State of Louisiana v. Matthew James Nolan

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-360

STATE OF LOUISIANA

VERSUS

MATTHEW JAMES NOLAN

**********

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 56353
HONORABLE ROBERT EDWARD BURGESS, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and John B. Scofield*, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Honorable Don M. Burkett
District Attorney
Post Office Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

Anita D. McKeithen
John N. Bokenfohr
McKeithen & Johnson
616 Jordan Street
Shreveport, LA 71101
(318) 222-0244
COUNSEL FOR DEFENDANT/APPELLANT:
Matthew James Nolan

* John B. Scofield participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore

Anna Louise Garcie
Soileau & Garcie
730 San Antonio Avenue
Many, LA 71449
(318) 256-0076
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Matthew James Nolan
Sabine Parish Detention Center
384 Detention Center Road
Many, LA 71449

AMY, Judge.

The defendant was charged with second degree murder following the death of

his infant son. After a bench trial, the defendant was convicted as charged and was

ultimately sentenced to life in prison without benefit of parole, probation, or

suspension of sentence. The defendant now appeals, asserting that the evidence

presented was insufficient to support a conviction and that he was denied effective

assistance of counsel. For the following reasons, we affirm and remand with

instructions to amend the minutes of sentencing.

Factual and Procedural Background

According to the record, shortly before nine o’clock on the morning of June 27,

2002, Detective Bradley Marr of the Sabine Parish Sheriff’s Department was leaving

the detention center in Many, Louisiana, when he received a radio transmission from

dispatch requesting assistance at a Many residence for an infant who was reportedly

not breathing. During the trial in the matter, Detective Marr explained that upon

arriving at the scene, he came upon Amber Leann Koss and the defendant, Matthew

James Nolan, crouched on the living room floor above an infant, C.N., to whom the

defendant appeared to be administering rescue breathing. Detective Marr recalled

that soon after he arrived, paramedics came and began performing CPR on the infant.

According to Detective Marr’s testimony, Ms. Koss—the infant’s mother—asked the

defendant—the infant’s father—what had happened to the child, and the defendant

responded that he had dropped him. The defendant explained to Detective Marr that

he was preparing a bottle for C.N. in the kitchen while holding him, and C.N. slipped

through his arms. The paramedics left to take C.N. to Sabine Parish Hospital, and

Ms. Koss and the defendant followed.

Detective Marr testified that after the paramedics and the infant’s parents had

left for the hospital, he went into the kitchen, where he saw a bottle and nipple but

was unable to discern where the infant had fallen on the floor. He recalled that

although he located milk and formula in the refrigerator, none was on the counter.

He testified that he got on the floor and felt the carpet for spilled milk or formula and

found no wet spots. Similarly, there was no milk spilled on the counter.

Detective Marr stated that he went to see Ms. Koss and the defendant at the

hospital, and Ms. Koss and the defendant agreed to come to the detention center for

questioning. After waiving his Miranda rights at the beginning of his interview, the

defendant told Detective Marr and Detective Jack Stanton that since the birth of C.N.,

he had been staying with the baby and its mother at the home of the child’s maternal

grandfather. He stated that the previous night, he and Ms. Koss had stayed up all

night at home in the living room; she was making posters for her father’s birthday,

and he was playing video games. The defendant said that Ms. Koss was still making

posters when he fell asleep between five-thirty and six o’clock that morning, and he

awoke between nine and nine-thirty because his son, who had fallen asleep on his

chest, was crying. The defendant stated that he got up and took the baby into the

kitchen to feed him, holding the pitcher of formula in his right hand, the bottle in his

left hand, and C.N. in the crook of his left arm. According to the defendant, as he was

filling the bottle, the baby slipped through his arm and fell onto the kitchen floor, a

distance of roughly four and a half feet. He said that it appeared that C.N. hit the

floor with his buttocks and back at the same time. The defendant told detectives that

he immediately attended to his son, who seemed okay except that it appeared that he

was not breathing. He stated that he flipped the baby over and patted him on the back

2

and buttocks in an attempt to induce breathing. The defendant said that he then ran

to the back, where he found Ms. Koss in the shower. He recalled that he told her he

had dropped the baby and it seemed like he wasn’t breathing, and he instructed her

to call 911. The defendant denied that he and Ms. Koss had any visitors the previous

night and averred that neither of them had consumed any alcohol or drugs. When

asked if he and Ms. Koss had had any recent problems, the defendant answered in the

negative. He further indicated that the baby had been very cranky over the past two

to three days and had been spitting up its formula, prompting Ms. Koss to change his

formula. Detective Marr testified at trial that the defendant’s statement was not in

keeping with what he found at the scene. However, he noted that the defendant’s

statements regarding what had happened were consistent.

