State as an expert in crime scene
reconstruction. After reviewing photographs of the crime scene, Mr. Schiro opined
that because the victim‟s Honda Accord was not muddy, the vehicle had to have
arrived at the scene before it rained on the day of the murder. The meteorology
reports from the Lake Charles Airport indicate that the rain began around 3:45 p.m.
on the day of the murder and lasted until about 7:00 that night. 16 Mr. Schiro also noticed that there was a live round located near the victim‟s
vehicle. This fact, Mr. Schiro opined, may indicate that the person firing the
weapon was not familiar with that particular firearm:
[I]f someone . . . is not familiar with a particular firearm, they may - - if they‟re not familiar with all the safety functions, they may pull the trigger to try and click and nothing happens and then they‟ll rack one out and maybe at the time, you know, figure out how some of the safety mechanisms that may be involved
Mr. Schiro further opined that the shooter may have been standing and the victim
bending over when the shooter shot the victim in the back. The victim then turned
around and was possibly shot again, with the final blow being a shot to his head.
Additionally, Mr. Schiro testified regarding his opinion as to whether the
victim was shot with his own gun. In reaching his opinion, Mr. Schiro looked at
the information concerning the brand of the live round found at the scene and
information concerning the weapon owned by the victim. After looking at this
information, Mr. Schiro opined the following:
The evidence at the scene supports a probability that he may have been shot with his own gun. Given that there‟s a particular type of ammunition called Hydra-Shoks and, you know, the shootings that I have investigated, you rarely ever see Hydra-Shoks, with the exception of law enforcement personnel and shooting enthusiasts.
I saw photographs of that same type of ammunition at Mr. Davis‟ house, so I just think that lends more support, and given the fact that the bullets recovered from his body were Hydra-Shoks and the cartridge casings found at the scene were Federal just lends more support to that he may have been shot with his own gun.
On cross-examination, Mr. Schiro acknowledged that he would need to
examine the victim‟s firearm to determine if it was the actual gun that shot the
bullets found at the scene. Mr. Schiro agreed that his opinion is limited to the fact
that it was probably the victim‟s gun based on the fact “there were Hydra-Shok
rounds - - he had Hydra-Shok rounds found in his possession[.]” Finally, on re-
direct, Mr. Schiro testified, “Relatively speaking, among shootings, you very rarely 17 see Hydra-Shok ammunition, again, unless it‟s usually a shooting enthusiast
involved or law enforcement.”
Finally, Mr. Schiro rendered an opinion as to whether the crime scene was
staged:
Well, I believe that the whole tire incident was staged, because all the documentation that I examined show that that tire was fairly recently purchased. There were no defects in it. As far as I know, it held its - - its charge of air once it was charged. There appeared to be no defects on it. So, to me, that part of the scene was staged and that someone had to deflate that tire, and I don‟t know if it was staged for the benefit of the investigators who come out there, you know, and make it look like he was changing a flat tire, or if it may have been for Mr. Davis‟ benefit to make him think that there was a flat tire associated with this vehicle.
The other thing is, in addition to that, Mr. Davis had a compressor in the trunk of his car. And I don‟t know whether or not that compressor was functioning or not, but if the tire was truly flat, instead of changing the tire, you know, perhaps could have used the compressor. So, just the whole thing with the functionality of the tire indicated to me that that portion of the scene was staged.
On cross-examination, Mr. Schiro acknowledged that crime scene
contamination can thwart the investigation of a case. The jury had previously
heard the testimony of Deputy Roxanne Baumgarten, a registered medical-legal
death investigator with the Calcasieu Parish Sheriff‟s Department, regarding
possible contamination of the crime scene in this case. Deputy Baumgarten
acknowledged that because there were photographs showing the Honda Accord‟s
trunk open and photographs showing the Honda Accord‟s trunk closed, someone
did not follow the proper protocol, i.e., no touching of the evidence until all
photographs and video are taken. Deputy Baumgarten further expressed concern
with the fact that Deputy Vezinot took the allegedly defective tire and put it in the
trunk of the vehicle. The problem, Deputy Baumgarten recognized, is that
anything on the outside of the trunk could have been transferred to the inside of the
18 trunk. Mr. Schiro agreed that putting the tire in the trunk without individually
protecting it was improper.
On cross, Mr. Schiro recognized that the victim‟s body was found in a
secluded area and that the victim‟s belt was unbuckled and his shoes and a sock
were off. Mr. Schiro admitted that the victim could have been getting undressed
when he was killed. When asked, however, if his opinion would have been
affected by testimony that the victim liked to go to remote areas to have sex with
his mistress, Mr. Schiro replied, “No, it wouldn‟t have affected my opinions, based
on what I‟ve, you know, laid out here today.”
Further Investigation – Walgreens Video
Based on the fact that Defendant-Davis stated that she went to the drugstore
on the morning of the victim‟s disappearance (June 29 th), Detective Young
obtained a video from Walgreens Drugstore for June 29th. The video was
introduced into evidence and played for the jury. The video shows that at 8:52 on
the morning of June 29, 2009, both Defendant-Davis and Defendant-Saltzman
entered the store. According to Detective Young, Defendant-Saltzman never
mentioned going to the drugstore with Defendant-Davis.
Cell Phone Records
Detective Young testified as to discrepancies he discovered when looking at
Defendant-Davis‟ cell phone records. Although Defendant-Davis told detectives
that she called the victim once after they split up, Detective Young testified that
Defendant-Davis‟ phone records showed that from 3:00 p.m. on, Defendant-Davis‟
first call to the victim was at 5:58 p.m. Detective Young also testified about the
phone call from Defendant-Davis to Ms. Wells at 3:50 p.m. on the afternoon of the
victim‟s disappearance. In her statement, Defendant-Davis told the detective that
when she made the 3:50 call, she was waiting on Defendant-Saltzman to dry her 19 hair so that they could go run errands. According to the cell phone records, this
call “pinged” off of a Sprint tower located at 7279 Elliot Road. The use of this
tower concerned Detective Young, because the tower is south of Country Club
Road, when the Defendants claimed they only went to Albertson‟s and AAA
Cleaners. That same tower was used in a two-second phone call made from the
victim‟s phone at 3:44 p.m. p.m. on the 29th. At the beginning of Defendant-
Davis‟ 3:50 p.m. call, the southwest sector of the tower (sector 4), was the portion
of the tower being used. During the call, however, the sector being used switched
to sector 3 of the same tower, indicating that Defendant-Davis was mobile. In her
statement, Defendant-Davis stated that she did not go anywhere that afternoon
besides Albertson‟s and AAA cleaners. A surveillance video from AAA Cleaners
verified that both Defendant-Davis and Defendant-Saltzman were at AAA
Cleaners at 4:40 p.m..
Detective Young also testified regarding Defendant-Davis‟ claim that she
left lots of voicemails for the victim. According to Detective Young, Defendant-
Davis said she called the victim‟s voicemail “bunches” of times. However, when
the victim‟s voicemail was played for the jury, there were no messages from
Defendant-Davis from June 29, 2009, at 2:58 p.m., until July 4, 2009, at 9:20 a.m.
As for Defendant-Saltzman, Detective Young testified that she told him that
she was home in the afternoon of June 29th, until she went with Defendant-Davis to
run errands. Defendant-Saltzman‟s cell phone records, however, indicated that a
phone call made by Defendant-Saltzman to Defendant-Davis at 1:38 p.m. “pinged”
off of Centennial Tower 940 located at 316 Ben Wright Road in Hackberry,
Louisiana. According to Detective Young, Hackberry is located south of Sulphur.
Detective Young previously testified that there is a Centennial tower located on
Irvin Jensen Lane that is approximately 100 yards from Defendant-Saltzman‟s 20 residence, which is located in Lake Charles. At 2:41 p.m., Defendant-Davis called
Defendant-Saltzman, and Defendant-Saltzman‟s cell phone “pinged” off a
Centennial tower located by the airport in south Lake Charles. Then, at 2:49 p.m.,
Defendant-Saltzman called Defendant-Davis, and Defendant-Saltzman‟s phone
“pinged” off of a Centennial tower in Sweetlake, Louisiana. Finally, Defendant-
Saltzman received a call at 3:01 p.m. that initially “pinged” off of the tower near
the airport and ended at Irvin Jensen tower near Defendant-Saltzman‟s residence.
Detective Young testified that the final call was from Troy Fletcher to Defendant-
Saltzman.
In addition to the Defendants‟ cell phone activity on the 29th, Detective
Young testified as to the Defendants‟ cell phone activity on Sunday the 28 th.
According to Detective Young, both Defendants told him that they were at the
Davis home sitting by the pool and grilling. However, at 5:00 p.m. on the 28 th,
Defendant-Davis called Defendant-Saltzman, and Defendant-Saltzman‟s phone
“pinged” off of the Centennial tower located in Hackberry, the preferential tower
for a call made from the murder scene. At 6:26 p.m. on that same date, Defendant-
Davis called Defendant-Saltzman, and Defendant-Davis‟ phone “pinged” off of a
cell tower located at 2381 Augustus Street in Sulphur, Louisiana. According to
Detective Young, the Augustus Street tower is located near Jerry‟s Marine, the
same location at which the victim and Defendant-Davis were seen boat shopping
the following day. At 7:31 p.m. on that same date, the victim called Defendant-
Davis, and the victim‟s phone “pinged” off of a tower located on Canal Street near
his home. Defendant-Davis, however, “pinged” off of the tower located at 7279
Elliott Road, which is the same tower off of which her 3:50 p.m. call to Ms. Wells
“pinged” the following day (June 29th).
Expert Testimony Regarding Cell Phone and Cell Phone Towers 21 Special Agent William Shute of the Federal Bureau of Investigations was
introduced by the State as an expert in historical cell site analysis. Agent Shute
examined the call detail records of the Defendants and victim, as well as the cell
towers themselves, to make sure the towers were in the same condition they were
in at the time of the crime. Agent Shute took an engineering cell phone to the
tower locations to see if the phone would reselect to that particular cell tower.
Agent Shute explained that when a phone is in idle mode, it is constantly “stacking
and racking” – meaning “[i]t‟s taking all the various cell sites that the phone can
see and has stacked and racked at the top the one it sees with the clearest signal,
the best quality of signal.” Agent Shute prepared a power-point presentation to
demonstrate the cell towers used as well as the range of the towers. When asked
how accurately the circles drawn on his demonstration depict the radio frequency
of the towers, Agent Shute responded:
Well, a cellular signal doesn‟t have a perfect ending, a perfect circular sort of ending. It looks more like an ameba, if you were to really draw it by using additional equipment. But what this represents is it‟s the furthest possible distance that the phone was most likely at during that time, by doing testing east and west of the tower, and when the phone that I used to test with would drop the Centennial Wireless signal from that tower.
Again, when your phone is stacking and racking, it puts that cell site to the top of the list so that if it‟s about to make a phone call or receive a phone call, that‟s the cell site that the call gets originated on, the call gets set up on. Outside of that area, the call was not - - or the phone was not reselecting to that cell site. That‟s why we draw it like this. It‟s an approximation, and actually it‟s to actually be fair to the person who actually has the phone, because you have to show, you know, all the possible areas the phone could have been.
In reality, Agent Shute testified, the outside areas could be further away or closer
to the cell site. Additionally, Agent Shute explained:
And, again, is that the exact depiction? No. But it‟s - - if it‟s different, it‟s not that much different than that. Because, again, my phone that I use to test with, this shows where the phone no longer
22 had that signal. And so outside of that area it‟s very unlikely the phone to reselect to [Tower] 2610.
....
So, you know, in reality the signal probably goes, you know, further and further and further. But the phone would not reselect to it because the phone cannot see it . . . [a]s a clear quality signal.
Using his demonstration to explain his testimony, Agent Shute testified that
on June 28th, the day before the murder, Defendant-Davis called Defendant-
Saltzman at 5:00 p.m. Defendant-Davis‟ phone utilized cell tower 3278, which is
the tower near the Davis residence in Lake Charles and the preferential cell site at
the residence. During that same call, Defendant-Saltzman‟s phone utilized
Centennial Wireless Cell Site 940 located off of Ben Wright Road in Hackberry,
which is located south of Sulphur and is the preferential cell tower for a call made
from the murder scene. At 6:26 p.m. on June 28 th, Defendant-Davis called
Defendant-Saltzman, and Defendant-Davis‟ phone utilized Sprint Tower 3015, the
tower near Jerry‟s Marine, where the victim and Defendant-Davis were seen boat
shopping the following day. During that same call, Defendant-Saltzman‟s phone
utilized Centennial Tower 2610, a tower located approximately 370 yards from
Defendant-Saltzman‟s residence. According to Agent Shute, tower 2610 is the
serving tower for Defendant-Saltzman‟s residence. Finally, at 7:31 p.m. on June
28th, Defendant-Davis made a phone call that used cell tower 3045, a tower that
covers an area as close as ½ mile from the murder scene.
The following day, June 29th, Defendant-Davis called Defendant-Saltzman
just after midnight. Defendant-Davis appeared to be in the vicinity of her
residence because her phone utilized cell tower 3278, while Defendant-Saltzman
appeared to be at her residence because her phone utilized tower 2610. Relying on
the video surveillance at Walgreens, Agent Shute testified that later that morning,
23 both Defendant-Davis and Defendant-Saltzman were together at Walgreens. At
about the same time the Defendants were at Walgreens, Defendant-Davis received
a phone call, and her phone utilized tower 3278, the same tower used at her
residence. According to Agent Shute, Walgreens is in the same coverage area for
tower 3278. Notable to Agent Shute was the fact that Defendant-Davis‟ presence
at Walgreens was also supported by the cell site information.
At 11:18 a.m., Defendant-Saltzman is recorded on video at the Shop Rite on
Country Club Road in Lake Charles. Defendant-Davis called Defendant-Saltzman
at 11:25 a.m., and Defendant-Saltzman‟s phone utilized tower 2610, the tower near
Defendant-Saltzman‟s home in Lake Charles. Later, at 1:38 p.m., Defendant-
Saltzman called Defendant-Davis, and Defendant-Saltzman‟s phone used tower
940, the tower located in Hackberry, Louisiana, and the preferential tower for a
call made from the murder scene. This is the same tower, according to Agent
Shute, that Defendant-Saltzman‟s phone used the previous day. Agent Shute
testified that the tower is 300 feet high and actually covers as far out as eight miles.
