State v. Keelen

670 So. 2d 578, 95 La.App. 4 Cir. 0668, 1996 La. App. LEXIS 354, 1996 WL 87585
CourtLouisiana Court of Appeal
DecidedFebruary 29, 1996
DocketNo. 95-KA-0668
StatusPublished
Cited by4 cases

This text of 670 So. 2d 578 (State v. Keelen) 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. Keelen, 670 So. 2d 578, 95 La.App. 4 Cir. 0668, 1996 La. App. LEXIS 354, 1996 WL 87585 (La. Ct. App. 1996).

Opinions

JiMURRAY, Judge.

Mr. Samuel Keelen appeals his conviction of cruelty to a juvenile, a violation of La.Rev. StatiAnn. § 14:93, for which he has been sentenced as a second felony offender to serve fifteen years at hard labor. He argues that the trial counsel’s failure to prevent the admission of hearsay testimony resulted in a conviction that is otherwise unsupported by the evidence, and that his counsel was ineffective.

FACTS

The State’s evidence established that She-lita Palmer, a two-year-old, suffered severe bums when her feet were placed into scalding hot water and held there for at least one minute during the evening of September 30, 1992.

Dr. William Loe, an expert in the field of pediatric surgery and bum care, testified that Shelita’s deep partial thickness bums had characteristic “stocking” marks indicating that both feet had been dipped in hot water or that she had been forced to stand in the water. In his opinion, it was virtually impossible for these hbums to be the result of an accident. Additionally, Shelita had significant bruising on the left side of her face and her left eye was partially closed by swelling, as though she had been struck in the face.

Detective Generio Sanders testified that after interviewing the victim’s mother and older sister, a photographic line-up was presented to the mother, who identified Mr. Keelen as her children’s caretaker that evening. An arrest warrant was issued, and Mr. Keelen was taken into custody about two weeks later. When recalled during the state’s rebuttal, Detective Sanders added that Mr. Keelen had been seen in the courtyard of Shelita’s residence at about 9:10 p.m. when Shelita’s mother, Ms. Shelita Palmer, returned from an errand.

Out of the presence of the jury, the victim’s four-year-old sister, Jennifer, was found to be a competent witness. Then, over the defense’s objection, she hesitantly and reluctantly testified that her sister Shelita’s feet had been burned in hot water in the tub and that “Sammy” did it. However, when Mr. Keelen was pointed out in the courtroom and Jennifer was asked if that was “Sammy,” she only shrugged her shoulders. On cross-examination, Jennifer affirmed that both “Sammy” and her mother had been with the children that night; that her mother had gone someplace, then Shelita’s feet had been burned; and that “Sammy” had done it.

Derrick Banks, Mr. Keelen’s lifelong friend, testified that the two of them had spent the entire evening, roughly from 7:00 p.m. to midnight, at a club. Although Mr. Banks remembered being with Mr. Keelen on that date, he could not remember anything unusual about the evening that would make it stand out in his memory.

hMr. Keelen testified that Ms. Shelita Palmer was his girlfriend, and admitted he had been at her apartment before he went out with Mr. Banks. However, he denied being in her home during the evening hours. He stated that he was out drinking at the Dryades Street “Club 2001” around 7:30 or 8:00 p.m. and left it around midnight. He first learned of little Shelita’s injuries when he returned to his mother’s apartment from the club, but did not learn that the police were looking for him until he spoke to Ms. Palmer the next day. Mr. Keelen denied either taking care of the children or disciplining them at any time. He explained that he and Ms. Palmer were still in a relationship and that she recently visited him in jail.

ARGUMENT

A review of the record reveals no errors patent.

Mr. Keelen’s only assignment of error is that he was denied due process of law because he received ineffective assistance of counsel. Specifically, Mr. Keelen asserts that his attorney’s failure to make an opening statement and to prevent the admission of hearsay testimony requires reversal of his conviction.

Although a claim of ineffective assistance of counsel is normally raised in an [581]*581application for post-conviction relief, this Court may address the merits of the claim when the record on appeal is sufficient. State v. Seiss, 428 So.2d 444 (La.1983); State v. Dorsey, 94-2142 (La.App. 4th Cir. 9/28/95), 662 So.2d 156. In this instance the record is sufficient, and Mr. Keelen’s entire appeal is based upon the ineffective assistance of counsel claim.

Mr. Keelen first argues that his appointed counsel committed reversible error by failing to make an opening statement. He asserts that it was crucial for counsel to make an opening statement because the subject matter of the case, cruelty to a | juvenile, is highly emotional and the jury would be unduly influenced by the testimony of a four-year-old child. Mr. Keelen also argues that it was crucial for his attorney to mention during his opening statement that Mr. Keel-en had an alibi witness who would testify that Mr. Keelen was someplace else on the night of the crime.

Defense counsel is not obligated to make an opening statement in a non-capital case. La.Code Crim.Proc.Ann. art. 765. In order to prevail on a claim of ineffective assistance of counsel, the defendant must show that the failure of trial counsel to make an opening statement resulted in specific prejudice. State v. Smith, 94-0621 (La.App. 4th Cir. 12/15/94), 647 So.2d 1321; State v. Cheatham, 519 So.2d 188 (La.App. 4th Cir.1987), writ denied, 523 So.2d 228 (La.1988). If an alleged error results from a reasonable strategic decision, it does not establish ineffective assistance of counsel. State v. Brooks, 94-2438 (La.1995), 661 So.2d 1333. Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” State v. Brooks, 505 So.2d 714, 724 (La.), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987).

In the case at bar, the jurors at the conclusion of the voir dire were well aware that the case involved cruelty to a juvenile and that the State intended to present a child as its main witness. In its opening statement, the State discussed the manner in which the child might testify, asking the jurors to hear her out. In closing argument, Mr. Keelen’s counsel noted that a small child could be coached into testifying a certain way and pointed out that Jennifer could repeat the word |5“Sammy” but did not say that Mr. Keelen was “Sammy.” Therefore, no prejudice resulted from counsel’s failure to address these issues in an opening statement.

Mr. Keelen’s argument concerning the importance of establishing his alibi in an opening statement is equally without merit. Mr. Banks was not the most credible of witnesses, so it is plausible that counsel did not want to set up the alibi defense as its sole strategy before the taking of testimony had commenced. Both Mr. Keelen and his friend testified as to Mr. Keelen’s whereabouts on the night of the incident. The jury apparently was not impressed with Mr. Banks’ testimony that he remembered being with Mr. Keelen on the night of the crime, partying as they usually did, but that he could not remember anything special about the evening other than to say the temperature was “pretty cool.” Additionally, Mr. Keelen’s counsel later attempted to cast suspicion on Shelita’s mother as the culprit, both through testimony and in his closing argument.

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Bluebook (online)
670 So. 2d 578, 95 La.App. 4 Cir. 0668, 1996 La. App. LEXIS 354, 1996 WL 87585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-keelen-lactapp-1996.