State of Louisiana v. Leo Paul Thibodeaux, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-542

STATE OF LOUISIANA

VERSUS

LEO PAUL THIBODEAUX, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 23723-13
HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and
Phyllis M. Keaty, Judges.

AFFIRMED WITH INSTRUCTIONS.

John Foster DeRosier
District Attorney
Elizabeth Brooks Hollins
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Benjamin A. Cormier
1 Lakeshore Drive, Suite 120
Lake Charles, LA 70629
(337) 477-8782
COUNSEL FOR DEFENDANT/APPELLANT:
Leo Paul Thibodeaux, Jr.

AMY, Judge.

A grand jury charged the defendant with second degree murder in

connection with the death of his girlfriend. Prior to trial, the trial court conducted a

Prieur hearing and determined that it would allow certain other crimes evidence to

be introduced. A jury found the defendant guilty as charged, and the defendant

was sentenced to life in prison with no possibility of parole. The defendant

appeals. For the following reasons, we affirm the defendant‟s conviction and

sentence. We further direct the trial court to send appropriate written notice to the

defendant within ten days of the rendition of this opinion and to file written proof

in the record that the defendant received said notice.

Factual and Procedural Background

The record indicates that, in the early morning hours of March 28, 2012, the

defendant, Leo Paul Thibodeaux, Jr., called his friend Chris Cooper, 1 who was

with his friend Raphael Johnson. Cooper and Johnson drove to the defendant‟s

home, which he shared with his girlfriend, Toni Frabbiele. Johnson testified at

trial that he saw Cooper enter the defendant‟s home and then exit with a shotgun

wrapped in his shirt. Cooper then drove away from the home and called 911.

Cooper and Johnson met with Calcasieu Parish deputies on Highway 27, at which

time Cooper exited his vehicle with the shotgun in his left hand. When the

deputies ordered him to drop the shotgun, Cooper threw the shotgun on the ground.

Deputies later retrieved a Springfield Arms single-shot 12-gauge shotgun which,

per the trial testimony of Corporal Brandon Peresich, was missing a trigger guard

1
Cooper was deceased at the time of trial.

and contained a spent shell casing. Johnson was unaware of whether the trigger

guard was already missing before it fell to the ground.

According to Corporal Gordon McGee‟s testimony, he and other deputies

responded to the defendant‟s home at approximately 3:16 that morning. Upon

entering the home, deputies discovered Frabbiele‟s deceased body on a bed in one

of the bedrooms. Deputies then found the defendant on a couch in the living room,

holding a pocket knife and threatening to harm himself. When the defendant failed

to drop his knife after deputies ordered him to do so, deputies deployed a Taser on

the defendant and detained him. The record reflects that deputies then obtained a

search warrant and searched the home, where they found a shotgun wad2 in the

mattress cover with Frabbiele‟s hair attached, letters apparently handwritten by

Frabbiele located at the foot of the bed, a cell phone in Frabbiele‟s left hand with

911 dialed, and stains throughout the home appearing to be blood. Following his

detainment, the defendant was interviewed by authorities and maintained that

2
When asked at trial to explain shotgun wadding to the jury, State expert Colonel
Timothy Scanlan testified as follows:

[I]n general shotgun wadding kind of acts as a piston. So we talked about all
those little pellets being loose inside the barrel of a shotgun. Well, the way a gun
works is you have an explosion. The fancy word for it is deflagration. It‟s a
pushing explosion. So when you have a bullet in a barrel, that gas is going to
push up against the bullet and push it down the barrel.

Well, if you have a bunch of little pellets and you have no piston, if you
have nothing behind it the gas is just going to go by it. You have nothing to push
it down, right. There‟s no tight fit.

So what happens, what shotgun manufacturers do since the beginning of
time with shotguns, is put a piston behind it. . . . Now most shotgun
manufacturers, as so in this case, using all in one piece; that is a one piece wad
system. So that one piece wad is in the gun. It has everything in it. So you have
the cup that holds the gunpowder, and you have a wad system and leaves that kind
of keep everything together; and that travels down the barrel as a piston, and then
when it leaves the gun the wadding opens up and the shot goes downrange.

