State of Louisiana v. Kerry Bertrand

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-659

STATE OF LOUISIANA

VERSUS

KERRY BERTRAND

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 81,691
HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Burleigh G. Doga
Assistant District Attorney
Post Office Box 288
Crowley, Louisiana 70526-0288
(337) 788-8831
Counsel for Appellee:
State of Louisiana

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

KEATY, Judge.

Defendant, Kerry Bertrand, was charged by bill of indictment with the

second degree murder of his twenty-year-old stepdaughter, Skylar Credeur, in

violation of La.R.S. 14:30.1. He waived formal arraignment and entered a plea of

not guilty. A unanimous jury convicted him of the charged offense, and the trial

court imposed a mandatory sentence of life imprisonment at hard labor without the

benefit of parole, probation, or suspension of sentence. Defendant appeals. For

the following reasons, we affirm Defendant’s conviction.

DISCUSSION

On August 21, 2013, authorities responded to a call that Defendant and the

victim were alone in her home after a restraining order had been issued against

him. There, they found the victim’s lifeless body in a bathtub with a laptop

computer lying across her upper body. Shortly thereafter, Defendant was found

hiding in the attic of the home. An autopsy revealed that the victim’s cause of

death was drowning with strangulation or attempted strangulation before or during

the drowning.

Sufficiency of the Evidence

In his first assignment of error, Defendant contends that “[t]he circumstantial

evidence adduced at trial was insufficient to support the conviction of second

degree murder beyond a reasonable doubt.”

Second degree murder is defined as the “killing of a human being . . . [w]hen

the offender has a specific intent to kill or to inflict great bodily harm[.]” La.R.S.

14:30.1(A)(1). Specific intent is defined in La.R.S. 14:10(1) as “that state of mind

which exists when the circumstances indicate that the offender actively desired the

prescribed criminal consequences to follow his act or failure to act.” In State v.

Thibodeaux, 15-723, pp. 4-6 (La.App. 3 Cir. 4/13/16), 190 So.3d 426, 430-31, this

court discussed the standard to be applied in cases where the sufficiency of the

evidence is challenged and the case is based on circumstantial evidence:

The supreme court set forth the standard of review for
evaluating the sufficiency of the evidence on appeal in State v.
Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86, where
it held:

The standard of appellate review for a sufficiency
of the evidence claim is whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d
1305 (La.1988). A determination of the weight of
evidence is a question of fact, resting solely with the trier
of fact who may accept or reject, in whole or in part, the
testimony of any witnesses. State v. Silman, 95-0154
(La.11/27/95), 663 So.2d 27, 35. A reviewing court may
impinge on the factfinding function of the jury only to
the extent necessary to assure the Jackson standard of
review. State v. Bordenave, 95-2328 (La.4/26/96), 678
So.2d 19, 20. It is not the function of an appellate court
to assess credibility or re-weigh the evidence. Id.

....

The fifth circuit discussed the criteria for reviewing
circumstantial evidence in the case of an attempted second degree
murder in State v. Riley, 11-673, p. 10 (La.App. 5 Cir. 3/13/12), 90
So.3d 1144, 1149-50, writ denied, 12-855 (La.9/28/12), 98 So.3d 828,
where it held:

“Circumstantial evidence is evidence of facts or
circumstances from which one might infer or conclude,
according to reason and common experience, the
existence of other connected facts.” State v. Kempton,
01-572, p. 7 (La.App. 5 Cir. 12/12/01), 806 So.2d 718,
722. “The rule as to circumstantial evidence is:
assuming every fact to be proved that the evidence tends
to prove, in order to convict, it must exclude every
reasonable hypothesis of innocence.” LSA-R.S. 15:438.
However, this requirement does not establish a standard
that is separate from the Jackson standard, but instead
provides a helpful methodology for determining the

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existence of reasonable doubt. State v. Lathers, 03-941
(La.App. 5 Cir. 2/23/04), 868 So.2d 881, 884. To
support the conclusion that the defendant is guilty
beyond a reasonable doubt, all evidence, both direct and
circumstantial, must be sufficient. Id. (citation omitted).

