State of Louisiana Versus Errol Victor, Sr.

• Court: Louisiana Court of Appeal
• Decided: May 26, 2016
• Docket: 15-KA-339
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 15-KA-339

VERSUS FIFTH CIRCUIT

ERROL VICTOR, SR. COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 10,172 (1), DIVISION "B" HONORABLE MARY H. BECNEL, JUDGE PRESIDING

COURT OF APPEAL May 26,2016 FIFTH CIRCUIT

FILED MAY 26 2016 JUDE G. GRAVOIS JUDGE ~1¥~ Clc"" Cheryl Quirk La n d ri o u Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Marc E. Johnson

JEFF LANDRY ATTORNEY GENERAL TERRI R. LACY HEATHER HOOD ASSISTANT ATTORNEYS GENERAL Louisiana Department of Justice Criminal Division Post Office Box 94005 Baton Rouge, Louisiana 70804-9005 COUNSEL FOR PLAINTIFF/APPELLEE

ERROL VICTOR, SR. #613100 Louisiana State Penitentiary Angola, Louisiana 70712 COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED TABLE OF CONTENTS

INTRODUCTION 3 ASSIGNMENTS OF ERROR 3 PROCEDURAL HISTORY 4 FACTS 7 ASSIGNMENT OF ERROR NUMBER FIVE Sufficiency ofthe evidence 24 ASSIGNMENT OF ERROR NUMBER ONE First Amendment violation -free exercise ofreligion 32 ASSIGNMENT OF ERROR NUMBER TWO Failure to grant motionfor a continuance 44 ASSIGNMENT OF ERROR NUMBER THREE Improper allotment ofdefendant's case 52 ASSIGNMENT OF ERROR NUMBER FOUR Violation ofLa. C. Cr.P. art. 673 after motion for recusal filed 60 ASSIGNMENT OF ERROR NUMBER SIX Denial ofdefendant's expert witness testimony 63 ASSIGNMENT OF ERROR NUMBER SEVEN Violation ofright to a speedy trial 69 ASSIGNMENT OF ERROR NUMBER EIGHT Violation ofright to confrontation 76 ASSIGNMENT OF ERROR NUMBER NINE Improper composition ofthe Grand Jury 78 ASSIGNMENT OF ERROR NUMBER TEN State pursued a bad-faith indictment and prosecution against Mr. Errol Victor, Sr., Ls and Mrs. Tonya Victor, Ls. [sic] The prosecution as a whole was contrary to medical evidence and gender driven to the detriment ofMr. Errol Victor [Gender Discriminatory Motives][] 79 ASSIGNMENT OF ERROR NUMBER ELEVEN Jurisdiction and Status 81 ASSIGNMENT OF ERROR NUMBER TWELVE Defendant complains that he was brought before a court which lacked competent jurisdiction to conduct proceedings against him due to pending judicial district-wide motion to recuse all judges ofthe 40 th JDC and because defendant denied co[r]porate status. Defendant avers that these proceedings have root in vindictive prosecution because the D.A. and his staffwere political and business enemies ofdefendant and the judicial process was utilizerd] to execute personal retribution against defendant. The case before the court is a complete derivative ofthe twice-dismissed cases: 2008-CR-165; 2010-CR-172, (66175,66575,66576,46420). An resultant acquittalfrom abandonment of legal appeal, res nova violation is claimed by both defendants[] [Aba]ndonment oflegal appeal, res nova violation is claimed by both defendants[] 82 ERRORS PATENT REVIEW 87 CONCLUSION 87

2 INTRODUCTION

Defendant, Errol Victor, Sr., was convicted by a jury of the second degree

murder of his stepson, the minor child M. L. Lloyd, III ("M.L."). On appeal, he

argues multiple assignments of error as noted below. After thorough review, we

find no reversible error, and affirm defendant's conviction and sentence.

ASSIGNMENTS OF ERROR'

1. The trial court abused its discretion in conducting trial on a Saturday, on defendant's Sabbath day, violating his right to the freedom of exercising his religious beliefs under the First Amendment of the U.S. Constitution.

2. The trial court abused its discretion when it denied defendant's continuance of three days so that his counsel of choice could get familiar with a few issues in the case before enrolling and representing him at trial.

3. Defendant's due process and equal protection rights was [sic] violated when his case was erroneously allotted "judge shopped' to another court division and assigned a new case number after a re-indictment, while other re-indicted cases similar situated remained in the original allotted divisions and kept the same case numbers.

4. Defendant was denied his rights of a fair proceeding and due process of law when all the judges of the 40 th JDC could not act, because a motion to recuse was filed on all the 40 th jdc [sic] judges.

5. The evidence presented in the trial court was insufficient to convict defendant of second degree murder.

6. The trial court abused its discretion by restricting defendant of the right to present an expert witness on his own behalf and restricting evidence showing lack of credibility ofwitnesses[.]

7. Defendant rights to a Speedy Trial Rights [sic] was violated on State and Federal Levels [sic][.]

8. Defendant was deprived of his Rights to Confront and Cross-examine Coroner during trial.

9. Unconstitutional jury-fixing resulting in discrimination and tainted jury pool requiring disqualification of all jurors (6 th, and 14th Amend) [Motion to Quash and contemporaneous objection on/in the trial record].

, Defendant represents himself on appeal; thus, there are no counseled assignments of error. Defendant's request for oral argument on page 17 of his reply brief does not meet the requirements of Rule 2-11.4 of the Uniform Rules of the Courts of Appeal.

3 10. State pursued a bad-faith indictment and prosecution against Mr. Errol Victor, Sr., Ls and Mrs. Tonya Victor, Ls. [sic] The prosecution as a whole was contrary to medical evidence and gender driven to the detriment of Mr. Errol Victor [Gender Discriminatory Motives][.]

11. When through negative averment ofjurisdiction "Status" and "Jurisdiction" are placed at issue, the burden shifts to the purported party asserting competent jurisdiction.

12. Defendant complains that he was brought before a court which lacked competent jurisdiction to conduct proceedings against him due to pending judicial district-wide motion to recuse all judges of the 40th JDC and because defendant denied co[r]porate status. Defendant avers that these proceedings have root in vindictive prosecution because the D.A. and his staff were political and business enemies of defendant and the judicial process was utilize[d] to execute personal retribution against defendant. The case before the court is a complete derivative of the twice-dismissed cases: 2008-CR-165; 2010-CR-172, (66175, 66575, 66576, 46420). An resultant acquittal from abandonment of legal appeal, res nova violation is claimed by both defendants[.] Abandonment of legal appeal, res nova violation is claimed by both defendants [.]

PROCEDURAL HISTORY2

On April 1, 2008, the eight-year-old boy M.L. Lloyd, III, was brought to the

emergency room at River Parishes Hospital in St. John the Baptist Parish,

unresponsive, by his mother, co-defendant Tonya atkins Victor ("Mrs. Victor"),'

his step-father, defendant Errol Victor, Sr., and his step-brother, Errol Victor, Jr.

Emergency room personnel were unable to revive him. During emergency

treatment, after M.L. 's clothes were removed, it was discovered that his backside

from his neck to his knees was covered in deep bruises. Other injuries were

discovered as well: M.L.'s buttocks were both scraped, he had wounds on his

forearm, and an injury to his neck.

On April 15, 2008, defendant Errol Victor, Sr., was charged by indictment

with one count of first degree murder, in violation of La. R.S. 14:30. On the same

2 Because the majority of the procedural history is not evident in the instant record, it is noted that pursuant to Rule 2-1.14 of the Uniform Rules of the Courts of Appeal (URCA) and State v. Bradley, 02-1130 (La. App. 5 Cir. 3/11/03), 844 So.2d 115, 118, defendant's previous writ application, 10-K-892, was reviewed. 3 Mrs. Victor's appeal, 15-KA-340, proceeds separately from co-defendant Errol Victor, Sr.'s appeal, which is the subject of this opinion.

4 day, co-defendant Mrs. Victor was charged by indictment with accessory after the

fact to first degree murder and cruelty to a juvenile.' Defendant's case was

randomly allotted to Division "A" under case number 2008-CR-165 of the 40th

Judicial District Court, Judge Madeline Jasmine presiding. Defendant pled not

guilty at arraignment.

On September 22,2009, both defendant and co-defendant's charges were

amended by indictment to second degree murder, while engaged in the perpetration

of the crime of cruelty to a juvenile, in violation of La. R.S. 14:30.1(A)(2)(b).

Defendant subsequently filed a motion to quash the indictment, which was granted

on February 4,2010. In written reasons, Judge Jasmine determined that the

indictment must be quashed because of the "participation of the St. John the

Baptist Parish Sheriffs Deputy in the grand jury process as a grand juror while

wearing a shirt which openly advertised his employment with an office inherently

aligned with the State." After initially filing for reconsideration and/or an appeal

of the judgment, on April 6, 2010, the State filed a notice of dismissal without

prejudice of all pending charges in case number 2008-CR-165.

Six days later, on April 12,2010, a newly empaneled grand jury re-indicted

defendant and Mrs. Victor with second degree murder, while engaged in the

perpetration of the crime of cruelty to a juvenile, in violation of La. R.S.

14:30.1(A)(2)(b). The case was randomly allotted to Division "B," case number

2010-CR-172 of the 40th Judicial District Court, Judge Mary Hotard Becnel

presiding. Defendant refused to enter a plea at arraignment; the trial court entered

a plea of "not guilty" on his behalf. Defendant filed multiple pre-trial motions,

including a Motion to Recuse all of the judges on the 40 th Judicial District Court on

May 12,2010, and an "Objection to 'Allotment' of Case to Division 'B' and

4 Errol Victor, Jr. was also indicted, but charges against him were eventually dismissed.

5 Motion for Transfer to Division of Original Allotment Division' A, '" on May 17,

2010. All hearings on motions were stayed until the motion to recuse was heard by

appointed ad hoc Judge Frank Foil on July 1,2010. Judge Foil denied the motion

to recuse. The motion to transfer to the originally allotted division was heard on

August 4, 2010, and denied with written reasons on August 18, 2010.

Trial was originally scheduled to begin on August 16, 2011. However,

defendants, who were out of jail on bond pending trial, did not appear in court on

that day. It was later determined that they had absconded from the State of

Louisiana. Defendants were located in Tifton, Georgia, in July 2012, whereupon

they were extradited to the State of Louisiana to face the pending charges.

Trial commenced before a twelve-person jury as to both defendants on July

22,2014. On August 1,2014, the jury returned a verdict of guilty as charged as to

defendant.' Prior to sentencing, defendant filed several post-verdict motions,

including a motion for post-verdict judgment of acquittal, motion in arrest of

judgment, and motion for a new trial, all of which were denied by the trial court on

August 25,2014. On September 15,2014, defendant was sentenced to life

imprisonment at hard labor, without the benefit of parole, probation, or suspension

of sentence. The trial court further ordered defendant's sentence to run

consecutively with any other sentence defendant may have been serving.'

Pursuant to defendant's oral motion for appeal made immediately after

sentencing, the trial court granted defendant an appeal on September 24,2014.

Defendant's timely appeal follows.'

5 Mrs. Victor was found guilty of the responsive verdict of manslaughter. 6 Defendant and Mrs. Victor were convicted of bail jumping in reference to their failure to appear in court for their trial in August of2011 and subsequent absence from the State in violation of their appearance bonds. 7 It is noted that defendant represents himself on appeal after a finding by the trial court on March 25,2015 that defendant knowingly, intelligently, and voluntarily waived his right to an appointed appellate attorney.

6 FACTS

On April 1,2008, defendant's eight-year-old stepson, M.L. Lloyd, III, died

as a result of injuries consistent with an extensive and severe beating. g

Dr. Richard Tracy, an expert in the field of forensic pathology, testified that

he performed the autopsy on M.L. on April 2, 2008, the day after M.L. died. Dr.

Tracy noted that M.L. had sustained extensive bruising over most of his torso,

from the base of his neck to his buttocks, on both thighs, and also along his left

forearm. The internal examination of M.L. confirmed that the bruising was deep

tissue bruising, nor was there lividity." Over the lumbar and gluteal" region, Dr.

Tracy also identified impressed abrasions, which in his experience indicated that

M.L.'s exposed back and buttocks area had been slid over a rough surface. Based

on the appearance of the abrasions, Dr. Tracy concluded that they occurred close in

time to the child's death.

During the course of the autopsy, Dr. Tracy also observed distinctive "u-

shaped" impressed bruise marks. In one location, the impressed marks displayed a

pattern indicative of a doubled-over cord, such as an extension cord or belt.

Present on the front of M.L.' s body were also larger more circular patterned

bruises and a bruise across the neck area caused by a hard object pressed across

M.L.'s windpipe at an angle. In Dr. Tracy's opinion, the bruises were likely two to

three days old and were sustained as a result of blunt force trauma.

g M.L. Lloyd Jr., M.L.'s biological father, testified that he and co-defendant, Tonya Otkins Victor, lived together in Tangipahoa Parish for four years prior to their separation. M.L. was two years old at the time they separated; however, Mr. Lloyd remained in close contact with his son until one day when he arrived at Mrs. Victor's home to pick up his son and discovered that she had moved without his knowledge. Despite attempting to locate her, Mr. Lloyd was unsuccessful and never saw his son again until he was notified four years later by a newspaper reporter ofM.L.'s death. Mr. Lloyd testified that he made all of the funeral arrangements and that Mrs. Victor's other four children, Toi Williams, Brandon Williams, Cordell Williams, and Kevin Otkins, all attended the funeral, but that Mrs. Victor did not. 9 Lividity was explained as the change in skin color from pooling of blood and bodily fluids after death due to gravity. 10 The gluteal muscles are a group of three muscles which make up the buttocks.

7 Upon internal examination, Dr. Tracy determined that M.L. also suffered

from a bruised lung, an injury sustained shortly before his death. He further

opined that extensive deep bruising over a large portion of a child's body could

cause death. He explained that extensive deep bruising brings about

cardiovascular collapse, because the bruising causes a large volume of blood to

seep into the tissues, impairing circulation. Dr. Tracy opined that the cause of

M.L.' s death could have been either the result of the extensive, confluent deep

bruising which caused cardiovascular death, or by asphyxia through the use of a

blunt object pressed across M.L.'s windpipe, or both."

Defendant, Mrs. Victor, and Mr. Victor's son, Errol Victor, Jr., brought M.L.

to the emergency room, but Mrs. Victor and Errol, Jr. left within minutes, leaving

defendant there. Registered nurse Clay Hubble was the first medical professional

to come into contact with M.L. Defendant told him that the child had "an accident

in the bathroom." According to Nurse Hubble, the child was slumped over and not

breathing.

Emergency room physician Dr. Dale Morris confirmed that upon M.L.'s

arrival at the hospital, he was limp, unresponsive, had no heartbeat, his pupils were

fixed and dilated, and he was cold to the touch. M.L.' s body temperature was 85.2

degrees upon arrival, more than fourteen degrees lower than the average rectal

temperature of99.6 degrees, plus or minus. Dr. Morris and Nurse Hubble noted

that they saw no evidence of trauma until M.L.' s clothes were removed, at which

point bruises on M.L.'s thighs, back, buttocks, chest, and abdomen were visible,

along with the abrasions on his buttocks and lower back.

II Dr. Tracy's provisional anatomical diagnoses were forwarded to the St. John the Baptist Parish coroner, Dr. Christy Montegut. As coroner, Dr. Montegut issued the death certificate in this case. The first death certificate issued by Dr. Montegut on May 5, 2008, after obtaining Dr. Tracy's provisional anatomical diagnoses, listed the cause of death as asphyxia due to neck compression, and the manner of death was marked as "pending investigation." After obtaining supplemental information, including M.L.'s prior medical records and toxicology reports, Dr. Montegut amended the manner of death to "homicide."

8 Nurse Hubble attempted to locate defendant to find out what happened to the

child, and saw defendant in the parking lot of the hospital speaking with someone

whom he believed to be Mrs. Victor, who was seated inside her car. Defendant

was eventually escorted into the waiting room of the hospital, and when asked

what happened to M.L., defendant told Nurse Hubble, "we had to discipline him"

because he was stealing. Although defendant would not respond when asked if he

hit M.L., he did state, "I take full responsibility for this."

The registration clerk at the hospital, Nico Savoie, testified that upon M.L.' s

arrival at the hospital, Mrs. Victor approached her and stated that her son was in

the ambulance bay short of breath. Mrs. Victor then left the hospital with her

stepson, Errol, Jr. Ms. Savoie testified that she attempted to obtain M.L.'s name

and date of birth, to no avail. Rather, Mrs. Victor told Ms. Savoie that her son had

been to the hospital a couple days prior and that he had Medicaid. Ms. Savoie was

eventually able to obtain M.L.' s name from defendant, after which she discovered

that M.L. had never been treated at River Parishes Hospital as Mrs. Victor had

claimed.

M.L. was ultimately pronounced dead twenty minutes after his arrival at the

hospital when efforts to resuscitate him failed." Dr. Morris opined that M.L. had

probably been dead for a while; he stated that it would have taken over an hour for

a person's body temperature to drop to 85.2 degrees.

St. John the Baptist Parish Sheriffs Officer Alkan Traveler, Sf. was

dispatched to River Parishes Hospital regarding a juvenile victim later identified as

M.L. When Officer Traveler arrived at the hospital in response to the call, he

spoke to Dr. Morris and also observed that M.L. had numerous bruises on his

12 On the St. John the Baptist Parish Coroner's Office form, which was required to be filled out by the hospital and sent to the coroner's office, Dr. Morris listed the cause of death as "unknown," but deferred to the coroner's findings after performance of the autopsy.

9 thighs, buttocks, and lower back. After speaking with Dr. Morris, Officer Traveler

approached defendant, who was in the waiting room with his attorney, Tregg

Wilson, where he was asked to accompany Officer Traveler to the police station.

Captain Kenneth Mitchell of the St. John the Baptist Parish Sheriffs Office, who

had also arrived at the hospital pursuant to the dispatch call, advised defendant of

his Miranda" rights and then instructed Officer Traveler not to speak to defendant

during his transport to the police station. While transporting defendant to the

police station, Officer Traveler overheard defendant speaking to someone whom

Officer Traveler believed to be Mrs. Victor on the telephone, advising her not to

speak to "the police or anyone else," and to make sure the children did the same.

He further stated, "what has happened has happened and [1] cannot change the

past. ... [Y]ou lost a son today and you're about to lose your husband to prison."

According to Officer Traveler, defendant also stated that he would take "full

responsibility" for what happened. Once at the police station, Captain Mitchell

again advised defendant of his Miranda rights in the presence of his attorney. No

statements were obtained, and defendant was arrested.

Detective Christie Chauvin, also of the St. John the Baptist Parish Sheriffs

Office, likewise arrived at River Parishes Hospital in response to a call made by a

hospital employee regarding an unresponsive child "covered in bruises." Upon

arrival at the hospital, Detective Chauvin learned from the hospital staff that the

child had died and that the mother of the child had left the hospital. 14 Detective

Chauvin testified that she was familiar with defendant and knew that he had other

children, so she requested that a patrol deputy be dispatched to their home to

13 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 14 Detective Chauvin also reviewed video surveillance footage from the hospital security cameras. On the video, defendant's son, Errol Victor, Jr., is seen carrying M.L.'s limp body through the ambulance bay doors, accompanied by defendant. Mrs. Victor is also seen exiting the driver's side ofa Cadillac Escalade and entering the emergency room. On the videos, both defendant and Errol Victor, Jr. then exit the triage room door, where they were met by Mrs. Victor, and proceed to exit the hospital, at which time Mrs. Victor and Errol Victor, Jr. drive away in the Escalade.