2

Frabbiele shot herself. Defendant‟s statement to the detectives further indicates

that only he and Frabbiele were present in the home at the time.

Dr. Terry Welke, the Calcasieu Parish Coroner, testified that when he

initially examined Frabbiele‟s body, he originally believed that the death was a

suicide. However, he explained that he became concerned upon viewing

photographs of the crime scene and noticing differing patterns of blood spatter on

the walls of the bedroom, which led him to believe that there had been “two

different trajectories” of gunshots. He also noted that while “shotgun wounds and

suicides” typically consist of “contact gunshots[,]” “there was evidence of

gunpowder stippling” on Frabbiele‟s skin, which he explained indicated to him

“that the barrel was not in tight contact with the skin” when the shotgun was fired.

Moreover, he explained that he observed the presence of soot “in the wound” but

not on Frabbiele‟s skin, which indicated to him that “there were two separate

wounds.” Dr. Welke stated that due to these observations, he “went back in and

re-evaluated” Frabbiele‟s body, this time finding an additional shotgun wad

embedded in Frabbiele‟s facial bones. He further testified that, because he was

aware that a shotgun wad had previously been found at the scene, and that “there‟s

only one power piston, plastic wad, pellet containing container, whatever you want

to call them, per shotgun shell,” 3 he concluded that Frabbiele “had died as the

result of two shotgun wounds, as opposed to a single shotgun wound,” such that he

“changed [his] mind as a ruling from a suicide to a homicide[.]”

3
At trial, defense expert Christopher Robinson explained that the term “power piston” is
“a trademark made by Remington” to refer to Remington‟s wads, so that “[w]hen you hear the
term power piston, they‟re just using that in exchange for just wadding.”

3

The defendant was charged with second degree murder via a bill of

indictment on September 26, 2013. At trial, the jury unanimously found him guilty

as charged. He was sentenced to life in prison with no possibility of parole.

The defendant appeals, assigning as error:

[I.] That the Trial Court erred in allowing the State of Louisiana to
proceed with an “other crimes” or Prieur hearing despite
unreasonable notice being given to the Defendant. Further, that the
Trial Court erred in admitting the Prieur evidence despite the
ambiguity of the notice.

[II.] That the Trial Court erred in admitting inculpatory statements
made by the Defendant, when the notice to admit inculpatory
statements was not filed until a day after the trial was set to begin.
This error furthered the undeniable notion that Trial Courts feel that
any notice, no matter how short, is good notice when it comes to both
404 (b) (Prieur evidence) and notice of intent to use inculpatory
statements.

[III.] That the Trial Court erred in allowing the introduction of
demonstrative images relating to the design and operation of shotgun
shells. The Defense was only notified of the existence of these
images until [sic] the eve of trial. This severely prejudiced the
Defendant as he was not able to digest the images, have an expert
review those images, conduct a Daubert hearing, or prepare the
Defense[‟]s own images to counter the State‟s images.

[IV.] That the Trial Court erred in allowing Dr. Terry Welke to
testify as an expert in the areas of blood spatter, firearm, and
ammunition. The Trial Court allowed an individual who had been
tendered and accepted as an expert in forensic pathology to offer
expert and opinion testimony as to at least two disciplines in which he
was not an expert, and admitted that he had not [sic] expertise in.

[V.] That the Trial Court erred when it failed to grant the
Defendant‟s motion for mistrial. The State elicited testimony from
witnesses that the Court had previously held were inadmissible. The
Defendant found himself forced to decide whether an admonition to
the jury would bring more attention to the inadmissible statement.
More importantly, it is impossible to expect a lay person to simply
ignore some testimony or piece of evidence because a judge tells them
to do so. It is no comfort when that individual is made to promise that
they can ignore the statement or evidence. In this instance, the State
played a recorded statement where the Defendant admitted to falling
off the wagon and using drugs. These statements were to be redacted,
however the State failed to do so. The Defendant‟s counsel received

4

the six-hour statement the day before it was played. The Defendant‟s
counsel did not have time to review the discovery as he receive [sic]
the redacted version until [sic] 6:00 p.m. the day before.

