State of Louisiana v. Timothy Aaron Dangerfield

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-379

STATE OF LOUISIANA

VERSUS

TIMOTHY AARON DANGERFIELD

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 38408-11
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar,
Judges.

AFFIRMED.

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT-APPELLANT:
Timothy Aaron Dangerfield

John F. DeRosier
District Attorney, Fourteenth Judicial District
Elizabeth B. Hollins
Robert R. “Rick” Bryant
Ross Murray
Assisstant District Attorneys
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

On September 29, 2011, the defendant, Timothy Aaron Dangerfield, beat,

stabbed, and shot the victim, Shacrista Nicole Jones. Ms. Jones died as a result of

her wounds.

On November 3, 2011, the defendant was charged by a grand jury in a bill of

indictment with one count of second degree murder, a violation of La.R.S. 14:30.1,

five counts of attempted second degree murder, violations of La.R.S. 14:27 and

14:30.1, and one count of aggravated battery, a violation of La.R.S. 14:34. On

November 21, 2011, the defendant entered a plea of not guilty and requested a trial

by jury.

On May 16, 2012, the defendant changed his plea to not guilty and not guilty

by reason of insanity. On this same date, the trial court appointed a sanity

commission. On August 22, 2012, the sanity commission hearing was held, and

the defendant was deemed competent to proceed to trial. The matter of whether he

was insane at the time of the commission of the offenses was deferred to a later

date.

On September 14, 2015, a jury trial commenced. On this date, the state

dismissed all but the second degree murder charge. On September 21, 2015, the

jury returned a guilty verdict of second degree murder. The defendant was

sentenced on November 6, 2015, to life imprisonment without the possibility of

parole, probation, or suspension of sentence.

The defendant has perfected a timely appeal, wherein he asserts that the

evidence was insufficient to sustain the conviction for second degree murder and

that the trial court should have granted his motion for a mistrial after a witness

revealed other crimes information to the jury.

ASSIGNMENTS OF ERROR

The defendant asserts two assignments of error:

I. The evidence introduced at the trial of this case, when viewed
under the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)
standard, was insufficient to prove, beyond a reasonable doubt, all of
the elements of second degree murder.

II. The trial court erred in failing to grant a mistrial when a State
witness improperly referenced Appellant’s “parole officer” during
questioning by defense 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.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that the evidence was insufficient to sustain the

verdict of guilty of second degree murder. He maintains that he had established,

by a preponderance of the evidence, that he was insane at the time of the offense

and was not able to distinguish between right and wrong. He argues that the state,

therefore, failed to prove beyond a reasonable doubt that he had the necessary

specific intent to commit the offense.

Louisiana Revised Statutes 14:30.1 states, in pertinent part, “[s]econd degree

murder is the killing of a human being: (1) When the offender has a specific intent

to kill or inflict great bodily harm[.]” Accordingly, at trial, the prosecution has the

burden of proving beyond a reasonable doubt that the defendant had the specific

intent to kill or inflict great bodily harm upon a victim. Specific intent is that state

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of mind that “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); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S.

1074, 110 S.Ct. 1796 (1990); State v. McCray, 621 So.2d 94 (La.App. 2 Cir.

1993). Specific intent need not be proven as a fact; it may be inferred from the

circumstances of the transaction and the actions of the defendant. State v. Graham,

420 So.2d 1126 (La.1982); State v. Taylor, 621 So.2d 141 (La.App. 2 Cir. 1993),

writ denied, 93-2054 (La. 2/11/94), 634 So.2d 371. The determination of whether

the requisite intent is present in a criminal case is for the trier of fact. State v.

Brown, 618 So.2d 629 (La.App. 2 Cir.), writ denied, 624 So.2d 1222 (La.1993).

However, the defendant pled not guilty and not guilty by reason of insanity.

The supreme court, in State v. Siliman, 95-154, p. 7 (La. 11/27/95), 663 So.2d 27,

32, discussed the affirmative defense of insanity, as follows:

In Louisiana, a legal presumption exists that a defendant is sane
at the time of the offenses. La.R.S. 15:432. To rebut the presumption
of sanity and avoid criminal responsibility, defendant has the burden
of proving the affirmative defense of insanity by a preponderance of
the evidence. La.C.Cr.P. art. 652. Criminal responsibility is not
negated by the mere existence of a mental disease or defect. To be
exempted of criminal responsibility, defendant must show he suffered
a mental disease or mental defect which prevented him from
distinguishing between right and wrong with reference to the conduct
in question. La.R.S. 14:14; State v. Williams, 346 So.2d 181
(La.1977). The determination of sanity is a factual matter. All the
evidence, including expert and lay testimony, along with the
defendant’s conduct and action, should be reserved for the fact finder
to establish whether the defendant has proven by a preponderance of
the evidence that he was insane at the time of the offense. State v.
Bibb, 626 So.2d 913 (La.App. 5th Cir.1993), writ denied, 93-3127
(La. 9/16/94); 642 So.2d 188; State v. Claibon, 395 So.2d 770
(La.1981). Lay testimony pertaining to defendant’s actions, both
before and after the crime, may provide the fact finder with a rational
basis for rejecting unanimous medical opinion that the defendant was
legally insane at the time of the offense. State v. Peters, [94-0283 (La.
10/17/94); 643 So.2d 1222]; State v. Claibon, supra.

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In reviewing a claim for insufficiency of evidence in an action
where an affirmative defense of insanity is raised, this court, applying
the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), must determine whether under the facts
and circumstances of the case, any rational fact finder, viewing the
evidence most favorable to the prosecution, could conclude, beyond a
reasonable doubt, that the defendant failed to prove by a
preponderance of the evidence that he was insane at the time of the
offense. State v. Peters, 94-0283 (La. 10/17/94); 643 So.2d 1222;
State v. Nealy, 450 So.2d 634 (La.1984); State v. Price, 403 So.2d 660
(La.1981); State v. Claibon, supra; State v. Roy, 395 So.2d 664
(La.1981).

At trial, the following evidence and testimony were submitted:

On September 29, 2011, Corporal Michael Treadway and Officer Travis

Van Zuiden, both with the Lake Charles Police Department, were sent to a

residence on Tulip Street in response to a 911 call that a man was banging on the

window with a gun. The caller, who was the defendant’s aunt, reported that the

man was possibly on “wet,” a combination of marijuana and PCP. When they

arrived, they encountered a young, black male hanging around the area. The

officers called out to the man to show his hands. The man answered “f_ _k you.”

When they called out to him again to show his hands, he responded, “Show me

your gun.” Both of the officers took cover, one behind a car and one behind a tree.

Corporal Treadway testified that Officer Van Zuiden continued giving commands

to the man as he advanced towards him. The man raised his arm, and Corporal

Treadwell saw a gun in his hand. Fearful that he was going to fire on Officer Van

Zuiden, Corporal Treadway shot at the defendant several times, as did Officer Van

Zuiden. The defendant collapsed onto the ground.

