NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-816
STATE OF LOUISIANA
VERSUS
RONALD L. BRYANT
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 05-209 HONORABLE PAUL JOSEPH DEMAHY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Glenn B. Gremillion, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED. Mark Owen Foster Louisiana Appellate Project P.O. Box 2057 Natchitoches, LA 71457-2057 (318) 572-5693 Counsel for Defendant-Appellant: Ronald L. Bryant
Hon. J. Phillip Haney District Attorney, 16th JDC Jeffrey J. Trosclair Assistant District Attorney, 16th JDC St. Mary Parish Courthouse, 5th Floor Franklin, LA 70538 (337) 828-4100 Counsel for Plaintiff-Appellee: State of Louisiana Pickett, Judge.
FACTS
Kendra Polk, Sherry Gage’s sister, testified that she had gone shopping with
Ms. Gage during the evening of December 29, 2004. After meeting up with Ms. Gage
at their grandmother’s house, the sisters, along with their three children, picked up
William Tharpe, Ms. Gage’s friend from work. Next, the group stopped at Ms.
Gage’s home so she could change clothes. Ronald Bryant, the defendant, was living
with Ms. Gage at that time and was in the house when they arrived. According to Mr.
Tharpe, Ms. Gage and the defendant had an argument. When Ms. Gage left the
house, the defendant slammed the front door. The group proceeded to shop, and
following same, Ms. Gage dropped off Ms. Polk and the children at their
grandmother’s house. Next, Ms. Gage dropped off Mr. Tharpe at his house where he
resided with his parents.
Around 8:00 a.m. the next morning, Ms. Gage’s boss at Burger King, Nicole
Doucet, called the grandmother’s house and informed them that Ms. Gage had not
reported to work that morning. Ms. Doucet also contacted Mr. Tharpe at another
Burger King to see if he knew of her whereabouts. Ms. Polk contacted her aunt and
they proceeded together to Ms. Gage’s home. Mr. Tharpe and his sister followed Ms.
Polk and her aunt to Ms. Gage’s home. On the way to Ms. Gage’s house, Mr. Tharpe
noticed Ms. Gage’s car parked on a side street about a block from her home, which
he felt was unusual. According to Mr. Tharpe and Ms. Gage’s neighbor, Patrick
Stewart, Ms. Gage usually parked her car in front of her house.
When they arrived at Ms. Gage’s house, they knocked on the front and side
doors and the windows. There was no answer. Ms. Gage did not have a phone so
1 they were unable to call her. Ms. Polk called the landlord to come open the door and
made a call to 911. The landlord arrived in less than fifteen minutes with the key.
When Mr. Tharpe inserted the key into the door, the defendant opened the door from
inside the house. The defendant was not wearing any clothing when he opened the
door and stated that he was taking a bath. He also stated that Ms. Gage was not there
because she had gone to work. When Mr. Tharpe backed away from the door, the
defendant closed the door.
Ms. Polk contacted 911 once more and an officer arrived thereafter. Deputy
Jason Boudreaux was apprised of the situation and knocked on the door. When no
one answered, the officer went around the house and knocked on the back door. Soon
thereafter, the defendant was seen exiting the house through a window, and Deputy
Boudreaux attempted to apprehend him. Following a struggle with Deputy
Boudreaux, the defendant broke free and took off running.
Next, the detectives arrived and decided to enter the home. Due to the emergent
nature of the incident and because the door was locked, the door was kicked in and
the detectives began to check the house. They discovered Ms. Gage under a box
spring and mattress lying face down on her stomach. Ms. Gage was turned over,
revealing a necktie that had been tied around her neck and hands and a wound to her
neck. Ms. Gage’s autopsy indicated that she died from asphyxia due to compression
of the neck from the necktie. The defendant was eventually apprehended at around
6:00 p.m. at the Dollar General Store.
The defendant’s testimony at trial contradicted that of the state’s witnesses.
The defendant stated that Ms. Gage returned home from shopping around 10:00 to
10:30 p.m. and gave him the keys to her car to go get something to eat. When the
2 defendant returned home, a gentleman was in the house with Ms. Gage, sitting with
her on the bed. He had never seen the man before and the man had not been present
in the courtroom during the trial. The defendant denied becoming angry because of
the man’s presence in the house. Instead, the defendant confirmed with Ms. Gage
that she had a ride to work in the morning and then left the house in Ms. Gage’s car.
