State of Louisiana v. Harold Lee Julien, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1327

STATE OF LOUISIANA

VERSUS

HAROLD LEE JULIEN, JR.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 11-1778
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

J. Phillip Haney
District Attorney
Angela B. Odinet
Assistant District Attorney
415 Main Street
St. Martinville, Louisiana 70582
(337) 394-2220
Counsel for Appellee:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Harold Lee Julien, Jr.

Harold Lee Julien, Jr.
Louisiana State Penitentiary
Camp D, Raven Unit
Angola, Louisiana 70712
Defendant

KEATY, Judge.

Defendant, Harold Lee Julien, Jr., was sentenced to serve life imprisonment

without the benefit of parole, probation, or suspension of sentence after a jury

found him guilty of second degree murder, a violation of La.R.S. 14:30.1. He now

appeals. For the following reasons, we affirm Defendant’s conviction and

sentence.

DISCUSSION

Procedural History

Defendant was indicted for the first degree murder of his two-and-a-half-

month-old son, a violation of La.R.S. 14:30. He waived formal arraignment and

entered a plea of not guilty. On May 10, 2012, pursuant to Defendant’s request,

the trial court appointed a doctor to determine Defendant’s mental capacity to

proceed to trial. On July 20, 2012, the trial court granted Defendant’s motion to

withdraw the sanity commission request.

On June 14, 2013, a jury found Defendant guilty of the responsive verdict of

second degree murder, a violation of La.R.S. 14:30.1. Defendant filed a motion for

new trial, which the trial court denied. After Defendant waived all delays, the trial

court sentenced him to serve life imprisonment without the benefit of parole,

probation, or suspension of sentence.

Defendant now appeals, asserting that: 1) the trial court erred in granting

defense counsel’s motion to withdraw the sanity commission request; 2) the trial

court erred in allowing him to be convicted by a less than unanimous verdict; 3)

the evidence adduced at trial was insufficient to support a conviction for second-

degree murder; and 4) the trial court erred in failing to grant defense counsel’s

challenges for cause regarding two jurors.

Facts

On June 6, 2011, two-and-a-half-month-old infant, Harold Julien, III, was

transported by paramedics to Dauterive Hospital in New Iberia after his father,

Harold Julien, Jr., called 911 because the baby had become unresponsive. The

infant was subsequently transferred to Women’s and Children’s Hospital in

Lafayette, where he was placed on life support. It was determined that the baby

had twenty-five fractures on fourteen of his ribs and a skull fracture which caused

a subdural hemorrhage. The rib fractures were determined to be older injuries than

the skull fracture. On June 9, 2011, the baby was removed from life support and

died. An autopsy later determined the cause of death to most likely be homicide.

Defendant, who was the infant’s primary caregiver and alone with the infant most

of the day he became unresponsive, was subsequently charged with the first degree

murder of his son.

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 review, we have found

one error patent.

Defendant was informed at sentencing that he has two years within which to

file an application for post-conviction relief. Louisiana Code of Criminal

Procedure Article 930.8 provides that a defendant has two years after the

conviction and sentence become final to seek post-conviction relief. In State v.

Conway, 12-525 (La.App. 3 Cir. 11/7/12), 101 So.3d 1132, this court found a

similar advisement insufficient and directed the trial court to inform the defendant

of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written

notice to the defendant within ten days of the rendition of the opinion and to file

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written proof in the record that the defendant received the notice. Accordingly, we

direct the trial court to inform Defendant of the provisions of La.Code Crim.P. art.

930.8 by sending appropriate written notice to Defendant within ten days of the

rendition of the opinion and to file written proof in the record that Defendant

received the notice.

Sufficiency of the Evidence

We will discuss Defendant’s third assignment of error that the evidence was

insufficient to sustain the verdict of second degree murder first because, if the

allegation has merit, Defendant could be acquitted of that offense and any

following assignments of error pertaining to the verdict of second degree murder

may be moot. See Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970 (1981).

Defendant argues that there was no physical evidence that he caused the

injury that killed his infant son, Harold Julien, III, and that he was convicted solely

on the fact that he was with the infant the entire day the injuries were discovered.

He contends that the State failed to exclude the very reasonable hypothesis that

someone else caused the injuries.

In State v. Nolan, 04-360, pp. 9-10 (La.App. 3 Cir. 9/29/04), 882 So.2d

1246, 1252, a similar case involving an infant’s death, this court stated:

In reviewing a defendant’s assertions regarding insufficiency of
evidence, an appellate court, viewing the evidence in a light most
favorable to the prosecution, must determine whether any rational trier
of fact could have concluded that the essential elements of the crime
were proven beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 02-
1922 (La.5/20/03), 846 So.2d 715; State v. Captville, 448 So.2d 676,
678 (La.1984). Moreover, as in the instant matter, when
circumstantial evidence provides the basis for the conviction, La. R.S.
15:438 dictates that such evidence must exclude every reasonable
hypothesis of innocence. Brown, 846 So.2d 715.

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“It is the role of the fact finder to weigh the respective credibility of the

witness. Therefore, the appellate court should not second-guess the credibility

determination of the trier of fact beyond the sufficiency evaluations under the

Jackson standard of review.” State v. Lambert, 97-64, p. 5 (La.App. 3 Cir.

9/30/98), 720 So.2d 724, 727.

In the instant case, Deputy David Hines, a patrol deputy with the Iberia

Parish Sheriff’s Office, testified that he received a call at 10:15 p.m. on June 6,

2011, involving a medical emergency at an apartment at 921 Oak Street. When he

arrived at the apartment, paramedics were performing CPR on a small infant.