C.N. was airlifted from Sabine Parish Hospital to Louisiana State University

Medical Center in Shreveport on June 27 for further treatment. Detective Marr stated

at trial that after he received a preliminary report from LSU Medical Center indicating

that C.N. had suffered severe brain trauma due to a non-accidental injury, he began

the process of securing a warrant for the defendant’s arrest. The record reflects that

on June 28, 2002, the defendant was arrested on the charge of second-degree cruelty

to juveniles; the following day, June 29, 2002, C.N. died at LSU Medical Center. A

grand jury indictment was filed on September 26, 2002, alleging that the defendant

committed second degree murder in the death of C.N., in violation of La.R.S. 14:30.1,

further alleging that the act was perpetrated while the defendant was engaged in the

perpetration of cruelty to juveniles, even though he had no intent to kill or to inflict

great bodily harm. The matter was tried by a judge on July 8-9, 2003, after the

defendant waived his right to a jury trial.

3

In support of its case against the defendant, the State called Dr. Lynn Lloyd,

a specialist in pediatric critical care, to testify on its behalf. Dr. Lloyd, C.N.’s treating

physician at LSU Medical Center in Shreveport, testified that when C.N. was

presented for treatment, she noted that he had bulging fontanel (the soft spot on his

head), bruising on the outsides of his arms and around his belly button, and an injury

to the left side of his scrotum. She stated that shortly after C.N. was presented at the

hospital, he began to have seizures, and anti-seizure medication was administered

accordingly. Dr. Lloyd noted that the initial CAT scan taken of C.N.’s head showed

bleeding inside, around, and outside of the brain and also indicated very severe

swelling of the brain.

Dr. Lloyd testified that she spoke to Ms. Koss and to the defendant, who had

followed C.N. to Shreveport, and inquired as to the child’s history. She noted that the

defendant told her that while he was preparing a bottle, the baby fell, landing on its

buttocks and back; he noticed that the baby was not breathing, so he attempted to help

him. Dr. Lloyd said that the parents were aware of the bruising around the child’s

belly button but had not noticed the injury to his scrotum. She further inquired as to

whether anyone had shaken the baby, and the parents indicated that they had not.

Dr. Lloyd opined that the results of the CAT scan were “absolutely not”

consistent with the history given by the defendant. She testified that if C.N. had

fallen from a height of fifty inches, an examining physician would likely see swelling

or bruising where his head hit the floor and possibly bleeding or other associated

problems under that particular area of the head, if any symptoms appeared. Dr. Lloyd

testified that she found no bruising on the child’s head that would suggest that he had

fallen. Dr. Lloyd likewise noted that brain bleeding is possible in a fall, but in C.N.’s

4

case, the CAT scan indicated bleeding throughout the brain, both intercranial and

interparechymal. In addition, she ordered tests to screen for a bleeding disorder,

which came back negative. Dr. Lloyd testified that there was no evidence that would

support the defendant’s claims as to how C.N. was injured.

Dr. Lloyd expressed the opinion that C.N. suffered a brain injury due to non-

accidental trauma—i.e., someone intentionally hurt or shook him. She noted that

C.N.’s injuries were consistent with shaking; moreover, she noted, he sustained

retinal hemorrhaging, which would be extremely unlikely in the event that he had

fallen. She also observed that a fall would not yield the degree of severity of brain

injury suffered by C.N. In addition, she noted that shaking the infant in an attempt

at resuscitation would not produce the particular injuries sustained by C.N. Dr. Lloyd

testified that after C.N. was admitted to LSU Medical Center, his condition steadily

deteriorated until he died.

Dr. Terry Welke, Calcasieu Parish Coroner, also testified on behalf of the State.

Dr. Welke performed the autopsy of C.N. on July 1, 2002, noting the presence of

blood between the dura and the brain on the left side, and he determined the cause of

death to be an intercranial hemorrhage. Like Dr. Lloyd, Dr. Welke noted bulging

fontanels and bilateral retinal hemorrhaging.

Dr. Christa Rodriguez, C.N.’s pediatrician, testified that when she attended to

C.N. shortly after his birth on June 4, 2002, he was suffering from jaundice.