According to the defendant, he drove the car a block and a half from the house,
parked the car and went to sleep.
When the defendant woke the following day around 11:00 a.m., he got out of
the car and walked to a nearby place that served food. Because the place did not
begin serving until 3:00 p.m., the defendant decided to go back later. Instead of
returning to the car, the defendant walked to the house and watched a bit of television
before entering Ms. Gage’s room and discovering her body. The defendant found Ms.
Gage lying on the floor on her side halfway under the bed. He lifted the bed and
touched her body to see if she was alive and then lowered the bed back down on her
body.
Next, the defendant ran to the bathroom and started throwing water on his face
and hands when he heard beating on the front door, the back door, the side door and
windows. According to the defendant, he was so scared that he would not answer the
door. He eventually opened the door, naked, because his clothes had gotten wet in
the process of throwing water on his face and hands. A “short guy” was at the door
saying something and when someone pulled him back away from the door, the
defendant closed the door. He got dressed and attempted to exit the back door but it
was locked from the outside. The defendant opted to climb through a window and
Deputy Boudreaux attempted to apprehend him. The two men tussled and the
3 defendant managed to get away. The defendant was eventually arrested at the Dollar
Store at about 6:00 p.m. He denied killing Ms. Gage.
On February 1, 2005, the defendant was indicted by a grand jury with second
degree murder, a violation of La.R.S. 14:30.1. The defendant entered a plea of not
guilty on March 7, 2005. A trial on the merits began on December 5, 2005. On
December 7, 2005, the jury found the defendant guilty as charged.
The defendant was sentenced on December 12, 2005, to serve life
imprisonment at hard labor without benefit of parole, probation or suspension of
sentence. The defendant is now before this court on appeal, alleging two assignments
of error:
1. The evidence was insufficient to support the conviction.
2. The trial court abused its great discretion in allowing the state to conduct an “experiment” in front of the jury of demonstrating strangulation with a necktie.
ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error, the defendant argues that the evidence was
insufficient to support the conviction. More specifically, the defendant maintains that
he was convicted on entirely circumstantial evidence, and thus the evidence must
exclude every reasonable hypothesis of innocence. See La.R.S. 15:438. The
defendant contends that the circumstantial evidence in this case did not exclude all
other reasonable possibilities that someone else could have killed Ms. Gage.
The analysis for a claim of insufficient evidence is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d
4 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
The elements of the crime at issue are set forth in La.R.S. 14:30.1, which states,
in pertinent part:
A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; . . .
The use of circumstantial evidence is addressed in La.R.S. 15:438 which states,
“The rule as to circumstantial evidence is: assuming every fact to be proved that the
evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.”
The defendant asserts that the first problem with the state’s case is a serious
gap in the time line of events. More specifically, the defendant complains that the
state’s witnesses were not asked what time they arrived at Ms. Gage’s home and when
the particular events occurred. Further, the defendant avers that none of the state’s
witnesses place him at Ms. Gage’s home prior to 11:00 a.m.; thus, the state’s evidence
has not excluded or rebutted the fact that defendant arrived at the home at 11:00 a.m.,
one to two hours after Ms. Gage was killed.
A review of the record reflects the following time line of events which was
described by two witnesses. Ms. Polk, Ms. Gage’s sister, testified that she first
5 arrived at Ms. Gage’s home around 9:00 a.m. and that she was followed by Mr.
Tharpe. Mr. Tharpe testified that they arrived around 10:30 to 11:00 a.m. Thus, as
stated by the defendant, there does exist a one and one-half to two hour discrepancy
with regard to the time they first arrived at the home. These two witnesses were the
only two witnesses called by the state to testify about the events when they first
arrived at the home. The defendant’s allegation that the state purposely created
confusion by not asking the witnesses what time they arrived is without merit.
