State of Louisiana v. Jaymes Larmar Harris

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-981

STATE OF LOUISIANA

VERSUS

JAYMES LAMAR HARRIS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 311,414
HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

CONVICTIONS AND SENTENCES AFFIRMED.

James C. Downs
District Attorney – 9th Judicial District
Michael W. Shannon
Assistant District Attorney – 9th Judicial District
P. O. Drawer 1472
Alexandria, LA 71309
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Jermaine L. Harris
620 Murray Street
Alexandria, LA 71301
Telephone: (318) 442-6240
COUNSEL FOR:
Defendant/Appellant - Jaymes Lamar Harris

THIBODEAUX, Chief Judge.

Jaymes Lamar Harris appeals from convictions and sentences for one

count of second degree murder under La.R.S. 14:30.1(A)(1) or (2) and one count

of obstruction of justice under La.R.S. 14:130.1(A)(1)(a). Finding sufficient

evidence to support the jury’s verdicts, we affirm both convictions and sentences.

We refer two of the defendant’s claims of ineffective assistance of counsel to post-

conviction relief.

I.

ISSUES

We must decide:

(1) whether the evidence presented at trial was sufficient to support
a conviction of second degree murder;

(2) whether the evidence presented at trial was sufficient to support
a conviction for obstruction of justice;

(3) whether the trial court deprived Mr. Harris of his federal and
state constitutional rights to compulsory process and to put on a
defense; and

(4) whether Mr. Harris was denied effective assistance of counsel
under the Sixth and Fourteenth Amendments to the U.S.
Constitution.

II.

FACTS AND PROCEDURAL HISTORY

At 10:46 a.m. on May 15, 2012, the Rapides Parish Communications

District received a 911 call regarding the death of a child. Upon arrival at the

scene, police found a twenty-one-month-old female child, Aleecia Miller, lying in

a bed. The child’s body appeared to be covered in a Vaseline-type substance, was

cold to the touch, and was already stiffening due to rigor mortis. The forensic

pathologist determined that the victim had been dead at least eight to twelve hours

when the police discovered her. The cause of death was determined to be “acute

peritonitis due to stomach perforation resulting from blunt force injuries,” and the

manner of death was determined to be homicide. The forensic pathologist also

found approximately sixteen bruises on the victim’s body, all of which appeared to

be less than eighteen hours old. Defendant Jaymes Harris and the victim’s mother,

Porsha Miller, were arrested for second degree murder and obstruction of justice.

Both were charged by grand jury indictment with one count of second

degree murder, a violation of La.R.S. 14:30.1(A)(1) or (2), and one count of

obstruction of justice, a violation of La.R.S. 14:130.1(A)(1)(a). The State severed

the trials. The only defendant in the present appeal is Jaymes Lamar Harris.

Mr. Harris pled not guilty to the charges. He subsequently filed an

Application for Appointment of Sanity Commission, raising the issues of capacity

to defend and capacity to understand right from wrong at the time of the crime.

Following a contradictory hearing, the trial court found Mr. Harris competent to

proceed. Following trial, the jury found Mr. Harris guilty of second degree murder

on count one and guilty of obstruction of justice on count two.

For second degree murder, Mr. Harris was sentenced to life

imprisonment without benefit of probation, parole, or suspension of sentence. For

obstruction of justice, he was sentenced to twenty years, to run concurrently with

the life sentence imposed for second degree murder.

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III.

LAW AND DISCUSSION

Sufficiency of the Evidence

The defendant alleges that the evidence was insufficient to convict

him of second degree murder and obstruction of justice.

Standard of Review

The standard of review in a sufficiency of the evidence claim is
“whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found proof beyond a
reasonable doubt of each of the essential elements of the crime
charged.” The Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781
(1979)] standard of review is now legislatively embodied in La.Code
Crim.P. art. 821. It does not allow the appellate court “to substitute its
own appreciation of the evidence for that of the fact-finder.” The
appellate court’s function is not to assess the credibility of witnesses
or reweigh the evidence.

State v. Francis, 12-1221, pp. 6-7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533, writ

denied, 13-1253 (La. 11/8/13), 125 So.3d 449 (citations omitted).

Evidence Introduced at Trial

Sonya Gremillion testified that she received the 911 call regarding the

victim’s death at 10:46 a.m. on May 15, 2012. Two Rapides Parish Sheriff’s

Deputies who responded to the call testified regarding their investigations.

Detective Stephen Phillips arrived at approximately 11:19 a.m. He

found the child lying on a bed about knee high in what appeared to be her

bedroom. She was cold to the touch and stiffening due to rigor mortis. He opined

that she had been dead at least twelve hours or more.

Deputy Randell Isles arrived at the scene at 11:33 a.m. He testified

that the “baby” was lying on the bed, dressed in a white shirt and diaper. The bed

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was soiled and smelled of urine, but the victim’s diaper was clean. A Vaseline

substance was all over the victim’s body. She had swelling and red marks around

her eyes, swelling in her stomach, fluid oozing out of her nose and mouth, and a

small blood hemorrhage in her eye. He saw discoloration and red marks on the left

side of her torso, and swelling, red marks, and bruising on the right side. Later he

saw an “older brand slash burn on [the child’s] upper right shoulder” which looked

like the very top of a cigarette lighter. On the floor, a spot near the bed appeared to

be some type of bowel or ooze. Another spot was found on the mattress, and an

odor of urine was detected in a comforter balled up on the bed. All window units

in the residence were off.

Detective Phillips spoke with the defendant at the scene. Mr. Harris

said the victim was the child of his girlfriend, and they lived at the residence

together. He gave an account of events beginning at noon the previous day. After

eating pancakes, the victim started vomiting and felt feverish. They went to bed

around 9:00 p.m. Later that evening, into the early morning hours, he heard

Aleecia fall out of bed. He put her back in her bed and went back to his bed.