There was a visibly upset man on the scene, whom he identified in court as

Defendant. When Deputy Hines asked Defendant what had happened, Defendant

told him that he had fed the baby and laid him down in the bassinet next to the bed.

A short time later, Defendant heard the baby choking, so he tried to wake him up

and burp him, but the baby was having trouble breathing, so he called 911.

Defendant told Deputy Hines that twenty minutes had passed between when he put

the baby down and when he heard the baby choking. Defendant also told Deputy

Hines that he had performed CPR on the baby while waiting for the paramedics.

Natasha Daniels, Harold Julien, III’s mother, testified that the baby was born

a month premature on March 17, 2011, and died on June 9, 2011. At the time he

was born, he suffered from gastroschisis, a birth defect in which an infant is born

with some or all of its intestines on the outside of the abdomen. The baby was

required to stay in the hospital for a month after his birth. Ms. Daniels recalled

that he went back into the hospital in May for three or four days. Prior to this

second hospitalization, the baby had a loud cry, but afterward, his cry was very

weak. The baby could not roll over at the time of his death.

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Ms. Daniels stated that Defendant, whom she met at Sonic in 2008 when she

was pregnant with her third child, was the baby’s father. Prior to the baby’s death,

she, Defendant, and her four children lived in a one-bedroom apartment that they

shared with their friend Betsy; Betsy’s boyfriend, Allen Navy; and their two young

children.

Ms. Daniels testified that on June 6, 2011, she had worked from 11:00 a.m.

to 5:00 p.m. After she got home, she cleaned up the apartment and fed the baby.

She did not see any bruising on his body or see him wince as though he were in

pain. She prepared food for her two-year-old daughter, Niah. Afterwards, she

stayed in the apartment for about two hours during which time she and Defendant

played around throwing water on each other. This horse-play occurred while she

was holding the baby, but she denied that he got wet or hurt during that time. She

then went to Wal-Mart to purchase some movies with Betsy. When she left the

apartment, only Defendant and Niah were in the apartment with the baby, who was

sleeping in his bassinet. At approximately 10:22 p.m., as they were leaving Wal-

Mart, Ms. Daniels received a call from the hospital regarding the baby.

When shown photographs taken in the apartment pursuant to a search

warrant obtained after the baby was rushed to the hospital, Ms. Daniels stated that

when she got home from work on June 6, there were no holes in the wall of Betsy

and Allen’s bedroom as depicted in some of the photographs. She said that

Defendant had a temper and that she had previously seen him hit the wall. When

Defendant was in jail, he told her that after he put the baby down to get food for

Niah, the baby fell off the bed and may have “hit his head on the iron part,” but he

picked the baby up and put him back to sleep. After Defendant bonded out of jail,

he told her that a friend’s four-year-old had picked up the baby and thrown him.

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Ms. Daniels later relayed that information to the district attorney’s office. She

speculated that the baby’s ribs may have been broken when Defendant and Allen

gave him CPR before his May hospitalization.

Ms. Daniels said that her family had concerns about Defendant caring for the

children. She never saw Defendant harm the baby and had no problem leaving the

children in his care. She admitted, however, that before the baby was born, there

were instances of her children having unexplained injuries. She testified that other

than just a few hours spent with each of her two sisters, only she and Defendant

took care of the baby. However, the baby had stayed with Defendant’s mother for

several days about two weeks before his death.

Malinda Meyers, a detective with the Iberia Parish Sheriff’s Office, testified

that she was the lead investigator in the matter. She had been contacted regarding

an unresponsive baby at Dauterive’s Hospital. There, she spoke with Ms. Daniels

and Defendant before going to their apartment. The next day, she interrogated

both of the parents at police headquarters and revisited the apartment to take

measurements. Defendant told the detective that the baby had rolled off the bed

and may have hit his head on a board that was between the bed and the wall.

Detective Meyers took pictures of the bed and the area where Defendant said the

baby had fallen. She testified the bed was eighteen inches off the floor and twenty-

one inches away from the wall. The board Defendant indicated the baby may have

fallen on was leaning against the bed and was seven inches wide. The baby’s

bassinet was also between the bed and the wall.

Detective Meyers talked to the attending physician at the hospital, who told

her that when the baby had been admitted on May 13, 2011, prior to the current

admission, no injuries were detected on his x-rays. The doctor told Detective

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Meyers that the baby now had multiple rib fractures and a skull fracture with

bleeding on the brain. Detective Meyers explained that the primary caregivers are

suspects when a child is injured.

The video of the first of two interrogations Detective Meyers conducted with

Defendant was played for the jury. The following observations were gleaned from

our viewing of the video. During the interrogation, Defendant explained the events

leading up to his calling 911. He told the detective that after Ms. Daniels left, he

fed the baby and lay down on the bed to watch television with Ms. Daniels’ two-

year-old daughter. The baby was asleep on his chest. Eventually, the little girl

said she was hungry. Defendant laid the baby down on the bed and went into the

kitchen to warm up some food for the girl. He heard a loud cry and found the baby

on the floor between the bed and the wall. He picked up the baby and patted him

on the back a few times, and the baby went back to sleep. Defendant put him in

the bassinet. A few minutes later, the baby began to make funny sounds and spit

up milk. When he picked the baby up, he was unresponsive. Defendant undressed

him to see if he was having the same problem that put him into the hospital in

May, which was his bowel pushing out of his rectum. He then ran outside, and

Allen, who was just outside the apartment building door, came in, and they

attempted to perform CPR. Someone called 911. Defendant stated that he knew of

no one who had hurt the baby, and he denied that Ms. Daniels or anyone else who

lived in the apartment had harmed the baby. We note that throughout the three-

hour interview, Defendant was soft spoken and appeared to be in anguish over the

death of his child. His story never wavered.

