State of Louisiana v. Sherri Ann Sepulvado

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-435

STATE OF LOUISIANA

VERSUS

SHERRI ANN SEPULVADO

**********

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 62620
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

MANSLAUGHTER CONVICTION AND SENTENCE AFFIRMED.
AGGRAVATED ARSON CONVICTION AND SENTENCE VACATED.
REMANDED FOR NEW TRIAL ON CHARGE OF AGGRAVATED ARSON.

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

Peggy J. Sullivan
Louisiana Appellate Project
Post Office Box 2806
Monroe, LA 71207
(318) 388-4205
COUNSEL FOR DEFENDANT/APPELLANT:
Sherri Ann Sepulvado

AMY, Judge.

The defendant was charged with first degree murder and aggravated arson. The

State later amended the bill to charges of second degree murder and aggravated arson.

After a bench trial, the defendant was convicted of manslaughter and aggravated

arson. The trial court imposed a fifteen-year sentence on the aggravated arson

conviction and thirty-year sentence on the manslaughter conviction. Following a

hearing on a motion for new trial, the trial court re-sentenced her to twelve years at

hard labor on the arson conviction. The defendant appeals.

Factual and Procedural Background

This case involves the death of LaTasha Nigerville, whose body was found in

her Zwolle, Louisiana home on September 25, 2006. The record establishes that

firefighters responded to a fire at her home on that date and that a firefighter

discovered her body while clearing debris from the house.

The State alleged that on the evening of September 24, 2006, Sherri Sepulvado,

Chad Rivers and Martrell Lynch were with LaTasha at her residence, as were Jerrick

Thomas and Patrick Penegar. The State argued that, at some point during an evening

of drug use by the group, Ms. Sepulvado and LaTasha became involved in a physical

altercation and that the defendant struck the victim in the head with a small bat. The

State argued that LaTasha fell and was not making sounds or moving. It contended

that her clothes were removed, a mattress was placed on top of her, and that gasoline

was poured onto the mattress and set ablaze. The State contended that the group then

left the home.

Sherri (hereinafter “the defendant”), Chad, and Martrell were indicted for first

degree murder and aggravated arson in December 2006. The murder charge was later

reduced from first degree murder to second degree murder. While Martrell entered

into a plea agreement with the State during the co-defendants’ October 2009 bench

trial, the case proceeded against the defendant and Chad. The trial court acquitted

Chad of second degree murder, but convicted him of aggravated arson. The trial

court convicted the defendant of manslaughter and aggravated arson.

In February 2010, the trial court denied the defendant’s motions in arrest of

judgment and new trial. It then sentenced her to thirty years imprisonment at hard

labor for the manslaughter conviction and fifteen years at hard labor without the

benefit of parole, probation, or suspension of sentence for the aggravated arson

conviction. The trial court denied the defendant’s motion to reconsider sentence.

The trial court granted the defendant’s appeal on March 15, 2010. This appeal was

taken from the manslaughter and aggravated arson convictions.

Subsequently, in May 2010, Chad filed a motion for post-verdict judgment of

acquittal, arguing that the evidence demonstrated that LaTasha was dead at the time

the fire was set. Thus, he argued that he could not have been convicted of aggravated

arson, that the evidence only supported a simple arson conviction and that his

acquittal of second degree murder indicated that the trial court found that LaTasha

was dead at the time of the fire. The trial court granted the motion, and sentenced

Chad to twelve years at hard labor.1

Subsequently, the defendant filed a “Motion for New Trial,” asserting that the

granting of the motion for post-verdict judgment of acquittal constituted newly

discovered evidence. She referenced Chad’s assertion that the evidence indicated that

LaTasha died before the fire was set. At the August 26, 2010 hearing on the motion,2

1
Neither Chad Rivers’ conviction nor the granting of the post-verdict judgment of acquittal
are before the court in this proceeding.
2
As the order of appeal was previously entered, the trial court heard the motion for new trial
upon remand from this court. See La.Code Crim.P. art. 853.

2

defense counsel requested the same relief granted to Chad, i.e., the reduction of the

aggravated arson conviction to simple arson. The trial court denied the motion.

However, the minutes from the hearing provide that the trial court “amended the

charge the defendant was convicted of to Simple Arson instead of Aggravated

Arson.” The transcript reflects that the trial court sentenced the defendant to twelve

years at hard labor, to be served concurrently with the thirty-year sentence.

The defendant appeals, arguing that: 1) the State presented insufficient

evidence to sustain the manslaughter and simple arson convictions; 2) the trial court

erred in denying her motion for bill of particulars; 3) the State failed to provide timely

discovery of evidence; 4) the proceedings violated the protection against double

jeopardy; 5) the trial court erred in denying her motion for mistrial upon the

prosecutor’s reference to her failure to testify; and that 6) the sentences are excessive.

Discussion

Errors Patent

Our review of the record in accordance with La.Code Crim.P. art. 920 reveals

no errors patent on the face of the record that require correction.

Sufficiency of the Evidence

The defendant first asserts that “[t]he evidence presented by the State against

[her] was insufficient to support convictions of manslaughter and arson.” We first

turn to the latter conviction.

Simple Arson

Both the defendant and the State contend that, at the hearing on the motion for

new trial filed after the order of appeal was entered, the trial court “reduced” the

defendant’s aggravated arson conviction and entered a conviction of simple arson.

3

The defendant’s appellate brief assumes a conviction of simple arson. However, as

referenced in the factual and procedural background, the record only clearly reveals

a conviction of aggravated arson. The results of the hearing on the motion for new

trial are unclear as to whether the trial court vacated the defendant’s conviction for

aggravated arson and convicted her of simple arson or whether she was re-sentenced.

