State of Louisiana v. Jeffrey Paul Denby

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-983

STATE OF LOUISIANA

VERSUS

JEFFREY PAUL DENBY

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2009-663
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Hon. David W. Burton
District Attorney - 36th JDC
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant-Appellant:
Jeffrey Paul Denby

PICKETT, Judge.

The defendant, Jeffrey Paul Denby, appeals his conviction for first degree

murder. For the following reasons, we affirm the defendant’s conviction.

FACTS

On June 18, 2009, eighteen-month-old John Thomas Anthony Brewer, known

as J.T., arrived at the Beauregard Memorial Hospital with severe head injuries. He

was having a seizure when his mother ran into the emergency room with him. His

mother told emergency room physician John McMillan that her son had fallen on the

steps and hit his head on the steps and stairs. Dr. McMillan found a number of

bruises to the child’s head and to the body. J.T.’s eyes were irregular. One pupil

appeared enlarged and the other was a pinpoint, a sign of severe brain injury. J.T.

was also not breathing appropriately. His score on the Glasgow Coma Scale was a

three, indicating that he had a traumatic brain injury that was major and

life-threatening.

Dr. McMillan explained at trial that J.T.’s symptoms indicated a brain

herniation. The injury to J.T.’s head caused his brain to swell to the point it was no

longer able to fit inside his skull. A subdural hematoma compressed the brain, and

the pressure of that hematoma pushed J.T.’s brain through the opening at the lower

portion of his skull, where the brain stem connects the skull and the spinal cord.

As he tried to determine the mechanism of J.T.’s injuries, Dr. McMillan found

multiple sets of bruises on the child’s face and head, with different phases of bruising.

Of most concern to Dr. McMillan was a significant amount of bruising to J.T.’s left

eye as well as the left ridge of his cheekbone and to the ear. Dr. McMillan found

blood behind the left eardrum, which was a serious concern. Dr. McMillan suspected

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abuse because the history was not consistent with the mechanism of injury and the

series of injuries. He gave J.T. medication to stop his seizure activities and to sedate

and paralyze him to prepare him for transport to Lake Charles Memorial Hospital.

Dr. McMillan took seven photographs of J.T. that were admitted into evidence:

• Exhibit A-1 shows bruising to both eyes of the intubated
child.

• Exhibit A-2 was taken from the child’s left side showing
bruising to both eyes, predominantly on the left; old and
new bruises to the cheekbone; and an old bruise to the
forehead.

• Exhibit A-3 is another frontal photograph showing the
different ages of the bruises and a bite block in place in the
case of seizure activity.

• Exhibit A-4 shows the left side, primarily the cheekbone
bruising, and also bruising to the left ear.

• Exhibit A-5 is another photograph showing bruising to the
eyes and upper part of the forehead, causing Dr. McMillan
to suspect “assault that occurred more than just this one
time.”

• Exhibit A-6 shows the most significant bruises to the eye,
cheekbone, and pinna of the ear.

• Exhibit A-7 shows a new bruise to the back part of J.T.’s
head and bruising behind the ear.

The photographs were admitted over the defendant’s objection. Dr. McMillan

documented an immediate need for neurosurgery because of the traumatic brain injury

and time was of the essence because J.T. was going to die unless neurosurgical

intervention could take place.

At Lake Charles Memorial Hospital, J.T. had another CT scan. Dr. Jamel

Saqer, a pediatric intensive care specialist with the Children’s Clinic of Southwest

Louisiana, testified as an expert in pediatric critical care. His comparison of the

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Beauregard and Lake Charles CT scans showed that J.T. had brain swelling on the

entire left side, and also on the front of the right side, causing herniation of the brain.

An accumulation of blood, a subdural hematoma, was in the membrane between the

skull and the brain. The swelling ultimately affected blood circulation to the brain

and deprived the brain of oxygen, causing an anoxic infarction that would lead to

brain death.

J.T. underwent surgery to relieve the pressure in his brain and to prevent

further damage from increased brain pressure. Dr. Wolf removed a portion of the

skull so that possible continued swelling would not be detrimental to the circulation

in the brain. The pressure in J.T.’s brain initially came down, but the force supplying

blood to his brain also gradually declined.