Detective Meyers testified that she again interrogated Defendant on June 13,

2011, for a little more than an hour and a half. The baby had died on June 9, 2011,

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while Defendant was incarcerated in the parish jail on unrelated charges. The

video of the second interrogation was played for the jury. Therein, Defendant said

he had lost his job with Wal-Mart on May 12, 2011, two days before the baby went

into the hospital the second time. He basically repeated what he had told Detective

Meyers during his first interrogation, adamantly repeating that he would not have

harmed his son and that he did not know of anyone who would have done so.

Betsy Zuniga testified that she, Allen Navy, and their two children lived

with Ms. Daniels, Defendant, and their four children. Defendant was working at

Wal-Mart, and they took turns babysitting the children. Mr. Navy never babysat

the baby. After Defendant lost his job at Wal-Mart, he watched all of the children

a lot of the time. She corroborated Ms. Daniels’ testimony that she picked her up

from work at 5:00 p.m. on June 6, 2011, and that later the two of them with another

friend, Raquel Navy, went to Wal-Mart. Ms. Zuniga testified that she never saw

any problems with the baby except for the one time he went to the hospital in May.

You could not hear the baby cry. Otherwise, he seemed to be fine when they left

for Wal-Mart. She said that Defendant loved Ms. Daniels’ children, and she

trusted him to care for her own children. Raquel Navy corroborated Ms. Daniels’

and Ms. Zuniga’s testimony. She also said the baby appeared well when she saw

him in the early evening of June 6, 2011.

Angeline Julien, Defendant’s mother, attested to Defendant’s good

relationship with his first son, Jacob, by another woman. At the time of trial, Jacob

was three years old. She described Defendant as good natured, never showing a

violent temperament, and never having anger issues. Ms. Julien described

Defendant’s relationship with Ms. Daniels’ children as good, and she said that the

children called him, “Daddy.” She testified that she had kept the baby on two

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occasions, once overnight. When Ms. Julien kept the baby overnight in May, his

cry was very weak, and she had to put him down close to her to be able to hear him

if he cried during the night. She also stated that when she held the baby and

attempted to play with him, his eyes would not track her voice, he would only look

down. Ms. Julien told Defendant and Ms. Daniels about her observations, and they

said they would take him to the doctor, but she never heard any more about it.

During the times he stayed with her, Ms. Julien did not see any bruising on the

baby’s body or his head, nor did he act like he was in pain. She said that after the

baby came home from the hospital the first time, Defendant held him all the time

and that he was very protective of the baby. Ms. Julien stated that after she had

kept the baby overnight, Ms. Daniels’ sister, Kellie, kept him for several days.

Girard Navy and Brittney Holiday each stated they were outside when

Defendant came down from his apartment and said something was wrong with his

baby. When they ran up, Defendant was sitting on the bed with the baby. Allen

Navy attempted to give the baby CPR, and Ms. Holiday called 911. Girard Navy

said Defendant was so upset he punched holes in the walls. Ms. Holiday, who

lived in the complex and was friends with Defendant and Ms. Daniels, said that she

never saw any abuse directed towards the baby.

Catherine Longman, the mother of Defendant’s first son, Jacob, who was

three years old at the time of trial, testified that Defendant and Jacob have a typical

father/son relationship. She stated that Defendant resumed having overnight visits

with Jacob after he was released from jail and that she has no reservations about

Defendant taking care of Jacob.

Dr. Christopher Tape, a forensic pathologist, conducted an autopsy on the

baby. He testified that upon examination, he found no external evidence of injuries

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on the baby’s body; however, he determined that the back of his skull was

fractured. The occipital skull fracture was of a recent nature, which had caused

subdural hemorrhages and increased cranial pressure. Dr. Tape found

approximately twenty-five fractures on fourteen of the baby’s ribs. Those fractures

were of a more chronic nature, and all were in the healing state of approximately

two weeks. The fractures were located on the lateral and posterior parts of the

ribs―on the sides and back of the body. Dr. Tape agreed that the location of the

fractures could be consistent with holding the baby up under the arms and

squeezing. Dr. Tape testified that the injuries to the baby’s ribs could have

resulted in his low cry. Although he explained that pin-pointing when certain

injuries occur was difficult, he opined that the skull fracture occurred three to ten

days prior to the baby’s death. Dr. Tape agreed that a fall of eighteen inches would

not have caused the damage to the child’s skull. He stated that the blow would

have had to be significant or a fall of at least five or six feet.

Finally, Defendant testified. He was twenty-one years old at the time of the

June 2013 trial. Defendant stated that he was seventeen when his first son, Jacob,

was born and that they had a good relationship. Defendant explained that he was

nineteen when he met Ms. Daniels through his friend, Betsy, who worked with her

at Sonic. He and Ms. Daniels clicked, and he moved in with her and her two

young children after they had dated for several months. Ms. Daniels was pregnant

with her third child at the time. Defendant stated that he was the primary caregiver

for the baby, particularly after he lost his job at Wal-Mart. Ms. Daniels’ sister,

Kellie, babysat the baby for four or five days after he got out of the hospital in

May.

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Defendant stated that when Ms. Daniels came home from work on June 6,

they laughed and had fun, and she held the baby before going to buy some movies.

After she left, he held the baby, rocking him back and forth. Defendant then

“playfully” released the baby onto the bed several times, trying to get him to smile.

