State of Louisiana v. Debra Sue Schjenken AKA Debra Sue Hewitt AKA Debra Odir

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1188

STATE OF LOUISIANA

VERSUS

DEBRA SUE SCHJENKEN
a/k/a DEBRA SUE HEWITT
a/k/a DEBRA ODIR

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 129172.1
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and J.
David Painter, Judges.
AFFIRMED.

Edward J. Marquet
P. O. Box 53733
Lafayette, LA 70575
COUNSEL FOR DEFENDANT-APPELLANT:
Debra Sue Schjenken a/k/a Debra Sue Hewitt a/k/a Debra Odir

Michael D. Harson
District Attorney
Patrick D. Magee
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge.

Defendant, Debra Sue Schjenken a/k/a Debra Sue Hewitt a/k/a Debra Odir, appeals

her conviction of second degree murder and her sentence of life in prison at hard

labor, without benefit of parole, probation, or suspension of sentence. For the

following reasons, the conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

In Lafayette, Louisiana, sometime between January 25 and 27, 2010,

Defendant, who has only one leg and is confined to a wheelchair, and John Romine

stabbed, bludgeoned, and choked the victim, Dwayne Ball, to death in a field

where they had been camping as homeless people.

Defendant was indicted for second degree murder, a violation of La.R.S.

14:30.1. On March 3, 2011, the trial court appointed a sanity commission.

Defendant was deemed competent to assist defense counsel during trial. Defendant

filed a “Motion to Suppress” on January 6, 2011. Following testimony and

argument, the trial court denied the motion in open court. A jury trial commenced

on March 19, 2012, and on March 21, the jury returned a verdict of second degree

murder. Defendant was sentenced to life in prison without the benefit of parole,

probation, or suspension of sentence.

Defendant has perfected a timely appeal and asserts two assignments of

errors: 1) the evidence was insufficient to sustain the verdict of second degree

murder; and 2) the trial court erred when it denied Defendant‟s objection to the

admission at trial of her statements given to the police during interrogation.

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DISCUSSION

Errors Patent

All appeals are reviewed for errors patent on the face of the record as

required by La.Code Crim.P. art. 920. After reviewing the record, we find none.

Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to sustain the verdict of

second degree murder. She asserts that she was acting in self-defense when she

stabbed the victim in the leg, which caused a non-life threatening injury, and there

was no physical evidence that she contributed to Mr. Ball‟s death otherwise.

Second degree murder is defined as the killing of a human being “[w]hen the

offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S.

14:30.1(A)(1). A homicide is justifiable “[w]hen committed in self-defense by one

who reasonably believes that he is in imminent danger of losing his life or

receiving great bodily harm and that the killing is necessary to save himself from

that danger.” La.R.S. 14:20(A). In State In re D.P.B., 02-1742, pp. 4-6 (La.

5/20/03), 846 So.2d 753, 756-57 (footnote omitted) (alteration in original), wherein

the accused asserted justifiable homicide, the supreme court observed:

“In reviewing the sufficiency of the evidence to support a conviction,
an appellate court in Louisiana is controlled by the standard
enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . [T]he
appellate court must determine that the evidence, viewed in the light
most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime had been
proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676,
678 (La.1984). . . . Furthermore, in a case in which defendant asserts
that he acted in self-defense, the state has the burden of establishing
beyond a reasonable doubt that he did not act in self-defense. State v.
Brown, 414 So.2d 726, 728 (La.1982). When defendant challenges the
sufficiency of the evidence in such a case, the question becomes
whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found beyond a

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reasonable doubt that the homicide was not committed in self-defense.
State v. Matthews, 464 So.2d 298 (La.1985).

At trial, the following evidence was given: As a result of an

anonymous tip, Dwayne Ball‟s partially decomposed body was

located in a field behind Mike Baker Brick Company in Lafayette.

The anonymous tipster also supplied the name of the victim and a

suspect. The victim was found in an area commonly used by homeless

people. The body was wrapped in blankets, sheets, and a comforter. A

seven and a half inch knife was sticking out of a pants leg of the

victim‟s jeans, just above his boot. A long, serrated knife was also

located at the edge of the field. Various items were collected from the

crime scene and sent to Acadiana Crime Laboratory for analysis.