[VI.] That the Trial Court erred in denying the Defendant‟s request to
have the following included in the jury instructions: “You may return
a responsive verdict listed on the verdict form even though you find
that the State has proved beyond a reasonable doubt every element of
the offense charged[.]” The State of Louisiana improperly
characterized this statement as a jury nullification instruction[,] and
the Trial Court did not include the phrase in final jury instructions.

[VII.] That the Trial Court erred in allowing the jury to view evidence
once they began deliberations. The jury requested to view certain
pieces of evidence[,] and they were allowed to do so after jury
deliberations began.

[VIII.] That the Trial Court erred in denying the Defendant‟s
motion for new trial.

[IX.] That the evidence presented at trial was insufficient to convict
the Defendant of Second Degree Murder[.]

Discussion

Errors Patent

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

errors patent on the face of the record. On review, we note that the record does not

indicate that the trial court advised the defendant of the time period for filing for

post-conviction relief as required by La.Code Crim.P. art. 930.8(C). 4 See, e.g,

State v. Lapoint, 16-187 (La.App. 3 Cir. 9/28/16), 202 So.3d 593. Accordingly, we

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

art. 930.8 by sending appropriate written notice to the defendant within ten days of

4
Louisiana Code of Criminal Procedure Article 930.8(C) provides, in pertinent part: “At
the time of sentencing, the trial court shall inform the defendant of the prescriptive period for
post-conviction relief either verbally or in writing.”

5

the rendition of this opinion and to file written proof into the record that the

defendant received the notice.

Sufficiency of Evidence

We address the defendant‟s final assignment of error first, as a finding that

the evidence was insufficient to support a conviction would require an acquittal.

See State v. Hearold, 603 So.2d 731 (La.1992). In this regard, the defendant‟s

appellate brief contains only one sentence in support of this assignment of error,

which states: “Without the inadmissible testimony[,] it is clear that there would not

have been sufficient evidence presented at trial to convict the defendant.”

However, we note that even inadmissible testimony must be considered in a

sufficiency of evidence analysis:

When the entirety of the evidence, including inadmissible evidence
which was erroneously admitted, is insufficient to support the
conviction, the accused must be discharged as to that crime, and any
discussion by the court of the trial error issues as to that crime would
be pure dicta since those issues are moot.

On the other hand, when the entirety of the evidence, both
admissible and inadmissible, is sufficient to support the conviction,
the accused is not entitled to an acquittal, and the reviewing court
must then consider the assignments of trial error to determine whether
the accused is entitled to a new trial.

Id. at 734. Accordingly, because the defendant does not set forth a proper

insufficiency of evidence claim, we find that this assignment of error lacks merit.5

We turn to consideration of the defendant‟s remaining assignments of error.

5
Additionally, we note that the defendant has failed to brief this assignment of error
outside of the single aforementioned sentence. See Uniform Rules—Courts of Appeal, Rule 2-
12.4(B)(4) (providing that “[a]ll assignments of error and issues for review must be briefed. The
court may consider as abandoned any assignment of error or issue for review which has not been
briefed.”).

6

Notice of Prieur Hearing

In his first assignment of error, the defendant argues that he did not receive

sufficient notice of the hearing on the admissibility of other crimes evidence

pursuant to State v. Prieur, 277 So.2d 126 (La.1973), modified by State v. Taylor,

16-1124, 16-1183 (La. 12/1/16), ___ So.3d ___. On April 29, 2015, the defendant

received a “Prieur notice” from the State regarding its intention to introduce

evidence of the defendant‟s other crimes, wrongs, or acts pursuant to La.Code

Evid. art. 404(B). The date of the Prieur hearing listed on the notice was March 1,

2015, which had already passed. The defendant alleges that his trial counsel later

received a handwritten note indicating that the hearing would be held on May 1,

2015, but because his trial counsel was already scheduled to represent another

person in a trial on that date, the hearing was rescheduled for May 11, 2015, which

was also the date set for the defendant‟s trial. Accordingly, the defendant

maintains that he was prejudiced by the “lateness” of the State‟s notice. The

defendant also argues that he was prejudiced by what he describes as “the extreme

vagueness of the facts laid out” in the Prieur notice, complaining that the notice

listed unnamed “law enforcement testimony” as a witness and that the notice

lacked the dates, times, and facts of the defendant‟s alleged other crimes.