When the trier of fact is confronted by conflicting
testimony, the determination of that fact rests solely with
that judge or jury, who may accept or reject, in whole or
in part, the testimony of any witness. State v. Bailey, 04-
85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 955, writ
denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert.
denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468
(2005). In the absence of internal contradiction or
irreconcilable conflict with physical evidence, the
testimony of one witness, if believed by the trier-of-fact,
is sufficient to convict. State v. Addison, 00-1730, p. 4
(La.App. 5 Cir. 5/16/01), 788 So.2d 608, 613, writ
denied, 01-1660 (La.4/26/02), 814 So.2d 549. Further, it
is not the function of the appellate court to assess the
credibility of witnesses or to re-weigh the evidence
absent impingement on the fundamental due process of
law.

At trial, a number of witnesses testified for the State. Michelle Sarver, a

deputy clerk with the Acadia Parish Clerk’s Office, testified that on August 13,

2013, a temporary restraining order was issued ordering Defendant to “stay away

from” the victim and her residence located at 140 Victor Road in Rayne,

Louisiana. A hearing for a protective order was set for August 28, 2013. A

separate temporary restraining order was issued on August 15, 2013, ordering

Defendant to stay away from his wife, Alidia Credeur Bertrand, and their four

minor children, who lived with the victim. The hearing date for this order was also

set for August 28, 2013. Deputy James Landry with the Acadia Parish Sheriff’s

Department testified that he personally served Defendant with the summons for the

temporary restraining orders regarding the victim and his wife on August 14, 2013,

and on August 15, 2013, respectively.

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Dr. Mark Dawson, the coroner of Acadia Parish for thirty-two years,

testified that he received a call from the Acadia Parish Sheriff’s Department on the

afternoon of August 21, 2013, requesting that he go to the victim’s home. Upon

his arrival, he found the victim deceased in the bathtub. Several officers from the

Acadia Parish Sheriff’s Department had arrived on the scene before him. Dr.

Dawson described the bathroom as being in disarray with a shower curtain and

towels on the floor and a laptop computer on the lavatory next to the bathtub. The

power cord was attached to the computer and was plugged into the wall.

According to Dr. Dawson, there was no obvious cause of death. On the

death certificate, he listed the cause of death as drowning. When asked what his

initial thoughts were as to a cause of death, Dr. Dawson responded that

electrocution and possible drug overdose were the two things that came to mind.

He ordered an autopsy of the body, which indicated the cause of death was

drowning. On cross-examination, Dr. Dawson acknowledged that one of the

possibilities for the cause of death was accidental electrocution.

Dr. Terry Welke, who was accepted by the trial court as an expert in the

field of forensic pathology, performed the autopsy on the victim’s body at the

request of Dr. Dawson. His examination revealed that there was white foam

coming from the victim’s nose and mouth which is consistent with drowning. He

also found watery fluid in her stomach. Dr. Welke observed “little dashed scrapes”

around the neck which he felt were caused by irritation from the thin necklace she

was wearing; fresh bruises on the back of her left shoulder, on her right shoulder,

and on the back of her right hand; as well as a couple of scrapes on one of her

arms. When he pulled back the victim’s scalp, there was a bruise on the

undersurface of the scalp consistent with a forced injury directly on the top of the

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head, “like someone or something had either fallen on her head or somebody hit

her on the head.” Dr. Welke’s examination also revealed petechiae, or pin-point

bruises, on the outside and undersurface of the victim’s eyelids; this is typically

caused by pressure being applied to the neck as with strangulation or hanging.

Additionally, he stated in his report that the victim had a “faint, linear patterned-

bruise across the front of the neck,” which was similar in appearance to the

victim’s thin, metal necklace. Finally, when he looked at the inside of the victim’s

neck, he observed some blood and a bruise in the area of the thyroid gland.

Dr. Welke explained that he was trained that in order to rule a death a

homicide, he had to be 100% certain that there was no other cause of death,

whereas with accidental or natural deaths, he only had to be 51% certain before he

called it one way or the other. Dr. Welke testified that because a laptop computer

was found near the victim’s body, he explored the possibility that the victim died

from electrocution in order to exclude all other causes of death. Dr. Welke stated

that ground fault outlets have a button that turns the electricity off and another

button that turns it back on. He explained that if a person stepped into a bathtub

while holding an electrical appliance, the circuitry will be shut off so the person

does not get electrocuted. Dr. Welke explained injuries/deaths from electrocution

as follows:

Q. Can you tell us, in your experience and training, what evidence,
if any, there is of electrocution that you could apply to this case in
your examination?