After the surgery, J.T. experienced tensing motions referred to as “posturing

movements,” where he would involuntarily stretch his arms and legs. The posturing

movements, treated with sedatives, pain medication, and seizure medication, were

caused by increasing pressure inside J.T.’s head. By June 20, 2009, it was evident

that the swelling was actually infarction, and the posturing movements were the only

movements that J.T. exhibited. On June 21, 2009, Dr. Wolf and Dr. Saqer shared the

opinion that “[t]here [was] no reasonable recovery of brain function.” Despite

mechanical ventilation by a breathing machine, blood pressure medication,

intravenous fluids to prevent dehydration, medications to regulate body temperature

and brain activity, and the use of a cooling blanket, intracranial pressure continued

to escalate, and CT scans showed no improvement. Life support was stopped at 9:30

p.m. on June 21, and J.T.’s heart stopped at 12:15 a.m. on June 22.

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Dr. Saqer could not say with medical certainty that J.T. would have died if the

life support had not been discontinued. However, he opined that J.T.’s best case

scenario would have been a vegetative state requiring machine support and a feeding

tube, and he would have had no intellectual activity. J.T.’s brain damage was

irreversible, and he was being kept alive by the ventilator. Dr. Saqer did not reach

the point of declaring J.T. brain dead because of the family’s request to discontinue

life support. Severe brain injury was the sole cause of death.

A video and eight photographs were taken at Lake Charles Memorial Hospital.

The state sought to admit the still photos which depicted the same scene as the video.

It sought to use:

approximately a minute or so of the video to fulfill the purpose of
showing the extent of injuries and the treatment required as a result of
those injuries and the movement of the child known as seizures or
posturing as will be described by Dr. Saquer [sic].

Over the defendant’s objection, the trial judge allowed the first minute of the video

to be shown, but none of the still pictures. Dr. Saqer testified that the video showed

the posturing movements. Although J.T. had multiple bruises on the frontal part of

his face, a laceration and bleeding in the left ear, and a bruise on the right temple,

those injuries were not visible on the video because of the bandage on J.T.’s head.

Dr. Terry Welke performed the autopsy on J.T. and testified as an expert in

forensic pathology. He found bruises above J.T.’s left eyebrow, in the left ear, on the

right ear, in front of the right ear, on the mid-portion of the forehead, another bruise

above the left eyebrow, and one in the left back of the head. He also found petechia,

little red marks on the nose area, often seen in individuals that have died as a result

of asphyxia. Dr. Welke reviewed photographs consistent with a possible bite wound

on J.T.’s right upper arm. J.T. had two bruises above the right buttock, two bruises

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above the left buttock, and a little superficial scrape on the inner portion of the right

lower leg. Dr. Welke also found brain swelling and an accumulation of blood

between the dura and the brain. He believed that the cause of death was head injury

as a result of blunt force to the head, and he believed that the manner of death was

homicide. The injuries were not consistent with a fall down stairs.

Detective Jared Morton believed that a criminal investigation was necessary,

based upon the inconsistencies in the information given to Dr. McMillan. That

investigation began with an interview of the defendant at the Beauregard Parish

Sheriff’s Department on June 18, 2009. After the defendant gave his statement, he

was arrested and charged with attempted first degree murder and second degree

cruelty to a juvenile. After J.T. died on June 22, the charge was changed to first

degree murder, and the defendant gave another statement.

Prior to J.T.’s death, the defendant lived in a home owned by the grandfather

of Paul Hilliard. Also residing there were Hilliard; Hilliard’s fiancé, Miranda

Denby;1 Clara, Miranda’s three-year-old child; Courtney, Miranda’s

eighteen-month-old child; Holly Brewer, J.T.’s mother and the defendant’s girlfriend;

Allison, the three-month-old child of Holly and the defendant; and J.T. In the

defendant’s first statement on June 18, 2009, he said he had run Hilliard’s paper route

for him that morning. He came home around 6:00 a.m. and slept until 9:30 or 10:00

a.m. Holly and the four children were in the home when he awoke. Holly left around

11:00 a.m., leaving the defendant to watch the four children.

The defendant stated that he went outside. Just as he returned indoors, J.T.

