State of Louisiana v. Billy Dean Cotten

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-684
STATE OF LOUISIANA

VERSUS

BILLY DEAN COTTEN

************

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 323,137
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED AND REMANDED.

J. Phillip Terrell, Jr., District Attorney
Catherine L. Davidson, Assistant District Attorney
Ninth Judicial District Court, Parish of Rapides
P.O. Drawer 1472
Alexandria, LA 71309
(318) 473-6650
COUNSEL FOR STATE/APPELLEE:
State of Louisiana

Mary Constance Hanes
Louisiana Appellate Project
P.O. Box 4015
New Orleans, LA 70178-4015
(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
Billy Dean Cotten

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On March 6, 2014, nine-month-old Aiden Dyson was left by his mother in

the care of his step-father, Defendant, Billy Dean Cotten, while she went to work.

Several hours later, the victim was taken to the hospital suffering from life

threatening injuries requiring him to be placed on life support. The following day,

after it was determined that Aiden had no brain activity, he was removed from life

support.

After an investigation by the authorities, Defendant was jointly charged with

his wife, Darlene Michelle Cotten, by bill of indictment with the March 6, 2014,

second degree murder of Defendant’s step-son, Aiden Dyson. A jury unanimously

convicted Defendant of the charged offense, and the court subsequently imposed a

mandatory life sentence at hard labor without the benefit of parole, probation, or

suspension of sentence. From this conviction and sentence, Defendant appeals.

ANALYSIS

Assignment of Error One

In his first assignment of error, Defendant contends the State presented

insufficient evidence to support his conviction of second degree murder in that it

failed to exclude the reasonable hypothesis that the death was caused accidentally

and unintentionally.

Louisiana Revised Statutes 14:30.1 states in pertinent part:

A. Second degree murder is the killing of a human being:

....

(2) When the offender is engaged in the perpetration or
attempted perpetration of . . . cruelty to juveniles, second degree
cruelty to juveniles, . . . even though he has no intent to kill or
to inflict great bodily harm.

Cruelty to juveniles is defined in pertinent part as:

2

(1) The intentional or criminally negligent mistreatment
or neglect by anyone seventeen years of age or older of any
child under the age of seventeen whereby unjustifiable pain or
suffering is caused to said child. Lack of knowledge of the
child’s age shall not be a defense[.]

La.R.S. 14:93.

Second degree cruelty to juveniles is defined in pertinent part as follows:

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

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

La.R.S. 14:93.2.3.

In State v. Jackson, 15-393 (La.App. 3 Cir. 11/4/15), 179 So.3d 753, 767-69,

writ denied, 15-2191 (La. 5/2/16), 206 So.3d 877, this court reviewed the

sufficiency of the circumstantial evidence presented in a second degree murder

case which was based on cruelty to a juvenile. In doing so, this court stated:

In State v. Taylor, 14-432, pp. 7-8 (La.3/17/15), 166 So.3d 988,
993-94 (emphasis added), the court explained in pertinent part:

The rational trier of fact standard established by Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979), preserves “‘the factfinder’s role as weigher of the
evidence,’” by requiring an appellate court to review
“‘all of the evidence . . . in the light most favorable to the
prosecution.’” McDaniel v. Brown, 558 U.S. 120, 134,
130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson,
443 U.S. at 319, 99 S.Ct. 2781). Preserving the role of
the factfinder means that in cases involving
circumstantial evidence, when “the jury reasonably
rejects the hypothesis of innocence presented by the
defendant [ ], that hypothesis falls, and the defendant is
guilty unless there is another hypothesis which raises a
reasonable doubt.” State v. Captville, 448 So.2d 676,
680 (La.1984). The alternative hypothesis is not one that
merely “could explain the events in an exculpatory
fashion,” but one that, after viewing all of the evidence in
a light most favorable to the prosecution, admissible as
well as inadmissible, “is sufficiently reasonable that a
rational juror could not ‘have found proof of guilt beyond
3

a reasonable doubt.’” Captville, 448 So.2d at 680
(quoting Jackson ); see State v. Hearold, 603 So.2d 731,
734 (La.1992) (“[W]hen 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.”). . . .

....

. . . This court has stated the following regarding
circumstantial evidence:

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

State v. Dotson, 04-1414, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 310,
312. Additionally, when a jury “‘reasonably rejects the hypothesis of
innocence presented by the defendant[ ], that hypothesis falls, and the
defendant is guilty unless there is another hypothesis which raises a
reasonable doubt.’” State v. Strother, 09-2357, p. 11 (La.10/22/10),
49 So.3d 372, 378 (quoting State v. Captville, 448 So.2d 676, 680
(La.1984)).

Id. at 767-69.