When he got up the next morning, Aleecia was face down on the floor near her

bed. He did not enter the room. He went to his mother’s residence a couple of

blocks away, talked to his mother for ten minutes, and returned home. He then

checked on Aleecia and thought she may be deceased. He informed the child’s

mother and “the two of them went and made contact with their landlord . . . asked

for her assistance to come back because they didn’t know what was wrong with the

child.”

Detective Phillips said he was somewhat suspicious upon seeing

obvious signs of bruising in various stages, which did not appear consistent with a

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mere accident. He described a shiny substance on the victim like Vaseline, a

container of which was later discovered on Mr. Harris’ bed. Detective Phillips also

thought it odd that the victim was wearing a crisp, clean diaper from the package,

as if it had just been placed on her. Because of the coldness and stiffness of the

victim’s body, he concluded that there was a delay in reporting her death. His

suspicions were further aroused by the defendant’s statement that he found the

victim on the floor. He believed that if the victim was still on the floor with her

arms stiff, she would have been elevated off the floor. He reported that Willie Mae

Young, the neighbor/landlord, was the first person to call 911. As a result of his

investigation and the pathology report, Detective Phillips obtained a warrant to

arrest both Jaymes Harris and Porsha Miller for second degree murder and for

obstruction of justice as “it appeared that the scene had been tainted and/or

rearranged, moved, staged.” Subsequently, Detective Phillips recorded two

additional statements made by the defendant.

In the May 16, 2012 statement, the defendant said he did not know

what happened. He reported similar events including the pancakes and Aleecia’s

fall from bed. In this statement, Aleecia woke up three or four times, and Porsha

also got up to check on her. The next morning, Harris checked on Aleecia; she

was face down on the floor; and he went to his mom’s house. When he returned

home, he checked again and told his “old lady” that the “baby was dead.” The

defendant said Aleecia was not wearing any clothes because she was hot. He put a

diaper on her because he was not comfortable with her being without a diaper in

front of other people. He stated that he barely disciplined the child and spanked

her on her hand or her butt. He claimed that he did not know how Aleecia received

her injuries.

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In the May 18, 2012 statement, the defendant attempted to blame

Porsha Miller for everything. He said he got up in the middle of the night and saw

Aleecia standing in the middle of the floor in a daze. He put her back in her bed.

He stated that Porsha was getting aggravated with the child because she would not

stay in bed. One of the times Porsha got up, he saw her “trying to discipline”

Aleecia. He described Porsha’s “discipline” as swinging her arms “wild” at the

victim and hitting her. The defendant stated that he tried to stop Porsha from

“whooping” the child and he probably “nipped” the victim a couple of times. He

also stated that he blacked out, and he probably hit the child because whatever he

hit felt different from hitting the bed. He said Porsha stayed with Aleecia, and he

went back to bed. The next morning, he put a blanket on Aleecia because it was

cold in the house and then went to see his mom. When he returned to his house

and tried to pick the victim up off the floor, he could not do so. He said it was like

she was frozen to the floor. The defendant said he and Porsha panicked and went

to tell Ms. Young that “my baby was dead.” He went to tell his mom and returned

to his house to find Ms. Young trying to administer CPR.

When asked how the child came to be wearing a diaper, the defendant

stated that he put the diaper on her because it was “freezing cold.” When asked

about the Vaseline on the victim, the defendant replied:

A: Porshia[1] was trying, she was trying to rub the Va… the
Vaseline on her to um, (inaudible) my mom, my mom was
saying something about like she, she like (inaudible) when
Aleecia use to like Aleecia she, she always like jump, jump off
the bed (inaudible) and she always like bruised herself.

Q: Right.

1
The transcript of the May 16, 2012 statement spells Porsha as “Porshia.”

6

A: So my mama use, my mama was telling us like if you
like rub, rub the Vaseline on her and stuff for the to make, make
most, make the bruises go away. So Porshia, she tried to, she
tried to rub the Vaseline on her and to make, make some make
the bruises go away. The bruises, the bruises went didn’t go no
where.

Q: When did she tell you that, that morning?

....

A: My mom, she told me that, that morning, that morning
when I went back when I came back from her house.

When asked how the subject of Vaseline came up, the defendant said

that he brought it up. When asked who put the Vaseline on Aleecia, the defendant

answered “Porshia” and then stated:

A: Porshia start off rubbing it on her face.

Q: Okay, what on her face?

A: The Vaseline.

Q: Okay, where did y’all do this at? Your room, the baby’s
room?

A: She did the Vaseline in the baby’s room.

The defendant was asked if he knew anything about a rag found in the

bottom of his dresser drawer that “had some of the same stuff that was on the bed.”

He stated that he was confused and knew nothing about the rag. He further stated:

A: I’m thinking Porshia must of, must have been doing a lot
when I left to go to our mama about the, the baby being dead.
Cause I, I didn’t know nothing about no rag no, no rag being in
the room or nothing.
Detective Phillips testified at trial that since the arrest, Porsha had

given birth to the defendant’s child, and the child had been placed in foster care.

The next witness to testify was Jarrod Guin, an inmate incarcerated

for “simple burglary, accessory after the fact.” Mr. Guin testified that he and the

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defendant were housed in the same cell block, which was separated from the

women’s cell block by a very thin wall. The inmates created a hole between the

two cells so that the men and women could talk. Mr. Guin said he overheard the

defendant speaking with a woman on the other side of the wall, whom the

defendant identified as Porsha Miller, and as his wife. When asked what he

overheard the defendant say to Porsha, Mr. Guin replied:

A: To just be cool, that his mom had him a good lawyer,
everything was going to be all right. They ain’t never going to
find out what happened.
When asked if the defendant ever mentioned his own daughter, Mr.

Guin responded, “Yeah, that she was pregnant with his daughter, that we needed to

worry about ours. Get out and get her back.” The defendant told Mr. Guin that his

daughter was in foster care. When asked if the defendant ever said anything about

Aleecia, Mr. Guin replied, “He really didn’t care for her that much.” The

defendant told Mr. Guin that the victim was “spoiled rotten,” needed lots of

attention, cried a lot, always caused trouble between him and Porsha; and that he

would get angry when Aleecia woke him up with her crying. The defendant also

told Mr. Guin that every time he looked at Aleecia, he would see some other man.

