State of Louisiana v. Shawn Shelton

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-22

STATE OF LOUISIANA VERSUS SHAWN SHELTON

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APPEAL FROM THE

TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO.13,322 HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

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SYLVIA R. COOKS

JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese, Judges.

CONVICTION AFFIRMED

Van H. Kyzar, District Attorney P,O, Box 838 Natchitoches, LA 71458-0838 (318) 357-2214 Counsel For State of Louisiana

Louisiana Appellate Project G. Paul Marx P.O. Box 82389 Lafayette, LA 70598 (337) 237-2537

Shawn Shelton #557994 La. State Penitentiary D.R./CCR E-7 Angola, LA 70712 Pro Se

COOKS, Judge.

PROCEDURAL HISTORY

On August 15, 2007, a grand jury indicted Shawn Shelton (Shelton), charging him with the second degree murder of Justin James (James) on October 30, 2005. The indictment alleged the murder was committed during the perpetration or attempted perpetration of forcible rape. Shelton pled not guilty on November 17, 2008. An amended indictment/bill of information was filed on February 5, 2010, revising the charge to manslaughter, a violation of La.R.S.

14:31(A)(2)(a).

The jury convicted Shelton of manslaughter on March 19, 2010. He was previously convicted in Nevada for the kidnapping and sexual assault of a fourteen-year-old boy, and was serving a sentence of thirty-five years to life in prison. Shelton committed this crime during the investigation of James‟ homicide.

The trial court sentenced Shelton to thirty years at hard labor on June 23, 2010, to run consecutively to the Nevada sentence. Shelton appeals his conviction. We affirm.

FACTS

On October 29, 2005, the victim, James, and his friend, Justin Wise (Wise), were drinking beer and watching television at the home of the victim‟s sister‟s boyfriend, about a 45-minute drive from Natchitoches. Two other friends, Josh Collins (Collins) and Brent McDaniel (McDaniel), called and asked James and Wise to come to their apartment in Natchitoches. The victim and Wise left for Natchitoches around 9:30 or 10:00 p.m.

1 The young men visited on the balcony of the third-floor apartment for two or 2 three hours and saw Shelton at the apartment complex. According to Wise, 3 Shelton said he had flown in from Hollywood, and someone had stolen his black

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1 Hummer vehicle. Collins, however, testified that Shelton told them he was waiting 2 for a friend to return with the Hummer. McDaniel recalled people at the apartment 3 complex gathered around a black Hummer. This was the same vehicle owned by 4 Shelton in which Nevada police found cameras, and photos of young males, nude 5 from the waist down. Some of the photos were taken inside Shelton‟s Hummer. 6 When it “got kind of late,” Wise went inside and went to sleep on the couch, 7 while James remained on the balcony of the third-floor apartment. At some point, 8 James woke Wise and told him that Shelton had invited him to come down to his 9 apartment; he asked if Wise wanted to go. Wise declined, and at 3:35 a.m. on 10 October 30, 2005, the victim called Collins=s cell phone from a number Shelton 11 identified in a written statement as his. Collins told the victim to come up to his 12 apartment, and he then went to sleep. James never returned to Collins‟ apartment. 13 During the early morning hours, James sent several messages to the 14 telephone of his sister, Destiny James (Destiny), from an AOL account. Although 15 Destiny believed the messages were received around 4:00 a.m. to around 6:00 a.m., 16 a printout of the messages introduced into evidence showed they were sent from 17 2:01 a.m. to 4:26 a.m. The messages indicated James had met “a pretty cool dude” 18 named Shawn Shelton who was a producer for a movie company. The messages 19 were sent from Shelton‟s computer. 20 Contrary to his representations to James, Shelton was no movie producer. 21 Kirk Kepper (Kepper), a movie producer, actor, and principal in Skinny Giraffe 22 Productions, filming a movie in Natchitoches at the time of the victims‟ death, 23 testified. According to Kepper, Shelton was originally hired for security work 24 associated with the movie, and then worked as a runner and production assistant. 25 Kepper told him he would have the “vanity title” of assistant producer when the 26 movie was released. He further testified that Shelton had not been employed with