“grabbed the bassinet where Allison was sleeping and, and dumped it over.” The

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Miranda Denby and the defendant were legally married at the time.

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defendant stated that he picked her up, got her “quieted down,” and “made sure she’s

fine.” According to the defendant’s first version, he then took J.T. “to the couch, laid

him over, across [his] lap, and whooped him 4 times across the butt,” over J.T.’s

shorts and diaper. J.T. cried for a while and pouted a little; the defendant held him

and watched a movie for about an hour.

The defendant said when he fell asleep, J.T. “had got ahold” of a baby gate in

front of the stairwell. The safety bar of the gate broke, and J.T. fell and “bumped his

head on the floor.” J.T. cried, but he seemed to be all right. The defendant said he

quieted J. T. again and left the room. About ten minutes later, the defendant said he

returned to the room and found the baby gate down again and J.T. was standing at the

top of the stairs. As the defendant started up the stairs, he said J.T. tripped over his

feet and fell from around the third or fourth stair about five or six steps, until the

defendant caught him around the second stair. The defendant said he checked J.T.’s

pupils with a flashlight, and they were responsive. The defendant said that he

“[d]idn’t nothing feel broke” when he checked J.T.’s arms and legs. The defendant

said he kept J.T. awake for about an hour. He noticed a little bit of redness on the

back of J.T.’s head, close to the top.

Shortly after 2:00 p.m., the defendant said he gave the children a snack, and

J.T. lay down in his bed in the girls’ room where he normally slept. When Holly

returned home around 2:45 or 3:00 p.m., the defendant told her that the children were

all asleep. The girls awoke and began to play, but J.T. was still asleep. The

defendant checked on him, and said “he wasn’t jerking or nothing like he was when

we brought him to the hospital.”

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The defendant was outside when Holly told him J.T. was not waking up. The

defendant found J.T. with a high temperature, “shaking real bad,” with a

non-responsive left pupil. They tried to cool him in a bath and tried to awaken him.

When they were unsuccessful, they took him to the hospital around 5:30 p.m.

During the interview, detectives told the defendant that J.T. had old and new

bruises and hemorrhaging inside his head. They told the defendant that they thought

he was lying, that J.T. had been abused, and that he was responsible for it. The

defendant admitted that he had probably hurt J.T., but he did not know how.

The defendant then admitted that J.T. had not fallen down the stairs. When

detectives again noted that J.T. had been abused for some time, the defendant

responded, “I’m not the only one that does it though.”

When J.T. turned over the bassinet, the defendant proceeded to spank J.T. He

admitted that the spanking got out of hand. He said that he began spanking J.T. “on

his butt” with and without the diaper. The defendant admitted to “popping him in the

head” with his fingertips, all over J.T. ’s head. He picked up J.T. and held him under

his arms, “hollering at him why did he do that.” He “sat [J.T.] down hard” on the

couch and “continued to whip his butt.” He “smacked him in the top of the head a

couple more times.” The defendant “put [J.T.] in the bed and walked off,” but J.T.

would not stop screaming and crying. The defendant said he then “whooped him a

little more and popped him in the head with his pillow” as he routinely did. J.T. “shut

up” for about three minutes, and the defendant left the room. When J.T. began to cry

again, the defendant grabbed the pillow again and “popped him a couple more times

in the head, it was pretty hard.” J.T. “cocked his head back and forth because [the

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defendant] went one direction, then [he] went another one” about three times, and the

defendant admitted he knew he hurt him.

For about five minutes, J.T. was quiet. The defendant went to the living room

to hold the baby, who was crying again. J.T. began screaming and crying again. The

defendant said, “he kept crying and kept crying, and kept crying, and it just heated me

up, heated me up and I got mad again because I had calmed down.” The defendant

said he picked up J.T. and put him down hard on the twin bed. J.T. hit his head on

the wooden footboard. Not meaning to hurt him like that, the defendant said that he

rubbed J.T.’s head, put him in the toddler bed, and told him to go to sleep and be

quiet. According to the defendant, “that normally works, it didn’t this time so he kept

crying, so I hit him a little harder in the top of his head.” When J.T. cried harder, the