After they arrived at the home and knocked on the door to no avail, Ms. Polk
called 911 and called the landlord for a key. According to Ms. Polk, the landlord
arrived about fifteen minutes later with the key. Law enforcement had not yet arrived
on the scene. After Mr. Tharpe attempted to unlock the door and the defendant
subsequently opened and closed the door, Ms. Polk called 911 once more. Deputy
Boudreaux, the first officer to arrive on the scene, presented at approximately 11:26
a.m. Accordingly, Mr. Tharpe’s testimony that he arrived around 10:30 a.m. is
consistent with the amount of time that elapsed before Deputy Boudreaux’s arrival
on the scene at 11:26 a.m. As such, the testimony of these two witnesses places the
defendant at Ms. Gage’s home prior to 11:00 a.m., and again, the defendant’s
allegation that none of the state’s witnesses place him at the home prior to 11:00 a.m.
is without merit.
Next, the defendant maintains that Deputy Boudreaux was present when the
landlord arrived to unlock the door. Because Deputy Boudreaux testified that he
arrived on the scene at 11:26 a.m., the defendant asserts that Ms. Gage’s family and
friends arrived well after the defendant allegedly returned home at 11:00 a.m. Deputy
Boudreaux’s testimony, however, indicates that he arrived just before the defendant
6 climbed out of the window to escape, not prior to the arrival of the landlord with the
key.
The defendant also complains that the state did not account for Ms. Gage’s
whereabouts from 5:30 a.m., the time she was late for work, to 9:30 to 10:30 a.m., the
estimated time of her death. The defendant stresses that there was no medical
evidence that there had been a several hour struggle between the defendant and Ms.
Gage. Although the defendant is correct in that this evidence was not adduced at
trial, the evidence of same has little relevance in proving the elements of the crime
involved.
Lastly, the defendant maintains that the state did nothing to exclude the
reasonable possibility that one of Ms. Gage’s boyfriends or her husband committed
the crime. The record reflects that Ms. Gage was having a sexual relationship with
Mr. Tharpe the month prior to her death. There is no evidence, however, that places
him at the scene of the crime in proximity to the time of her death. Mr. Tharpe
testified that he arrived at work at 5:00 a.m. on the day Ms. Gage died. Further, Ms.
Doucet testified that Mr. Tharpe was at work when she called him to inquire about
Ms. Gage’s whereabouts. Also, Mr. Tharpe confirmed that he had received Ms.
Doucet’s call at work that morning at about 9:30 a.m. The record is void of any
evidence of hostility between Mr. Tharpe and Ms. Gage.
Ms. Gage was also well acquainted with Patrick Coleman, a resident of Baton
Rouge, Louisiana, who testified that he had broken up with Ms. Gage on Labor Day
of 2004, approximately four months before her death, because she had cheated on
him. Mr. Coleman added that Ms. Gage had attempted to contact him several times
before December 28, 2004, but he would not answer her calls. His last conversation
7 with Ms. Gage was on December 28, 2004, and was initiated by Ms. Gage. Mr.
Coleman testified that during this conversation, Ms. Gage suggested that they
rekindle their relationship. Mr. Coleman declined to do so. There is no evidence that
Mr. Coleman was in the area of the crime or that Mr. Coleman expressed any violence
or ill will toward Ms. Gage.
Ms. Gage’s husband, Glen Gage, testified that they had been married six years,
but had separated in Spring 2004 and were living apart at the time of her death. Mr.
Gage was living with his sister in Jeanerette, Louisiana, while Ms. Gage was residing
in New Iberia, Louisiana. According to Mr. Gage, he and Ms. Gage were “getting
along pretty good” and talked of reconciliation. Mr. Gage was aware that Ms. Gage
was living with the defendant at the time of her death and had met him, briefly, on
one occasion. He also testified that he was aware that Ms. Gage was seeing other
men. Mr. Gage denied being angry about the other men, describing his feelings as
being “hurt.” Lastly, Mr. Gage denied killing Ms. Gage or making any threats against
her life. Again, there is no evidence in the record which indicates that Mr. Gage was
in the area at the time of Ms. Gage’s death.