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1 Kepper for approximately three weeks to a month prior to his meeting James on 2 October 29, 2005. 3 The record reveals Shelton was anything but a “cool dude” or movie 4 producer. Shelton was a former California police officer convicted of sexually 5 assaulting a fourteen-year-old boy in Nevada while the current charge was pending. 6 He was later convicted and is serving a thirty-five year to life sentence in prison. 7 Shelton used subterfuge to lure the young boy in Nevada to accompany him. In 8 that episode, Shelton posed as a law enforcement officer investigating a crime. 9 Shelton used a Polaroid camera to take pictures of the Nevada boy as part of his 10 scheme to sexually assault him. Other photos of young men nude from the waist 11 down were found in Shelton‟s possession in his black Hummer. These young men 12 appear to be in drug induced states while being sexually assaulted. 13 Kepper was driving Shelton‟s black Hummer to Natchitoches on October 30, 14 2005 after staying overnight in Lafayette with the Hummer when he received a call 15 from one of Shelton‟s roommates, saying something was wrong at the apartment. 16 Apparently the roommate was unable to make a 911 call and “was kind of freaked 17 out.” Kepper was then successful in calling 911. 18 Randy Williams of the Natchitoches Police Department was dispatched to the 19 Frog Pond Apartments in response to the 911 call. Upon arrival at Shelton‟s 20 apartment, he saw the victim, nude from the waist down, wearing only two t-shirts, 21 lying on the floor with his legs inside a bedroom and the rest of his body extending 22 into the living room. Shelton appeared to be performing CPR on him. Williams 23 noticed a brownish substance in front of the closet in the bedroom with a blanket on 24 top of part of it, and he saw drag marks on the floor leading from Shelton‟s bed to 25 where the body was lying in the doorway. He testified it appeared to him that 26 someone made an effort to clean the scene and hide the substance on the floor.

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1 James arrived dead at the hospital. He died as the result of ingesting lethal 2 quantities of morphine and cocaine allegedly distributed or dispensed to him by 3 Shelton. Williams testified that he observed the victim‟s body at the hospital while 4 it was being examined by the assistant coroner. He observed that there was a shiny 5 substance on the victim‟s rectum and that his rectum appeared “opened”. He 6 further testified that the victim‟s “rear end” was “very clean,” which he found very 7 odd, considering that in his experience when a person dies their bowels empty and, 8 as he stated, “that‟s not the part you want to look at.” In his experience, the area 9 was too clean under the circumstances. 10 Detective Corporal Jayson Linebaugh of the Natchitoches Police Department 11 also responded to the call. He took a statement from Shelton in which he claimed 12 he woke up and saw the victim on the floor. He claimed the victim did not respond 13 when he tried to wake him, and that the victim vomited when he tried to rouse him. 14 Testimony at trial established that a brown substance, which appeared to be the 15 victim‟s vomit, was observed on the pillow case, comforter, and afghan in Shelton‟s 16 room. Shelton further stated that earlier in the evening, the victim asked if Shelton 17 had a computer to email his sister. Shelton claimed he went to bed, but the victim 18 kept coming in throughout the night, using the computer while he slept. According 19 to Shelton, when he found James, he was not breathing, and he tried to revive him 20 with CPR. 21 Linebaugh testified that it looked like someone had unsuccessfully tried to 22 clean the brown stain on the carpet in the bedroom and that he too observed smear 23 marks “like it had been ground down into the carpet.” 24 Testimony by James‟ sister and friends established that James was not 25 a drug user and had not used drugs in their presence on the day he died. They also 26 testified that James was not a homosexual and to their knowledge did not engage in