According to Agent Shute, a cell phone used on the access road of the murder
scene would utilize this same tower. During the 1:38 p.m. call, Defendant-Davis
utilized tower 2273, a tower near Lake Area Marine in Lake Charles, one of the
places at which the victim and Defendant-Davis boat-shopped on June 29th.
Approximately one hour later at 2:41 p.m., Defendant-Davis called
Defendant-Saltzman. At that time, Defendant-Davis utilized tower 3015, which is
the serving cell site for Jerry‟s Marine in Sulphur. At that time, Defendant-
Saltzman had moved from tower 940 in Hackberry to tower 2470 by the Lake
Charles airport. For the next thirty minutes (from 2:41 p.m. to 3:08 p.m.),
Defendant-Davis had five phone calls, all of which used tower 3015, the serving
site for Jerry‟s Marine. Three of the phone calls were with Defendant-Saltzman. 24 One of the calls (the call at 2:53 p.m.) was with the victim. During this call, both
Defendant-Davis and the victim used the same cell tower, 3015. Both Defendant-
Davis and the victim were recorded leaving Jerry‟s Marine at 2:55 p.m. The last
call, during which Defendant-Davis‟ phone used cell tower 3015, was made at 3:08
p.m.
The next call from Defendant-Davis‟ phone is a 3:50 p.m. call. During this
call, Defendant-Davis‟ phone originated at Sprint tower 4045 and ended 2 minutes
and 23 seconds later on Sprint tower 3045. According to Agent Shute, neither
tower 4045 nor tower 3045 can be utilized at the murder scene. However, the
towers can be used “a half a mile up the road” from the murder scene. Notable to
Agent Shute was the fact that Defendant-Davis‟ phone could have been as close as
one-half mile from the crime scene or as far away as five miles. Agent Shute also
testified that because the 3:50 p.m. phone call originated on one cell tower and
ended on another, Defendant-Davis was mobile during that phone call.
Agent Shute used mapping software and a drive test to find the most direct
route from Jerry‟s Marine to the areas covered by towers 3045 and 4045, the
towers used by Defendant-Davis during her 3:50 call. The mapping program and
drive testing showed a distance of twenty-one miles and an approximate travel
time of twenty-eight minutes. Thus, Agent Shute opined that it was possible for
Defendant-Davis and the victim to arrive at the murder scene by 3:36 p.m.
Defendant-Davis‟ phone calls after the 3:50 p.m. call show that she moved a little
to the east and then a little to the southeast and then back to the vicinity of her
residence. At 4:39 p.m., Defendant-Davis made a phone call that used Sprint
tower 2280. Both AAA Cleaners and Albertson‟s are in the coverage area for that
tower. Finally, at 9:36 p.m. on June 29, 2009, Defendant-Davis made a call and
Sprint tower 3278, the serving site for her residence, was used. 25 As for the victim‟s cell phone records, Agent Shute testified that the victim‟s
cell phone was used at 3:01 p.m on the 29th and used tower 3015, the cell site for
Jerry‟s Marine. Then, at 3:44 p.m., the victim‟s phone made an outbound call
lasting only two seconds. The phone used cell tower 3045, the same tower used by
Defendant-Davis in her 3:50 p.m. call. Agent Shute noted that Defendant-Davis‟
cell phone used cell tower 3045 at 7:31 p.m. the day before the murder and at 3:50
p.m. the day of the murder.
On cross-examination, Agent Shute explained that the population of calls on
a network has no bearing on the range of the tower. In other words, if the
population in an area decreases, the range of a tower will not increase. Agent
Shute further explained that although geography could affect the range of a tower,
the weather has minimal effect on the range. Although Agent Shute did not agree
or disagree with defense counsel, defense counsel noted that on June 28 th (the day
before the murder), both the victim and Defendant-Davis were using their cell
phones in the vicinity of Jerry‟s Marine between 6:25 p.m. and 6:29 p.m.
Additionally, when questioned about the use of multiple cell towers during phone
calls that Defendant-Davis made on June 27th within seconds of one another,
Agent Shute opined that Defendant-Davis was either mobile or within an area of
overlap for those towers.
As for the time it took to get from Jerry‟s Marine to the murder scene, Agent
Shute testified that if a person drove the speed limit, it is possible for that person to
reach the crime scene in twenty-eight minutes. If a person drove over the speed
limit, of course, that person could arrive sooner. During the cross-examination of
Agent Shute, the defense offered documentation showing that a pontoon bridge on
the way to the murder scene was opened for barge traffic (and thus closed to road
traffic) between 3:31 and 3:47 p.m. on June 29th. Allyson Bailey, a bridge operator 26 with the Department of Transportation and Development, confirmed that the Black
Bayou Bridge on Big Lake Road was closed to road traffic from 3:31 p.m. until
3:47 p.m. Agent Shute agreed that if this documentation was accurate, no one
could have crossed the bridge between 3:31 p.m. and 3:47 p.m. This fact, Agent
Shute acknowledged, was not factored into his analysis.
On re-direct, the following colloquy took place regarding the effect of the
bridge opening on the travel time to the murder scene from Jerry‟s Marine:
Q: All right, Agent Shute. I‟d like to draw your attention to prior testimony and this bridge stuff. Now, we didn‟t have that bridge information, but over the lunch hour I asked you to look at that bridge information, did I not?
A: Yes, on the map. Sure.
Q: Okay. And there was a call in those call detail records, I believe, from Robyn Davis‟ phone at 3:08?
A: 3:08, yes.
Q: All right. In what sector was that phone call made?
A: Thirty-fifteen.
Q: And which sector is that? Is that the one by Jerry‟s Marine?
A: Yes.
Q: All right. I want to go back to your fly-over exhibit. Okay. (Addressing assistant.) Can you go to the one that shows the sector? All right. Right there. Okay. That‟s 3015, correct?
Q: And that‟s the one that her phone was on at 3:08?
A: That‟s correct.
Q: All right. That covers a wide range of area, does it not?
Q: Okay. So I see I-10 on that - - in that particular sector, correct?
A: Yes. 27 Q: If that phone made a call at 3:08, could it have been on the outside of the area?
A: You mean towards the outside of the coverage area, out this way?
Q: Oh, yes, sir. That‟s what I mean.
A: Sure.
Q: Like if someone were going down I-10, say to go back to Lake Charles, it would go all the way back over to where that sector ends, right, - -
A: Out - -
Q: - - or it could?
A: Out this way, yes.
Q: Yes, sir.
Q: All right. From 3:08, did - - no, scratch that. Back when you said 30 - - no, 28 minutes?
A: Twenty-eight minutes.
Q: That was timed from where?
A: From right here, from Jerry‟s Marine.
Q: All right. So, there‟s some time in that 28 minutes that it would have taken to get from Jerry‟s Marine to the outer edge of that sector, correct?
A: Yeah, using the same mapping software that I utilized when I did this, I checked. And to get from about Jerry‟s Marine up this road and out on Interstate 10 to about this approximate geographical area would take about six minutes.
Q: Okay. So, the six minutes - - if the call would have came in at 3:08, then it could be at the end? It would be at the end or somewhere in that particular area that you talked of?
A: Well, again, we don‟t know where the phone was, but if the phone was towards the outskirts of the sector out here on Interstate 10 in this geographical vicinity, sure.
28 Q: All right. And did you run the mapping software on this area to see from 30 - - I mean, from that particular area how long would it take to get to the murder scene?
A: I believe I checked from the - - that location to being able to get beyond the pontoon bridge.
Q: Okay. And what was that?
A: Twenty-two minutes.
Q: Okay.
A: Going the speed limit.
Q: So if at 3:08 you turned that way and you added 22 minutes, that gets you there at 3:30?
A: 3:30.
Q: Prior to the time that pontoon bridge opens?
A: It is possible, if going the speed limit, you could have gotten there before the - - before the bridge opened. Now, if you were going faster, then you could - - even five minutes, five miles an hour over the speed limit, you could have gotten there a lot - - a lot sooner than the bridge opening.
Q: So, having this bridge opening really doesn‟t affect your opinion, does it?
A: No. It doesn‟t mean anything.
As for the two-second call made from the victim‟s phone at 3:44 p.m., Agent
Shute testified that that call could have been a “pocket dial,” a misdial with a quick
hang-up, a phone call that quickly lost signal, or any number of things. When
asked if the phone could have been thrown into water while it was on, Agent Shute
replied, “If the phone was connected to - - for a signal and then dropped into the
water or thrown into the water, the call signal would terminate immediately.”
Agent Shute testified that he did not believe the victim‟s cell phone was found at
the crime scene. Finally, Agent Shute opined how long it would take for a person
to travel from the murder scene to the AAA Cleaners and Albertson‟s in Lake
29 Charles. Agent Shute opined that the drive time was approximately twenty-three
minutes. Noting that the Defendants were seen at AAA Cleaners at 4:22 p.m.,
Agent Shute testified that there was enough time for the Defendants to make it
from the crime scene to the cleaners if they were traveling at 3:50.
In its case in chief, the defense offered its own communications expert, John
Minor. Mr. Minor opined that Agent Shute‟s report was biased in several areas.
Mr. Minor testified that “cell sites or cellular antennae range from 100-meter
coverage in what‟s called a picocell in a shopping mall to over several thousand
meters.” Coverage on an interstate, Mr. Minor testified, could be up to forty miles.
When asked to explain the difference between live tracking and historical cell site
analysis, Mr. Minor stated that live tracking is highly accurate. According to Mr.
Minor, in live tracking, other location techniques are used. The accuracy of the
location technology used in this case, historical cell sector analysis, was explained
by Mr. Minor as follows:
Well, the accuracy of this technology is based upon the radiation footprint of the cell site. So, you have a cell site in some cases that have a capability to communicate at perhaps, as that Hackberry tower, so-called, at 8, 12 miles perhaps, and maybe on an interstate highway, a cellular tower may be communicating at 20 or 30 miles.
In town in a suburban or more and more densely urban area, the cell sites are closer together, and so the radiation footprint becomes smaller. So, the actual working range of the cell site becomes smaller. So, this thousand meters plus is just a number. It could be - - it could actually be lower than that, if it were a piocell - - one of the little cells inside a shopping mall, for example. It might be accurate within a hundred yards. But in this case we‟re talking about cell sites that range from basically about 2 miles - - just thinking about the arrangement here in town, probably 1 to 2 miles out to 10 to 15 miles working range and accuracy.
Mr. Minor disagreed with Agent Shute that the cell phone controls which
tower it uses. According to Mr. Minor, the carrier network, not the phone,
determines the cell site to which the phone registers. Mr. Minor explained further: 30 Well, the neighbor cells concept is, I think as Special Agent Shute described, some stacking and racking. Your cell phone actually monitors and remonitors every 6 to 12 seconds the visible radio signal from cell sites in the vicinity around your handset. When you switch on your handset, it immediately begins to gather information and will register to the highest quality signal that it can locate that the carrier network will allow it to.
Although a cell phone typically attempts to seek the strongest or best quality
signal in most instances, there are many factors that will affect how the cell phone
actually registers on the network. Thus, Mr. Minor stated, it is “not always a sure
thing that your handset will register to the nearest cell site or strongest signal.”
Some of the factors that could affect the cell site to which the handset registers are
“heavy traffic loading,” “network operating conditions, cell site maintenance,”
“radio frequency in use,” “antenna array configuration,” “geography and
topographical features,” and “interference factors.” According to Mr. Minor,
Agent Shute did not consider some of these factors in his report. In fact, no
maintenance records were obtained in this case. Thus, there is no indication in
Agent Shute‟s report that he consulted the maintenance records “to know whether
or not the system was the same the day he performed the test as it was whenever
these cell data records he looked at were generated.
Mr. Minor also disagreed with Agent Shute that weather is not a factor that
should be considered. Weather, Mr. Minor testified, affects the “network operating
condition.” For example, cellular networks can experience “rain fade” during
heavy rain storms, causing the signal to fail to propagate through the rain. The
person using the cell phone would not notice, however, because the cell phone will
reselect to another tower. According to Mr. Minor, lightening can also cause
tremendous problems. Finally, Mr. Minor explained what happens when a cell site
experiences problems:
31 [I]f some or many of the cell sites were experiencing outages, either one sector or an entire site blinking out, the network would expand to fill the voids, and the working range would extend, and your handset might actually be in another geolocation.
Mr. Minor also testified that if the population in an area decreases because
of a hurricane, for example, fewer subscribers will be in a geographical area,
resulting in less of a load on that segment of the network. In Mr. Minor‟s opinion,
the working range of the Hackberry tower extended ten to twelve miles rather than
the eight miles estimated by Agent Shute. Mr. Minor testified that it is entirely
possible for someone to be on the outer edge of the twelve mile range and have the
Hackberry tower pick up his cell phone call. Mr. Minor further testified that a shift
change at one of the refineries along Big Lake Road could cause a surge in call
traffic. Such a surge could cause a tower to be used that would normally not be
used. Thus, Mr. Minor stated, just because a phone “pings” off of the tower in
Hackberry does not mean the person is in Hackberry.
The airport tower, Mr. Minor testified, is a little over twelve miles from the
Hackberry tower. The Hackberry tower frequencies, Mr. Minor testified, actually
reach the airport tower. Thus, Mr. Minor opined, someone could be south of the
Country Club Road area in South Lake Charles and still be picked up by the
Hackberry tower depending on certain conditions. Mr. Minor testified that it is
possible that Defendant-Saltzman might have “pinged” off of the Hackberry tower
even though she was far north of where Agent Shute estimated her to be.
Additionally, Mr. Minor testified that when looking at the accurate facts from the
tower areas, a more possible explanation would be that Defendant-Davis was in her
own neighborhood when she made the 3:50 p.m. call. Furthermore, Mr. Minor
testified, Mr. Shute‟s theories were “really . . . mess[ed] up” by the fact that the
32 road was shut down for sixteen minutes by the opening of the pontoon bridge.
Finally, Mr. Minor concluded that this type of analysis is a “very inexact process.”
On cross-examination, Mr. Minor testified that he did not perform any
testing himself. Mr. Minor also testified that he did not know whether a shift
change actually took place at the plants on Big Lake Road. Additionally, Mr.
Minor did not know whether there were any problems with the networks when this
crime occurred nor what type of cell-site maintenance was transpiring. As for his
testimony that Tower 940‟s coverage extends twelve miles, Mr. Minor testified
that he did not go out and test or measure anything. Thus, his testimony is simply
an estimate. Finally, Mr. Minor testified that he has no idea of the population in
Hackberry, Lake Charles, or Sulphur.
