State of Louisiana v. Adam Batiste, III

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1008

STATE OF LOUISIANA

VERSUS

ADAM BATISTE, III

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR-141203
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Keith A. Stutes
District Attorney, Fifteenth Judicial District
Cynthia K. Simon
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT- APPELLANT:
Adam Batiste, III

Adam Batiste, III
Hickory #1
Louisiana State Penitentiary
Angola, LA 70712
Pro Se

PICKETT, Judge.

FACTS

On January 16, 2013, the defendant Adam Batiste, III called 911 and

requested help for his girlfriend, Gabriella Spencer, stating that she had fallen in

the shower, was not responsive, and was barely breathing. When the fire

department arrived, they saw that Ms. Spencer appeared to have been severely

beaten and summoned the police. Ms. Spencer was taken to the hospital where it

was determined she also suffered from a subdural hematoma which caused her

death shortly thereafter. The defendant was subsequently arrested for the second

degree murder of Ms. Spencer.

The defendant was indicted on March 22, 2013, for the second degree

murder of Gabriella Spencer, a violation of La.R.S. 14:30.1. A jury trial

commenced on April 29, 2015. On May 1, 2015, the jury returned a verdict of

guilty as charged.

The defendant was sentenced on May 6, 2015, to life imprisonment without

the benefit of parole, probation, or suspension of sentence. The defendant did not

file a motion to reconsider the sentence.

The defendant has perfected a timely appeal. He asserts that “[t]he State

failed to offer sufficient evidence that Adam Batiste committed second degree

murder and did not negate the reasonable probability that the fatal injury was

accidentally self-inflicted.” The defendant has also filed a pro-se brief, which

alleges insufficient evidence and ineffective assistance of trial counsel.

ERRORS PATENT

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

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

we find there are no errors patent.

ATTORNEY ASSIGNMENT OF ERROR NUMBER ONE, AND PRO SE

ASSIGNMENT OF ERROR NUMBER ONE:

The defendant argues the state failed to negate the reasonable hypothesis that

Ms. Spencer’s injuries were accidently self-inflicted when she fell in the shower.

Alternatively, he suggests her injuries were caused by some unknown persons who

beat her up on December 28, 2012, and possibly caused the head injury at the same

time. Since there was no eyewitness to what caused any of Ms. Spencer’s injuries,

and the defendant did not confess to causing her injuries, the verdict was based

solely on circumstantial evidence. The circumstantial evidence rule states that

“assuming every fact to be proved that the evidence tends to prove, in order to

convict, it must exclude every reasonable hypothesis of innocence.” La.R.S.

15:438. The defendant asserts that with only the circumstantial evidence, the state

failed to prove he caused the victim’s death; accordingly, the evidence was

insufficient to sustain the verdict.

This court has stated that questions of the sufficiency of the evidence are

considered using the following standard of review:

[A] reviewing court must consider the evidence presented in the light
most favorable to the prosecution and consider whether a rational trier
of fact could have concluded that the essential elements of the offense
were proven beyond a reasonable doubt. See Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The reviewing court
defers to rational credibility and evidentiary determinations of the trier
of fact. State v. Marcantel, 00-1629 (La.4/3/02), 815 So.2d 50.

State v. Chesson, 03-606, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 166, 172, writ

denied, 03-2913 (La. 2/13/04), 867 So.2d 686.

Additionally, in State v. Williams, 13-497, pp. 4-5 (La.App. 3 Cir. 11/6/13),

124 So.3d 1236, 1240, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this

court noted:

2

“Evidence may be either direct or circumstantial.” State v.
Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551,
writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, ___
U.S. ___, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that,
whether the conviction is based on direct evidence or solely on
circumstantial evidence, the review is the same under the Jackson v.
Virginia standard. State v. Williams, 33,881 (La.App. 2 Cir. 9/27/00),
768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ
denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence
is that where the main fact can be inferred, using reason and common
experience, from proof of collateral facts and circumstances. Id.
Where the conviction is based on circumstantial evidence, in order to
convict, “assuming every fact to be proved that the evidence tends to
prove, in order to convict, it must exclude every reasonable hypothesis
of innocence.” La.R.S. 15:438.