When the State asked Mr. Guin if the defendant ever talked to him

about how he disciplined Aleecia, the following colloquy ensued:

A: He said he would whip her on occasions.

Q: Did he ever indicate that he got carried away with her?

A: He said he got carried away one time, he didn’t know
what happened to her.

Q: And what?

A: He didn’t know how bad he had whipped her.

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Q: Okay. When he said that did he indicate that that had
anything to do with her death?

A: He said he tried to give her CPR and couldn’t get her
back.

Q: So I – let me correct and I – he said he whipped her - -

A: Yeah.

Q: - - and then later tried CPR?

A: Yeah, once he realized she wasn’t responsive.

....

Q: Did he talk about how hard he whipped her?

A: He didn’t say how hard, he just said he – he whipped her
pretty rough.

Mr. Guin indicated that what he was told about the whipping made

him angry because it could have been his child and there were other ways of

disciplining children these days. Mr. Guin further testified that he heard the

woman cry while talking with the defendant. He also heard the defendant tell the

woman to forgive him, that he would make it up to her, and, “Stick with the story.”

When asked what the defendant told him the story was, Mr. Guin stated, “That she

had a parasite in her stomach and killed her.” When cross-examined, Mr. Guin

admitted that he had other convictions, but said he was promised nothing in

exchange for his testimony.

Forensic Pathologist Dr. Christopher Tape testified that he autopsied

the victim on May 16, 2012. He opined that the cause of death was “acute

peritonitis due to stomach perforation due to blunt force injuries to body.”

Considering all of the victim’s internal and external injuries, Dr. Tape opined that

they were caused by blunt force impact, and the trauma was “nonaccidental,” or

9

“inflicted trauma.” He classified the death as a homicide. He explained that the

perforation of the stomach had blood around it. Essentially, the peritonitis was the

inflammation of the abdominal cavity caused when the intestines opened, allowing

partially digested food, stomach acid, and bacteria from the bowel to leak into the

abdominal cavity, creating a deadly combination. Acute means that it happened

quickly; it was not chronic. He also saw no evidence of parasites in the victim.

Dr. Tape described multiple internal injuries including bruises to each

kidney; contusions on both lungs; a contusion in the muscle under the skin of the

left upper quadrant of the abdomen; a muscle hemorrhage underneath the skin in

the muscle of the right buttock and the right lower back; the stomach perforation

surrounded by serosal contusion (meaning outside of the organ) and hemorrhage;

multiple contusions of the mesentery (vascular structure that holds the loops of

intestine together) and the small intestine serosa (thus bruising on both the outside

of the intestine and on the support structure of the intestine); and contusion of the

serosa of the esophagus. When asked if someone could cause the injuries by

blacking out and throwing their hands around to “nip the body,” Dr. Tape

answered, “You would have to nip it very hard and multiple times.”

Using photographs, Dr. Tape pointed out external injuries to the jury,

including a bruise on the victim’s right forehead that extended to the right

eyebrow; a contusion and scratch on the victim’s right cheek; and a number of

well-healed, permanent scars. He approximated that there were sixteen bruises on

the child’s body. Dr. Tape explained that bruises go through a sequence of color

changes as the hemoglobin breaks down. Since none of the victim’s bruises were

yellowing, they all appeared to be less than eighteen hours old. The jury was also

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shown a healed scar on the victim’s right shoulder that was consistent with the top

of a cigarette lighter, and a large bruise on the flank that extended to the back.

Based upon the stiffness and temperature of the victim’s body when

she was found, Dr. Tape opined that she had been dead at least eight to twelve

hours prior to the death being reported. He found contusions on the victim’s back

consistent with the victim having been slapped with a hand with the force of a

significant blow. When asked if the injuries could be the result of the victim’s

having rolled off of the bed, Dr. Tape said, “No. Any one of them perhaps with a

high enough bed, perhaps you can get one injury, but you wouldn’t likely get these

multiple injuries.”

Dr. Tape discussed the petechial hemorrhages in the victim’s right and

left eyes, describing them as force injuries. The largest one was actually multiple

hemorrhages coming together. He believed each petechial hemorrhage was an

extension of a correlating bruise or contusion on the face. Pointing them out one

by one, Dr. Tape explained, “Whatever caused this bruise probably caused that

petechial hemorrhage. Whatever caused this bruise you can see it coming right to

the corner of the eye there probably caused that petechial hemorrhage right there.”

Dr. Tape said the particular bruise on the victim’s right flank was

caused by significant force. When asked whether a fall from eighteen to twenty-

four inches would cause this type of injury, Dr. Tape replied, “No.” When asked,

he said he was not able to determine whether the injuries were caused by a man or

a woman. When asked whether the victim’s well-healed scars were consistent with

repeated abuse, Dr. Tape stated: “The cigarette – the scar that’s consistent with a

cigarette lighter and the multiple injuries and multiple spots, acute injuries and

chronic injuries, yes, I would say it’s consistent with abuse, chronic abuse.”

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Dr. Tape agreed that the fatal blow had occurred within eighteen

hours of the investigation. After Dr. Tape’s testimony, the State rested its case.

Leonard Goff testified that he considered the defendant his stepson.

He said he had observed him since childhood and believed him to have “special

needs,” explaining that he was on medication, had visions and headaches, and “he

would hear voices and stuff.” Mr. Goff also testified that the defendant had gone

to a special school. He said the defendant was very gentle with the victim and very

protective of her. He said the defendant met Porsha via the internet and went to

Arkansas where he stayed with her. Mr. Goff went there to get the defendant and

found them living in a run-down store. He described Porsha’s and the baby’s

clothing as “dingy” and said the child had sores on her skin. Porsha and the child

came back to Louisiana with them around December 2011.