Background Information About Victim and Defendants
Justin Little, Defendant-Davis‟ son, knew of the victim‟s affair with Fannie
Dietz because Justin worked with the victim for Union National in Lafayette.
According to Justin, the victim would stop to play video poker on the way to work
in the mornings and sometimes on the way home. The victim‟s video poker
playing, Justin testified, escalated in the six months prior to his death. Justin knew
that his mom, Defendant-Davis, also gambled. John Nelson, an employee of KD‟s
Diner in Lake Charles, recognized Defendant-Davis as being a continual customer
at the video poker machines in the few days preceding July 11, 2009.
Justin also testified that Defendant-Davis was married to Justin‟s dad,
Andrew Little, when Andrew died in a car accident in 2008. Andrew and
Defendant-Davis had been separated since 2000, but Defendant-Davis stayed
legally married to Andrew so that she could continue to carry Andrew on her
medical insurance. According to Justin, Andrew could not work because of a bad
back, and it would have been almost impossible for him to obtain medical 33 insurance. Justin knew that Defendant-Davis carried life insurance on Andrew, but
Justin did not know the value of the policies or what happened to the money from
the policies. Finally, Justin was asked about a recorded conversation he had with
Defendant-Davis while Defendant-Davis was in jail. The recording was later
admitted into evidence and played for the jury. During the conversation,
Defendant-Davis told Justin that there were people in jail with “way higher bonds”
than her that didn‟t even kill anybody. When asked about the context of that
statement, Justin explained:
We talked about me getting a haircut, a few other, you know, small things, and then I asked her if - - I asked her if anybody had a higher bond than her and I also asked her jokingly if she was the hardest criminal in jail, which we can look at her and make that assessment, and I believe - - you know, it was all in good fun and stuff and we were joking and she said, well - - I believe she said to the extent that they got people with higher bonds that didn‟t kill anybody, which we were just talking about her arrest. We weren‟t talking about, you know, her actually doing anything or to that extent.
Justin testified that Defendant-Davis jokingly made the statement and was not
confessing to murder. Justin stated that he asked his mother “straight up” if she
had anything to do with the victim‟s murder, and she said “no.”
Defendant-Davis‟ daughter, Kelsey, was asked about her father, Andrew
Little‟s, death. When asked if she ever indicated to police that there was a problem
with the life insurance, Kelsey replied, “The problem? That she was the
beneficiary and she got all the money.” Kelsey also told police that Defendant-
Davis told her that there was only $25,000.00 in life insurance. However, when
her father‟s house was being cleaned, a $100,000.00 policy was found. In her
statement, Kelsey also stated that the situation was “shady” because Defendant-
Davis bought a Trailblazer with cash, bought the victim a boat with cash,
remodeled the house with new hardwood floors, bought new kitchen appliances,
hired a professional painter to paint the entire house, and hired someone to 34 landscape the house. In the statement, Kelsey described her mother as being unfair
to other people. When questioned by defense counsel, Kelsey stated that she did
not know how much life insurance money was paid when her dad died.
As for Defendant-Saltzman, Kelsey described her as a second mom. Kelsey
stated that Defendant-Saltzman lived with them for four years, never paying any
rent or buying groceries. In her statement to police, Kelsey stated that Defendant-
Saltzman did not have any money and did not have to have any money if she hung
out with Defendant-Davis.
Davis’ Financial Records
Detective Young reviewed the Davis‟ financial records. The District
Attorney asked Detective Young to look at withdrawals and expenditures
beginning in February 2009. The records showed overdraft charges, frequent
withdrawals, and withdrawals at gaming establishments. In particular, on July 10,
2009, Defendant-Davis‟ card was used to purchase $102.75 at Casino Gaming. On
July 11, 2009 (ten days after the victim‟s body was found), Defendant-Davis wrote
four checks at K.D‟s Diner - $202.75, $102.75, $102.75, and $62.75.
Life Insurance
When he first spoke with Defendant-Davis, Detective Blanchard learned that
the victim had two life insurance policies – one from Farm Bureau in the amount
of $90,000.00 and one from Union National in the amount of $40,000.00. Later,
however, Detective Blanchard learned from Kay Ashworth, of State Farm
Insurance, that there were two additional polices - one in the amount of
$100,000.00 and one in the amount of $250,000.00. The Farm Bureau policy was
opened on September 30, 2004. Defendant-Davis was listed as a fiancé with a
scheduled wedding date of December 18th. The $250,000.00 State Farm policy
was opened on April 8, 2005, with Defendant-Davis listed as fiancé. Defendant- 35 Davis became the owner of this policy on August 10, 2006. The $100,000.00 State
Farm policy was opened on September 30, 2004, and Defendant-Davis was the
beneficiary, listed as a girlfriend. The Union National Insurance Policy was a
Prudential Policy opened October 29, 2004, in the amount of $50,000.00 with an
additional $150,000.00 accidental. The spouse, Marla, was removed, and
Defendant-Davis was added as a beneficiary, listed as a friend. Detective Young
testified that there were four policies, totaling $645,000.00.
Defense’s Case
In its case in chief, the defense offered the testimony of John Bloxom, a
resident of Calcasieu Parish, who called Crime Stoppers after seeing a news report
that a body was found at the end of Wagon Wheel Road on July 1, 2009. The day
before the news report, Mr. Bloxom saw a red truck backed up by the trees on
Wagon Wheel Road. Mr. Bloxom testified that he saw the truck before noon.
Shane Dietz testified at trial that at the time of the murder, he drove a red F-150
four-door truck. When asked if he noticed anything unusual about the truck he
saw, Mr. Bloxom stated that the doors of the truck were open. Mr. Bloxom also
testified that he had been fishing in that area for twenty years and very seldom saw
vehicles in that area. No one from law enforcement followed up with Mr. Bloxom.
When asked why he did not follow-up on Mr. Bloxom‟s call, Detective Young
testified that the victim‟s phone records indicated he was most likely dead on
Monday.
Mark Fontenot, a friend of both the victim and Defendant-Davis, testified
that he spoke with the victim on the morning of June 29th. Mr. Fontenot thought he
remembered the victim telling him that he and Defendant-Davis were looking at
boats at Henderson Implement in Welsh. Mr. Fontenot believed the call was at
about 10:19 that morning. According to Mr. Fontenot, Defendant-Davis called 36 him that evening, “around 7:00-ish,” to see if he had heard from the victim. Mr.
Fontenot stated that he had not heard from the victim, but he began calling the
victim and leaving voicemails. When he learned that the victim was missing, Mr.
Fontenot thought the victim was either fooling around and did not want to be
disturbed or something bad had happened. On cross-examination by the State, Mr.
Fontenot described the victim as a “neat freak.” Finally, Mr. Fontenot stated that
when he and the victim would fish together, they would mostly launch at Calcasieu
Point on Henry Pugh Boulevard. According to Detective Blanchard, the victim‟s
body was found less than a mile from Calcasieu Point Landing.
State’s Argument
In closing, the State argued that instead of being home the afternoon of June
29th as she claimed, Defendant-Saltzman was driving the victim‟s Honda Accord
and communicating with Defendant-Davis to determine when Defendant-Davis
and the victim would be leaving Jerry‟s Marine. Defendant-Saltzman drove the
victim‟s Honda Accord to Wagon Wheel Road and feigned a flat tire. Rather than
going home and switching cars as Defendant-Davis claimed, the State argued that
Defendant-Davis and the victim drove the Trailblazer straight from Jerry‟s Marine
to Wagon Wheel Road. Although the State does not indicate which Defendant did
the shooting, the State argued that once lured to the murder scene, the victim was
murdered by the Defendants.
The State argued that the jury must either believe that Defendant-Davis and
the victim went home to switch cars as Defendant-Davis claimed, or they must
believe that Defendant-Davis and the victim drove straight to Wagon Wheel Road.
Traveling the direct and less timely route, the State argued, made more sense in
light of the pontoon bridge closing to traffic and in light of the fact that the Honda
Accord had to be parked on Wagon Wheel Road before the heavy rains started. 37 The weather reports indicate that heavy rain occurred between 3:00 and 4:00 p.m.
Because no mud was found underneath the Honda Accord, it had to have been
parked on Wagon Wheel Road before the rain started. Additionally, the State
argued that it would have taken less time for Defendant-Davis and the victim to
travel directly from Jerry‟s Marine to Wagon Wheel Road than it would have taken
them to travel from Jerry‟s Marine to their house, switch cars, and then the victim
travel alone to Wagon Wheel Road. The Defendants‟ cell phone records, the State
argued, also support its theory. The cell phone records not only show that the
Defendants were not where they claimed to be the day before the murder and the
afternoon of the murder, they also placed the Defendants near the murder scene
both the day before the murder and the day of the murder.
As a further connection of Defendant-Davis to the murder scene, the State
argued that the projectiles found at the scene matched the ammunition found at the
Davis residence. This particular type of ammunition is not used that often, but is
common to law enforcement and gun enthusiasts. The State further noted that the
flat tire at the crime scene appeared to be staged.
The State stressed the fact that Defendant-Davis and Defendant-Saltzman
gave inconsistent stories as to how and when the victim‟s Honda Accord was
returned to the Davis residence. Additionally, neither woman told police that they
were together at Walgreens the morning of the murder. Defendant-Davis also lied
to police about leaving the victim numerous voicemails when he did not return
home. Additionally, the State pointed out the fact that Defendant-Davis told the
victim‟s sister that the victim never returned home from his trip to Kroger to buy
Bailey a Sprite. Although not argued by the State, we also note that Kelsey Little,
Defendant-Davis‟ daughter, testified that Defendant-Davis told her that the victim
never returned home from work. These all differ from what Defendant-Davis told 38 police, that the victim never returned when they went their separate ways for him
to continue boat shopping in Beaumont.
To prove motive, the State argued that Defendant-Davis knew the victim had
been having an affair with Fannie Dietz. The State also pointed out the financial
bind Defendant-Davis was in because of her loss of job, overdrawn bank account,
video-poker playing, and late house-note payment. In addition, the State pointed
out, Defendant-Davis lied to police regarding the amount of life insurance carried
by the victim. In brief, the State argues that Defendant-Davis and Defendant-
Saltzman have been nearly inseparable friends for years, that both Defendants were
frequent gamblers, and that Defendant-Saltzman was financially dependent on
Defendant-Davis.
As further indications of the Defendants‟ guilt, the State pointed out that
Defendant-Davis was out playing video poker just days after her husband‟s death
and that Defendant-Davis asked her mother to deposit $4,000.00 into her account
because of the victim‟s death investigation before the victim was even found.
Finally, the State argued that the two Defendants were alibis for one another.
Defense Argument
Defendant-Davis acknowledges that although very close, there appears to
have been enough time for Defendant-Davis and the victim to drive from Sulphur,
clear the pontoon bridge before 3:31 p.m., arrive at the murder scene before 3:36
p.m., and the victim be murdered before 3:45 p.m. However, Defendant-Davis
argues that the State‟s theory does not account for the fact that the victim‟s cell
phone was north of the pontoon bridge at 3:44 p.m. – a period of time when the
bridge was closed to traffic:
It was not possible for the phone to have made its way from the murder scene after the killing of Brian Davis, and be north of the pontoon bridge at 3:44 p.m. because the bridge was closed to traffic. 39 If the cell phone analysis is given credibility enough to convict two people of murder, it should also be considered reliable enough to show that the State’s timeline was flawed to the exclusion of every reasonable hypothesis. Simply put, there was not sufficient time for Brian Davis to have been murdered during the time frame that the state revealed in its rebuttal argument and still give credence to the cell tower analysis which places his phone north of the waterway at 3:44 p.m.
However, the State‟s cell phone expert, Agent Shute, did not testify that the
victim‟s cell phone was located north of the pontoon bridge at 3:44 p.m. Agent
Shute testified that the cell tower used by the victim‟s cell phone during the 3:44
p.m. call “sits north of the . . . murder scene.” Even so, Agent Shute was able to
get a signal “just south of the pontoon bridge,” making it possible for the victim‟s
phone to have been “within a half a mile of the murder scene.” According to
Detective Young, Hackberry is located south of Sulphur. Thus, if the victim and
Defendant-Davis were traveling from Jerry‟s Marine (located in Sulphur) to the
murder scene, they were traveling south. Agent Shute agreed that the victim and
Defendant-Davis had to get beyond the pontoon bridge to reach the murder scene.
The murder scene was located south of the pontoon bridge. Consequently, if the
murder scene was located south of the pontoon bridge and Agent Shute was able to
get a signal “just south of the pontoon bridge,” the victim‟s cell phone could have
also been south of the pontoon bridge when the 3:44 p.m. phone call was made.
The Defendants attempt to poke additional holes in the State‟s case by
pointing out that the victim‟s time of death was not precise and could have been
anytime in the afternoon or night of his disappearance, even possibly the morning
after. Dr. Terry Welke, the coroner for Calcasieu Parish, estimated the victim‟s
time of death to be sometime after 12:00 p.m. on June 29, 2009. Additionally, the
Defendants argue that the testimony regarding the start of rainfall was based on
information from the Lake Charles Memorial Airport, a different location than the
40 murder. Thus, the Defendants argue, the rainfall at the murder scene could have
been later.
Defendant-Davis also argues that Shane Dietz, the husband of the victim‟s
mistress, had both the motive and opportunity to kill the victim. Even though
Detective Young testified that Mr. Dietz‟ cell phone records cleared him as a
suspect, the Defendant argues that it was impossible for Mr. Dietz to be cleared by
his cell phone records since there is a large gap between calls on the day the victim
was murdered. Additionally, she argues that the same type of truck driven by Mr.
Dietz was seen near the murder scene the day after the victim was murdered. In
closing argument, both Defendants also argued that when Defendant-Davis left
Jerry‟s Marine, she was dressed in white capri pants and flip flops, attire not
appropriate for going into a muddy cow pasture and killing someone.
Finally, the Defendant raises additional hypotheses of innocence:
Was Brian Davis going to engage in some monetary transaction that was illegal on the day of his demise? Was he killed in a drug deal gone bad? Was Brian Davis engaged in sexual conduct when he was caught by a jealous husband or boyfriend and killed? Did Brian Davis drive his car to Wagon Wheel Road, leave it parked there, and leave in another vehicle belonging to someone else?