A. . . . [W]ith one hundred twenty (120) volts, which is what is in
the wall, if you grab a bare wire what will happen is, you’ll actually
feel some twitching in your arm. And one hundred twenty (120)
volts, you’re not going to see anything. What it does is it causes the
heart to go into what’s known as an arrhythmia or an irregular heart
rate and basically becomes an inefficient pump. People that die as a
result of high voltage injuries . . . . [exhibit] extensive tissue damage.

5

You can see arms where the muscles are essentially blown out
basically. I mean, it looks like it’s blown out, it’s not, but it tears
muscle and it can do damage on the inside. So, with one hundred
twenty (120) volts you’re probably not going to see
anything. . . . Even if your heart is not pumping efficiently, you still
have ten (10) seconds, basically, of doing something even after you’ve
been electrocuted with one hundred twenty (120) volts. So, since
there’s really no - being unable to see with one hundred twenty (120)
volts, because sometimes we might see a little burning on the skin, but
a lot of times we won’t see anything at all. So, everything had to be
ruled out before I could rule out electrocution in this case. Which I
felt I did.

....

Q. Hypothetically, Doctor, let[’]s say that there was a powered,
electrically powered laptop in the tub with the victim. Okay? Does
that make any difference in that scenario where you have water, which
I’m assuming is a conductor of electricity?

A. I would assume if it’s in the water and there’s a ground fault it
would have tripped the ground fault. But even - laptops are powered -
- Those of you that have a laptop, you have the cord that goes in the
wall and then there’s a brick, a box, it downsizes the voltage that goes
in so that it doesn’t burn out your computer. And I think computers
go down to . . . nineteen (19) volts, twenty (20) volts, something of
that sort. So, I don’t think that would - you might get a buzz, I mean,
just a little tingling possibly.

....

A. Providing - I’m sorry - providing the brick wasn’t in the water.

BY MR. ALONZO:

Providing, I’m sorry, what, Doc?

BY THE WITNESS:

A. Well, a powered laptop - the laptops that I have, I have about this
much cord between the brick and where the laptop is. (Witness
indicates with hands.) If the laptop goes in the water but the brick is
outside the tub, I would think that there are, like, only nineteen (19) or
twenty (20) volts in the water with the laptop; however, if the brick, or
whatever you want to call it, the power source, goes in the water with
the laptop then I would think that would be a possibility of one
hundred twenty (120) volts there. But if the brick itself where it steps
down the voltage from one hundred twenty (120) to nineteen (19) or
twenty (20) volts, I think with nineteen (19) or twenty (20) volts, like

6

I said, I think that would just give like a little tingling, if even that, I
don’t know. I’m not an expert in that sort of thing.

Dr. Welke found no physical evidence consistent with the victim being

injured by electrical shock. He testified that he received a letter from the Federal

Bureau of Investigation (FBI) stating that its analysis showed “that the computer

and the ground fault were doing essentially what they were supposed to be doing.”

Dr. Welke also explored the possibility of drug overdose, because with drowning,

there is a possibility the person passed out and drowned. A toxicology analysis

was done, and no drugs were found in the victim’s system. In addition, Dr. Welke

found that there were no indications that the victim had died of natural causes.

Based on those findings, Dr. Welke concluded in his autopsy report that the victim

died as a result of drowning with possible attempted strangulation during or before

her “head [was] held below the surface of the water,” and that the manner of death

was homicide.

On cross-examination, Dr. Welke acknowledged that if the victim’s

computer had fallen into the bathtub and the ground fault did not trip, there was a

“strong possibility of electrocution” that would leave no visible signs on her body.

Dr. Welke stated that although there is a possibility that the hyoid bone could be

broken in a forcible strangulation, he had found only a few broken hyoid bones in

strangulation cases he had observed. While his autopsy revealed that the victim’s

hyoid bone was not broken, Dr. Welke explained such a finding did not indicate

that strangulation was not attempted. Although Dr. Welke confirmed that the

bruising he found on the victim’s neck did not go around her entire neck, he

reiterated that the cause of her death was drowning, but there was evidence of

strangulation. During questioning, Dr. Welke confirmed that there were no

7

scratches or scrapes on the victim’s face and that none of her fingernails were

broken. On the other hand, the autopsy revealed that the victim’s lungs were wet

and “about twice of what the weight should be for somebody her size and weight.”

Dr. Welke repeatedly testified that the cause of death was drowning, not

strangulation.