The defendant’s aunt, Michelle Embery, described the defendant as

being a “slow child,” and as being slow in his mental capacity. Ms. Embery

believed that she met Porsha in December 2011. She thought the baby needed to

be taken to the doctor because of the “stuff all over her body.” Ms. Embery could

not describe the “stuff” but stated that she would not describe it as bruises. She

testified that she never saw the defendant discipline the victim.

The defendant’s sister, Alvera Curry, also testified that the defendant

was a little slow as a child, and that he received government disability assistance

for ADHD. She first met Porsha in December 2011. She described Porsha and the

victim as dirty and said the victim had “stuff” all over her skin. Ms. Curry did not

see any bruises or marks on the victim’s skin (other than the skin condition) when

the victim first arrived from Arkansas. Ms. Curry saw the defendant verbally, but

12

not physically, discipline Aleecia. She said she last saw Porsha and Aleecia a

week or two before the death. Between December 2011 and May 2012, Curry

spent a night with the defendant, at which time she bathed “the baby.” When

asked if she noticed bruises, Ms. Curry testified that she did notice bruises on the

baby’s arm. When shown a photo of the cigarette lighter mark, she said she did

not notice this mark when she bathed the baby.

The last witness to testify was the defendant’s mother, Eva Curry.

She testified that when she and Mr. Goff went to get the defendant in Arkansas,

Porsha and the victim were “nasty and dirty.” When bathing Aleecia, she saw

bites all over her. Eva also testified that she thought something was wrong with

Aleecia because she screamed a lot, and it sounded like she was in pain. She also

said Aleecia’s stomach was swollen and that she told Porsha that the victim needed

to see a doctor. When asked if she ever saw the defendant discipline Aleecia, Eva

replied, “No, they didn’t discipline that baby.” When asked whether she ever told

the defendant that putting Vaseline on a bruise would help the bruise fade, Eva

answered:

A: No, I told him that the compound that the doctor
gave the baby, which was for the eczema, I told him that
the stuff that the baby had all over her, the compound is
used to put on that stuff. Jaymes called them bruises
because of the way they looked to him but they was [sic]
eczema and there was a bottle of compound, it wasn’t
grease, he just said it’s grease, Vaseline, but it’s not
Vaseline, it’s a compound that they give them that they
put on children for funguses.

Eva stated that the morning the victim died, the defendant asked her

for the “stuff to go on the baby’s body and stuff that she had on her.” Eva said she

told the defendant to go get the child so she could be taken to the doctor. The next

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time Eva saw the defendant, he was running and stumbling, was very upset and

said something was wrong with the baby. Eva thought Porsha had miscarried.

Sufficiency of the Evidence as to Second Degree Murder

Mr. Harris was charged with second degree murder which is defined,

in pertinent part, as follows:

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 to inflict great bodily
harm.

La.R.S. 14:30.1

Cruelty to juveniles is defined, in pertinent part, as follows:

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.
Lack of knowledge of the child’s age shall not be a
defense[.]

La.R.S. 14:93.

Second degree cruelty to juveniles is defined, in pertinent part, as

follows:

A. (1) Second degree cruelty to juveniles is the
intentional or criminally negligent mistreatment or
neglect by anyone over the age of seventeen to any child
under the age of seventeen which causes serious bodily
injury or neurological impairment to that child.

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(2) For purposes of this Section, “serious bodily
injury” means bodily injury involving protracted and
obvious disfigurement or protracted loss or impairment
of the function of a bodily member, organ, or mental
faculty, or substantial risk of death.

La.R.S. 14:93.2.3.

The defendant asserts that the State’s case was based solely on

circumstantial evidence since no eyewitnesses testified at trial as to seeing him kill

the victim. He argues that there was insufficient evidence to prove he specifically

intended to kill the victim, and there was insufficient evidence to prove that he

killed the victim while committing the felony of cruelty to a juvenile. The

defendant further asserts that there was a sufficiently reasonable hypothesis of

innocence, that is, “Porsha Miller struck the fatal blow that caused the death of

A.J.M. and was responsible for the repeated abuse of A.J.M.”

Considering the victim’s cause and manner of death, we find that

there was sufficient evidence that whoever inflicted the injuries upon Aleecia

Miller specifically intended to kill the victim or to inflict great bodily harm, or

without such intent, killed her while committing cruelty to a juvenile. The

evidence was sufficient to prove that whoever inflicted the injuries intentionally

mistreated the victim, thus committing cruelty to a juvenile. Where the cause of

death was non-accidental blunt force trauma, and the bruises were inflicted within

eighteen hours of the discovery of the victim, there was sufficient evidence to

prove that the victim died during the commission of cruelty to a juvenile. The only

issue remaining is the identity of the person who inflicted the injuries. This court

has stated the following regarding circumstantial evidence:

[W]hen the conviction is based upon circumstantial
evidence, La.R.S. 15:438 provides that such evidence
must exclude every reasonable hypothesis of innocence.

15

State v. Camp, 446 So.2d 1207 (La.1984); State v.
Wright, 445 So.2d 1198 (La.1984). However, La.R.S.
15:438 does not establish a stricter standard of review on
appeal than the rational juror’s reasonable doubt
standard. . . . On appeal, the issue is whether a rational
trier of fact, when viewing the evidence in a light most
favorable to the prosecution, could find that all
reasonable hypotheses of innocence were excluded.

State v. Dotson, 04-1414, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310, 312.

Additionally, when a jury “‘reasonably rejects the hypothesis of innocence

presented by the defendant[], that hypothesis falls, and the defendant is guilty

unless there is another hypothesis which raises a reasonable doubt.’” State v.

Strother, 09-2357, p. 11 (La. 10/22/10), 49 So.3d 372, 378 (quoting State v.

Captville, 448 So.2d 676, 680 (La.1984)).