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1 homosexual activity. To their knowledge James was only interested sexually in 2 females. 3 ERRORS PATENT 4 In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for 5 errors patent on the face of the record. We have discovered one error patent on the 6 face of the record. The trial court imposed sentence immediately after denying the 7 Motion for Post-Verdict Judgment of Acquittal and the Motion for New Trial 8 without waiting the required twenty-four hour period and without a waiver from the 9 defendant, contrary to the provisions of La.Code Crim.P. art. 873. 10 The sentencing hearing was held almost three months after the jury rendered 11 its verdict. Shelton filed a sentencing memorandum. He also filed his motions for 12 acquittal and new trial ahead of the hearing and, on the morning of the hearing, 13 filed a Motion for Continuance. After hearing arguments the motions for acquittal 14 and new trial were denied. Shelton‟s Motion for Continuance was then heard and 15 was also denied. It was based upon his assertions that he needed more time to 16 review certain documents in the pre-sentence investigation report to address certain 17 alleged discrepancies. After the denial of the continuance, both sides worked out 18 the alleged discrepancies in the report and the hearing proceeded. Shelton did not 19 object to proceeding with the sentencing hearing and did not mention the 20 twenty-four hour delay time period. Shelton submitted evidence and argument in 21 favor of mitigating his sentence. His attorney orally objected to the sentence 22 imposed as excessive, but neither Shelton in his pro se brief, nor his appellate 23 counsel, have raised excessive sentence as an assignment of error nor has either 24 raised the issue of the failure of the court to wait twenty-four hours after the denial 25 of the motions for acquittal and for new trial.

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1 The trial court did not expressly ask if defendant was ready to proceed with 2 sentencing and defense counsel did not make any expression which might be 3 considered an express waiver of the twenty-four hour waiting period. We have, 4 however, previously held that in the absence of an express waiver there can be an 5 implied waiver by the defendant. In examining this record we find there was an 6 implied waiver. This case is much like State v. Taves, 02-709 (La.App. 3 Cir. 7 1/15/03), 846 So.2d 1, affirmed in part, reversed in part on other grounds, 03-518 8 (La. 12/3/03), 861 So.2d 144. As in Taves, defense counsel in this case was well 9 aware that sentencing would be taken up at the scheduled hearing after the court 10 heard his motions for acquittal and new trial. As we discussed above, the motion 11 for continuance was based on the desire to have more time to review the 12 pre-sentence investigation report and did not make any mention of the twenty-four 13 hour requirement as a basis for a continuance. Also, as in Taves, defense counsel 14 declared his intent to introduce evidence at the sentencing hearing and was 15 successful in clearing up some alleged discrepancies in the pre-sentence 16 investigation report. He also argued for leniency and presented what he considered 17 mitigating factors. Likewise, as in Taves, Shelton does not “raise as error the trial 18 court‟s failure to delay sentencing and did not allege prejudice.” Id. at 1252. In 19 Taves, we did find the sentence excessive but that finding was reversed by the 20 Louisiana Supreme Court. As we noted in State v. Giles, 04-359 (La.App. 3 Cir. 21 10/6/04), 884 So.2d 1233, writ denied, 04-2756 (La.3/11/05), 896 So.2d 62, in the 22 Taves case “the supreme court reversed this court‟s finding of excessiveness and 23 reinstated the sentences without any mention of the trial court‟s failure to abide by 24 the delay required by La.Code. Crim.P. art. 873.” We find there was an implied 25 waiver of the twenty-four hour waiting period and further find that Shelton makes 26 no argument claiming prejudice resulting from the failure to delay sentencing for