Although it denied the motion for new trial, the trial court explained that:

[O]ut of fairness, out of equity, in my opinion when I heard this case–it
was a bench trial–after looking back on the testimony and the relief that
I granted Mr. Rivers, the victim in this case, in my opinion, according
to the coroner’s testimony, was deceased at the time. The coroner did
not say those words but that is my interpretation of his testimony, the
victim was deceased at that the time that Mr. Rivers burned her body. So
I do not think it fits–aggravated arson fits under the Code. I think simple
arson is more appropriate. I’m going to sentence Ms. Sepulvado under
the simple arson statute and give her twelve years. I’m amending her
sentence regarding aggravated arson from fifteen years without benefit
to twelve years at hard labor concurrent with the thirty year sentence that
she’s serving.

This does not indicate that the trial court disturbed the defendant’s conviction for

aggravated arson. It instead appears that the trial court denied the motion for new

trial, but re-sentenced the defendant.3 The minutes of the hearing, however, indicate

the trial court vacated the aggravated arson conviction and entered a conviction for

simple arson. The minutes provide that: the trial court “amended the charge the

defendant was convicted of to Simple Arson instead of Aggravated Arson.”4 The

3
Even if the trial court construed the motion for new trial as a motion to amend sentence,
La.Code Crim.P. art. 881(A) provides that “[a]lthough the sentence imposed is legal in every respect,
the court may amend or change the sentence within the legal limits of its discretion, prior to the
beginning of the execution of the sentence.” (Emphasis added.) Since the record demonstrates that
the defendant was serving her sentence, the trial court lacked authority to amend or change the
sentence under this provision.
4
While La.Code Crim.P. art. 821 provides for a motion for post verdict judgment of
acquittal, such a motion “must be made and disposed of before sentence.” Thus, the trial court could
have not construed the motion as such.

4

defendant argues sufficiency of the evidence with regard to a simple arson conviction.

However, we find the record insufficient to address the conviction as such.

It is apparent from the trial court’s ruling that, in consideration of a ruling in

the co-defendant’s case, it felt that further action was warranted. The vehicle before

it was a motion for new trial which it denied in name, but granted in effect. However,

La.Code Crim.P. art. 857 does not permit the trial court to summarily modify the

conviction and/or sentence. Instead, “[t]he effect of granting a new trial is to set aside

the verdict or judgment and to permit retrial of the case with as little prejudice to

either party as if it had never been tried.” Id. Finding that the trial court erred in

effectively granting the motion for new trial, but not ordering a retrial of the

aggravated arson conviction, we set aside the verdict of aggravated arson and remand

for a new trial. We turn to reconsideration of the defendant’s manslaughter

conviction, which was not at issue in the motion for new trial.

Manslaughter

The defendant questions the certainty of the evidence with regard to the cause

of death and contends that the testimony of alibi witnesses for her and Chad should

have been favored over other witnesses linking her to the events preceding LaTasha’s

death. The defendant observes that there was no physical evidence of her

involvement in the crime(s). She further asserts that the evidence connecting her to

the crime involved the testimony of two men, Patrick Penegar and Martrell Lynch,

who “by their own testimony, stripped LaTasha’s unconscious body with the intent

of raping her. It was during this time Latasha died - when she was at the mercy of

two men intent on raping her while she was unconscious.” She contends that since

these individuals entered pleas, they were “not available for the Trial Court to hold

5

responsible.” She argues that her conviction followed as she and Chad “were the only

options left to the Court.”

When sufficiency of the evidence is raised on appeal, we consider whether,

after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have determined that the State proved the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979). State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983). As the trial

court fulfills the role of the fact finder in weighing the credibility of witnesses, an

appellate court should not second guess those credibility determinations beyond the

sufficiency evaluations under the Jackson standard. See State ex rel. Graffagnino,

436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). However, in

order to affirm a conviction, the record must indicate that the State satisfied its burden

of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson,

96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

Louisiana Revised Statutes 14:31(A) provides, in pertinent part, that

manslaughter is:

(1) A homicide which would be murder under either Article 30
(first degree murder) or Article 30.1 (second degree murder), but the
offense is committed in sudden passion or heat of blood immediately
caused by provocation sufficient to deprive an average person of his
self-control and cool reflection. Provocation shall not reduce a
homicide to manslaughter if the jury finds that the offender’s blood had
actually cooled, or that an average person’s blood would have cooled,
at the time the offense was committed; or

(2) A homicide committed, without any intent to cause death or
great bodily harm.

(a) When the offender is engaged in the perpetration or attempted
perpetration of any felony not enumerated in Article 30 or 30.1, or of
any intentional misdemeanor directly affecting the person[.]

6

Testimony established that LaTasha and the defendant were involved in illegal

drug use and had an acrimonious relationship, including a physical altercation two

weeks before this offense. As for this earlier altercation, Scott Gandy testified that

he, Chad, and the defendant drove to LaTasha’s house and that the defendant stated

that “she was gonna get her, gonna whip her butt.” When LaTasha exited the house,

she and the defendant began to fight. Gandy testified that the defendant had a little

bat5 in her hand, but that Chad took it from her. Chad’s cousin, Shane Rivers, also

testified regarding this fight which occurred two weeks before the fire.