There is no evidence that any other man was in the house the night before or
the morning of Ms. Gage’s death other than the defendant’s testimony that Ms. Gage
was with an unknown man the night of her death. In State v. Leger, 04-1467, pp. 27-
28 (La.App. 3 Cir. 6/1/05), 907 So.2d 739, 758, writ denied, 05-2263 (La. 4/17/06),
926 So.2d 509, cert. denied, ___ U.S. ___, 127 S.Ct. 245 (2006), this court observed
as follows:
The Defense sets forth various hypotheses of innocence that the jury failed to consider. Had it done so, the Defense contends an acquittal would have been mandated. As discussed above, when a conviction rests on circumstantial evidence, every reasonable hypothesis
8 of innocence must be excluded. “However, La.R.S. 15:438 does not establish a stricter standard of review than the more general rational juror’s reasonable doubt standard; it is merely an evidentiary guide for the jury when considering circumstantial evidence.” State v. Manning, 03-1982, p. 46 (La.10/19/04), 885 So.2d 1044, 1088 (citing State v. Porretto, 468 So.2d 1142, 1146, (La.1985)).
Considering the absence of evidence which suggests the possibility that another
perpetrator committed the crime, the state adequately excluded the possibility a
boyfriend or Ms. Gage’s husband committed the crime.
Lastly, the defendant asserts that scientific evidence does not support the
hypothesis that the defendant killed Ms. Gage. More specifically, the defendant
complains that the autopsy did not prove that he was the killer and that there was
none of his DNA on the murder weapon or other evidence which linked him to the
murder. In this assignment of error, the defendant complains that he was convicted
on entirely circumstantial evidence that does not exclude every reasonable hypothesis
of innocence. The defendant, however, is attacking the lack of physical DNA
evidence to support his conviction, not the use of circumstantial evidence. There is
no dispute that the state lacks physical DNA evidence in this matter. The state
presented sufficient circumstantial evidence for the jury to conclude that the
defendant committed the crime.
ASSIGNMENT OF ERROR NO. 2:
In his second assignment of error, the defendant argues that the trial court
abused its discretion in allowing the state to conduct an “experiment” in front of the
jury, demonstrating Ms. Gage’s strangulation with a necktie. Dr. Cameron Snider,
a forensic pathologist and expert in the field of forensic autopsies, wrapped a necktie
around a female volunteer, an employee of the district attorney’s office, to
demonstrate how Ms. Gage was strangled to death. Relying on State v. Rault, 445
9 So.2d 1203 (La.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225 (1984), the
defendant maintains that there is no similarity between the courtroom conditions and
the conditions at Ms. Gage’s home, and thus, the trial court erred in allowing same.
In Rault, defense counsel moved to introduce into evidence a four-hour tape
recording of a hypnotic session by the defendant and a hypnotist to illustrate to the
jury the hypnotic technique. Defense counsel argued that the tape was not offered to
establish the truth of the contents, but was intended to show that the defendant had
been in a hypnotic trance and to negate suggestibility in the conduct of the session.
The trial court ruled that the tape was inadmissible. In rendering its decision, the
supreme court stated:
A trial court has great discretion in permitting or refusing in-court experiments and demonstrations. Criteria for withholding permission include “considerations arising from the possible disruption of orderly and expeditious proceedings or from the lack of similarity between courtroom conditions and the actual conditions sought to be re-tested.” State v. Mays, 315 So.2d 766, 768 (La., 1975). See also State v. Hampton, 326 So.2d 364 (La., 1976).
Id. at 1208. The court noted that what the defendant had proposed was not a simple
demonstration of the physical characteristics as was permitted in State v. Square, 433
So.2d 104 (La.1983), the display of teeth, and State v. Crochet, 354 So.2d 1288
(La.1977), the display of a tattoo. Further, the court stated that it was not clear that
the hypnotist could have recreated the same trance state that the defendant had
previously obtained. Considering same, the supreme court concluded that the trial
court did not abuse its discretion in disallowing the tape recording and hypnosis
demonstration, which it found were both cumulative and of questionable validity.
Next, the defendant argues that the problem with ill-prepared demonstrations
outside the ordinary examination and cross-examination is that the demonstration can
10 violate a defendant’s constitutional right to confront a witness, citing State v.
Langley, 95-1489 (La. 4/14/98), 711 So.2d 651. The defendant complains that he had
no one to cross-examine following the experiment who knew anything about the
circumstances of where and how the death occurred.
Lastly, the defendant asserts that pursuant to La.Code Evid. art. 705(B), the
demonstration should not have been allowed as a basis of the facts upon which Dr.
Snider based his opinion. Article 705(B) reads, “In a criminal case, every expert
witness must state the facts upon which his opinion is based, provided, however, that
with respect to evidence which would otherwise be inadmissible such basis shall only
be elicited on cross-examination.” The defendant argues that Dr. Snider never needed
nor conducted such an experiment to determine Ms. Gage’s cause of death. In
support of his argument, the defendant refers once more to Langley, 711 So.2d 651.