At the beginning of the hearing on May 11, the defendant objected to the

State‟s notice on the grounds discussed above. The trial court overruled this

objection and allowed the hearing to go forward. The trial court ultimately denied

in part and granted in part the State‟s motion, determining that it would only allow

the State to introduce evidence pertaining to the defendant‟s arrest for domestic

violence against Frabbiele.

7

A trial court‟s finding that the State complied with the requirements of

Prieur, as well as its determination of the admissibility of other crimes evidence,

cannot be disturbed absent an abuse of discretion. See State v. Garcia, 09-1578

(La. 11/16/12), 108 So.3d 1, cert. denied, ____ U.S. ____, 133 S.Ct. 2863 (2013).

Moreover, if a trial court improperly admits other crimes evidence, that error is

subject to a harmless error analysis, with an error being harmless if the verdict is

“surely unattributable” to the error. Id. at 39 (quoting Sullivan v. Louisiana, 508

U.S. 275, 279, 113 S.Ct. 2078, 2081 (1993)).

We find that an analysis of whether notice was inadequate is unnecessary,

because even in the event any error occurred, it was harmless. Notably, the State

provided evidence that Frabbiele suffered two shotgun wounds to the head,

obviating the defendant‟s theory that she either committed suicide or shot herself

accidentally. Moreover, it is apparent from his statement to detectives that

defendant and Frabbiele were alone in the house at the time she died. Thus, we

find that the guilty verdict was surely unattributable to the other crimes evidence

presented at trial. For these reasons, we find that this assignment of error lacks

merit.

Notice of Intent to Introduce Inculpatory Statements

In his second assignment of error, the defendant argues that he was

prejudiced by the State moving to introduce two of his inculpatory statements on

the date trial was set to begin. The defendant argues that because the State waited

until this date to give notice, he did “not have any time to investigate the

individuals making the claims” or “to conduct legal research in preparation for

arguing the merits of the notice.”

8

Regarding notice of the State‟s intention to introduce inculpatory statements,

La.Code Crim.P.art. 768 provides the following:

Unless the defendant has been granted pretrial discovery, if the
state intends to introduce a confession or inculpatory statement in
evidence, it shall so advise the defendant in writing prior to beginning
the state’s opening statement. If it fails to do so a confession or
inculpatory statement shall not be admissible in evidence.

(Emphasis added). The State‟s failure to provide adequate notice of intent to

introduce inculpatory statements is subject to a harmless error analysis. See State

v. Quimby, 419 So.2d 951 (La.1982). Specifically, “the error may be harmless if

the remaining evidence of guilt is overwhelming.” Id. at 958. See also State v.

Curington, 09-867, (La.App. 5 Cir. 10/26/10), 51 So.3d 764, writ denied, 10-2612

(La. 4/8/11), 61 So.3d 684.

In the instant case, the State‟s notice of intention to introduce inculpatory

statements was timely, as it was given to the defendant before the commencement

of the State‟s opening statement. Additionally, due to the overwhelming evidence

of the defendant‟s guilt, as evidenced in the discussion of the previous assignment

of error, we find that any error that may have occurred was harmless. For these

reasons, we find that this assignment of error lacks merit.

Notice of Intent to Introduce Shotgun Images

In his third assignment of error, the defendant argues that he was prejudiced

by the State providing notice “on the very eve of jury trial” that it planned to

introduce images created by Dr. Welke depicting the function of a shotgun shell.

The defendant argues that because he did not receive notice earlier, he did not have

“enough time to file for and conduct a Daubert hearing[,]” to “consult with his

own expert regarding the accuracy of the images[,]” or “to have an expert of his

own prepare images that [he] could employ to counter those produced by the

9

State.” He further argues that Dr. Welke “is a medical doctor and a forensic

pathologist” who “has no expertise in ammunition or firearms.”