10 ensure the safety of the other children. The officers dispatched to defendant's

home discovered that no one was present and that Mrs. Victor's vehicle was also

not there.

Pursuant to Captain Mitchell's request, Tregg Wilson, defendant's attorney,

agreed to contact Mrs. Victor and urge her to return to her residence. Mrs. Victor

eventually returned to the residence and was taken to the police station for

questioning. The Cadillac Escalade she was driving was searched, revealing over

$180,000 in cash, as well as an envelope with attorney Mr. Wilson's phone number

on it." Once at the police station, Mrs. Victor was placed under arrest and read her

Miranda rights.

Captain Mitchell testified that defendant and Mrs. Victor were originally

scheduled for trial in this matter on August 16, 2011; however, they did not appear

in court for trial. Defendant and Mrs. Victor were eventually located in April of

2012 in Tifton, Georgia, and extradited to Louisiana for trial.

Dr. Scott Benton, an expert in the field of pediatrics and child abuse

pediatrics, was retained by the State to evaluate the case and testified at trial. As

part of his evaluation, Dr. Benton reviewed the following documentation: the

investigative report from the Sheriff s Office; the certificate of death; the autopsy

report and associated toxicology report; the River Parishes Hospital emergency

record; treatment records from M.L.'s prior treating physician, Dr. Angelo Lobue;

relevant photographs; and the testimony provided at certain pretrial hearings

conducted in this matter. After his review of the documentation, Dr. Benton

opined that M.L. died as a "consequence of injuries that were definitively sustained

15 Mrs. Victor testified that she did not know about the money in the car, but that defendant sometimes carried cash in the car.

11 by physical abuse."" When reviewing the autopsy photographs, Dr. Benton found

it of particular interest that M.L. had sustained numerous "patterned" bruises over

portions of his body. He explained that patterned bruises take the shape or image

of the object that caused the bruise. He noted that the bruising that took the shape

of a looped pattern could have been from a cord, a belt, or an object that had the

ability to be "thin or on edge." Dr. Benton testified that this type of pattern

indicates an injury that cannot be self-inflicted. Dr. Benton further noted that the

injuries sustained by M.L. involved multiple planes, or surfaces on the body,

providing further proof that the injuries were inflicted by someone else. Also, the

looped pattern of the bruises indicated to Dr. Benton that M.L. was not clothed at

the time they were inflicted.

Dr. Benton testified that the extensive bruising on M.L.'s back that extended

all the way down to his buttocks and to the back of his thighs exhibited a pattern

injury consisting of linear patterns and abrasions where the skin had been scraped

off by the object used to hit M.L. These injuries further confirmed to Dr. Benton

that M.L. was not clothed at the time the physical abuse was inflicted. He further

testified that the linear pattern seen on M.L.'s backside was indicative ofM.L.

being struck with a broad paddle or a belt multiple times.

Additionally, Dr. Benton opined that the injuries sustained to M.L.'s forearm

were of importance because they indicated that M.L. attempted to block the hits

that were inflicted upon him. He further noted that there appeared to be "grab

marks" or restraint marks over M.L.'s lower wrist and upper arm. Dr. Benton

concluded that in his opinion, strong contributors to M.L. ' s death were the severe

bruising to his back and torso, and/or asphyxia by compression of the neck. He

16 Dr. Benton testified that in his twenty years of experience reviewing thousands of child death cases, in only a minority of cases has the ultimate conclusion been that the chiId died from an act or commission of physical abuse.

12 opined that to a reasonable degree of medical certainty, M.L. suffered unjustifiable

pain and suffering and died as a result of cruelty.

Lieutenant Pat Baudoin, director of the Child Advocacy Center in St.

Charles Parish, testified that she interviewed Toi Williams, Brandon Williams,

Cordell Williams, and Kevin Otkins, M.L.' s half-brothers. Their statements were

introduced into evidence.

Toi Williams, who was twenty-one years old at the time of trial, testified that

at the time his half-brother M.L. died, six years prior to trial, he was fifteen and

living with defendant (his stepfather) and his mother, Mrs. Victor, as well as his

brothers (Brandon Williams and Cordell Williams) and half-brothers (M.L., Kevin

Otkins, Ian Victor, and Jaubert Victor), along with defendant's sons (Errol, Jr.,

Trent, Fabian, Marcus, Emmanuel, and Chance Victor). Toi said that he and his

brothers were home-schooled in a business building defendant owned near their

home. Toi recalled that the day before M.L. died, he and his brothers were at the

building where they were home-schooled, and defendant had given each of them

an ice cream before they left for the day. When they arrived home, defendant told

them that he had discovered that someone had stolen an ice cream and he wanted

to know who had taken it. According to Toi, a few of the boys were whipped,

including M.L., whom defendant whipped with a belt. Later, after M.L. admitted

to taking the ice cream, defendant sent the other boys upstairs and continued to

beat M.L., "throwing him around," and punching him in the chest. Defendant then

proceeded to throw M.L. against the stairs.

Toi testified that defendant told M.L. to wait outside on the porch because he

was going to call the police. According to Toi, the police arrived, but he was

unaware whether M.L. had spoken with them. M.L. was eventually brought back

inside the house and denied dinner that night. Toi recalled that once inside,

13 defendant continued to beat and punch M.L. The next morning, defendant dragged

M.L. out of bed and again began to beat M.L. and "sling" him around. Toi stated

that he, Errol, Jr., and Emmanuel were then ordered to restrain M.L. Toi testified

that he was eventually replaced by another one of defendant's sons because he

wasn't "holding him tight enough." Toi recalled that M.L.'s face, wrists, and legs

were pinned down while defendant and Fabian (pursuant to defendant's order) beat

M.L., who had been stripped down naked, with a belt. Toi testified that the beating

lasted for an hour or longer.

During the beating, defendant called Mrs. Victor upstairs to witness the

beating where she watched and cried, but did not physically or verbally attempt to

stop defendant. Toi stated that he observed bruises on M.L.'s arms and scratches

on his backside that were bleeding from the belt used to beat him. He further

recalled that defendant put alcohol on the scratches and then continued to beat

M.L. According to Toi, the beating stopped for a few moments while defendant

and Mrs. Victor went outside to tend to some housework, but when defendant

returned inside, he went back upstairs and continued beating M.L. Toi stated that

he could hear defendant "throwing M.L. around."

Later, defendant instructed his son Fabian to go to the store to pick up ice

and Pedialyte. After Fabian returned from the store, defendant then ordered

Brandon to retrieve clothes for M.L. because they were going to take him to the

hospital. Toi testified that he observed defendant take his laptop upstairs with him.

Toi assumed that defendant was trying to find out what was wrong with M.L.

because he stated that M.L. was not breathing. M.L. was eventually taken to the

hospital by defendant, Mrs. Victor, and Errol, Jr. Mrs. Victor then returned from

the hospital a short time later, at which time she gathered the children and left the

house. Toi testified that Mrs. Victor was crying and talking about driving to

14 Tennessee. Toi recalled that while in the car, Mrs. Victor received a phone call

that the police were at their house. On their way home, Mrs. Victor instructed her

children not to say anything to the police, stating, "You're doing this for M.L."

Toi's twenty-year-old brother, Brandon Williams, corroborated Toi's

account of the events surrounding M.L.' s death. Brandon confirmed that the day

before M.L. died, they were at defendant's office building where they were home­

schooled. He also recalled that before recessing for the day, defendant gave them

each an ice cream. When they had returned to the house, defendant stated that an

ice cream was stolen and he wanted to know who had taken it. Brandon testified

that defendant blamed him and his half-brother M.L. Defendant then whipped

both Brandon and M.L. with a belt. According to Brandon, M.L. eventually

confessed to taking the ice cream, so defendant instructed his son Trent to whip

M.L. because he said "Trent whooped the hardest." He recalled that defendant

then ordered M.L. to go outside because he was going to call the police. Later that

evening, Brandon was told that he was not allowed to eat dinner, so he went

upstairs and could hear M.L. crying while defendant hit him.

The next morning, Brandon recalled that defendant pulled M.L. out of bed

and continued to beat him with a belt while Errol, Jr. and Emmanuel held him

down by his wrists and legs. Brandon testified that when defendant was done

whipping M.L., he sat down and instructed his other sons, either Marcus, Trent, or

Fabian, to continue the beating while defendant asked M.L. ifhe was sorry for

what he had done. Brandon stated that the beating went on for approximately two

hours. At one point, Brandon recalled his mother being called upstairs by

defendant to watch the beating and that she told defendant to stop because she did

not want to see it.

15 Once the beating stopped, Brandon testified that M.L. could not move and

looked tired. Later, defendant eventually returned to M.L.'s room, where Brandon

could hear "a lot of bumping," before he was called upstairs to gather M.L. ' s

clothes. Brandon testified that when he went upstairs, Mrs. Victor was putting ice

on M.L.' s stomach and attempting to get M.L. to say "momma," but he would not

respond. According to Brandon, defendant then began to look up M.L.' s medical

condition on the computer before determining whether or not to take him to the

hospital. Brandon testified that defendant stated he was going to "wait a couple of

minutes ... to see if M.L. going to come back," and if not, he would take him to the

hospital. Brandon recalled that defendant then went to change his clothes stating,

"if I go out, I'm going to go out clean." After waiting approximately five minutes

and realizing M.L. was not going to be all right, defendant, Mrs. Victor, and Errol,

Jr. took M.L. to the hospital.

Brandon further testified that defendant instructed Mrs. Victor to leave town

and drive to Tennessee, but that Mrs. Victor did not want to go, so they returned to

the house where she advised her sons not to say anything about what had

happened. 17

Cordell Williams" also corroborated Toi and Brandon's testimony as to the

events leading up to M.L.' s death. He confirmed that defendant whipped Brandon

and M.L. with a belt because he believed one of them had stolen an ice cream

sandwich. Cordell further testified that once M.L. admitted to taking the ice

cream, defendant whipped him with the assistance of his son Trent on the evening

of March 31,2008. Cordell recalled that M.L. was sent outside for a couple of

17 Brandon testified that when he was first interviewed, he did not tell the truth as to what happened to M.L. because he was instructed not to by Mrs. Victor who stated, "We're doing this for M.L." 18 At the time of trial, Cordell was eighteen years old.

16 hours before being brought inside where defendant beat him again with his fists,

hitting him in the face, punching him in the chest, and kicking him.

Early the next morning, Cordell observed defendant pull M.L. out of bed and

continue the beating. Defendant then called everyone into M.L. 's room where

M.L. was on the floor, face down, and defendant was beating him with a belt.

Eventually M.L. 's clothes were removed and the beating continued by one of

defendant's sons at defendant's instruction. Cordell stated that he observed M.L.

bleeding on his backside. He further recalled that defendant stated "I'm going to

keep whopping you until I see tears come out your eyes."

Cordell also confirmed that at one point, defendant called Mrs. Victor

upstairs to watch. Cordell testified that the beating went on for a long time before

defendant went back downstairs. Cordell testified that he was downstairs with his

brothers, helping in the garden, when he saw defendant go back upstairs and heard

"a lot of bumping," as if defendant was throwing M.L. against the wall. Cordell

recalled that after twenty or thirty minutes, defendant instructed Errol, Jr. and his

other son Fabian to go to the store to purchase ice and Pedialyte. After they

returned from the store, Brandon was instructed to gather clothes for M.L. before

M.L. was taken to the hospital. Cordell testified that M.L. was not moving when

they carried him to the car. Cordell further confirmed that they were going to drive

to Tennessee until his mother changed her mind and decided to go back home,

where she instructed her sons to lie about their original plan.

Kevin Otkins confirmed the same accounts as relayed by Toi, Brandon, and

Cordell, recalling that M.L. was beaten by defendant with a belt for two days over

a stolen ice cream.

Marcus, Emmanuel, and Chance Victor, defendant's biological children,

refused to speak during their interviews at the Child Advocacy Center, but testified

17 for the defense at trial, providing a different account of the events from their

stepbrothers Toi, Brandon, Cordell, and Kevin.

Marcus Victor testified that he was not present at the building where they

were home-schooled the day before M.L. 's death. However, he recalled that later

that evening, at their house, defendant had a discussion with his sons about

stealing. He noted that Cordell, Brandon, Toi, and Kevin were not cooperating,

and that defendant stated that he was going to Tennessee for two weeks and that if

their behavior continued, everyone that did not have the last name "Victor" would

have to leave when he returned. Marcus testified that there were no "spankings or

whippings" on that day. He further recalled that defendant sent M.L. and Brandon

to bed that night without dinner. This, however, was contradictory to Marcus's

statement provided to the Office of Community Service ("OCS") during which he

stated that M.L. was whipped by defendant six times before being sent to bed."

The following morning, Marcus recalled that Mrs. Victor was angry with

M.L. for his behavior on the previous day so she "whoop[ed] him bad." Marcus

further testified that while this was occurring, defendant was not at home and that

neither he, Fabian, nor Errol, Jr. beat M.L. Once defendant returned home, he

called a family meeting upstairs, where he informed his stepsons that they had to

leave the house. According to Marcus, after the meeting, Cordell, Toi, Brandon,

and M.L. remained upstairs and were "fussing with each other." Later, M.L. stated

that he was not feeling well, so defendant and Mrs. Victor went upstairs to check

on him. Marcus testified that it was at this time that they discovered M.L. was not

breathing. According to Marcus, defendant performed CPR on M.L. before

driving him to the hospital.

19 Marcus denied giving a statement to DeS wherein he stated that defendant "whipped M.L. and gave him six licks."

18 When questioned as to defendant's disciplinary practices, Marcus testified

that defendant would discipline him and his siblings by having them run laps

around the house. However, he then admitted that when he provided a statement to

oes, he stated that defendant disciplined him by whipping, which would sometimes involve the use of a belt." Marcus further testified that he never

mistreated his stepbrothers and that it was his stepbrothers that would fight

amongst themselves.

Fabian Victor, another of defendant's sons, denied restraining M.L. while

defendant beat him. He further testified that his father had a "no whipping policy,"

and that he would discipline his children by having them write down Bible

scriptures or run laps. Fabian recalled that on the evening before M.L. died,

defendant had M.L. and Brandon stand on the porch and wait for the police as a

"scare tactic" for stealing. He further stated that defendant then sent M.L. and

Brandon to bed that night without dinner and that neither M.L. nor Brandon were

beaten or whipped that day. However, the next morning, Fabian testified that Mrs.

Victor called a family meeting and told her sons that they were going to have to

live with their biological fathers because they were being disobedient. According

to Fabian, Mrs. Victor then whipped M.L. and Brandon with a belt for "what they

did the day before." He testified that he saw Mrs. Victor whip M.L. three or four

times, but noted that he also did not stay for the entire whipping. Fabian testified

that defendant was not at home that morning and that defendant never whipped

M.L. He further stated that he never saw any marks or bruises on M.L. and that

when Mrs. Victor whipped him, he was wearing his clothes. Fabian testified that

20 On re-direct, Marcus testified that his father had a "no whipping" policy.

19 after M.L. was taken to the hospital, he and some of his brothers drove to Home

Depot when they received a call from Mrs. Victor telling them to return horne."

Emmanuel Victor testified that on the day before M.L.'s death, M.L. was not

whipped. He testified that on the morning of M.L. ' s death, defendant was not at

home, and that he saw Mrs. Victor whipping M.L. with a belt for stealing ice

cream." Sometime later, Emmanuel recalled that Mrs. Victor called a family

meeting where she informed her sons that if they did not behave appropriately,

they would be sent to live with their biological fathers. He testified that after the

meeting, Toi, Brandon, Cordell, and Kevin stayed upstairs with M.L. According to

Emmanuel, noises were heard from upstairs prompting Mrs. Victor to return

upstairs to find Cordell beating M.L. He further testified that he was told M.L.

suffered from an asthma attack.

Trent Victor testified that on the morning of April 1, 2008, he came out of

the bathroom and witnessed Mrs. Victor whipping M.L. with a belt. He further

stated that at that time, defendant was not at home. Trent testified that later that

morning, after Mrs. Victor conducted a family meeting, he went upstairs and

observed Brandon and Cordell fighting M.L. in the bedroom closet." Trent broke

up the fight and overheard Brandon and Cordell blaming M.L. for having to be

sent away. Trent reported the fighting to Mrs. Victor and then went back upstairs

to bring M.L. some food. According to Trent, M.L. did not want to eat and was

"breathing funny." At that time, Mrs. Victor instructed one of her sons to call

21 Fabian further testified that when they returned to the house, the police were not present. He stated that the police arrived a short time later. This testimony is at odds with police dispatch logs indicating that officers arrived on the scene to an empty house. 22 On cross-examination, Emmanuel was confronted with his grand jury testimony during which he testified that he never saw Mrs. Victor strike M.L., but that he heard it. 23 On June 30, 2009, Trent drafted a handwritten statement detailing the events that took place on the day M.L. died, and in his statement, he did not mention that Brandon fought with M.L. He also provided a recorded statement to the police in July of2009 and admitted that he did not mention any fighting that had occurred between Brandon and M.L. Trent also admitted that in July of2009, he provided a statement to the police where he stated that Cordell was "just swinging" at M.L.

20 defendant." Trent testified that when his father left for the hospital with M.L., he

and some of his siblings went to Home Depot. Police officers were at the house

upon their return.

Chance Victor testified that on the morning of M.L. 's death, he woke up to

"commotion" and was instructed by Mrs. Victor to go downstairs and watch his

younger brothers, Ian and Jaubert. Chance testified that defendant was eventually

called to come back home because M.L. was not feeling well. Once defendant

arrived home, Chance recalled that defendant, Mrs. Victor and Errol, Jr. left to take

M.L. to the hospital. Chance further testified that Mrs. Victor admitted to

whipping M.L., but that he did not personally observe Mrs. Victor whipping M.L.

He noted that Cordell, Brandon, M.L., and Toi had behavioral problems. After the

incident, Chance declined to give a statement to OCS.

Kerry Brown testified that he knew defendant because he had represented

him in a civil legal matter. He testified that defendant had sought his advice

regarding discipline problems he was having with Mrs. Victor's children and

alternative schooling options. He recalled that defendant had a tiered discipline

structure and that a neighbor complained about one of defendant's disciplinary

techniques which involved his children running laps around their home. Mr.

Brown further testified that after the Victors were indicted, Mrs. Victor went to his

house and told him that "this thing with Errol is all wrong because Errol wasn't

even there" and that Mrs. Victor told him she "beat the kids." Mr. Brown also

testified that he never personally saw defendant engage in physical violence.

Mrs. Victor took the stand to testify for Mr. Victor after being informed of

her Fifth Amendment rights. She testified that when defendant asked her to marry

him, she informed him that her sons, Toi, Brandon, Cordell, Kevin, and M.L. had

24 This testimony was contradictory to Trent's aforementioned June 30, 2009 handwritten statement where he noted that defendant came home halfway through the family meeting conducted by Mrs. Victor.

21 behavioral issues. Mrs. Victor admitted that on the day of M.L.' s death, she

spanked Toi, Brandon, and Cordell, and also "chastised'?' M.L. She further

maintained that defendant was not present on the morning of M.L.' s death. She

then testified that she had a meeting with her sons that morning during which she

told them she was tired of their "behavioral problems." Mrs. Victor testified that

after the meeting, everyone went downstairs except for Toi, Cordell, and M.L.

While downstairs, Mrs. Victor stated that she heard tussling and fighting going on

upstairs. Her son Trent advised her that Cordell was fighting with M.L. in the

bedroom closet. Mrs. Victor then went upstairs and asked M.L. what had

happened, to which M.L. replied, "Cordell fighting me because he said that I told

on him ... that he took the ice cream instead of me." After M.L. stated that he was

"going to be alright," Mrs. Victor testified that she whipped Cordell.

