State of Louisiana v. Katie Savoy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 08-716

STATE OF LOUISIANA

VERSUS

KATIE SAVOY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 110725
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

James David Caldwell
District Attorney - Sixth Judicial District Court
P. O. Box 1389
Tallulah, La 71282
Counsel for Plaintiff/Appellee:
State of Louisiana

Jason Wayne Robideaux
Attorney at Law
1313 Lafayette Street
Lafayette, LA 70501
(337) 291-9444
Counsel for Defendant/Appellant:
Katie Savoy

EZELL, JUDGE.

On April 19, 2006, a Lafayette Parish grand jury found a true bill on an

indictment charging Defendant, Katie S. Savoy, with manslaughter, a violation of

La.R.S. 14:31. On April 25, the grand jury found a true bill on an amended

indictment against Defendant, bearing the same charge for the same incident.1 On

July 27, 2007, the State filed an answer to Defendant’s motion for a bill of particulars,

noting that the prosecution was based on La.R.S. 14:31(A)(2). That portion of the

manslaughter statute proscribes homicides committed without the intent to kill or

inflict great bodily harm, when committed pursuant to a felony not enumerated in the

murder statutes or pursuant to an intentional misdemeanor directly affecting the

person.2

Jury selection began on July 30, 2007; on August 6, the trial court ruled on an

issue regarding the potential sentences. The State sought review by this court, and

on August 6, 2007, in an unpublished writ bearing docket number 07-959, this court

reversed, finding the sentencing issue to be premature. On August 9, 2007, the jury

found Defendant guilty of the lesser-included offense of negligent homicide.

On October 23, 2007, she filed a motion for post-verdict judgment of acquittal;

the court denied it in a written order dated October 30, 2007. On November 9, 2007,

after hearing testimony presented by each party, the court sentenced Defendant to five

years at hard labor and a $5,000 fine, the maximums allowed pursuant to the

conviction. Defense counsel immediately filed a motion for appeal in open court.

On review, Defendant assigns two errors to this court.

1
The amendment corrected the year of the offense from 2004 to 2005.
2
The provision also proscribes homicide committed when the offender is resisting a lawful
arrest, but such a scenario is clearly not at issue in the present case.

1

FACTS

On May 26, 2005, at approximately 9:30 a.m., Kelly Leger dropped off the

eleven-month-old victim, Lane Leger, at Defendant’s house.3 Defendant was Lane’s

babysitter. At approximately 9:45 a.m., another mother, Lisa Goulas, dropped off her

daughter at Defendant’s residence. Goulas noticed that Lane was on the sofa,

propped up by pillows and drinking from his bottle. At approximately 2:55 p.m.,

Paula Verret visited the residence to pick up her granddaughter. She did not see

Lane, and she did not see anything out of the ordinary.

At approximately 3:45 p.m., Defendant ran outside, calling for help. At some

point, she stated that she left Lane lying on the floor for a few minutes, and when she

returned he was unresponsive. In her trial testimony, Defendant presented a similar

scenario. Lane received extensive medical treatment but ultimately died.4

The medical evidence adduced at trial revealed that Lane had a thirteen-

centimeter fracture on the left side of his skull, with cerebral edema and cranial

bleeding.

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, Defendant argues the trial court erred by

denying her motion for a post-verdict judgment of acquittal. In her motion and

supporting memorandum below, Defendant argued that the evidence adduced at trial

did not support her conviction for negligent homicide. She argued that the State’s

theory at trial was that she had intentionally battered Lane and that the record

contained no evidence supporting a theory of negligence.

3
As the victim is deceased, we will use his full name, rather than his initials. La.R.S.
46:1844(W).
4
Lane was taken to a local hospital first then flown to Tulane.

2

Before this court, she bases her argument on House Concurrent Resolution No.

3 for the 2008 Regular Session. That resolution directed the Louisiana State Law

Institute to study La.Code Crim.P. art. 814(C) to determine whether amendments are

necessary to clarify the legislative intent behind that article.

The resolution includes the following language:

WHEREAS, Act No. 791 of the 1985 Regular Session of the
Legislature rewrote Code of Criminal Procedure Article 814(C) to make
it mandatory that the court exclude a responsive verdict from
consideration by the jury if there is no evidence to establish that
responsive verdict; and
WHEREAS, the 1985 amendment to Code of Criminal Procedure
Article 814(C) was intended to prevent a jury from receiving or
returning a responsive verdict which is not supported by the evidence;
and
WHEREAS, following the 1985 amendment to Code of Criminal
Procedure Article 814(C), all responsive verdicts returned by a jury are
required to be reviewed on their own merits by the court using the
Jackson v. Virginia sufficiency of evidence standard;. . . .