In Langley, the defendant argued that the trial court erred by not allowing him to
present excerpts of a videotape of his interview with a specialist in forensic
psychiatry and neurology. The defendant proposed that the jurors listen to a twenty
minute excerpt from a five-hour interview to determine for themselves the credibility
of the defendant’s statements. In his attempt to admit the tape into evidence, the
defendant made several different arguments, including the argument that the tape was
admissible as evidence upon which his treating psychiatrist relied in forming her
opinion. Although his psychiatrist had received a copy of the tape, she testified that
it did not assist her in forming her opinion. Accordingly, the court concluded that the
tape was not admissible under La.Code Evid. art. 705(B).
In the instant case, the minutes reflect that the state, outside the presence of the
jury, advised the trial court of its intent to use an intact necktie demonstration during
11 the testimony of Dr. Snider. The defendant objected to the use of the necktie and to
the state’s use of a photo of the demonstration instead of admitting the necktie.
Following arguments the trial court overruled the defendant’s objection.
Dr. Snider performed an autopsy on Ms. Gage on December 30, 2004. Based
on the evidence at the scene and the evidence on Ms. Gage’s body, a necktie wrapped
around Ms. Gage’s neck in a ligature type fashion, Dr. Snider determined that Ms.
Gage died from asphyxia. Dr. Snider testified that when he received Ms. Gage’s body,
a necktie was wrapped around Ms. Gage’s wrists, but was no longer around her neck.
He also noted evidence that something had been wrapped around her neck causing
ligature type injuries. The necktie had been cut so that it was resting only around the
writs at the time of the examination. Dr. Snider explained how the various portions
of the tie were located on Ms. Gage’s body and photographs were submitted into
evidence. To demonstrate the method the necktie was used to kill Ms. Gage, Dr.
Snider placed a necktie on a female volunteer, Kathleen Theriot. Lastly, a photograph
of Ms. Theriot was taken with the necktie in place in lieu of having her remain in that
position for the remainder of the trial. The demonstration necktie was offered into
evidence.
The facts in Rault provide little to no support for the defendant’s argument in
the instant case. The defendant’s proposal in Rault was not a simple demonstration
of physical characteristics. Dr. Snider’s demonstration in the case sub judice was
nothing more than a demonstration of how the necktie asphyxiated Ms. Gage. The
state was not attempting to recreate the murder scene.
With regard to the defendant’s assertion that ill-prepared demonstrations outside
the ordinary examination and cross-examination violate his constitutional right to
12 confront a witness, we note that the defendant’s reliance on Langley in support of
same is misguided – this issue is not discussed in Langley. Further, the defendant’s
complaint that he had no one to cross-examine following the experiment is unfounded.
Dr. Snider, a qualified expert in the field of forensic pathology as well as the physician
who performed Ms. Gage’s autopsy, could clearly address any questions propounded
by the defendant on cross-examination regarding the mechanics of the demonstration.
The defendant’s reliance on La.Code Evid. art. 705(B) and Langley for the
proposition that Dr. Snider never needed nor conducted such an experiment to
determine Ms. Gage’s cause of death is also misguided. The evidence in Langley did
not involve a demonstration or experiment as is seen in the instant case. Also, the
defendant in Langley sought to admit the evidence at issue, whereas the defendant in
the case sub judice sought to exclude the state’s demonstration. The issue in Langley
and the application of Article 705(B) simply do not apply to the issue in this matter.
As stated above in Rault, a trial court has great discretion in permitting or
refusing such demonstrations. Considering the record in this matter, the defendant has
not shown that a lack of similarity between courtroom conditions and the actual
conditions sought to be re-tested had any affect on the demonstration. The defendant
made no specific complaints about the demonstration itself, i.e., that a different type
of necktie was used, other than making the blanket statement that there was a lack of
similarity between the courtroom conditions and the actual crime scene. Therefore,
we find that the trial court did not abuse its wide discretion in allowing the
demonstration of Ms. Gage’s asphyxiation by Dr. Snider and the volunteer.
13 CONCLUSION
The defendant’s conviction is affirmed.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.