With regard to LaTasha’s death, three men, Lynch, Penegar, and Jerrick

Thomas, testified that they were at LaTasha’s home on the evening of September 24,

2006, a Sunday, with the defendant and Chad. Their testimony supports a finding

that, during that evening, the defendant and LaTasha again became involved in a

altercation, resulting in the defendant striking LaTasha on the back of the head with

a small bat. Their testimony also supports a view that the blow rendered LaTasha at

least unconscious and that the defendant and Chad pulled a mattress over her body,

poured gas from a can or jug, and lit the mattress on fire.

Thomas explained that he had just been released from prison on that evening.

He stated that he was with Chad, who had been smoking crack cocaine, and that they

traveled to a house where the latter “got a gas can.” At some point, the two also

stopped at a store for purchases, including several dollars worth of gasoline.

According to Thomas, after he and Chad arrived at LaTasha’s house, the defendant

arrived with Lynch and Penegar. He stated that the group watched a movie and that

5
Diana Speight testified that she was with the defendant when the defendant found a “child
sized wooden bat” which the defendant placed in her boyfriend’s vehicle at that time.

7

LaTasha and Chad smoked crack cocaine, whereas the defendant, Lynch, and Penegar

smoked “ice,” methamphetamine. Thomas explained that LaTasha and the defendant

began to fight and that LaTasha fell onto a couch after the defendant hit her “on the

back of the head with a club.”

Thomas explained that Lynch and Penegar then “rolled” LaTasha onto the

floor, removed her clothes, and “got on top of her.” He denied that he saw them do

“anything” to LaTasha during this time. He stated that LaTasha did not move or talk

after she was hit by the defendant. He stated that the defendant was nearby, laughing

during this time. Thomas testified that the defendant and Chad pulled a mattress over

LaTasha, that Chad poured gas from a red and black gas can over the mattress, and

that “Chad and [the defendant] lit a match.” The group then left the house.

Penegar also testified that he heard LaTasha and the defendant arguing in the

bedroom. He then heard a “thump.” Penegar stated that Chad dragged LaTasha into

the living room and that Lynch began “messing with her shirt.”6 Penegar explained

that the defendant and Chad covered LaTasha’s body with a mattress, that Chad

started “dosing [sic] the mattress and around the mattress” with gasoline, and Chad

and the defendant lit the mattress. He explained that the group ran from the house

after the mattress “caught fire.” Afterwards, Lynch accompanied the defendant home,

where they stayed until the next evening and continued to use drugs. He stated that,

once at the defendant’s home, she changed her clothes in the laundry room. He also

testified that on the next evening, Chad arrived and assaulted the defendant.

6
Although he denied that he or Lynch had sexual intercourse with LaTasha, he admitted he
had told the police shortly after the incident that Lynch did have sexual intercourse with her as she
lay unconscious. However, he testified that he had lied.

8

During trial, Lynch, a co-defendant, pled guilty to accessory after the fact and

agreed to testify for the prosecution in exchange for use immunity. He testified as to

the defendant hitting LaTasha on the head with the “little bat,” and the removal of her

clothes by himself and Penegar. Lynch stated that he stood over her intending to have

sex with her, but then told Penegar that “the little bitch ain’t moving, ain’t breathing.”

He also testified that Chad and the defendant placed the mattress over LaTasha, that

Chad “put[] gas around the mattress[,]” and that Chad lit the match and threw it on

top of the “the bed.” Lynch also explained that, the next evening, Chad arrived at the

defendant’s home, grabbed her, and stated that they needed to talk about “what had

happened.” Lynch testified that, later, the defendant asked him to “take the charge

for her.”

In addition to those in the house at the time of the fire, the State presented other

witnesses implicating the defendant. Amy Woods testified that, as she and the

defendant drove by LaTasha’s house a few days before the fire, the defendant told her

she was “going to burn that house down with that bitch in it.” She explained that the

defendant called her on September 24 and told her that she was with Lynch and

Penegar at her house. Around midnight, the defendant called and told her that she

and Chad had gone to LaTasha’s house where she had a fight with the victim. Woods

said that, after she heard about the fire, the defendant told her that LaTasha was not

in the house when it burned. She explained that, at some point, the defendant told her

that she had stabbed LaTasha and that Chad “put a mattress on her and burned her.”

Woods also testified that, while speaking with the defendant on the evening

after the fire, she heard someone who sounded like Chad yelling and stating that “they

had to get their story straight.” Woods explained that a few days later, the defendant

9

told her that she was going to Georgia. Woods reported that she went to the police

regarding the conversations at that time.

Kelly Thurmon, the defendant’s roommate, testified that she found Lynch and

Penegar in the defendant’s room in the early morning on the day of the fire. She

stated that she smelled a strong odor of smoke and that she found the defendant in the

adjacent laundry room changing her clothes. She also testified regarding Chad’s

arrival at the home later in the evening. She stated that he began “strangling” the

defendant and that he said: “I ain’t getting nailed for this, bitch, uh, I ain’t going

down for this by myself.”

Bradley Craig, identified as the defendant’s boyfriend at the time, testified that,

as he and the defendant drove by the burned house a few days later, she stated: “I

can’t believe I did that.” He further admitted that he told the police that the defendant

confessed to him that she killed the victim. However, he testified that he lied to the

police when he told them that she confessed because of threats that the Chief of

Police and the fire marshall had made.