Corporal Treadway testified that a SWAT team was in the area and arrived

immediately after the shooting. He stated that he and Officer Van Zuiden did not

approach the defendant but kept cover on him. He said that a member of the

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SWAT team approached the defendant, who was lying on his stomach. The

defendant had been shot four times. He was taken to the hospital by ambulance.

The corporal testified that he thought the defendant was acting strangely because

he responded to the officers’ challenge by demanding to see their guns. Moreover,

he did not appear to be afraid. However, although the defendant appeared

aggressive, Officer Van Zuiden did not think the defendant’s behavior was strange.

Mayo Romero, an officer and member of the SWAT Division of the Lake

Charles Police Department, testified that it was necessary to tase the defendant

before they could roll him over. The defendant had the gun and a knife in his

hand, and a larger knife was found on the ground beside him. Officer Romero

testified that he located a small amount of marijuana on the defendant. Officer

Romero also said that as they were putting him into the ambulance, the defendant

spit on the officer and screamed about his mother and Nintendo1 being devils.

After the defendant was taken to the hospital, urine and blood samples were

taken, and he tested positive for marijuana, PCP, and benzodiazepines. Dr. John

Gray was the emergency room doctor at Lake Charles Memorial Hospital, where

the defendant was taken. He testified that in addition to the gunshot wounds, the

defendant had lacerations to his neck, throat, and wrist. He said that the defendant

was combative and claimed he was possessed by the devil.

Timothy Richards, a detective with the Lake Charles Police Department,

was also at the scene of the shooting on Tulip Street. He testified that as he was

helping to gather evidence, Marvin Cole, Sr. approached him and quietly told him

1
Detective Timothy Richards testified that the defendant’s phone included a contact
named “Nintendo,” and showed that the defendant had recently contacted him.

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there was a body located at a residence on General Patton. Mr. Cole said that his

nephew, Perry Dangerfield, the defendant’s brother, told him about the body.

Lecia McCullough, a detective with the Lake Charles Police Department,

was at the Tulip Street scene. She and two other officers were sent to the

residence on General Patton to investigate. As they approached the house, she

said that they saw blood beneath the carport near the side door. When they

entered the house they saw “a large amount of blood all over the floor, [the]

cabinets in the kitchen, the walls, the floor in the living room, the hall, the back

bedroom, and the bathroom in the hallway.” They found a body in the hallway.

She stated that the victim was identified as Shacrista Jones. It was determined

that the victim most likely died that day between 6:00 and 7:00 p.m. However,

an investigator for the Calcasieu Parish Corner’s Office agreed that she could have

died as early as 4:00 p.m. and as late as 9:00 p.m.

Perry Dangerfield, the defendant’s brother, testified that the defendant lived

with their mother at the residence on General Patton. He stated he had encountered

the defendant earlier in the day in Kroger’s parking lot. The defendant was in a car

with another man. Perry followed the defendant to their mother’s house on

General Patton. Standing outside the house were the victim and two other men.

Perry shortly thereafter left and went home. Later, around 7:30 p.m., the defendant

called Perry and told him he needed “to holler at you. Come holler at me.” Perry

went to the house. He said that when he first arrived he saw light on in the house

and someone looking out the window, and then the light went out. Perry knocked

at the door, but no one answered. He attempted to enter because he said the door

was never locked, but the door was locked. He testified that he tried to call the

defendant on his cell phone and that there was no answer.

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Perry testified that shortly after he left the house, he received a call from the

defendant. The defendant said he had been out walking, but told Perry “I’m by

Mama’s house. Come holler at me.” Perry stated he did not go back. He related a

prior incident that occurred when his brother was on “wet” and had called him out

to “come holler at [him],” and then the defendant beat him up. Perry did not go

back to the house because he thought the defendant was on PCP, as he was during

the prior incident, and would try to beat him up again. Later, however, Perry’s

mother called him about something happening on Tulip Street and asked him to go

check on his brother. After he learned that his brother had been shot, he went to

his mother’s house on General Patton. While the lights were still off in the house,

the door was unlocked. Inside, he found a blood-drenched house and the victim’s

body.

Perry testified that while the defendant appeared to be fine when he left him

at their mother’s house earlier, he did not know then whether the defendant was on

drugs. He stated, however, that he never saw the defendant act strangely when he

was not on drugs. The defendant never told him he was hearing voices or

hallucinating. Perry testified that the defendant did suffer from a seizure disorder

and was combative when he came out of seizure episodes.

After being declared an adverse witness for the state, the defendant’s

mother, Vera Dangerfield, testified that she was working the evening of September

29, 2011, until approximately 8:30 or 9:00 p.m. She stated that the defendant, who

lived with her, had called her about five in the afternoon and asked her about

dinner that night. She stated the victim did not live with them. She said the victim

had visited a few times, but she did not know her very well. Ms. Dangerfield said

that when she drove up to the house, the defendant met her outside and asked her

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to drive him to Tiawanna Papillion’s house on Tulip Street. Ms. Papillion was one

of Ms. Dangerfield’s daughters. When they arrived, the defendant got out of the

car and aimlessly walked around until she left. Ms. Dangerfield said the defendant

did not seem himself; he was uncommunicative and nervous. She testified she

went over to her other daughter’s house. With her granddaughter driving, they left

to go and pick up the girl’s mother from work. On their way, they saw the

defendant walking down the street hauling Ms. Papillion along by the arm. Ms.

Papillion was crying. The granddaughter stopped the car. Ms. Dangerfield

reached out of the car and grabbed Ms. Papillion out of the defendant’s grip and

pulled her into the car. Ms. Dangerfield said that after they dropped Ms. Papillion

off at her house, they went over to Perry’s house. She told him to check on his

brother. Ms. Dangerfield said she then went back to Ms. Papillion’s house where

she learned that the defendant had been shot. Ms. Dangerfield stated she did not

see blood on the defendant and did not see a gun in his possession.

Later, Ms. Dangerfield testified during the defense’s case. She testified that

approximately three years prior to the current incident, the defendant was boxing

and was struck hard in the head and afterwards started having seizures. She

testified that about two to three weeks prior to the death of the victim, the

defendant told her that someone was out to get him. She said he would talk about

two acres and a mule but would never explain what he meant. She recounted an

incident which occurred about a year prior to the shooting when the defendant was

found running naked through the woods with a shotgun. He was briefly

hospitalized for a psychiatry evaluation. She said he had medication for the

seizures but was unsure if he took the medicine regularly.

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Ms. Papillion, who was also declared an adverse witness, testified that after

her mother had called worried about the defendant, she went outside her house

about 9:50 p.m. and was talking to a neighbor, her aunt, when the defendant

suddenly appeared. He walked passed them without speaking, then turned around

and said, “Well, where they at?” He asked for her phone. Ms. Papillion said she

handed him her phone. She started to go back into her house, and the defendant

followed her. He then grabbed her and said, “All the devils and demons is gonna

die tonight.” Once in the house, she ran to her son’s bedroom because she could

lock the door, but the defendant pushed in behind her. He pushed her to the floor

and fired the gun three times. However, the gun did not discharge. She said she

could hear the clicks. The defendant then hauled her out of the house and was

marching her down the street when they encountered Ms. Dangerfield in her car.