Defendant also notes the mandatory language in La.Code Crim.P. art 814(C):

Upon motion of the state or the defendant, or on its own motion,
the court shall exclude a responsive verdict listed in Paragraph A if,
after all the evidence has been submitted, the evidence, viewed in a light
most favorable to the state, is not sufficient reasonably to permit a
finding of guilty of the responsive offense.

According to Defendant, the legislature’s 1985 amendment substituted the mandatory

language for earlier discretionary language and legislatively overruled State ex rel.

Elaire v. Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103 S.Ct.

2432 (1983). That case allows an appellate court to affirm a conviction for a

responsive verdict that is not necessarily supported by record evidence, in a case

where the evidence would have supported a conviction for the charged offense, and

the defendant failed to object to the inclusion of the lesser offense in the jury

instructions. In the present case, Defendant did not object to the inclusion of

negligent homicide in the jury instructions.

3

The State suggests that Defendant’s arguments based on the resolution should

be disregarded, because it was not passed until after trial and after the motion for

acquittal. However, the resolution presented a possible avenue of relief that was not

available to Defendant during the trial, or at the time of the motion. Further, some of

the resolution’s language purports to address the law’s intent in 1985, well in advance

of the current proceedings. Thus, the possibility exists that Defendant has a viable

avenue of relief that she had no way of knowing about during the proceeding below.

Also, the State notes Defendant’s lack of objection to the inclusion of negligent

homicide as a responsive verdict, in the jury instructions.

The supreme court has explained:

Paragraph C of Article 814, the statute at issue in the present case,
was a legislative response to two decisions of this court which involved
questions of sufficiency of the evidence when the jury returns a
responsive verdict which is legislatively authorized, but is not a truly
lesser and included offense. As long as an authorized responsive verdict
is a lesser and included grade of the charged offense and the evidence
is sufficient to support a verdict of guilty of the charged offense, there
is no problem with sufficiency of the evidence for the responsive
verdict. However, because Article 814 contains authorized responsive
verdicts which are not truly lesser and included offenses, evidence
which is sufficient to support a conviction of the charged offense may
not support all of the elements of the responsive offense. Further,
statutory amendments to the definitions of crimes (especially first and
second degree murder) have created situations in which responsive
verdicts that had previously been truly lesser and included offenses
became merely statutorily authorized responsive offenses whose
essential elements were not entirely included in the definition of the
greater offense.

The problem of the sufficiency of the evidence supporting a
conviction of a statutorily authorized responsive offense which is not a
lesser and included grade of the charged offense was first presented in
State v. Dauzat, 392 So.2d 393 (La.1980). The defendant, charged with
attempted second degree murder, was convicted of the legislatively
authorized responsive offense of aggravated battery, which is not a
lesser and included grade of attempted murder. The evidence showed
that the defendant fired a shot at the victim which missed him, but struck
the vehicle in which he was riding. Thus, the record did not establish
the essential elements of the offense of aggravated battery, although the
evidence might have been sufficient to convict for attempted murder.

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This court reversed the aggravated battery conviction because no battery
upon the person of the victim had been proved. See Cheney C. Joseph,
Jr., Developments in the Law-Post Conviction Procedure, 44 La.L.Rev.
477, 483 (1983).

In State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982),
cert. denied, 461 U.S. 959, 103 S.Ct. 2432, 77 L.Ed.2d 1318 (1983),
there was an attempted first degree murder prosecution that arose during
the period when second degree murder by definition included only
“felony murders” (unintended killings during enumerated felonies) and
first degree murder included only specifically intended killings. In a
post-conviction application, the defendant attempted to avail himself of
the Dauzat rationale, contending that the evidence was insufficient to
support the responsive verdict of attempted second degree murder
because there was no proof of an enumerated felony which was an
essential element of the crime.

This court in a plurality opinion refused to allow the defendant to
have the jury consider a responsive verdict which was not supported by
the evidence and then raise the issue of sufficiency of the evidence on
appeal from a conviction of that lesser offense. The plurality held that
the defendant must object at trial to the inclusion of a legislatively
authorized responsive verdict which is not supported by the evidence in
order to object on appeal to the sufficiency of the evidence supporting
the conviction of the lesser offense, as long as the evidence, under the
test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), would have permitted a reasonable juror to convict the defendant
of the offense charged.