Regarding the introduction of demonstrative evidence, the Louisiana

Supreme Court has stated the following:

The rule concerning the introduction of demonstrative evidence
is that the foundation laid must establish that it is more probable than
not that the evidence is connected with the case and that the evidence
has some relevance which the trial court considers sufficient to
warrant its introduction. Ultimate connexity is a factual matter for
determination by the jury. Diagrams generally are admissible to aid
the jury in understanding testimony if shown to be an accurate
representation of the subject matter in question and the ruling of the
trial court relative to admissibility will not be disturbed on appeal
unless there has been abuse of discretion. In considering whether
demonstrative evidence is admissible over objection that it is unduly
inflammatory[,] the test to be applied is whether the proffered
evidence is relevant to any material issue in dispute and, if so, whether
its probative value exceeds its probable prejudicial effect.

State v. Prestridge, 399 So.2d 564, 573 (La.1981) (citations omitted).

Furthermore, “the introduction of demonstrative evidence is subject to a harmless

error analysis.” State v. Smith, 11-638, p. 17 (La.App. 5 Cir. 3/13/12), 90 So.3d

1114, 1125. While the defendant contends that Dr. Welke was unqualified to

create the images at issue, he does not contend that the images were inaccurate, nor

does he demonstrate how the images were unduly prejudicial. We also find that, as

discussed in previous assignments of error, any error that may have occurred was

harmless. Therefore, we find that this assignment of error lacks merit.

Dr. Welke’s Testimony

In his fourth assignment of error, the defendant alleges that the trial court

erred in allowing Dr. Welke, who was qualified as an expert in forensic pathology,

to testify regarding “both blood spatter and firearm mechanics as an expert.”

Within Dr. Welke‟s testimony, we note the following colloquy:

10

Q All right. From the scene photographs, was there anything
brought to you that was of interest to you?

A Yes, sir.

Q Could you tell the Jury what that was?

A Well, initially when I had done my examination, usually, when
we see -- I‟m not a firearms expert, but gunshot wounds are my
forte, and when someone dies as a result of a gunshot wound or
shotgun wound, we try to make a determination of the distance;
in other words, is the end of the barrel in contact tight to the
skin, or is the end of the barrel a long way from the skin at the
time of discharge? And when I did my initial examination --
like I said, the information, if I remember correctly, was called
in and said that a wad -- and basically, what a wad is, it‟s a
portion of a shotgun shell that separates the pellets from the
powder. The powder is what burns, and then, basically, the
gases and everything push the pellets out of the barrel. And
when I did my examination, like I said, with shotgun wounds
and suicides, we usually see contact gunshots -- or injuries,
entry wounds, and in this particular instance, things just didn‟t
make any sense to me because I saw something that I thought
was a medium range, meaning there was evidence of
gunpowder stippling, which means that the barrel was not in
tight contact with the skin, and there was also some findings
where there was soot inside of the wound, but no soot, which is
like smoke -- and I did not see the smoke or the soot on the
skin, but I saw it within the eye socket, so it didn‟t make --
something just didn‟t jive [sic] with me, so, anyhow, when Zeb
and Charlie returned with the scene photographs, they showed
those to me, and I am not a blood splatter expert, but I told Zeb
and Charlie -- I paint. My wife and I paint the walls in our
house, so I‟m familiar with what paint does when you flick it
off of a paintbrush. If you go straight on at a 90-degree angle,
it makes little round circles, and makes those little things kind
of shoot outwards, but if you hit a wall at an angle, it gives a
tadpole effect, and in the scene photographs that they had
shown me, over the headboard were these tadpole-like blood
splatter findings, and, to me, that meant that it was at an angle
at the time of discharge, or at the time that the pellets hit the
body and the blood had expelled from the body, and then, on
another wall which was adjacent to that and to the side --
alongside of the bed, the blood splatter was straight on, and so I
thought there were two different trajectories, one at an angle --

11

MR. ALEXANDER:6

Your Honor, I‟m going to object because he‟s just said
he‟s not a blood splatter expert but he‟s proceeding to give
opinion evidence on blood splatter.

A Well, I‟m not finished, sir.

THE COURT:

State?