In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations
omitted), the supreme court discussed the use of circumstantial
evidence, stating:

Circumstantial evidence involves, in addition to
the assertion of witnesses as to what they have observed,
a process of reasoning, or inference by which a
conclusion is drawn. Like all other evidence, it may be
strong or weak; it may be so unconvincing as to be quite
worthless, or it may be irresistible and overwhelming.
There is still no man who would not accept dog tracks in
the mud against the sworn testimony of a hundred eye-
witnesses that no dog passed by. The gist of
circumstantial evidence, and the key to it, is the
inference, or process of reasoning by which the
conclusion is reached. This must be based on the
evidence given, together with a sufficient background of
human experience to justify the conclusion.

Consequently, before a trier of fact can decide the
ultimate question of whether a reasonable hypothesis of
innocence exists in a criminal case based crucially on
circumstantial evidence, a number of preliminary
findings must be made. In addition to assessing the
circumstantial evidence in light of the direct evidence,
and vice versa, the trier of fact must decide what
reasonable inferences may be drawn from the
circumstantial evidence, the manner in which competing
inferences should be resolved, reconciled or
compromised; and the weight and effect to be given to
each permissible inference. From facts found from direct
evidence and inferred from circumstantial evidence, the
trier of fact should proceed, keeping in mind the relative
strength and weakness of each inference and finding, to
decide the ultimate question of whether this body of
3

preliminary facts excludes every reasonable hypothesis
of innocence.

In the current case, the defendant was convicted of second degree murder,

which is the killing of a human being “[w]hen the offender has a specific intent to

kill or to inflict great bodily harm[.]” La.R.S. 14:30.1(A)(1). At trial, the

following testimonies and exhibits were presented:

On January 16, 2013, Robert Davis, a firefighter with the Lafayette Fire

Department, responded to a 911 call regarding a woman who was having breathing

difficulties. He was the first responder on the scene. He testified that as he was

walking up to the house, the defendant met him at the door with Ms. Spencer slung

over his shoulder. Mr. Davis directed the defendant back into the house. Ms.

Spencer was laid on the floor at the bottom of the upstairs steps. She was wearing

only a shirt. The defendant went upstairs and was not seen again until the

ambulance and the police arrived. Mr. Davis did not recall if the victim or her

shirt were wet. He testified that her pulse was very weak, and her eyes were

opened but crossed. While he was attending to her, she went into cardiac arrest.

Because he had to cut off her shirt and the defendant had not yet come back down

stairs, Mr. Davis went into the laundry room to look for something to clothe her

with. Mr. Davis said there were towels and rags tossed around, and the laundry

room smelled strongly of bleach. He further stated that the police were called

because of Ms. Spencer’s condition. She was bruised and scratched over much of

her body. Mr. Davis went in the ambulance with Ms. Spencer to the hospital to

help continue with chest compressions.

Ben Smith, a corporal with the Lafayette Police Department, was the first

officer to respond. He testified that the defendant told him that Ms. Spencer had

not been feeling well and that she had not been eating or drinking and had been

4

vomiting a lot. That morning, as she was showering, he heard a crash, and when

he went into the bathroom, she was lying face down in the tub. The defendant took

her out of the bathtub and sat her on the toilet seat. He said he tried to revive her,

but she remained unresponsive. After about twenty minutes, the defendant called

911 for help. The defendant also told Corporal Smith that Ms. Spencer had been

involved in an altercation with a bus driver on December 28, 2012. Corporal

Smith also learned that a friend of the defendant’s, Rodney Joubert, had been

staying at the defendant’s house for three or four days.

Detective Scott Broussard, a crime scene investigator with the Lafayette

Police Department, testified that because of the small cuts on the victim’s body, he

looked for evidence of blood around the house. The detective described a

chemical called Blue Star, which was a blood reagent that reacted with the

hemoglobin in the blood. He stated he sprayed the reagent around the house and in

the defendant’s and Ms. Spencer’s bedroom and bathroom. He said there was a

reaction to the chemical in the bathroom and on the bed. The detective also

explained that when blood was cleaned up using Clorox, the area where the

chemical was sprayed will turn a brilliant blue and then rapidly fade to a quieter

shade of blue. He stated this happened in the bathroom and bedroom. The

detective took photographs of the areas showing the blue luminescence. The

detective also swabbed the spots with a hemastick to test the spots for possible

blood. The swabs were sent to Acadiana Criminalistic Laboratory for analysis.