Doctor Joel Carney, a forensic pathologist, conducted the autopsy on the

victim‟s body. He could not pin-point one single cause of death. He stated that the

cause was “multifactorial.” The body had a stab wound to the thigh of the left leg.

There was evidence of blunt force trauma to the face—the maxilla was fractured,

but that area of the victim‟s face was badly decomposed, and the extent of the

trauma could not be discerned. There was also some indication of trauma to the

victim‟s skull, both in front and in back. There was a bruise on the victim‟s chest

which indicated a blunt force trauma. Dr. Carney testified that there was no real

evidence of strangulation; however, he explained that the state of decomposition

around the face and neck was such that precluded exact findings.

Detective Ben Suire and Lieutenant Bryan Racca, both with Lafayette City

Police Department, interviewed Defendant, whose name was given to them by the

anonymous tipster. The interview was recorded in two parts, and an audio CD of

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the interview was played for the jury. Initially, Defendant told Detective Suire that

she had not seen the victim in a few weeks and that he had gone to Kentucky to

visit his sick father. She said that he wanted her to go with him, but she did not

want to go. She acted very surprised when she heard that he was dead. After

Detective Suire indicated to her that he believed she already knew he was dead, she

refused to speak with him anymore. At that point, Lieutenant Racca took over the

interview. Shortly thereafter, Defendant admitted that she lied about not knowing

what happened to the victim. She admitted that she and John Romine fought with

the victim at the campsite they had been occupying together in the field behind

Mike Baker Brick Company. She said that she had been dating the victim but

broke up with him a few weeks prior. He began stalking her and then threatened to

kill her by cutting her throat. She said that he had been abusive to her. When she

and Mr. Romine went to the campsite to get her clothes, he attacked them both

with a knife. She said that Mr. Romine began beating up the victim. At one point,

she stabbed the victim in the leg to protect herself. She told Detective Suire and

Lieutenant Racca that Mr. Romine managed to get a strip of a sheet used to tie a

tarp to a tree at the campsite and strangled the victim with it, despite her screaming

at him to quit. She said that she was unable to help the victim because she could

not get out of the wheelchair, even though she had her prosthetic leg on at the time.

She said that Mr. Romine then dragged the victim‟s body to a different campsite

and covered the body with a mattress. After, as they went back to town, she tossed

the knife with which she stabbed the victim down a storm drain.

Jack Stovall, who was also homeless at the time of the incident, testified that

he was a friend of Defendant‟s. He stated that he knew the victim and that he had a

reputation for being mean, abusive, and for carrying a knife at all times. He said

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that Defendant and Mr. Romine came to his camp and told him that the victim had

gone back to Kentucky, but then she later told him that she had stabbed the victim.

Leif Przytulski testified that he witnessed the killing of the victim. He had

known Defendant and Mr. Romine only a few days. He stated that he was

wandering the streets when he met Defendant and was invited to stay with her and

Mr. Romine in their camp for one night. The next day, he went to the hospital to

undergo an MRI for migraine headaches. Afterwards, he looked around downtown

for Defendant and Mr. Romine. When he did not find them, he went to the camp to

get his bag. There, he found the victim sitting on a pile of stuff, including Mr.

Przytulski‟s bag, drinking beer and smoking marijuana. He attempted to get his

bag, but the victim said it now all belonged to him and urinated all over the pile.

Mr. Przytulski left and eventually ran into Defendant and Mr. Romine in town. He

told them about the victim claiming all the stuff in the camp was his and urinating

on everything. They told Mr. Przytulski they would handle it. Mr. Przytulski

stayed in town at a karaoke bar until a little before midnight, then went to the

camp. However, before he arrived at the camp, he heard arguing. He crept up to the

camp, hiding in the weeds, and saw Defendant, Mr. Romine, and the victim

arguing. He said that he saw Mr. Romine throw the victim down and get on top of

him. He said that the victim was right in front of Defendant‟s wheelchair and that

she stomped on his face with her prosthetic foot several times. She then took off

the leg and began to beat him around the face and head with the leg. “She was just

saying, this is the end of it for you.”