The last time he did so, the baby let out a little cry. Defendant picked him up,

patted him on the back, and put him back down on the bed when he started to fall

asleep. Thereafter, Ms. Daniels’ daughter told him that she wanted something to

eat, so he went into the kitchen to get her some food. He heard a “thump.” When

Defendant went back to check on the baby, he found him on the floor between the

bed frame and a board. Defendant picked up the baby, patted him a few times on

the back, put him back on the bed, and the baby went back to sleep. Shortly

thereafter, the baby started spitting up milk, his body became pale, and his

heartbeat slowed down. Defendant panicked and picked up the baby. Not having

a phone or knowing what to do, he put the baby back on the bed and ran outside to

get his friend Allen. Defendant found Girard Navy and Ms. Holiday who followed

him back into the apartment where they found the baby still unresponsive, at which

point Defendant “lost it” and punched holes in the wall. Defendant then called 911

and was told to start CPR. He did so, but Allen took over because he was

panicking. When the paramedics arrived at the apartment, they were able to get a

pulse from the baby which made Defendant think that everything would be all

right. Defendant stated that he had taken the baby’s clothes off before the

paramedics arrived to check whether his gastroschisis had returned. When he went

to find the clothes to dress the baby before the paramedics took him, he moved the

blankets on the bed and found a heavy mug that was left on the bed from when he

and Ms. Daniels were having the water fight earlier in the evening. At that point,

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he wondered if the baby had possibly hit his head on the mug when he was rocking

him. Defendant admitted that he never mentioned a mug on the bed to the police,

explaining that he was scared of becoming a suspect and of being thought of as a

murderer.

Defendant’s brother met him at the hospital and brought him back to the

apartment. There were a lot of police officers there, and he was given a copy of a

search warrant. When Defendant returned to the hospital, he was told that the baby

had a fractured skull and fractured ribs. He was shocked and unable to think of

anyone who would have wanted to hurt the baby. At about 4:00 a.m., Detective

Meyers was at the hospital and asked him to come to the Sheriff’s Department for

an interview later that morning. Defendant stated that he agreed to the interview

even though he did not have an attorney because he had nothing to hide. After the

interview, Defendant was kept at jail on unrelated charges and was unable to return

to the hospital to be with his son. He denied killing his son, and he stated that he

never abused him. He also denied knowing that his son had cracked ribs.

Defendant argues that the above testimony did not establish that he had the

specific intent to kill his son, inflict serious bodily harm, or engage in cruelty to a

juvenile. He further submits that he acted appropriately when he saw that the baby

was in distress.

Louisiana Revised Statutes 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:

(1) When the offender has a specific intent to kill or to inflict
great bodily harm; or

(2) When the offender is engaged in the perpetration or
attempted perpetration of . . . cruelty to juveniles, second degree
cruelty to juveniles even though he has no intent to kill or inflict great
bodily harm.

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The statute regarding cruelty to a juvenile provides, in pertinent part:

A. Cruelty to juveniles is:

(1) The intentional or criminally negligent mistreatment or
neglect by anyone seventeen years of age or older of any
child under the age of seventeen whereby unjustifiable pain
or suffering is caused to said child.

La.R.S 14:93.

Specific criminal intent is “that state of mind which exists when the

circumstances indicate that the offender actively desired the prescribed criminal

consequences to follow his act or failure to act.” La.R.S. 14:10(1). Specific intent

to kill or inflict great bodily harm may be inferred from “the extent and severity of

the victim’s injuries.” State v. Patterson, 10-415, p. 11 (La.App. 5 Cir. 1/11/11),

63 So.3d 140, 148, writ denied, 11-338 (La. 6/17/11), 63 So.3d 1037.

Defendant is correct in that the only evidence given at trial to establish the

offense of second degree murder was the fact that he was the primary caregiver

and that the child was in his care the day of the discovery of the injuries, which

does not establish the necessary element of specific intent to kill or inflict injury or

unjustifiable pain or suffering. However, the baby’s injuries themselves, could

exhibit, at the very least, Defendant’s specific intent to inflict great harm upon him.

As noted above, Dr. Tape testified that the injuries to the baby’s ribs were

posterior rib fractures. Ms. Daniels testified that the injuries were possibly caused

by CPR administered to the baby. However, in State v. Glenn, 04-526, p. 7

(La.App. 5 Cir. 3/1/05), 900 So.2d 26, 31, where the defendant argued the infant’s

rib fractures were the result of administering CPR, a forensic expert testified that

“[p]osterior rib fractures are not consistent with CPR, but are almost exclusive to

child abuse, a grabbing around the chest.”

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Furthermore, in the current case, Dr. Tape testified the baby had to have

fallen from at least five feet to have incurred the fracture to his skull. In State v.

Martin, 11-32, p. 3 (La.App. 3 Cir. 6/1/11), 66 So.3d 608, 611, writ denied, 11-

1441 (La. 12/16/11), 76 So.3d 1201, the ten-week-old baby died as a result of

“blunt force injury” to the skull. The defendant claimed he had dropped the baby

while giving her a bath. The forensic pathologist who performed the autopsy,

however, testified that the injury was inconsistent with a fall and that the “skull

fracture could not have been the result of her being dropped, even from chest

height.” Id. at 611.

In the current case, Defendant postulated that the skull fracture occurred

when the baby rolled off a bed eighteen inches from the floor and hit his head on a

board. He also stated that the baby could have hit his head on a ceramic mug

when, as he sat on the bed, he dropped the baby “playfully.” The jury did not find

these explanations for the baby’s injuries credible, and we will not second-guess

that credibility determination. See Lambert, 720 So.2d 724.