The detective admitted there was no way to know when the blood was deposited or

whose blood it was. He explained that Clorox destroyed DNA. He further

explained the field testing procedure was only a presumptive test for blood.

Paul Trouard, a detective with the Lafayette Police Department, was the lead

investigator in this case. Ms. Spencer had been removed to the hospital by the time
5

he arrived on the scene. The defendant was seated in the back of a patrol car.

After advising him of his Miranda rights, the detective spoke with the defendant.

The defendant told him primarily what he had told Corporal Smith. He further

advised the detective that Ms. Spencer had not been out of the house for almost

three weeks, since the December 28 incident. The defendant advised the detective

that Ms. Spencer’s bruises and abrasions were the result of being beaten up on the
th
28 by unknown persons, at an unknown location, and at an unknown time.

Detective Trouard testified that he had the entire area canvased to see if he could

establish whether Ms. Spencer had been accosted by some men on that date. He

said there was no evidence of such an attack. The detective received permission to

search the house. On a walk-through, the detective noted an open bottle of bleach

in the laundry room. He also noted the door frame to the defendant’s and Ms.

Spencer’s bedroom was splintered away from the wall. The detective testified the

only clean room in the house was the bathroom where Ms. Spencer reportedly

slipped in the tub as she showered. The detective noted that while the bottom part

of the tub was wet, the top part and the shower area were dry. The detective then

went to the hospital and asked if he could see Ms. Spencer. He stated that he was

shocked at the extent of her injuries. He said that he knew then there was a

problem with this case. She had bruises from “head to toe.” At this point, he

requested that one of his detectives go to the hospital and photograph her injuries.

He also requested that one of the detectives contact the bus line and get the video

surveillance tape from the bus the day Ms. Spencer supposedly got into a fight with

the bus driver.

The surveillance tape of the time Ms. Spencer got on the bus until she got

off the bus was shown to the jury. The tape revealed a very thin young woman,

dressed all in pink, getting onto the bus at a bus stop. She stood and spoke with the
6

bus driver for a few minutes without putting any money into the till. When the bus

stopped and a passenger got off, Ms. Spencer yelled at the passenger to get back

on. When the bus driver argued with Ms. Spencer and did not start driving, Ms.

Spencer told her to keep driving. Through the front window of the bus, a Camaro

can be seen driving towards the bus. Ms. Spencer became hostile and started

hitting the bus driver. The Camaro stopped and backed up, and the defendant got

out of the vehicle. By this time, a male bus passenger pulled Ms. Spencer off the

driver and pushed her out the door to the defendant, who attempted to put Ms.

Spencer into the car. The bus driver drove off with Ms. Spencer’s purse still on the

bus.
th
Carol Andrus was the bus driver involved in the December 28 incident with

Ms. Spencer. She testified that Ms. Spencer got onto the bus when the bus stopped

at a pick-up point. Ms. Spencer told the bus driver that someone had beaten her up

and asked if the bus driver would help her. The driver said Ms. Spencer had a

black eye and some scratches on her face. However, she did not see any other

injuries as Ms. Spencer had on a pink shirt with long sleeves and long, pink pants.

After Ms. Andrus started driving, Ms. Spencer became agitated and wanted her to

drive in a different direction then what the bus route was. She also did not want

Ms. Andrus to open the doors to allow passengers to exit the bus. Ms. Andrus

stated that when she attempted to continue driving, Ms. Spencer started to hit her.

One of the bus passengers pulled Ms. Spencer off the driver, took her off the bus,

and gave her to a man who stopped his car in front of the bus. Ms. Andrus testified

that she did not hit Ms. Spencer. While Ms. Andrus saw Ms. Spencer attempt to

get back on, she drove away knowing that Ms. Spencer’s purse was still on the bus.

Ms. Andrus wanted to keep the purse so that her attacker could later be identified.

7

Dr. Foster Kordish was the emergency room physician the day Ms. Spencer

was taken to the hospital. He testified she came in intubated and in critical

condition. He ordered a CT scan. Doctor Kordish testified that according to the

scan, Ms. Spencer had a bilateral subdural hematoma. He explained there were

two areas on either side of the brain where blood had collected, putting a lot of

pressure on the brain. Plus, her brain was swelling from the lack of oxygen. The

doctor testified that there did not, however, appear to be any fracture of the skull.