Mr. Audie Hanks, an electrician, was accepted by the court as an expert in

electrical contracting. Mr. Hanks testified that although he was unsure of the exact

date, he was contacted by the Acadia Parish Sheriff’s Department to conduct an

electrical test on a ground fault interrupter (GFI) receptacle on the side of the sink

in the victim’s bathroom to determine whether it was working properly.

Mr. Hanks stated that he used his voltage meter on the receptacle and determined

that the receptacle was “tripped.” Based upon his inspection and subsequent

testing, Mr. Hanks concluded the receptacle was in working order. Mr. Hanks

explained that a GFI receptacle has two buttons on it, and its purpose is to protect

from anything that is shorted or grounded; if the GFI receptacle is “tripped,” the

flow of electricity is cut off from the receptacle to whatever is plugged in to

prevent electrocution.

On cross-examination, Mr. Hanks confirmed that he did not know how many

people had been in the bathroom before he arrived, he did not know if someone

tested the receptacle before him, and he did not have any idea what “tripped” the

receptacle. Mr. Hanks stated that if the GFI receptacle does not work and

something with 120 volts of electricity is dropped into a bathtub with someone, it

would likely kill them because “one hundred twenty (120) volts is worse than

thirteen thousand (13,000) volts because it holds you.”

8

On re-direct, Mr. Hanks confirmed that the voltage would be less in an

appliance with a “brick” that steps down the voltage. He testified that he had no

knowledge of what type of appliance was involved in this situation and that he was

not testifying on how much voltage it takes to kill someone as he had no expertise

in that area.

Deputy Lonis Domingue of the Acadia Parish Sheriff’s Department testified

that he was the first to arrive at the victim’s residence at approximately 11:59 a.m.

due to a complaint that Defendant was locked in the house with the victim. Upon

arrival, Mrs. Bertrand, the complainant, was outside the residence and was very

distraught. Deputy Domingue stated that the front door to the residence was

“busted open” and that he entered the house with his gun drawn. When he entered

the open door to the bathroom, Deputy Domingue observed the victim deceased in

a tub of water with a laptop computer across her breast and stomach area. He

testified that he did not touch or do anything to the electrical outlet. A short time

later, he was joined by Sergeant Glynn Johnson and several more of the victim’s

family members. Deputy Domingue and Sergeant Johnson removed everyone

from the residence and continued looking for a suspect, but one was not located at

that time. Deputy Domingue explained that investigators and detectives began

arriving, and they took control of the scene.

On cross-examination, after reviewing the report he wrote concerning the

incident, Deputy Domingue testified that he did not recall if the laptop was

plugged in or unplugged, but that it must not have been plugged in “because [he]

wouldn’t have attempted to touch the victim with electricity running to the water.”

Deputy Domingue stated that he did not see any scratches, bruising, or blood on

the victim. He explained, however, that as the first responder to arrive on the

9

scene, his objective was to stop the threat and to secure the area which included

preventing anyone from entering the bathroom because detectives would be

arriving later to conduct an investigation and collect evidence.

Sergeant Johnson also testified at trial. He stated that after Deputy

Domingue informed him of the situation, the two of them entered the house with

their guns drawn. They searched the house room by room because someone whom

he thought was the victim’s grandmother kept hollering, “he’s in the house.”

Sergeant Johnson stated that upon entering the bathroom, he saw the victim

submerged in the bathtub with foam coming from her mouth and a laptop on her

chest. He did not touch the victim or anything else in the bathroom. Sergeant

Johnson distinctly remembered that the cord was plugged into the electrical outlet

in the wall, but not into the computer. He did not remove the cord from the

electrical outlet. Sergeant Johnson stated that he and Deputy Domingue did not

inspect the attic. He recalled that the opening to the attic was high and square with

no fold-down ladder. Deputy Domingue testified that he noticed a ladder was

leaning in a closed position against the wall of the hallway, but at the time “it never

dawned on [him] what it was for.”

On cross-examination, Sergeant Johnson testified that there was a shower

curtain on the bathroom floor, which he thought was strange, and that the floor was

a little wet but not excessively so. He did not recall seeing any bruises or scratches

on the victim. However, on re-direct, Sergeant Johnson stated that he did not

closely inspect the victim’s body.