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1 the required twenty-four hour period. As Shelton suffered no prejudice and 2 impliedly waived his right to the twenty-four hour delay, the error patent is 3 harmless. 4 ASSIGNMENT OF ERROR NO. 1 5 Shelton argues the Amended Indictment/Bill of Information was defective in 6 that it failed to specify a particular offense and instead listed multiple possible 7 offenses and did not allege any specific facts or specify his conduct which formed 8 the basis of the indictment. He argues the Bill of Information should have been 9 quashed. Initially, Shelton was indicted by a grand jury on a charge of second 10 degree murder. The State, on its own initiative, amended the Indictment to a 11 charge of manslaughter. Shelton never filed a Motion to Quash but filed a motion 12 attempting to compel the state to elect and state a single offense on which to 13 proceed. The trial court denied that motion finding the state is not compelled to 14 choose a single theory to proceed. Because he failed to file a Motion to Quash, 15 Shelton cannot raise this issue for the first time on appeal. See State v. Gainey, 376 16 So.2d 1240 (La.1979). Despite this procedural bar, however, we recognize that the 17 state constitution does provide that an accused must be informed of the nature and 18 cause of the accusations against him. La.Const. Art. 1, Section 13. These 19 requirements are embodied in the Louisiana Code of Criminal Procedure Articles 20 464 and 465. A review of the record shows that even if Shelton had properly filed 21 a motion to quash, the state more than adequately complied with the requirements. 22 The Amended Indictment/Bill of Information specifically cited the manslaughter 23 statute and listed every predicate offense the state alleged might be applicable. 24 Shelton was well-informed of the crime with which he was being charged and the 25 specific nature of the underlying offenses which the state maintained were 26 applicable. There was extensive pre-trial discovery in the case and Shelton points

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1 to nothing which would demonstrate he was confused or did not understand the 2 basis of the charge against him or the alleged grounds upon which the state based 3 the charges for which he was being tried. This assignment is without merit.

4 ASSIGNMENT OF ERROR NO. 2 and PRO SE ASSIGNMENTS OF ERROR 5 ONE THROUGH FIVE 6 7 Shelton alleges his constitutional right to due process was violated because

8 the State presented no evidence of his act or intent regarding a homicide, “ignored 9 its own investigation and concocted an absurd and insupportable theory,” and 10 misled the jury by confusion and inadmissible other crimes evidence. In his pro se 11 brief, he argues proof of the crimes of manslaughter, simple rape or attempted 12 simple rape, sexual battery or attempted sexual battery, or possession or distribution 13 of Schedules II and IV dangerous substances was never established, and the 14 circumstantial evidence against him insufficiently proved no reasonable hypothesis 15 of innocence. 16 First, he argues the victim=s friends should not have been allowed to testify 17 that he did not use drugs and was not a homosexual. Shelton never objected to that 18 testimony at trial and, therefore, may not raise it now for the first time on appeal. 19 La.Code Crim.P. art. 841. 20 The gist of the remainder of Shelton‟s argument in these assignments of error 21 is that the evidence was insufficient to convict him because the State did not show a 22 rape or sexual assault was perpetrated or attempted on the victim and did not 23 directly relate the drugs found in the victim=s body to Shelton. He also asserts in 24 his pro se assignment of error number two that the State made improper remarks in 25 its opening statement in violation of La.Code Crim.P. arts. 766-769. He asserts the 26 State falsely stated in opening that he was a flunky and not a producer as he had

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1 told James. Testimony at trial from Kepper supports the prosecution‟s conclusion. 2 There is no merit to this assignment of error. 3 The standard of review in a sufficiency of the evidence claim is “whether, 4 viewing the evidence in the light most favorable to the prosecution, any rational 5 trier of fact could have found proof beyond a reasonable doubt of each of the 6 essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La. 7 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007), 8 citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville, 9 448 So.2d 676, 678 (La.1984). The Jackson standard of review is now 10 legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate 11 court “to substitute its own appreciation of the evidence for that of the fact-finder.” 12 State v. Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521, (citing State v. 13 Robertson, 96-1048 (La. 10/4/96), 680 So.2d 1165). The appellate court‟s 14 function is not to assess the credibility of witnesses or reweigh the evidence. State 15 v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. 16 It is the factfinder‟s role to weigh the credibility of witnesses. State v. Ryan, 17 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than insuring the 18 sufficiency evaluation standard of Jackson, “the appellate court should not 19 second-guess the credibility determination of the trier of fact,” but rather, should 20 defer to the rational credibility and evidentiary determinations of the jury. Id. at 21 1270 (quoting State v. Lambert, 97-64, pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 22 724, 726-27). Our supreme court has stated:

23 However, an appellate court may impinge on the fact finder‟s 24 discretion and its role in determining the credibility of witnesses “only 25 to the extent necessary to guarantee the fundamental due process of 26 law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In 27 determining the sufficiency of the evidence supporting a conviction, an 28 appellate court must preserve „“the factfinder‟s role as weigher of the 29 evidence‟ by reviewing „all of the evidence . . . in the light most