The scan also revealed that Ms. Spencer had five fractured ribs and both of her

lungs were partially collapsed. Two of the rib fractures appeared to be new, or

acute. He estimated the fractures were one to two days old. The remaining three

fractures were sub-acute, or several days to a couple of weeks old. However, it

was the brain injury that was the cause of death. The doctor testified that the

extensive bruising on her body was caused by blunt force trauma. He further

stated that while she could have vomited a few times, there was no evidence that

she had not been eating or drinking for several days. She did not appear to be

dehydrated. The doctor discussed the bruising, stating that it appeared some of the

bruising was older and some much more recent. He opined the subdural hematoma

was two to three days old. The doctor also was of the opinion that a fall in the

shower was not the cause of the bilateral subdural hematoma. He stated that if a

young person such as the victim faints in the shower, generally the person will

simply collapse, and a subsequent blow to the head on the tub would not have been

severe enough to cause a bilateral subdural hematoma. He stated with certainty the

subdural hematoma did not occur nineteen days prior to Ms. Spencer’s

hospitalization.

Dr. Christopher Tape, a forensic pathologist, performed the autopsy on the

victim and testified as to the results. Upon removing the skull and examining the
8

brain directly, Dr. Tape found a subdural hemorrhage that extended to both sides of

brain. He stated that the blood was “loosely adherent,” indicating that the injury

was not very old. He further noted that when he pulled back the scalp from the

skull, he found several hemorrhages, on the front and top of the skull area. He

agreed that five ribs were fractured, two of which were relatively fresh fractures.

The doctor described the contusion, abrasions, and bruising to Ms. Spencer’s body.

The injuries covered mostly her arms and legs and were very extensive. There

were small, stab-like wounds to her arms, legs, and hands. There were contusions

and bruises on her forehead, around her eyes, neck, shoulder, right breast, and

lower abdomen. Furthermore, Dr. Tape agreed that the brain injury was most

probably not the result of a fall in the shower. He explained that a number of

things could cause this type of brain injury:

[I]t has to be some sort of violent action, usually an acceleration or
deceleration or multiple blows of some kind. . . . These are generally
thought not to be from falls because when you have a fall, you have
something called a ‘coup countercoup injury.’ When you fall, you’ll
have a mark wherever you hit on the external surface, but
paradoxically, you might not expect the opposite side of the brain gets
major injury. And it’s the subarachnoid hemorrhage that happens.
Subarachnoid just means it’s within the brain parenchyma itself. It’s
within the brain tissue itself. And this is very different than this and
it’s very clear that you have the external coup injury and the internal
countercoup injury, and that wasn’t here in this case. So, I can say that
there wasn’t a major fall that caused the death here because there’s no
countercoup injury in the brain.

Dr. Tape testified that the cause of death was the traumatic brain injury, and

considering the condition of the victim’s body, he concluded the manner of death

was homicide. He stated the brain injury was three to five days old, which

included the one day the victim’s body was on life support awaiting harvesting of

her organs.

Rodney Joubert, a childhood friend of the defendant’s, testified that of the

three to four days prior to Ms. Spencer’s death he spent in the defendant’s house,
9

he never once saw her. In fact, he testified that he was not really aware of her

existence. He did state that he might have heard them laughing once upstairs but

agreed that it could have been the TV.

Finally, the defendant testified that he and Ms. Spencer had been dating for

about eight months. She moved into his house after his mother died a few months
th
before. He said when he left Ms. Spencer on December 28 , she was fine. But

after the bus incident, when they got home, Ms. Spencer had bruises all over her

body. She told him that she had gotten beat up by a couple of men while walking

to the store. However, she would not tell him who, where, or when. He said he

asked her every day if she wanted to go to the hospital, but she refused because she

was concerned about an arrest warrant that had been issued after the situation with

the bus driver. The defendant testified that for a few days before the slip in the tub,

she had been complaining about a headache. She would not eat or drink anything.

She was vomiting up everything she ate. That morning, he suggested she take a

shower and try to get back into a routine. He was dressing in their room when he

heard a crash. When he went into the bathroom, he found her face down in the tub.