Sufficiency of the Evidence Analysis
Both Defendants were convicted of second degree murder, which requires
proof that the defendant killed a human being (1) with the specific intent to kill or
inflict great bodily harm or (2) while engaged in the perpetration of an enumerated
offense. La.R.S. 14:30.1. This court has held that pointing a gun at a person and
firing the gun is an indication of intent to kill that person. State v. Thomas, 10-269
(La.App. 3 Cir. 10/6/10), 48 So.3d 1210, writ denied, 10-2527 (La. 4/1/11), 60
So.3d 1248, cert. denied, ___ U.S. ___, 132 S.Ct. 196 (2011). The victim in this
41 case died of four gunshot wounds, one to the head and three to the torso. Thus, the
evidence was sufficient to establish a specific intent to kill the victim.
The only issue in this case is whether the victim was murdered by the
Defendants. It is well-settled that “[a]s a general matter, when the key issue is the
defendant‟s identity as the perpetrator, rather than whether the crime was
committed, the state is required to negate any reasonable probability of
misidentification.” State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658,
cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002) (citing State v. Smith, 430 So.2d
31 (La.1983); State v. Brady, 414 So.2d 364 (La.1982); State v. Long, 408 So.2d
1221 (La.1982)).
“Generally, direct evidence consists of testimony from a witness who
actually saw or heard an occurrence, proof of the existence of which is at issue.”
State v. Jones, 46,758, 46,759, p. 11 (La.App. 2 Cir. 12/14/11), 81 So.3d 236, 243-
44, writ denied, 12-147 (La. 5/4/12), 88 So.3d 462 (citing State v. Lilly, 468 So.2d
1154 (La.1985)). “Circumstantial evidence, by contrast, consists of proof of
collateral facts and circumstances from which the existence of the main fact may
be inferred according to reason and common experience.” Id. at 244 (citing Lilly,
468 So.2d 1154, and State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d
901). “When circumstantial evidence forms the basis of the conviction, such
evidence must exclude every reasonable hypothesis of innocence.” Id. (citing
La.R.S. 15:438).
In the present case, direct evidence placed Defendant-Davis with the victim
shortly before the murder. Direct evidence also showed that Defendant-Davis was
the beneficiary of over $645,000.00 in life insurance proceeds, that Defendant-
Davis knew that the victim had an affair, and that both Defendant-Davis and
Defendant-Saltzman lost their jobs. There was also direct evidence from both 42 Defendant-Davis and Defendant-Saltzman as to their whereabouts on the day
before the murder and the day of the murder, as well as surveillance video of the
Defendants‟ whereabouts throughout the day of the murder. The jury heard this
evidence and, thus, heard the inconsistencies in the two women‟s stories – i.e., the
jury saw the Walgreens video showing both Defendants at the store the morning of
the murder; the jury heard Defendant-Davis state that she went to Walgreens with
no mention of Defendant-Saltzman; the jury heard Defendant-Saltzman make no
mention of going to Walgreens; and the jury heard the different stories by both
Defendants as to how the Honda Accord was returned to the Davis residence. The
jury also heard direct evidence from the victim‟s sister that Defendant-Davis told
her that the victim never returned home from going to Kroger to get a Sprite for
Bailey as well as direct evidence from Kelsey Little that Defendant-Davis told her
that the victim never returned home from work. Finally, the jury heard direct
evidence that the Honda Accord‟s tire was not defective.
The jury also heard evidence in this case regarding the estimated time of the
murder, evidence of when the victim and Defendant-Davis left Jerry‟s Marine and
how long it would have taken them to get to the murder scene, evidence of the
rainy weather near the time of the murder, evidence that the Honda Accord had no
mud on it and, thus, had to arrive at the scene before the rain. Moreover, the jury
heard evidence that Hydra-Shock ammunition was found at the murder scene and
at the victim‟s residence, evidence that both Defendants were using cell phones
near the murder scene both the day before the murder and the day of the murder,
and evidence that the cell phones of both Defendants placed them in areas
inconsistent with where they claimed to be both the day before the murder and the
day of the murder. Additionally, the jury heard evidence of the Defendants‟ close
friendship and that Defendant-Saltzman relies financially upon Defendant-Davis. 43 Finally, the jury heard evidence that Defendant-Davis‟ mother stated that she
deposited the money into Defendant-Davis‟ account because Defendant-Davis said
the police froze the account due to the victim‟s death investigation when
Bartholomew‟s deposit was made on the morning of July 1, 2009, the same date
As for the Defendants‟ hypotheses of innocence, the jury heard the
statements of both Defendants as to their whereabouts the day before the murder
and the day of the murder. The jury also heard the testimony of the Defendants‟
cell phone expert that the Defendants could still be where they said they were and
make cell phone calls using towers near the murder scene. Further, the jury heard
the testimony regarding the victim‟s affair with Fannie Dietz, the cell phone
records of both Fannie Dietz and her husband, as well as the testimony that a truck
similar to Mr. Dietz‟s was seen near the murder scene the day after the murder.
Finally, the jury heard the State‟s expert testify that unidentified male DNA was
found at the murder scene but no female DNA. Nevertheless, the jury rejected the
Defendants‟ hypotheses of innocence.
As this court has held, “when a jury „reasonably rejects the hypothesis of
innocence presented by the defendant[], that hypothesis falls, and the defendant is
guilty unless there is another hypothesis which raises a reasonable doubt.‟”
Francis, 111 So.3d at 533 (quoting State v. Strother, 09-2357, pp. 10-11 (La.
10/22/10), 49 So.3d 372, 378, quoting State v. Captville, 448 So.2d 676, 680
(La.1984)) (alteration in original). Accordingly, we find that considering the direct
and circumstantial evidence in this case, the jury reasonably rejected the
Defendants‟ hypotheses of innocence, including any possibility that someone other
than the Defendants committed the murder.
44 In a somewhat similar case, the second circuit found sufficient evidence of
second degree murder. In Jones, 81 So.3d 236, the second circuit found sufficient
evidence to convict Jones even though the direct evidence only placed the victim
with Jones‟ shortly before the victim‟s murder. Circumstantial evidence, however,
showed that bullets recovered from Jones‟ trunk were consistent with those used to
shoot the victim, and cell phone records put Jones and the victim together in the
area where the victim‟s body was found. The court held:
The direct evidence that Lioy [victim #1] left Shreveport with Jones and Ms. Foster [victim #2], coupled with the circumstantial evidence of the cell phone records that put them together in the area where the body was found, and that the bullets found in Jones‟ trunk were consistent with those that shot Lioy, all support a finding beyond a reasonable doubt that Jones killed Lioy, with a specific intent either to kill or inflict great bodily harm. The suggestion that somebody else might have intervened in this sordid sequence of events and shot Lioy is simply not sufficiently reasonable to dissuade a reasonable jury from its finding of Jones‟s guilt. This assignment of error lacks merit.
Id. at 245.
Likewise, we find that the direct and circumstantial evidence presented in
the present case supports a finding beyond a reasonable doubt that Defendant-
Davis and Defendant-Saltzman killed the victim with the specific intent to kill or
inflict great bodily harm. Louisiana Revised Statutes 14:24 provides, “[a]ll
persons concerned in the commission of a crime, whether present or absent, and
whether they directly commit the act constituting the offense, aid and abet in its
commission, or directly or indirectly counsel or procure another to commit the
crime, are principals.” The evidence presented at trial shows that Defendant-Davis
was with the victim shortly before the time the State alleges the murder occurred.
Defendant-Davis and Defendant-Saltzman were in frequent communication the
day before the murder and the day of the murder. Both Defendants gave
inconsistent statements as to their whereabouts and the cell phone records of both
45 Defendants place them near the scene of the murder both the day before and the
day of the murder. Although Defendant-Saltzman was not with the victim shortly
before the murder as was Defendant-Davis, the cell phone records indicate that
Defendant-Saltzman was continually communicating with or was physically with
Defendant-Davis both the day before the murder and the day of the murder. On
the day of the murder, Defendant-Saltzman was seen with Defendant-Davis that
morning, continually communicated with Defendant-Davis throughout the day
(even within the hour the State alleges the murder occurred), and was seen with
Defendant-Davis shortly after the State alleges the murder was committed.
Defendant-Saltzman was also driving the victim‟s Honda Accord the day of the
murder. Finally, Defendant-Davis knew the victim had been having an affair,
admitted to being in a financial bind, and stood to benefit financially from life
insurance policies. Defendant-Saltzman was a very close friend of Defendant-
Davis and had been financially reliant on Defendant-Davis in the past.
Considering this evidence, we find that the jury reasonably rejected the
Defendants‟ hypotheses of innocence and convicted them both of second degree
murder.
Accordingly, this assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER ONE:
In this assignment of error, Defendant-Davis argues that the trial court erred
in failing to swear in the jury as required by La.Code Crim.P. art. 790 and then
granting the State a continuance after the commencement of trial. For the reasons
that follow, we find that this assignment lacks merit.
The case was called for trial on November 7, 2011, at which time jury
selection began and continued until a jury was selected on November 10, 2011.
Before the conclusion of jury selection, the testimony of one of the State‟s 46 witnesses, Deputy Baumgarten, was perpetuated. The day after jury selection was
completed, November 11, 2011, the State requested a continuance because of the
physical health of the prosecutor in the case, Rick Bryant. Over the objections of
defense counsel for both Defendants, the trial court granted the continuance. The
trial court also refused defense counsels‟ request to swear in the jury.
Subsequently, on January 6, 2012; January 18, 2012; and January 24, 2012,
the trial court heard testimony and argument regarding a motion to quash and
dismissal filed by both Defendants. Both Defendants argued that double jeopardy
attached when the State perpetuated the testimony of Deputy Baumgarten before
the trial court granted the State‟s continuance based on Mr. Bryant‟s health. The
Defendants also argued that the charges against them should be dismissed because
of the prejudice they suffered by the granting of the continuance. The trial court
denied the motion to quash and to dismiss the charges.
On February 24, 2012, the Defendants sought review of the trial court‟s
denial of their motion to quash and dismissal of the charges. On March 28, 2012,
this court denied the writ application, ruling as follows:
WRIT DENIED; STAY DENIED: Defendants argue error in the trial court‟s granting of a continuance and that jeopardy had attached and further prosecution would expose them to double jeopardy. Although the trial court stated that it granted a continuance, because it had no legal authority to do so, what was actually granted was a recess. Even though erroneously referred to as a continuance, the court‟s action must be treated as a recess. See La.Code Crim.P. arts. 707, 708, and 761 and State v. Hedgespeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150, writ denied, 08-467 (La. 10/3/08), 992 So.2d 1008.
Additionally, Defendants argue error in the trial court‟s denial of their motion to quash, based on the erroneous granting of a continuance, and alleged prejudice resulting therefrom. As no continuance was granted, the motion is rendered moot. If either party continues to believe any prejudice had resulted from the recess, it can be addressed in the trial court.
47 This matter is remanded to the trial court with instructions to proceed with the trial as expeditiously as possible, with the original jury, if such can be accomplished without resulting prejudice to any party. If not, as jeopardy has not attached, a new jury panel shall be called. See Hedgespeth, 974 So.2d 150.
Thereafter, on April 18, 2012, the supreme court denied a writ application
filed by the Defendants. Davis and Saltzman, 85 So.3d 1255.
This court has held that great deference should be afforded to pre-trial
decisions:
Although a defendant may seek review of a pretrial ruling even after a pretrial supervisory writ application is denied, when the defendant does not present any additional evidence on the issue after this pretrial ruling, the issue can be rejected. State v. Hebert, 97-1742 (La.App. 3 Cir. 6/3/98), 716 So.2d 63, writ denied, 98-1813 (La.11/13/98), 730 So.2d 455, cert. denied, 529 U.S. 1072, 120 S.Ct. 1685, 146 L.Ed.2d 492 (2000) (quoting State v. Magee, 93-643, p. 2 (La.App. 3 Cir. 10/5/94), 643 So.2d 497, 499). However, “[j]udicial efficiency demands that this court accord great deference to its pre-trial decision unless it is apparent that the determination was patently erroneous and produced unjust results.” Hebert, 716 So.2d at 68. Our review of the record reveals no additional evidence for the defendant‟s allegations of prosecutorial misconduct which would support his pretrial motions.
State v. Perry, 12-298, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, 580, writ
denied, 12-2657 (La. 5/24/13), 116 So.2d 659 (alteration in original). We find that
the Defendants have failed to prove that this court‟s pre-trial ruling was patently
erroneous or produced unjust results. Thus, we abide by our pre-trial decision and
refuse to reconsider whether the trial court abused its discretion in granting the
continuance/recess.
However, we will address a new argument raised by the Defendants on
appeal. The Defendants argue, in their appellate brief, that this court erred in
finding the trial court‟s grant of a continuance was actually the grant of a recess:
Under the particular facts of this case, the continuance was specifically just that, a postponement without date of the trial that had already commenced. A recess is defined in La.C.Cr.P. Art. 708 as a “temporary adjournment”. The instant trial was continued without date for a period that ultimately consisted of five and one-half months 48 and was not in any way a temporary adjournment. Further, it matters not the length of the delay, or the term used to describe the delay, the issue is whether a party is prejudiced by the delay, and if so, the error is reversible. State v. Hedgspeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150; State v. Love, 00-3347 (La. 5/23/08), 847 So.2d 1198.
According to the Defendants, the trial court‟s action should have been
considered an “illegal dismissal.” In making this argument, the Defendants cite
State v. Hedgspeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150, writ denied, 08-
467 (La. 10/3/08), 992 So.2d 1008, the case cited by this court in its writ ruling. In
Hedgspeth, the state moved for a “continuance” after ten of the twelve jurors were
selected and sworn. As the reason for the continuance, the state explained that it
had been under the impression that DNA testing had been done and the results
were inconclusive. The state discovered, however, that DNA testing was never
actually performed. The defense objected to the continuance because ten jurors
had already been selected. Finding that the DNA evidence was potentially critical
evidence to the case, the trial court granted the state‟s motion and rescheduled trial
for approximately three months later. When the trial finally took place, it was
before a different trial judge and an entirely new panel of jurors.