Edmond Credeur, the victim’s uncle, testified that after the scene was

cleared and people were allowed inside, he entered the house and decided to check

the attic. He used the ladder in the hallway to get into the attic. Upon turning on

10

the attic lights, he noticed that the ones on the east end of the attic were not

working, so he retrieved a flashlight. Mr. Credeur made his way across the attic

and discovered Defendant lying on his back hiding in the “eve of the roof.”

Defendant then stood up and said, “I didn’t do it.” When Mr. Credeur asked him

what he didn’t do, Defendant “mumbled something about something floating in the

bathtub.” Mr. Credeur stated that he observed scratches on Defendant’s face.

Defendant then stated that he was going to come down from the attic, so Mr.

Credeur alerted the deputies. Mr. Credeur then sought assistance from his two

stepsons who had come to the victim’s house with him. Once the boys joined him

in the attic, a deputy gave them handcuffs to put on Defendant. After Defendant

was brought down from the attic, Mr. Credeur pointed out the scratches on his face

to the deputies. According to Mr. Credeur, Defendant accused him and his

stepsons of scratching his face, but Mr. Credeur denied those accusations.

Corey Arnaud, Mr. Credeur’s stepson, testified that when they asked

Defendant why he was in the attic, he said, “Well, if you find your daughter dead

in a bathtub[,] what would you do?” They told him, “Well, we’d call 911. We

surely wouldn’t be hiding in the attic.” Mr. Arnaud confirmed that he did not

scratch Defendant’s face, and he did not see anyone else do so.

Deputy Marcus Deville of the Acadia Parish Sheriff’s Department testified

that he worked in the parish jail in December of 2013. On December 16, 2013,

while he was working in the jail’s control room, he heard Defendant tell fellow

inmate Ovey Wilson that he had cleaned the crime scene the best he could and that

he wore gloves. Deputy Deville then heard Mr. Wilson ask Defendant if he had

checked under the victim’s fingernails. Defendant responded in the negative and

stated that it was the only mistake he made.

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Bethany Harris, an employee of the Acadiana Crime Lab, was accepted as

an expert in DNA analysis by the court. She explained that she tested the forty-

five to fifty items submitted to her from the victim’s bathroom against referenced

DNA samples from the victim; Defendant; the victim’s mother and Defendant’s

wife, Mrs. Bertrand; four children of Defendant and his wife, namely Blake,

Drake, Evan, and Taylor Bertrand; and the victim’s boyfriend, Bryar Babineaux.

Ms. Harris stated that while the DNA profile of several of tested items excluded

Defendant, there were several other items of which she could not draw any

conclusions regarding Defendant. She explained that when her testing revealed

“no conclusion” regarding whether Defendant’s DNA was on an item, he may have

touched the item but she was unable to ascertain whether or not he did so.

According to Ms. Harris, heat and water can degrade or wash away DNA and,

thus, affect the results of DNA analysis.

On cross-examination, Ms. Harris stated that she was not able to

conclusively include Defendant’s DNA profile in any of the items she tested from

the victim’s bathroom. Ms. Harris stated that the analysis in this case was

complicated because of the number of reference samples she had of Defendant’s

biological children which resulted in overlapping DNA profiles. In testing swabs

of the victim’s left and right fingernail clippings, there was a presumptive

indication that blood may be present; however, Ms. Harris did not take the next

step to confirm the presence of blood because the sample was too small. The

profile matched the victim and excluded Defendant and other family members as

the source of that DNA profile. No male DNA was found on her left fingernail

clippings, but a mixed profile consisting of DNA from at least three male

individuals was obtained from her right fingernail clippings. Defendant and the

12

victim’s brothers were excluded from this profile, but the victim’s boyfriend was

not.

Ryan LeBleu, a convicted felon, testified that while he was in the Acadia

Parish jail between May 31 and August 12, 2013, he was housed in the same tier

with Defendant, when Defendant was there on another charge. During this time,

Defendant told Mr. LeBleu that his stepdaughter had some kind of way “brought

back up charges of molestation” for which Defendant had already been imprisoned

and released. According to Mr. LeBleu, Defendant said the reason his

stepdaughter did so was because “he wanted her out of the house.” Defendant

referred to his stepdaughter as a “bitch,” and he told Mr. LeBleu that he was going

to make her pay for what she had done to him. Mr. LeBleu testified that although

Defendant did not go into detail with him, he heard Defendant tell others seated at

a table with them that he was going to drown his stepdaughter in a tub and take her

to a lake or swamp where no one would find her body. Mr. LeBleu explained that

when he saw the story of the victim’s death on the news, he contacted the Acadia

Parish Sheriff’s Department and gave a statement. Mr. LeBleu testified that since

that time, he has had no pending charges, and he has not asked for, been offered,

nor received anything in exchange for his testimony. On cross-examination, Mr.