However, Dr. Rodriguez noted that this condition resolved itself, and C.N. was

discharged on June 6, 2002. On June 20, 2002, C.N. was brought in for a routine

check-up, which was performed by another pediatrician in Dr. Rodriguez’s clinic. In

the records of this visit, C.N. was described as healthy, apart from some oral thrush.

5

The State also offered the testimony of Mr. Ernest Rodrigues, a relative of the

Koss family who was building a fence across the street, and Mr. Jerry Koss, C.N.’s

maternal grandfather and the owner of the home in which the defendant, Ms. Koss,

and the baby stayed. Both men arrived at the scene shortly before paramedics, and

both men testified that the defendant stated that he dropped the baby.

Ms. Amber Leann Koss, C.N.’s mother, testified that she and the defendant had

stayed up all night on June 26-27, 2002. She stated that the defendant fell asleep on

the couch shortly after her father left for work at around six o’clock in the morning

on July 27, but she remained awake, working on posters for her father’s birthday. She

testified that later on, when she got up to take a bath, C.N. and the defendant were

asleep on the living room couch, with C.N. on the defendant’s shoulder. Ms. Koss

recalled that while she was in the bathtub, the defendant came in, carrying C.N., who

was crying, and told her that he was going to feed the baby. The defendant then

walked out of the bathroom. Ms. Koss testified that the next thing she knew, the

defendant ran back into the bathroom and told her to call 911. She said that the

defendant told her that he dropped the baby when feeding him or when fixing his

bottle. Ms. Koss said that she thought the defendant was a good father.

The State tendered Dr. Scott Benton as an expert in pediatric forensic medicine.

Dr. Benton stated that he had reviewed the medical records and the Social Services

investigative records concerning C.N.’s injury and death. He then offered a computer

presentation explaining shaken baby syndrome.1 Dr. Benton observed that in infants,

the most prevalent cause of subdural hematomas is the stretching and breaking of

1
While included in the record, a portion of Dr. Benton’s computer presentation is
incompatible with this court’s operating system. A hard copy of a portion of the presentation was,
however, filed into the record. Notwithstanding the fact that the complete presentation was
unavailable for review, the record is otherwise sufficient for this court’s consideration.

6

blood vessels in the brain, the contents of which subsequently leak into the subdural

space. He explained that subdural and subarachnoid hematomas are centripetal force

injuries, adding that acceleration and deceleration forces acting on the brain subject

nerves to the same stress as blood vessels, causing them to break and stretch, as well.

Dr. Benton testified that C.N.’s injuries were not consistent with a four-foot

central linear impact fall and noted that there was no evidence of a linear impact, such

as skin trauma, skull fracture, brain contusion, etc. Dr. Benton explained that among

the different types of head injuries, those resulting from angular acceleration

(centripetal force injuries) are more devastating than those caused by linear impact

forces. He noted that in angular acceleration injuries, the head rotates at high speed

on an axis, the neck, and the hallmark of angular acceleration is subdural and

subarachnoid hemorrhaging in combination with an absence of external head trauma.

Another indicator, he observed, is multilayered retinal hemorrhaging. Dr. Benton

noted that retinal hemorrhaging is not usually associated with linear impact injuries

unless there has been direct trauma to the eyes.

Dr. Benton opined that C.N.’s injuries were consistent with angular

acceleration. In support of his opinion, Dr. Benton offered a summary of his findings,

underscoring the presence of subdural and subarachnoid hemorrhaging and

multilayered retinal hemorrhaging and the absence of external head trauma. He felt

the cause of death was a diffuse axonal injury in which a large part of the left

hemisphere of C.N.’s brain was injured, resulting in cell death, which in turn yielded

swelling. This swelling caused a herniation of the brain, which led to brain death.

Dr. Benton further observed that where a child is not breathing and is unconscious,

as in C.N.’s case, the child is exhibiting signs of a brain stem injury. Finally, he

7

opined that “[w]ith a reasonable medical certainty, this child died of abusive head

trauma and as well manifested prior trauma of likely an abusive etiology that was not

the fatal cause of death.”

Dr. Benton likewise found that the bruising noted on the child’s buttocks was

not consistent with a fall. He explained that because a child’s diaper acts like an

airbag, it is difficult to cause bruising on a child’s buttocks. Dr. Benton found that

these bruises predated the child’s mortal injuries.