In support of his hypothesis of innocence, the defendant refers to his

December 18th statement wherein he told Detective Phillips that he saw Porsha

swinging wildly at the victim. He also refers to the conditions in which Porsha and

Aleecia lived before coming to Louisiana––living in an abandoned store, being

dirty, and the victim’s having sores all over her body. These facts, the defendant

argues, show that the victim was neglected before she began living with him. We

note, however, that none of the defendant’s relatives who testified at trial recalled

seeing bruises on Aleecia when she came to Louisiana. The jury obviously

rejected the defendant’s hypothesis of innocence. Considering all facts

established––the victim lived with the defendant; she had bruises all over her body;

there was delay in reporting her death; the defendant made inconsistent statements

to the police about what happened; he told Mr. Guin he got carried away and

whipped the victim “pretty rough” and then tried to revive her with CPR; and Mr.

Guin’s report of hearing the defendant tell Porsha to forgive him, stick with the

16

story, and no one would find out what happened––we find the jury’s rejection of

the defendant’s hypothesis of innocence reasonable.

Additionally, the jury was instructed as to the law of principals and

could have found that the defendant acted as a principal in the crime, even if the

jury believed that Porsha abused Aleecia. The jury was instructed as follows:

All persons concerned in the commission of a
crime, whether present or absent, and whether they
directly commit the act constituting the offense, aid and
abet in its commission, or directly or indirectly counsel
or procure another to commit the crime are principles
[sic].

The defendant asserts that the evidence was insufficient to find him

guilty as a principal to second degree murder because there was no evidence that

he counseled, procured, or assisted anyone in the killing of the victim. As fully

discussed above, the evidence belies this assertion: the delay, the defendant’s

presence and participation, his own admissions, his inconsistent statements to

police, his remarks to Mr. Guin and in the hearing of Mr. Guin wherein the

defendant asked Porsha’s forgiveness and told her to “stick with the story” and no

one would find out what happened. Given this evidence, the jury could have

reasonably found that the defendant and Porsha acted as principals in the second

degree murder of the victim.

The defendant asserts that no evidence was presented regarding

Aleecia Miller’s exact age, and, thus, the State failed to prove a necessary element

of cruelty to juveniles. Pursuant to La.R.S. 14:93 and La.R.S. 14:93.2.3, the victim

must be under the age of seventeen. The 2012 grand jury indictment lists Aleecia’s

date of birth as August 14, 2010. Dr. Tape indicated an age of twenty-one months.

The defendant’s statements repeatedly refer to her as a “baby,” as did his family

17

members at trial. Photographs clearly show that the victim was a toddler. The

evidence is clear that Aleecia was a juvenile under the statutes. We find that the

evidence was sufficient to find the defendant guilty of second degree murder.

Sufficiency of the Evidence as to Obstruction of Justice

Obstruction of justice is defined in La.R.S. 14:130.1A(1)(a) and B(1),

in pertinent part, as follows:

A. The crime of obstruction of justice is any of the
following when committed with the knowledge that such
act has, reasonably may, or will affect an actual or
potential present, past, or future criminal proceeding as
hereinafter described:

(1) Tampering with evidence with the specific
intent of distorting the results of any criminal
investigation or proceeding which may reasonably prove
relevant to a criminal investigation or proceeding.
Tampering with evidence shall include the intentional
alteration, movement, removal, or addition of any object
or substance either:

(a) At the location of any incident which
the perpetrator knows or has good reason to
believe will be the subject of any
investigation by state, local, or United States
law enforcement officers; . . .

....

B. Whoever commits the crime of obstruction of
justice shall be subject to the following penalties:

(1) When the obstruction of justice involves a
criminal proceeding in which a sentence of death or life
imprisonment may be imposed, the offender shall be
fined not more than one hundred thousand dollars,
imprisoned for not more than forty years at hard labor, or
both.

The defendant asserts that there was no evidence that he specifically

intended to distort the results of the investigation into the victim’s death. He

18

argues that he placed a diaper on Aleecia because it was cold, not to distort the

investigation. Additionally, he asserts that there was no evidence that he picked

the victim up from the floor after she was deceased, or, even if he did, that he

specifically intended to distort the investigation. Finally, he contends that the

Vaseline was rubbed on the victim by Porsha and that there is no evidence that his

mentioning Vaseline to his mom the morning Aleecia was found indicates that he

specifically intended to distort the investigation.

In State v. Megason, 10-112, p. 5 (La. 10/6/10), 47 So.3d 31, 34, this

court described specific intent as follows:

Specific 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).
Because specific intent is a state of mind, it does not need
to be proven by fact; it may be inferred from the
circumstances and the actions of the defendant. State v.
Allen, 99-320 (La.App. 5 Cir. 7/27/99), 742 So.2d 949.
The existence of specific intent is for the trier of fact to
determine, and review of this determination is correctly
made under the Jackson standard. Id.

Here, the defendant admitted that he put the diaper on Aleecia, but

changed his testimony regarding the reason for doing so. In one statement, he said

the victim was not wearing any clothes because she was hot, and he put a diaper on

her because he was uncomfortable with other people seeing her. In another

statement he said he put the diaper on her because it was “freezing cold.” He said

when he came back from his mother’s house the first time, he could not lift the

baby off the floor because she was “frozen” to the floor. The air conditioning

window units were not on in the residence when the officers arrived. It was the

middle of May. While the defendant stated that Porsha rubbed the Vaseline on the

victim, he admitted that when he went to see his mom the morning the victim was

19

found, he told his mom they needed Vaseline. The defendant said the Vaseline

was to make the bruises go away, but it did not work. He indicated that he was

there when Porsha starting applying it, but he also indicated that he found the baby

dead when he came back from his mother’s house the first time. This begs the

question, if the baby was already dead, why the Vaseline?

His mother denied discussing Vaseline or bruises; yet, the defendant

told a rather detailed account of its purposes. While the defendant introduced

evidence that he was “slow” and may have done things to clean up without

intending to distort the investigation, the jury could reasonably reject this

hypothesis of innocence and infer intent, pursuant to Megason, 47 So.3d 3, in light

of the defendant’s actions and statements, including his statement to Porsha to

“stick with the story” and “they’ll never find out what happened.”