LeBleu testified that he suffers from several mental disorders, including bi-polar,

schizoaffective, and post-traumatic stress. He explained that his schizoaffective

disorder means that he is paranoid, but when asked, he affirmed that it does not

involve fantasies, imaginations, stories, or lies.

Lieutenant Patrick Kirsch, Chief of Investigations with the Acadia Parish

Sheriff’s Department, testified that when he took Mr. LeBleu’s statement regarding

13

this incident on August 21, 2013, Mr. LeBleu did not mention anything about

Defendant throwing a body in a swamp or planning to drown the victim.

In support of Defendant’s claim of insufficiency of the evidence,

Defendant’s appellate counsel focuses on a number of facts, or lack thereof, such

as: the lack of water in the bathroom as would be expected if the victim fought for

her life, the victim’s intact hyoid bone and fingernails, the absence of Defendant’s

DNA on the items swabbed in the bathroom, the absence of Defendant’s DNA

under the victim’s fingernails, the fact that a person can die from electrocution

without showing any visible signs per Dr. Welke, and the absence of details of

Defendant’s planned killing in Mr. LeBleu’s statement taken by Lieutenant Kirsch.

Finally, appellate counsel notes that it is highly possible Defendant was hiding in

the attic because “he panicked when he found the body and hid knowing he would

be the first and only suspect who had already violated a restraining order.”

We conclude that the evidence presented by the State was sufficient to prove

Defendant’s guilt beyond a reasonable doubt. The State established that the victim

had secured a restraining order against Defendant and that he had previously been

imprisoned as a result of charges brought by her. The State also presented

testimony that the Acadia Parish Sheriff’s Department responded to a call that

Defendant was alone in the house with the victim. Upon entering, deputies found

the victim deceased in a bathtub. Although there were arguably no signs of a

major struggle having taken place, Dr. Welke testified that the victim had sustained

a forced injury directly on the top of her head. This could have easily prevented

her from putting up a violent struggle. Dr. Welke’s conclusion, based on his

autopsy of the victim’s body, was that the victim died from drowning preceded by,

or concomitantly with, strangulation or attempted strangulation. This was

14

Defendant’s plan as testified to by Mr. LeBleu, a witness that the jury heard and

had the choice to believe. Finally, Defendant attempted to conceal himself in the

attic to evade capture, a further indication of his guilt. See State v. Davies, 350

So.2d 586 (La.1977). Considering the evidence presented in this case, we

conclude that the State proved Defendant’s guilt beyond a reasonable doubt.

The Trial Court’s Allowance of Testimony Regarding the FBI Report

Defendant contends that the trial court erred in allowing Dr. Welke to testify

that he relied on an FBI report indicating that the ground fault interrupter was

working properly. He claims allowing this testimony without the opportunity to

cross-examine the individual who prepared the report violated Defendant’s

constitutional right to cross-examine the witnesses against him. Defendant cites no

cases in this assignment of error other than one establishing that a coroner’s report

is an exception to the hearsay rule and can be admitted as proof of death and the

cause thereof, which is not the issue here.

Dr. Welke testified that “once I had that report that the computer and the

ground fault were doing essentially what they were supposed to be doing, then the

final decision was made and the conclusion was made that the cause of death and

manner of death was listed as a homicide.” He explained that the report was

actually a letter from the FBI which he received from the Acadia Parish Sheriff’s

Department. When Dr. Welke produced the letter, Defendant’s trial counsel

informed the court that he had never seen the letter, and he had no way to respond

to it. He stated that had he known of the letter, he would have retained an expert to

respond to it. The prosecutor stated that he believed he provided every document

in his file to defense counsel in open file discovery, but he had no proof.

15

Defendant’s request for admonition and request to strike the portion of the

testimony about the FBI was denied. The FBI report was a proffered exhibit.