In State v. Miller, 06-595, p. 3 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, 867,

writ denied, 06-2577 (La. 5/11/07), 955 So.2d 1278, wherein the only evidence of

the defendant’s guilt was that he was the only person with the opportunity to injure

the child, this court (quoting State v. Porter, 99-1722, pp. 15-16 (La.App. 3 Cir.

5/3/00), 761 So.2d 115, 123-24), noted:

Circumstantial evidence consists of the proof of
collateral facts and circumstances from which the
existence of the main fact may be inferred according to
reason and common experience. State v. Guillory, 670
So.2d at 304, citing State v. Donahue, 572 So.2d 255
(La.App. 1 Cir.1990). The circumstantial evidence rule
does not require the State to exclude every possible
theory of innocence, but only the reasonable hypotheses
of innocence. State v. Lilly, 468 So.2d 1154 (La.1985).

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In circumstantial evidence cases, this court does not
determine whether another possible hypothesis suggested
by a defendant could afford an exculpatory explanation
of the events. Rather, this court, evaluating the evidence
in the light most favorable to the prosecution, determines
whether the possible alternative hypothesis is sufficiently
reasonable that a rational juror could not have found
proof of guilt beyond a reasonable doubt under Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979). State v. Davis, 92-1623 (La.5/23/94); 637 So.2d
1012, certiorari denied, 513 U.S. 975, 115 S.Ct. 450, 130
L.Ed.2d 359 (1994).

Continuing in Miller, 940 So.2d at 869, this court affirmed the conviction

which was based on circumstantial evidence, stating:

The testimonies of Remedies and Martinez, and Defendant’s
own statements, combined with the medical testimony,
overwhelmingly narrow the window of time during which the victim’s
injuries could have occurred. It is clear from the evidence recounted
above that the little girl’s injuries had to have been inflicted
immediately before she became symptomatic. The testimony of
Martinez and Defendant’s own statement show that he is the only
person who was in a position to have inflicted those injuries.
Martinez was in the bathroom at the relevant time, and was apparently
quite ill. The record is not clear regarding the whereabouts and
activities of the victim’s older brother, Tristine, after the family
entered the house. However, since Defendant admitted in his
statement that the victim was still able to get up and walk that last
time he entered her room, any theory that the boy could have inflicted
the injuries is negated. Further, Defendant told police that shortly
before re-entering the children’s bedroom to help the victim with her
jacket, he saw Tristine and instructed the boy to separate the laundry.
The Defendant appears to concede that Tristine knows nothing about
the crime.

Thus, we find the trial evidence was sufficient to exclude any
reasonable hypothesis that someone other than Defendant inflicted the
fatal injuries.

In the current case, Defendant testified that he was the babies’ primary

caregiver, particularly after he lost his job from Wal-Mart in May. He stated that

other than one night at his mother’s house, the only other person to care for the

child was Ms. Daniels’ sister, who took care of the baby for several days.

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Ms. Daniels’ testimony was that each of her sisters had only spent a few hours with

the baby. Prior to the baby’s May visit to the hospital, there was testimony that the

baby had a loud cry. Ms. Daniels testified that after the baby was discharged from

the hospital in May, his cry was very low and hard to hear. However, while

Dr. Tape stated that rib injuries could have caused the baby to have a weak cry, no

rib injuries were detected when the baby was admitted to the hospital in May.

We conclude that the evidence was sufficient to exclude any reasonable

hypothesis of innocence that anyone other than Defendant inflicted the injury

which resulted in the baby’s death. Defendant argues that even if this court finds

him responsible for the death of his son, the evidence supports a verdict of

manslaughter rather than second degree murder. He argues in his appellant brief:

Harold Julien did not want his son to die, nor did he have the
specific intent to kill or inflict great bodily harm on the child. Rather,
this young, inexperienced father may have been in the grip of a
sudden heat of passion, brought about by his environment, the loss of
his earning ability as the head of the house, his heat of blood
compounded by his anger at Natasha for leaving him alone with the
children all night.

Manslaughter is defined, in pertinent part, as “[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.” La.R.S. 14:31(A)(1). In State v. Thornton,

47,598 (La.App. 2 Cir. 3/13/13), 111 So.3d 1130, the defendant admitted he

physically abused the infant to get back at the infant’s cheating mother but argued

that he was guilty of manslaughter rather than second degree murder because of the

provocation. The second circuit stated:

16

[T]he measure of the “provocation sufficient to deprive an average
person of his self-control” cannot be met by reference to the crying
and discomfort of an innocent victim only three months old. The
average person understands that no anger, much less anger
accompanied by force and harm, is a reasonable response to an infant.
With provocation totally irrelevant as an adult response in such
instance, Thornton’s asserted provocation by Ursula can likewise not
be transferred so as to make in any manner his violence against the
child less culpable. There is no reasonable correlation providing a
degree of justification between TJ’s crying, the defendant’s anger over
Ursula’s petty and vengeful acts, and the brutality that Thornton
showed his own son.

Thornton failed to prove, by a preponderance of the evidence,
that circumstances existed such that he was so provoked by sudden
passion or heat of blood that he was deprived of an average person’s
self-control and cool reflection. State v. Logan, [45,136 (La.App. 2
Cir. 4/14/10), 34 So.3d 528, writ denied, 10-1099 (La. 11/5/10), 50
So.3d 812]. Thus, the evidence was sufficient to support a conviction
for second degree murder. The defendant failed to prove that he acted
in sudden passion or heat of blood sufficient to reduce his culpability
and render the homicide a manslaughter. State v. Allen, [41,548
(La.App. 2 Cir. 11/15/06), 942 So.2d 1244, writ denied, 07-530 (La.
12/7/07), 969 So.2d 619]. As a result, the jury’s verdict was correct
and the conviction is affirmed.