Sometime later, Mrs. Victor went back upstairs to check on M.L. and

witnessed Toi, Brandon, and Cordell fighting M.L. Mrs. Victor admitted,

however, that she provided a voluntary written statement on June 26, 2009, in

which she made no mention of Brandon, Toi, or Cordell fighting with M.L., nor

mentioned Trent having to break up a fight between Cordell and M.L. (The first

time Mrs. Victor mentioned Brandon and Toi fighting with M.L. was in a

statement dated December 15,2010.) She stated that the reason they were fighting

was because she had previously told them they would have to live with their

biological fathers because of their behavioral issues. At one point, Mrs. Victor

testified that she and defendant had entertained the idea of giving defendant's sister

custody of Cordell because he would bully his younger brothers Ian, Jaubert, and

M.L.

25 Throughout her testimony, Mrs. Victor used the words "chastised" and "whooped" interchangeably. In her July 10,2009 statement, she stated that when she "whooped" M.L., it was with a belt on his buttocks.

22 Mrs. Victor testified that defendant did not whip, beat, kick, or hit M.L. the

day before or on the day of his death. She further testified that on the day of

M.L.'s death, M.L. stated that he was tired and could not breathe, so she had one of

her sons call defendant and tell him to come home because there was an

emergency." When defendant arrived home on Aprill, 2008 27 and saw M.L., he

believed M.L. was dehydrated, so he sent one of his sons to buy Pedialyte and ice.

Mrs. Victor also noted that defendant sought medical advice from a doctor on the

internet," and pursuant to the advice received, immediately took M.L. to the

hospital." Mrs. Victor stated that she saw bruises on M.L. 's body, but not to the

extent shown in the autopsy photographs. Mrs. Victor testified that M.L. was

coherent and lucid for a portion of the mile and a half drive to the hospital.

Mrs. Victor explained that she did not remain at the hospital after M.L. was

dropped off at the emergency room because she had to bring Errol, Jr. back horne."

When she returned home, she noticed that some of her children had left, so she

called and instructed them to come back to the house because she was going to

drive back to the hospital. According to Mrs. Victor, while en route to the hospital,

defendant called her and told her that M.L. was dead and that he had been arrested.

Mrs. Victor then returned to the house where she was arrested.

Robert Taylor testified that he attended church with defendant's brother, and

because he became interested in the Victors' case, a meeting was arranged between

himself and Mrs. Victor. During one of the meetings, Mrs. Victor invited Mr.

26 Mrs. Victor testified that M.L. was born with bronchitis, and as a result, was kept in the hospital for a

week following his birth. However, M.L. was never treated for asthma after 2003, according to medical records in evidence, a condition Mrs. Victor claimed he suffered from. 27 In the various statements provided by Mrs. Victor, her testimony differs as to the timing of when her husband arrived home that day. 28 When the police searched the Victors' home, the laptop computer was not at the residence. Mrs. Victor could not explain why it was missing. 29 On cross-examination, Mrs. Victor denied telling the social worker, Carliss Johnson, that she came home and found M.L. unresponsive so she took him to the hospital. 30 The video footage taken from the hospital cameras confirm that Mrs. Victor was at the hospital for two minutes and twenty seconds.

23 Taylor to her house to record a statement she wanted to make for the public. In the

video, Mrs. Victor declared that defendant was not present when she chastised

M.L. Mr. Taylor also testified that Mrs. Victor stated that defendant did not

approve of her whipping the children.

ASSIGNMENT OF ERROR NUMBER FIVE3)

Sufficiency ofthe evidence

Here, defendant assigns as error the sufficiency of the evidence used to

convict him of the second degree murder of his stepson, M.L., while engaged in

the perpetration of the crime of cruelty to a juvenile. He claims that the State

failed to prove the cause ofM.L.'s death. Defendant further contends that the State

relied on the fabricated testimonies of Mrs. Victor's sons Toi, Cordell, and Kevin,

in support of its position that he repeatedly beat M.L. causing his death. He asserts

that their testimonies are in direct conflict with his sons Marcus, Fabian,

Emmanuel, Trent, and Chance's testimonies, which established that defendant was

not home on the day ofM.L.'s death. He further contends that his wife's

testimony taking the blame for chastising M.L. also conflicts with the testimony

brought forth by the State's witnesses. Defendant concludes that, other than the

unreliable testimony of Mrs. Victor's sons, there was no evidence presented that he

ever abused M.L. And, he further avers that the medical evidence was consistent

with his sons' testimonies that Mrs. Victor spanked M.L. and that M.L. had been

seen fighting with Mrs. Victor's other children on the day of his death.

The State argues that the evidence presented was more than sufficient to

convict defendant of second degree murder. The State contends that the testimony

31 When the issues on appeal relate to both the sufficiency of the evidence and one or more trial errors, the reviewing court should first determine the sufficiency of the evidence by considering all of the evidence. State v. Hearo/d, 603 So.2d 731, 734 (La. 1992); State v. Mayeux, 94-105 (La. App. 5 Cir. 6/28/94), 639 So.2d 828,834. If the appellate court determines that the evidence was insufficient, then the defendant is entitled to an acquittal, and no further inquiry as to trial errors is necessary. Therefore, defendant's assigned error concerning the sufficiency of the evidence will be addressed first.

24 of defendant's stepchildren, which was consistent with the medical testimony of

Dr. Benton and Dr. Tracy, led to the reasonable conclusion that defendant was the

person who caused M.L.'s injuries resulting in his death. The State maintains that

in finding defendant guilty of second degree murder, the jury clearly and rationally

rejected defendant's theory of innocence, finding defendant responsible for the

death of M.L. beyond a reasonable doubt.

The appropriate standard of review for determining the sufficiency of the

evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). According to Jackson, the standard 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 beyond a reasonable doubt.

Id. at 319. Under the Jackson standard, a review ofa criminal conviction record

for sufficiency of the evidence does not require the court to ask whether it believes

that the evidence at trial established guilt beyond a reasonable doubt. State v.

Flores, 10-651 (La. App. 5 Cir. 5/24/11), 66 So.3d 1118, 1122.

Rather, the reviewing court must decide, after viewing the evidence in the

light most favorable to the prosecution, whether any rational trier of fact could

have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, supra;

see also State v. Holmes, 98-490 (La. App. 5 Cir. 3/10/99), 735 So.2d 687,690;

State v. Ortiz, 96-1609 (La. 10/21/97),701 So.2d 922,930, cert. denied, 524 U.S.

943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998). It is not the function of the appellate

court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116 (La.

10/16/95),661 So.2d 442,443. The trier of fact shall evaluate credibility, and

when faced with a conflict in testimony, is free to accept or reject, in whole or in

part, the testimony of any witness. State v. Bradley, 03-384 (La. App. 5 Cir.

9/16/03), 858 So.2d 80, 84, writ denied, 03-2745 (La. 2/13/04), 867 So.2d 688.

25 Evidence may be either direct or circumstantial. Circumstantial evidence

consists of proof of collateral facts and circumstances from which the existence of

the main fact can be inferred according to reason and common experience. State v.

Williams, 05-59 (La. App. 5 Cir. 5/31/05),904 So.2d 830, 833. When

circumstantial evidence is used to prove the commission of an offense, La. R.S.

15:438 provides that "assuming every fact to be proved that the evidence tends to

prove, in order to convict, it must exclude every reasonable hypothesis of

innocence." State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738 So.2d 672,675,

writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a separate test from

the Jackson standard but rather provides a helpful basis for determining the

existence of reasonable doubt. Id. All evidence, both direct and circumstantial,

must be sufficient to support the conclusion that the defendant is guilty beyond a

reasonable doubt. Id.

Defendant was found guilty as charged of second degree murder in violation

of La. R.S. 14:30.1(A)(2)(b), which, at the time of the offense," provided that

"[s]econd degree murder is the killing ofa human being: ... [w]hen the offender is

engaged in the perpetration of cruelty to juveniles, even though he has no intent to

kill or to inflict great bodily harm." This section of La. R.S. 14:30.1 contains the

circumstances under which a defendant can be found guilty under the felony

murder rule, which dispenses with the necessity of proving mens rea

accompanying a homicide; the underlying felony supplies the culpable mental

state. State v. Small, 11-2796 (La. 10/16/12), 100 So.3d 797,805. The underlying

felony that defendant was found to have committed was cruelty to a juvenile,

which is defined in La. R.S. 14:93(A)(l) as the "intentional or criminally negligent

32 The Louisiana Supreme Court has consistently held that "the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer." State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520-22.

26 mistreatment or neglect by anyone seventeen years of age or older of any child

under the age of seventeen whereby unjustifiable pain or suffering is caused to said

child."

Thus, in order for the State to prove that defendant was guilty of second

degree murder pursuant to La. R.S. 14:30.1(A)(2)(b), it had to establish either: (1)

that defendant intentionally mistreated or neglected M.L.; or (2) that defendant was

criminally negligent in his mistreatment or neglect ofM.L. The term "intentional"

within the meaning of this statute requires general criminal intent to cause a child

unjustifiable pain and suffering. State v. Cortez, 96-859 (La. App. 3 Cir.

12/18/96),687 So.2d 515,519 (citing State v. Morrison, 582 So.2d 295 (La. App.

1st Cir. 1991)). Mistreatment, as used in this statute, means "abuse." Cortez, 96­

859, 687 So.2d at 519 (citing State v. Comeaux, 319 So.2d 897, 899 (La. 1975)).

Moreover, to be criminally negligent in his mistreatment or neglect of the child, the

defendant must have such disregard for the interest of the child that his conduct

amounted to a gross deviation below the standard of care expected to be

maintained by a reasonably careful person under like circumstances. State v.

Porter, 99-1722 (La. App. 3 Cir. 5/3/00), 761 So.2d 115, 123; see also La. R.S.

14:12.

Generally, the Louisiana Supreme Court has interpreted the felony murder

rule to require that a direct act of a defendant or his accomplice cause the death of

the victim and has refused to hold persons criminally culpable for setting in motion

chains of events that ultimately result in the deaths of others. State v. Myers, 99­

1849 (La. 4/11/00), 760 So.2d 310; State v. Kalathakis, 563 So.2d 228 (La. 1990);

State v. Garner, 115 So.2d 855 (La. 1959).

In the present case, defendant argues that the evidence was insufficient to

convict him of second degree murder while in perpetration of the crime of cruelty

27 to a juvenile because the State failed to prove he had specific intent to kill or cause

great bodily harm, failed to prove the cause of M.L.' s death, and because the

testimony of the State's witnesses who testified regarding their observance of the

crime are untrustworthy, and their testimony was inconsistent with the physical

evidence presented. Based on the evidence presented at trial, however, defendant's

contentions lack merit.

On April 1, 2008, defendant and Mrs. Victor dropped off an unresponsive

eight-year-old boy at the emergency room of River Parishes Hospital. While

defendant remained at the hospital, Mrs. Victor quickly left the premises. Upon

arrival at the hospital, defendant's stepson, M.L., had no heartbeat, his pupils were

fixed and dilated, and he was cold to the touch. Based on his body temperature,

emergency room physician Dr. Morris opined that M.L. had likely been dead for "a

while." Bruises were also observed all over M.L.'s body, concentrated on his

back. In response to a nurse's question to him to determine what had happened to

the child, defendant stated that "we had to discipline him" because he was stealing.

Defendant further stated to both hospital personnel and a law enforcement official

that he would take "full responsibility" for what happened.

Forensic pathologist, Dr. Tracy, performed the autopsy on M.L. He testified

regarding the extensive, widespread bruising that covered M.L.' s body, which

included circular patterned and distinctive "u-shaped" bruise marks. Dr. Tracy

also testified regarding a bruise across M.L.' s neck area, which he opined was

caused by a hard object pressed across M.L. 's windpipe. He explained that such

extensive deep tissue bruising over a large portion of a child's body could cause

death. Thus, Dr. Tracy concluded that the cause ofM.L.'s death could have been

either the result of the extensive, confluent deep bruising which caused

28 cardiovascular death, or by asphyxia through the use of a blunt object pressed

across M.L. 's windpipe, or both. This evidence was uncontroverted.

After reviewing the evidence in this case, Dr. Scott Benton, an expert in the

field of pediatrics and child abuse pediatrics, opined that M.L. died as a

"consequence of injuries that were definitively sustained by physical abuse." He

explained that the patterned bruises observed on M.L.' s body were likely produced

by a cord, a belt, or a thin object and that a child could not inflict such injuries

upon himself. Dr. Benton further testified regarding the defensive wounds seen on

M.L.'s forearm and the restraint marks found on his wrists and upper arms. Dr.

Benton concluded that in his opinion, strong contributors to M.L. 's death were the

severe bruising to his back and torso and/or asphyxia by compression of the neck.

He opined that to a reasonable degree of medical certainty, M.L. suffered

unjustifiable pain and suffering and died as a result of cruelty. The purpose of

presenting the evidence of the painful nature of the injuries suffered by M.L. and

the fact that they were not intlicted accidentally, but instead were intentionally

inflicted, was to negate any claim of accidental injury and to prove the elements of

cruelty to a juvenile.

Additionally, all four of defendant's stepchildren, Toi, Brandon, Cordell,

and Kevin, testified consistently with one another and with the physical evidence

in this case. It was their testimony that defendant beat M.L. with a belt over the

span of two days after learning that M.L. had taken an ice cream without

permission. They recalled the horrific details surrounding the beating, including

defendant's instruction to his older sons to restrain M.L. while defendant

continually beat M.L. while Mrs. Victor watched, with minimum interference. Toi

also recalled the delay in transporting M.L. to the hospital despite the fact that

29 M.L. was not breathing and the instruction given by their mother not to talk to the

police.

Defendant's biological children, Marcus, Emmanuel, and Chance, provided

a different account of the events leading up to M.L. 's death. They all claimed that

their stepmother, Mrs. Victor, whipped M.L. on the day of his death and that their

father was not home at the time. They also maintained that M.L. 's clothes were on

while he was whipped, which was inconsistent with the physical evidence of the

patterned bruising and M.L. 's scraped buttocks. Trent also testified that later that

morning, he went upstairs and observed Brandon and Cordell fighting with M.L.

Lastly, Mrs. Victor admitted to "chastising" M.L. on the day of his death and

maintained that defendant was not present at the time. She further stated that she

observed Toi, Brandon, and Cordell fighting M.L. later that day. It is further

noted, as well, that Mrs. Victor's various statements successively add more details

regarding the fact and extent of the brothers' fighting with M.L., details that were

not mentioned in the first statement, as noted above in this opinion.

Defendant seems to argue in brief that the State failed to prove that he had

specific intent to kill or cause great bodily harm to M.L. However, as noted above,

specific intent is not required to prove second degree murder under the section of

La. R.S. 14:30.1 of which defendant was charged. The term "intentional" within

the meaning of La. R.S. 14:93 requires general criminal intent to cause a child

unjustifiable pain and suffering. The extent of the physical injuries to M.L.'s body

caused by repeated beating over a two-day period supports the jury's reasonable

conclusion that the perpetrator had the intent to cause M.L. pain and suffering

which was unjustified as punishment for the alleged offense of taking an extra ice

cream.

30 The jury, presented with the conflicting testimonies of defendant's

stepchildren and his own biological children, as well as their recorded statements,

chose to believe the State's witnesses over the defense witnesses. The jury's

conclusion regarding the credibility of the witnesses is dependent upon its in-court

observation, and when faced with a conflict in testimony, the jury is free to accept

or reject, in whole or in part, the testimony of any witness. See State v. Alexander,

12-836 (La. App. 5 Cir. 5/23/13),119 So.3d 698,702, writ denied, 13-1981 (La.

3/21/14), 135 So.3d 614; State v. Rowan, 97-21 (La. App. 5 Cir. 4/29/97), 694

So.2d 1052, 1056. Moreover, the jury was presented with the testimony of law

enforcement officials and hospital personnel who stated that defendant took "full

responsibility," noting that M.L. had to be "disciplined." It is the fact-finder who

weighs the respective credibility of the witnesses, and this Court will generally not

second-guess those determinations. See State v. Hughes, 05-0992 (La. 11/29/06),

943 So.2d 1047, 1051. The jury, faced with the physical evidence in this case

coupled with the witness testimony presented by both the State and the defense,

was within its discretion to believe the State's witnesses regarding the severe and

extensive beating committed upon M.L. by defendant and to reject of the defense

testimony that defendant was not at home the morning M.L. died.

Defendant also argues that the State failed to present any evidence that M.L.

was abused. We find that the evidence of the extensive bruising and other wounds

to M.L.'s body was more than sufficient for the jury to conclude that M.L. was

physically abused. Furthermore, defendant's claim that the State failed to prove

the cause ofM.L.'s death is without merit. Dr. Tracy's testimony established that

the extensive confluent bruising on M.L. ' s body and the other wound to M.L.' s

neck could have each caused M.L.'s death, in combination or separately.

31 Accordingly, we find that the evidence, when viewed in the light most

favorable to the State, was sufficient to convince a rational trier of fact, beyond a

reasonable doubt, that defendant inflicted lethal injuries upon M.L. by his

intentional or criminally negligent mistreatment, thus, committing cruelty to a

juvenile." This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER ONE

First Amendment violation -free exercise ofreligion

In this assignment of error, defendant argues that the trial court abused its

discretion in conducting trial on a Saturday, a day which defendant claimed was

his "Sabbath" day, in violation of his right to free exercise of religion under the

First Amendment of the United States Constitution and Article I, § 3 of the

Louisiana Constitution of 1974. Defendant contends that because of his religious

beliefs and the trial court's refusal to adjourn the trial for that day, he did not

participate in the Saturday trial proceedings, a day when the State presented

testimony that was prejudicial to his case. As a collateral consequence of his lack

of participation, defendant claims that his Sixth and Fourteenth Amendment rights

to cross-examine and confront witnesses, to put on a defense, to represent himself,

and his right to a fair trial were thus violated. Defendant avers that the State had

no compelling interest in holding the trial on Saturday and that the trial judge did

nothing to accommodate his right to exercise his religious beliefs. He maintains

the court weighed the jurors' personal obligations and concerns over that of his

33 See State v. Booker, 02-1269 (La. App. I Cir. 2/14/03), 839 So.2d 455, writ denied, 03-1145 (La. 10/31/03), 857 So.2d 476, where the defendant's second degree murder conviction was upheld where the immediate cause of the child's death was hypothermia from being left in a cold room. In addition, the child's weakened physical condition, which was due to malnourishment and Battered Child Syndrome, hastened her death, and medical testimony supported the conclusion that the child was beaten severely, possibly rendered unconscious, tied up, and left in the unheated room. See also the following cases in which a second degree murder conviction has been upheld based on cruelty to ajuvenile, where the defendant committed direct acts of abuse. State v. Tensley, 41,726 (La. App. 2 Cir. 4/4/07), 955 So.2d 227, writ denied, 07-1185 (La. 1217107),969 So.2d 629 (child beaten to death); State v. Miller, 06-0595 (La. App. 3 CiT. 9/27/06), 940 So.2d 864, writ denied, 06-2577 (La. 5/11/07), 955 So.2d 1278; State v. Richthofen, 01-0500 (La. App. 5 Cir. 11/27/01),803 So.2d 171, writ denied, 02-0206 (La. 1/31/03),836 So.2d 57.

32 First Amendment right to exercise the freedom to practice his religion by not

working on "the Sabbath." Accordingly, defendant prays that his conviction be

reversed and his case remanded for a new trial.