In State v. Mullins, 14-2260, 14-2310, pp. 2-9 (La. 1/27/16), 188 So.3d 164,

167-71, the supreme court addressed a similar issue:

Defendant . . . . argues that allowing Dr. Mark Vigen, the
State’s expert psychologist, to present evidence as to the results of IQ
testing he did not administer or score violated the Confrontation
Clause of the United States Constitution. Next, Defendant argues that
the lower courts erred in allowing hearsay testimony and the
introduction into evidence of a letter Dr. Vigen prepared in advance of
trial, both of which were based on information gained from persons
who did not testify. Next, Defendant argues that the lower courts
erred in allowing the introduction of Dr. Vigen’s letter, where the
letter contained hearsay, not subject to any exception. Finally,
Defendant alleges that the court of appeal erred in failing to find that
the trial court had erred in allowing expert testimony where the State
failed to comply with Article 705(B) of the Code of Evidence.

....

The United States Supreme Court has explained that the
Confrontation Clause applies to “testimonial” statements. . . .

....

In sum, United States Supreme Court jurisprudence tells us that
testimonial evidence includes prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police
interrogations. Crawford [v. Washington], 541 U.S. [36], 124 S.Ct.
[1354 (2004)]. We also know that statements made for the primary
purpose of seeking help during an ongoing emergency are not
testimonial, Davis [v. Washington], 547 U.S. [813], 126 S.Ct. [2266
(2006)]; [ Michigan v. ]Bryant, 562 U.S. [344], 131 S.Ct. [1143
(2011)], while statements made as part of an investigation into
possible criminal past conduct with no emergency in progress are
testimonial. Davis, 547 U.S. [813]. Testimonial statements include
those “solely directed at establishing the facts of a past crime, in order
to identify (or provide evidence to convict) the perpetrator.” [Id. at]
826[]. When laboratory analysts’ affidavits include testimonial
statements, a defendant is entitled to confront the analysts themselves.
Melendez-Diaz [v. Massachusetts], 557 U.S. [305], 129 S.Ct. [2527
(2009)]. A document created solely for an “evidentiary purpose,”
made in aid of a police investigation, is testimonial. Bullcoming [v.
New Mexico], 564 U.S. [647,] at 664, 131 S.Ct. [2705] at 2717
[(2011)].

16

....

Confrontation Clause violations do not fit within the limited
category of constitutional errors that are deemed prejudicial in every
case—the violation of a defendant’s right to confrontation may be
harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 682, 106
S.Ct. 1431, 1437, 89 L.Ed.2d 674 (1986); State v. Welch, 1999-1283
(La.4/11/00), 760 So.2d 317, 321-22. Courts analyze such errors by
assuming that the damaging potential of the error was fully realized,
then asking whether the reviewing court could conclude that the error
was nevertheless harmless beyond a reasonable doubt. Welch, 760
So.2d at 321-22. The factors to be considered in determining whether
the error was harmless include the importance of the testimony of the
witness in the state’s case, whether the testimony is cumulative, the
presence or absence of evidence corroborating or contradicting the
testimony, the extent of the cross-examination permitted, and the
overall strength of the state’s case. Welch, 760 So.2d at 321-22.

After having reviewed the foregoing Supreme Court jurisprudence, the Mullins

court concluded:

We find that the letter containing the IQ test results and
introduced by the State for the primary purpose of proving an
essential element of the crime of aggravated rape contains testimonial
statements and therefore is subject to Confrontation Clause
requirements. As a result, the trial court violated Mr. Mullins’ Sixth
Amendment rights by ruling the letter could be admitted into evidence
without testimony. We further find the introduction of the letter
violated the hearsay rule. Accordingly, we reverse the decisions
below, vacate Defendant’s conviction and sentence, and remand this
case to the District Court for a new trial.

Id. at 173.

In the present case, after applying the analysis set forth in Mullins, we

conclude that the trial court may have erred in allowing Dr. Welke to testify about

the findings of the FBI report. However, unlike the situation in Mullins, the error

is harmless in this case. The information regarding the proper functioning of the

GFI receptacle was cumulative, at least in part, to the testimony of Mr. Hanks.

Additionally, the bruising and petechiae observed by Dr. Welke was indicative of

pressure being applied to the victim’s neck during the drowning. Further,

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Defendant was overheard before the murder talking about his intent to kill the

victim by drowning, and then after the murder about the fact that he wore gloves

and attempted to clean up the crime scene. We conclude that the guilty verdict in

this trial was surely unattributable to this error.

DECREE

Defendant’s conviction is affirmed.

AFFIRMED.

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