defendant “popped him in his face, on his face.” According to the defendant, “that’s

where he got the, the dots under his eyes.”2

J.T. quieted down again, and the defendant left the room. When he returned,

J.T. was screaming again. The defendant said he “popped him in the side of the head

and [he] accidentally hit him in his ear.” J.T. cried even harder, and the defendant

carried him to the living room as J.T. “started screaming even louder.” The defendant

laid him in his arms and “tossed him over on the couch . . . and his head hit the couch

arm.” The defendant described the blow as “another lick on the back of his head,”

and he described the arm of the couch as “a pretty hard arm.” J.T. looked at the

defendant with “his mad face,” so the defendant again “pop[ped] him on his mouth”

and sent him to his room. The defendant laid J.T. in his toddler bed, and J.T. was

quiet. The defendant “was mad so [he went] outside and smoke[d] a cigarette.”

2
Presumably, these “dots” are the petechia to which Dr. Welke referred, a sign
of lack of oxygen to the brain.

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When Holly arrived home around an hour later, J.T. was not awake. “A little while

later,” Holly told the defendant J.T. was “not wanting to wake up.” She said J.T. had

bruises on his head and his arm. He went inside with Holly and found bruises on

J.T.’s head, arms, and face. J.T.’s left pupil was not responsive.

The defendant said J.T. was not unconscious when he put him in the bed. He

was tossing and turning like he normally did when he did not want to go to bed. The

defendant had not yet told Holly what he had done when J.T. was at the hospital. He

told police “[t]his is the first time I’ve lost it that bad.” Normally, he would “just pop

him around a couple of times,” spank J.T. on his arms, sometimes spank him on his

butt and sometimes “use the, the broom head, which is the bristles and then pop him

across his face and go just down his face like that.” At the end of the interview, the

defendant stated, “it’s never been this bad. I’ve never done it though like this. It’s

just when he dumped Allison over I, I, I snapped. I couldn’t . . . .”

In the defendant’s second interview on June 22, 2009, he said he “had a bad

feeling in the back of his head” about J.T. when he left him in his bed, and he was

afraid he may have hurt him. He felt like “something about the situation told me

something here is not right.” The defendant said he “was pretty mad” when J.T.

pulled over the bassinet, and J.T. made him more mad when “he kept screaming at

[him],” babbling, and giving the defendant “the mean look.” The defendant tried to

quiet J.T., but he just kept “screaming and screaming his head off,” not crying, just

screaming; this “kinda made [Defendant] mad and it kinda made [him] worried.”

The defendant said he did not know why he did not stop. He said, “[h]onestly

it was one of them sorta things w[h]ere you just sorta black out and things happen .

. . I knew what was happening. I just, its [sic] kinda like one of them things w[h]ere

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you’re trying to control yourself but you just can’t.” He told the deputies this had

never happened to him before. The defendant said he knew what he was doing, but

he could not stop, and he knew he “went overboard.” It was “like [he] couldn’t

control what [he] was doing.” He kept thinking he needed to stop, but he “kept

going.” The defendant said he “think[s] [he] went to the point where [he] was so mad

that [he] just couldn’t stop.”

J.T. turned over the bassinet between 12:30 p.m. and 1:00 p.m. The defendant

lay him in his bed around 2:30 p.m. The beatings took place in spurts, where J.T.

would stop screaming, and the defendant would stop hitting him. When J.T. would

scream again, the defendant would hit him again. The defendant said he could not

think when he lost control; it was like he was watching a movie, with no control over

what took place. The longest J.T. was quiet was about ten minutes.

When the defendant learned of J.T.’s death, he said he believed he was

responsible for it. He had lied about J.T. falling down stairs because Miranda had

been “in trouble with OCS a few times before,” and she “didn’t want OCS coming to

her house.”

Paul Hilliard corroborated much of the defendant’s story. He and Miranda

returned to the home around 5:45 p.m. on June 18, 2009. By the time they arrived,

Holly had returned from Lake Charles, and the defendant was there also. Holly told

Hilliard that J.T. was sleeping, and Hilliard checked on him. J.T. was moving and

“appeared to be asleep on his bed.”