The State responds that defendant was previously informed that in an effort

to conclude the lengthy trial, as well as in an effort to elicit testimony from an

otherwise unavailable witness, the trial would continue into Saturday. According

to the State, the trial court took into consideration defendant's objection; however,

based on the extraordinary circumstances of the case, the delay it would cause,

defendant's inability to substantiate his religious claim, and the fact that defendant

did not inform the court of the asserted conflict until the day before the Saturday in

question, the State maintains the trial court did not err in holding court on that day.

Voir dire selection commenced on Tuesday, July 22, 2014. The trial court

stated to all prospective jury panels on July 22 and July 23 that there was a

possibility that trial would continue on Saturday, and asked if jurors had any

problem with that. Defendant, who was present in court, made no objection on

either of those days. It was not until the third day of voir dire, Thursday, July 24,

2014/ 4 that defendant first objected to holding trial on Saturday, noting that he had

heard the judge mention it the day before (July 23), but implied that he had

forgotten to object. When the trial court affirmed that it planned to proceed with

the trial on Saturday, defendant advised the court that he would be unable to

participate due to his religious beliefs, which required the observance of "the

Sabbath" as a day of rest. When asked what religion he practiced, defendant

stated, "we're non-denominational."

The trial court said that it would conduct further research on the issue before

rendering a ruling, noting that the jury put their "lives on hold" for the trial, which

34 The record clearly shows that defendant first objected to Saturday trial on Thursday, July 24, 2014, not Friday, as asserted by the State in brief.

33 included making accommodations to work on Saturday as was cleared with the

jury earlier during the week and not objected to by defendant at that time. The

State further informed the trial court that one of its crucial out-of-state expert

witnesses would be unable to testify after Saturday and would likely be unavailable

until after the State had already completed its case.

Testimony in this case began on Friday, July 25, 2014. After testimony

concluded, defendant "went on record" and again stated that he would not work on

Saturday, his "Sabbath." The judge informed the jury that trial would continue on

the next day, Saturday. Defendant filed a written "ObjectionJExceptionIMotionJ

Notice to the Court (Sabbath)" on Saturday, July 26, 2014, and argued the motion

to the court that morning. 3~ In his motion, defendant argued that he could not

proceed to trial on Saturday, his Sabbath day, because it was a day of "rest"

according to his religious beliefs. Attached to defendant's motion was a

"Certificate of Ordination" issued to defendant by the Reverends of the Spiritual

Sunlight Baptist Association. The certificate contained no mention of specific

tenets, such as the Association's observed Sabbath day. Defendant explained that

although he was ordained in this Baptist Association, his current religious

membership was "non-denominational." Defendant did not identify a particular

church he attended. He averred that he would move for a mistrial if the court

proceeded with the trial without his participation in violation of the equal

protection clause of the Fourteenth Amendment.

Mrs. Victor also spoke, without objection from defendant, stating:

There's, there's an understanding that need to be understand and need to be understood to clarify to everything we speaking. Ain't no religion. It's the faith that we have in God. Simple as that. We never said it was religion. We have the right to responds to that.

3~ This appears to belie defendant's assertion that he could not work on a Saturday.

34 We've been ignored ever since we walked in here. She get misses of time that she wants to get and we act like we in the comer. [sic]

Only thing we follow is the Lord, commandments. Thou shall not, that's what it is, God, not our word. So you is disrespecting God in that way? That's the problem with God. Ifwe've got a problem with us, you got a problem -- I don't care. I we can't separate that. [sic]

The same day, after again listening to the previously made arguments of

defendant and the State, the trial court ruled that trial would be held on Saturday.

In so ruling, the trial court noted that for the first two days of trial, during voir dire,

defendant had failed to object to going forward on Saturday, despite the matter

being specifically addressed with each prospective juror panel in defendant's

presence. The trial judge told defendant that he could participate in trial as he

wished, that she could not force him, but that the trial would go forward on

Saturday.

Defendant again reiterated that he would not participate, and the trial court

permitted him to provide the jury with a one sentence explanation as to why he

would not be participating in the trial that day. The trial court explained to the jury

that it had considered defendant's objections to working on Saturday, and also

factored in the inconvenience to the jurors, court personnel, and justice system as a

whole, in reaching its decision to move forward with the trial that day."

On appeal, defendant asserts that his claim that the trial court abused its

discretion in conducting trial against his protest on the day of his Sabbath is rooted

under the Free Exercise Clause of the First Amendment and Article I, § 3 of the

Louisiana Constitution of 1974.

"It is a well settled principle of constitutional law that a criminal defendant

has the right 'to be present at all stages of the trial where his absence might

36 The court reporter noted in the transcript that on Saturday, July 26, 2014, defendant and co-defendant Mrs. Victor, refused to participate in the trial and "huddled together all day murmuring unintelligibly, Mrs. Victor wearing a napkin on her head the entire day."

35 frustrate the fairness of the proceedings.'" Faretta v. California, 422 U.S. 806,

819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citing Kentucky v. Stincer, 482 U.S.

730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)). This right is derived from the

Confrontation Clause of the Sixth Amendment to the United States Constitution

which states that "[i]n all criminal prosecutions, the accused shall enjoy the right

... to be confronted with the witnesses against him ...." An accused's right to be

present in the courtroom at every stage of the trial is one of the most basic of the

rights guaranteed by the Confrontation Clause. State v. Peralta, 01-149 (La. App.

5 Cir. 1/15/02), 807 So.2d 967,975, writ denied, 02-0541 (La. 1/24/03), 836 So.2d

41 (citing Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136,36 L.Ed. 1011

(1892)); see also La. C.Cr.P. art. 831. This same right is embodied in Article I, §

16 of the Louisiana Constitution of 1974. Peralta, 01-149,807 So.2d at 975

(citing State v. Shank, 448 So.2d 654,657 (La. 1984)). However, the right of

confrontation is not absolute. Peralta, 01-149, 807 So.2d at 976 (citing Illinois v.

Allen, 397 U.S. 337, 90 S.Ct. 1057,25 L.Ed.2d 353 (1970)). It is equally well

established that a defendant may waive this right knowingly and voluntarily. See

Diaz v. United States, 223 U.S. 442,456-58, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In

addition, a waiver may be inferred from a defendant's conduct. See United States

v. Gagnon, 470 U.S. 522,528-29, 105 S.Ct. 1482,84 L.Ed.2d 486 (1985).

Here, there is no question that defendant's decision not to participate in the

Saturday trial proceeding was knowing. The trial judge stated, "we are still going

to court today. If you wish to participate, fine. If you don't, you don't have to. I

can't force you to. But we are going forward with trial." Thus, defendant knew

the consequences of his decision not to participate. Rather, the issue to be

determined is whether defendant's choice not to participate was truly "voluntary."

36 In other words, the issue of the voluntariness of a defendant's decision to absent himself from court proceedings due to religious observance must be tied to the question of whether the First Amendment requires a trial judge to accede to the defendant's desire to engage in the particular exercise of his religion. To frame the issue in terms of the Sixth Amendment's "voluntariness" requirement: if a criminal defendant had a First Amendment right to be excused from attending trial on a particular day, a judge's insistence on convening trial on that day would amount to the sort of "coercion" that would render involuntary the defendant's otherwise intentional decision to absent himself.

Hoyt v. Lewin, 444 F. Supp.2d 258, 276 (S.D.N.Y. 2006).

Accordingly, we examine whether the Free Exercise Clause of the First

Amendment granted defendant the right to "rest" on his Sabbath day rather than

participate in his trial.

"The Free Exercise Clause of the First Amendment, which has been applied

to the states through the Fourteenth Amendment, provides that 'Congress shall

make no law respecting an establishment of religion, or prohibiting the free

exercise thereof. '" Church ofLukumi Babalu Aye, Inc. v. City ofHialeah, 508

U.S. 520,531,113 S.Ct. 2217,124 L.Ed.2d 472 (1993). A similar provision is

contained in Article I, § 8 of the Louisiana Constitution, which provides, "No law

shall be enacted respecting an establishment of religion or prohibiting the free

exercise thereof." The significance of the right to the free exercise of religion is

not diminished by an individual's status as a defendant in a criminal proceeding.

us. v. Fisher, 571 F.Supp. 1236,1238 (S.D.N.Y. 1983). Nonetheless, "not all burdens on religion are unconstitutional. ... The state

may justify a limitation on religious liberty by showing that it is essential to

accomplish an overriding governmental interest." Bob Jones University v. United

States, 461 U.S. 574, 603, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (citations

omitted). When reconciling a First Amendment right's issue with important

government objectives, such as the "efficient, orderly, and fair administration of

37 criminal justice," Fisher, supra at 1241, a court must determine (a) whether the

state's proffered purpose is sufficiently compelling, and (b) whether the manner

chosen to achieve that goal is the least restrictive means for doing so. See United

States v. Lee, 455 U.S. 252, 257-58,102 S.Ct. 1051,71 L.Ed.2d 127 (1982);

Gillette v. United States, 401 U.S. 437, 461-62, 91 S.Ct. 828,28 L.Ed.2d 168

(1971); Braunfieldv. Brown, 366 U.S. 599,603,81 S.Ct. 1144,6 L.Ed.2d 563

(1961); Prince v. Massachusetts, 321 U.S. 158, 166,64 S.Ct. 438, 88 L.Ed. 645

(1944); Cantewellv. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 84 L.Ed.

1213 (1940).

No Louisiana cases address whether a court must honor a criminal

defendant's request that he not be tried on days which he observes his religious

Sabbath. However, federal court cases provide persuasive guiding authority on

this issue.

Several courts have applied the aforementioned two-factor test in the context

of the State's interest in achieving the efficient and orderly administration of

courthouse justice. For example, in Smilow v. United States, 465 F.2d 802 (2d Cir.

1972), vacated and remanded on other grounds, 409 U.S. 944, 93 S.Ct. 268, 34

L.Ed.2d 215 (1972), the Second Circuit upheld a contempt judgment based on a

witness's willful refusal to obey a court order to answer questions posed by a grand

jury. The recalcitrant witness asserted that his free exercise rights entitled him to

refuse to testify since the act of testifying would contravene a Jewish tenet

forbidding him from being an "informer." The Court of Appeals rejected the

argument, holding that the witness's First Amendment claim was outweighed by

the compelling state interest in having the grand jury hear all of the relevant

evidence pertaining to a crime and the narrowly drawn means that were used to

achieve that goal. Id. at 804-05.

38 A similar analysis was employed in Fisher, supra at 1237, when the court

considered the request of one of eight co-defendants that trial be adjourned on

Fridays so that he could attend Muslim services. The court noted that while the

request was made two weeks prior to the start of the trial, the defendant had not

previously requested Fridays off and had been present on four of the previous

eleven Fridays during which pretrial proceedings took place. Id. Furthermore, the

court noted, there were no objections when it had previously announced a five-day­

a-week trial schedule. Id. The court denied the defendant's request because there

were a large number of co-defendants and because of the possibility that the case

could "last weeks, or perhaps months." Id. at 1241. Thus, the court found "a

legitimate and compelling judicial interest -- one based on both efficiency and

fairness to all concerned -- in using all available days of the week for trial of this

case." Id. Furthermore, the court found that "there is no less restrictive alternative

by which it can serve this interest and at the same time accommodate [the

defendant's] religious beliefs." Id.

In State v. Pride, 1 S.W.3d 494 (Mo. App. W.D. 1999), cert. denied, 529

U.S. 1004,120 S.Ct. 1269, 146 L.Ed.2d 219 (2000), the court was informed a few

months prior to trial that the defendant was a Seventh Day Adventist. At the

beginning of voir dire, the court informed the jury panel of the possibility that the

trial would need to be held on Saturday. The defendant's counsel reminded the

trial judge of the defendant's religious beliefs, noting that his Sabbath was from

sundown Friday to sundown Saturday. The court delayed its ruling until it became

clear whether the trial might conclude by sundown on Friday.

By Friday afternoon, the court suspected the case would not be completed by

sundown that day. The trial judge then asked the defendant to take the stand and

testify under oath about his religious beliefs. The defendant testified that he was a

39 Seventh Day Adventist and that his Sabbath was observed from sundown on

Friday until sundown on Saturday and that he could not engage in any secular

activities during his Sabbath. He requested that the court not proceed with the trial

on Saturday so that he could observe his Sabbath.

The trial judge in Pride denied the defendant's motion to adjourn the trial

until the following Monday. In making his decision, the judge weighed the

defendant's desire not to have trial on Saturday with: (1) the fact that the defendant

failed to mention any potential conflict until after the jury had been selected and

after the trial judge had already informed the jury of the potential for a Saturday

trial; and (2) the fact that the trial judge had a "law day" on Monday, a bench trial

on Tuesday, and a jury trial on Wednesday of the following week. Id. at 506-507.

On appeal, in Pride, the defendant argued that the court's refusal to adjourn

the trial until the following week presented him with a "Hobson's choice" in that

he could either: (1) exercise his right to observe his Sabbath by staying at home; or

(2) appear in court on Saturday to exercise his right to be present at his trial.

Ultimately, he appeared in court on Saturday, against his religious beliefs,

contending that it was necessary to his defense. Thus, he argued that the

requirement that he violate his beliefs by appearing at trial was constitutional error

which entitled him to a new trial.

In finding that the trial court did not abuse its discretion in failing to adjourn

court on Saturday, the Pride court found that the trial judge carefully considered

the defendant's concerns and determined nonetheless to hold court on Saturday

because of the defendant's delay in raising the issue and because it was the only

time he could hold court in light of his other scheduled cases. The appellate court

noted the trial court could have reached a different conclusion by resetting his

40 schedule for the following week, yet concluded that the failure to do so did not

constitute an abuse of the trial court's discretion."

A number of cases have also denied a defendant's request for adjournment

on the basis of religious observances based on the posture of the trial. For

example, in Hoyt v. Lewin, supra, the trial court declined to interrupt ongoing jury

deliberations until the following Monday so that the defendant, a practicing

Muslim, could "observe his religious holiday and his First Amendment right." In

denying the defendant's request, the trial court reasoned that a three-day delay

would exacerbate the possibility of a retrial if something were to happen to one of

the jurors. The court also noted that the adjournment would cause the court to

"lose control" of the jury, and "the State's interest in getting a verdict surpassed the

defendant's right to be present at his verdict." The Lewin Court agreed, finding

there to be a compelling government interest in declining to interrupt jury

deliberations, particularly given the approach of a weekend, and further reasoning

that the need to continue deliberations "outweighed the very precious and

obviously sensitive right of a person to exercise his or her religion." See also

People v. Johnson, 295 A.D.2d 106 (1st Dept. 2002), appeal denied, 98 N.Y.2d

769 (2002), where the court upheld the denial of an adjournment request where the

defendant did not make the request until Friday morning. The apparently un­

sequestered jury was deliberating, and the court foresaw problems with postponing

continued deliberations to Monday. The court concluded that "a three-day

adjournment would have substantially jeopardized the State's compelling interest

in insuring a fair trial for both defendant and the People." Id. at 107.

37 While Pride appears to be directly on point to the issue presented in the instant matter, it is important to note that the less restrictive standard applied by the Missouri Court of Appeal followed the United States Supreme Court in City a/Boerne v. Flores, 521 U.S. 507,117 S.Ct. 2157,138 L.Ed.2d 624 (1997), which held that "states need not show a compelling state interest in order to apply neutral, generally applicable laws to religious practices." Boerne, however, was superseded by statute and supplanted by the mandates of the Religious Land Use and Institutionalized Persons Act of2000, codified at 42 U.S.C. §§ 2000cc, et seq., which employs the "compelling state interest" standard.

41 In the present case, the record reflects that the trial judge carefully

considered defendant's concerns as well as his delay in raising this issue, including

his failure to object when the prospective jury was advised numerous times of the

possibility that they would be required to work on Saturday, his lack of a specific

religious affiliation or particular church membership, the unavailability of the

State's key expert witness the following week, and "the justice system as a whole,"

in denying defendant's request not to hold trial on Saturday.

First, the trial court made specific mention of the fact that sixteen jurors had

committed to working on Saturday without objection." It was not until Thursday,

the third day of voir dire, that defendant first raised this issue. As in Fisher, Pride,

and Lewin, supra, although factual differences do exist, a delay in raising the

request that court be adjourned on certain days for religious reasons weighed in

favor of a legitimate and compelling judicial interest in going forward with trial

based on efficiency and fairness.

Moreover, while it has been held improper to inquire into the worthiness of a

defendant's religious beliefs to determine whether the First Amendment affords

them protection, the court may inquire, as a threshold issue, into the sincerity of the

defendant's religious beliefs. See Kaplan v Hess, 694 F.2d 847,851 (U.S. App.

D.C. 1982); Fisher, supra at 1240. See also People v. Johnson, 143 A.D.2d 847

(N.Y.S.2d 1988), where the trial court properly resolved the defendant's First

Amendment claim upon the evidence that the defendant's observance of the

Muslim Sabbath was inconsistent and reflected a lack of sincerity in his belief that

Friday is a holy day when the defendant stated he was "studying to be a Muslim."

38 Defendant disagreed with the trial judge's assertion. However, on the first day oi voir dire, July 22, 2014, the trial court advised the prospective jurors that they would "probably work on Saturdays also." Defendant failed to object at that time. The trial court also advised the new panel of prospective jurors on the second day of voir dire, July 23, 2014, that she would like to work on Saturday, but would entertain working late on Friday as well. Again, defendant failed to object. On the same day, after another new panel of prospective jurors was sworn in, the trial court again advised the new panel that they may be "working on Saturdays," and asked them whether this imposition would cause them to be unable to serve on the jury. Again, defendant failed to object.

42 "Thus the [First] Amendment embraces two concepts, freedom to believe and

freedom to act. The first is absolute but, in the nature of things, the second cannot

be." Cantwell v. Connecticut, 310 U.S. 296, 303-304; United States v. Ballard,

322 U.S. 78, 86,64 S.Ct. 882, 886, 88 L.Ed. 1148, 1153-54 (1944). In the present

case, although the trial court did not specifically find that defendant's beliefs were

insincere, the trial court did take note that when asked what religion defendant

followed, he stated that it was "non-denominational," despite being ordained under

a Baptist association. He stated that his religion dated back four thousand years

and that the Sabbath was always required to be kept holy as a day of rest.

Indeed, the failure of defendant to object for the first two days of trial to

working on Saturday," and his failure to substantiate his claim by identifying a

particular religion, sect, or tradition or a particular church at which he worshipped,

rendered the particular claim self-serving and did not negate the possibility that it

was made in an attempt to obstruct or delay the orderly progress of trial. The

record is replete with numerous statements by defendant, made in pre-trial

proceedings, that the matter would not go to trial. The record is also replete with

other actions by defendant that caused delays in setting the matter for trial, as are

noted below.

Lastly, the trial court and the State's interest in achieving the efficient and

orderly administration of courthouse justice was considered. Sixteen jurors were

empaneled to hear the Victors' case regarding a crime that occurred six years

earlier in 2008, and were met with many obstacles set in place primarily by

defendant until trial eventually commenced in 2014. Moreover, a large concern, as

posed by the State, regarding the adjournment of trial until the following week,

was the unavailability of the State's key out-of-state expert witness.

39 The record as a whole reflects that defendant, throughout these proceedings, freely objected to many things at most hearings, which renders his assertion that he forgot to object on July 23, 2014 suspect.