According to Mr. Przytulski, at some point, the victim got loose. Mr.

Romine threw him back down. The victim managed to pull a knife out from his

boot and cut Mr. Romine but then dropped the knife. Defendant grabbed the knife

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from the ground and stabbed the victim “for a while.” Mr. Romine got a hold of a

strip of sheet and strangled the victim until he was dead. Mr. Przytulski said that

they discussed what to do with the body. Mr. Romine pulled the body away and

put a mattress on top of the body. Just about this time, Mr. Przytulski made a noise

that Defendant and Mr. Romine heard. He attempted to run away, but Mr. Romine

caught him. Defendant and Mr. Romine threatened that if he said anything to

anyone, he would end up like the victim.

During cross examination, Mr. Przytulski repeatedly stated that the incident

took place in 2006 or 2007. He attempted to describe where he had been during the

time from the murder until he was contacted by the police in Michigan to testify.

His testimony was confusing as to dates and places. However, very shortly after

the killing, he was jailed in Iberia Parish on a charge of theft of an automobile. On

March 8, 2010, Detective Ben Suire interviewed him at the parish jail about the

murder.

Defendant testified on her own behalf. She said that she had been homeless

for about six months and had been dating the victim during that time. However, he

was abusive so she broke up with him a few weeks prior to his death. She

described an incident where he took a serrated knife and rolled it across her neck

and told her that he was going to cut her throat. She began seeing Mr. Romine. She

stated that they met Mr. Przytulski two days prior to the incident, and he stayed at

their camp with them the night before the murder. She said that she went to the

camp with Mr. Przytulski and Mr. Romine to get all her stuff because they were

moving to a different camp. They found the victim lying on the pile of their things.

He threatened to kill them all and pulled out two knives, one of which was the

bread knife with which he had threatened her earlier, and attacked them. Defendant

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stated that earlier in the day, a friend gave a pocketknife to Mr. Romine, and he

gave the knife to her. She said that she opened the knife and tucked it under her

leg. Mr. Romine was standing next to her wheelchair when the victim attacked

them. As Mr. Romine blocked the victim from swiping at her with the knives, she

pulled out her knife and “poked” him in the leg. She said that although the victim

managed to cut Mr. Romine, Mr. Romine threw him to the ground. Mr. Romine

got on top of the victim and beat him on the face. She said that she and Mr.

Przytulski were too shocked to help the victim. She said that she screamed at Mr.

Romine to stop. When he turned towards her, the victim attempted to escape, but

Mr. Romine yelled for Mr. Przytulski to stop the victim. According to Defendant,

Mr. Przytulski pushed the victim back down to the ground. Mr. Romine then used

the sheet to strangle the victim to death, and all the while, she screamed for him to

stop. She said that he pulled the victim‟s body off into the woods. She was not sure

what he did with the body after that. She stated that she wanted to do CPR on the

victim, but Mr. Romine assured her that he was dead. She testified that when she

and Mr. Przytulski wanted to call the police, Mr. Romine threatened to kill them if

they did.

Defendant further testified that Mr. Przytulski‟s version of the event was not

correct; particularly, that she did not stomp on the victim‟s face with her prosthetic

leg and that she would have had to take off her jeans first before she could get the

prosthesis off the stump in order to hit the victim with it.

In brief, Defendant argues that “[i]n response to questioning by the

prosecutor, Leif said that the defendant grabbed the knife and started stabbing

Dwayne with it „for a while‟. The clear impression is that the defendant stabbed the

victim multiple times.” Defendant argues that considering Dr. Carney‟s testimony

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that there was only one stab wound to the victim‟s leg, Mr. Przytulski‟s testimony

that Defendant stabbed the victim several times in the chest area demonstrated the

“utter incredulousness” of his testimony. In he absence of internal contradiction or

irreconcilable conflict with physical evidence, one witness‟s testimony, if believed,

is sufficient support for a requisite factual conclusion. State v. Darbonne, 01-39

(La.App. 3 Cir. 6/6/01), 787 So.2d 576, writ denied, 02-533 (La. 1/31/03), 836

So.2d 64. Accordingly, Defendant contends that because Mr. Przytulski‟s

testimony was in irreconcilable conflict with the physical evidence, he cannot be

believed.