MR. BRYANT:

He‟s allowed to testify as to -- he‟s a forensic pathologist
who‟s allowed to testify as to what opinions he came to as to
why he continued his investigation into this matter, and he is --
he viewed the photographs and why he continued his
investigation into this matter, Your Honor. I think he‟s more
than qualified to do this. He‟s done over five thousand
autopsies, he‟s done gunshot wounds, and I think he‟s more
than qualified to testify in this area.

THE COURT:

Objection‟s overruled. You may proceed.

A So then I thought there were two different trajectories, and then,
in conjunction with the fact that the findings I had found on the
body did not jive [sic], did not sync, I went back in and re-
evaluated Toni‟s body and was -- I taken what we call -- they‟re
basically long tweezers, and starting probing the facial bones,
and I found a second wad, which didn‟t -- there was one wad
that was at the scene, and the second wad that was still in her
facial bones, and this started to make more sense to me,
because, then, I felt that Toni had been the result -- or had died
as the result of two shotgun wounds, as opposed to a single
shotgun wound, so I then asked Zeb and Charlie to return to the
scene to take more photographs, and, by the time the day was
over, I had gone from -- changed my mind as a ruling from a
suicide to a homicide, meaning that someone had caused her
death.

After review, we conclude that, rather than Dr. Welke testifying as an expert

regarding firearms or blood spatter, he discussed these topics merely to explain the

6
At trial, Mr. Alexander represented the defendant, and Mr. Bryant represented the State.

12

course of action he took in investigating Frabbiele‟s death. More specifically, his

testimony in this regard pertained to his discovery of the second wad. Dr. Welke

explained multiple times throughout his testimony that he was neither a firearms

expert nor a blood spatter expert. Further, he stated that he did not base his

conclusion regarding Frabbiele‟s “manner of death nor cause of death on blood

splatter.” Moreover, if the trial court erred in allowing Dr. Welke to testify

regarding blood spatter and firearms, such error was harmless, as the State

presented another witness, Colonel Timothy Scanlan, who qualified as an expert in

blood spatter and firearm examination.

The defendant also argues that the trial court erred in prohibiting his expert

witness, who was qualified in the areas of firearm examination, crime scene

reconstruction, shooting reconstruction, and blood spatter, from testifying “in areas

that fell squarely within his expertise, but were not included in his expert witness

report.” The defendant complains that he was held to a “double standard[,]”

asserting that Dr. Welke was allowed to “give expert opinion testimony” as a

layperson regarding blood spatter and firearms “without the notice[.]” However,

as discussed above, we do not find that Dr. Welke testified as an expert in the areas

of blood spatter or firearms. Moreover, the defendant‟s appellate brief fails to

specify what testimony his expert was prohibited from providing. A review of the

record reveals that while the defendant‟s expert was barred from testifying

regarding his own analysis, as this had not been included in his expert witness

report, he was able to present his opinion regarding the analyses of the State‟s

expert witnesses. Accordingly, we find that this assignment of error lacks merit.

13

Denial of Motion for Mistrial

In his fifth assignment of error, 7 the defendant argues that the trial court

erred in denying his motion for mistrial. The motion was made after the State

played for the jury a recorded statement by the defendant containing information

regarding the defendant‟s past drug use, which the State had previously agreed to

redact. The defendant alleges that his trial counsel received the State‟s “redacted”

version of the “five-hour statement at 6:00 p.m. the day before it would be played

before the jury,” and that accordingly, his trial counsel “did not have an

opportunity to review” the entire statement. However, the defendant sets forth no

statutory law or jurisprudence in support of his argument.

The fifth circuit dealt with a similar fact pattern in State v. Lagarde, 07-123

(La.App. 5 Cir. 5/29/07), 960 So.2d 1105, writ denied, 07-1650 (La. 5/9/08), 980

So.2d 684. In Lagarde, the defendant argued that the trial court erred in denying

his motion for mistrial after “the jury viewed an edited version of the defendant‟s

statement that failed to omit a reference to the defendant‟s arrest for second degree

murder.” Id. at 1110. The panel stated that a “mistrial is a drastic remedy and,

except in instances in which a mistrial is mandatory, is warranted only when trial

error results in substantial prejudice to defendant, depriving him of a reasonable

expectation of a fair trial.” Id. at 1113. Moreover, a denial of a motion for mistrial

cannot be disturbed absent an abuse of discretion, and an “impermissible reference

to other crimes is subject to a harmless error analysis.” Id. at 1114. The fifth

circuit found no abuse of discretion in denying the motion for mistrial and stated

7
In the argument section of the defendant‟s appellate brief, the defendant reverses the
order of his fifth and sixth assignments of error, such that his discussion of his sixth assignment
of error immediately precedes the discussion of his fifth assignment of error. For the purposes of
this opinion, we discuss these assignments in the order that they are listed in the assignments of
error section of the defendant‟s appellate brief.