He said he attempted to pick her up out of the tub, but she slipped out of his hands,

and he dropped her, and she hit her head on the side of the tub. He denied that he

ever hit her at any time.

In brief, the defendant refers to State v. Shapiro, 431 So.2d 372 (La.1982),

wherein the supreme court reversed a second degree murder conviction founded on

circumstantial evidence because the state failed to exclude the reasonable

hypothesis that the victim committed suicide. The defendant does not discuss

Shapiro relative to the current case. However, in Shapiro the supreme court

discussed at length the application of the circumstantial evidence rule, which may

10

be helpful in determining whether the conviction in the current case was based on

sufficient, albeit, circumstantial evidence.

In Shapiro, the only eyewitness to the victim’s death was the defendant, and

he asserted that the victim killed herself, either accidentally or intentionally.

Initially, the supreme court affirmed the conviction. The physical evidence, gun

powder residue on the palm of the defendant’s hand but a minuscule amount on the

victim’s hand, indicated that the defendant fired the gun. Moreover, the position of

the body and the gun led to speculation by an expert that the victim could not have

possibly shot herself. However, upon reexamination of the facts of the case, the

supreme court noted that while the defense’s and the state’s experts were in

disagreement, each of their opinions were also solely assumptions, probabilities,

possibilities, and suggestions. The supreme court noted:

[W]hile perhaps it might be concluded that the evidence does “tend”
to prove that Shapiro fired the gun, the evidence similarly “tends” to
prove that Ryland fired it. We therefore conclude that the state did
not exclude the reasonable hypothesis that Lavonna D. Ryland’s death
resulted from a self-inflicted gunshot wound.

The evidence in this circumstantial case is simply insufficient
as a matter of law under La.R.S. 15:438. The defendant’s conviction
and sentence are reversed.

Id. at 388 (on rehearing).

The defendant offers two hypothesis of innocence in this case. Insisting that

Ms. Spencer received the bruises, broken ribs, cuts, and contusions on December

28, the defendant contends that in all probability, Ms. Spencer caused her own

head injury when she slipped or fainted in the shower and hit her head on the tub.

He also suggested that Ms. Spencer had possibly gone out of the house on her own

while he was gone from the house and was attacked by someone who caused the

brain injury or that someone came into the house when he was not home and

caused all the injuries, including the brain injury.
11

The defendant argues incorrectly that “[t]he two doctors that testified for the

State disagreed amongst themselves as to whether a fall or falls in the shower

could have caused the injuries to Ms. Spencer’s brain in this case.” Both doctors,

however, agreed that it was highly unlikely that a fall in the shower was the cause

of the subdural hemorrhage. They both explained that the subdural hemorrhage

was not consistent with that type of fall. Both doctors agreed that the bleeding in

the brain was extensive, extending from one side of the brain to the other side.

They both agreed that one or more blows to the head could have caused the

bleeding. Finally, both doctors testified that the brain injury was two to three days

old from the date Ms. Spencer was admitted to the hospital.

In this case, the forensic evidence tended to disprove the defendant’s

assertion that, except for the brain injury, Ms. Spencer received all the injuries

nineteen days before her death. The state’s expert forensic pathologist, Dr. Tape,

and the emergency room physician, Dr. Kordish, both agreed that several of the

bruises, the broken ribs, and the contusions were no more than a few days to a

week or more old, including the fatal brain injury.

The defendant further argues that the brain injury should have been

considered separately when determining the manner of death. He argues that “Dr.

Tape stated his reasoning was because he considered all the injuries together,

instead of the possibility that at least the final injury was separate or occurred due

to different reasons, like an accident.” This statement might have merit had not

both doctors testified that the infliction of the injuries was progressive. Both

doctors testified that while many of the injuries were older, several were fairly

recent. The rib fractures were from two or three days to a few weeks old. The

bruising was in various stages of healing. The cuts and scratches on her arms and

hands were beginning to scab over, but still open wounds. Dr. Tape testified:
12

Because there are so many injuries that I don’t have a better
explanation for them. An autopsy is diagnosis exclusion. We go down
the line and there’s all these injuries. There doesn’t seem to be an
accidental explanation for them. They don’t seem to be as old as this
three week explanation. The subdural hemorrhage - - assuming that is
old as three weeks. There’s multiple scalp hemorrhages, so therefore,
I have to think that there was likely an assault, more likely an assault
than anything else.