As for the victim’s cause of death, the State presented Calcasieu Parish Coroner

and forensic pathologist Terry Welke, who stated that he performed the victim’s

autopsy. He determined that she had a bruise on the back of her head and a broken

wrist bone. Approximately eight-five percent of her body was burned. While he

found no evidence of foul play and returned the body to Sabine Parish, he re-

evaluated the body after it was learned there may have been a blow to the back of the

head. Dr. Welke stated that the blow that caused the bruising to her head could have

rendered her unconscious, but that it was insufficient to have caused her death. He

also stated that he did not believe that the drugs found in her system were sufficient

10

to have caused her death. Dr. Welke testified that there was no soot in the victim’s

lungs and explained this absence was significant since soot below the voice box area

makes it “highly likely that the individual was alive at the time of the fire.” However,

he also stated that a very hot fire could have caused “spasms within the upper airways

which would not allow carbon monoxide or soot to go below the voice vocal cords.”

Dr. Welke further stated that a person in the victim’s situation could have suffocated

from the mattress, “because if the person is unconscious, they’re unable to go and turn

their head or whatever the case may be and the mattress, if it’s over the face, can

obviously obstruct the airways.”

An associate professor of pathology at Louisiana State University Health

Sciences Center in Shreveport, James Traylor, also testified regarding the cause of

death after review of the autopsy report. Given hypothetical facts corresponding with

the victim’s situation, Dr. Traylor opined that the cause of the death was the “blunt

force injury to the head. But. . . .asphyxia does have to be entertained as a cause of

death” due to the mattress or possibly strangulation. He further theorized that death

could be caused by “either direct thermal injury that could also result in asphyxia in

and of itself such as was entertained earlier in a conflagration which one would

expect if you had an accelerant on something and you lit it up.”

The defendant argues that in order to accept the State’s eyewitnesses to the

events, “it is necessary to disbelieve the testimony of five other people.” She points

to Thurmon’s statement that the defendant was in her bedroom the night of the fire

and into the morning hours, until at least 4:30 a.m. when she explained that she

discovered Lynch and Penegar in the defendant’s bedroom. Thurmon stated that she

“checked” on the defendant about 10:00 p.m., and the defendant was in her room.

11

She said that she again saw the defendant at about 2:00 a.m., and she was asleep in

her bed. She also explained that the door to defendant’s room made a loud noise

when opened or closed, and that she did not hear the door open or close prior to

finding Lynch and Penegar in the room at approximately 4:30 a.m. Monday morning.

The defendant also notes that Chad’s uncle, mother, and aunt testified that

Chad’s truck was at his aunt’s house throughout the events. His uncle testified that

he had disabled the battery in order to prevent Chad from driving the truck a few days

before the fire as he felt that Chad was too intoxicated. Further, his mother testified

that, on Sunday evening, she went to Chad’s house between 9:30 and 10:30 p.m. to

talk with him, and he was sleeping.

Certainly, the Rivers family members’ testimony regarding the availability of

the truck was inconsistent with other evidence insofar as Thomas testified that he and

Chad traveled to the scene in Rivers’ truck. Further, Lynch testified that he and

Penegar went to LaTasha’s house with the defendant in Bradley Craig’s jeep.

However, Bradley Craig, identified as the defendant’s boyfriend, denied that the

defendant had his jeep because he had taken the jeep away from her following an

argument.

The defendant points to other inconsistencies in the accounts of the evening as

well, particularly those of Thomas, Lynch, and Penegar. Yet, the testimony

consistently reflected that the defendant struck the victim with a small bat-like object,

she and Chad covered the victim with a mattress, gasoline was poured, and the

defendant and/or Chad lit matches to start the fire. Testimonies also consistently

reflected that the group left the house afterwards.

12

Undoubtedly, inconsistencies existed in the witness testimony. However, when

there is conflicting testimony about factual matters, the resolution of which depends

upon a determination of the credibility of the witnesses, the matter is one of the

weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2 Cir.

9/18/02), 828 So.2d 622, writ denied, 02-2595 (La. 3/28/03), 840 So.2d 566, writ

denied, 02-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124

S.Ct. 1404 (2004). The finder of fact makes credibility determinations and may,

within the bounds of rationality, accept or reject the witnesses’ testimonies. On

review, a court may impinge on the discretion of the fact finder only to the extent

necessary to guarantee the fundamental due process of law. State v. Neal, 00-674 (La.

6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). We do

not impinge on that discretion here.

In sum, we find that the evidence supports the manslaughter conviction insofar

as manslaughter may be a homicide committed without intent to cause death when the

“offender is engaged in the perpetration or attempted perpetration of any felony not

enumerated in Article 30 or 30.1[.]” La.R.S. 14:31(A)(2)(a). According to testimony,

the defendant hit the victim on the head with a bat sufficiently hard to render her

unconscious, a second degree battery on the victim.7 Martrell Lynch also testified

that the victim was not breathing prior to the mattress being placed over her body.

Furthermore, Dr. Welke testified that there was no soot found below the victim’s

voice box, which generally indicated that an individual burned in a fire such as the

7
A battery “is the intentional use of force or violence upon the person of another[,]” and a
second degree battery “is a battery committed without the consent of the victim when the offender
intentionally inflicts serious bodily injury.” La.R.S. 14:33 and 14:34.1. For the purpose of the second
degree battery statute, serious bodily injury includes being rendered unconscious. La.R.S.
14:34.1(B).

13

victim was burned was not breathing at the time the fire consumed her. In light of

these factors, the evidence was sufficient to support the defendant’s conviction for

manslaughter. See, e.g., State v. Loston, 03-977 (La.App. 1 Cir. 2/23/04), 874 So.2d

197, writ denied, 04-792 (La. 9/24/04), 882 So.2d 1167.

We note that the defendant contends that the verdict is unsupportable without

evidence affirmatively establishing the victim’s cause of death. However, the verdict

could reflect the trier of fact’s right to compromise between the verdicts of guilty of

second degree murder and not guilty. In State v. M.L. Jr., 09-392, pp. 5-6 (La.App.