Ms. Papillion testified she had never seen her brother take drugs.

Ms. Papillion, while testifying for the defendant, stated that a few weeks

prior to the shootings, the defendant started talking about forty acres and a mule.

She said that he talked about their family having so much Indian blood that they

were entitled to royalties from the casinos. He told her that their ancestors talked

to him and were “leading and guiding” him. She again testified that she never saw

him take drugs.

Dr. Terry Welke, a forensic pathologist and coroner for Calcasieu Parish,

conducted the autopsy on the victim. He testified that the victim had been shot

twice, once between the eyes and once in the hand. She also had multiple

lacerations, cuts, and stab wounds around her head, face, and neck. Dr. Welke

stated that he quit counting the lacerations and stab wounds to her face and neck at

fifty. There were blunt force injures to her face, which caused severe breakage of

9

the bones. He further testified that there were bruises, stab wounds, and broken

bones in her hands, which were consistent with defensive wounds. The doctor

could not state precisely which of the injuries actually caused the victim’s death.

Chris Gray, a trooper with the Louisiana State Police, identified the gun

taken from the defendant. He testified that when he examined the gun, there were

three spent casings in the gun and no live rounds. The bullets, one from the

victim’s head, one from her hand, and one from a door frame across the hall from

the bathroom where the victim was found, were identified. Charles Watson, Jr., a

firearms specialist with the Louisiana State Police Crime Laboratory, testified that

he also examined the gun taken from the defendant the night of the shooting.

Other than the three spent casings found in the gun, it did not contain any live

rounds. Mr. Watson testified that the gun was in very poor condition. After noting

that the gun had a considerable amount of dried blood on it and that the three

recovered bullets, were the same type of bullets fired from that type of gun, Mr.

Watson explained:

I cannot eliminate this firearm as having fired these bullets and
I can’t say that it did fire those bullets, but one reason might be that
the deleterious change, the rust and the corrosion that took place in
this barrel could have obscured the detail that I needed to be able to
make my conclusion.

Testimony established that there was blood found on the defendant’s tennis

shoes. The victim’s blood was found on a baseball bat, which overlaid the

defendant’s palm print. A broken knife found at the scene of the killing contained

both the victim’s blood and the defendant’s blood. Finally, the defendant’s blood

was located on the victim’s body.

Dr. Said Cantu, a psychiatrist working at Lake Charles Memorial Hospital,

testified he did an evaluation of the defendant following the earlier incident when

10

he was found walking naked in the woods with a loaded shotgun. He diagnosed

the defendant with “delirium secondary to multiple drug intoxication.” The doctor

stated that the defendant had tested positive for marijuana, PCP, Dilantin, a

medication used for seizures, Xanax, and Valium. The doctor agreed that years of

severe addictive substance abuse could cause a person to develop a permanent

psychosis and that PCP abuse could exacerbate a seizure disorder. The doctor

further agreed that his report contained notations by a social worker, which stated

that the defendant said he had been smoking marijuana since he was eleven years

old. The defendant had said this incident was the first time he had tried “wet,” and

it made him crazy. Dr. Cantu’s report also stated that the defendant said he was

upset because his ex-girlfriend was turning his son against him. The defendant

said that he was aware he had a shotgun, but he stated that he did not intent to use

it. The defendant further denied he was depressed, hallucinating, or anxious. The

doctor testified that normally following a seizure a person is sluggish and a bit

confused for a period ranging from a few minutes to a few days.

Dr. Roy Lubit, a psychiatrist specializing in forensic psychiatry, testified.

After seeing and speaking with the defendant on four occasions, speaking with his

family, and reviewing the defendant’s medical records, Dr. Lubit theorized that at

the time the defendant assaulted the victim, he was suffering from a postictal

psychosis, a condition that may follow uncontrolled seizures. The doctor further

suggested that the defendant was schizophrenic. He stated that during an episode

of postictal psychosis, a sufferer becomes paranoid and has delusions of a religious

aspect. The doctor stated that the person believes that someone is the devil and

that there are demons. He stated that this condition can continue for days to many

weeks. The doctor testified that the first time he spoke with the defendant in jail,

11

he appeared organized and was “making sense.” However, the second time he

spoke with the defendant, he “was disorganized, rambling, couldn’t answer simple

questions.” The doctor said that the last time he spoke with the defendant, he

admitted that he heard voices, “up to three voices talking to each other and that this

is ongoing.” The doctor reported that the defendant said he was having a non-

exclusive sexual relationship with the victim. However, Dr. Lubit explained that

this was not a matter of a lover’s rage, but that the defendant’s actions following

the killing, his attacking his sister, his behavior with his mother, and his accusing

everyone of being devils and demons were consistent with insanity. The doctor

testified that he believed the defendant truly thought he was defending himself

against devils and demons, because he did not remember killing the victim and

because he never said that the voices or the demons made him do it. Regarding

what role the ingestion of PCP had in the defendant’s actions, the doctor suggested

that “there are certain instances which may have created a false positive result of

PCP” in the defendant’s system.

Dr. James Anderson, a physician specializing in psychiatry, testified

regarding the defendant’s sanity at the time of the offense. Dr. Anderson was

initially appointed as a member of the sanity commission to determine whether the

defendant was competent to assist at trial. However, on November 16, 2012, Dr.

Anderson began the interview process with the defendant to determine his sanity at

the time of the offense. The doctor testified that he obtained all of the medical

records concerning the defendant, including records kept during the time the

defendant was incarcerated after the killing. He reviewed all the witnesses’

statements, including those who did not testify at trial, and the police reports. Dr.

Anderson noted that the defendant reported remembering the day of the offense.

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The defendant told the doctor he bought beer earlier in the day. He remembered

sitting, talking, and smoking some marijuana with Shacrista. The defendant told

Dr. Anderson that he did not kill the victim. The doctor explained to the defendant

that if he did not kill her, then that was a not guilty plea. The doctor then realized

that the defendant was not aware that he had pled not guilty by reason of insanity

and terminated the session until the defendant could speak with his defense

counsel.

Dr. Anderson said that the defendant denied that he took drugs. Later, he

said that the defendant stated that someone must have slipped him the drug, PCP.

He eventually admitted he had taken PCP on another occasion. The doctor noted

that when he was evaluating the defendant for the competency hearing, the

defendant denied hearing voices or hallucinating. However, after the sanity

evaluation began, the defendant stated that he was hearing voices and had the

“creepy crawlies.” The doctor noted that while the defendant indicated he

remembered nothing, as time went on, he remembered more and more things about

that day, stopping short of remembering what happened to the victim.

Dr. Anderson noted that the defendant was closely observed while he was

incarcerated awaiting trial and that even though he suffered seizures while in jail,

no psychosis was indicated. The doctor concluded that at the time of the offense,

“with a reasonable degree of medical certainty, [the defendant did] not have a

mental disease or defect that impair[ed] his ability to distinguish between right and

wrong[.]” The doctor testified that the defendant’s subsequent behavior indicated

he knew he did something wrong. He called his brother to come to the house, but

then he turned off the lights, locked the door, and would not answer the door when

his brother knocked. He furthermore met his mother outside the house and

13

redirected her to Ms. Papillion’s house, rather than allowing her inside the house.