43 Accordingly, under the specific facts and circumstances of this case, and

considering defendant's conduct in this case as a whole, we find that the trial judge

properly weighed defendant's right to act pursuant to his religious belief with the

State's compelling interest in the orderly progression of trial and properly found

that there was a legitimate compelling judicial interest, based on efficiency and

fairness to all, including defendant, in declining to adjourn trial on Saturday. This

assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Failure to grant motion/or a continuance

In this assignment of error, defendant contends that the failure of the trial

court to grant him a continuance so that counsel of his choice could enroll in the

case was prejudicial and constituted an abuse of discretion. Specifically, defendant

asserts that although he chose to represent himself at trial, he had decided that he

wanted the representation of counsel before trial commenced on July 22, 2014. He

alleges he was forced to proceed to trial without representation when his motion

for a continuance, based upon his new counsel's need to familiarize himself with

the case, was denied. Accordingly, defendant concludes that the trial court abused

its discretion by allowing him to proceed to trial pro se when he had an available

opportunity to retain a qualified attorney to defend his case.

The State responds that during the life of this case, defendant hired and

terminated numerous attorneys. It asserts that defendant's tactics regarding his

representation were dilatory, continually wavering between private representation

and self-representation in an attempt to avoid trial. Accordingly, because the trial

court provided defendant with ample opportunity for representation since the

origination of this case, the State maintains the trial court did not abuse its

44 discretion when it denied defendant's request for a continuance so counsel of his

choosing could enroll on the morning of trial.

The procedural timeline provided, infra, sets forth the enrollment and

termination of defendant's attorneys after the quashing of the amended indictment

and the grand jury's re-indictment of defendant for second degree murder on April

12, 2010, the charge for which defendant was tried and convicted. Throughout this

case, defendant has gone back and forth numerous times between self-

representation and changes of counsel."

April 12, 2010: Defendant indicted on charges of second degree murder.

May 6, 2010: Court orders the appointment of public defender Richard Stricks.

June 15,2010: Defendant files a pro se motion to enroll attorney Morris Reed as counsel of record.

June 18,2010: Attorney Morris Reed files motion to enroll as counsel of record for purposes of defendant's motion to recuse, which is granted by the trial court on June 21,2010.

June 20, 2010: Defendant files a pro se motion to refuse the appointment of the public defender's office, alleging violations to his Sixth and Fourteenth Amendment rights.

October 14,2010: Defendant files a pro se motion to terminate the representation of the public defender's office

40 This time line does not include the procedural history of the case 2008-CR-165 from 2008 when defendant was originally charged with first degree murder. The information regarding defendant's enrollment of various attorneys beginning in 2008 is not contained in this record. However, at an enrollment hearing in this case held on April 18, 2011, the trial judge laid out the procedural history with regards to attorney enrollment from the inception of prosecution in 2008. Specifically, the trial court noted that on April 3,2008, Tregg Wilson represented defendant; on April 22, 2008, Fontella Fountain appeared with Mr. Wilson to represent defendant; on May 27,2008, "Miss Baker" enrolled as counsel for defendant; on November 18,2009, Ernest Jones was enrolled as counsel of record; on March 17,2009, Mr. Jones withdrew as counsel of record and "Mr. Spears" enrolled; on March 30, 2009, Darryl Hickman enrolled to represent defendant; on April 21, 2009, three Florida attorneys, "Mr. Cohen, Mr. Kohnsari, and Mr. Rice", enrolled as defendant's counsel of record; on September 22,2009, Nghana Gauff represented defendant; on November 23, 2009, Lionel Bums enrolled as counsel of record for defendant; on March 23,2010, Mr. Bums filed a motion to withdraw which was denied; on March 29, 2010, defendant objected to Mr. Bums' representation at which time defendant's request to represent himself was granted; on May 13, 2010, the court appointed backup counsel for defendants; on February 1,2011, Mona Joseph was appointed to assist defendant in his representation; however, defendant stated that he had retained Katherine Wilson as his attorney; and on March 4, 2011, defendant terminated Ms. Wilson as counsel of record, choosing again to represent himself. Thus, prior to the filing of the new indictment under which defendant was prosecuted and convicted, defendant had changed counsel thirteen times.

45 alleging ineffective assistance of counsel and requesting to proceed to trial pro se.

October 18,2010: Defendant files a pro se "Objection to 'Pro Se Hearing, '" alleging that his right to self­ representation has been repeatedly violated over the course of several hearings having been held without a ''pro se hearing" but rather with the aid of his unwanted public defender.

A hearing is held after which the trial court determines that defendant is competent to waive his right to counsel, and that he knowingly, intelligently, freely, and voluntarily waived his right, thus, permitting defendant to represent himself in this case. The trial court further appoints attorney Ed Greenlee with the Public Defender's Office to assist defendant as "standby counsel" should defendant require assistance.

November 15,2010: Defendant files a pro se motion to enroll attorney James "Jake" Lemmon, for purpose of a pending bond hearing. Defendant's motion is granted on the same day by the trial court.

November 17, 2010: Defendant files a pro se motion to relieve the services of Jake Lemmon as assistant counsel, requesting that he remain ''pro se" in all proceedings.

Defendant files a pro se motion for substitution of assistance of counsel, requesting that he proceed completely on his own. This request is denied by the trial court, and pursuant to a writ taken by defendant to this Court, defendant's writ application is denied as it related to the trial court's appointment of the public defender as an advisor and standby counsel.

April 18, 2011: Lionel Bums files a motion on behalf of defendant to serve as counsel of record in this matter, which is granted by the trial court, after a hearing, the same day.

July 8, 2011: Lionel Bums files a motion to withdraw as counsel of record, which is denied by the trial court the same day.

August 8, 2011: Lionel Bums files a second motion to withdraw as counsel of record based on defendant's termination of his services. This request is denied by the trial judge, and it is noted that counsel and defendant

46 must be prepared to proceed to trial scheduled to commence the following week."

August 11 and 12, 2011: Attorney Alicia Johnson Butler files a motion to enroll as counsel of record on defendant's behalf.

August 16,2011: Trial set to commence on this date. However, while out on bond, the Victors failed to appear and were not located until April of 20 12 in Georgia. After fighting extradition, the Victors were returned to Louisiana in July of 2012.

December 5, 2012 Minute entry indicates defendant was present in court for a motion to terminate appointment of counsel Lionel Bums. The court granted Mr. Bums' motion to withdraw from the case and additionally questioned defendant that if she were to ask him the same questions about self­ representation would his answers be the same. Defendant stated "yes" and that he did not want the public defender's office to represent him as standby or assistant counsel.

July 17,2013: Motion to enroll as counsel of record filed by Stephen A. Yazbeck.

January 21,2014: A scheduling order is established by the court, setting the trial deadlines, including the trial date of July 22, 2014.

Stephen Yazbeck files a motion to withdraw as counsel of record, which is granted by the trial court the same day. Defendant is handed a copy of the "self representation colloquy" that is substantially similar to the one from the October 18, 2010 hearing, and which was filed into the record. Defendant also refuses appointment of the public defender's office to represent him. Thus, the trial court determines that after having had "several hearings regarding these defendants and multiple changes of counsel ... defendants have substantial knowledge and understanding of court proceedings. The court will allow defendants to represent themselves at this time with the understanding that should they wish to retain counsel, it must be done in a timely manner, not to interfere with the trial schedule issued by the court, and the retention ofcounsel shall not be

41 Defendant took a writ to this Court on the trial court's denial of Mr. Bums' termination. This Court denied his writ on August 11,20 II, finding that "trial in this case is scheduled to commence on Tuesday, August 16, 20 II. The Victors have sought to terminate Mr. Bums, the eighth attorney in this case, eight days before trial, which, in a murder case, is tantamount to the day of tria\." This Court went on to find that defendant's "attempted termination of Mr. Bums is no more than a tactic to delay the trial."

47 cause for a continuance ofthe trial. Counsel will only be permitted to enroll with the understanding that he/she is prepared to comply with all scheduled deadlines, hearings and trial." (Emphasis added)."

On the morning of trial, six months after the trial court set the trial date and

defendant's previous attorney had withdrawn from the case, Tim Yazbeck moved

to enroll as counsel of record, predicated on the granting of a trial continuance.

This action was taken despite the trial court's January 21, 2014 admonishment to

defendant that the retention of new counsel "shall not be cause for a continuance of

the trial." Counsel will only be permitted to enroll with the understanding that

he/she is prepared to comply with all scheduled deadlines, hearing and trial."

The trial judge offered Mr. Yazbeck, instead, the opportunity to serve as

stand-by counsel to the Victors on the condition that the case went on. Mr.

Yazbeck declined the court's offer to assist as standby counsel, stating he would be

unprepared to proceed in a standby capacity without a continuance.

In the present case, there is no evidence in the record that a written motion

for a continuance was filed or that an oral motion was made seven days in advance

of trial, as per La. C.Cr.P. art. 707. Nevertheless, there is a jurisprudential

exception to the requirement for a written motion where the circumstances

producing the motion occur unexpectedly and there is no opportunity to prepare

the motion. See State v. Bartley, 03-1382 (La. App. 5 Cir. 3/30/04), 871 So.2d

563,567, writ denied, 04-1055 (La. 10/1/04),883 So.2d 1006 (citing State v.

Winfrey, 97-427 (La. App. 5 Cir. 10/28/97), 703 So.2d 63, 68, writ denied, 98-264

42 On this day, defendant filed a pleading titled "Notice of Intent and Exception to Proceedings held by Terminated Counsel" wherein he noted that he had terminated Stephen Yazbeck for "proceeding on a course of defense without approval of aggrieved defendant and against our will, choice, organization and dignity of our personal defense" as well as arguing that counsel had "ignored, shut-out and disregarded as intelligent beings having any right to our own decisions" thus "erod[ing] defendants [sic] constitutional, civil, and human rights .... Counsel has interfered with defendants' significant tactical decisions and has practice [sic] SUPREMACY in the manner of century pass [sic] 'STAR CHAMBER and have eroded our faretta [sic] rights ...." 43 The record reflects that a hearing was held on January 21, 2014, but the transcript of that hearing is not included in the appellate record.

48 (La. 6/19/98), 719 So.2d 481 (holding that the defendant had not preserved the

denial of his oral motion for continuance because no unexpected circumstances

arose to prevent the filing of the written motion)); see also State v. Shannon, 10­

580 (La. App. 5 Cir. 2/15/11), 61 So.3d 706, writ denied, 11-0559 (La. 9/30/11),

71 So.3d 283 (where this Court also held that the defendant should have filed a

written motion to continue, but nevertheless reviewed the merits of the defendant's

claim).

The record is devoid of any indication as to when Mr. Tim Yazbeck agreed

to represent defendant. However, based on the withdrawal of defendant's last

attorney, Stephen Yazbeck, Tim Yazbeck's father, six months prior to the

commencement of trial, it appears unlikely that the circumstances producing

defendant's motion occurred unexpectedly. Nevertheless, the merits of

defendant's claim are addressed. See State v. McGee, 04-963 (La. App. 5 Cir.

1/11/05), 894 So.2d 398, 409-10, writ denied, 05-0593 (La. 5/20/05), 902 So.2d

1050; Bartley, supra; Shannon, 10-580,61 So.3d at 714.

According to La. C.Cr.P. art. 712, "[a] motion for continuance, if timely

filed, may be granted, in the discretion of the court, in any case if there is good

ground therefor." The Louisiana Supreme Court has consistently held that the

decision whether to grant or refuse a motion for a continuance rests within the

sound discretion of the trial judge, and a reviewing court will not disturb such a

determination absent a clear abuse of discretion. State v. Davenport, 08-463 (La.

App.5 Cir. 11/25/08),2 So.3d 445,447, writ denied, 09-0158 (La. 10/16/09), 19

So.3d 473 (citing Statev. Manning, 03-1982 (La. 10/19/04),885 So.2d 1044, 1077,

cert. denied, 544 U.S. 967,125 S.Ct. 1745,161 L.Ed.2d 612 (2005)). In addition,

the Louisiana Supreme Court generally declines to reverse convictions even on a

showing of an improper denial of a motion for a continuance absent a showing of

49 specific prejudice. Id. at 2 So.3d at 447. This Court has also recognized that the

denial of a motion for a continuance is not grounds for reversal absent abuse of

discretion and a showing of specific prejudice. Id., citing State v. Bartley, 871

So.2d at 567.

Moreover, while a person accused in a criminal trial generally has the right

to counsel of his choice, a defendant must exercise his right to counsel of his

choice at a reasonable time, in a reasonable manner, and at an appropriate stage of

the proceedings. State v. Reeves, 06-2419 (La. 5/5/09),11 So.3d 1031, 1057, cert.

denied, -- U.S. --, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009); State v. Bridgewater,

00-1529 (La. 1/15/02),823 So.2d 877, cert. denied, 537 U.S. 1227,123 S.Ct. 1266,

154 L.Ed.2d 1089 (2003). There is no constitutional right to make a new choice of

counsel on the very date the trial is to begin, with the attendant necessity of a

continuance and its disrupting implications to the orderly trial of cases. State v.

Leggett, 363 So.2d 434, 436 (La. 1978).

It is further well established that a defendant in a criminal trial cannot, by a

last minute change of counsel, force a postponement. State v. Williams, 00-1850

(La. App. 5 Cir. 4/11/01), 786 So.2d 785, 790-91, writ denied, 01-1432 (La.

4/12/02),812 So.2d 666. In State v. Divine, 98-812 (La. App. 5 Cir. 5/19/99), 738

So.2d 614,616-17, writ denied, 99-2393 (La. 2/4/00), 754 So.2d 222, cert. denied,

530 U.S. 1219, 120 S.Ct. 2227,147 L.Ed.2d 258 (2000), defense counsel orally

moved for a continuance on the day of trial, saying that the defendant had told him

he had hired another lawyer to represent him. The trial court denied the motion,

stating that there was a two-month period from the date of arraignment to trial for

the defendant to retain new counselor handle any other matters he felt appropriate.

Id. at 3, 738 So.2d at 616. This Court could not say the trial court erred in denying

the motion. Id. at 5, 738 So.2d at 617.

50 Here, defendant was initially indicted in 2008, with the last indictment

occurring in April of 20 1O. The record indicates that as of April 2010, defendant

changed, or attempted to change, counsel nine times." Moreover, in January of

2014, the trial court set forth very specific pretrial deadlines, including a July 22,

2014 trial date with the admonition that defendant could retain new counsel,

however, cautioning defendant that the retention of new counsel would not be

cause for a continuance of the trial. Defendant had over four years from the date of

the last indictment to select representation, and over six months from the court's

admonishment.

The grant or denial of a motion to continue and a motion to enroll as counsel

is within the well-founded discretion of the trial court. Davenport, supra; State v.

Ventris, 10-889 (La. App. 5 Cir. 11/15/11), 79 So.3d 1108, writs denied, 13-1532

(La. 4/17/14),138 So.3d 616 and 14-2237 (La. 4/24/15),169 So.3d 355.

Accordingly, we find no abuse of the trial court's discretion in denying defendant's

motion to enroll predicated on a motion to continue the trial, especially when the

proposed new counsel was the ninth change of counsel made by defendant, and at a

time when the trial date had been set six months in advance with defendant's

knowledge that another continuance would not be granted. Considering these

facts, defendant failed to show he was attempting to exercise his right to choose an

attorney at a reasonable time, in a reasonable manner, and at an appropriate stage

of the proceedings. See State v. Burbank, 07-125 (La. App. 5 Cir. 10/30/07),971

So.2d 1173, 1178, writ denied, 07-2287 (La. 4/25/08), 978 So.2d 364.

The record here does not support defendant's contention in his appellate

brief that he was forced to proceed to trial without counselor that he was not

prepared to proceed pro se for trial. To the contrary, the record indicates that

44 This does not include the appointment and termination of standby counselor the changing of counsel prior to the filing of the 2010 indictment, which totaled at least thirteen changes of counsel. See footnote 40, supra.

51 throughout the life of this case, defendant adamantly voiced his desire to represent

himself at all stages despite express warnings by the trial court regarding self­

representation. The above-mentioned timeline illustrates this fact by showing the

self-representation colloquies conducted by the trial court and the numerous

terminations of counsel, stand-by counsel, and court-appointed public defenders by

defendant. At the hearing on October 18, 2010, defendant expressly stated that

both previously retained and appointed counsel had not abided by his and Mrs.

Victor's wishes, allegedly encouraging them to conduct contradictory defenses,

and that they were adamant that they wished to maintain control of their own trial

strategy. Defendant reiterated that position throughout the case. Accordingly, the

trial court did not abuse its discretion in denying defendant's motion to enroll Mr.

Yazbeck as counsel on the date of trial predicated on a continuance of the trial.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Improper allotment ofdefendant's case

In this assignment of error, defendant argues the allotment of his case to

Division "B" of the 40th Judicial District Court following his 2010 indictment was

a violation of his right to due process and equal protection when his original 2008

proceeding was first allotted to Division "A" of said court. He alleges that the

allotment method employed by the State was also contrary to the local rules of the

40th Judicial District Court. He contends that his newly indicted 2010 case should

have remained in Division "A" to protect him from the State's ability to "judge

shop." Defendant claims the irrevocable harm and/or prejudice caused by the

erroneous allotment procedure changed the course of the prosecution for

defendant's entire case. Defendant alleges that the 2010 indictment would have

"never survived in front of Judge Madeline Jasmine in section'A, '" because she

52 knew and understood the case "like no other judge in the parish." Thus, defendant

implies that the State violated his equal protection and due process rights by

purposefully having the case assigned a new number so it could be allotted to a

different judge.

The State responds that the allotment of defendant's case was proper

because it was assigned according to the applicable rules of court, and thus, the

trial court's denial regarding the transfer of defendant's 2010 case to Division "A"

was proper.

As previously noted, supra, on April 15, 2008, defendant was charged by

indictment with one count of first degree murder, in violation of La. R.S. 14:30.

Defendant's case was randomly allotted to Division "A" under case number 2008­

CR-165 of the 40th Judicial District Court. On September 22,2009, both

defendant and co-defendant's charges were amended by indictment to second

degree murder, while engaged in the perpetration of the crime of cruelty to a

juvenile, in violation of La. R.S. 14:30.1. Defendant subsequently filed a motion

to quash the indictment, which was granted by Judge Jasmine on February 4,2010.

Though originally filing a motion for reconsideration and alternatively a notice of

appeal, the State filed a notice of dismissal without prejudice of all pending

charges on April 6, 2010.

Six days later, on April 12, 2010, a newly empaneled grand jury re-indicted

defendant and co-defendant with second degree murder while engaged in the

perpetration of the crime of cruelty to a juvenile, in violation of La. R.S.

14:30.1(A)(2)(b). The case was randomly allotted to Division "B," case number

2010-CR-172 of the 40th Judicial District Court, Judge Mary Hotard Becnel

presiding. Defendant filed an "Objection to 'Allotment' of Case to Division 'B'

and Motion for Transfer to Division of Original Allotment Division 'A,'" on

53 May 17, 2010. The motion to transfer to the originally allotted division was heard

on August 4,2010, and denied with written reasons on August 18,2010. 45

After taking the matter under advisement, the court issued written reasons

for its judgment denying defendant's motion to transfer. In its reasons, the trial

court found that at the time the grand jury returned the April 12, 2010 indictment,

there were no felony cases pending against defendant. Thus, the court found it was

proper to treat the 2010 indictment as a new case by assigning it a new case

number and allotting the case randomly. The trial court further noted that the

random allotment procedure employed by the Clerk of Court was not contrary to

the local rule in Appendix 14.0A of the 40th Judicial District Court, because the

local rule was removed pursuant to an en bane order after which it was determined

that the local rule (which provided for the division of subclasses of felonies) had

no reasonable basis, was too onerous for the clerk's office, and had never been

actually followed.