3 Cir. 4/14/10), 35 So.3d 1183, 1187-88, quoting State v. Charles, 00-1611, pp. 4-5

(La.App. 3 Cir. 5/9/01), 787 So.2d 516, 519-20, writ denied, 01-1554 (La. 4/19/02),

813 So.2d 420, this court explained:

Defendant offered no evidence sufficient to support the mitigating
circumstances of sudden passion or heat of blood. Thus, there was
insufficient evidence for the jury to return the responsive verdict of
attempted manslaughter. However, the verdict of attempted
manslaughter may have reflected the jury’s right to compromise between
the verdicts of guilty of attempted second degree murder and not guilty.
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), the court
held that compromise verdicts are permissible, so long as the evidence
supports either the verdict given or the original charge.

There was sufficient evidence for the trier of fact to have found
that the State proved beyond a reasonable doubt all the elements
necessary to support the charge of attempted second degree murder;
therefore, a responsive verdict of attempted manslaughter was proper.

We conclude that the State’s evidence supported a verdict of second degree

murder, insofar as the defendant hit the victim on the head with a small wooden bat.

Second degree murder is defined as a killing when the offender has a specific intent

to kill or to inflict great bodily harm. La.R.S. 14:30.1(A)(1). There was testimony

that the victim was not breathing prior to the defendant and Chad pulling the mattress

14

over her body. There was also testimony that the defendant attempted to use the bat

on the victim a few weeks prior to the fire and had made threatening statements

regarding the victim. Viewed in a light most favorable to the prosecution, we find

that the evidence could indicate that the defendant intended to inflict great bodily

harm when she hit the victim on the head with the small wooden bat. Accordingly,

the evidence was sufficient to support a conviction of the charged offense.

This assignment of error lacks merit.

Bill of Particulars

The defendant filed a motion for bill of particulars asking the trial court to

order the State to advise her as to which subsection of the second degree murder

statute she was being charged with, La.R.S. 14:30.1(A)(1), specific intent to kill or

to inflict great bodily harm, La.R.S. 14:30.1(A)(2), felony murder. A hearing was

held on several motions, including the motion for bill of particulars. The defendant

argued the State had to elect which subsection of the statute they intended to proceed

under in order for her to prepare her defense. She further contended that prosecution

under the felony murder theory and aggravated arson would constitute a double

jeopardy violation. The trial court ordered the State to reply to the defendant’s

motion for a bill of particulars within seven days of the hearing. The State

subsequently filed a “State’s Answer to Motions for Bills of Particular” in September

2009. Afterwards, the trial court denied the defendants’ motions. In brief, the

defendant questions the denial of her motion, asserting that the open file discovery

available to her was not enough to “answer the crucial questions” of the State’s

theory. She contends that this prejudiced her defense.

15

In State v. Winston, 97-1183, pp. 9-10 (La.App. 3 Cir. 12/9/98), 723 So.2d 506,

511, writ denied, 99-205 (La. 5/28/99), 743 So.2d 659, this court stated:

The purpose of a bill of particulars is to provide an accused with
sufficient information as to the nature and cause of the offense with
which he is charged. State v. Wiggins, 518 So.2d 543 (La.App. 5
Cir.1987); writs denied, 530 So.2d 562 (La.1988) and 569 So.2d 979
(La.1990); State v. Frith, 436 So.2d 623 (La.App. 3 Cir.), writ denied,
440 So.2d 731 (La.1983); La.Code Crim.P. art. 484. It is now clear that
the constitutional provision, La. Const. art. 1, § 13, requiring that a
defendant be informed of the nature and cause of the accusation is not
to be restricted to mean that he must be so informed by indictment; the
defendant may also be informed of the facts by bill of particulars. State
v. Griffin, 495 So.2d 1306 (La.1986); see also State v. Gainey, 376
So.2d 1240 (La.1979).

A defendant is entitled to know the alleged method of the
commission of an offense when several means of commission of an
offense are specified by the statute. State v. Huizar, 414 So.2d 741
(La.1982). However, a motion for a bill of particulars is not a method
for a defendant to obtain the state’s evidence. La.Code Crim.P. art. 484;
State v. Gray, 351 So.2d 448 (La.1977). It is a tool for a defendant to
become informed about the nature and cause of the charge against him.
La.Code Crim.P. art. 484; State v. Huizar, 332 So.2d 449 (La.1976).
The bill of particulars may not be used to discover the details of the
evidence, that is, to know “exactly how,” the state intends to prove its
case. State v. Walker, 344 So.2d 990 (La.1977). There is no formula
regarding the information the State must make available. The extent to
which particulars are granted depends on the nature and complexity of
the case. State v. Miller, 319 So.2d 339 (La.1975). Reversible error
occurs when there is a failure to provide a defendant information “of the
nature and cause of the accusation against [him].” State v. Atkins, 360
So.2d 1341, 1344 (La.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041,
60 L.Ed.2d 402 (1979).

In Winston, the defendant was charged with felony theft of cash valued more

than five hundred dollars. The state had given defendant open file discovery access.

However, he asserted that the state failed to provide him with a bill of particulars as

to the nature and cause of the charge. This court noted that the record indicated he

was given copies of all police reports, arrest warrants, the statements of the witnesses,

16

and copies of the checks and deposit slips. This court affirmed the conviction, noting

that the information provided apprised him of the nature and cause of the accusation.