The doctor noted that even in a psychotic state, a person can know that what they

had done was wrong.

Dr. Marminder Mallik, a forensic psychiatrist, also testified regarding the

defendant’s mental state at the time of the offense. As with Dr. Anderson, the

defendant immediately told Dr. Mallik that he did not kill the victim. Dr. Mallik

disagreed with the diagnosis of seizure disorder postictal psychosis. He concluded

that the defendant did not suffer a mental defect or a psychiatric disorder such that

would have precluded him from distinguishing between right and wrong. Dr.

Mallik testified that drugs such as PCP acted as a disinhibitor, as did alcohol, but

that a disinhibitor was not a mental illness. Dr. Mallik also agreed with Dr.

Anderson that even though the defendant had seizures during the four years he was

incarcerated following the offense, there was nothing in the jail’s medical records

which indicated that he presented with a psychosis following the seizures. The

doctor pointed out that the record indicated that the only time the defendant acted

out aggressively was when he was on drugs, specifically PCP. He noted the

incident with the defendant’s brother, Perry, the romp in the woods with a shotgun,

and lastly, the current incident which resulted in the death of the victim.

Finally, Dr. Charles Weber, an army psychiatrist and director of the Army

Substance Abuse Program, testified regarding the defendant’s sanity at the time of

the offense. Dr. Weber also disagreed with Dr. Lubit. Dr. Weber stated that it was

very hard “to say that somebody is psychotic or has a break from reality when

they’re using drugs that take you from reality.” Dr. Weber stated that there was a

“high prevalence of violence, aggression, agitation” associated with the use of

PCP. However, “[t]o say that I don’t know the difference between right and wrong

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. . . is a pretty high threshold.” As for the defendant’s intent, even though exactly

what happened in the house the night of the victim’s death was unknown, Dr.

Weber noted that it is the behavior afterwards which may be determinative, and the

defendant’s behavior indicated that he knew it was wrong as he attempted to hide

it, as opposed to someone who was “flooredly psychotic like schizophrenics,

they’re not caring about consequences or right and wrong. . . . They don’t get to

pick and choose and say I’m going to do something that’s really horrific and crazy,

and I don’t want to be found out about.” Dr. Weber also pointed out that the

defendant made several phone calls the night of the murder:

It would kind of affirm to make so many different calls, to make both
- - when you’re making a phone call, one, you’ve got to know where
your phone is. So, you’ve kind of hit both the occipital lobe where
you see; with your memory which is temporal parietal. And he’s
calling different people on this. And when he’s calling different
people, one he’s calling people that he knows, not just random
numbers. So, probably not disorganized and psychotic. And the other
portion is coordinated. So, that also leads to the question more than
likely, like highly improbable, that this was something that was so
disorganized or a postictal where he could not control himself.
There’s no way to go through a tonic clonic seizure and to be calling
all these numbers. So that would be highly unlikely.

While there was no eyewitness to the death of the victim other than the

defendant, the direct and circumstantial evidence are sufficient to prove the

charged offense of second degree murder beyond a reasonable doubt. In State v.

Williams, 13-497, pp. 3-4 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1239-40, writ

denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this court outlined the proper

means of considering insufficient evidence claims:

In State v. Spears, 05-964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222-23,
the supreme court stated that:

constitutional law does not require the reviewing court to
determine whether it believes the witnesses or whether it
believes that the evidence establishes guilt beyond a

15

reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309
(La.1988). Rather, the fact finder is given much
discretion in determinations of credibility and evidence,
and the reviewing court will only impinge on this
discretion to the extent necessary to guarantee the
fundamental protection of due process of law.

“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 the current case, the defendant was the last person to leave the house in

which the victim was found dead a short time later. His shoes were bloody, his

blood was located on her body, and his and the victim’s blood were found on a

knife which was located close to her body. The defendant had lacerations on his

body. At the time the defendant was apprehended, he possessed the gun which

held the same kind of bullets which were extracted from the victim’s head and

hand. The defendant initially attempted to evade the police officers after they

responded to his aunt’s call and then flourished his empty gun. The amount of

damage inflicted on the victim, including being shot between the eyes, was

sufficient circumstantial evidence that the perpetrator “actively desired the

prescribed criminal consequences to follow his act[,]” which indicated specific

intent to either kill or inflict serious bodily harm. La.R.S. 14:10(1).

16

In brief, the defendant argues that his prior and subsequent behavior, as

noted above in the fact section, proved by a preponderance of the evidence that he

was insane at the time he committed the offense. The defendant notes that he had

complained to family members that someone was out to get him. He told his sister

that their family should be getting money from the casinos because they were of

Indian descent—the ancestors told him so. He points to his violent actions towards

the police, his mother, and his sister. He tried to kill his sister in front of her son,

but the gun would not fire. Dr. Gray, the emergency room physician, noted that

the defendant said he was possessed by the devil. Witnesses testified that the

defendant spoke about seeing demons. The defendant further noted Dr. Lubit’s

diagnosis of postictal psychosis, which was brought on by the defendant’s “long-

term, poorly managed seizures,” which promoted paranoia and delusions with a

religious aspect. Dr. Lubit “explained that a paranoid person believes someone is

out to hurt them; these are some of the most dangerous and sick individuals with

mental illness.” Finally, the defendant points to the fact that he had been hearing

voices—up to three voices talking to each other.

In State v. Currie, 00-2284 (La.App. 4 Cir. 2/13/02), 812 So.2d 128, writ

denied, 02-786 (La. 11/15/02), 829 So.2d 421, the defendant was found guilty of

second degree murder for the stabbing death of his mother. The fourth circuit

reversed the conviction, finding that the facts established, by a preponderance of

the evidence, that he was incapable of distinguishing right from wrong. The

defendant, fifteen at the time, stabbed his mother twenty-two times at the poolside

of a New Orleans hotel. He also cut the throat of a friend who was traveling with

him and his mother. When his friend attempted to stop his attack, the defendant

slit his own throat and walked back to his room. When the police arrived, the

17

defendant was sitting in the middle of the floor with his throat and wrist cut. After

the police officer announced he was a homicide detective, the defendant asked him

if his mother was dead. At the hospital, the defendant named his mother as his

emergency contact. However, when told she was dead, he said he killed her. The

defendant’s friend testified that the evening before, he and the defendant had

smoked marijuana, drank alcohol, and had taken two tabs of LSD each.

At the defendant’s trial, four doctors testified regarding his mental health.

Currie had begun psychiatric treatment when he was eleven years old after making

violent threats at school. He was suspicious, paranoid, and believed people were

taking thoughts from his head. At the time, the doctor treating him testified that he

“hesitated to diagnose the defendant with schizophrenia because of the label it

placed on the child[,]” but he said the symptoms were psychotic and that the

defendant suffered from a ‘“very, very serious illness.”’ Id. at 132. A second

doctor who treated the defendant for depression and attention deficit disorder

testified that the defendant carried images of chopped up and burned bodies in his

mind. The defendant also had evidence of organic brain injury from an accident

when he was very young. The doctor testified that the defendant met all the

criteria for paranoid schizophrenia. The doctor further testified that persons with

mental disorders were much more susceptible to the effects of recreational drugs.