Additionally, the judge noted that, unlike some district courts that have a

local rule in place regarding the allotment of subsequent indictments arising out of

the same transaction or occurrence to the division of original allotment, the 40th

Judicial District Court has no such local rule. Finding no harm to defendant due to

lack of such a local rule, the trial court considered this matter case-specific in

disagreeing with defendant's argument that a lack of such a rule promoted judge-

shopping.

Thereafter, defendant's counsel filed a timely writ application with this

Court challenging the trial court's ruling. This Court granted review, but denied

relief on February 4,2011, finding "[t]he allotment of the present matter violated

45 Prior to the filing of the motion objecting to the allotment, on May 12,2010, defendant filed a Motion to Recuse all of the judges of the 40 th Judicial District Court. All matters pending in the trial court were stayed pending resolution ofthe motion to recuse, which was heard on August 4,2010, and denied by ajudge ad hoc on August 18, 2010, as noted earlier and below.

54 neither the applicable Rules of Court nor due process. Accordingly, on the

showing made, the writ is denied."

The arguments presented by defendant herein appear to be essentially the

same as those made in his prior writ application. Under the discretionary principle

of "law of the case," an appellate court will generally refuse to reconsider its own

rulings of law on a subsequent appeal in the same case. State v. Burciaga, 05-357

(La. App. 5 Cir. 2/27/06),924 So.2d 1125, 1128; State v. Junior, 542 So.2d 23,27

(La. App. 5 Cir. 1989), writ denied, 546 So.2d 1212 (La. 1989). The principle is

applicable to all decisions of an appellate court, not solely those arising from full

appeal. State v. Johnson, 06-859 (La. App. 5 Cir. 4/11/07), 957 So.2d 833, 840.

One reason for imposition of the doctrine is the avoidance of indefinite re-litigation

of the same issue, but it will not be applied in cases of palpable former error. Id.

Reconsideration is warranted when, in light of a subsequent trial record, it is

apparent that the determination was patently erroneous and produced unjust results.

State v. Davis, 03-488 (La. App. 5 Cir. 11/12/03),861 So.2d 638,641, writ denied,

03-3401 (La. 4/2/04), 869 So.2d 874; In re K.R. W, Jr., 03-1371 (La. App. 5 Cir.

5/26/04), 875 So.2d 903, 905.

Here, defendant has failed to cite to any new facts adduced at trial or

additional jurisprudence tending to indicate that this Court's prior disposition was

patently erroneous and produced an unjust result. However, since prior denial of

supervisory writs does not preclude reconsideration of the issue on appeal, the

merits of defendant's assignment will be addressed. See State v. Castleberry,98­

1388 (La. 4/13/99), 758 So.2d 749, 755, cert. denied, 528 U.S. 893, 120 S.Ct. 220,

145 L.Ed.2d 185 (1999); State v. Cowart, 01-117 (La. App. 5 Cir. 3/26/02), 815

So.2d 275, 290, writ denied, 02-1457 (La. 5/9/03), 843 So.2d 387.

55 In this assignment, defendant contends that when the grand jury re-indicted

him on April 12, 2010, the case should have gone to Judge Jasmine's division

rather than being randomly re-alloted to Judge Becnel's division.

Uniform District Courts Rule 14.1 provides:

(a) Unless a different method is set forth in Appendix 14.1, if a defendant has a felony case pending and previously allotted, any new felony arrest for that defendant shall be allotted to the division to which the pending felony was allotted. This "felonies-following­ felonies" rule also applies to any pending felony arrests for a co­ defendant with a new arrest and billed as a co-defendant.

(b) For purposes of this Rule, a felony case remains pending until any of the following events has occurred:

(1) a bill of information or indictment is filed or amended, reducing the case to a misdemeanor;

(2) the District Attorney's Office enters a nolle prosequi in a case; or

(3) there is an adjudication of guilty by plea or trial.

(Emphasis added.)

In its reasons for judgment, the trial court noted that

[a]ccording to Rule 14.1, the case against the defendants ... assigned to [Judge Jasmine's division] was terminated upon the notice of dismissal filed by the State on April 6, 2010, following the granting of the motion to quash." Therefore, at the time of the indictment returned by the grand jury on April 12, 2010, there were no felony cases pending against the defendants. As such, the court finds it was proper to treat the third indictment against the defendants as a new case by assigning it a new case number and allotting the case by random allotment.

The trial court properly agreed that Rule 14.1 only applies when a defendant

has a felony case pending and previously allotted. Felony cases cease to be

considered pending when the "District Attorney's Office enters a nolle prosequi in

a case." See Uniform District Court Rule 14.1. Here, the State filed a nolle

prosequi on April 6, 2010, six days before defendant was re-indicted by a newly

empaneled grand jury. Thus, Rule 14.1(a) does not apply.

46 Also, in its reasons for judgment, the trial court found that the State's motion to dismiss was actually "superfluous" following the grant of defendant's motion to quash, the latter being sufficient on its own to dismiss the case.

56 Defendant avers that the system of allotment employed promotes "judge

shopping" by the State and that defendant's case would have remained in Judge

Jasmine's division after re-indictment under the local rules of other Louisiana

judicial districts. Defendant cites State v. Simpson, 551 So.2d 1303, 1304 (La.

1989), the seminal Louisiana case dealing with random allotment, in support of his

theory.

In Simpson, the allotment process was one in which, according to the

stipulation of the parties, "the judges [were] chosen by the district attorney's

office." The Louisiana Supreme Court pertinently held that "[t]o meet due process

requirements, capital and other felony cases must be allotted for trial to the various

divisions of the court or to judges assigned criminal court duty, on a random or

rotating basis or under some other procedure adopted by the court which does not

vest the district attorney with power to choose the judge to whom a particular case

is assigned." (Footnotes omitted.) Id.

Also, in State v. Rideau, 01-3146 (La. 11/29/01), 802 So.2d 1280, another

case cited by defendant, the Supreme Court determined that a procedure for

randomly allotting capital cases on a rotating basis until all divisions of the court

had been assigned a capital case did not satisfy Simpson because the district

attorney still retained a direct role, albeit a diminished one, in the allotment

procedure.

In this case, defendant is essentially complaining that his due process rights

were violated because, in the 40th Judicial District, the State "was able to assign

the case a new number to automatically move the case into the judge of choice by

the rule of allotment." However, in this case, there was no violation of the

Simpson rule because defendant has failed to show that the prosecutor had the

power to influence the allotment of defendant's case.

57 And while defendant appears correct in his assertion that some judicial

districts have a rule whereby his case would have been re-assigned to Division "A"

after the filing of a new indictment, defendant cites to no law or jurisprudence (nor

has any jurisprudence been located) indicating that because a majority of Louisiana

judicial districts adhere to a rule, the 40th Judicial District must follow the same

rule."

Defendant also asserts that the allotment of his case was "contrary to the

local rules of the 40th JDC." To the extent that defendant is arguing the allotment

of his case violated the 40th Judicial District Court's former local rule addressing

the system of random allotment of felony cases by subclass, defendant's argument

must fail.

The 40th Judicial District Court's former local rule required the Clerk of

Court to subdivide felonies into various classes before randomly allotting the cases

to the various divisions of court. While defendant's case was never subdivided

prior to random allotment, as Judge Becnel noted in her reasons for judgment,

pursuant to an en bane order, on August 1,2010, the judges of the 40th Judicial

District Court agreed to remove the requirement in Appendix 14.0A of the local

rule that cases be subdivided into classes because "such a system of allotment had

no reasonable basis and was too onerous on the clerk's office." According to the

trial court, the local rule had never been followed. The trial court concluded that

there was no prejudice to defendant and "to now reallot this case according to a

rule that has never been followed and is no longer in effect would be extremely

47 Defendant claims that true bills were returned in three existing 40th Judicial District Court cases: "State v. McGee, 2009-CR-5l5, Div. 'B'; State v. Warren, 2009-CR-554, Div. 'B'; and State v. Stewart, 2009-CR-387, Div. 'C,''' which all kept their same docket numbers and original allotted divisions, in support of his argument that his case was the only one to be singled out and re-allotted to a new division. However, the facts and circumstances surrounding those cases are unknown and do not appear in the record.

58 burdensome to the court and actually promote the 'judge-shopping' of which

defendants complain."

Also, the allotment procedure employed here was not done by numerical

rotation, which would invite the manipulation of allotments." Appendix 14.0A to

District Rule 14.0 clearly states that cases are to be grouped into subclasses and

then randomly allotted to judges of the 40th Judicial District Court. Under the 40th

Judicial District Court's former local rule, there is no requirement that a judge

could not be assigned another subclass of a case until every judge in the judicial

district has been assigned such a case, which would appear to violate due process

by encouraging manipulation of allotments. In the present case, defendant has not

shown that the district attorney could have known which judge defendant's case

would be assigned to because his case was randomly allotted.

Thus, the allotment in this case complied with the Simpson rule that felony

cases must be randomly allotted "or [allotted] under some other procedure adopted

by the court which does not vest the district attorney with power to choose the

judge to whom a particular case is assigned." Simpson, supra. Accordingly, this

ASSIGNMENT OF ERROR NUMBER FOUR

Violation 0/ La. c.er.P. art. 673 after motion/or recusal filed

In this assignment of error, defendant argues that the judges of the 40th

Judicial District Court engaged in a "scheme to illegally subject [him] to a trial

without in personam jurisdiction over [him]." He avers that he submitted prima

facie proof of the judges' inherent bias and established that they were "collectively

48 See State v. Reed, 95-0648 (La. 4/28/95), 653 So.2d 1176, where the Louisiana Supreme Court noted that the allotment procedure at issue was one where homicide and rape cases were randomly allotted to divisions; however, divisions that had been previously allotted homicide and rape cases could not be allotted another homicide or rape case until each division had received one. At that point, the procedure would (presumably) start over again until each division had received a homicide or rape case. The court determined that this procedure violated due process by encouraging manipulation of allotments, the very sort of mischief the Supreme Court sought to end in Simpson, supra.

59 embroiled in an ongoing conspiracy to deprive [him] of protections, substantive

and inalienable rights due [him] by the U.S. Constitution." Defendant asserts that

based on these issues, he filed a motion to recuse the judges of the 40th Judicial

District Court, but that despite the filing of said motion, which he claims should

have immediately stopped any proceedings in the case, the judges continued to act

in violation of La. C.Cr.P. art. 673. Accordingly, defendant maintains that it was

error for the judges to have acted on his case before final consideration of his

motion to recuse was heard. He maintains that this alleged error renders the

judicial actions taken in this case null and void.

Here, defendant does not allege that his motion to recuse the judges of the

40th Judicial District Court was erroneously denied; rather, defendant contends

that the trial court improperly took actions in his case despite his pending recusal

motion in violation of La. C.Cr.P. art. 673. Defendant also argues, in his reply

brief, that the State's assertion that his motion to recuse was filed on May 12,

2010, is erroneous, as he contends it was filed on March 29,2010, thus proving

another instance in which he was denied substantive due process.

La. C.Cr.P. art. 673 provides:

A judge has full power and authority to act, even though a ground for recusation exists, until he is recused, or a motion for his recusation is filed. The judge to whom the motion to recuse is assigned shall have full power and authority to act in the cause pending the disposition of the motion to recuse.

Defendant contends in his reply brief that he filed the motion to recuse on

March 29,2010. The record shows a motion to recuse filed on May 12,2010 was

signed by defendant on March 29,2010. However, it must be remembered that

Judge Jasmine had granted the motion to quash on February 4,2010. Though the

State did not file its motion to dismiss until April 6, 2010, the trial court noted in

its ruling denying the objection to allotment that grant of the State's motion to

60 dismiss was "superfluous" once the motion to quash had been granted ending the

prosecution. Thus, at the alleged filing date of March 29,2010, the judgment

granting the motion to quash had ended the case.

Defendant was again indicted on April 12, 2010. On May 12,2010,

defendant's "Motion for Recusal for all Judges that Sits En Bane in the Fortieth

Judicial District Court for the Parish of St. John the Baptist in Both Civil and

Criminal Matter, and Motion to have Louisiana Supreme Court Appoint Special

Judge to Hear All Pending Trials" signed by defendant on March 29, 2010 was

filed into the record of this proceeding. On May 13, 2010, an en bane order was

issued by the three judges of the 40th Judicial District Court ordering that "Judges

Madeline Jasmine, Mary Hotard Becnel and J. Sterling Snowdy be and are hereby

recused from hearing the recusal in these matters." The order further stated that

"all proceedings are stayed pending the hearing on the recusal" and requested that

the Louisiana Supreme Court appoint a judge ad hoe to hear and preside over the

recusal matter.

On May 21, 2010, defendant filed a "Motion to Immediately have Hearings

or Ex-Parte Order to Reinstate Existing Bonds ... or an Order of Habeas Corpus ...

and to Stay any Order for Recusal hearing of All Judges Prior to Said Above

Reinstatement of Bonds ...." On May 24, 2010, Judge Becnel issued an order

acknowledging the receipt of defendant's Writ of Habeas Corpus, but reminded

defendant that per the May 14, 2010 en bane Order, all proceedings had been

stayed pending the recusal hearing." On May 25,2010, the Louisiana Supreme

Court assigned retired Judge Frank Foil as judge ad hoe of the 40th Judicial

49 Other pro se motions were filed between June 15,2010 and the date of the recusal hearing on July 1, 2010. These motions included a "Motion to Stay Any Order for Recusal Hearing of All Judges ... ," "Motion to Refuse Indictment without Dishonor," "Motion to Dismiss Indictment," "Motion for the Adoption of Pre-Trial and All Other Motions of Named Defendants," "Motion to Refuse Court's Appointment of Public Defendant [sic] Office," "Motion to Stay," "Motion for Reinstatement of Bond ... ," and two motions to quash. No action by Judge Becnel, or any other judge, was taken on these motions prior to the recusal hearing.

61 District Court to preside over defendant's recusal motion. On June 21, 2010,

Judge Foil granted attorney Morris Reed's motion to enroll as counsel of record for

defendant for purposes of the motion to recuse hearing. On July 1,2010, a hearing

was held on defendant's motion to recuse. At the conclusion of the hearing, ad hoe

Judge Foil denied defendant's motion.

Defendant's allegation that actions were taken on his case while his motion

to recuse was pending is not supported by the record. Defendant does not set forth

the alleged "acts" that were performed by the trial court while the motion was

pending, and after a careful review of the record, no such acts can be found. In

fact, all proceedings were explicitly stayed per the May 14, 2010 en bane order,

contrary to defendant's allegations that the judges of the 40th Judicial District

Court acted in the case while the motion to recuse was pending. This assignment

of error is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

Denial ofdefendant's expert witness testimony

In this assignment of error, defendant argues that he was denied his right to

present a defense when the trial court precluded his proposed defense expert

witness, Dr. Velva Boles, from testifying regarding the cause ofM.L.'s death. He

contends that Dr. Boles' testimony could have assisted the defense in the cross­

examination of the State's expert pathologist, provided alternative explanations for

the "physical findings" in this case, and aided in determining whether there was

sufficient evidence to raise the "parental-discipline defense." He maintains that the

State never conclusively established an undisputed cause of death, and that the

preclusion of critical medical testimony of Dr. Boles, which he claims would have

refuted the State's evidence, severely crippled his defense. He notes that Dr. Boles

was previously admitted as an expert witness by Judge Jasmine in a pre-trial bond

62 hearing conducted under the original first degree murder indictment brought

against him. Defendant avers that despite Dr. Boles' roster of qualifications in

areas directly related to the medical issues at stake in this case, she was

erroneously rejected as an expert witness who could have provided testimonial

evidence regarding defendant's innocence. Defendant concludes that the trial court

deprived him of his Fourteenth Amendment right to equal protection when it

denied him the opportunity to utilize Dr. Boles as his expert witness on the grounds

that she was not board certified as a forensic pathologist when other physicians

lacking in such qualifications have been permitted to testify as expert witnesses.

The State responds that the trial court properly ruled that Dr. Boles could not

testify as an expert witness in this case based upon the fact that her medical license

had been revoked by the State of Louisiana on grounds of unprofessional conduct,

having misrepresented herself on numerous occasions before courts of law

regarding her credentials.

Louisiana Code of Evidence art. 702, which controls the admissibility of

expert testimony, provides:

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 reviewing the decision of a trial court in qualifying a witness as an expert,

courts typically place the burden on the.party offering the witness as an expert.

State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, 870, cert. denied, 522 U.S.

935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). The Louisiana Supreme Court has

consistently held that the competency of an expert witness is a question of fact to

be determined within the sound discretion of the trial judge. The trial court's

rulings on the qualifications of expert witnesses will not be disturbed absent an

63 abuse of discretion. State v. Trahan, 576 So.2d 1 (La. 1990); State v. Lewis, 353

So.2d 703 (La. 1977); State v. Gray, 351 So.2d 448 (La. 1977); State v. Madison,

345 So.2d 485 (La. 1977); State v. Marks, 337 So.2d 1177 (La. 1976).

A trial court acts as a gatekeeper to the admissibility of expert testimony.

State v. Foret, 628 So.2d 1116, 1121 (La. 1993). "The objective of that

[gatekeeping] requirement is to ensure the reliability and relevancy of expert

testimony. It is to make certain that an expert, whether basing testimony upon

professional studies or personal experience, employs in the courtroom the same

level of intellectual rigor that characterizes the practice of an expert in the relevant

field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167,143

L.Ed.2d 238 (1999).

Generally, the test of competency of an expert is the expert's knowledge of

the subject about which he is called upon to express an opinion. State v. Ferguson,

09-1422 (La. App. 4 Cir. 12/15/10),54 So.3d 152, 166, writ denied, 11-0135 (La.

6/3/11), 63 So.3d 1008. A combination of specialized training, work experience,

and practical application of the expert's knowledge can combine to establish that

person as an expert. Id. Courts can also consider whether a witness has previously

been qualified as an expert. Craig, supra. Importantly, the refusal of a trial court

to receive expert testimony "will rarely, if ever, provide grounds for reversal." See

State v. Stucke, 419 So.2d 939,944 (La. 1982).

In the instant case, we find no abuse of discretion in the trial court's ruling

that defendant's proposed expert, Dr. Boles, was not qualified to provide expert

testimony in the field of forensic pathology.

Pursuant to defendant's questioning, Dr. Boles testified regarding her

education, experience, and alleged qualifications as a proposed expert witness in

the field of forensic pathology. Dr. Boles was specifically questioned about her

64 pathology experience. She explained that during her medical studies, she received

training in classical and anatomical pathology at the University of Pittsburgh

through her enrollment in the Department of Pathology. Dr. Boles testified that

pursuant to her forensic medicine training, she received a level five Certified

Medical Investigator certification. 50

Dr. Boles testified that she had observed autopsies performed by physicians

in the field of forensic pathology and had worked with "groups to review

autopsies, to review medical records, and provide a written report with respect to

any processes that were performed" at the request of attorneys. Dr. Boles testified

that she received continuing medical education hours, was currently employed as

an independent physician, and was not on staffwith any medical facility." When

questioned as to whether she had testified or been involved as an expert in the

investigation of a first degree murder trial, Dr. Boles testified that she and "several

other persons" "confer[red]" with the prosecution on "matters presented" in a first

degree murder trial in Las Vegas, Nevada. She concluded that she believed her

credentials qualify her as an expert in the fields of forensic pathology and medical

investigation.

During the State's traversal, Dr. Boles was confronted with documentation

concerning the revocation of her medical license. Despite being confronted with

documentation from the Louisiana State Board of Medical Examiners, Dr. Boles

denied any knowledge that her license to practice medicine in Louisiana had been

revoked. She further denied the State's allegation that she had been precluded

from testifying as an expert in the case of Hamilton v. Negi, in the United States

50 Dr. Boles explained that a level five certification pennits her to write a report giving her opinion of the circumstances and events at a crime scene. S! Dr. Boles was also questioned about her medical publications, which appear to have been written on topics unrelated to the instant matter, such as "Senior Citizen Disparity of Care," potable water associated with disasters such as Hurricane Katrina, and a book entitled "Salutary Action" addressing the healthcare industry, pharmaceuticals and the epidemic of obesity in America.