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1 favorable to the prosecution.‟”McDaniel v. Brown, 558 U.S. ___, ___, 2 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v. Virginia, 443 3 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so 4 viewed by an appellate court, the relevant question is whether, on the 5 evidence presented at trial, “any rational trier of fact could have found 6 the essential elements of the crime beyond a reasonable doubt.” 7 Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on 8 circumstantial evidence, . . . this fundamental principle of review 9 means that when a jury “reasonably rejects the hypothesis of innocence 10 presented by the defendant[ ], that hypothesis falls, and the defendant 11 is guilty unless there is another hypothesis which raises a reasonable 12 doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). 13 14 State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378. 15 16 Nevertheless, it is not the function of the appellate court to reassess

17 credibility of witnesses or reweigh the evidence:

18 [The supreme court has] repeatedly cautioned that the due process, 19 rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 20 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to 21 substitute its own appreciation of the evidence for that of the fact 22 finder or to second guess the credibility determinations of the fact 23 finder necessary to render an honest verdict. A reviewing court may 24 intrude on the plenary discretion of the fact finder only to the extent 25 necessary to guarantee the fundamental protection of due process of 26 law. 27 28 State v. Calloway, 07-2306, p. 10 (La. 1/21/09), 1 So.3d 417, 422 (citations

29 omitted). 30 The trier of fact makes credibility determinations and may, within the bounds 31 of rationality, accept or reject the testimony of any witness. State v. Higgins, 32 03-1980, p. 17 (La. 4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 33 S.Ct. 182 (2005). Credibility determinations are within the sound discretion of the 34 trier of fact and will not be disturbed unless clearly contrary to the evidence. State 35 v. Marshall, 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369, cert. denied, 552 36 U.S. 905, 128 S.Ct. 239 (2007). 37 Manslaughter under La.R.S. 14:31(A)(2)(a) is “[a] homicide committed, 38 without any intent to cause death or great bodily harm . . . [w]hen the offender is

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1 engaged in the perpetration or attempted perpetration of any felony not enumerated 2 in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the 3 person. . . .” The State contended Shelton committed a homicide by distributing or 4 dispensing morphine, cocaine, and alprazolam to James for the purpose of raping 5 him. 6 Randy Williams of the Natchitoches Police Department testified the victim 7 was found nude from the waist down wearing only two t-shirts when the officer 8 arrived at the apartment. He saw the body at the hospital right after the victim was 9 pronounced dead. The assistant coroner for Natchitoches Parish turned the victim 10 on his side, exposing his rectum. Williams saw “some kind of substance there and 11 his rear end was opened.” He testified the substance was shiny, “almost like uh, 12 Vaseline or something to that effect.” 13 James Parker, an investigator for the coroner=s office, also examined the body 14 at the hospital on October 30, 2005. He, too, saw a viscous, glistening substance 15 on the skin surface around the anus that he felt might be a lubricant but he did not 16 collect a sample of the glistening substance. He did not notice anything abnormal 17 regarding the appearance of the rectum. 18 Kelly Raley, qualified as an expert in forensic DNA analysis, testified she 19 had tested the penile, oral, and rectal swabs taken during the victim‟s autopsy. She 20 found the victim‟s DNA in a sperm cell on the penile swab and prostate specific 21 antigen (PSA) from an unknown donor on the rectal swab. According to Raley, 22 PSA is found in male urine and seminal fluid. Raley explained that it is not 23 scientifically possible to determine whether the PSA was the victim‟s or from 24 another person. 25 Defendant presented Dr. Richard Kamm (Dr. Kamm) of the Line Avenue 26 Clinic in Shreveport as an expert in anatomic pathology and clinical pathology.