14

that “even if the jury read or heard the brief reference to the defendant‟s „second

degree homicide‟ arrest, any error that occurred was harmless” due to the

“evidence against the defendant[.]” Id. at 1114.

In the instant case, we do not find that the trial court abused its discretion in

denying the defendant‟s motion for mistrial. We also find that even if the trial

court had abused its discretion, the error was harmless, as the verdict was surely

unattributable to the recorded statement‟s brief reference to the defendant‟s past

drug use. For these reasons, we find that this assignment of error lacks merit.

Denial of Special Jury Instruction Request

In his next assignment of error, the defendant indicates that the trial court

erred in denying his request for a special jury instruction. In a letter to the trial

court dated May 7, 2015, the defendant requested the following special instruction:

“You may return any responsive verdict listed on the verdict form even though you

find that the State has proved beyond a reasonable doubt every element of the

offense charged.” The defendant argues that in requesting this jury instruction, he

“simply sought to inform the jury that the jury had the option of returning a

responsive verdict, even if they [felt] the State proved every element of the offense

beyond a reasonable doubt.” On May 14, 2015, the State filed a “State‟s

Opposition to Defendant‟s Request for a Special Jury Instruction Regarding Jury

Nullification.” After the jury had been charged, the following colloquy occurred:

MR. ALEXANDER:

If this would be an appropriate time to make the formal
objections on the record with regard to the jury instructions?

THE COURT:

It would be.

15

MR. ALEXANDER:

Because we haven‟t been on the record about that yet. It‟s just
been called to my attention by Mr. Flammang that the form does not
include -- can this be right -- it doesn‟t include the circumstantial
evidence instruction?

THE COURT:

You read the form and approved the form before I gave the
instruction.

MR. ALEXANDER:

I‟m making my objection on the record now that it should
contain the circumstantial evidence instruction. If he‟s right, it
doesn‟t. That escaped my attention, but I wouldn‟t have had a chance
to make an objection on the record until now, and so I make it.

I also, with regard to things that we have previously discussed,
and I have a copy of the letter that I submitted on May 7th about the
two that I requested in advance about the proposed special jury
instructions. One about the responsive verdicts where I have
requested quote, “You may return any responsive verdict listed on the
verdict form even though you find that the State has proved beyond a
reasonable doubt every element of the offense charged.”

THE COURT:

Let the objection be noted. State, anything on the first
objection being placed by Defense?

MR. BRYANT:

I thought everything had been approved. I looked through it
and I didn‟t notice that, but I thought both side[s] had approved the
jury instructions.

THE COURT:

And I do want to note this would be the opportune time to
suggest that we met after close of proceedings yesterday in my
chambers to approve. There were some corrections to be made,
research to be had on some questions by Defense. We reconvened at
8:30 this morning for the second jury charge, upon which all the
additions were made.

The Defense and the State suggested that they wish to change
what the jury instruction was. I told them the only two ways they

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could change it was to agree with each other by stipulation and/or the
Court was going to follow standard treatise law as it relates to
instructions. That was placed on the record.

We had a third and subsequent meeting on the jury instructions
at the conclusion of the Defense case in open court in which the jury
charges, which I just read to the jury were promulgated, received by
each party, given an opportunity to respond, upon which the Defense
suggested that there was going to be a stipulated agreement that the
language included that was inconsistent with the instructions
yesterday would be included.

That was by stipulation, and as a result thereof the Court
allowed this matter to proceed with closing arguments and now as we
find ourselves with a charged Jury.