The Elaire decision simply prevented the defendant from deriving
the benefit of the long-standing statutory rule that the jury must be
instructed on all statutorily provided responsive offenses and then
having the conviction of the responsive offense set aside because the
jury reached a compromise verdict which did not fit the evidence
presented. The decision sought to reconcile the defendant’s statutory
right to have a jury consider a legislatively authorized responsive verdict
with the state’s interest in preventing the defendant from withholding
objection to the inclusion of an unsupported responsive verdict and then
challenging on appeal the sufficiency of the evidence supporting that
compromise verdict.

Prompted by these decisions, the Legislature clarified the trial
court’s authority to exclude legislatively authorized responsive verdicts
which are not supported by the evidence by rewording Article 814C to
provide as follows:

C. Upon motion of the state or the defendant, or on
its own motion, the court shall exclude a responsive verdict
listed in Paragraph A if, after all the evidence has been
submitted, the evidence, viewed in a light most favorable

5

to the state, is not sufficient reasonably to permit a finding
of guilty of the responsive offense.

The 1982 addition and 1985 revision of Paragraph C were efforts
to permit the trial court and the prosecutor to avoid the situation
presented in Elaire and Dauzat, for the same reasons and concerns
expressed in the plurality and dissenting opinions. The amendments
were not designed to give trial courts and prosecutors the option to
strike a lesser offense as a responsive verdict in order to prevent the jury
from returning a compromise verdict. Article 814C only authorizes the
trial court to delete a lesser offense if a verdict of guilty of the lesser
offense would have to be reversed under the Jackson standard; the jury
may still return a compromise verdict of a lesser offense which is
supported by the evidence, even if the evidence also supports a verdict
of the charged offense.

State v. Porter, 93-1106, pp. 5-9 (La. 7/5/94), 639 So.2d 1137, 1140-42, (footnotes
omitted).

Also, we observe three significant footnotes from Porter:

9. The dissenting opinion [in Elaire] correctly pointed out that the
conviction was being affirmed despite an absence of adequate
evidentiary support for the offense of which the defendant was actually
convicted. Of course, the Elaire decision was based on the defendant’s
failure to object to including the unsupported responsive verdict in the
list of verdicts given to the jury.

10. Elaire clearly would have required reversal if the defendant had
objected to inclusion of the offense as a responsive verdict and the jury
had returned a verdict convicting of that offense which was not
supported by the evidence. As one commentator stated:

What Elaire approves as legitimate is the jury’s power to
ignore the evidence and enter a “compromise” verdict. To
the extent that the defendant acquiesces in the submission
of the compromise verdict which does not fit the facts, he
is bound by that decision.

Cheney C. Joseph, Jr., Developments in the Law: Post Conviction
Procedure, 44 La.L.Rev. 477, 485 (1983).

11. The following comments indicate the Legislature’s intent to codify
Elaire:

(a) The 1985 amendment to Paragraph C
incorporates the result in State v. Henry, 449 So.2d 486
(La.1984) and State ex rel Elaire v. Blackburn, 424 So.2d
246 (La.1982). Elaire (a plurality opinion) held that
defendant’s failure to object to the sufficiency of evidence

6

to support a responsive verdict precluded defendant from
objecting successfully to sufficiency of evidence to support
the responsive verdict as long as the evidence was
sufficient to support a conviction for the offense charged.
The court noted the addition of Paragraph C. The standard
for review under Elaire is the Jackson standard (Jackson v.
Virginia, 443 U.S. 307 [99 S.Ct. 2781, 61 L.Ed.2d 560]
(1979)), not the “no evidence” standard. Therefore, the
substitution of language was recommended.

(b) In Henry, the trial court on its own motion
decided to strike the responsive verdict as unsupported by
the evidence. The supreme court affirmed. This
amendment merely recognizes that authority.

La.Code Crim.Proc. art. 814C, Comments-1985, cmt. (a) and (b).

Id. at 1141-42 (alteration in original).

We find that Porter demonstrates that Elaire was good law at that time, some

nine years after the 1985 amendment at issue. Also, the opinion discussed at length

the legislative intent behind La.Code Crim.P. art. 814(C) and did not determine that

it legislatively overruled Elaire. Rather, the Porter court indicated that Article

814(C) codified Elaire. Further, Louisiana courts, including this one, have continued

to cite Elaire favorably, while affirming compromise verdicts. See, e.g., State v.