After he was arrested and charged, a sanity commission was appointed.

Currie was found to be incapable of assisting at his trial and was sent to a state

mental health facility for treatment until he was able to proceed to trial. As for

whether he was insane at the time of the killing, several doctors testified as

follows:

18

Dr. Jodi Holloway, psychiatrist, said she was assigned to the
defendant’s case after it was determined that he was not competent to
proceed to trial. She diagnosed him as a paranoid schizophrenic with
polysubstance dependence. She determined he was psychotic by his
withdrawn demeanor, his difficulty interacting, his paranoid
delusions, and his apparent auditory hallucinations. He had dreams of
being impaled and other persecutions. He was suicidal: storing
aspirin in overdose quantities at the hospital, trying to hang himself,
bashing his head against the wall. He believed he had supernatural
powers including the ability to stare into the eyes of humans and
animals to scare them and the ability to move cars with his mind. The
doctor said schizophrenics are at particular risk to become drug users.
Family members, in particular mothers, are at particular risk of harm.
The condition is strongly genetically based. A family that is
dysfunctional can exacerbate symptoms.

Dr. Kenneth Perez, child psychiatrist, said he treated the
defendant while he was on the adolescent wing at Southeast Louisiana
Hospital in Mandeville, from March 1998 to July 1999 when he was
transferred to the adult unit. He described him as psychotic and
depressive. He said the defendant’s brain was under a lot of stress,
and in many situations such as his, the brain will interpret noise
stimulation as voices from religious figures. In the defendant’s
situation, he thought he was hearing the voice of Seth, the Egyptian
god of death. He had turned to Seth after he had been sexually abused
as a child, and thought Seth would protect him from the taunts of
schoolmates that he was queer. The doctor felt there was a strong
possibility that he had inherited schizophrenia from his mother, and
that he had an extraordinarily unusual early onset of the disease. His
chances of suffering from schizophrenia were further enhanced by his
grandfather’s schizophrenia.

....

Dr. Sarah Deland, clinical psychiatrist, testified she is often
asked to evaluate people with regard to their sanity at the time of the
offense. She said she only finds about ten percent of the people she
evaluates to have been insane at the time of the offense, and cautioned
that even that ten percent is of a group already known to have a
mental illness. In this case, she met with the defendant only four days
after the crime. She also interviewed an extensive list of people
including family members, neighbors, and the psychiatrists and
psychologists that treated the defendant over the years. She said that
she determined that the defendant suffers from paranoid schizophrenia
and that he suffered from that disease when he committed the crime.
She said that his family’s extensive history of mental illness put him
at greater risk for the disease. Also, his brain injury at birth and a
brain injury suffered at one year old contributed. She noted his
increased delusions and fascinations with death and vampires, which

19

he believed to be real. He also had strange patterns of not eating and
sleeping for days at a time. The doctor stated that schizophrenics also
often use street drugs to help them feel better, to suppress voices, and
to help them sleep. She was confident in her determination that the
defendant did not know right from wrong when he killed his mother,
and said he was definitely ill at the time, having been off of his
medication for over a year. In the days before the crime, he had
become increasingly frightened and paranoid and thought The Draven
was involved in a war for souls and the people surrounding him were
“imposters” including The Draven, Battistelli, and his mother. The
doctor pointed out that the defendant committed the crime in broad
daylight with people around, made no attempt to flee, and then
slashed his wrists and throat. She said schizophrenics are at a great
risk for suicide. They often take out violence on people they know
because they have trouble in relationships and are not close to other
people. They begin to fear the people they are around on a continual
basis; here, the defendant was closest to his mother. She said that
while people with him on the night before the crime said he had taken
drugs, there was no proof that he had taken any, or that the drugs he
had taken were effective, or that they had not worn off by the time of
the crime. Nothing on his hospital admission records was indicative of
his having taken drugs.

Id. at 132-34.

As in the current case, Dr. Mallik testified in Currie as a state’s expert

witness regarding the defendant’s sanity at the time of the stabbing. He concluded

that the defendant, despite a severe mental illness, was able to distinguish between

right and wrong when he stabbed his mother to death, as follows:

His diagnosis of the defendant’s mental state at the time of the offense
was hallucinogenic intoxication, alcohol and cannibis [sic] abuse,
history of major depression with psychotic features, and history of
intermittent explosive disorder on Axis I. Axis I is a measure of
clinical psychiatric syndromes. He said the defendant “has a mental
disorder, but I don’t think, in my opinion, to a reasonable degree of
medical certainty that those disorders caused him to be incapable of
distinguishing between right and wrong at the time of the offense.”
The doctor reported the defendant’s long history of drug taking, told
to him by the defendant and corroborated by his best friend, starting
with drinking vodka and whiskey in the morning before school when
he was nine; continuing with smoking half a bag of marijuana a day;
smoking “Premo” which is marijuana with crack added; inhaling
nitrous oxide; eating hallucinogenic mushrooms; smoking Ritalin;
dropping acid; shooting cocaine; taking “Absence” which is alcohol

20

fermented with Cartlum, annis seeds, fennel, and Tujon which is a
“legal” hallucinogenic; and smoking PCP.

The defendant described to the doctor the events leading up to
the crime, including his running away from his father because his
father was going to commit him, taking Ritalin, and stealing money
from his father to get to New Orleans. He said he was suicidal. He
found a “squat”, or a homeless person’s hut, to live in.

Id. at 134. The doctor went on to testify that the defendant, however, skipped over

the killing, but “‘realized something had happened’ when he threw the knife[,]”

and called the killing an accident. Id. at 135.

Dr. Mallik further testified that the defendant was able to
describe small details and draw an accurate map of the events which
were corroborated by Battistelli and by the doctor himself on a tour of
the hotel. He said these factors indicated “goal driven” behavior and
that the defendant was able to determine right from wrong at the time
he committed the crimes.

On cross, he said that the defendant appeared very disturbed
while sharing his experiences. He seemed to be responding to internal
stimuli, and listening to “souls.” He would close his eyes, and exhibit
peculiar hand gestures as if he were twirling.

Id.

The fourth circuit, however, stated:

In this case, this court cannot imagine a case wherein an
insanity defense could possibly be more strong. Thus, the facts of the
case simply do not support the conclusions of Dr. Mallik. This
defendant was fifteen at the time of the crime, from a broken home in
which both sides of his family had severe mental illnesses. He
suffered organic brain damage at birth. He suffered a fractured skull
at one year old. He was institutionalized by the age of six, and
essentially diagnosed with schizophrenia by the age of eleven. He had
little emotional support at home, and his own mother exhibited signs
of schizophrenia. At the least, she exhibited signs of very poor
judgment in bringing the defendant back to New Orleans and buying
him a knife along the way. The father allowed him to be off of his
anti-psychotic medication for over a year before the crime. He was
suffering from delusions, hallucinations and ideas of persecution for
some time preceding the crime. Although, admittedly, much of the
evidence presented by the defense summarized his mental history
prior to the crime and did not go to the ultimate fact of whether he
understood right from wrong at the time of the offense, as explained

21

by the experts, many of the factors present in his life contributed to or
exacerbated his proclivity to have been unable to differentiate
between right and wrong.