According to La.Code Crim.P. art. 807, “[a] requested special charge shall

be given by the court if it does not require qualification, limitation, or explanation,

and if it is wholly correct and pertinent. It need not be given if it is included in the

general charge or in another special charge to be given.” In State v. Sharp, 35,714,

p. 19 (La.App. 2 Cir. 2/27/02), 810 So.2d 1179, 1191, the defendant argued that

the trial court erred in failing to give the following requested jury instruction: “You

the jury have the option to convict the defendant of a lesser offense, even though

the evidence clearly and overwhelmingly supports a conviction of the charged

offense.” Finding no error in this regard, the second circuit stated the following:

Clearly, the first portion of the special instruction requested by
[the defendant] was an attempt to reiterate more specifically the law
of responsive verdicts to the jury, i.e., even if the evidence supports
second degree murder, you can return a manslaughter verdict.
Although arguably a technically correct statement,[8] it is one which is
integrated within the responsive verdict law. The jury was clearly
instructed that it could return a verdict of guilty to the lesser included
offense of manslaughter. To expound the responsive verdict law in
the way that [the defendant] suggests would, in our opinion, require,
at the very least, qualification and certainly explanation. There is no
8
See State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137. In Porter, the supreme court
explained: “Treating the jury‟s prerogative to return a responsive verdict similar to the jury‟s
power of nullification, this court has consistently held that the jury must be given the option to
convict the defendant of the lesser offense, even though the evidence clearly and
overwhelmingly supported a conviction of the charged offense.” Id. at 1140 (footnote omitted).

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Louisiana jurisprudence supporting an argument that it is proper to
instruct a jury that it can disobey law and reach a verdict inconsistent
with the evidence. In this case, the general instruction was adequate
to instruct the jury on this point. The trial judge obviously agreed.
Finally, with the general instructions clearly listing manslaughter as a
lesser included verdict to second degree murder, [the defendant‟s]
request to inform the jury that in any second degree murder case you
may return a verdict of manslaughter would have been redundant.

Id. at 1192.

In the instant case, after the trial court explained to the jury the elements of

second degree murder as well as its responsive verdicts, it stated the following: “If

the State has failed to prove beyond a reasonable doubt that the defendant is guilty

of the offense charged or of the lesser included offenses, your verdict should be not

guilty.” We find that, as in Sharp, the trial court sufficiently instructed the jury

regarding its ability to return a responsive verdict, such that inclusion of the

defendant‟s instruction was unnecessary. Accordingly, we find that this

assignment of error lacks merit.

Jury Examination of Autopsy Photographs

In his seventh assignment of error, the defendant argues that the trial court

erred in allowing the jury to examine autopsy photographs during jury

deliberations. The defendant argues, without citing to any statutory law or

jurisprudence, that these photographs could have “provoke[d] an emotional

reaction” in the jury and that it was “clearly prejudicial” to allow the jury to view

those photographs. However, a trial court is permitted to allow jurors to view any

object received in evidence, including photographs, during deliberations. See

La.Code Crim.P. art. 793(A); see also State v. Davis, 92-1623 (La. 5/23/94), 637

So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450 (1994). Thus, we find that

this assignment of error lacks merit.

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Denial of Motion for New Trial

In his eighth assignment of error, the defendant argues that the trial court

erred in denying his motion for new trial. In support of this argument, the

defendant reiterates his previous assignments of error, indicating that it was

“impossible” for the defendant to “receive a fair trial” given these errors.

We have above determined that each of the defendant‟s previous

assignments of error lack merit. Moreover, Louisiana jurisprudence does not

recognize such “cumulative error” arguments. See State v. Blank, 16-213 (La.

5/13/16), 192 So.3d 93; see also State v. Kelly, 14-522 (La.App. 3 Cir. 12/10/14),

153 So.3d 1257, aff’d in part, 15-484 (La. 6/29/16), 195 So.3d 449. For these

reasons, we find that this assignment of error lacks merit.

DECREE

For the foregoing reasons, the conviction of the defendant, Leo Paul

Thibodeaux, Jr., is affirmed. We further direct the trial court to inform the

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

written notice to the defendant within ten days of the rendition of this opinion and

to file written proof in the record that the defendant received notice.

AFFIRMED WITH INSTRUCTIONS.

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