The defendant suggested at trial that, excluding the brain injury, all the

injuries resulted from a beating Ms. Spencer took on December 28, 2012. He

pointed out that Ms. Spencer told the bus driver that she had been beaten and asked

for help. He testified that she told him she was walking to the store and was beaten

up by some men for some reason. However, testimony established that she got

onto the bus at the stop by her house. In brief, the defendant suggests that because

she had been beaten up by two men, she got onto the bus in an effort to find him.

However, considering the extent of the injuries, it seems unlikely that if Ms.

Spencer had been beaten up as she walked to the store, instead of getting help right

then, she went home and then decided to get on a bus to look for the defendant. In

addition, the state established the extensive injuries were not nineteen days old.

The defendant initially indicated to Detective Trouard that following the

incident on the bus, Ms. Spencer did not leave the house. Considering the fact that

testimony established the infliction of the injuries was on-going, it was reasonable

that the jury concluded it was the defendant who was beating her. The defendant

testified that on the morning of the bus incident, Ms. Spencer was okay, but later

that day she appeared with injuries which she said she got when some unknown

person beat her up. The bus driver testified that when Ms. Spencer got on the bus,

she had a black eye and a cut to her face. This was nineteen days before her death.

The emergency room doctor and the pathologist who did the autopsy each testified

that her injuries were from a few days old to a few weeks old. Accordingly,

13

approximately four or five days following the bus incident, Ms. Spencer received

more injuries. Then approximately ten or twelve days after the bus incident, she

received more injuries. Finally, a few days before she collapsed, she received at

least the fatal injury, the injury to her brain. There were other inferences tending to

disprove the defendant’s hypothesis: the fractured bedroom door frame, the half-

wet shower, and the victim who reportedly collapsed in the shower while wearing

a shirt. The firefighter who first attended Ms. Spencer did not remember if her

shirt was wet. Furthermore, there was evidence of a clean-up in the bedroom and

bathroom with bleach. All the inferences which may reasonably be drawn from

the facts were consistent with the defendant’s guilt, and inconsistent with the

defendant’s assertion that the injuries were received on the day of the bus incident,

and then, nineteen days later, she slipped in the tub and hit her head.

The defendant also suggested the possibility that while he was out of the

house, she left the house and was assaulted again. As noted at trial, there was

testimony that the defendant initially told the police Ms. Spencer had been

continuously in his presence since the bus incident. The defendant, however,

testified that he left the house for periods of time during the nineteen days since the

bus incident. He argues in brief that “[t]he State could not rule out the possibility

what while home alone, Ms. Spencer left the house and suffered any of the non-

fatal or fatal injuries documented in this case[.]” This explanation was not a

reasonable hypothesis of innocence. The defendant claimed that Ms. Spencer had

headaches and was vomiting. This contention is contrary to his assertion that she

could have left the home, sustained further injuries, and then failed to report that

beating. She did not even venture downstairs to greet the defendant’s childhood

buddy, who was there for three or four days before she collapsed, and whom she

had never met.
14

As noted above, the evidence must have a legitimate tendency to compel

belief in and finding of the defendant’s guilt. The evidence in this case was of

such a character and tendency as to produce a proof of the defendant’s guilt to the

exclusion of reasonable doubt. Based on the apparent timeline of the injuries, the

jury could have reasonably concluded the only logical explanation was that the

defendant was systematically beating Ms. Spencer, which resulted in her death.

Quoting State v. Captville, 448 So.2d 676, 680 (La.1984), this court in State v.

Jackson, 14-9, p. 4 (La.App. 3 Cir. 6/18/14), 146 So.3d 631, 634-35, writ denied,

14-1544 (La. 2/27/15), 159 So.3d 1066, noted that in case of circumstantial

evidence, “the fundamental principle of review means that when a jury ‘reasonably

rejects the hypothesis of innocence presented by the defendant’s own testimony,

that hypothesis falls, and the defendant is guilty unless there is another hypothesis

which raises a reasonable doubt.’” As already noted, the hypotheses offered by the

defendant were implausible in light of the medical testimony.

Specific intent is a state of mind and as such, it need not be proven as a fact,

but may be inferred from the circumstances of the transaction and the actions of

the defendant. State v. Williams, 383 So.2d 369 (La.1980), cert. denied, 449 U.S.