He committed the crimes in broad daylight in front of many
witnesses. He did not attempt to flee. He was found within minutes
in a trance-like state. After admitting he had killed his mother, he
asked for her comfort shortly thereafter. These do not appear to be the
acts of a man who can distinguish right from wrong.

Although Dr. Mallik’s testimony was to the contrary, his
conclusion of hallucinogenic intoxication was based almost
exclusively on interviews with the defendant who reported his own
drug use to the doctor at a time when he was psychotic. There was
little corroboration of the history of his drug [use] by independent or
objective sources.

Applying the principles set forth in [State v.] Silman, [95-154
(La. 11/27/95), 663 So.2d 27] to the facts and circumstances of the
instant case and viewing the evidence in a light most favorable to the
prosecution, this court finds that no rational trier of fact could have
found that defendant failed to prove by a preponderance of the
evidence that he was incapable of distinguishing between right and
wrong, and therefore insane, at the time of the crimes. Accordingly,
we vacate the original conviction and find defendant not guilty of
second degree and attempted second degree murder by reason of
insanity.

Id. at 138.

In another case where the defendant was found not guilty of second degree

murder by reason of insanity, State v. Armstrong, 94-2950, pp. 11-12 (La. 4/8/96),

671 So.2d 307, 312, the supreme court noted:

[T[he defense’s case on insanity consisted of the twenty-five year
history of mental illness with delusions, auditory hallucinations,
religious obsessions and occasional psychotic episodes, particularly
when defendant was subjected to stress or failed to take his
medication; the testimony of three psychiatrists and one psychologist
who opined that defendant could not distinguish right from wrong at
the time of the killing; evidence of defendant’s dispute with his bank
causing him stress, a precursor of psychotic episodes, and of his
involuntary commitment to a mental institution shortly before the
killing and his violent behavior there; and extensive evidence of
bizarre behavior, before and after the killing, which was consistent
with conduct that has led to his numerous hospitalizations.

22

In Armstrong, the defendant entered a mortuary seeking his father’s death

certificate. In the mortuary were a woman and the victim, Reverend Fred Neal.

While the woman searched for the death certificate, the defendant left. He returned

forty-five minutes later. Without a word, he opened a brief case and took out a

large knife. The woman fled and called the police. When the police arrived, the

defendant was standing over Rev. Neal with the bloody knife. The reverend had

been stabbed several times. Ignoring the officers’ order to drop the knife, the

defendant walked away and then turned back. While the officers attempted to talk

to the defendant, he severed the reverend’s head. He grabbed the body, seated it in

a chair, and proceeded to take the severed head and put it into the toilet. He was

convinced the reverend was the anti-Christ. The defendant was arrested for second

degree murder but found to be incapable to proceed to trial. He was

institutionalized at East Feliciana Mental Health Facility. Four months later, he

was deemed sufficiently competent to stand trial. The supreme court noted that the

defendant “had been medically discharged from the service as a paranoid

schizophrenic in the late 1960s during the Viet Nam conflict. Defendant had been

admitted to mental institutions in 1969, 1970, 1973, 1974, 1980, 1983, 1987 and

1992, having been released three days before the killing of Rev. Neal.” Id. at 308.

After reviewing the testimony and the evidence, the supreme court concluded:

Other evidence stressed by the district attorney was the fact that
defendant did not attempt to kill, or even threaten, anyone but Rev.
Neal and that he had sat in his car peacefully until he saw Rev. Neal
enter the mortuary. Such behavior, however, is consistent with the
delusion that Rev. Neal was the anti-Christ and with the auditory
hallucination telling defendant “That’s him.” The doctors who found
defendant insane at the time of the crime commented that he was no
danger to anyone but the anti-Christ of his delusion. The fact that the
policemen did not feel threatened was not inconsistent with that
delusion or with the hallucinatory command.

23

As to defendant’s allegedly selective responses to hallucinatory
voices, one telling him to kill and the other telling him later that
killing is wrong, it was the very nature of defendant’s delusion that
Rev. Neal was the anti-Christ that compelled defendant to send the
anti-Christ to hell. Evidence that a person, in a psychotic state and
operating under a long-standing delusion about the anti-Christ, is
unable to evaluate competing auditory hallucinations is hardly
preponderating proof of ability to distinguish right from wrong.

Moreover, the fact that defendant decapitated Rev. Neal in view
of several police officers militates strongly against a conclusion that
he knew he was doing wrong at the time. Indeed, the most significant
evidence of ability to distinguish right from wrong in many insanity
defense cases is evidence of the accused’s attempts to hide evidence
of the crime. Conversely, evidence of criminal conduct in plain view
of law enforcement officials is a significant indication of inability to
distinguish right from wrong.

Id. at 313.

In State v. Milton, 13-672 (La.App. 5 Cir. 5/14/14), 142 So.3d 157, the fifth

circuit affirmed the verdict of attempted second degree murder, agreeing that the

defendant failed to establish the affirmative defense of insanity by a preponderance

of the evidence. In Milton, the defendant, for unexplained reasons, shot the victim

three times while the victim sat in his truck. A sanity commission was appointed,

and the defendant was committed to East Feliciana Mental Health Facility for six

months until he was deemed competent to assist in his defense at trial. As in the

current case, the defendant in Milton received a head injury at a young age.

However, as a result of the injury, the defendant underwent brain surgery and lost

the use of an arm and a leg for six months. Expert testimony regarding the

defendant’s sanity was given at trial, as follows:

Dr. Vosburg explained that as a result of the car accident, Defendant
sustained major damage to the left temporal region of his brain,
requiring neurosurgery. The doctor added that an injury to this region
of the brain may result in seizures, as well as frequent mood problems,
such as depression, anger, rage, irritability, poor judgment, poor
insight, and poor impulse control. Since the accident, Defendant had
suffered from seizures and had displayed “rage attacks.”

24

Dr. Vosburg also observed that since the injury, the severity
and frequency of Defendant’s assaultive behavior had dramatically
escalated. Prior to his injury, Defendant had two criminal convictions:
battery and resisting arrest. And, Defendant’s mother testified that as
time progressed after the surgery, her son’s mental condition
deteriorated, where he was always angry and could not control
himself. Ms. Milton described several incidents where Defendant was
involved in physical altercations. These included Defendant striking
two people and dragging his mother down steps. Consequently, Ms.
Milton had Defendant admitted to the psychiatric ward at Charity
Hospital, where he was diagnosed with schizophrenia. Dr. Vosburg
explained that he disagreed with this diagnosis and believed that
Defendant was exaggerating his claimed memory problems, where the
doctor did not observe any evidence of short term memory loss.