Smith, 07-1027 (La.App. 3 Cir. 3/5/08), 978 So.2d 545.

As for H.C.R. No. 3, we note that while a resolution may be persuasive, it is not

law. Also, by its own terms, the resolution merely refers the issue of legislative intent

behind the 1985 amendment of La.Code Crim.P. art. 814(C) to the Louisiana State

Law Institute for study. Finally, its reference to the legislative intent in 1985 is

merely interpretive; as a practical matter the 2008 legislature is in no position to know

the intent of the 1985 legislature.

As the supreme court has explained:

Counsel for plaintiffs did not file a brief in this Court but stated
upon oral argument here that plaintiffs stood on the representations
contained in their application for writs and in their original brief in the

7

Court of Appeal; turning, therefore, to the application, it is said that “the
principal error of constitutional law committed by the Court [of Appeal]
in its opinion in this case was the action of the Court in completely
ignoring the provisions of House Concurrent Resolution Number 48 of
the Regular Session of 1958 even though the Court felt, apparently, that
the Resolution was a definitive expression as to the intent of the
Legislature in enacting Act 233 of 1956,” and that the reason for such
action on the part of the Court of Appeal was “an erroneous holding that
said Resolution constituted an unconstitutional entrenchment upon the
jurisdiction of the judiciary.”. . .

The above reasoning in its initial phase ignores two cardinal
principles, by assuming (a) that Concurrent Resolution No. 48 adopted
by both Houses of the Legislature of 1958, a mere declaratory resolution
approved without the formalities prescribed as essential to the passage
of a law, must be given legal force and effect as a definitive expression
of the legislative will with respect to an act adopted at a previous
session, and (b) that it is within the province of the Legislature to
construe its earlier enactments. To interpret laws is not a legislative, but
a judicial function, and this fundamental rule of constitutional law has
not only been uniformly observed in the pronouncements of the courts
of this State but has been ennunciated [sic] by the highest tribunals in
numerous other States of the Union [.]

State Licensing Bd. for Contractors v. State Civil Service Commission, 240 La. 331,

335-39, 123 So.2d 76, 77-78, (1960) (footnotes omitted)(first alteration in original).

We observe the resolution at issue in State Licensing Board suffered the

additional infirmity of having been passed while the litigation was pending.

However, the opinion states basic principles that provide guidance for the present

case. These principles, combined with the fact that 2008 concurrent resolution

merely calls for study by the Law Institute, militate against Defendant’s argument.

Further, we observe that the result sought by Defendant would eliminate

compromise verdicts from Louisiana criminal law. We find that a concurrent

resolution, which has not gone through the full formalities needed to pass or amend

a statute, should not form the basis of such a momentous change. For the reasons

discussed, Defendant’s argument, based upon the concurrent resolution, lacks merit.

8

The remainder of Defendant’s argument assumes that this court will have found

in her favor on the Elaire issue. Thus, her argument alleges the evidence did not

support a finding of criminal negligence. Her briefs do not challenge the evidence

insofar as it supports the greater crime charged. However, we will proceed with an

analysis of the evidence supporting manslaughter, out of an abundance of caution.

Defendant argues the trial court erred by denying her a post-verdict judgment

of acquittal. This court has explained the basic analysis:

In these three assignments of error, the defendant asserts that the
trial court erred in denying his motion for judgment of acquittal, that the
verdict is contrary to the law and evidence, and that the evidence
presented was insufficient to support the jury’s guilty verdict. When the
issue of sufficiency of evidence is raised on appeal, the critical inquiry
of the reviewing court is “whether, after viewing the evidence in the
light most favorable to the prosecution, rational trier of fact could have
found the essential elements of the 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 ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983). The same basic test is applied by the trial court in
considering whether to grant a motion for post-verdict judgment of
acquittal. La.Code Crim.P. art. 821(B).

State v. Jenkins, 02-997, pp. 4-5 (La.App. 3 Cir. 2/12/03), 846 So.2d 778, 781, writ

denied, 03-737 (La. 9/5/03), 852 So.2d 1025.

In her briefs, Defendant acknowledges the medical testimony of three

physicians that Lane died of blunt trauma to the head that was inconsistent with an

accident. She does not dispute these conclusions. Since there were no eyewitnesses

to the fatal blow, Defendant’s conviction was based upon circumstantial evidence.

Thus, the State was required to exclude every reasonable hypothesis of innocence.