65 District Court for the Western District of Louisiana, on the grounds that she had

been untruthful about her credentials concerning her alleged Ph.D. in pathology."

Dr. Boles also stated that she had no knowledge of ever being sued for malpractice,

and that no disciplinary action had ever been taken against her by the Louisiana

Board of Medical Examiners because she falsely represented that she had

completed a residency at Tulane University in pediatrics.

The State then introduced documentation from the Louisiana Board of

Medical Examiners (the "Board") confirming that on April 20, 2009, a complaint

was investigated by the Board regarding Dr. Boles' untruthfulness in her

application for medical staff privileges at Christus St. Frances Cabrini Hospital in

Alexandria, Louisiana. The Board's investigation disclosed that Dr. Boles had

omitted or provided different years for her date of birth in communications with

the hospital, in her application for licensure with the Board, on her application to

take the "USMLE," on her driver's license, and on her medical school records.

The investigation further disclosed that Dr. Boles attempted to apply for privileges

requiring successful completion of a residency program in Internal Medicine when

52 In the case of Hamilton v. Negi, 2012 U.S. Dist. LEXIS 44409 (W.D. La. 3/15/12), United States Magistrate Judge James Kirk presided over a Daubert hearing to determine whether Dr. Velva Boles could serve as plaintiff's expert witness in the case. During the hearing, Dr. Boles was questioned about her education, training, and experience as an expert witness and the preparation of her report. The magistrate judge concluded that Dr. Boles was unqualified to testify as an expert because she "repeatedly misrepresented her qualifications to employers and courts oflaw." Magistrate Kirk noted that Dr. Boles stated that she had earned degrees that she had not earned and claimed to have testified as an expert witness in trials in which she never participated. He further explained that Dr. Boles testified in other legal matters in which she stated she obtained a Ph.D. in pathology, when she did not possess such credentials. One of these legal matters in which Dr. Boles misrepresented her credentials as a "Ph.D. classical pathologist" was when defendant in the instant matter was first charged with first degree murder: State of Louisiana v. Errol Victor, Case Number 08-165, 40th Judicial District Court, St. John the Baptist Parish. Magistrate Kirk also indicated that Dr. Boles had a history of misrepresenting her qualifications in her applications for medical staff membership and privileges. Also, according to various employment records, Dr. Boles' professional experience had been called into question. In response to a requested evaluation by Christus St. Frances Cabrini Hospital, Tulane Medical Center stated her "basic medical knowledge, professional judgment, sense of responsibility, ethical conduct, competence, skill and ability to work with others are all 'poor. '" Most notably, Magistrate Kirk stated that Dr. Boles had previously misrepresented her experience as an expert witness in two matters, one of which was State ofLouisiana v. Errol Victor, Case Number 08-165. In Hamilton v. Negi, 2012 U.S. Dist. LEXIS 44160,09-860 (W.D. La. 3/29/12), United States District Judge Dee Drell agreed with the recommendations of Magistrate Judge Kirk and granted the defendants' Daubert Motion to exclude the testimony of Dr. Boles as an expert witness and further denied the plaintiffs motion to retain Dr. Boles as an expert witness. The court found that Dr. Boles lacked the qualification as an expert and expressed its "consternation at Velva Boles' apparently blatant use ofmisrepresentation in whatever quest she is on. We cannot discern/rom the record how she was recruited or wound up on Mr. Hamilton's proposed list of wttnesses. Dishonesty has no place in the qualifications 0/ a supposed 'expert.,,, (Emphasis added.)

66 she had not completed such a program. Dr. Boles further reported that she

possessed a specialty in Internal Medicine and Pediatrics having completed a

residency program at Tulane University Medical School in New Orleans,

Louisiana; however it was discovered that she left the program in 1998 prior to

completion.

The Board's investigation confirmed that the filing of a formal

administrative complaint was warranted on charges that Dr. Boles exhibited

unprofessional conduct in violation of La. R.S. 37:1285(A)(13). A formal

complaint was thus filed. One of the bases for the complaint was the finding by

the District Court of the Western District of Louisiana, which excluded the

proposed expert testimony of Dr. Boles in the case of Hamilton v. Negi, case

number 09-CV-0860. 53 The Board reported that the district court found Dr. Boles

had "testified under oath in two other matters that she held a Ph.D. in pathology,

although she testified that she did not have that degree in the Hamilton case. The

court further found [Dr. Boles] had misrepresented her experience as an expert

witness." The Board noted that in the Hamilton case, Dr. Boles denied under oath.

that she had ever been sued for malpractice, when it appeared that she had

knowledge that she had been a named defendant in a lawsuit. She further testified

that she had been accepted as an expert witness in a case in the Eastern District of

Louisiana, when in fact she had not. When reviewing the Hamilton case, it was

further discovered that Dr. Boles did not reveal that she had, at one time, been Mr.

Hamilton's treating physician. The Board found Dr. Boles guilty of unprofessional

conduct, noting Dr. Boles' transgressions to be "particularly egregious." Thus, the

Board issued an opinion that Dr. Boles "shall not serve as a medical expert or

consultantfor the purposes oflitigation for the remainder ofher medical

53 See footnote 52, supra, regarding the detailed findings of the Hamilton case.

67 career." (Emphasis added.) The Board revoked her medical license on April 14,

2014 based on her unprofessional conduct.

At the conclusion of Dr. Boles' testimony regarding her qualifications,

defendant offered Dr. Boles as an expert in the field of forensic medicine. The trial

court denied defendant's request, finding Dr. Boles was not qualified to testify as

an expert in the field of forensic pathology or forensic medicine.

Defendant then proffered the testimony Dr. Boles gave at the preliminary

hearing held on May 29, 2008 before Judge Jasmine under the original indictment

filed against defendant. The transcript from the preliminary hearing indicates that

Dr. Boles testified regarding her qualifications as an expert witness in the field of

pathology. Dr. Boles untruthfully stated that she possessed a Ph.D. in classical

pathology and was board certified as a medical investigator. She was ultimately

accepted, for the first time, as an expert in those fields by Judge Jasmine. The

revocation of Dr. Boles' medical license had not yet occurred at that time.

The qualification of an expert witness rests within the sound discretion of

the trial judge. Trahan, supra. The overwhelming evidence presented to the trial

court regarding Dr. Boles' credentials established her untruthfulness regarding the

field of expertise in which defendant sought to have her qualified as an expert. It

was established that the Louisiana Board of Medical Examiners had revoked Dr.

Boles' medical license for dishonesty based upon false testimony regarding her

credentials in previous cases, as well as in documentation submitted for

employment purposes. In revoking her license, the Board explicitly ordered that

Dr. Boles not testify before any court in Louisiana as an expert witness.

Accordingly, we find that the trial judge did not abuse her discretion in refusing to

allow Dr. Boles to testify as an expert in the present case. This assignment of error

is without merit.

68 ASSIGNMENT OF ERROR NUMBER SEVEN

Violation ofright to a speedy trial

In this assignment of error, defendant argues that the State failed to timely

institute prosecution and commencement of trial, in violation of his statutory and

constitutional right to a speedy trial. Defendant argues that he was denied access

to the court for over five months after he declared his intent to represent himself.

He argues that for the first five months after being arrested on May 4, 2010 on the

third indictment, the court ignored and failed to address all of his pleadings. In

particular, defendant argues that he was not arraigned on the third indictment for

over 120 days, and that the trial court's failure to hold a Faretta" hearing in this

time period denied defendant a speedy trial.

The State in tum argues that defendant's speedy trial rights were not violated

when the length of the delay was minimal, defendant was the direct cause of the

delays, based on the numerous repetitive and frivolous pre-trial motions filed, and

defendant failed to appear for his first scheduled trial after fleeing the State of

Louisiana for nine months. The State contends defendant employed these actions

as dilatory tactics to avoid trial.

There are two separate and distinct bases for a defendant's right to a speedy

trial: a statutory right granted by La. C.Cr.P. art. 701, and a constitutional right

embodied in the Sixth Amendment to the United States Constitution and Article I,

§ 16 of the Louisiana Constitution of 1974. The two are not equivalent. State v.

Cowger, 581 So.2d 283, 285 (La. App. 5th Cir. 1991); State v. Sosa, 446 So.2d 429,

432 (La. App. 4th Cir. 1984), writ denied, 450 So.2d 361 (La. 1984), cert. denied,

469 U.S. 866, 105 S.Ct. 209, 83 L.Ed.2d 140 (1984).

54 Faretta v. California, supra.

69 A statutory speedy trial claim is a pre-trial claim that becomes moot upon

conviction. See State v. Johnson, 622 So.2d 845 (La. App. 4th Cir. 1993). Any

rights under La. C.Cr.P art. 701 become moot after conviction because the remedy

for such a violation is the pre-trial release of the defendant, not a bar to

prosecution. State v. Johnson, 08-1156 (La. App. 5 Cir. 4/28/09), 9 So.3d 1084,

1091, writ denied, 09-1394 (La. 2/26/10), 28 So.3d 268 (citing State v. Cowger,

581 So.2d at 286).

The constitutional right to a speedy trial attaches when an individual

becomes an accused, either by formal indictment or bill of information, or by arrest

and actual restraint. State v. Pleasant, 489 So.2d 1005, 1009 (La. App. 1st Cir.

1986), writ denied, 493 So.2d 1218 (La. 1986). Claims for speedy trial violations

are evaluated under the four-factor test set forth in Barker v. Wingo, 407 U.S. 514,

530-531,92 S.Ct. 2182,2192,33 L.Ed.2d 101 (1972). The considerations in

determining whether a defendant has been deprived of a speedy trial are: (1) the

length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of

his rights; and (4) the actual prejudice to the defendant. The initial inquiry is into

the length of the delay. If the delay is presumptively prejudicial, there will be an

inquiry into the other factors. [d. The peculiar circumstances of the case will

determine the weight to be ascribed to the length of the delay and the reason for the

delay. Cowger, supra at 286; State v. Reaves, 376 So.2d 136, 138 (La. 1979); see

also Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520

(1992). A delay that is acceptable in one case may not be acceptable in another

because the complexity of the case must be considered. Gray v. King, 724 F .2d

1199,1202 (5th Cir. 1984), cert. denied, 469 U.S. 980,105 S.Ct. 381, 83 L.Ed.2d

316 (1984) (citing Barker, 407 U.S. at 531). The manner of proof must also be

considered, as must the gravity of the alleged crime. [d.

70 There is no time limitation upon the institution of prosecution for any crime

for which punishment may be life imprisonment. La. C.Cr.P. art. 571. Defendant

in this matter was charged with and convicted of second degree murder, the

penalty for which is life imprisonment. La. R.S. 14:30.1. Also, where a criminal

prosecution has been timely instituted and then dismissed, a new prosecution for

the same or lesser offense based on the same facts may be instituted within the

time established in Title XVII, Chapter 1 of the Louisiana Code of Criminal

Procedure, or within six months of the date of dismissal, whichever is longer. La.

C.Cr.P. art. 576.

Defendant was originally indicted on charges of first degree murder on April

15, 2008. On September 22, 2009, a grand jury issued an amended indictment

charging defendant with second degree murder. On February 4,2010, the trial

court granted defendant's motion to quash the amended indictment.

After dismissing the charges, on April 12, 2010, a newly empaneled grand

jury returned an indictment charging defendant with second degree murder in

perpetration of cruelty to a juvenile. It is under this indictment that defendant was

convicted. Both the original indictment and the current indictment" were brought

timely according to La. C.Cr.P. arts. 571-572. Thus, the State complied with the

time limitations for institution of prosecution in this matter.

With respect to the issue as to whether the State timely commenced trial, La.

C.Cr.P. art. 578 provides that no trial shall be commenced in felony cases after two

years from the date of institution of prosecution. The Louisiana Supreme Court

has explained that the "statutory periods of limitation 'enforce the accused's right

to a speedy trial and ... prevent the oppression caused by suspending criminal

prosecutions over citizens for indefinite periods of time. '" State v. Romar, 07­

55 The current indictment was brought approximately two months after the amended indictment was quashed.

71 2140 (La. 7/1/08), 985 So.2d 722, 725. The date of institution of prosecution is the

date when the indictment is returned or the bill of information is filed. State v.

Smith, 07-959 (La. App. 5 Cir. 3/11/08), 982 So.2d 831, 834; see also La. C.Cr.P.

art. 934(7).

Once a defendant shows that the State has failed to commence trial within

the time periods specified by the general rule governing time limitations for

commencement of trial, the State bears a heavy burden to demonstrate that either

an interruption or a suspension of the time limit tolled prescription. State v.

Morris, 99-3235 (La. 2/18/00), 755 So.2d 205.

For purposes of the instant analysis, the period of limitation established by

Article 578 shall be interrupted if "[t]he defendant at any time, with the purpose to

avoid detection, apprehension, or prosecution, flees from the state ...." La.

C.Cr.P. art. 579(A)(1). The two-year limitation established by Article 578 shall

commence to run anew from the date the cause of the interruption no longer exists.

La. C.Cr.P. art. 579(B). Moreover, the time limitation for the commencement of

trial is suspended when a defendant files a motion to quash or other "preliminary

pleas." La. C.Cr.P. art. 580. A "preliminary plea" under Article 580 is any

pleading or motion filed by the defense which has the effect of delaying trial. State

v. Brooks, 02-792 (La. 2/14/03), 838 So.2d 778, 782. When a defendant files a

motion to quash or other preliminary plea, the running of the periods of limitation

established by Article 578 shall be suspended until the ruling of the court thereon;

but, in no case shall the State have less than one year after the ruling to commence

trial. Id.

Defendant was indicted for second degree murder in perpetration of cruelty

to a juvenile on April 12, 2010. Thus, barring interruption under La. C.Cr.P. art.

72 579 or suspension under La. C.Cr.P. art. 580 of the time delay, the State had until

April 12, 2012 to commence trial.

The record reveals that arraignment was set for May 3, 2010; however, the

minute entry shows that defendant did not appear. A minute entry from May 6,

2010 shows that arraignment was again set for May 17,2010. It appears that

defendant was not arraigned on the third indictment until August 16, 2010, at

which time he refused to enter a plea, with the trial court entering a plea of not

guilty for him. Defendant fails to show, however, how the delay in arraignment

prejudiced him or affected his speedy trial rights.

Within that time span, the record shows that defendant filed multiple

motions, including a Motion to Recuse the entire 40th Judicial District Court on

May 12,2010, as noted previously in this opinion. All matters in this case were

stayed pending the hearing on that motion, which occurred on July 1,2010.

Accordingly, defendant's assertion that he was prevented access to the court during

this time period is unsupported by the record, as defendant was in fact able to file

many pleadings during this time period, though all rulings were necessarily stayed

until his motion to recuse could be heard and decided. After the recusal motion

was disposed of, the record shows that motion practice continued, with defendant

filing a notice of intent to take writs on at least one trial court ruling, as well as a

defense motion to continue filed on September 16, 2010, which was granted.

On October 18,2010, approximately five months after defendant's arrest on

the third indictment, and after the motion practice noted above, the trial court held

an extensive hearing regarding defendants' desire to represent themselves and to

refuse retained or appointed counsel. In a thorough hearing on the matter,

defendant and Mrs. Victor unequivocally expressed their dissatisfaction with both

prior retained and appointed counsel, stating that they wished to maintain control

73 of their own trial strategy, which prior counsel had not afforded them. At the

conclusion of this hearing, defendant and Mrs. Victor were granted the right to

represent themselves, with the court noting that they retained the right to hire

counsel in the future if they wished. Defendant has failed to show, however, how

the timing of this hearing caused him prejudice, and makes only conclusory

allegations that substantial rights were affected. The record shows, contrary to

defendant's assertions, extensive motion practice by defendant that belies

defendant's assertion that his access to the court was restricted for a five-month

period, or at all.

Defendant's trial was originally scheduled to commence on August 16,

2011; however, defendant failed to appear, having fled Louisiana to the State of

Georgia. Accordingly, there was an interruption of the two-year time limitation set

forth under La. C.Cr.P. art. 578. Thus, the two-year time limitation established by

Article 578 did not start to run anew until defendant was returned to the State of

Louisiana and appeared in court on July 16,2012.56 Accordingly, the State then

had until July 16,2014 to commence trial. However, the time limit for

commencement of trial was further suspended by defendant's filing of numerous

pre-trial motions. Among the numerous motions filed by defendant was a July 17,

2013 motion to quash based on double jeopardy grounds. The trial court denied

defendant's motion to quash on September 18,2013. Thus, the time between July

17,2013 and September 18,2013 was suspended. Additionally, on February 20,

2014, defendant filed a "Motion to Adopt all Motions filed naming above

Defendants on the date of May 13,2011," which the court granted the following

day. Included within the May 13,2011 motions was a "Challenge to the Array of

56 In one ofthe trial court's written reasons for judgment denying defendant's motion to quash based on the expiration of the time limitation for the commencement of trial, the court stated that defendant was returned to the State of Louisiana on July 14,2012.

74 the Grand Jury and Objection to Grand Jury" and "Motion for Change of Venue on

the Basis of Pretrial Publicity." These particular motions were not ruled on until

April 17,2014. Accordingly, the time between February 20,2014 and April 17,

2014 was suspended. See State v. Rome, 93-1221 (La. 1/14/94),630 So.2d 1284

(holding that the filing of a motion to change venue was a preliminary plea that

suspended rather than interrupted prescription under La. C.Cr.P. art. 580).

Also, on May 19,2014, defendant made an oral motion to recuse the trial

judge and Attorney General's Office, which was denied by the trial court the same

day. See State v. Langley, 10-969 (La. App. 3 Cir. 4/6/11), 61 So.3d 747, writ

denied, 11-1226, 78 So.3d 139 (La. 1/20/12), cert. denied, --- U.S. ---, 133 S.Ct.

148, 184 L.Ed.2d 73 (2012); and State v. Vincent, 02-1452 (La. App. 3 Cir.

4/2/03), 843 So.2d 1174 (holding that a motion to recuse the prosecutor is a

preliminary plea suspending time limitations for commencement of trial). Finally,

on July 16,2014, defendant filed a motion to quash asserting that the time

limitations for the institution of prosecution and the commencement of trial had

expired. The trial court denied defendant's motion to quash on the morning of

trial, July 21,2014. Under La. C.Cr.P. art. 580, the State had one year from these

rulings to commence trial. Based on the various suspensions caused by

defendant's motions to quash or other preliminary pleas, the July 22, 2014 trial

date was timely.

Despite the amount of time that passed between the institution of

prosecution and trial, there was constant activity in the case and, as the record

thoroughly documents, many delays were attributable to defendant. Accordingly,

75 ASSIGNMENT OF ERROR NUMBER EIGHT

Violation ofright to confrontation

In this assignment of error, defendant argues his right to confrontation was

violated when he was denied the ability to cross-examine Dr. Christy Montegut,

the coroner who prepared the death certificate in this case.

Dr. Richard Tracy, the pathologist who performed the autopsy on M.L.,

testified that he prepared a report on his findings and forwarded the report to Dr.

Montegut, the local coroner for St. John the Baptist Parish. Dr. Tracy explained

that among the responsibilities of the coroner is the responsibility to issue a death

certificate noting the manner of death. The death certificate issued by Dr.