During Mr. Przytulski‟s direct examination, there was no other mention of

how many times or where Defendant stabbed the victim. However, during cross

examination, Mr. Przytulski testified that Defendant stabbed the victim about twice

in the upper part of the body, probably around the ribcage.

Defendant also points out that Mr. Przytulski stated during trial that the

incident took place in 2006 or 2007, when in fact the killing took place in February

2010. However, Mr. Przytulski sent Detective Suire a letter on February 23, 2010,

from the Iberia Parish jail, describing the incident as he saw it. The events as

described by Mr. Przytulski at trial were substantially consistent with the events as

described in the letter. In the letter, he mentioned that Defendant stabbed the victim

but did not say how many times or where. In the interview conducted with Mr.

Przytulski at the jail on March 8, 2010, there was no mention of a stabbing other

than that the victim had a knife and cut Defendant and Mr. Romine.

However, Defendant admits that she stabbed the victim one time, albeit in

the leg, which was substantiated by the physical evidence. When Defendant

confessed to Detective Suire and Lieutenant Racca that she was present when the

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victim supposedly attacked her and Mr. Romine, she made no mention of Mr.

Przytulski‟s presence. If the events were as she described them at trial, then Mr.

Przytulski‟s corroboration would have supported her contention that she and Mr.

Romine initially acted in self-defense. His corroboration of her attempt to dissuade

Mr. Romine from choking the victim to death could have exhibited her lack of

intent to kill or inflict great bodily harm. Yet she said nothing to the officers about

Mr. Przytulski.

Despite Mr. Przytulski‟s confusion as to dates, the jury believed Mr.

Przytulski‟s version of the events over Defendant‟s version. “Where 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. Douglas, 39,036, p. 10 (La.App. 2 Cir.

10/29/04), 888 So.2d 982, 990, writ denied, 04-3146 (La. 4/1/05), 897 So.2d 601.

While both Defendant and Mr. Przytulski testified that it was Mr. Romine who

strangled the victim to death, Defendant admitted stabbing him. Mr. Przytulaki

testified that she kicked him and hit him and encouraged Mr. Romine to finish the

job. Specific intent may be inferred from the circumstances surrounding the

offense and the conduct of the defendant. State v. Martin, 92-811 (La.App. 5 Cir.

5/31/94), 638 So.2d 411; La. R.S. 14:10(1). We find that the State met its burden

of establishing that Defendant‟s actions were not justified under the circumstances

in this case. The evidence was sufficient to support the jury‟s verdict beyond a

reasonable doubt.

Diminished Mental Capacity

Defendant contends that the trial court erred when it allowed “Defendant‟s

admission to the law enforcement investigator due to the defendant‟s diminished

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mental capacity caused by the consumption of alcohol and multiple narcotic and

non-narcotic medications.”

Defendant was taken into custody on March 4, 2010. She was Mirandized

and interrogated. She filed a motion to suppress the statements on January 6, 2011.

A hearing was held on March 11, 2011. Following testimony from Detective Suire

and Lieutenant Racca, the trial court heard the arguments and ruled that the

“statement was freely, voluntarily, willingly, and intelligently, and knowingly

given” and denied the motion.

However, at trial, Defendant again objected to the statements being given to

the jury for the same reasons argued at the hearing. Again, Detective Suire and

Lieutenant Racca testified regarding whether Defendant was intoxicated to such a

degree that she was suffering diminished mental capacity. At the time that

statement was taken, Detective Suire asked Defendant to list all medications and

intoxicants she had taken within the last twelve hours. She advised him that she

was taking medication for lupus and had stents in her legs. She then listed twelve

medications including pain killers, blood thinners, antidepressants, aspirin,

ibuprofen, and three ounces of whiskey and one half of a beer. Detective Suire

testified that he had had years of experience dealing with intoxicated persons and

would not have interrogated her if she appeared to be intoxicated to such a degree

as not to understand what she was saying and to whom she was saying it.