Id. at 1136-37.

There was no testimony in the record that Defendant was left alone all night

with the children at any particular time. Nor was there any testimony which

indicated that Defendant was stressed because he was head of the household and

had lost his job. Furthermore, Defendant testified that he had experience taking

care of a baby. He had helped to care for the child Ms. Daniels was pregnant with

when they met and began living together. We find the testimony does not support

Defendant’s contention that the injury which resulted in the baby’s death was

caused in the heat of passion. Accordingly, the evidence was sufficient to support

Defendant’s conviction for second degree murder.

17

Motion to Withdraw Sanity Commission

Defendant argues that the trial court erred in granting his motion to

withdraw the sanity commission request. In May 2012, Defendant filed a motion

titled “Motion for Expert for Indigent Defender.” The motion requested that the

State appoint an expert to determine Defendant’s “current mental state and the

mental state at the time of the alleged crime.” Soon after, the trial court signed an

order appointing Dr. Blackburn to determine Defendant’s mental capacity. On

June 20, 2012, the State filed a “Motion to Form Sanity Commission,” notifying

the trial court that, pursuant to La.Code Crim.P. art. 644, a sanity commission must

consist of no less than two and no more than three members who are qualified in

forensic evaluation. The trial court then ordered a second member to the

commission, Dr. Michael Blue, and set a hearing date for July 31, 2012, to

determine Defendant’s mental capacity to proceed.

On July 12, 2012, Defendant filed a “Motion to Amend the Motion for

Expert for Indigent Defendant,” wherein he stated that the request for the State to

appoint an expert to examine his mental capacity was made in error and should

have reflected a request for the State “to pay for an expert to examine the medical

records of the victim.” He further requested that Dr. Emil Laga be appointed as the

expert. On July 17, 2012, Defendant filed a “Motion to Withdraw Sanity

Commission Request and Motion for Dr. Laga to be Court Appointed Expert.”

According to a July 20, 2012 minute entry, the trial court granted the request to

withdraw the sanity commission request and the request to appoint Dr. Laga as an

expert to review the infant’s medical records but at Defendant’s cost.

Defendant points out that La.Code Crim.P. art. 642, in pertinent part,

provides; “[w]hen the question of the defendant’s mental incapacity to proceed is

18

raised, there shall be no further steps in the criminal prosecution, except the

institution of prosecution, until the defendant is found to have the mental capacity

to proceed.” Citing State v. Carney, 25,518 (La.App. 2 Cir. 10/13/95), 663 So.2d

470, Defendant further contends that the act of withdrawing a motion to appoint a

sanity commission has been considered to be a further step in the prosecution.

In brief, the State argues that the record indicates it was an obvious error that

a request for a sanity commission was made, as Defendant’s original motion was

titled “Motion for Expert for Indigent Defender.” In addition, it was the State who

actually filed the motion titled “Motion to Form Sanity Commission,” and

Defendant filed the motion to withdraw the sanity commission request before the

hearing on the matter could take place.

In Carney, 663 So.2d at 473, the second circuit stated:

“Due process and our statutory law require that the issue of the
defendant’s mental capacity to proceed shall be determined by the
court.” [State v.] Rogers, [419 So.2d 840, 843 (La.1982)]. “This
cardinal principle . . . prohibits [the court] from committing the
ultimate decision of competency to a physician or anyone else.” Id.
Furthermore, the above articles, when read in pari materia, implicitly
require the trial court to rule on the defendant’s motion and determine
whether a “reasonable ground to doubt the defendant’s mental
capacity” exists before proceeding further in the prosecution.
Withdrawing a motion to appoint a sanity commission is a further step
in the prosecution. Also, permitting such a motion to be withdrawn
takes the ultimate decision of competency away from the court. Thus,
although a mental examination may not be required in every case
where the issue of mental capacity is raised, State v. Wilkerson, 403
So.2d 652 (La.1981); State v. Folse, 623 So.2d 59 (La.App. 1st
Cir.1993), the record must reflect that the trial court made a
determination of whether or not reasonable grounds exist to doubt the
defendant’s capacity to proceed.

The defendant in Carney was charged with the second degree murder of his

ten-week-old daughter. The defendant admitted he abused the infant “by dropping

her on the floor, throwing her on the bed[,] and slapping her in the face.” Id. at

19

471. Defense counsel filed a motion to appoint a sanity commission. In the

motion, he stated that the defendant “appeared to be hallucinating, could not assist

counsel during interviews, and did not have the mental capacity to understand the

proceeding against him or assist in his defense.” Id. at 472. The district attorney

requested a hearing on the motion, and the trial court set a date to determine

whether to appoint a sanity commission. On that date, defense counsel, without

the appearance of the defendant, moved to withdraw the motion, and the trial court

granted the motion. The second circuit reversed the conviction, stating:

[T]he defendant sufficiently raised the issue of his mental capacity to
proceed after the indictment was filed.

