State v. Bertrand

209 So. 3d 877, 16 La.App. 3 Cir. 659, 2016 La. App. LEXIS 2397
CourtLouisiana Court of Appeal
DecidedDecember 28, 2016
Docket16-659
StatusPublished

This text of 209 So. 3d 877 (State v. Bertrand) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bertrand, 209 So. 3d 877, 16 La.App. 3 Cir. 659, 2016 La. App. LEXIS 2397 (La. Ct. App. 2016).

Opinion

KEATY, Judge.

| defendant, Kerry Bertrand, was charged by bill of indictment with the second degree murder of his twenty-year-old stepdaughter, Skylar Credeur, in violation of La.R.S. 14:30.1. He waived formal arraignment and entered a plea of not guilty. A unanimous jury convicted him of the charged offense, and the trial court imposed a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Defendant appeals. For the following reasons, we affirm Defendant’s conviction.

DISCUSSION

On August 21, 2013, authorities responded to a call that Defendant and the victim were alone in her home after a restraining order had been issued against him. There, they found the victim’s lifeless body in a bathtub with a laptop computer lying across her upper body. Shortly thereafter, Defendant was found hiding in the attic of the home. An autopsy revealed that the victim’s cause of death was drowning with strangulation or attempted strangulation before or during the drowning.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that “[t]he circumstantial evidence adduced at trial was insufficient to support the conviction of second degree murder beyond a reasonable doubt.”

Second degree murder is defined as the “killing of a human being ... [w]hen the offender has a specific intent to Mil or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). Specific intent is defined in La.R.S. 14:10(1) as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” In State v. Thibodeaux, 15-723, pp. 4-6 (La.App. 3 Cir. 4/13/16), 190 So.3d 426, 430-31, this court discussed the standard to be applied in cases where the sufficiency of the evidence is challenged and the case is based on circumstantial evidence:

The supreme court set forth the standard of review for evaluating the sufficiency of the evidence on appeal in State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86, where it held:
The standard of appellate review for a sufficiency of the evidence claim 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 [879]*879the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La. 11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La. 4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.
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The fifth circuit discussed the criteria for reviewing circumstantial evidence in the case of an attempted second degree murder in State v. Riley, 11-673, p. 10 (La.App. 5 Cir. 3/13/12), 90 So.3d 1144, 1149-50, writ denied, 12-855 (La. 9/28/12), 98 So.3d 828, where it held:
“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. However, this requirement does not establish a standard that is separate from the Jackson standard, but instead provides a helpful methodology for determining the |aexistence of reasonable doubt. State v. Lathers, 03-941 (La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To support the conclusion that the defendant is guilty beyond a reasonable doubt, all evidence, both direct and circumstantial, must be sufficient. Id. (citation omitted).
When the trier of fact is confronted by conflicting testimony, the determination of that fact rests solely with that judge or jury, who may accept or reject, in whole or in part, the testimony of any witness. State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ denied, 04-1605 (La. 11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ denied, 01-1660 (La. 4/26/02), 814 So.2d 549. Further, it is not the function of the appellate court to assess the credibility of witnesses or to re-weigh the evidence absent impingement on the fundamental due process of law.

At trial, a number of witnesses testified for the State. Michelle Sarver, a deputy clerk with the Acadia Parish Clerk’s Office, testified that on August 13, 2013, a temporary restraining order was issued ordering Defendant to “stay away from” the victim and her residence located at 140 Victor Road in Rayne, Louisiana. A hearing for a protective order was set for August 28, 2013. A separate temporary restraining order was issued on August 15, 2013, ordering Defendant to stay away from his wife, Alidia Credeur Bertrand, and their four minor children, who lived with the victim. The hearing date for this order was also set for August 28, 2013. Deputy James Landry with the Acadia [880]*880Parish Sheriffs Department testified that he personally served Defendant with the summons for the temporary restraining orders regarding the victim and his wife on August 14, 2013, and on August 15, 2013, respectively.

|4Pr. Mark Dawson, the coroner of Acadia Parish for thirty-two years, testified that he received a call from the Acadia Parish Sheriffs Department on the afternoon of August 21, 2013, requesting that he go to the victim’s home. Upon his arrival, he found the victim deceased in the bathtub. Several officers from the Acadia Parish Sheriffs Department had arrived on the scene before him. Dr. Dawson described the bathroom as being in disarray with a shower curtain and towels on the floor and a laptop computer on the lavatory next to the bathtub. The power cord was attached to the computer and was plugged into the wall.

According to Dr. Dawson, there was no obvious cause of death. On the death certificate, he listed the cause of death as drowning. When asked what his initial thoughts were as to a cause of death, Dr. Dawson responded that electrocution and possible drug overdose were the two things that came to mind. He ordered an autopsy of the body, which indicated the cause of death was drowning. On cross-examination, Dr. Dawson acknowledged that one of the possibilities for the cause of death was accidental electrocution.

Dr.

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Delaware v. Van Arsdall
475 U.S. 673 (Supreme Court, 1986)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Davis v. Washington
547 U.S. 813 (Supreme Court, 2006)
Melendez-Diaz v. Massachusetts
557 U.S. 305 (Supreme Court, 2009)
State v. Lathers
868 So. 2d 881 (Louisiana Court of Appeal, 2004)
State v. Mussall
523 So. 2d 1305 (Supreme Court of Louisiana, 1988)
State v. MacOn
957 So. 2d 1280 (Supreme Court of Louisiana, 2007)
State v. Bailey
875 So. 2d 949 (Louisiana Court of Appeal, 2004)
State v. Addison
788 So. 2d 608 (Louisiana Court of Appeal, 2001)
State v. Silman
663 So. 2d 27 (Supreme Court of Louisiana, 1995)
State v. Welch
760 So. 2d 317 (Supreme Court of Louisiana, 2000)
State v. Kempton
806 So. 2d 718 (Louisiana Court of Appeal, 2001)
State v. Bordenave
678 So. 2d 19 (Supreme Court of Louisiana, 1996)
State v. Davies
350 So. 2d 586 (Supreme Court of Louisiana, 1977)
State of Louisiana v. Vernon Mullins
188 So. 3d 164 (Supreme Court of Louisiana, 2016)
State v. Thibodeaux
190 So. 3d 426 (Louisiana Court of Appeal, 2016)
State v. Riley
90 So. 3d 1144 (Louisiana Court of Appeal, 2012)
Ross Milling Co. v. Giliberti
3 La. App. 5 (Louisiana Court of Appeal, 1925)
Michigan v. Bryant
179 L. Ed. 2d 93 (Supreme Court, 2011)

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Bluebook (online)
209 So. 3d 877, 16 La.App. 3 Cir. 659, 2016 La. App. LEXIS 2397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bertrand-lactapp-2016.