On appeal, the second circuit stated the following regarding the
appropriateness of a continuance in this situation:
Here, in order to determine whether the grant of the motion for continuance was proper, we must first determine if the initial trial had “commenced.” Louisiana C. Cr. P. art. 761 provides that, “a jury trial commences when the first prospective juror is called for examination.” Since it is undisputed that 10 of the 12 prospective jurors had been selected, pursuant to articles 761 and 708 the trial had already commenced. Thus, the trial court was without authority to grant a “continuance,” and in effect the action was an illegal dismissal. However, Hedgspeth must show he has been prejudiced by this action, as the dismissal alone does not constitute reversible error. State v. Love, 2000-3347 (La.05/23/03), 847 So.2d 1198.
Id at 154 (footnote omitted).
49 Adopting the second circuit‟s “illegal dismissal” terminology, the
Defendants argue that the continuance/recess granted in the present case should
have been considered an “illegal dismissal.” The Defendants acknowledge,
however, that even if the continuance/recess is considered an “illegal dismissal,”
the Defendants must still show they suffered prejudiced in order for the dismissal
to constitute reversible error. Alleging prejudice, Defendant-Davis argues:
In the instant case, the trial court granted a continuance of trial after all of the jurors had been selected and also after the State had started its case by taking testimony from its key crime scene witness and introducing over 20 pieces of evidence into the record. The State was forewarned of serious deficiencies in their investigation during the cross-examination of their lead forensic investigator, Baumgarten, and the continuance allowed them to correct these errors and deficiencies. The delay caused by the wrongful granting of the continuance allowed the State time to correct problems regarding crime scene integrity, to test evidence, interview witnesses, and hire an expert witness to help shore up deficiencies that were made apparent during the first trial. An opportunity afforded them only because of the wrongful granting of the continuance and the delay caused by it.
The Defendants‟ prejudice argument is very similar to the argument made by
the defendant in Hedgspeth and rejected by the second circuit:
On appeal, Hedgspeth complains that as a result of this “continuance” the state was given additional time to prepare for trial and that he was entitled to have his case tried before the jurors already selected. The right to have one‟s trial completed by a particular tribunal is within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the rule that jeopardy attaches when the whole jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). However, in the instant case, that “right” had not yet attached when the trial court granted the state‟s motion and dismissed the partial jury. . . .
Moreover, the public has an interest in affording the state one full and fair opportunity to present its evidence to an impartial jury. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The right to have one‟s case tried before the jurors already selected cannot serve as a barrier to full and fair prosecution of the defendant under these particular circumstances. See State v. Marshall, 410 So.2d 1116 (La.1982). In the case at hand, since the 50 jury was not sworn pursuant to La. C. Cr. P. art. 790, nothing prevents the state from pursuing a full and fair prosecution.
Further, we find that the record does not support, nor are we persuaded, that the additional preparation time afforded the state warrants reversal. Had the state moved for and been granted a continuance only a day earlier (prior to the examination of the first prospective juror), or had the trial been originally scheduled for a later date, such actions would not have been an abuse of discretion. The trial judge found that the DNA results were critical to the case because they could essentially exonerate the defendant or provide strong evidence of his guilt. The state explained that the crime lab was backlogged and that the earliest available trial date for the recommenced proceedings would be April 24, 2006, to which defense counsel responded: “That date‟s agreeable, Your Honor.”
In fact, under these circumstances, if the trial court denied the continuance motion, the state could have immediately nolle prosequied the charges and reinstituted the prosecution under a separate docket number (which, practically speaking, would have been tried at a later date). In State v. Albert, 430 So.2d 1279 (La.App. 1st Cir.1983), writ denied, 433 So.2d 711 (La.1983), the prosecutor entered a nolle prosequi at a first trial after 6 of 12 jurors had been selected. In Albert, the subsequent conviction and sentence were affirmed. In State v. Payton, 2006-1202 (La.App. 4th Cir.02/28/07), 954 So.2d 193, the trial court held that the state‟s failure to timely seek a continuance did not bar reinstitution of the same charges after the prosecutor entered a nolle prosequi immediately upon the denial of its motion for a continuance on the day trial was originally set to begin.
Id. at 154-55.
Likewise, we find that the present Defendants have failed to show that they
were prejudiced by the trial court‟s grant of the continuance/recess, even if it
should have been considered an “illegal dismissal.” First, contrary to the
Defendants‟ argument in Assignment of Error Number 4, double jeopardy had not
attached when the trial court granted the continuance/recess. See Davis and
Saltzman, 12-236; Hedgspeth, 974 So.2d 150; La.Code Crim.P. arts. 592 and 790.
According to La.Code Crim.P. arts. 592 and 790, double jeopardy does not attach
in a jury trial until the jury is sworn together to try the case. Second, as she did in
her perpetuated testimony, Deputy Baumgarten testified at trial as to how the
51 evidentiary value of the crime scene could have been compromised by police
activity in this case. Third, the Defendants actually benefitted by the additional
DNA testing performed after the continuance/recess was granted. Ms. Suchanek
testified that she discovered no female DNA on the items recovered from the
scene. Thus, the Defendants (being females) actually benefited from the fact that
more items were tested after the continuance/recess, and no female DNA was
found on any of those items.
Finally, we note that the Defendants allege that the remedy for the prejudice
they suffered by the delay in trial is a reversal of their convictions and a remand for
a new trial. Thus, even if this assignment of error was found to have merit, the
remedy requested would allow the State to have yet another chance to retry the
Defendants.
In this assignment of error, the Defendants also claim that the trial court
erred in refusing to swear the jury in after they were selected. In support,
Defendants cite La.Code Crim.P. art. 790, which provides, “When selection of
jurors and alternate jurors has been completed, and all issues properly raised under
Article 795 have been resolved, the jurors shall then be sworn together to try the
case in a just and impartial manner[.]” During the discussion of whether the case
would be continued/recessed because of Mr. Bryant‟s health issues, the Defendants
requested the trial judge swear in the jurors selected. The issue of whether the jury
would be sworn was discussed in open court. The Defendants made known their
desire for the jury to be sworn, and the State made known its desire for the jury not
to be sworn in order to protect against the attachment of double jeopardy. The trial
court ruled that it would not swear the jury in:
And I‟m not going to swear the jury in. Once the jury is sworn in then jeopardy does attach, and there would be no - - if I did that it would be - - I‟m sure if I swore that jury in I‟m sure the State would 52 withdraw its Motion to Continue because they wouldn‟t be able to retry the case.
On appeal, the Defendants cite no authority for their allegation that the trial
court erred in refusing to swear the jury in. Our research finds a similar case out of
the fifth circuit – State v. Tuckson, 00-1408 (La.App. 5 Cir. 2/28/01), 781 So.2d
807, writ denied, 01-1129 (La. 1/25/02), 806 So.2d 671. In Tuckson, all of the
jurors and two alternates were selected and sworn individually. The state
requested that the jury not be sworn together until the following day. The trial
court granted the state‟s request over the defendant‟s objection. The following
day, the state nolle prosequied the charges against the defendant, claiming that
double jeopardy had not attached since the jury was not sworn. That same day, the
state refiled the charges against the defendant. Although the defendant filed a
motion to quash on double jeopardy grounds, the trial court denied the motion.
The defendant was subsequently tried and convicted.
On appeal, Tuckson argued that the trial court erred in denying his motion to
quash the second bill of information based on double jeopardy. The court of
appeal found that since the jury was not sworn pursuant to La.Code Crim.P. art.
790, double jeopardy had not attached. The real issue, the court of appeal stated,
was “whether the trial court erred in refusing to swear in the jury „. . . together to
try the case . . .‟ immediately following the selection of the two alternate jurors.”
Id. at 813. Finding no reversible error in the circumstances before it, the court of
appeal stated:
As provided in La.C.Cr.P. art. 795, prior to the jury being sworn together or as a whole, either the defense or the State may still exercise his/its challenges for cause. The defense suffered no prejudice from the trial court‟s refusal to swear the jury immediately. The decision effected [sic] both the defense and the State in the same way. As a matter of practice, trial court judges will sometimes wait until trial is ready to commence before swearing the jury together or as a whole, just in case of unforeseen events. 53 In a related matter, this Court is concerned with the use by the State of its powers to dismiss charges against a defendant, followed by refiling of those same charges, in order to obtain a continuance of the trial. The ruling in this case might be different if that scenario had been argued and proven. There are other, more appropriate procedural vehicles at the State‟s disposal when it finds its witnesses are unavailable for trial. For instance, the State might have requested and been granted, if appropriate, a trial continuance. See La.C.Cr.P. arts. 709, 710. However, based on the record before us, we do not find the abuse of discretion that would prevent the trial of this Defendant on the charges filed against him. This assignment of error lacks merit.
Id.
Although the Defendants in the present case argue that they were prejudiced
by the continuance/recess granted by the trial court, as we have already stated, the
Defendants have failed to show prejudice. In addition to the considerations already
discussed, the Defendants have also failed to prove that they were prejudiced by
the fact that they were not tried before the jurors originally selected. The
Defendants fail to allege or point to any indication in the record that the verdict
would have been different had the original jurors heard their case. Thus, we find
that the trial court‟s refusal to swear the jury immediately after they were selected
does not constitute reversible error in this case.
One final issue that the Defendants mention in this assignment of error is the
fact that after granting the continuance, the trial judge personally addressed the
jurors off the record, with no counsel present. At the conclusion of the discussion
regarding the continuance/recess, the trial judge stated that he was going to visit
with the jurors in the jury deliberation room. Without alleging what the trial court
spoke to the jury about, the Defendants merely allege that “any private
communication with a juror after trial begins, or is in recess, is deemed
presumptively prejudicial. Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450
(1954); State v. Sinegal, 393 So. 2d 684 (La.1981).” The jurors spoken to by the 54 trial judge in the case were not the jurors that ultimately convicted the Defendants.
Therefore, they suffered no prejudice by the trial court speaking with those jurors.
Thus, this issue has no merit.
For the foregoing reasons, this assignment has no merit.
ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE:
The Defendants combine these two assignments of error in their briefs. The
Defendants allege that the trial court erred as a matter of law in not finding
prejudice and in not granting the Defense‟s Motion to Quash/Dismiss. As
discussed in the previous assignment, the Defendants filed a Motion to Quash
Prosecution and for Dismissal of the Indictment with Prejudice. The trial court
denied the motion, and the Defendants sought review in this court. On March 28,
2012, this court denied the writ application. In its ruling, this court allowed the
Defendants to re-urge prejudice if they still felt it was applicable. Prior to trial, the
Defendants did re-urge their prejudice claim, but the trial court denied the motion.
In this assignment, the Defendants basically argue the same prejudice
argument raised in the first assignment of error but with more specificity. The
Defendants cite Hedgspeth for the proposition that an erroneous continuance or
recess that causes prejudice constitutes reversible error. First, the Defendants
allege that the continuance/recess allowed the State to send additional items to the
lab for testing after Deputy Baumgarten‟s perpetuated testimony revealed the fact
that numerous items had not been tested. However, as stated above, the
Defendants (being females) actually benefited from the fact that more items were
tested after the continuance/recess since no female DNA was found on any of those
items.
The Defendants argue further that if not for the continuance/recess, “the
State would have lost credibility with the jury when it had to attempt to explain the 55 severe lapses in its shoddy murder investigation” and the reason why it focused on
the Defendants without fully investigating the crime. This was particularly
important, the Defendants argue, given the fact that the State‟s case was entirely
circumstantial. By having a second trial, the Defendants argue, “the State has
undoubtedly had a second chance to correct its errors to the well-documented and
distinct prejudice of the Defendant.”
The Defendants point to Deputy Baumgarten‟s testimony as a specific
example of how the State was allowed to correct its errors. According to the
Defendants, Deputy Baumgarten acknowledged in her perpetuated testimony that
the deputies walked all over the crime scene, and no one knew which footprints
were pertinent. Deputy Baumgarten also acknowledged in her perpetuated
testimony that the deputies‟ handling of the tire‟s lug nuts destroyed the possibility
of lifting any fingerprints off of the lug nuts. Without referring to any specific
testimony, the Defendants claim that Deputy Baumgarten changed her testimony
when she testified live at trial. After reviewing Deputy Baumgarten‟s perpetuated
testimony and her live testimony at trial, there is a slight difference in her
testimony regarding the amount of footprints located at the scene. In her
perpetuated testimony, Deputy Baumgarten answered “yes” when asked if the
number of people walking around the crime scene concerned her. Deputy
Baumgarten‟s trial testimony regarding footprints, however, was not as concrete.
At trial, however, Deputy Baumgarten did testify as to how the evidentiary
value of the crime scene could have been compromised by police activity in this
case. Deputy Baumgarten agreed with defense counsel that someone at the crime
scene did not follow the well-settled protocol that nothing at the crime scene
should be touched until photographs are taken. Deputy Baumgarten further
testified that she would be concerned if one of the deputies placed the “defective” 56 tire in the trunk of the Honda Accord, because evidence from outside of the trunk
could be transferred to the inside of the trunk. Thus, in her trial testimony, like her
perpetuated testimony, Deputy Baumgarten testified as to how police activity may
have affected the evidentiary value of the crime scene in this case.
Defendant-Davis further argues:
It is quite apparent that Baumgarten studied the transcript of her videoed trial testimony, and decided to sanitize the damaging admissions of mistakes which Defense counsel elicited during the videoed testimony at the first trial. The State did not use the videoed testimony, but produced Baumgarten live at the second trial, and the Court did not allow mention of the first trial (See App. Rec. Vol. 24, p. 5281, ll. 18-21). The opportunity for the State‟s key witness to be forearmed with the knowledge of what Defense counsel will ask about, and also repair the damage of her previous testimony, is fundamentally unfair and prejudicial to the Defense. At the second trial, the Defense had to impeach Baumgarten with a transcript of her previously videoed testimony, thus confusing the jury. The Defense should have been able to cross-examine Baumgarten one time and before the jury. Giving the State a second “bite at the apple” severely prejudiced the Defense. Having to have revealed Defense strategy and attorney work-product is also severely prejudicial to the Defense. But for the erroneous continuance, the State would not have this decided trial advantage.
While it may appear that Deputy Baumgarten attempted to “sanitize” some
of her perpetuated testimony as to the excessive walking around by police officers
at the crime scene, she was clear in her trial testimony regarding other areas in
which the crime scene could have been compromised. Furthermore, at trial,
defense counsel was able to use Deputy Baumgarten‟s perpetuated testimony
during his cross-examination of Deputy Baumgarten. There is no indication that
defense counsel‟s inability to explain the origin of the prior testimony was
confusing to the jury. Additionally, as the State argues in brief, the reason for
Deputy Baumgarten‟s perpetuated testimony at the first trial was her unavailability.