After the defendant raised the issue, the trial court allowed
further steps in the prosecution to occur without making a
determination of the defendant’s mental capacity to proceed to trial.
When defense counsel withdrew the motion to appoint a sanity
commission, the defendant was not present and the trial court did not
observe or question him about his mental capacity. At the very least,
the record should reflect that the trial court should have personally
observed the defendant and questioned him as to his understanding of
the proceedings to determine if a “reasonable ground” existed to doubt
his mental capacity. Further, as noted by the United States Supreme
Court, it is contradictory to argue that a defendant may be mentally
incompetent, and yet he may knowingly or intelligently waive his
right to have the court determine his mental capacity to stand trial.
Pate [v. Robinson, 383 U.S. 375, 86 S.Ct. 836 (1966)], State v. Harris,
406 So.2d 128 (La.1981).

Id. at 473.

In State v. Juniors, 05-649 (La.App. 3 Cir. 12/30/05), 918 So.2d 1137, writ

denied, 06-267 (La. 9/15/06), 936 So.2d 1257, cert. denied, 549 U.S. 1226, 127

S.Ct. 1293 (2007), the defendant filed a motion for a sanity commission. The trial

court granted the motion and appointed two doctors to examine him. Both doctors

conducted an examination and submitted letters to the court stating that the

defendant was capable of proceeding to trial and that he was not suffering from a

20

mental disorder such that undermined his ability to understand right from wrong.

Thereafter, there was nothing entered into the record which showed that there was

a contradictory hearing or that the trial court made a determination regarding the

defendant’s mental capacity. After conviction, the defendant alleged on appeal

that the trial court erred when it allowed him to be tried without adjudicating his

competency to proceed to trial. This court conditionally affirmed the conviction

and remanded the matter to the trial court to determine whether a nunc pro tunc

hearing was possible, noting as follows:

The supreme court discussed the need to address a defendant’s
competency in State ex rel. Seals v. State, 00-2738, pp. 5-6
(La.10/25/02), 831 So.2d 828, 832-33 (citations omitted) (emphasis
added), as follows:

At the outset, we note the longstanding precept
that a defendant does not have an absolute right to the
appointment of a sanity commission simply upon request.
A trial judge is only required to order a mental
examination of a defendant when there are reasonable
grounds to doubt the defendant’s mental capacity to
proceed. It is well established that “reasonable grounds”
exist where one should reasonably doubt the defendant’s
capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to
assist in preparing his defense. To determine a
defendant’s capacity, we are first guided by La.Code
Crim. Proc. arts. 642, 643, and 647.

....

This protection, however, is not to say that every
time a defendant feigns incapacity the court must order a
full-blown sanity commission. In State v. Berry, 391
So.2d 406, 411 (La.1980), we firmly held that the trial
court is granted great discretion in determining if a
defendant should be afforded a mental examination to
determine capacity. Indeed, where a trial judge finds
enough evidence to doubt a defendant’s capacity, the
court may order the defendant be examined by a single
psychiatrist to satisfy requirements of La.Code Crim.
Proc. art. 643. There is no need for a sanity commission

21

to be appointed each time capacity of a defendant is
questioned.

That being said, questions regarding a defendant’s
capacity must be deemed by the court to be bona fide and
in good faith before a court will consider if there are
“reasonable grounds” to doubt capacity. Where there is a
bona fide question raised regarding a defendant’s
capacity, the failure to observe procedures to protect a
defendant’s right not to be tried or convicted while
incompetent to stand trial deprives him of his due process
right to a fair trial. At this point, the failure to resolve
the issue of a defendant’s capacity to proceed may result
in nullification of the conviction and sentence under State
v. Nomey, 613 So.2d 157, 161-62 (La.1993), or a nunc
pro tunc hearing to determine competency
retrospectively under State v. Snyder, 98-1078
(La.4/14/99), 750 So.2d 832.

Id. at 1143-44.

In the current case, we conclude that the trial court did not have reasonable

grounds to doubt Defendant’s mental capacity to proceed. The caption of the

initial motion filed with the trial court referenced the appointment of an expert for

Defendant, who is indigent. While a generic request for a mental examination was

made in the body of the motion, there was no specific example of the reason the

request was made, such as in Carney, 663 So.2d at 472, wherein it was stated that

the defendant “appeared to be hallucinating, could not assist counsel during

interviews, and did not have the mental capacity to understand the proceeding

against him or assist in his defense.” Because the record supports the finding that

Defendant erroneously requested that an expert be appointed to examine his mental

capacity, the trial court committed no error in granting Defendant’s request to

withdraw the sanity commission request.

22

Unanimous Jury Verdict

Defendant argues that because he was charged with first degree murder, he

was entitled to a unanimous jury verdict even though he was convicted of the

lesser included offense of second degree murder because there was nothing in the

record to indicate that the State opted not to seek the death penalty. In support of

his argument, Defendant cites La.Code Crim.P. art. 782, which provides:

A. Cases in which punishment may be capital shall be tried by a
jury of twelve, all of whom must concur to render a verdict. Cases in
which punishment is necessarily confinement at hard labor shall be
tried by a jury composed of twelve jurors, ten of whom must concur to
render a verdict. Cases in which the punishment may be confinement
at hard labor shall be tried by a jury composed of six jurors, all of
whom must concur to render a verdict.

Defendant further relies on State v. Goodley, 398 So.2d 1068 (La.1981),

wherein the defendant was charged with first degree murder but convicted of

manslaughter by an eleven to one vote. The supreme court reversed the

conviction, holding:

[I]t is clear that the vote on the lesser included offense, which acts as
an acquittal verdict on the capital charge, must conform to the
requirements for a lawful verdict on the greater offense, a unanimous
verdict. Any other conclusion would violate the constitutional
mandate that a “verdict” in a capital case must be by a unanimous
jury.

Id. at 1070.