1103, 101 S.Ct. 899 (1981); see also La.R.S. 14:10(1). Further, the intent to kill

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

victim’s injuries. State v. Keating, 00-51 (La.App. 5 Cir. 10/18/00), 772 So.2d

740, writ denied, 00-3150 (La. 10/12/01), 799 So.2d 494. The circumstances

indicated beyond a reasonable doubt that the defendant intentionally inflicted

serious bodily harm on Ms. Spencer and that she died as a result.

There is no merit to either the attorney-filed or the pro se assignments of

error number one.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO
15

The defendant asserts that defense counsel should have objected to Detective

Broussard’s testimony regarding the use of the Blue Star reagent to locate blood in

the bathroom and the bedroom. He argues that the jury was allowed to hear

testimony which prejudiced him by inferring that he cleaned up a crime scene,

thereby hurting his chances of a not guilty verdict. Accordingly, defense counsel

rendered ineffective assistance.

The right of a defendant in a criminal proceeding to the
effective assistance of counsel is mandated by the Sixth Amendment
to the U.S. Constitution. State v. Egan, 44,879 (La.App.2d
Cir.12/9/09), 26 So.3d 938; State v. Wry, 591 So.2d 774 (La.App. 2d
Cir.1991). A claim of ineffectiveness of counsel is analyzed under the
two-prong test developed by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).

To establish that his attorney was ineffective, the defendant first
must show that counsel’s performance was deficient. This requires a
showing that counsel made errors so serious that he was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. The relevant inquiry is whether counsel’s representation
fell below the standard of reasonableness and competency as required
by prevailing professional standards demanded for attorneys in
criminal cases. See Strickland, supra. The assessment of an attorney’s
performance requires his conduct to be evaluated from counsel’s
perspective at the time of the occurrence. A reviewing court must
give great deference to trial counsel’s judgment, tactical decisions and
trial strategy, strongly presuming he has exercised reasonable
professional judgment. State v. Grant, 41,745 (La.App.2d Cir. 4/4/07)
954 So.2d 823, writ denied, 2007-1193 (La.12/7/07), 969 So.2d 629;
State v. Moore, 575 So.2d 928 (La.App. 2d Cir.1991).

Second, the defendant must show that counsel’s deficient
performance prejudiced his defense. This element requires a showing
that the errors were so serious as to deprive the defendant of a fair
trial, i.e., a trial whose result is reliable. Strickland, supra. The
defendant must prove actual prejudice before relief will be granted.
It is not sufficient for the defendant to show the error had some
conceivable effect on the outcome of the proceedings. Rather, he
must show that, but for counsel’s unprofessional errors, there is a
reasonable probability the outcome of the trial would have been
different. Strickland, supra; State v. Grant, supra.

As a general rule, a claim of ineffective assistance of counsel is
more properly raised in an application for post-conviction relief
(“PCR”) in the trial court than by appeal. This is because PCR creates
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the opportunity for a full evidentiary hearing under La. C. Cr. P. art.
930. State v. Hampton, 98-0331 (La.4/23/99), 750 So.2d 867, cert.
denied, 528 U.S. 1007, 120 S.Ct. 504, 145 L.Ed.2d 390 (1999); State
v. Ellis, 42,520 (La.App.2d Cir.9/26/07), 966 So.2d 139, writ denied,
2007-2190 (La.4/4/08), 978 So.2d 325. When the record is sufficient,
this issue may be resolved on direct appeal in the interest of judicial
economy. State v. Egan, supra. Because the record is sufficient to
adequately resolve the issue of the effectiveness of the defendant’s
counsel, and in the interest of judicial economy, we will address this
defendant’s claims on appeal.

State v. Moran, 47,804, pp. 9-10 (La.App. 2 Cir. 4/10/13) 135 So.3d 677, 683-84,

writ denied, 13-1052 (La. 11/15/13), 125 So.3d 1101.

In the current case, a review of the trial record shows that regarding this

particular allegation, the record is sufficient to address the issue of ineffective

assistance.