The defense presented testimony of a few of the defendant’s friends, as well

as his aunt, who attested to the defendant’s fondness for his son. Those who were

asked said that they never saw the defendant abusing the child.

The defendant testified on his own behalf. He stated that he was twenty-three

years old as of the date of trial, that he received a GED, and that he was a carpenter

by trade. He further stated that he lost his job after the birth of his son because he

wanted to spend more time with the child. The defendant’s testimony repeated the

substance of his June 27, 2002 statement to detectives, viz., that while he was

preparing a bottle of formula, his son, whom he was carrying, slipped from his arm

and fell onto the kitchen floor.

Following the presentation of evidence and closing arguments, the trial judge

ruled that the State had proven the defendant’s guilt as to the charge of second degree

murder beyond reasonable doubt, excluding any reasonable hypothesis of innocence.

The defendant’s motion for a new trial was denied on November 7, 2003. The

defendant waived delays as to sentencing, and, pursuant to La.R.S. 14:30.1(B), the

trial judge imposed a term of life imprisonment without benefit of parole, probation,

or suspension of sentence.

8

The defendant appeals his conviction, asserting that the evidence adduced at

trial was insufficient to support a conviction for second degree murder. The

defendant further claims that he did not receive effective assistance of counsel.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors

patent on the face of the record. We find no such errors. However, our examination

of the record indicates that although the transcript of sentencing reflects the trial

judge’s order that the defendant’s sentence be served without benefit of parole,

probation, or suspension of sentence, the minutes of sentencing do not reflect as such.

Accordingly, we remand the matter to the trial court with instructions to amend the

minutes of sentencing to reflect that the defendant’s sentence was imposed without

benefit of parole, probation, or suspension of sentence.

Sufficiency of Evidence

The defendant’s first argument on appeal is that the evidence adduced at trial

was insufficient to support a conviction for second degree murder. More specifically,

the defendant asserts that the State did not exclude every reasonable hypothesis of

evidence in presenting its case against him. The defendant acknowledges on appeal

that the medical evidence indicting that C.N.’s fatal injuries were caused by “shaken

baby syndrome.” However, he points out that there was evidence that the child could

have died as a result of a seizure or a fall.

In reviewing a defendant’s assertions regarding insufficiency of evidence, an

appellate court, viewing the evidence in a light most favorable to the prosecution,

must determine whether any rational trier of fact could have concluded that the

9

essential elements of the crime were proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Brown, 02-1922 (La. 5/20/03),

846 So.2d 715; State v. Captville, 448 So.2d 676, 678 (La.1984). Moreover, as in the

instant matter, when circumstantial evidence provides the basis for the conviction, La.

R.S. 15:438 dictates that such evidence must exclude every reasonable hypothesis of

innocence. Brown, 846 So.2d 715.

We note that, with regard to arguments concerning sufficiency of evidence,

La.Code Crim.P. art. 821 provides, in pertinent part, that:

A. The defendant may move for a post verdict judgment of
acquittal following the verdict. A motion for a post verdict judgment of
acquittal must be made and disposed of before sentence.

B. A post verdict judgment of acquittal shall be granted only if the
court finds that the evidence, viewed in a light most favorable to the
State, does not reasonably permit a finding of guilty.

The record of the proceedings below does not indicate that the defendant filed a

motion for post-verdict judgment of acquittal pursuant to La.Code Crim.P. art. 821;

nevertheless, despite the absence of such a motion, we will consider his arguments

pertaining to sufficiency of the evidence. State v. Hampton, 38,107 (La.App. 2 Cir.

1/28/04), 865 So.2d 284; see also State v. Washington, 421 So.2d 887 (La.1982).

The defendant was convicted of second degree murder in the death of C.N. In

this respect, La.R.S. 14:30.1(A) provides, in relevant part, that “[s]econd degree

murder is the killing of a human being: [. . .] (2)(b) When 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.” Cruelty to juveniles is defined in La.R.S. 14:93(A) as “the

intentional or criminally negligent mistreatment or neglect, by anyone over the age

of seventeen, of any child under the age of seventeen whereby unjustifiable pain or

10

suffering is caused to said child.” In turn, La.R.S. 14:12 indicates that criminal

negligence occurs “when, although neither specific nor general criminal intent is

present, there is such disregard of the interest of others that the offender’s conduct

amounts to a gross deviation below the standard of care expected to be maintained by

a reasonably careful man under like circumstances.” In State v. Richthofen, 01-500