While Goodley was correctly decided based on the law at the time of its

rendition, effective August 15, 2007, the first degree murder statute, La.R.S. 14:30,

was amended by 2007 La. Acts No. 125, § 1, to provide as follows:

C. Penalty provisions.

(1) If the district attorney seeks a capital verdict, the offender
shall be punished by death or life imprisonment at hard labor without
benefit of parole, probation, or suspension of sentence. The

23

provisions of C.Cr.P. Art 782 relative to cases in which punishment
may be capital shall apply.

(2) If the district attorney does not seek a capital verdict, the
offender shall be punished by life imprisonment at hard labor without
benefit of parole, probation or suspension of sentence. The provisions
of C.Cr.P. Art 782 relative to case in which punishment is necessarily
confinement at hard labor shall apply.

Here, Defendant was convicted of second degree murder by a ten-to-two

vote. The Bill of Indictment charged Defendant with first degree murder but did

not state without the death penalty. However, a minute entry dated December 13,

2011, of the grand jury proceedings, stated:

The Court called for the indictments. The foreman handed the
Clerk the report and indictment and the Clerk handed the[m] to the
Court. The Court then instructed the Clerk to read the indictment.

The Grand Jury returned a true bill on the accused, the charge
of First Degree Murder without the death penalty.

The jury was also informed that the death penalty was not being sought during voir

dire and again when the trial court gave the jury their instructions following the

trial.

Accordingly, under the current version of La.R.S.14:30(C)(2), there was no

requirement that Defendant be convicted by a unanimous verdict of twelve jurors.

See State v. Bishop, 10-1840 (La.App. 1 Cir. 6/10/11), 68 So.3d 1197, writ denied,

11-1530 (La. 12/16/11), 76 So.3d 1203, and State v. Clarkson, 11-933 (La.App. 3

Cir. 3/7/12), 86 So.3d 804, writ denied, 12-788 (La. 9/28/12), 98 So.3d 826. There

is no merit to this assignment of error.

Challenges for Cause

Defendant argues that the trial court erred when, during voir dire, it denied

his challenges for cause as he sought to exclude two prospective members of the

jury venire, Mr. Jolet and Mr. Lagman.

24

Louisiana Code of Criminal Procedure Article 799 provides:

In trials of offenses punishable by death or necessarily by
imprisonment at hard labor, each defendant shall have twelve
peremptory challenges, and the state twelve for each defendant. In all
other cases, each defendant shall have six peremptory challenges, and
the state six for each defendant.

In State v. Scott, 04-1312, pp. 16-17 (La. 1/19/06), 921 So.2d 904, 921, cert.

denied, 549 U.S. 858, 127 S.Ct. 137 (2006), overruled on other grounds by State v.

Dunn, 07-878 (La. 1/25/08), 974 So.2d 658, the supreme court discussed the trial

court’s role in determining whether a prospective juror should be excused for cause

from the jury panel, as follows:

A trial court is vested with broad discretion in ruling on
challenges for cause, and its rulings will be reversed only when a
review of the voir dire record as a whole reveals an abuse of
discretion. State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683,
686; State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278,
1281. Prejudice is presumed when a challenge for cause is denied
erroneously by a trial court and the defendant ultimately exhausts his
peremptory challenges. Robertson, 92-2660 at p. 3, 630 So.2d at
1280; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous
ruling depriving an accused of a peremptory challenge is a substantial
violation of his constitutional and statutory rights and constitutes
reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686; State v.
Bourque, 622 So.2d 198, 225 (La.1993). “A challenge for cause
should be granted, even when a prospective juror declares his ability
to remain impartial, if the juror’s responses as a whole reveal facts
from which bias, prejudice or inability to render judgment according
to law may be reasonably implied.” State v. Jones, 474 So.2d 919,
926 (La.1985). However, a trial court does not abuse its discretion
when it refuses to excuse a prospective juror on the ground he is not
impartial where, after further inquiry or instruction, the potential juror
has demonstrated a willingness and ability to decide the case
impartially according to the law and evidence. Robertson, 92-2660 at
p. 4, 630 So.2d at 1281.

To prove there has been error warranting reversal of a
conviction, defendant is only required to show: (1) the erroneous
denial of a challenge for cause; and (2) the use of all his peremptory
challenges. Robertson, 92-2660 at p. 3, 630 So.2d at 1281.

25

Here, Defendant does not argue in brief that he had exhausted all of his

peremptory challenges. The record indicates that Mr. Jolet was his tenth

peremptory challenge. Thereafter, the twelve jurors were selected for the panel.

While the trial court did deny Defendant’s challenge for cause of the prospective

juror, Mr. Lagman, the selection process never reached a point where the decision

to use a peremptory challenge to excuse him was necessary as the twelve jurors

were already selected. Thus, because Defendant failed to show he exhausted all of

his peremptory challenges, there is no merit to this assignment of error.

DECREE

The evidence was sufficient to convict Defendant of the offense of second

degree murder of his infant son. There was no error when the trial court allowed

Defendant to withdraw the erroneously filed motion for a sanity commission.

Defendant was not entitled to a unanimous jury in this case. Finally, Defendant’s

constitutional right to a tried by an impartial and competent jury was not violated

when the trial court denied Defendant’s challenge for cause of two prospective

jurors. Accordingly, Defendant’s conviction and sentence are affirmed.

The trial court is directed to inform Defendant of the provisions of La.Code

Crim.P. art. 930.8 by sending appropriate written notice to Defendant within ten

days of the rendition of the opinion and to file written proof in the record that

Defendant received the notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

26