The evidence revealed that the victim had been dead for eight to

twelve hours before anyone called 911, indicating a delay in reporting her death.

Considering all of these facts, we find that the jury reasonably found that the

defendant tampered with evidence with the specific intent to distort the results of

the criminal investigation. Accordingly, we find that the evidence was sufficient to

find the defendant guilty of both second degree murder and obstruction of justice.

Right to Compulsory Process and Defense

The defendant asserts that the trial court deprived him of his

constitutional right to compulsory process when the co-defendant, Porsha Miller,

was not required to testify as a witness in his defense. Instead, the court accepted a

blanket assertion of her Fifth Amendment privilege not to incriminate herself.

20

Citing La.R.S. 15:276,2 the defendant asserted that the trial judge was not bound by

such assertion. He argued that he only wanted to call Porsha to establish a

relationship between herself, the child, and the defendant, merely asking for

names, addresses, and how and when they met. The State argued that everything

the defendant sought to ask had already been established through other witnesses.

The trial court offered to let him re-examine the witnesses. Defense counsel

argued that he wanted to explore Aleecia’s relationship with her biological father

and the alleged statements the defendant made to Mr. Guin. The trial court

expressed its concerns that putting a co-defendant on the stand just for the purposes

of having her take the Fifth on a question-by-question basis would lead to

reversible error issues. Ultimately, the court accepted Porsha’s assertion of her

Fifth Amendment privilege, via her attorney and out of the presence of the jury.

In State v. Wilson, 394 So.2d 254, 259 (La.1981), the supreme court

held that the trial court committed reversible error by refusing to order a witness to

answer the defendant’s questions and assert the privilege on a question-by-question

basis. Subsequently, however, in State v. Brown, 514 So.2d 99 (La.1987), cert.

denied, 486 U.S. 1017, 108 S.Ct. 1754 (1988), the supreme court articulated that a

co-defendant’s blanket assertion of the Fifth Amendment privilege was

appropriate. Citing State v. Darby, 403 So.2d 44 (La.1981), cert. denied, 454 U.S.

1152, 102 S.Ct. 1022 (1982); State v. Edwards, 419 So.2d 881 (La.1982); and

State v. Coleman, 406 So.2d 563 (La.1981), the supreme court in Brown stated:

2
No witness can be forced to criminate himself, but the judge is not bound by the
witness’ statement that the answer would criminate him, when from the nature of
the question asked and the circumstances of the case such statement can not be
true.

La.R.S. 15:276

21

Darby, Edwards, and Coleman all held that
question by question invocation of the privilege was not
necessary under circumstances in which the witness
invoking the privilege was charged with participating in
the same crime as the defendant on trial and in which it
was apparent that the questioning would be devoted to
subject matter which would require the defendant to
invoke the privilege . . . . In other words, where a
witness in this position has reasonable grounds to assert
the privilege as to the entire area of expected questioning,
we have not required the witness to take the stand and
risk making an injurious disclosure through any answer
or explanation of a refusal to answer.

Brown, 514 So.2d at 110-11. See also State v. Bright, 98-398 (La. 4/11/00), 776

So.2d 1134.

The defendant argues that the trial court did not apply the proper legal

standard because it did not specifically decide that the defendant’s questions would

have given Porsha reasonable cause to apprehend danger from directly answering

the questions or from explaining why an answer could not be given. He contends

that instead, the trial court simply found that the information sought from Porsha

had already been elicited from other witnesses. He seeks to distinguish Brown,

Darby, Edwards, and Bright, arguing that the questions sought by the defendants in

those cases concerned the events surrounding the crime itself. He argues that here,

the testimony sought from the co-defendant would not have concerned any of the

events surrounding the victim’s death. He further asserts that his purpose in

calling Porsha Miller was not to draw a negative evidentiary inference, but to rebut

and discredit the statements of Jarrod Guin, such as, when Aleecia cried for her

real dad, Harris would tell her “he ain’t coming” and would sometimes whip her

and tell her that “he was her daddy now.” The defendant argues that Porsha could

have testified about whether Aleecia knew or had a relationship with her biological

father without incriminating herself in the death of the child.

22

Defense counsel correctly asserts that the trial court did not

specifically determine that Porsha’s answers to the proposed questions would have

caused her reasonable apprehension of an injurious disclosure. It is apparent from

the trial court’s reasoning that it was more concerned with improperly allowing the

defendant to call Porsha to the stand knowing that she would assert her Fifth

Amendment privilege, an assertion preferably made outside the jury’s presence:

It is improper conduct for either the prosecution or
the defense to knowingly to call a witness who will claim
a privilege, for the purpose of impressing upon the jury
the fact of the claim of privilege. American Bar
Association Standards of Criminal Justice, Relating to
the Prosecution Function, Standard 5.7(c), and Relating
to the Defense Function, Standard 7.6(c) (1971).

As the commentaries to these standards indicate,
claims of privilege are preferably determined outside of
the presence of the jury, since undue weight may be
given . . . to the claim of privilege and due to the
impossibility of cross-examination as to its assertion. . . .
For similar reasons, the courts have uniformly rejected a
defendant’s claim of error based upon the denial of his
request that a witness assert his claim of privilege before
the jury.

State v. Berry, 324 So.2d 822, 830 (La.1975), cert. denied, 425 U.S. 954, 96 S.Ct.

1731 (1976).

Even though the trial court erred in failing to determine whether

Porsha would be placed in an injurious position by asserting her Fifth Amendment

right on a question-by-question basis, the record does not support a finding that the

defendant was prejudiced by the error. The defendant acknowledges that a

harmless error analysis is applicable but cites cases pertaining only to a general

harmless error analysis. We note the following cases where a harmless error

analysis was applied to affirm the trial court’s allowance of the Fifth Amendment

privilege: See State v. Coleman, 406 So.2d 563 (La.1981) (finding no indication

23

that the witness’s testimony would have helped the defendant’s case); State v.