Since she was available for the second trial, the State argues it would have been
inappropriate to introduce her perpetuated testimony. Thus, the State‟s offer of
57 Deputy Baumgarten‟s live testimony does not appear to have been a tactical move
to allow her to change her testimony, especially in light of the fact that the
continuance/recess was, at the time, undisputedly needed for Mr. Bryant‟s illness.
The Defendants also complain that the new items tested for DNA revealed
unidentified male DNA under the victim‟s fingernails, on the victim‟s driver‟s
license, on the victim‟s belt buckle, and on a Michelob Ultra bottle cap found in
the Honda Accord. The Defendants allege that the lab report containing this
information was not given to them until the middle of trial, leaving them
insufficient time to obtain additional testing. In Ms. Suchanek‟s opinion, the most
likely donor of the DNA was the victim. Ms. Suchanek also testified on cross-
examination that the unidentified male DNA could belong to anyone and that no
female DNA was discovered at the scene. Considering the inconclusiveness of
Ms. Suchanek‟s testimony regarding the unidentified male DNA found at the scene
along with her conclusive testimony that no female DNA was discovered at the
scene, the Defendants have failed to show how they were prejudiced by the
additional DNA testing performed after the first trial.
As additional prejudice, the Defendants complain that during the first trial,
the State was made aware of the defense witnesses, and the continuance/recess
afforded the State extra time to find and interview these witnesses. Furthermore,
the deputies that contaminated the crime scene were free to coordinate their
testimonies with Deputy Baumgarten “to try to repair the obvious damage to the
State‟s case.” These general allegations of prejudice are not sufficient to warrant a
reversal of the Defendants‟ convictions. Moreover, the continuance/recess
afforded the defense the same opportunity to interview witnesses and develop its
case.
58 Ultimately, the evidence that convicted the Defendants was their
inconsistent statements to police and the fact that their cell phone records placed
them in the vicinity of the murder both the day before and the day of the murder.
This evidence existed at the first and second trials. Thus, we find that the
Defendants fail to show that the trial court‟s grant of a continuance /recess caused
them to suffer prejudice sufficient to warrant a reversal in the case.
ASSIGNMENT OF ERROR NUMBER FOUR:
By this assignment of error, the Defendants claim the trial court erred in
failing to grant their motion to dismiss on grounds of double jeopardy.
Additionally, the Defendants allege that this court erred in its pre-trial writ ruling
when it found the motion to dismiss was moot. The State argues that judicial
efficiency demands this court to defer to its pre-trial writ ruling finding double
jeopardy had not attached in this case. Considering the great deference that should
be shown to this court‟s pre-trial writ ruling and considering the fact that the
Defendants raise the same arguments on appeal that they raised in their pre-trial
writ application, we find that the Defendants have failed to show that this court‟s
pre-trial ruling was patently erroneous or produced unjust results. Thus, we abide
by our pre-trial writ ruling finding double jeopardy did not attach in this case.
We will address, however, an additional argument raised by the Defendants
on appeal. The Defendants allege that the trial court‟s failure to swear the jury
when required to do so under La.Code Crim.P. art. 790 and the erroneous dismissal
of the jury by the trial court infringed upon the Defendants‟ constitutional right to
that jury. We have previously addressed the Defendants‟ argument as to the trial
court‟s failure to swear the jury when required to do so under La.Code Crim.P. art.
790 in Assignment of Error Number 1 and found that no error occurred. 59 Furthermore, no constitutional right attached to the jury originally selected because
that jury was never “sworn together to try the case.” Finally, as noted by the trial
court, every effort was made to have the original jury try the Defendants‟ case.
However, after questioning the jurors, the trial court was forced to release three of
the jurors based on hardship reasons. Notably, even though the defense
continually noted its objection to the entire process, neither side objected to the
release of the jurors based on their individual hardships.
For the foregoing reasons, we find that this assignment lacks merit.
ASSIGNMENT OF ERROR NUMBER FIVE:
By this assignment, the Defendants allege that the trial court erred in failing
to require the State to enunciate a theory of the case in its opening statement. The
Defendants claim that the State‟s theory of how the murder was carried out was not
revealed until closing and rebuttal argument, prejudicing the defense. For the
following reasons, we find no merit to this assignment.
In support of this argument, the Defendants cite La.Code Crim.P. art. 766,
which provides:
The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.
In its opening statement in the present case, the State described the condition
of the victim‟s body when it was found and the number of times the victim had
been shot. The State also described the area in which the victim‟s body was found.
The State then explained to the jury how the police learned the victim‟s identity as
well as the fact that the victim had been reported missing several days earlier.
Information obtained from oral interviews was told to the jury – i.e., the fact that
the victim played hooky from work on the day he was killed and went boat
shopping with his wife, Defendant-Davis. The State then explained Defendant- 60 Davis‟ claim that the victim went boat shopping in Beaumont while she stayed
home and ran errands with Defendant-Saltzman. Additionally, the State set forth
the investigative steps taken by the police after the oral interviews – i.e., talking to
various witnesses, traveling to the locations visited by the victim the day of the
murder, viewing surveillance video of the boat places visited by the victim,
viewing surveillance video of the places at which the Defendants ran errands, and
retrieving cell phone records of the victim and both Defendants. Furthermore, the
State explained, the police examined bank records and insurance policies,
discovering that the victim had almost $700,000.00 worth of life insurance when
he died. Through its investigation, the State told the jury, the police also learned
that the victim had had an affair with a woman named Fannie Dietz.
The cell phone records, the State told the jury, were the biggest
breakthrough. Major inconsistencies, the State argued, were revealed when
Defendant-Davis‟ cell phone records were reviewed. The State explained that a
cell phone expert with the FBI would be testifying as to the cell phone record and
cell phone towers. Once the inconsistencies were discovered, the State explained
to the jury, both Defendants were asked to give statements. Finally, the State told
the jury that it felt the jury would find both Defendants guilty once it heard all of
the evidence.
After the State gave its opening statement, counsel for Defendant-Davis
asked to approach the bench. Counsel argued that the State failed to outline its
theory of the case in the opening statement. The State countered that all La.Code
Crim.P. art. 766 requires is for the prosecution to state in general terms the nature
of the evidence by which the State expects to prove the charge. Defense counsel
argued, however, that case law requires the State to put the Defendants on notice of
what they are defending against. Although the State told the jury about insurance 61 and phone calls, defense counsel argued, the State failed to give its theory of how
the victim was murdered. The trial judge overruled Defendant-Davis‟ objection.
Defendant-Saltzman noted her objection that they were “still subject to unfair
surprise.”
In brief, the Defendants argue that the State failed to give an adequate
opening statement on two counts:
First, the lack of stating a theory of the case, and secondly, concealing what evidence the State intended to use to prove the charges. These failures were severely prejudicial to the Defendant, because the Defense had no idea what evidence would actually be used to prove the charged offenses. This hampered effective cross-examination and forced Defense counsel to risk opening the door to issues the State had yet to mention or raise.
There was no mention as to how the State would prove the murder was carried out. There was no mention of possible weapons used by the killer or killers, or the number or placement of the shooter(s). There was no mention of any activity at the crime scene, before or after the shooting. There was no mention of anything the crime scene revealed or of any pertinent evidence collected. There was no mention of ballistics testing and what those tests revealed or did not reveal. Other than to state that Bryan Davis was shot four times, the prosecution‟s opening statement was silent as to the slightest detail as to how the murder was carried out. The State’s opening statement in no way revealed a theory of the case.
Not even in the most general of terms was a theory presented, and this allowed the State to vary its prosecution plan and change its theory as it saw fit; waiting until the rebuttal and closing argument to reveal any of their impressions as to how the details of the murder occurred.
This case was completely circumstantial, and that fact alone demand[ed] some theory as to how the murder occurred, and what role each of the accused played in carrying it out, needed to be addressed in the opening statement. The Defense faced a trial by ambush since the court allowed an inadequate opening statement.
62 The Defendants also argue that the State failed to make any mention of the law of
principals or conspiracy in its opening statement, while the law of principals was
factored heavily into the State‟s closing argument.
In addition to citing La.Code Crim.P. art. 766, the Defendants cite two
Louisiana Supreme Court cases where reversible error was found because of the
state‟s inadequate opening statement. In State v. Silsby, 176 Ls. 727, 146 So. 684
(1933), the defendant‟s confession was admitted into evidence despite the fact that
the state failed to mention the confession in its opening statement. Finding the
confession should have been excluded, the court in Silsby found reversible error.
Notably, at the time Silsby was decided, La.Code Crim.P. art. 333 stated the
following regarding the requirements of an opening statement:
The jury having been empanelled and the indictment read, the trial shall proceed in the following order: The reading of the plea to the jury; the opening statement of the district attorney explaining the nature of the charge and the evidence by which he expects to establish the same[.]
Id. at 688.
When the legislature enacted La.Code Crim.P. art. 766, the current article
governing opening statements, it amended Article 333 to require the state to set
forth the “nature of the evidence” rather than “the evidence.”
Interpreting the requirements of La.Code Crim.P. art. 333, the supreme court
in Silsby stated:
In our opinion the statute requires the district attorney to set forth not only the facts which he expects to prove, but also the evidence, i.e., the nature of the evidence, by which he expects to prove them, whether oral or written, or direct or circumstantial, or confessed. When the trial begins the time for skirmishing is over and the battle is on; and the statute contemplates that the state itself shall thenceforth battle in the open and not behind remparts; that the district attorney shall then „show his hand as to the state’s evidence, as a matter of fairness to the accused.‟ And whilst we readily concede and cheerfully attest the uniform endeavor of prosecuting officers in this state, and especially of the prosecutor in charge of this case, to deal 63 fairly with all accused alike, nevertheless we are of opinion that in this instance he has, out of excess of precaution, allowed himself to be led into error by the theories of law-writers speculating on systems of procedure which have nothing in common with that now prevailing in this state and so established by statute.
Silsby, 146 So. at 689.
The other case cited by the Defendants is State v. Ducre, 173 La. 438, 137
So. 745 (1931). In Ducre, the supreme court found reversible error occurred when
the state failed to give any opening statement at all: “The language of article 333
is mandatory[,]” and “[j]udging from its phraseology, the purpose of the article in
question must be to make the district attorney show his hand as to the state‟s
evidence, as a matter of fairness to the accused[.]” Id. at 747.
We find that Silsby and Ducre are distinguishable from the present case in
that they both interpreted La.Code Crim.P. art. 333 rather than La.Code Crim.P.
art. 766. Additionally, Silsby involved the inadmissibility of a confession because
it was not mentioned in the state‟s opening statement, and Ducre involved the
failure of the state to give any opening statement at all.
More recently, the fifth circuit addressed a defendant‟s claim that the state‟s
opening statement was “too general to properly describe the evidence with which
the defendant would be confronted at trial.” State v. Clayton, 570 So.2d 519, 524
(La.App. 5 Cir. 1990). The fifth circuit explained that the underlying purposes of
La.Code Crim.P. art. 766 are to “prevent surprise and to permit preparation of
defense trial strategy.” Id. The fifth circuit further explained that Article 766
requires the state to “set forth, only in general terms, the prosecution‟s theory of
the case. It is not necessary that the state detail every shred of evidence in an
opening statement. It is sufficient for the state to give a general description of the
evidence it plans to introduce. . . . The state need not name all of its witnesses in
64 the opening statement[.]” Id. (quoting State v. Edwards, 406 So.2d 1331, 1350
(La.1981), cert. denied, 456 U.S. 945, 102 S.Ct. 2011 (1982)).
In deciding whether the state‟s opening statement was sufficient, the fifth
circuit noted that “[r]ulings on the proper scope of an opening statement are within
the sound discretion of the trial judge and should not be disturbed absent a clear
abuse of that discretion.” Id. at 525 (citing State v. Brown, 428 So.2d 438
(La.1983), overruled on other grounds by State v. Johnson, 94-1379 (La.
11/27/95), 664 So.2d 94). The fifth circuit further stated that “[a]lthough the
defense claim[ed] that the state‟s opening statement was insufficient, the defendant
did not interpose any objection at trial to evidence being beyond the scope of the
opening statement.” Id. Furthermore, the court noted, “There is no indication in
the record that the defendant was surprised by any evidence presented at trial or
that she was prejudiced in the preparation of her defense.” Id.
Applying this same analysis to the present case, the Defendants did not
interpose any objection at trial to evidence being beyond the scope of the opening
statement. There was also no indication at trial that the Defendants were surprised
by any evidence presented at trial. The Defendants were obviously well aware of
the fact that the State would be relying extensively on cell phone records and cell
phone tracking because they introduced their own cell phone expert, Mr. John
Minor.
In brief, the Defendants set forth one example of how the State‟s allegedly
inadequate opening statement prejudiced them. The Defendants claim they were
prevented from introducing photographs at trial because the State made no
allegation of how the victim‟s Honda Accord arrived at the murder scene. The
Defendants describe the photographs as follows:
65 The photographs depict co-defendant Carol Saltzman sitting in the driver‟s seat of an identical Honda Accord, in the same seat position of that of Bryan Davis‟ Honda Accord at the crime scene. These photographs of Saltzman showed that in the seat position as reflected in crime scene photographs and video, she would have not been able to reach the gas pedal or brake. These photographs were relevant only if the State was contending that Saltzman drove the car to the murder scene. Armed with these photographs pretrial, the prosecution did not allege in opening statement, or in its case in chief, that Saltzman drove the Honda to the crime scene on the day of the murder. This contention was concealed until the prosecution‟s final argument.
Had Defense counsel attempted to introduce the photographs before it was even alleged that Saltzman drove the Honda Accord to the murder scene, the prosecution would have pointed to this as guilty acknowledgement of that theory by the Defense, while using the law of principles [sic] to adopt another theory to render the photographs valueless. The photographs were not offered for this very reason. The State‟s failure to reveal a theory of how the murder occurred, placed the Defense in the impossible position of having to disprove facts before they were alleged.