At trial, following the state’s direct examination of Detective Broussard,

wherein he testified the Blue Star reagent could detect blood that has been cleaned

up and that he sent swabs of the area where he found presumptive blood off for

analysis, defense counsel questioned him regarding the alleged blood located in the

bedroom and bathroom:

Q. Okay. Now, I’ve got some things I’m real curious about. On two
occasions in your testimony, you refer to it as possible blood. You
said it shows possible blood.

A. Yes, both testing procedures, the Blue Star [and] indicating sticks
are both presumptive testing for blood. That’s what they are, they’re
for presumptive test of blood.

Q. Okay. And let me just suppose because I have the report from the
Acadiana Crime Lab, and the Acadiana Crime Lab - - well, you
swabbed it and sent it to them, didn’t you?

A. Yes.

Q. And suppose because I have the report, Acadiana Crime Lab said
there was no blood –

At this point, the state objected, arguing that the defense was questioning the

detective about “something that’s not in evidence.” The defense pointed out that
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the state had subpoenaed the crime lab records. However, apparently the state

decided not to use the report issued by the crime lab. Defense counsel then

requested the trial court to issue an instanter subpoena for whoever issued the

report. Accordingly, during the defendant’s case, defense counsel examined Ms.

Winnie Kurowski, an expert in biological fluids and DNA analysis for Acadiana

Criminalistic Laboratory. Ms. Kurowski testified that there was no blood detected

on the swabs that were sent to the laboratory for analysis.

It is obvious that rather than exclude the testimony, defense counsel decided

it would be more effective to the defendant’s plea of innocence to impeach the

detective’s testimony. Defense counsel’s decision not to attempt to exclude the

testimony was apparently trial strategy.

In State v. Truehill, 09-1546, p. 17 (La.App. 3 Cir. 6/2/10) 38 So.3d 1246,

1257-58, this court discussed ineffective assistance and trial strategy, as follows:

Ineffective assistance of counsel does not exist unless there was
a deficient performance by the attorney. [State v.] James, [95-962, p.
4 (La.App. 3 Cir. 2/14/96), ] 670 So.2d [461,] 465. An alleged error
can be construed as trial strategy if there are differing views regarding
the advisability of a tactic: This court has long agreed with our
brethern of the fourth circuit in recognizing “that if an alleged error
falls ‘within the ambit of trial strategy’ it doesn’t ‘establish ineffective
assistance of counsel.’ State v. Bienemy, 483 So.2d 1105 (La.App. 4
Cir.1986).” State v. Sias, 03-891, p. 6 (La.App. 3 Cir. 12/10/03), 861
So.2d 829, 834, quoting State v. Schexnaider, 03-144, p. 18 (La.App.
3 Cir. 6/4/03), 852 So.2d 450, 462. This court has repeatedly used
this approach to trial strategy. State v. F.B.A., 07-1526 (La.App. 3
Cir. 5/28/08), 983 So.2d 1006, writ denied, 08-1464 (La.3/27/09), 5
So.3d 138; State v. Duplichan , 06-852 (La.App. 3 Cir. 12/6/06), 945
So.2d 170, writ denied, 07-148 (La.9/28/07), 964 So.2d 351; State v.
Collins, 04-1441 (La.App. 3 Cir. 3/2/05), 896 So.2d 1265, writ
denied, 05-1334 (La.1/9/06), 918 So.2d 1040.

The Louisiana Supreme Court has directly addressed the issue of trial

strategy when reviewing an ineffective assistance of counsel claims in State v.

Brooks, 505 So.2d 714, 724 (La.1987) where it stated:

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While opinions may differ on the advisability of
such 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.
Strickland v. Washington, 466 U.S. 668[, 104 S.Ct. 2052]
(1984).

The jury heard Detective Broussard’s testimony. The detective repeatedly

explained the supposed blood evidence located in the bathroom and the bedroom

were presumptive. Defense counsel questioned the detective at length regarding

the testing procedure, and defense counsel had the opportunity to put before the

jury the fact that there was no blood evidence on the swabs sent to Acadiana

Criminalistic Laboratory. The defendant has failed to show defective performance

or that the case was prejudiced by the testimony.

The defendant’s pro se assignment of error is without merit.

CONCLUSION

The state proved that beyond a reasonable doubt the defendant committed

second degree murder of Gabriella Spencer, to the exclusion of any reasonable

hypothesis of innocence. The defendant’s conviction is affirmed.

AFFIRMED.

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