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1 Dr. Kamm was first contacted regarding this case by the Natchitoches Parish 2 District Attorney‟s office. Correspondence from the District Attorney‟s office 3 furnished Dr. Kamm with the report of death, certificate of death, the Natchitoches 4 Parish EMS ambulance run report with statements and coroner‟s notes, the drug 5 screen report of the Natchitoches Parish Hospital, the autopsy report, and the St. 6 Louis University Toxicology laboratory report which indicated particular interest in 7 what the toxicology results showed “as to time and quantities of drugs ingested.” 8 Dr. Kamm, based on these documents, testified the victim‟s blood screen was 9 positive for morphine, an opiate; alprazolam, a drug from the benzodiazepine 10 family; cocaine; cocaine metabolites; and Lidocaine. He believed the Lidocaine 11 was administered during resuscitation attempts. An unknown number of Lortab, 12 an opiate, and Restoril, a drug in the benzodiazepine family, were missing from 13 Shelton=s prescription bottles for those medications. Additionally, cocaine 14 metabolites indicated alcohol was in the victim‟s bloodstream at the time the 15 cocaine was ingested. The presence of multiple breakdown products indicated to 16 him that the cocaine was taken over a period of time, perhaps in only two 17 administrations, with the last being within four hours of the victim‟s death. As 18 noted above, James was in Shelton‟s room during such time period. 19 Dr. Kamm opined that the victim‟s body had not been able to break down all 20 of the morphine at the time of his death, indicating it was taken “fairly recently” 21 before his death. The Alprazolam was not found in a lethal level, but morphine 22 was present in lethal amounts. 23 Dr. Kamm explained morphine is most commonly injected or inhaled. 24 Because the documents provided to him indicated that the victim=s body showed no 25 injection marks anywhere, he believed the victim most likely inhaled it. The 26 autopsy report indicated no pills or capsules were found in the victim‟s stomach.

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1 He opined the victim could have vomited any pills or capsules he may have 2 consumed, decreasing the gastric contents found during the autopsy. Dr. Kamm‟s 3 procedure in that event would be to examine any vomitus found near a victim. In 4 this case, no testing was done on the brown substance found on the carpet, 5 underwear, afghan, pillow case, belt, wash cloth, t-shirt, shoes, comforter, or socks 6 in Defendant's apartment. Further, Dr. Kamm testified the toxicology reports 7 showed “there was not one massive dose” of cocaine. Rather, the victim “had 8 experienced it at least on multiple occasions, maybe only two.” Further, he 9 believed “the ingestion of this overdose was less than four hours prior to death” 10 but he could not exclude 24 hours as “an outside time” for the earlier ingestion(s), 11 based on the presence of the metabolites. He stated that “inhalation is a voluntary 12 event,” and in his opinion “it=s very difficult to get [people] to inhale something 13 they don=t want to.” Nevertheless, it was his opinion that James had ingested the 14 cocaine by inhalation as the reports did not identify any injection marks. 15 The State admitted two photographs previously deemed inadmissible, on the 16 showing made in that writ application, by this court over Shelton‟s objection in an 17 effort to show similarity between this purported crime and the situations shown in 18 the photographs. State v. Shelton, an unpublished writ decision bearing docket 19 number 09-819 (La.App. 3 Cir. 10/22/09). Dr. Kamm believed “from the limited 20 amount of information [he saw],” the unidentified individual portrayed in Exhibit 21 S-34 appeared to be unconscious. He admitted the individual could be either 22 intoxicated or unconscious, or, the individual could simply be “laying there,” or, the 23 photograph could be posed. 24 Further, with regard to James wearing no pants when authorities arrived at 25 the apartment, Dr. Kamm testified he “couldn=t make any real accusation or any real

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1 thing out of it as to whether it was done by someone else or by the individual or 2 what was going on.” 3 Dr. Frank Peretti (Peretti), associate medical examiner/forensic pathologist 4 for the State of Arkansas, performed the autopsy on James on October 31, 2005. He 5 completed his autopsy report on December 15, 2005. He was qualified as an expert 6 at trial in the field of forensic pathology. Dr. Peretti concluded that in his opinion 7 no oral or anal sex occurred with this victim because no sperm was found on the 8 oral cavity, no saliva was found on the penile swab, and no sperm was present on 9 the anal swab. 10 Regarding the presence of PSA on the victim=s rectal swab, Dr. Peretti 11 offered his opinion by an explanation. Because PSA is found in the semen and 12 male urine, but contains no DNA, the donor cannot be identified. He opined one 13 logical explanation which might explain the presence of PSA:

14 When males die, there is [sic] little muscles in the seminal vesicles 15 around the prostate, and because we go through rigor mortis quite fast, 16 99% of men . . . after males die they ejaculate. And a lot of times . . . 17 we see it every day, it sort of dries and it runs down. So, a lot of it, 18 what we see is . . . the deceased[‟s] PSA. 19 20 Dr. Peretti also believed the slippery, glistening substance seen by Randy Williams

21 and James Parker was dried ejaculate of the victim. He specifically “looked for 22 foreign material, in case there was a lubricant.” Neither Dr. Peretti nor the crime 23 lab found anything. If a lubricant had been present, he believed he “would‟ve seen 24 it on the slide.” 25 Additionally, Dr. Peretti found the victim=s anus to be atraumatic. Dr. 26 Charles Curtis, the Natchitoches Parish coroner, told Dr. Peretti “they were looking 27 for” evidence of forcible sodomy; Dr. Peretti “spent an extra details and to looking 28 for [sic], and it‟s not there. He was not sodomized, there was no trauma, 29 whatsoever, and there was no sperm.” Dr. Peretti believed anyone who thought the

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1 anus was dilated or “somewhat opened in comparison with its normal state” was 2 wrong. He expressed his opinion that if the victim never experienced sodomy 3 before, any insertion of a penis into his anus would have caused a tear, regardless of 4 whether he was in a drugged state. Although Dr. Peretti testified in his opinion no 5 rape occurred, he could not tell from his examination whether an attempted rape or 6 attempted sexual battery took place. 7 Because other substances associated with morphine were not present, Dr. 8 Peretti felt the victim took pure morphine at the time of his death. The presence 9 and amounts of cocaine in the blood, urine, and vitreous fluid indicated to him that 10 the victim was using the drug at least twenty four hours prior to his death. Dr. 11 Peretti explained the chemicals travel from the blood to the vitreous fluid and then 12 are eliminated through the urine. He believed the victim‟s first cocaine use occurred 13 at least twenty four hours prior to his death because a cocaine metabolite, 14 cocaethylene, was present in all three fluids. The toxicology report showed the 15 blood was negative for alcohol but positive for benzodiazepines, cocaine and its 16 metabolites, and morphine. The vitreous fluid contained cocaine and its metabolites, 17 and the urine was positive for cocaine, its metabolites, and morphine. 18 The State placed great weight in its closing argument on the fact that the 19 victim was found nude below the waist and his pants were never recovered. The 20 rest of the victim‟s clothes were in the apartment next to Shelton‟s bed including 21 James‟ underwear, socks, shoes, and belt. No one asserts that James arrived in 22 Shelton‟s apartment without pants. Further, the State‟s expert testified that it is not 23 likely the victim had the coordination to remove his shoes and pants in his severely 24 drugged state. The State maintained Shelton removed the victim‟s pants. The 25 State further maintained that Shelton removed the pants from the apartment because 26 they contained incriminating evidence. The record does not indicate that any