Although this evidence may have been relevant to Defendant-Saltzman‟s defense,
the Defendants fail to show that the alleged inadequacy of the State‟s opening
statement prevented them from introducing this evidence. Before their case in
chief, the Defendants should have been aware of the State‟s theory that Defendant-
Saltzman drove the victim‟s Honda Accord to the scene. Agent Shute testified at
length as to the cell phone evidence placing Defendant-Saltzman near the scene of
the murder and the many phone calls from Defendant-Saltzman to Defendant-
Davis near the time of the murder. Additionally, numerous witnesses (including
both Defendants before trial) were questioned as to Defendant-Saltzman‟s use of
the victim‟s Honda Accord on the day of the murder and as to the timing of when
the Honda Accord was returned. Thus, the Defendants were put on notice of the
State‟s theory that Defendant-Saltzman drove the Honda Accord to the murder
scene before it put on its case in chief.
66 Additionally, we find that this theory should have been clear enough to the
jury that the introduction of such photographs by the defense would not have been
considered an admission of a fact not already suggested by the evidence. During
its cross-examination of Deputy Baumgarten, defense counsel asked if it would
have been prudent for the detectives to recline the seats or change the appearance
of the interior of the victim‟s vehicle. Deputy Baumgarten testified that to the best
of her knowledge, no one drove the victim‟s vehicle or moved things around in the
vehicle. Then, during the State‟s questioning of Deputy Baumgarten, she stated
that she was not aware that the Honda Accord‟s seats were ever moved. Thus, the
issue of “seat moving” was broached during the State‟s case.
Furthermore, in light of the cell phone evidence placing the Defendants near
the murder scene both the day before and the day of the murder as well as the
inconsistencies revealed in the Defendants‟ statements, we find that the
introduction of these photographs would not have swayed the jury to reach a
different verdict. Considering the above, the trial judge did not abuse his
discretion in overruling the Defendants‟ objection to the State‟s opening statement.
ASSIGNMENT OF ERROR NUMBER SEVEN:
By this assignment of error, the Defendants allege that the trial court erred in
allowing the testimony of Agent William Shute, an expert in cell site analysis. For
the reasons that follow, we find that the trial court did not err in accepting Agent
Shute as an expert.
Prior to Agent Shute testifying at trial, a Daubert hearing was held. Agent
Shute testified that he is a special agent with the FBI and is currently assigned to a
unit known as the “Cellular Analysis Survey Team” (CAST). Agent Shute has
been using cellular technology in investigations for the FBI for the last twelve 67 years. In these investigations, Agent Shute primarily uses historical cell site
analysis – “the act of taking call detail records from one‟s cellular telephone and
taking that information, which is the cell site that is utilized by the phone for
service, and taking that and creating a mapped projection as to where that
geographical area that that cell site covers.”
As for his training, Agent Shute testified that he has had over 800 hours of
training through the FBI‟s engineering research facility as well as through several
private companies. In his work with the FBI, Agent Shute works every day with
the different technologies used by the different cell phone providers. According to
Agent Shute, it is necessary to understand the different technologies to understand
the way a cell phone works and operates through the network from the moment a
phone call is made, “how it‟s recorded through the cellular network, what happens
with the phone, how the phone reselects to different cell sites[.]” When asked if
there is a scientific standard with regard to how the cell phone technology operates,
Agent Shute responded:
Well, sure. All of those - - all of those technologies have scientific principles of the way they operate. Code Division Multiple Access is a - - is a technology based on scientific standards the way that, you know, the technology operates. So you have all of these companies with technologies that are proven technologies that are based on scientific principles of the way, you know, radio communications work.
Agent Shute also received training in radio frequency theory – “the way radio
waves operate, the way they‟re emitted from antennas, received at antennas, the
way they travel through the air[.]” Radio waves are important in cell phone
technology, Agent Shute stated, because “it‟s radio frequency.”
Agent Shute testified that he works with all of the major cellular providers:
T-Mobile, AT&T, Verizon, Sprint, Nextel, Metro PCS, U.S. Cellular, and
Centennial Wireless. Agent Shute is the point of contact for the cellular providers, 68 working with them to set up training, speaking at their conferences, and constantly
interacting with them.
As a certified FBI instructor, Agent Shute created the only FBI course on
historical cell site analysis. The course has been taught twenty-five times to over
1500 people and teaches investigators how to take call detail records and
geographically plot them in order to affect investigations. To perform a historical
cell site analysis, Agent Shute explained, one must have the call detail records and
mapping software. To be an expert in historical cell site analysis, one needs to
have: 1) knowledge of how a cell phone network operates; 2) experience in going
through volumes of call detail records; and 3) practical experience in geolocating a
cell phone that is “attached” to a human being.
Agent Shute testified that the CAST team utilizes the cell technology every
day to help find victims, witnesses, violent felons, fugitives, and missing children.
Agent Shute described how this technology was used to find an abducted child two
years prior. The only information the agent had was the kidnapper‟s call detail
records. With the call detail records, Agent Shute was able to determine that the
kidnapper was traveling on Interstate I-20 through South Carolina. Additionally,
Agent Shute estimated the kidnapper‟s driving speed based on the cell sites
utilized. Agent Shute notified the Georgia Highway Patrol of the approximate time
the kidnapper would cross the border, and the Georgia Patrol successfully
recovered the child within seven minutes of the approximated time.
Agent Shute has provided historical cell phone analysis in over 1000 cases,
over 100 of which were in court. Agent Shute has testified in court over fifty times
and has been qualified in approximately fifteen states (in both state and federal
courts) as an expert in the field of historical cell site analysis.
69 In this particular case, Agent Shute testified that he used an engineering cell
phone, which is a phone that can be looked at in engineering mode, as well as an
apparatus called the ICS-2. Once a phone is in engineering mode, Agent Shute
explained, one can see the signal strength of the phone and the cell site that the
phone is on. In driving around with the engineering cell phone, Agent Shute
looked for the furthest possible distance that a phone could have been from the
tower. Agent Shute further explained:
Well, I went to most of the towers in this case to - - just to view them to see them and make sure that the orientation was accurate the way it was laid out by the tower list. I also went and - - to key locations, to several locations where, you know, we - - where law enforcement I guess was able to determine that both the victim as well as the defendants in the case were located. And so I would want to go there to test with the phone as well to make sure at that time that the cell phone being used - - or the cell site being used, rather, is accurate with the - - what I got as a reading at that location.
When at a location, Agent Shute‟s equipment would tell him to which tower the
phone was connected.
Although a cell signal can go on for “quite a distance,” Agent Shute
explained that what really matters is what tower the phone chooses. According to
Agent Shute, a cell phone knows which cell sector (or tower) to go to because it is
constantly going through a process called “stacking and racking.” Every couple of
seconds, the phone surveys its environment to see what cell site has the clearest
possible signal. The “serving cell site” will be placed at the top and that will be the
site or tower that the phone uses for service. The “serving cell site” will not
always be the closest tower, Agent Shute explained. In urban areas, it usually is
the closest tower. In areas where the towers are very high, however, the serving
cell site will not always be the closest tower.
When asked if this technology is considered accurate, Agent Shute
responded, “If - - if it wasn‟t accurate, we wouldn‟t have - - we wouldn‟t solve the 70 crimes that we‟ve solved and recovered the people that we‟ve recovered.” Also,
when asked if the technology has been subject to peer review, Agent Shute
testified that the members of the CAST team review each other‟s work all of the
time. The CAST team also creates practical exercises when training new
members. The team will take actual phones on the street, make phone calls, and
translate the information into a case scenario. According to Agent Shute, the call
detail records always match the location of the members. Finally, Agent Shute
testified that historical cell site analysis is generally accepted in the community.
On cross-examination, Agent Shute agreed that the technology used is a
mixture of both science and an “expression of specialized knowledge.” Agent
Shute further testified that the steps used in this technology are repeated every day
by law enforcement. As for the rate of error, Agent Shute stated the technology is
always accurate. Agent Shute explained that there is no rate of error because the
cell phone either connected to the network or it did not. Agent Shute also testified
that when he viewed the cell phone towers utilized in this case, they were the same
as they were in 2009. As for peer reviews, Agent Shute testified that the analysis
he uses is peer reviewed all of the time by the cell phone companies and other
companies for whom he provides training.
When asked if the tracking he did of the girl abducted in South Carolina was
“live-time tracking,” Agent Shute said it was not live-time tracking, but historical.
Agent Shute explained that the moment a phone call is made and hung up, it is a
historical record. Agent Shute further explained that the intelligence used to find
the person in the end varies in every case.
Defense counsel asked Agent Shute about a case in Utah, United States. v.
Allums, No. 2:08-CR-30 TS, 2009 WL 806748 (D. Utah March 24, 2009)
(unpublished opinion), wherein Agent Shute testified that no peer review had been 71 done. Agent Shute explained that at the time that case was decided, there was no
peer review.
As for the signal strength from a tower, Agent Shute testified that generally
speaking the range stays the same, but it could be changed or altered. Agent Shute
testified that the weather does not affect the range much.
At the conclusion of Agent Shute‟s testimony, defense counsel argued that
even though Agent Shute is not a scientist, his opinion must receive the same
degree of scrutiny as a scientist. Defense counsel argued that the methodology has
not been subject to much review. Defense counsel additionally argued that Agent
Shute does not have any accreditation or meaningful credentials. Finally, defense
counsel argued that the Daubert criteria had not been satisfied.
After hearing the arguments of both the state and the defense, the trial court
accepted Agent Shute as an expert.
In brief, the Defendants argue that Agent Shute‟s methodologies are
investigative techniques, not science. The Defendants further argue that the State
failed to prove that the methodology used by Agent Shute has been tested,
validated, or subject to any peer review study so as to determine any error rate.
Furthermore, the Defendants argue that the trial court failed to enunciate how the
criteria set forth in Daubert were satisfied in this case.
Louisiana Code of Evidence Article 702 sets forth the general rule governing
the admissibility of expert testimony in Louisiana:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In State v. Foret, 628 So.2d 1116 (La.1993), the Louisiana Supreme Court
adopted the test set forth by the United States Supreme Court in Daubert v. Merrell 72 Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), as a means for
determining the reliability of expert scientific testimony. State v. Chauvin, 02-
1188 (La. 5/20/03), 846 So.2d 697. Later, the United States Supreme Court held
that the Daubert test applied not only to testimony based on scientific knowledge
but also to testimony based on “technical” and “other specialized” knowledge. Id.
at 701, n.8 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167 (1999)). As for the decision to reject or accept the person as an expert, that
decision “falls to the great discretion of the trial court, whose rulings will not be
disturbed absent an abuse of that discretion.” State v. Edwards, 97-1797, p. 25
(La. 7/2/99), 750 So.2d 893, 908-09, cert. denied, 528 U.S. 1026, 120 S.Ct. 542
(1999) (citing State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, cert. denied,
522 U.S. 935, 118 S.Ct. 343 (1997)).
The factors set forth by the Daubert court are: 1) “[t]he „testability‟ of the
scientific theory or technique;” 2) “[w]hether the theory or technique has been
subjected to peer review and publication;” 3) “[t]he known or potential rate of
error; and 4) [w]hether the methodology is generally accepted in the scientific
community.” Id. at 909 (quoting State v. Quatrevingt, 93-1644 (La. 2/28/96), 670
So.2d 197, 204, cert. denied sub nom, 519 U.S. 927, 117 S.Ct. 294 (1996), and
Daubert, 509 U.S. at 592-95).
Although the Defendants argue that Agent Shute‟s methodology has not
been tested, it has been tested by its use to successfully apprehend fugitives as well
as missing children. Agent Shute also testified that the methodologies have been
peer-reviewed, have no rate of error, and have been accepted in the law
enforcement community. We find that the United States District Court in Utah‟s
acceptance of Agent Shute‟s expert testimony is persuasive. Further, the United
73 States Fifth Circuit has upheld the admissibility of expert testimony in the field of
historical cell site analysis:
Anderson‟s assertion that the district court erred by allowing the expert testimony of Agent Chad Michael Creasey in the field of historical call site analysis because the field “bears none of the indicia of scientific reliability that would justify an exception to the general prohibition against opinion testimony” is equally without merit. We review the district court‟s decision to admit or exclude evidence for abuse of discretion. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007).
Testimony established that the field is neither untested nor unestablished. Agent Creasey detailed his extensive knowledge and experience in the field. According to Agent Creasey, he had used the technique, without error, on at least 100 occasions, and the FBI had been successful at least 1000 times. Agent Creasey taught courses on the subject. Furthermore, individuals whom Agent Creasey taught and supervised had used their historical cell site analysis training to provide expert testimony, and the technique has been accepted by approximately [sic] federal courts as a field of expertise. See United States v. Weathers, 169 F.3d 336, 339 (6th Cir. 1999) (allowing expert testimony based on cell site analysis); United States v. Sepulveda, 115 F.3d 882, 891 (11th Cir. 1997) (same).
U. S. v. Schaffer, 439 Fed.Appx. 344, 346-47 (5th Cir. 2011).
Given the above, we find that the trial court in the present case did not abuse
its discretion in allowing Agent Shute to testify as an expert in the field of
historical cell site analysis.
ASSIGNMENT OF ERROR NUMBER EIGHT:
The Defendants allege that the trial court erred in allowing George Schiro to
give an expert opinion as to the probability that the victim was shot with his own
gun. The Defendants argue that Mr. Schiro was not qualified to give such an
opinion, especially when the State‟s own ballistics expert would not give such an
opinion. Finally, the Defendants argue that Mr. Schiro‟s opinion was not
supported by the evidence.
74 Prior to Mr. Schiro‟s testimony at trial, defense counsel argued that Mr.
Schiro was not qualified to give an opinion as to whether the victim was shot with
his own gun:
I think he is making a stretch when he says it‟s possible that he was shot with his own gun. Well, anything‟s possible, and I think that him saying that really indicates that he is not qualified.
There‟s been no testimony that he‟s a ballistics expert or anything of that nature. And certainly if he looked at Mr. Lancon‟s report, he certainly can‟t make a leap that Mr. Lancon couldn‟t make. So, I don‟t think he should be allowed to give those opinions, Your Honor.
Although the trial court originally expressed concern with Mr. Schiro rendering an
opinion as to whether the victim was shot with his own gun, the trial court allowed
Mr. Schiro to give such an opinion. Based on the trial court‟s ruling, Mr. Schiro
testified as follows as to the probability that the victim was shot with his own gun:
The evidence at the scene supports a probability that he may have been shot with his own gun. Given that there‟s a particular type of ammunition called Hydra-Shoks and, you know, the shootings that I have investigated, you rarely ever see Hydra-Shoks, with the exception of law enforcement personnel or shooting enthusiasts.