Johnson, 404 So.2d 239 (La.1981), cert. denied sub nom. Kelly v. Louisiana, 456

U.S. 925, 102 S.Ct. 1970 (1982) (finding that none of the witness’s statements

would bear on a fundamental part of the State’s case or bolster the defense); State

v. Larpenteur, 93-1424 (La.App. 4 Cir. 4/28/94), 636 So.2d 1103 (finding that

where testimony would tend to prove only that the witness was acting on the

defendant’s undocumented assertion, it would not have changed the outcome).

Further, in State v. P.T., Sr., 07-665 (La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ

denied, 08-26 (La. 5/30/08), 983 So.2d 895, this court applied a harmless error

analysis even though it did not expressly state such. In affirming the trial court, we

found that while the witness’s testimony may have raised the issue of the victim’s

credibility, it did “not offer any exculpatory testimony that would show that the

defendant did not” commit the offense. Id. at 1259-60.

Applying a harmless error analysis to the present case, we find that

the defendant fails to prove he was prejudiced by Porsha’s invocation of a blanket

Fifth Amendment privilege. The defendant asserts that the error was not harmless

because Jarrod Guin was the State’s star witness. We find that, while Mr. Guin

was an important witness, the questions sought to be asked of Porsha would not

have discredited Mr. Guin’s testimony. None of Porsha’s anticipated testimony

about whether Aleecia knew or did not know her real father would have discredited

Mr. Guin’s testimony as to what the defendant told him regarding his feelings

toward Aleecia, or what the defendant said he felt when he looked at Aleecia; i.e.,

that he would see another man. Further, it is not clear how Porsha’s testimony

about Aleecia’s father would discredit Mr. Guin’s testimony that the defendant

whipped the child when she cried for her real dad.

24

None of the questions that appellate counsel claims the defendant

wanted to ask Porsha regarding various relationships would have discredited Mr.

Guin’s testimony that he heard the defendant tell “the woman in the other cell” to

keep cool, to stick to the story, to forgive him, and to remember that no one would

find out what happened. Nor would Porsha’s anticipated testimony have offered

exculpatory evidence that the defendant did not commit the crimes with which he

was charged. As found by the trial judge, the defendant’s relationship with Porsha

was explored through other witnesses. Thus, any error that the trial court

committed in allowing Porsha to assert a blanket privilege was harmless.

Moreover, considering the apparently insignificant impact Porsha’s

testimony would have had on Mr. Guin’s credibility, the defendant’s right to

present a defense did not outweigh Porsha’s right against self-incrimination. In

P.T., 970 So.2d at 1259, this court quoted State v. Haddad, 99-1272, p. 5 (La.

2/29/00), 767 So.2d 682, 686, cert. denied, 531 U.S. 1070, 121 S.Ct. 757 (2001),

holding that “[a]s a general proposition, when faced with resolving the tension

between a witness’s Fifth Amendment privilege against self-incrimination and a

defendant’s Sixth Amendment right to present a defense, this court has consistently

recognized the witness’s right not to incriminate himself.” Accordingly, we find

that this assignment of error lacks merit.

Ineffective Assistance Claims

Continuance

The defendant contends that he was denied effective assistance of

counsel due to his trial counsel’s failure to move for a continuance after new

evidence was revealed on the day trial was set. The day before testimony began,

25

defense counsel informed the trial court that the State just informed him (the

previous day) that Jarrod Guin would be testifying at trial. Defense counsel

objected to Mr. Guin’s testimony based upon the timing. The State replied that it

had just been informed by Mr. Guin’s attorney that Mr. Guin had information

concerning the case. In fact, the State did not see Mr. Guin’s video statement until

it was watched for the first time with defense counsel. We have found:

Generally, the issue of ineffective assistance of
counsel is a matter more properly addressed in an
application for post conviction relief, filed in the trial
court where a full evidentiary hearing can be
conducted….

The defendant’s claim of ineffective assistance of
counsel is to be assessed by [a] two part test[.] The
defendant must show that counsel’s performance was
deficient and that he was prejudiced by the deficiency….

This Court has recognized that if an alleged error
falls “within the ambit of trial strategy” it does not
“establish ineffective assistance of counsel.” Moreover,
as “opinions may differ on the advisability of a tactic,
hindsight is not the proper perspective for judging the
competence of counsel’s trial decisions. Neither may an
attorney’s level of representation be determined by
whether a particular strategy is successful.”

State v. Anderson, 13-42, pp. 9-10 (La.App. 3 Cir. 7/3/13), 116 So.3d 1045, 1052,

writ denied, 13-1806 (La. 5/16/14), 139 So.3d 1019 (quoting State v. Griffin, 02-

1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ denied, 03-809 (La.

11/7/03), 857 So.2d 515) (citations omitted).

Here, the trial court allowed Mr. Guin’s testimony, commenting on

the nature of the testimony and also reasoning that weather conditions would cause

a later start after jury selection. The court also indicated that defense counsel

would have time to talk to an investigator, tell the court his needs, and, he could

determine the start time for trial the following day. Thus, it is possible that trial

26

counsel did, in fact, have time to investigate the matter. It is also possible that trial

counsel chose not to ask for a continuance for some other tactical reason.

Accordingly, it is not possible, based on the record before this court, to determine

whether trial counsel’s failure to ask for a continuance constituted ineffective

assistance of counsel:

Decisions relating to investigation, preparation, and
strategy require an evidentiary hearing and cannot
possibly be reviewed on appeal. Only in an evidentiary
hearing in the district court, where the defendant could
present evidence beyond that contained in the instant
record, could these allegations be sufficiently
investigated. Accordingly, the defendant’s claims of
ineffective assistance of counsel will be relegated to post-
conviction relief.

State v. Mitchell, 13-426, pp. 28-29 (La.App. 3 Cir. 11/6/13), 125 So.3d 586, 605,

writ denied, 14-102 (La. 6/20/14), 141 So.3d 807. Similarly, here, we find that the

defendant’s ineffective assistance of counsel claim in this assignment of error

should be relegated to post-conviction relief.