Id. at 166.

After reviewing the testimony and the defendant’s actions prior, during, and

subsequent to the shooting, the fifth circuit concluded:

Furthermore, we find Defendant’s actions during and after the
shooting do not support a finding of insanity. The evidence adduced
at trial established that Defendant, albeit for unclear reasons, appeared
on the scene angry and yelling, and threatened the victim and his
friends. According to Defendant, he was armed at this time, but he
left the scene without resorting to violence. Yet, when he returned to
the scene, he carried out his threat by shooting the victim.

If Defendant was armed during the initial encounter, as he
contends, but left the scene and returned before carrying through with
his threat, we find this delayed consummation of the threat exhibits a
degree of self-control inconsistent with a claim of insanity. On the
other hand, even if Defendant was not armed during the initial
encounter and left to retrieve his weapon, this, too, demonstrates a
degree of calculation inconsistent with insanity.

After firing his weapon three times at the victim, Defendant,
apparently realizing what he had done, shifted his aim and discharged
the remaining rounds into the air, as he explained, out of respect for
his relationship with the victim’s family and God. Defendant then
drove to Baton Rouge and disposed of the weapon. Then, in his
statement, given within 24 hours of the shooting, Defendant declared
that he felt guilty for what he had done and that he prayed for the
victim’s survival.

Defendant’s decision to shift his aim away from the victim, his
subsequent feeling of guilt, prayers for the victim, flight to Baton

25

Rouge, and disposal of the weapon all demonstrate that Defendant had
a guilty conscience and recognized his culpability for his actions. See
State v. Jones, 12-750 (La.App. 5 Cir. 5/16/13); 119 So.3d 250, 257 n.
8 (finding a defendant’s flight and attempt to avoid apprehension are
circumstances from which a trier of fact may infer a guilty
conscience). Thus, we find that through his actions, Defendant
displayed a functioning ability to distinguish right from wrong.

Viewing the foregoing evidence in a light most favorable to the
prosecution, we find that any rational trier of fact could have
concluded that Defendant failed to prove by a preponderance of the
evidence that he was unable to distinguish between right and wrong at
the time of the offense.

Id. at 167-68.

In Currie and Armstrong, the defendants had long, extensive, and well-

documented histories of mental illness. In Currie, the defendant was hospitalized

for the first time at six years old and diagnosed as a schizophrenic at eleven. Mr.

Armstrong was diagnosed in the 1960s with schizophrenia and was hospitalized six

times up to a few days before he killed his victim. During those years, Mr.

Armstrong suffered with auditory hallucination, paranoia, and religious obsessions.

He was often hospitalized when he became convinced he was called to preach and

to kill someone.

In the current case, as in Milton, the defendant suffered seizures for three

years prior to the offense as a result of a blow to the head. However, the only time

he had a mental health evaluation was a year prior to the offense when he was

caught running naked outdoors with a shotgun and on PCP. The family members

testified that shortly prior to the killing, the defendant was saying strange things

about acreage and a mule and that the family’s Indian ancestors told him they were

entitled to money from the casinos. While Ms. Papillion testified that the

defendant thought someone was after him and talked about demons, he had no

history of mental illness. The defendant’s mother testified that she asked the

26

defendant to get counseling several times. Furthermore, except for the beating he

inflicted on his brother when he was on drugs, there was little testimony about

whether the defendant was otherwise violent or aggressive prior to the killing.

In Milton, the defendant had a history of aggression and, as in Currie and

Armstrong, was initially deemed incompetent to proceed to trial and spent time in a

mental institution being treated for his mental illness prior to trial. In the current

case, the defendant was evaluated and found to be competent after a sanity

commission was appointed.

In Milton, the fifth circuit noted that the defendant declared that he was

going to shoot someone and, after shooting the victim, he fired a few more shots

into the air, then drove to Baton Rouge and disposed of the gun. The fifth circuit

found this behavior indicated “a functioning ability to distinguish between right

and wrong.” Milton, 142 So.3d at 168. Similarly, in the current case, the

defendant’s behavior indicated he was aware of what he did. The defendant turned

out the lights and locked the door to keep his brother out of the house. He met his

mother outside the house and got her to drive him to his sister’s house. As

expressed by Dr. Weber, people who commit atrocious acts necessarily “don’t get

to pick and choose and say I’m going to do something that’s really horrific and

crazy, and I don’t want to be found out about.” In Armstrong, the defendant

beheaded the man he stabbed to death in front of the police and made no effort

afterwards to get away. In Currie, the defendant stabbed his mother in broad

daylight, in front of witnesses, and then, after slitting his own throat, waited for the

police.

While Dr. Lubit opined that the defendant was insane at the time of the

offense because he did not say that the demons or the devil made him kill Ms.

27

Jones, we note that in both Armstrong and Currie, the defendants acknowledged

their actions and articulated to a degree their belief that there was some

justification. In Armstrong, the defendant believed the reverend was the anti-

Christ, while in Currie, that defendant, although he at times exclaimed that “The

Draven” made him do it, believed that everyone was an imposter, including his

mother. In the current case, while there was testimony that the defendant called his

mother and Nintendo devils, he never once called the victim, Ms. Jones, a demon

or a devil. He claimed to have no memory of what happened but denied that he

killed her.

In brief, the defendant points out that he struck and knocked his mother

down, and after he went to his sister’s house, he attempted to kill her, thereby

evidencing his insanity. However, as noted above, there were only three bullets in

the gun, and all three were discharged at his mother’s house where the victim was

killed. There was no testimony that more bullets of the type used in the gun were

located at the house where the victim was killed or on the defendant’s person after

he was shot. There was no testimony indicating whether he was aware that the gun

was no longer loaded. However, according to Ms. Papillion, the defendant

attempted to discharge the gun three times. No matter whether defendant was

aware of the fact he was out of bullets, if he had truly desired to kill his sister, he

had two knives on his person at the time.

The brutality of the killing and the damage inflicted on the victim suggests

some type of rage, which according to his mother and sister seemingly was not in

character with the defendant. However, reviewing the testimony regarding the

defendant’s behavior prior to and subsequent to the killing, and comparing and

distinguishing the facts in the above cases with the facts of current case, we find

28

that the defendant failed to meet his burden of establishing by a preponderance of

the evidence that he was insane at the time of the killing.

The defendant also suggests, in the alternative that, should this court find

that he did not meet his burden of establishing his insanity at the time of the

killing, he was so highly intoxicated that he was unable to form the requisite

specific intent to inflict serious bodily harm or death on the victim.

“[V]oluntary intoxication can be considered as a defense only in cases where

specific intent is a necessary element of the crime.” State v. Boleyn, 328 So.2d 95,

98 (La.1976). “Where the circumstances indicate that an intoxicated or drugged

condition has precluded the presence of a specific criminal intent or of special

knowledge required in a particular crime, this fact constitutes a defense to a

prosecution for that crime.” La.R.S. 14:15. Since intoxication is an affirmative

defense, the defendant bears the burden of proving the existence of that condition

at the time of the offense. State v. Bias, 10-1440 (La.App. 3 Cir. 5/4/11), 63 So.3d

399, writ denied, 11-1063 (La. 11/14/11), 75 So.3d 939. “[T]hereafter, it falls to

the state to negate that defense by showing beyond a reasonable doubt that specific

intent was present despite the defendant’s alleged intoxication.” State v.