I saw photographs of that same type of ammunition at Mr. Davis‟ house, so I just think that lends more support, and given the fact that the bullets recovered from his body were Hydra-Shoks and the cartridge casings found at the scene were Federal just lends more support to that he may have been shot with his own gun.
The State clarified with Mr. Schiro that no one knew for sure whether the victim
was shot with his own gun.
On cross-examination, defense counsel questioned Mr. Schiro as to his
opinion:
Q: And part of your opinion is based upon reading the report from Mr. Lancon who used to be with the Acadiana office, who now resides in Montana, correct, sir?
75 Q: And Mr. Lancon told the jury that he couldn‟t say for sure whether the bullets that were fired were from any particular gun, and he listed a number of types of 9 millimeter weapons that could have fired those rounds. Did you read that in his report, sir?
A: Yes. And I believe one of them was the same model of gun that Mr. Davis owned.
Q: Right. So you looked at what Mr. Lancon had to say, but opined that it may have come from his gun.
A: I would say the evidence found at the scene and Mr. Davis‟ body supports that it could have come from his gun, yes.
Q: Could have?
Q: Again, sir, it could not have?
A: You can‟t rule that out. That‟s correct.
Q: The best you - -
A: Without the firearm, you can‟t rule that out.
Q: The best you can do is say “it may indicate,” or “perhaps,” “the shooter may have,” a probability that he may have been shot with his own gun - - there‟s a probability that he may have been shot with his own gun?
After reading Mr. Schiro‟s Daubert examination, we find that there was very
little testimony, if any, that Mr. Schiro was qualified to give expert testimony
regarding ballistics. However, Mr. Schiro‟s testimony involved his experience in
investigating crime scenes rather than his expertise in ballistics. During the
Daubert hearing, Mr. Schiro stated that he had visited over 100 physical crime
scenes. Having visited so many crime scenes, we find that Mr. Schiro was
qualified to testify as to the rarity of Hydra-Shok ammunition in the crime scenes
he has investigated. Mr. Schiro specifically testified that in the shootings he has
investigated, he has rarely seen Hydra-Shoks, except when the shooting involved
76 law enforcement personnel or shooting enthusiasts. Based on Mr. Schiro‟s
experience in visiting crime scenes, we find that Mr. Schiro was qualified to make
this statement.
Furthermore, Mr. Schiro‟s opinion concerning the fact that the victim was
shot with his own gun was ambivalent and further neutralized on cross-
examination. Mr. Schiro testified that the victim could have been shot with his
own gun but there was no way to tell for sure without having the gun. According
to the supreme court, “Expert testimony becomes problematic when it infringes
upon other interests: for example, when it is unduly prejudicial, when it invades
the province of the jury, when it bolsters a child-witness‟ testimony, or when it
leads to a „battle of the experts.‟” Chauvin, 846 So.2d at 703. We find that Mr.
Schiro‟s testimony did not infringe upon any of these interests. Because of its
ambivalent nature, the testimony was not unduly prejudicial to the Defendants.
Additionally, Mr. Schiro‟s testimony did not invade the province of the jury,
bolster any witnesses‟ credibility, or lead to a “battle of the experts.” In fact, the
State‟s own ballistics expert, Douglas Lancon, testified that at least eleven different
manufacturers could have manufactured the gun that was used to shoot the victim.
Mr. Lancon by no means opined that the victim was shot with his own gun. Thus,
if there was any “battle of the experts,” it was between the State‟s own experts.
ASSIGNMENT OF ERROR NUMBER NINE:
The Defendants argue that La.Code Crim.P. art. 782‟s requirement that ten
out of twelve jurors must concur to reach a verdict violated their constitutional
right to a unanimous verdict. The jurors in this case found the Defendants guilty
by a vote of 11-1. In its brief, the State claims the Defendants waived this claim by
failing to raise it in the trial court. We agree that the issue was not raised by either 77 Defendant in the trial court. Thus, the Defendants are not entitled to have this
issue reviewed and considered by this court. La.Code Crim.P. art. 841; State v.
Brooks, 12-226 (La.App. 5 Cir. 10/30/12), 103 So.3d 608, writ denied, 12-2478
(La. 4/19/13), 111 So.3d 1030.
Furthermore, the Louisiana Supreme Court has long found this issue to be
constitutional. State v. Edwards, 420 So.2d 663 (La.1982). Thus, even if this issue
had been raised in the lower court, the lower court would not have been at liberty
to ignore the controlling jurisprudence of superior courts that a non-unanimous
jury verdict is constitutional in non-capital cases.
DECREE:
The conviction of the defendant, Robyn B. Little Davis, is affirmed.
78 NUMBER 13-275
COURT OF APPEAL, THIRD CIRCUIT
CONERY, J., dissents for the following reasons.
Co-defendants, Robyn B. Little Davis and Carol Noland Saltzman were tried
together and convicted of second degree murder and sentenced to life
imprisonment based on controversial circumstantial evidence. In separate but
essentially identical opinions, the majority chose to affirm each of their convictions
and sentences. I respectfully dissent.
Louisiana Code of Criminal Procedure Article 790 mandates that after jury
selection has been completed, “the jurors shall then be sworn together to try the
case[.]” (Emphasis added). “Shall” means that it is mandatory. “Then” means right
away, not five and a half months later.
In Rhymes v. Rhymes, 13-0823 (La. 10/15/13), ___ So.3d ___, our supreme
court again reiterated the well-established rules of statutory construction:
In accord with these rules, the interpretation of any statutory provision starts with the language itself. Oubre v. Louisiana Citizens Fair Plan, 11-0097, p. 11 (La. 12/16/11), 79 So.3d 987, 997. When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. Civ. Code art. 9; La. Rev. Stat. § 1:4; In re Clegg, 10-0323, p. 20 (La. 7/6/10), 41 So.3d 1141, 1154. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. La. Civ. Code art. 11; see also Snowton v. Sewerage and Water Bd., 08-0399, pp. 5-6 (La. 3/17/09), 6 So.3d 164, 168.
Words and phrases must be read with their context and construed according to the common and approved usage of the language. La. Civ. Code art. 11; La. Rev. Stat. § 1:3. The word “shall” is mandatory and the word “may” is permissive. La. Rev. Stat. § 1:3; Oubre, 11-0097 at 12, 79 So.3d at 997. Every word, sentence, or provision in a law is presumed to be intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 06-1104, p. 6 (La. 1/17/07), 947 So.2d 15, 19; Moss v. State, 05-1963, p. 15 (La. 4/4/06), 925 So.2d 1185, 1196. Consequently, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Oubre, 11-0097 at 12, 79 So.3d at 997. With this understanding, we turn now to the relevant Civil Code provisions.
In this case, twelve jurors and two alternates were selected and individually
sworn pursuant to La.Code Crim.P. art. 786. Both the State and defendants
accepted each juror and alternate and had no additional challenges under La.Code
Crim.P. art. 795. After selecting and individually swearing all the jurors,
defendants requested that the jury be sworn as a panel. Instead, the court recessed
until the next morning at the request of the prosecution and did not swear in the
jury as a panel under La.Code Crim.P. art. 790. The next day, the defendants again
moved that the jury be sworn as a panel. The State orally moved for a continuance
based on the lead prosecutor’s alleged illness and inability to proceed. The court
granted the motion, continued the case without date, and discharged the jury.
Defendants objected and proposed a short weekend recess in lieu of a continuance,
which proposal was denied by the trial court. The trial court then allowed the
prosecutor to supplement the record with a written, albeit untimely, motion for
continuance as required by La.Code Crim.P. art. 707. 2 Not only was the State’s motion for continuance untimely and not in proper
form under La.Code Crim.P. art. 707, La.Code Crim.P. art. 708 is clear that a
continuance may not be granted after a jury trial has commenced. State v.
Hedgspeth, 42-921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150. Under La.Code
Crim.P. art. 761, a jury trial commences after the first juror is sworn. Clearly, the
continuance granted in this case was improper, as all twelve jurors and two
alternates had been individually sworn pursuant to La.Code Crim.P. art 786.
The majority cites State v. Tuckson, 00-1408 (La.App. 3 Cir. 2/28/01), 781
So.2d 807, for the proposition that the trial judge has some flexibility as to when to
swear all the jurors together as a completed panel under La.Code Crim.P. art. 790.
The court found that a one day delay in that case was not an abuse of discretion. It
may be reasonably argued that the word “then” following the word “shall” may
give a trial judge some very limited flexibility under La.Code Crim.P. art. 790.
The word “immediately” was not used. In some circumstances, then, it could be
argued that a weekend recess as requested by defendants in this case may have
been in order so that the court could better determine whether the prosecutor could
proceed, or whether someone else in his office could try the case. Here, the trial
court instead denied the defense request for a weekend recess, granted the State a
continuance without date, and dismissed the jury, all over defendants’ objections.
It was error for the trial judge to do so. La.Code Crim.P arts. 708; 790; Hedgspeth,
974 So.2d 150.
The question then becomes whether the defendant was prejudiced in this
case. It is undisputed that the trial judge refused to immediately swear in the jury
panel under La.Code Crim.P. art. 790 after all jurors were individually selected, as
requested by defendant and in direct contravention of the mandatory wording 3 “shall then” in the article. He likewise did not do so on the following day. Double
jeopardy would have attached under La.Code Crim.P. art. 592 had the panel been
sworn. In Tuckson, no prejudice was found by a one day delay in swearing the
jury as mandated by La.Code Crim.P. art. 790. The conviction was affirmed.
In this particular case, the facts are different. During jury selection it was
discovered that the State’s lead crime scene and forensic investigator, Officer
Baumgarten, had a conflict for the upcoming week of the trial. A highly unusual
recess in jury selection was called by the court, and the State was allowed to
“perpetuate” her testimony by video in open court before the judge, but outside the
presence of the prospective jurors. The State intended to offer the video of Officer
Baumgarten’s testimony at trial in lieu of her live testimony. The defendants
objected, claiming that such a procedure violated their right to confront this key
witness live before the fact finder, the jury. The trial judge overruled the objection.
Twenty-four items of evidence were introduced into evidence during Officer
Baumgarten’s testimony.
Later, after the continuance was granted, the State was allowed to withdraw
some of the previously introduced evidence by ex-parte motion. When defense
counsel learned of the State’s request, he requested that the trial court conduct a
contradictory hearing and the court agreed. Following the hearing, the trial court
allowed the State to withdraw all of the evidence introduced in connection with
Officer Baumgarten’s video testimony. In effect, the State was allowed to start all
over, allegedly plugging the holes in its case that had been discovered when
defendants had vigorously cross examined Officer Baumgarten during her
“perpetuated” video testimony.
Defendant argues that she was unfairly prejudiced by this procedure because 4 the State had time to correct some of the weaknesses in its case, “shore up” Officer
Baumgarten’s testimony, and “plug the holes” in its case. According to Defendant,
Officer Baumgarten’s testimony at the trial was materially and significantly
different than the testimony she offered on video. The video was not introduced in
evidence. In fact, at the trial of this case, the trial judge refused to allow the
defendant to mention, comment upon, or use Officer Baumgarten’s testimony from
her perpetrated video testimony except for direct impeachment, and then with no
explanation of the circumstances under which the prior statement had been made.
Here, again, Defendant’s Sixth Amendment Right to confrontation was arguably
curtailed by the trial court.
Perhaps most importantly, the State was allowed to obtain additional DNA
tests on evidence that had been collected at the scene but not previously submitted
for testing. One such DNA test revealed unknown male DNA evidence found
under the victim’s fingernails, a fact not disclosed to the defendant until the second
day of the rescheduled trial, arguably in direct violation of defendant’s right to be
promptly notified of potentially exculpatory evidence.
LeAnne Suchanek, a DNA analyst, testified as an expert at the trial on behalf
of the State and stated: “These particular fingernails had some blood on them.”
Ms. Suchanek admitted that even though she admitted that she did not have a DNA
sample from the victim to compare, she nevertheless opined that the blood and
material found on and under the victim’s fingernails was from the victim himself,
and not a third party.
Most importantly, the defendants were not given the additional DNA test
results prior to the trial and had no opportunity to conduct its own tests or even
meaningfully challenge Ms. Suchanek’s opinion. In all, thirty-two additional items 5 of evidence were tested by the State after the continuance and before the second
trial.
The State was also allowed to add and call another crime scene expert not
previously listed who, over defendant’s objections, offered testimony on ballistics,
a subject matter about which he was not qualified to testify as an expert. The State
further had an opportunity to interview several defense witnesses disclosed by
defendant during voir dire, and had the opportunity to listen to all of defense
counsels’ voir dire, hence obtaining a better understanding of the defense strategy.
Further the State had more time to prepare its key witness, the FBI “expert”
on cell phone site analysis, whose critical testimony was used by the State to
attempt to tie this purely circumstantial case together. As previously indicated, and
perhaps equally important, the State had more time to strengthen Officer
Baumgarten’s testimony, with no ability on the part of Defendant to introduce her
earlier video testimony to demonstrate to the jury her previous demeanor, manner
of testifying, and content of her previous testimony.
By not swearing the jury as a panel immediately after all were selected as
mandated by La.Code Crim.P. art. 790, and then granting a continuance in
violation of La.Code Crim.P. arts. 707 and 708, the defendants obviously faced a
completely different trial than they would have had the continuance been denied.
The trial court committed legal error and Defendant was prejudiced.
In State v. Fisher, 168 La. 584, 122 So. 858 (1929) (quoting from State v.
Conda, 156 La. 679, 101 So. 19 (1924), the supreme court provided guidance on
the issue of prejudice that is timely today: “It is frequently very difficult to draw
the line between error which is harmful and error which is not. Where doubt is
present, the accused should receive the benefit.” 6 A fortiori, considering all the circumstances of this case, the clear violation
of La.Code Crim.P. art. 790 prejudiced Defendant’s right to a fair trial.
Conclusion
Finding error and prejudice in Defendant’s first assignment of error,
discussion of the remaining assignments of error is pretermitted. I find that under
the unusual circumstances of this case, Defendant has shown a clear error of law
and sufficient prejudice to warrant a new trial.
I would, therefore, reverse the conviction and remand the case for a new
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State of Louisiana v. Robyn B. Little Davis, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-v-robyn-b-little-davis-lactapp-2013.