Montegut and dated May 5, 2008 was entered into evidence by defendant with no

objection. Dr. Montegut was not called as a witness by either the State or the

defense.

The Sixth Amendment to the United States Constitution guarantees an

accused in a criminal prosecution the right to be confronted with the witnesses

against him. The confrontation clause of the Louisiana Constitution specifically

and expressly guarantees the accused the right "to confront and cross-examine the

witnesses against him." La. Const. art. I, § 16; see also State v. Robinson, 01-273

(La. 5/17/02), 817 So.2d 1131, 1135. Confrontation does not only mean the ability

to confront the witnesses physically. Its main and essential purpose is to secure,

for the opponent, the opportunity of cross-examination. Id. Cross-examination is

the principal way to test the believability and truthfulness of the testimony, and it

has traditionally been used to impeach or discredit the witness. Id.

For the first time on appeal, defendant argues that his Sixth Amendment

right to confrontation was violated by his inability to cross-examine the coroner,

Dr. Montegut. First, Dr. Montegut was not called as a witness by the State or by

76 the defense. Defendant could have subpoenaed Dr. Montegut as a witness at trial

but chose not to do so. Second, at no time did defendant raise the issue that he was

denied his right to confrontation by Dr. Montegut's failure to testify; thus, the issue

was not properly preserved for appeal.

To preserve the right to seek appellate review of an alleged trial court error,

a party must state an objection contemporaneously with the occurrence of the

alleged error, as well as the grounds for that objection. See La. C.Cr.P. art. 841;

State v. Smith, 11-638 (La. App. 5 Cir. 3/13/12), 90 So.3d 1114 (citation omitted).

In failing to object at trial, defendant waived the issue for appellate review. See

State v. Draughn, 05-1825 (La. 1/17/07),950 So.2d 583,620-21, cert. denied, 552

U.S. 1012, 128 S.Ct. 537,169 L.Ed.2d 377 (2007); State v. Davis, 06-402 (La.

App. 5 Cir. 11/28/06),947 So.2d 48,58-59, writ denied, 07-0003 (La. 9/14/07),

963 So.2d 996.

ASSIGNMENT OF ERROR NUMBER NINE

Improper composition ofthe Grand Jury

In this assignment of error, defendant argues that "the Parish of St. John,

State of Louisiana, through its public assistance offices, has been violating the

National Voters Right Act of 1993 ("NVRA"), which in tum had a direct impact

on the composition" of the grand jury. Defendant submits that because of the

parish's deliberate violations of the NVRA, he was deprived ofa constitutionally

protected right to a grand jury free from "systemic" discriminatory practices which

had a discriminatory effect upon the composition of the grand jury in this case."

First, defendant's brief contains no facts or argument regarding the

composition of the grand jury empaneled in this case. Without this, it is unknown

57 Specifically, defendant states the following as his assignment of error: "Unconstitutional jury-fixing resulting in discrimination and tainted jury pool requiring disqualification of all jurors (6 th, and 14th Amend) [Motion to Quash and contemporaneous objection on/in the trial record]."

77 how and/or whether the array of the grand jury "had a discriminatory effect upon

the composition of the grand jury" as defendant argues. Moreover, defendant

provides no support for his blanket assertion that the St. John the Baptist Parish

Clerk of Court deliberately violated the NVRA, in tum, producing a grand jury that

had a discriminatory effect.

Second, for the first time on appeal, defendant raises a new ground for

challenging the composition of the grand jury in this case that was not argued

before the trial court. A defendant is limited to the grounds for objection that he

articulated in the trial court, and a new basis for the objection may not be raised for

the first time on appeal." State v. Jackson, 450 So.2d 621 (La. 1984); State v.

Alvarez, 10-925 (La. App. 5 Cir. 6/29/11), 71 So.3d 1079, 1085 (citing La. C.Cr.P.

art. 841(A)).

Having failed to raise the issue regarding the alleged "deprivation of a

constitutionally protected right" due to discriminatory practices by the clerk of

court based on its deliberate violations of the "NVRA of 1993," defendant is

precluded from raising this issue for the first time on appeal. See State v. Evans,

506 So.2d 1283 (La. App. 2nd Cir. 1987), finding that because the defendant made

no objection to the composition of the jury venire, the challenged jurors, or the

jurors who were seated, the defendant could not for the first time on appeal

complain of denial of equal protection rights in the jury selection process. See also

La. C.Cr.P. art. 419, providing that "[a] general venire, grand jury venire, or petit

58 Specifically, on February 20,2014, defendant filed a "Motion to Adopt All Motions Filed Naming Above Defendants on the Date of May 13th, 2011." Included within the adopted motions was a "Challenge to the Array of the Grand Jury and Objection to Grand Jury." Defendant challenged the grand jury on several bases, none of which included the parish's "deliberate violation of the NVRA" effecting an alleged discriminatory selection of potential grand jurors. Likewise, defendant was provided an opportunity to argue his motion on April 10,2014, and to present evidence showing that the grand jury in this case was selected in violation of the law. At the motion hearing, defendant made no argument regarding the composition of the grand jury and did not present any evidence concerning the array of the grand jury. The trial court denied defendant's motion, finding that defendant made no argument and presented no evidence concerning the array of the grand jury. The court further noted that it is the "policy of the Clerk of Court of the Fortieth Judicial District to follow the law as set out in the Louisiana Code of Criminal Procedure for all matters involving the selection of both grand and petit juries," and that there was no reason to believe the clerk of court did not follow the law.

78 jury venire shall not be set aside for any reason unless fraud has been practiced,

some great wrong committed that would work irreparable injury to the defendant,

or unless persons were systemically excluded from the venires solely upon the

basis of race."

ASSIGNMENT OF ERROR NUMBER TEN

State pursued a bad-faith indictment and prosecution against Mr. Errol Victor, Sr., Ls and Mrs. Tonya Victor, Ls. {sic} The prosecution as a whole was contrary to medical evidence and gender driven to the detriment ofMr. Errol Victor {Gender Discriminatory Motivesjl.]" In this assignment of error, defendant contends that the State "rested its

prosecution in total absence of any effort to present a prosecutorial case against

Mrs. Victor." Without providing citations to the record or legal citations in support

of his argument, defendant alleges that Mrs. Victor "was only jailed and kept

incarcerated because of her efforts to render aid to her husband to prove his

innocence." He avers that this case is one of prosecutoriaI misconduct against his

wife for her "activism" on her husband's behalf, as well as a case targeted solely

against him. He concludes that the case against his wife was a gender-based, pro-

female prosecution aimed at "executing a feminist agenda" and that because there

was never any real attempt by the State to prosecute Mrs. Victor, she was

convicted by virtue of her presence in the courtroom. He further argues that this

prosecutorial tactic was designed to ensure the conviction of the male defendant,

himself.

The State argues that defendant's assignment of error is another resuscitation

of several earlier claims made by defendant, including insufficiency of the

evidence. The State further argues that defendant's assertion that this was a

S9 The assignment of error is reproduced verbatim from defendant's brief.

79 gender-based, pro-female prosecution used to ensure the conviction of the male

defendant is unsupported.

Defendant's assigned error fails to reference specific record page numbers

and citations to the authorities on which he relies to support his contentions, in

violation of Rule 2-12.4(A) of the Uniform Rules of the Courts of Appeal.

Nevertheless, defendant lacks standing to raise this issue. Defendant argues

prosecutorial misconduct and "gender discrimination motives," asserting equal

protection and due process violations on behalf of his wife. At the federal level, it

has long been settled that "one may not raise the violation of a third person's

constitutional rights." State v. Owen, 453 So.2d 1202, 1205 (La. 1984).

Also, intertwined with the alleged bad-faith prosecution effected against his

wife, as well as vindictive prosecution against himself, defendant avers that the

verdict in this case was contrary to the law and the evidence, claiming that his

innocence was supported by his sons who were present when Mrs. Victor whipped

M.L. and testified to such. This argument regarding the sufficiency of the

evidence against defendant is addressed above.

ASSIGNMENT OF ERROR NUMBER ELEVEN

Jurisdiction and Status

In this assignment of error, defendant argues the trial court exercised

"fraudulent in personam jurisdiction" over him." Defendant claims that because he

is not a "corporation," under La. R.S. 15:429 he could not be "sued" in criminal

court for "statutory crimes set in place by the legal fiction of Louisiana for the

murder of its corporate commercial property ... M.L." Defendant states that his

denial of corporate jurisdiction would "leave any court 'in want ofjurisdiction'

60 Specifically, defendant states the following as his assignment of error: "When through negative averment ofjurisdiction 'Status' and' Jurisdiction' are placed at issue, the burden shifts to the purported party asserting competent jurisdiction."

80 except the United States Supreme Court, A Special Congressional Committee

and/or the United Nations International Court of Justice, The World Court in The

Hague, Netherlands."

In response, the State asserts that defendant failed to raise this issue before

the trial court. Thus, the State contends that because a challenge to the court's

jurisdiction must take place prior to trial, defendant's claim is untimely.

It appears that defendant assigns as error the lack of personal jurisdiction

over him in this criminal matter. La. C.Cr.P. arts. 16 and 17 recognize the criminal

jurisdiction of courts. The alleged jurisdictional issue raised by defendant for the

first time on appeal has not been preserved for review on appeal. The record

contains no motion or judgment of the trial court regarding the challenged

jurisdiction based on defendant's lack of "corporate status" for this Court to

review. An irregularity or error cannot be availed of after verdict unless it was

objected to at the time of occurrence. Alvarez, supra; State v. Simpkins, 44,197

(La. App. 2 Cir. 5/13/09), 12 So.3d 1021, 1029, writs denied, 09-1229 (La. 2/5/10),

27 So.3d 296 and 09-2009 (La. 3/5/10), 28 So.3d 1004. Thus, this issue is not

properly before the court on appellate review."

ASSIGNMENT OF ERROR NUMBER TWELVE

Defendant complains that he was brought before a court which lacked competent jurisdiction to conduct proceedings against him due to pending judicial district­ wide motion to recuse alljudges ofthe 40th JDC and because defendant denied cojrjporate status. Defendant avers that these proceedings have root in vindictive prosecution because the D.A. and his staffwere political and business enemies ofdefendant and the judicial process was utilize[d] to execute personal retribution against defendant. The case before the court is a complete derivative ofthe twice-dismissed cases: 2008-CR-165; 2010-CR-172, (66175, 66575, 66576, 46420). An resultant acquittalfrom abandonment oflegal appeal, res nova

61 Defendant avers that he and co-defendant filed "DCC" forms to prove that they were not corporations. The record does contain a DCC form filed by defendant, but the record does show that this form was filed in connection with the bail bond proceeding and not for the purpose stated by defendant in brief.

81 violation is claimed by both defendantsj.] [Abajndonment oflegal appeal, res nova violation is claimed by both defendantsj.]"

In this multi-faceted assignment, defendant first argues that the 2010

indictment used to charge and convict him in this case constituted res judicata.

Defendant claims that the State reinstituted charges against him with no new facts

or evidence after the previous dismissal of the 2008 indictment in violation of the

principles of res judicata. Within his res judicata argument, it appears defendant

also re-urges arguments made in several previous assignments of error. He again

alleges that the re-filing of charges against him was a tactical decision made by the

State to obtain a judge of its choosing." Defendant also repeats that the judge to

whom his case was re-allotted after the filing of the new 2010 invalid indictment

lacked jurisdiction to act based on a pending recusal motion." Lastly, he again

challenges the court's in personam jurisdiction over him, claiming that his lack of

"corporate status" rendered the trial court powerless to preside over his case."

Only defendant's non-duplicative argument regarding the alleged res

judicata effect of the 2010 indictment will be addressed, as all others have been

previously addressed in response to defendant's other assigned errors."

On July 7, 2013, defendant filed a motion to quash the indictment on the

basis of double jeopardy." In defendant's motion, it was argued that Judge

Jasmine's granting of his motion to quash the amended 2009 indictment on

February 4, 2010 acted as a final judgment of acquittal, and thus, the re-filing of

the new April 2010 indictment violated the principles of double jeopardy. It was

further argued that the doctrine of collateral estoppel precluded the State from

62 This assignment of error is reproduced essentially verbatim from defendant's brief. 63 This issue was previously addressed in response to defendant's third assignment of error. 64 This issue was previously addressed in response to defendant's fourth assignment of error. 65 This issue was previously addressed in response to defendant's eleventh assignment of error. 66 Again, defendant's assigned error fails to reference specific record page numbers and citations to the authorities on which he relies to support his contention that the 2010 indictment violates the principles of res judicata, as per Rules 2-12.4(A)(9)(a) and 2-12.13 of the Uniform Rules of the Courts of Appeal. 67 A motion to quash is a proper procedural vehicle to obtain a dismissal of a charged offense on the basis that "a trial for the offense charged would constitute double jeopardy." La. C.Cr.P. art. 532(6).

82 prosecuting defendant for murder since Judge Jasmine "resolved the central issue

of whether the victim died of natural causes or was murdered."

The Fifth Amendment's Double Jeopardy Clause protects against successive

prosecutions following acquittal or conviction, as well as multiple punishments for

the same offense. La. Const. art. I, § 15; La. C.Cr.P. art. 591, et seq. The

collateral estoppel component of the Double Jeopardy Clause prohibits the State

from re-litigating an issue of ultimate fact that has been determined by a valid and

final judgment." Ashe v. Swenson, 397 U.S. 436,443, 90 S.Ct. 1189, 1194, 25

L.Ed.2d 469 (1970); State v. Cotton, 00-0850 (La. 1/29/01), 778 So.2d 569, 574,

reh 's granted in part, on other grounds, 00-0850 (La. 4/20/01), 787 So.2d 278. A

fact is considered "ultimate" if it is necessary to a determination of the defendant's

criminal liability. State v. Miller, 571 So.2d 603, 607 (La. 1990); State v. Ingram,

03-1246 (La. App. 5 Cir. 10/12/04), 885 So.2d 714, 716, writ denied, 04-3135 (La.

4/1/05), 897 So.2d 600.

The trial court denied defendant's motion to quash, finding that the State

acted in accordance with Louisiana law by obtaining a new indictment after the

amended indictment was quashed and that there had been no violation of

defendant's Fifth Amendment right against double jeopardy. The trial judge's

ruling on a motion to quash should not be reversed in the absence of a clear abuse

of the trial court's discretion. State v. Love, 00-3347 (La. 5/23/03), 847 So.2d

1198, 1206.

The trial judge did not abuse her discretion in denying the motion to quash.

As previously noted above, defendant's amended indictment was quashed by Judge

68 The doctrines of res judicata and collateral estoppel have been applied almost interchangeably in Louisiana's criminal jurisprudence. Prior to Ashe v. Swenson, Louisiana adopted a theory of res judicata preventing criminal re-prosecution similar in effect to the Ashe holding. State v. Latil, 92 So.2d 63, 69 (La. 1956); see also State v. Didier, 263 So.2d 322, 325 nA (La. 1972). Since the opinion in Ashe, however, it appears the courts have been more inclined to employ the term "collateral estoppel." State v. Duplechin, 05-726 (La. App. 5 Cir. 1/31/06), 922 So.2d 655, 657, writ denied, 06-0475 (La. 9/22/06), 937 So.2d 378.

83 Jasmine with written reasons on February 4,2010. Judge Jasmine determined that

the indictment must be quashed because of the "participation of the St. John the

Baptist Parish Sheriffs Deputy in the grand jury process as a grand juror while

wearing a shirt which openly advertised his employment with an office inherently

aligned with the State." The State filed a notice of dismissal without prejudice of

all pending charges on April 6, 2010. On April 12, 2010, a newly empaneled

grand jury re-indicted defendant and co-defendant.

Here, defendant avers that the evidence presented to the newly empaneled

grand jury was identical to the evidence upon which the prior indictment, quashed

by Judge Jasmine, was based. Thus, because defendant claims that the February 4,

2010 judgment granting the motion to quash was a final judgment, defendant

argues that the State's recourse was to appeal the judgment and that the obtaining

of a new indictment violated his constitutional rights.

As noted by the trial court in its reasons for judgment, when a court sustains

a motion to quash, that court does not acquit the defendant of the charges brought

against him. "[W]hen a motion to quash is sustained, the court may order that the

defendant be held in custody or that his bail be continued for a specified time,

pending the filing of a new indictment." La. C.Cr.P. art. 538.

In the present matter, when Judge Jasmine granted defendant's motion to

quash, the State elected to dismiss the matter (nolle prosequi) and re-file a new

indictment based upon the findings of the newly empaneled grand jury. The State

has the power to dismiss an indictment without the consent of the court. La.

C.Cr.P. art. 691. Such a dismissal does not bar a subsequent prosecution, subject

to two exceptions" set forth pursuant to La. C.Cr.P. art. 693, which are

69 The exceptions to the rule that dismissal of an indictment does not bar a subsequent prosecution are as follows:

84 inapplicable to the present matter. Thus, the State's pursuit of the new indictment,

filed six days after the dismissal of the first indictment," was consistent with the

applicable law.

Moreover, the filing of the 2010 indictment did not violate the principles of

double jeopardy and collateral estoppel because jeopardy did not attach after a

nolle prosequi was entered. Jeopardy does not attach and there is no application of

the constitutional prohibition until the defendant is "put to trial before the trier of

the facts, whether the trier be a jury or a judge." United States v. Jorn, 400 U.S.

470,479,91 S.Ct. 547, 554,27 L.Ed.2d 543 (1971). In a jury trial,jeopardy

attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 36, 98

S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). Here, the indictment was quashed prior to

the empaneling and swearing in of the jury and prior to any testimony of witnesses.

Furthermore, although defendant claims that Judge Jasmine's ruling on his

motion to quash resolved the merits of this case, thus barring "re-adjudication of a

matter judicially settled," defendant's argument is misplaced. The ruling quashing

the indictment was not based on a central issue, but rather was based solely on the

court's finding that a member of the grand jury employed by the St. John the

Baptist Parish Sheriff s Department participated in the proceedings "while wearing

a shirt which openly advertised his employment with an office inherently aligned

with the State." Since this matter was never considered on its merits and did not

reach the critical stages required to place defendant in jeopardy, defendant's

argument in this assignment is without merit.

(1) A dismissal entered without the defendant's consent after the first witness is sworn at the trial on the merits, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed; and (2) A dismissal entered after a city court conviction has been appealed to the district court for a trial de novo, shall operate as an acquittal and bar a subsequent prosecution for the charge dismissed. See La. C.Cr.P. art. 693. 70 "[A] new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer." La. C.Cr.P. art. 576.

85 Defendant also argues that Judge Jasmine had previously made a

determination that the State's evidence, particularly the autopsy report, did not

support a finding that defendant was guilty. Defendant, however, refers to a bond

hearing that took place before Judge Jasmine after the first indictment and prior to

the amended indictment, wherein Judge Jasmine heard testimony from Dr. Velva

Boles, defendant's subsequently discredited expert witness, regarding her

interpretation of the State's evidence at that point in the case, solely to determine

the appropriate bond for defendants. This ruling in 2008 on the motion to set bond

was in no way a determination of defendant's guilt or innocence, and thus has no

res judicata effect.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920,

State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990). This review reveals no errors patent in this case.

CONCLUSION

For the foregoing reasons, defendant's conviction and sentence are affirmed.

AFFIRMED

86 SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H, WICKER JUDE G. GRAVOIS CHIEF DEPUTY CLERK MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ ROBERT M. MURPHY STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY MAY 26. 2016 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

/1 (\ •. -,_7< /) t J i', i i ' "I J ',.e\'\lL;;r;r C/~,JA'Z).J~ /f /' - "

. C~ERiyt/Q. eANDRIEU CLERK OF COURT

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