In brief, the defendant cites State v. Johnson, 365 So.2d 1267 (La.1978), to

support her position that she was entitled to a response to her motion for bill of

particulars. In Johnson, the defendant was charged with attempted armed robbery and

attempted second degree murder. The defendant filed a motion for bill of particulars,

requesting that the state specify which of the statutory methods of committing the

crime was charged, so that he could prepare his defense. The state responded only

that it was not required to specify the subsection under which it was prosecuting the

defendant. The trial court ruled this answer was sufficient. Although the supreme

court did not agree with the trial court, it affirmed the convictions and stated:

The use of a short-form indictment, as in this case, contemplates
that the accused may procure details as to the alleged statutory
method(s) by which he committed the crime charged through a bill of
particulars. Official Revision Comment (b), La.C.Cr.P. art. 465
(authorizing short-form indictments). See also State v. Mason, 305
So.2d 523 (1974) and State v. Clark, 288 So.2d 612, 615-16 (1974) and
jurisprudence therein summarized.

Nevertheless, as in Mason, we are not prepared to hold that
reversible failure resulted from the state’s rather obstinate refusal to
specify that, under the obvious facts and other admissions of the
particulars, it was proceeding under both subsections. (Further, the
state’s answer might possibly be so construed.) Taken as a whole, the
short-form indictments adequately informed the accused of the nature
and cause of the prosecution, and the factual basis upon which it was
founded, insofar as constitutionally and statutorily required in order to
afford the accused a fair opportunity to defend against the charges
brought against them.

Id. at 1270-71 (footnote omitted). The supreme court further noted that the state was

not required to reveal which subsection was used to commit the crime or to choose

between the two subsections if the subsections were equally applicable under the

facts of the case. Id. at 1271, n. 1.

17

In this case, the State filed a “State’s Notice to Proceed Under Alternative

Theories of Second-Degree Murder,” indicating it would proceed under the theory of

specific intent murder and a murder perpetrated during an aggravated arson. We find

that the trial court did not err in denying the defendant’s motion for a bill of

particulars which required that the State elect a subsection of second degree murder

it was prepared to prove. The State had granted the defendant open file discovery,

providing the defendant with access to police reports and witness statements.

Further, other than stating that the information was needed to develop her defense,

she does not indicate how she was prejudiced by the failure to designate one

subsection over the other, particularly considering that her defense was that she was

not present at the time of the fire. Finally, because what actually caused the victim’s

death was undetermined prior to trial, the facts of the case were applicable to both

subsections. Here, it seems that the defendant knew as much of the basis of the

charge as did the State in this case. See also State v. Gardner, 02-1506 (La.App. 3

Cir. 4/30/03), 844 So.2d 1097, writ denied, 03-1490 (La. 10/3/03), 855 So.2d 310.

This assignment of error lacks merit.

Timeliness of Discovery

The defendant argues that her case was prejudiced because the State failed to

timely supply her with discovery materials. On the morning trial commenced, the

defense attorneys joined in a motion in limine requesting a continuance of the trial or

in the alternative to exclude evidence which they asserted was not timely provided

by the State. At that time, the attorneys explained that shortly before trial, they began

to receive the names of various witnesses that the State intended to call and

statements made by some of the witnesses. The attorneys asserted that they had no

18

time to investigate the witnesses, specifically as to any past criminal history or

regarding their statements. The State responded that as they prepared for trial other

witnesses and facts were revealed. Some of this information was developed after the

defendants issued their trial subpoenas. The State argued that they passed the

information along to the defense as soon as they learned of it.

The trial court denied the motion to continue and the motion in limine to

exclude evidence, but ordered the State to disclose the substance of the new

witnesses’ anticipated testimonies and make them available to defense counsels. The

trial court also delayed the trial one day to allow the defense attorneys to interview

the witnesses and prepare for cross-examination.

The trial court has discretion in granting a continuance. La.Code Crim.P. art.

712. “The denial of a motion for continuance is not grounds for reversal absent abuse

of discretion and a showing of specific prejudice.” State v. Bartley, 03-1382, p. 5

(La.App. 5 Cir. 3/30/04), 871 So.2d 563, 567, writ denied, 04-1055 (La.10/1/04), 883

So.2d 1006.

In State v. Pitre, 04-545, pp. 14-15 (La.App. 1 Cir. 12/17/04), 901 So.2d 428,

439, writ denied, 05-397 (La. 5/13/05), 902 So.2d 1018, the first circuit explained:

The rules of discovery are intended to eliminate unwarranted
prejudice arising from surprise testimony, to permit the defense to meet
the State’s case, and to allow proper assessment of the strength of its
evidence in preparing a defense. However, the failure of the State to
comply with discovery rules does not bring automatic reversal; rather,
prejudice must be shown. State v. Sanders, 93-0001, p. 9 (La.11/30/94),
648 So.2d 1272, 1281, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135
L.Ed.2d 194 (1996); State v. Schrader, 518 So.2d 1024, 1032 (La.1988).
When the defendant is lulled into misapprehension of the strength of the
State’s case through the failure of the prosecution to timely or fully
disclose and the defendant suffers prejudice, basic unfairness results
which constitutes reversible error. State v. Mitchell, 412 So.2d 1042,
1044 (La.1982). Louisiana Code of Criminal Procedure article 729.5

19

details the arsenal of sanctions available for discovery violations. Even
where a violation is clear, no particular remedy is mandated.

The defense in this case had access to the State’s files through open file

discovery. However, the record shows that, on October 20 through 23, 2009, the

State notified the defendants of several witnesses, including the witnesses’ criminal

histories, a polygraph interview with the defendant, including the polygrapher’s

notes, an inculpatory statement allegedly made by Martrell Lynch regarding whether

he had sexual intercourse with the unconscious victim, and inculpatory statements

allegedly made by Chad to Dennis Blackerby, plus four pages of Blackerby’s criminal

history. The defendants were also notified of the statements Chad made to Chief of

Police Marvin Frazier regarding gas cans left at the home of Jimmy Ray Malmay.