La.R.S. 15:438. Thus, the gist of the State’s case, as the court noted later during

sentencing, was that Defendant was the only adult in the house when the injury was

inflicted. Since Defendant’s briefs appear to acknowledge the evidence supporting

9

the original manslaughter charge, we will not conduct an exhaustive analysis of the

trial record. However, the core evidence will be addressed.

At trial, Detective Scott Stevens testified that Defendant stated to him that

when Lane’s mother dropped him off at 9:00 a.m., he seemed to be fine. Further,

Defendant stated she laid the baby down for a nap at 10:00 a.m., and at noon, he woke

up. She then fed him rice and gravy and noted that she did not leave him unattended

while he was eating. Lane then played in the living room with other children.

Defendant told Stevens that one of the other children was picked up by her mother

at 1:00 p.m. After that, Defendant laid another baby down for a nap, then she

watched a children’s video with Lane and another child.

According to Stevens, Defendant told him that Lane started another nap before

2:00 p.m. At 3:00 p.m., when one of the other children was picked up by his

grandmother; Lane was still asleep. Defendant then woke Lane and the other child,

and fed them snacks; she stated to Stevens that Lane ate well. However, she also said

that Lane did not seem energetic after his nap. She then laid the baby down on the

floor to change his diaper; she then left the room to go get wet-wipes and a fresh

diaper. She briefly paused in her son’s room to watch a portion of a children’s show.

When she returned to change Lane’s diaper, he was lethargic. She told Stevens that

her attempts to revive the baby were fruitless, so she ran outside for help. She gave

a similar version of events to EMT Alison Romero, to Lane’s mother, and to her

neighbor Lisa Goulas. She also gave a similar account of events when she testified

at trial.

The lead investigator, Detective Alex Montgomery III, testified that Dr. Joel

Carney performed the autopsy and estimated the injury occurred from zero to four

hours before Lane was discovered to be lethargic. Thus, for purposes of the

10

investigation, Montgomery focused on events between approximately noon and 4:00

p.m. on the day of the offense.

Dr. Carney testified the cause of death was blunt force trauma to the head. As

mentioned earlier in this memorandum, the left side of Lane’s skull had a thirteen-

centimeter long fracture. There was also a subdural hematoma (collection of blood),

and cerebral edema (swelling). Dr. Carney further testified the injuries were not

consistent with a fall and could not have been inflicted by a child. Also, the injury

was inconsistent with “any form of normal behavior” after the injury. In other words,

the baby would not have been holding a bottle or eating lunch after receiving such a

fracture. The doctor also testified that the symptoms would have been immediately

apparent; it would not have taken four hours for them to manifest.

Although a microscopic analysis of the injuries allowed for a longer time frame

of ten and one-half hours, Dr. Carney reiterated that Lane would not have been acting

normally after receiving the blunt force trauma. Since Defendant’s neighbor, Ms.

Goulas, testified that Lane seemed normal and healthy at 9:45 a.m., the injury must

have occurred at some time after that.

Dr. Paul McGary, a forensic pathologist and neuropathologist from New

Orleans, testified that he conducted a post-mortem examination of the Victim’s brain,

dura (brain covering), spinal cord, and eyes. These organs were forwarded by Dr.

Carney. Dr. McGary’s opinion regarding cause of death comported with Dr.

Carney’s. However, Dr. McGary testified that the injury would have occurred within

an hour of the Victim’s arrival at the hospital. Like Dr. Carney, he testified the baby

would not have been acting normally after receiving such a blow and would have

become immediately unresponsive. Dr. Scott Benton, a pediatrician from New

Orleans, shared this view.

11

Thus, the record establishes the Victim died due to a major blow to his head.

Although no eyewitnesses testified, the medical evidence indicated that the injury

occurred within a limited time period on the day of his death. The only person with

the baby during that time period, who was capable of inflicting such a blow, was

Defendant. We find the evidence discussed would have supported the greater crime

charged, manslaughter. Apparently, the jury elected to return a compromise verdict;

as discussed earlier, such a verdict is permissible pursuant to current jurisprudence.

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In her second assignment, Defendant argues the record does not support her

conviction for negligent homicide. She contends the evidence adduced by the State

was based on the theory that the offense was intentional. This argument assumes that

this court will agree with her argument in the first assignment that Elaire is invalid.

Since we have concluded that Elaire is still good law, the assignment clearly lacks

merit.

CONCLUSION

Defendant’s conviction is affirmed.

AFFIRMED.

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