Mickelson, 12-2539, p. 7 (La. 9/3/14), 149 So.3d 178, 183. “Whether voluntary

intoxication in a particular case is sufficient to preclude specific intent is a question

to be resolved by the trier of fact.” Id.

While PCP and marijuana were detected in the defendant’s system after he

was taken to the hospital, there was very little testimony regarding the defendant’s

drug ingestion on the day of the killing. The defendant offers little in the way of

establishing that he was so intoxicated that he was unable to form the requisite

specific intent. While PCP and marijuana were detected in the defendant’s blood

29

and urine analysis when he was taken to the hospital after the offense, there was no

blood/alcohol content reported in his system. Furthermore, Dr. Weber testified

that PCP has a peak of two to four hours in the system and it can stay in the system

for twenty-one to forty-six hours. On the one other occasion the defendant

admitted he took PCP, he recalled the incident and expressed remorse for running

through the woods naked with a shotgun. The defendant did not meet his burden

of establishing intoxication such that could have precluded the capacity to form

specific intent. The state showed beyond a reasonable doubt that specific intent

was present in this case.

ASSIGNMENT OF ERROR NUMBER TWO

The defendant argues that the trial court erred when it denied his motion for

a mistrial after a witness impermissibly referred to other crimes evidence during

his testimony. During Dr. Anderson’s cross-examination, he referred to the

defendant’s “parole officer.” Louisiana Code of Evidence Article 404(B), in

pertinent part, provides that “[e]xcept as provided in Article 412, evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show that he acted in conformity therewith.”

The questioning which resulted in Dr. Anderson making the remark started

with the following exchange between him and defense counsel:

A. There’s no reason for me to believe that Mr. Dangerfield had a
psychotic thought disorder in the past other than when he was
intoxicated on PCP. He had no history of mental health treatment.
He had a history of substance abuse treatment and was Court Ordered
to be in a treatment facility. But he had no history of psychiatric
treatment, no psychotic delusions, no hearing voices for a period of
time until he was charged with this crime. And then they crop up.

He does have a history of using PCP and having violent
behavior, and PCP and having violent behavior prior to this event.

30

Q. You know, I’m always taken aback by - -

A. So, even though you’re trying to draw conclusions - -

Q. Right.

A. - - and you can say is it possible that, I’m saying it is so highly
improbable. There’s no history of it. There’s no paper trail of it until
we get to this point in time, and then it pops up.

[Q.] You know, I’m always taken aback by psychiatrists and their use
of the term “history.” How many positive PCP tests did you see in his
records?

A. How many does it take?

Q. No. That’s not the question. I’m asking you a question.

A. I saw two - -

Q. Two - - you saw - -

....

A. Two.

Q. You saw two. And the term that you’re using is a history. One for
the offense that he’s charged with and then one instance that happened
a year ago.

A. And the brother in between.

This conversation continued at length regarding whether the defendant had a

“history” of PCP usage. Defense counsel then asked:

Q. And one of the things that you keep alluding to is the fact that my
client might have been making this up. Isn’t it true, Dr. Anderson, that
people make up things or may not share with you certain information
simply because it might be embarrassing to them?

A. Yeah. That certainly is a possibility.

Q. And also when you talked about substance abuse, that’s a term of -
- well, we as lawyers call it a “term of art.” And you stated earlier
that my client said, at one point he didn’t use PCP or he only used
PCP at one point. And then, at another time you said that he denied
being a substance abuser. Is it possible that he didn’t understand or

31

didn’t perceive himself as a substance abuser as opposed to lying to
you?

A. I think - - okay. So you’re asking me the ques - - I think if an
individual has been ordered by their parole officer to go to treatment,
they would understand, you know, years prior that they have a history,
they have a substance abuse problem. And if they had previously said
that they had used substances, they would know they have a substance
abuse problem. So I don’t think it’s a memory thing.

Following the state’s redirect examination of Dr. Anderson and after the jury

was excused from the courtroom, defense counsel objected to the doctor’s

reference to the defendant’s “parole officer,” and moved for a mistrial. During

argument on the issue, the state argued that Dr. Anderson was only responding to

defense counsel’s question concerning whether the defendant was aware that he

was abusing drugs. The state further pointed out that the information regarding the

defendant’s long-time use of drugs and the incident of being caught in the woods

naked with a shotgun was “other crimes” evidence admitted without objection.

After a lengthy argument between defense counsel and the state, the trial court

denied the motion for a mistrial.

In brief, the defendant argues that La.Code Crim.P. art. 770 provides, in

pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:

....

(2) Another crime committed or alleged to have been committed by
the defendant as to which evidence is not admissible[.]

The reference to “other crimes” evidence was not made by the judge, district

attorney, or a court official. Although Article 770 is not applicable, La.Code

Crim.P. art. 771, in pertinent part, provides that upon the request of the defendant,

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the court shall admonish the jury to disregard the remark “[w]hen the remark or

comment is made by a witness or person other than the judge, district attorney, or a

court official[.]” While the trial court agreed with the state that the remark was in

response to a question asked by defense counsel and that the defendant’s drug

history was relevant and not prejudicial, it offered to admonish the jury. Defense

counsel declined an admonishment, stating it would likely “amplify” the comment.

In brief, the defendant argues that as opposed to a “probation” officer, the

term “parole” officer was prejudicial, as follows:

The issue is the perception and affect the mention of a prior parole
officer had on the jury. It is asserted that an average person would
understand that one does not have a parole officer unless they have
been convicted of a more serious crime and had spent some period of
time incarcerated for the crime.

We find no error in the trial court’s denial of the motion for a mistrial.

Pursuant to La.Code Crim.P. art. 771, the trial court proposed an admonishment to

the jury to disregard Dr. Anderson’s statement. Defense counsel declined. This

court has held that in order for a reference to other crimes evidence to require such

a drastic remedy as a mistrial, “there must be a distinct or recognizable reference to

another crime alleged to have been committed by the defendant.” State v.

Chambers, 99-678, p. 8 (La.App. 3 Cir. 1/19/00), 758 So.2d 231, 236, writ denied,

00-551 (La. 9/22/00), 768 So.2d 600. In Chambers, this court affirmed a trial

court’s ruling that a mistrial was not appropriate after a police officer made

reference to multiple identifications and aliases found on the defendant’s person at

the time of the arrest. Likewise, in State v. Barnes, 13-576 (La.App. 3 Cir.

12/11/13), 127 So.3d 1070, writ denied, 14-43 (La. 6/13/14), 140 So.3d 1188, this

court found that a statement made during voir dire that the defendant had been in

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jail with a prospective juror did not merit a mistrial. We find this assignment of

error lacks merit.

CONCLUSION

We affirm the defendant’s conviction of second degree murder.

AFFIRMED.

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