Finally, on October 23, 2009, the State sent the defense notice of a plea agreement

with Jerrick Thomas, who had also been charged with second degree murder of the

victim and who agreed to testify for the State in exchange for a recommended

sentence of three years. Trial commenced on October 26, 2009, but was delayed one

day as stated above.

The only listed witness the defendant complains of in brief is Opal Parrie,

whose criminal history included a warrant for a first degree “something.” At the

hearing, defense counsel argued that the “something” had to be investigated and that

while “the D.A.’s office has indicated they have open filed discovery, they haven’t

given me Opal Parrie Cheatwood’s file so I don’t know that.” Parrie’s testimony at

trial was not probative for either the State’s or the defendants’ cases and defense

counsels did not examine her regarding any convictions she may have had. The

defendant argues that the State had the polygraph notes in its possession since 2006,

but waited until a week before trial to disclose them to the defense. The State advised

20

the trial court that the defendants had been given the pretest polygraph interview and

the polygrapher’s summary months before. The additional notes sent to them were

taken by federal agents, and the State had only secured the notes just prior to sending

the notes to defendants.

As for the statement made by Martrell Lynch, the State explained that after it

received a copy of a subpoena issued from the defense, they saw that the person to

whom the statement was made was on the list. The State thereafter arranged an

interview with him and the witness said that Lynch told him that he had had sexual

intercourse with the victim, but they would not find his DNA because he had worn

a condom. During this interview, the State learned of another person who supposedly

heard Chad confess he was responsible for the victim’s death. The State asserted that

all this information was sent to defense counsel immediately.

In Pitre, 901 So.2d 428, the defendant argued the trial court erred when it did

not grant his motion to exclude testimony of a witness who was called to testify for

the state. Pitre argued the state’s notice of intent to use her testimony on the second

day of trial was untimely and therefore constituted an ambush. When the witness

appeared the morning of trial, the state interviewed her and she revealed an

inculpatory statement made to her by the defendant. The first circuit stated:

In this case, defense counsel argues that he did not have a fair
opportunity to prepare for cross-examination or to locate other witnesses
who might have overheard the alleged incriminatory statement and
impeached Ms. Rogers’ testimony. He further complained at trial that
he would not be able to question the detective who took her initial
statement before cross-examination of Pamela Rogers. Finally, he
argued that he would not have time to file a motion to suppress her
testimony or to investigate whether she might have an ulterior motive
for testifying against the defendant. He asked the trial judge to exclude
her testimony or delay her taking the stand until the next day.

21

After a thorough review of the record, we are not persuaded that
the failure of the trial judge to grant defendant’s alternative requests
justifies a reversal of the defendant’s conviction under the particular
circumstances presented here. In our view, the State complied with both
the letter and the spirit of the law. Full good-faith pre-trial discovery
was provided prior to trial. The State was obviously aware it had a
continuing duty to supplement discovery and, as soon as the prosecution
learned of Rogers’ new information, it notified defendant prior to the
State’s opening statement. In our view, the trial judge did not err in
refusing to exclude this testimony.

Moreover, although he did not exclude the highly relevant
testimony, the trial judge went to great lengths to avoid any undue
prejudice to the defendant. He assured defense counsel that he could
fully cross-examine the witness and that he would allow him to
subpoena any other person he learned of during cross-examination who
overheard the conversation in dispute. In addition, he indicated that
defense counsel would have the right to recall Ms. Rogers if he chose to
do so. Thus, defense counsel effectively had the one day of extra time
to investigate that he requested and could have recalled the witness. We
cannot conclude that the timing of the notice in this case, considering
the nature of the evidence at issue, resulted in the proceedings being
fundamentally unfair. See State v. Allnet, 419 So.2d 472, 475 (La.1982);
State v. Hebert, 443 So.2d 613, 615-616 (La.App. 3d Cir.1983), writ
denied, 444 So.2d 1215 (La.1984).

Id. at 439.

We do not find that the trial court’s refusal to exclude the evidence or to grant

a continuance warrants a reversal of the conviction. Unlike Pitre, where the allegedly

prejudicial evidence was not given to the defendant until the second day of trial, the

State in the current case distributed the obtained information as they received it prior

to the trial. Also, the trial court ordered the State to reveal the substance of the

anticipated testimonies and delayed the trial by one day to allow the defendants an

opportunity to interview the witnesses. Finally, the defendant has not shown how she

was prejudiced by the allegedly late disclosures.

This assignment lacks merit.

22

Double Jeopardy

The defendant argues that she was subjected to double jeopardy when she was

convicted “of felony manslaughter and the underlying felony of aggravated arson.”

She asserts that the trial court’s finding her guilty of aggravated arson indicated it had

agreed with the State’s statement made during closing argument, as follows:

We believe the evidence is there to support a finding of second degree
murder with specific intent. If the Court finds that this was aggravated
arson, if the Court believes that she was not dead when they placed that
mattress on top of her and started that fire, that would be aggravated
arson where human life is in danger. And because she died it would fit
under the felony murder doctrine.

The State, in brief, asserts that the defendant was convicted of manslaughter and

simple arson.

The parties’ inability to identify the defendant’s arson conviction as either

aggravated arson or simple arson for discussion of this assignment confirms the

confusion regarding the defendant’s conviction. As we above concluded that the trial

court effectively granted the defendant’s motion for a new trial and have remanded

for a new trial on this charge, this assignment is rendered moot.