(La.App. 5 Cir. 11/27/01), 803 So.2d 171, the fifth circuit described the conduct

punishable under La.R.S. 14:12 as disregard for a child’s interest such that the

conduct “amount[s] to a gross deviation below the standard of care expected to be

maintained by a reasonably careful person under like circumstances.” The Louisiana

Supreme Court has explained that: “Unlike general or specific criminal intent,

criminal negligence is essentially negative. Rather than requiring the accused intend

some consequence of his actions, criminal negligence is found from the accused’s

gross disregard for the consequences of his actions.” State v. Martin, 539 So.2d

1235, 1238 (La.1989). Louisiana Revised Statutes 14:30.1(B) provides that a

defendant convicted of second degree murder shall be imprisoned for life without

benefit of parole, probation, or suspension of sentence.

In the case sub judice, because the defendant was the only eyewitness to the

events which caused C.N.’s death, and because the defendant consistently testified

that he accidentally dropped the child, the State was forced to rely heavily upon

medical evidence in seeking a conviction. Based upon our review of the record, we

find that the evidence offered by the State was sufficient to support the defendant’s

conviction for second degree murder as charged in the indictment.

The defendant posits on appeal that C.N. could have died as a result of

seizures. We note that this argument was not presented below; moreover, the State’s

11

medical evidence, as outlined above, establishes that C.N. died as a result of abusive

head trauma, specifically, from being shaken.

The defendant further contends that the testimonies of Drs. Lloyd and Benton

were contradictory regarding the nature of C.N.’s injuries. Dr. Benton, the defendant

notes, stated that as an immediate consequence of his injuries, C.N. would not have

been able to cry. However, Dr. Lloyd testified that upon C.N.’s presentation at LSU

Medical Center, he was trying to cry and was breathing intermittently.

Our review of the record indicates that both Dr. Benton and Dr. Lloyd

concluded that C.N. died as a result of injuries sustained when he was deliberately

shaken. Likewise, Dr. Lloyd testified that the child’s injuries would have produced

such symptoms immediately. Accordingly, the defendant’s argument in this respect

is not supported by the record. Moreover, with regard to the defendant’s claims that

C.N. could have died as a result of seizures, there is no evidence that would suggest

that the seizures that C.N. suffered upon arrival to LSU Medical Center derived from

anything but the neurological damage caused by the fatal injury. There is no evidence

that indicates that C.N. suffered from seizures prior to June 27, 2002, and the

testimony of his pediatrician was devoid of any references to neurological

abnormalities.

Furthermore, although the CAT scan of C.N.’s brain indicates the presence of

older blood, thereby suggesting that C.N. sustained a head injury that predated the

June 27, 2002 injury, and although Dr. Lloyd testified that this prior injury could not

be ruled out as a factor that contributed to C.N.’s death, we note that in presenting its

case, the State is “not required to prove that [the defendant’s] violent act [...] was the

sole cause of death, but only that it hastened or clearly contributed to the child’s

12

death.” State v. Obney, 99-592, p. 9 (La.App. 3 Cir. 8/11/99), 746 So.2d 24, 29, writ

denied, 99-2667 (La. 5/5/00), 760 So.2d 1190. (Citations omitted.) (Emphasis in

original.) We find that the evidence detailed above establishes beyond a reasonable

doubt that the defendant’s actions clearly contributed to C.N.’s death.

Based upon our examination of the evidence adduced at trial, in a light most

favorable to the prosecution, we conclude that the State proved the defendant’s guilt

beyond a reasonable doubt, excluding every reasonable hypothesis of innocence.

Accordingly, this assignment is without merit.

Ineffective Assistance of Counsel

In his second assignment of error, the defendant contends that he was denied

effective assistance of counsel, asserting that trial counsel failed to provide expert

testimony on his behalf and failed to properly cross-examine the State’s witnesses.

The defendant concedes that his argument in this respect is appropriately addressed

through post-conviction relief; in raising this assertion before this court, the

defendant merely seeks to preserve an ineffective-assistance-of-counsel claim.

Accordingly, this assignment of error presents nothing for our review at this time, and

it is not properly before this court.

DECREE

For the foregoing reasons, the conviction of the defendant, Matthew James

Nolan, is affirmed. We remand with instructions to the trial court to amend the

minutes of sentencing to reflect that the term of imprisonment was imposed without

benefit of parole, probation, or suspension of sentence.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

13