A review of the audio CD of the interview does not indicate that Defendant

was intoxicated such that she did not know what she was saying or to whom. In

State v. Bowers, 39,970 (La.App. 2 Cir. 8/19/05), 909 So.2d 1038, the defendant

filed a motion to suppress her statements made to the police regarding armed

robbery allegations. She argued that she told the police that she was intoxicated on

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alcohol and cocaine when she gave her statements, and the police made no effort to

determine if she was in a condition to understand and waive her rights. The trial

court denied the motion. On appeal, the second circuit noted:

The admissibility of a confession is a question for the trial
court. State v. Roddy, [33,112 (La.App. 2 Cir. 4/7/00), 756 So.2d
1272, writ denied, 00-1427 (La. 5/11/01), 791 So.2d 1288] supra.
When determining admissibility, the trial court‟s conclusions on the
credibility and weight of the testimony with regard to the voluntary
nature of the confession will not be overturned on appeal unless not
supported by the evidence. State v. Benoit, 440 So.2d 129 (La.1983);
State v. Roddy, supra; State v. Dailey, 607 So.2d 904 (La.App. 2d
Cir.1992), citing State v. Jackson, [381 So.2d 485 (La.1980)] supra.
We place great weight upon the trial court‟s factual determinations
because of its opportunity to observe the witnesses and assess
credibility. State v. Roddy, supra; State v. Crews, 28,153 (La.App. 2d
Cir.5/8/96), 674 So.2d 1082. Testimony of the interviewing police
officer alone may be sufficient to prove that the statement was given
freely and voluntarily. State v. Henderson, 31,986 (La. App. 2d
Cir.8/18/99), 740 So.2d 240. See State v. Trotter, 37,325 (La.App. 2d
Cir.8/22/03), 852 So.2d 1247, writ denied, 2003-2764 (La.2/13/04),
867 So.2d 689.

Intoxication may render a confession involuntary if it negates a
defendant‟s comprehension and renders him unconscious of the
consequences of what he is saying; whether intoxication exists and to
a degree sufficient to vitiate voluntariness are questions of fact. State
v. Bourque, 622 So.2d 198 (La.1993); State v. Narcisse, 426 So.2d
118 (La.1983). However, the mere fact of drug or alcohol intoxication
is insufficient standing alone to render a confession involuntary. See
State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012 (confession
voluntary although defendant had smoked three or four cocaine rocks
the night before his 11:00 p.m. statement, as well as consumed several
beers the day he confessed).

Id. at 1046-47.

In Bowers, the second circuit noted that the officer who conducted the

interrogation testified that the defendant did not slur her words or act intoxicated.

He noted that she had the presence of mind “to initially give a false name in an

effort to avoid being arrested on outstanding warrants.” Id. at 1047.

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Similarly, in the current case, Defendant initially lied about her involvement

in the victim‟s death. She acted surprised at hearing about his death. She elaborated

on her story, telling the police that the victim had gone to Kentucky to visit his

ailing father and had wanted her to go with him but that she declined. When asked,

she gave the detective a list of medications she was taking, even the exact amount

of whiskey she drank—three ounces. When Defendant finally confessed her

involvement, she told a clear story of how the victim attacked her and Mr.

Romaine, how they defended themselves, and how Mr. Romaine strangled the

victim despite her protestations.

Under the circumstances of this case, the trial court did not err when it

permitted the admission of Defendant‟s statements to the police. The matter had

been ruled upon earlier. The trial court denied the motion to suppress, and

Defendant did not file for a supervisory review of the trial court‟s ruling. At trial,

the trial court upheld the previous ruling and allowed the admission of the

statements. The trial court did not err.

CONCLUSION

For these reasons, Defendant‟s conviction and sentence are affirmed.

AFFIRMED.

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