Motion for Mistrial

The defendant argues the trial court erred when it did not grant her motion for

a mistrial made after the State allegedly stated during closing argument that “it’s been

unrefuted, that the only person who showed violent tenancies toward the victim, in

this case, was Sherri Sepulvado.” The defendant argues that this statement was an

indirect reference to the fact that the defendant did not testify at trial, because she was

the only one who could have “refute[d]” the statement.

The defendant cites La.Code Crim.P. art. 770(3) in support of her argument.

Article 770 provides:

23

Upon a motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument, refers
directly or indirectly to:

....

(3) The failure of the defendant to testify in his own defense[.]

However, in addition to the explicit wording of Article 770, the Supreme Court of

Louisiana has stated that Article 770 is designed to guard against improprieties in the

presence of a jury. State v. Marshall, 359 So.2d 78 (La.1978). See also State v.

Mahogany, 07-360 (La.App. 5 Cir. 10/30/07), 970 So.2d 1150; State v. Anderson, 02-

273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, writ denied, 02-2519 (La. 6/27/03), 847

So.2d 1254.

Not only was this matter heard as a bench trial, but the closing argument

reference, if any, to the absence of the defendant’s testimony was limited and one that

the trial court was capable of disregarding. Accordingly, we find no abuse of the trial

court’s discretion in denying the defendant’s motion for a mistrial based on the

State’s comment made during closing argument. This assignment of error lacks merit.

Excessiveness of the Sentence

The defendant contends that the sentences imposed are excessive. In particular

she asserts that the thirty-year sentence for manslaughter is grossly out of proportion

to the severity of the offenses in light of her assertion that there was no determination

as to who caused the victim’s death and in light of her young age.

In reviewing an excessive sentence claim, this court has stated:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to

24

acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. Further, this court reviews

several factors in consideration of whether a sentence is excessive, including the

nature of the crime, the nature and background of the offender, and sentences

imposed on similarly-situated offenders in this and other jurisdictions. State v.

Griffin, 06-543 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, writ denied, 07-02 (La.

9/14/07), 963 So.2d 995. Also, the record must indicate that the trial court considered

both the aggravating and mitigating circumstances in fashioning the sentence. State

v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283.

In imposing sentence, the trial court, stated:

Ms. Sepulvado, you appeared in this court. You were tried before
me. You waived the jury trial. I found you guilty of manslaughter and
aggravated arson. I ordered a pre-sentence investigation to be
conducted. The report has been returned to me. It’s been made
available to your attorney Mr. Owen who has reviewed it. I’ve noted
that you wish to address the Court. You don’t have to but you may
before I sentence you. I’ve noted your criminal history. I’ve noted your
social history. I’m going to cause a copy of this to be filed in the record.
I’ve also noted the aggravating and mitigating circumstances in this
case.

25

Manslaughter

Louisiana Revised Statutes 14:31(B) provides that “[w]hoever commits

manslaughter shall be imprisoned at hard labor for not more than forty years.” Here,

the defendant’s thirty-year sentence is ten years less than the statutory maximum.

The record reveals no abuse of discretion in the fashioning of this sentence.

Instead, the trial court noted that it considered the pre-sentence investigation report

and that it considered the aggravating and mitigating circumstances. The defendant

asserts that her relatively young age – twenty-six at the time of the PSI report –

required a lesser sentence. However, despite her age, the report revealed a conviction

for attempted distribution of a schedule II drug in January 2008, which resulted in a

two-year sentence. While she was paroled in November 2008, she could not be

released due to the present charge. Instead, the sentence expired while she was

incarcerated on the offenses under review. The trial court was aware of this drug-

related criminal history when it considered the present matter, which also involved

drug use.

While the defendant contends that the cause of death was not established at

trial, the evidence supports the alternative views that the defendant caused the

victim’s death by rendering her unconscious and leaving her to burn to death or that

she died from a blow to the head during their altercation. Either scenario supports the

sentence imposed. Testimony also indicated that the defendant threatened to burn the

victim’s house with her in it and that the victim was raped or was about to be raped

by two men while the defendant stood by and laughed. These gruesome

circumstances of the case further support the sentence imposed.

26

Finally, Louisiana jurisprudence reveals that mid-to-high range sentences have

been upheld in other manslaughter cases. See State v. Cushman, 94-336 (La.App. 3

Cir. 11/2/94), 649 So.2d 639, writ denied, 95-2045 (La. 3/7/97), 689 So.2d 1370. See

also State v. Jefferson, 02-1159 (La.App. 4 Cir. 12/4/02), 834 So.2d 572. See also

State v. Pegues, 09-1089 (La.App. 3 Cir. 6/9/10), 43 So.3d 1008.

For these reasons, we do not find that the defendant’s thirty-year sentence for

manslaughter is excessive. This assignment lacks merit.

Aggravated arson/ simple arson

Discussion of the sentence imposed for this offense is rendered moot by the

previous determination to remand for a new trial on the arson charge.

DECREE

The defendant’s conviction and sentence for manslaughter are affirmed.

However, as the trial court effectively granted the defendant’s Motion for a New

Trial, the conviction for aggravated arson is vacated, and the matter remanded for a

retrial on this charge alone.

MANSLAUGHTER CONVICTION AND SENTENCE AFFIRMED.
AGGRAVATED ARSON CONVICTION AND SENTENCE VACATED.
REMANDED FOR NEW TRIAL ON CHARGE OF AGGRAVATED ARSON.

27