State’s Exhibits Eight and Ten

The defendant asserts that he was denied effective assistance of

counsel due to his trial counsel’s failure to object to the introduction of State’s

Exhibits Eight and Ten. State’s Exhibit Eight is a photograph of a small drawer

containing toys and an empty bottle of prescription hydrocodone prescribed to the

defendant. State’s Exhibit Ten is a photograph of a .25 caliber pistol with a

magazine containing two rounds. The pistol was located in the drawer of an end

table next to the couch. Both photographs were introduced into evidence without

objection by defense counsel. Appellate counsel contends that defense counsel

was ineffective for failing to object to these photographs as they were only

27

admitted to suggest that the defendant is a bad person and, thus, likely to commit

the crimes for which he is charged.

Even if the defendant can prove that the photographs were

inadmissible and should have been objected to by defense counsel, appellate

counsel fails to show that the defendant was prejudiced by the alleged error,

pursuant to Anderson, 116 So.3d 1045. The offense at issue involved physical

abuse to the victim that caused her death. There were no allegations that the victim

was shot or that the victim’s death was caused by prescription medication. The

coroner’s report conclusively established that the victim’s death was caused by

physical injuries, and the issue at trial was simply the identity of the perpetrator.

As discussed in the sufficiency analyses, there was ample evidence to support the

jury’s verdict without considering State’s Exhibits Eight and Ten. Thus, the

defendant fails to show that, even if trial counsel had objected and successfully

prevented the admission of the photographs, the jury’s verdict would have been

different. Accordingly, this assignment has no merit.

Voir Dire

Appellate counsel contends that the defendant was denied effective

assistance of counsel by his trial counsel’s failure to question any of the

prospective jurors during his voir dire examination. The record reveals that during

the voir dire examination, defense counsel addressed the prospective jurors as a

whole, explaining to them the State’s burden of proof, the fact that a co-defendant

had been charged, the law of principals, and the law of reasonable doubt. Defense

counsel did not individually question the prospective jurors. During the selection

process, defense counsel exercised peremptory challenges to strike certain jurors.

28

Defense counsel’s decision not to question the prospective jurors individually

could have involved a matter of trial strategy, which must be explored in an

evidentiary hearing and cannot be reviewed based on the record before this court.

See State v. Camp, 46,052 (La.App. 2 Cir. 3/16/11), 59 So.3d 548, writ denied, 11-

954 (La. 12/16/11), 76 So.3d 1199. Accordingly, this allegation should be

relegated to post-conviction relief where a full evidentiary hearing may be held.

Responsive Verdicts

The defendant asserts that he was denied effective assistance of

counsel by his trial counsel’s failure to mention or discuss any of the responsive

verdicts during closing argument. Rather, trial counsel argued that the defendant

was not the person who committed the offenses. The record reveals that the trial

court did instruct the jury as to the responsive verdicts of manslaughter, negligent

homicide, and attempted obstruction of justice. Additionally, these responsive

verdicts were listed on the verdict forms given to the jury. Thus, the only error of

which the defendant complains is his trial counsel’s failure to include any

discussion of the responsive verdicts during closing argument. In State v. Smith,

43,291, pp. 13-14 (La.App. 2 Cir. 8/13/08), 988 So.2d 861, 869, the second circuit

found that a similar ineffective assistance of counsel claim involved a strategy-

based decision that did not rise to the level of ineffective assistance of counsel:

The defendant contends that defense counsel at
trial was ineffective for failing to argue that, at most, the
facts of this case proved attempted aggravated arson and
that, since this was a non-responsive offense to
aggravated arson, the jury should have been instructed to
acquit the defendant. It appears from this record that
defense counsel at trial made a strategy-based decision to
concede that an aggravated arson occurred, but argued
that the defendant did not commit the offense. Such a

29

strategy decision in this matter does not rise to the level
of ineffective assistance of counsel.

Likewise, here, it is apparent from the record that Mr. Harris’ trial

counsel made the same strategy-based decision to concede that a second degree

murder occurred, but that the defendant did not commit the offense. As for

obstruction of justice, trial counsel argued in the opening statement that the

defendant did clean up the area upon discovering that the victim was dead but did

so because he was not thinking clearly. Accordingly, we find, as did the second

circuit, that such a “strategy decision” does not establish ineffective assistance of

counsel. This assignment of error has no merit.

Cumulative Error Claim

In this final assignment of error, the defendant asserts that the

cumulative effect of the errors committed by his trial counsel denied him the right

to effective assistance of counsel. Regarding a “cumulative error” claim where the

individual assignments of error are found to be without merit, the supreme court

has maintained that “the combined effect of the incidences complained of, none of

which amounts to reversible error [does] not deprive the defendant of his right to a

fair trial.” State v. Draughn, 05-1825, p. 70 (La. 1/17/07), 950 So.2d 583, 629,

cert. denied, 552 U.S. 1012, 128 S.Ct. 537 (2007) (citations omitted).

Applying this same reasoning to the defendant’s ineffective assistance

of counsel claims, none of the claims individually have merit based on the record

before this court. The claims either lack merit or must be relegated to post-

conviction relief. Thus, the combined effect of the alleged ineffective assistance of

counsel claims, none of which amounts to reversible error, is that Mr. Harris was

not deprived of his right to a fair trial. Accordingly, this assignment lacks merit.

30

V.

CONCLUSION

Based upon the foregoing, we find no merit in the defendant’s

assignments of error regarding sufficiency of the evidence, and we affirm his

convictions and sentences for second degree murder and obstruction of justice. We

further find that the defendant’s claims of ineffective assistance of counsel as to his

trial counsel’s failures to move for a continuance and to question jurors during voir

dire are to be relegated to post-conviction relief. We find no merit in his

remaining assignments of error.

CONVICTIONS AND SENTENCES AFFIRMED.

31