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1 search was ever made for the pants. Nevertheless, consistent with this assertion, 2 the officers who responded to the 911 call testified that it appeared to them an effort 3 was made to clean up the victim‟s vomit and to hide what could not be cleaned up 4 with a blanket thrown over the vomit. They further testified that visible drag 5 marks on the carpet indicated the victim was dragged from the area near Shelton‟s 6 bed to the area in the doorway where he was lying when the officers arrived. 7 Additionally, one officer and the assistant coroner testified that the victim‟s 8 posterior was very clean, which is unusual under the circumstances, that they 9 observed a shiny, viscous substance on the victim‟s rectum, and that the rectum 10 appeared open at the time of their exam immediately after the victim was brought to 11 the hospital. Evidence showed that James was in Shelton‟s apartment for many 12 hours prior to his death and showed that he had been drinking alcohol several hours 13 prior to meeting Shelton. 14 It was for the jury to judge the credibility of the witnesses, including expert 15 testimony, in reaching its conclusions. Based on the evidence presented at trial the 16 jury could reasonably conclude that Shelton‟s hypothesis of innocence was not 17 reasonable. Given the evidence of Shelton‟s prior criminal conviction for sexually 18 assaulting a young male, his photographing of young males nude from the waist 19 down while engaging in sexual contact with them, the fact that the victim‟s family 20 and friends testified James was not a drug user, had not used drugs on the day in 21 question, and did not engage in homosexual behavior, the observations of the 22 officers immediately after the incident which included attempts to hide and/or 23 destroy evidence, finding this young male victim nude from the waist down, 24 severely impaired on multiple drugs and alcohol, with what appeared to a police 25 officer and the assistant coroner who examined the victim first at the hospital to be

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1 a shiny lubricant on his rectum, we cannot say the jury acted unreasonable in 2 reaching its verdict. 3 Likewise, we reject Shelton‟s assertions that the photographs and other 4 crimes evidence should not have been introduced. This evidence was very relevant 5 as to motive, intent, preparation, plan, system and absence of mistake or accident. 6 See La.Code Evid. art. 404(B) and State v. Archield, 09-1116 (La.App. 3 Cir. 7 4/7/10), 34 So.3d 434. We will not disturb the trial court‟s ruling as to the 8 admissibility of such evidence in the absence of a clear showing of abuse of 9 discretion. State v. Scales, 93-2003 (La. 5/22/95), 655 So.2d 1326. We find no 10 abuse of the trial court‟s discretion as the record reveals the evidence was very 11 probative as to Shelton‟s actions regarding James. The facts surrounding James‟ 12 death include many similarities with Shelton‟s other conviction for sexually 13 assaulting a young male, and his photographing of other young males nude from the 14 waist down, along with his victims, including James, being in drug induced states. 15 The evidence is relevant and highly probative as to Shelton‟s motive, intent, and 16 manner of carrying out his predatory sexual activities. 17 Shelton attempts to make much of Dr. Paretti‟s testimony in that he opined 18 no sexual assault occurred. The jury was free to weigh all of the evidence, 19 including accepting or rejecting Dr. Peritti‟s testimony. State v. Willis, 05-218 20 (La.App. 3 Cir. 11/2/05), 915 So.2d 365, writ denied, 06-186 (La. 6/23/06), 930 21 So.2d 973. The autopsy report of Dr. Frank Peretti indicated the “investigation of 22 the circumstances of death revealed that the decedent was at an acquaintance=s 23 home when he was found slumped over his computer.” None of the testimony at 24 trial supported this statement in Peretti’s report. Even Shelton‟s statement, 25 admitted at trial, said:

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1 I fell asleep and awoke at approx [sic] 9:00 am where I found him 2 (Justin) snoring on the floor near my bedroom desk. At about 3 10-11:00 am (not sure on the time) I tried to wake him, he was still 4 snoring. As I shook him he began to vomit. I couldn=t wake him & 5 found no pulse. 6 7 The investigating officers testified they found James lying on the floor in the

8 doorway of Shelton‟s apartment and also found drag marks in the room and vomit 9 hidden under a blanket near the bed indicating James‟ body had been moved from 10 Shelton‟s bed to the door. There was also what appeared to be vomit on the pillow 11 case, comforter, and afghan in Shelton‟s bedroom. We note also that even Dr. 12 Paretti admitted he could not say whether James was a victim of an attempted rape 13 or sexual assault, and he could not rule out that possibility. The record reveals 14 substantial evidence from which the jury could reasonably conclude that James was 15 the victim of at least an attempted rape or sexual assault and that his death occurred 16 during the attempted perpetration of such crime(s) while he was rendered incapable 17 of resisting due to a drug-induced state instituted by Shelton. There is sufficient 18 evidence to support the verdict of manslaughter. 19 CONVICTION AFFIRMED.