When Hilliard first arrived at the home, the defendant told him that he had

given J.T. the whipping of his life. The defendant told Hilliard that J.T. had knocked

over his daughter’s bassinet and that he had whipped him for it and put him to bed.

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When J.T. did not appear for supper, Hilliard gave his plate to Holly to go feed him.

Holly screamed and ran outside for the defendant; Miranda went into J.T.’s room and

saw that “he wasn’t waking up.” Hillard saw no bruises or markings, but J.T. was not

waking, and he had “[s]udden twitches, here and there; like a bad dream.” Holly said

J.T. had a fever, and she took him to the bathtub to cool him. Hilliard shined a

flashlight in J.T.’s eyes; J.T.’s right eye “seemed to appear normal,” but his left eye

“didn’t respond at all and it had a—what looked like a crack going on all the way

across it.” The defendant and Holly took J.T. to the hospital around 7:00 p.m. The

defendant “just said before he left that he didn’t know how all of this could have

happened.”

At trial, the jury saw one minute of the video taken at Lake Charles Memorial

Hospital during the state’s direct examination of Dr. Saqer. The video showed

movements to which Dr. Saqer referred as “posturing.” A bandage on J.T.’s head

covered multiple bruises on his face, left ear, and right temple.

Fifteen seconds of the one-minute video were also presented during the state’s

closing argument. The state’s counsel asked the jury to render a verdict of first

degree murder and commented, “And don’t show him anymore [sic] sympathy or

mercy than he did J.T.”

The defendant, Jeffery P. Denby, was convicted by a jury of the first degree

murder of an 18-month-old child, J.T., on May 21. He was sentenced to life in prison,

without benefit of probation, parole, or suspension of sentence, on May 27, 2010.

He argues on appeal that the trial court erred in allowing into evidence a one-minute

video showing the child, close to death in the hospital, having seizures.

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ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

no errors patent.

ASSIGNMENT OF ERROR

The defendant argues that the trial court erred in admitting into evidence the

video taken in the hospital, during the time the defense argues J. T. was having

seizures. He further objects to its use by the state during closing argument to bolster

the state’s position that the jury should show the defendant no mercy.

Louisiana Code of Evidence Article 403 provides as follows:

Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
or waste of time.

The Louisiana Supreme Court has set forth the standard for the use of

gruesome photographs and videos at trial, holding that the issue of the admissibility

of a video is similar to the issue of the admissibility of a photograph. A video, like

a photograph , may be admitted into evidence to corroborate other testimony in a case

such as the location of the body, the manner of death, the specific intent to kill, the

number, location and severity of wounds, and the cause of death. State v. Davis, 92-

1623 (La. 5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450 (1994).

“Generally, photographs are admissible in evidence when they are shown to

have been accurately taken, to be a correct representation of the subject in

controversy, and when they shed light upon the matter before the court.” State v.

Strickland, 398 So. 2d 1062, 1065 (La.1981).

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The video at issue is a portion of a video taken at Lake Charles Memorial

Hospital and was shown during the testimony of Dr. Saquer. The video depicts J.T.

in the hospital bed with his head heavily bandaged. Bruises on his face and body are

visible. The video depicts movements that are not seizures, as argued by the defense

counsel, but in fact are movements referred to as “posturing.” While certainly

disturbing, they are neither overly gruesome nor unduly prejudicial. In addition to

the video, the jury was shown seven photographs taken at Beauregard Memorial

Hospital. These photographs were taken before J.T.’s brain surgery and before his

head was bandaged. They graphically depict the location and extent of the bruises

that the defendant inflicted. The defendant has not appealed the introduction into

evidence of these photographs. The video which is the subject of this appeal is

arguably less gruesome than the photographs. The trial judge limited the amount of

the video displayed to the jury and disallowed the admission of the still photos taken

with the video. The video accurately depicts J.T.’s injuries and “shed[s] light upon

the matter before the court.” See Id. We find no error in the trial court’s

determination that the video’s probative value out weighed any prejudicial effect.

This assignment of error is without merit.

CONCLUSION

We find no error in the trial court’s admission into evidence of the one-minute

video from Lake Charles Memorial Hospital. The defendant’s conviction is affirmed.

AFFIRMED.

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