At trial, Doug Alford, a detective with the Alexandria Police Department,

testified that on March 6, 2014, he investigated a call concerning the incident at

issue in this case. He proceeded to the emergency room where he observed the

victim intubated and non-responsive. From there, he went to the police station to

interview Defendant. After advising Defendant of his rights and securing a waiver

thereof, Detective Alford took a statement from Defendant wherein he detailed the

events that transpired on the day of the incident:
4

A. He said that his wife had left somewhere around ten, ten thirty in
that time frame that morning. He had laid the baby down, Aiden,
down for a nap. He said the baby slept till about twelve forty-five,
somewhere in that time frame. He wasn’t real sure on the time. He
woke the baby up, fed the baby, gave him his medicine, put him back
to sleep. About forty-five minutes later, he heard the baby crying. He
goes in there, picks the baby up and the baby started seizing. He said
that the baby went limp. He called 911. Originally, he said he went
into the living room and started CPR. Later in his statement he said
that he actually went downstairs to an apartment a maintenance guy
had opened up that was empty for them to go in. He started CPR
there and also called 911 from there. During that time frame, he also
made a call to Darlene, the mother, and I believe to his mother, but
I’m not certain on that.

....

A. He did say that the baby was breathing but he was doing CPR.
That was in his statement. He said that the mother made – got back.
She works at the Alexandria Mall. She worked at the cookie – Great
American Cookie. She got back prior to the ambulance leaving and
she rode in the ambulance with the baby and he followed in a vehicle.

....

A. He said that after we got back – he said that’s when he got there
and you know, the police escorted him back to the station. I then
informed him of what the doctor had told me. And he said – and I
told him that, you know, a test would show what the doctor told me.
And he said, well, that’s what it’s going to show but that’s not what
happened. He then said that the baby had fell earlier in the day and
bumped his head on the entertainment center by some DVDs and stuff
where he was playing.

Q. Now when he said, that’s what they say but that’s not how it
happened – did you ask him further about that?

A. No, he said, that’s what it’s going to show but that’s not what
happened. That was the quote on video. It’s on video.

Q. Did he expound on that?

A. He just said that the baby had been playing earlier in the day by
the entertainment center, had some DVDs and stuff – said that the
baby was on its knees. He said that he just said, hey, and it startled
the baby. The baby let go of the entertainment center, fell forward
and bumped its head.

Detective Alford testified Defendant inconsistently reported when he called

911. First, he said he called while he was in the apartment, but he then said he was

5

downstairs. He also reported in one statement that the victim was breathing but not

conscious, but another time he said the victim was limp and not breathing.

According to Detective Alford, Defendant did not show any emotion during

the interview except to get upset when Detective Cruz corrected him. Defendant

repeatedly said he did not do anything to the victim, and he did not say it was an

accident. Defendant also told Detective Alford that the victim had a seizure the

prior October after he fell out of his stroller and bumped his head. After that

incident, the victim had a seizure in the emergency room, was admitted to the

hospital, and after having another seizure, ended up in the ICU.

Prior to the incident at issue, in January of 2014, a police report was filed

wherein Defendant stated during an argument between he and Mrs. Cotten, who

was pregnant at the time, he pushed her down.

Mrs. Cotten was asked about the October 2013 incident during her

testimony. She said that while they were trick or treating, Aiden’s car seat, which

was not properly latched into his stroller, flipped over when Defendant hit a bump

on the street. The handle on the car seat was down, and because it was possible

Aiden hit his head, they took him to the hospital. He had a red mark on his

forehead just above his left eye.

The following February, they took Aiden to the hospital because he could

not keep food down. After three days of being in the hospital, he suffered two

seizures, said by doctors to be caused from a drop in his sodium levels because he

had not eaten.1 During the second one, which was witnessed by Mrs. Cotten,

Aiden’s hands curled back, his back arched, his eyes rolled back, and he “went

silent.” When asked if these things occurred in the ambulance on March 6, 2014,

1
Dr. James Hebert, whose testimony is discussed below, strongly disagreed with this
finding. He testified that the radiologist reviewed a CT scan done on Aiden a month prior and
found evidence of a “subdural” that had not been identified as the initial reading was “normal.”
Dr. Hebert believed Aiden’s sodium level was nearly normal and Dr. Hebert felt it would
“maybe be the first time in history that anyone had a seizure with a sodium of that level.” Dr.
Hebert said he could not link a sodium level of 130 with seizure activity.
6

Mrs. Cotten said he was strapped down on a bed, so she could not tell if his back

was arching; however, he screamed that day unlike the previous episode in

October. That day in March, she observed no marks on his head or bruises on his

arms or legs; she could see no change from the way he appeared before she left for

work.

A video of the victim taken four hours before he was taken to the hospital

was shown by his mother to police. It was played for the jury. We reviewed the

video and observed the nine-month-old victim crawling around on a bed while

Defendant was sleeping. He was babbling, very active, and appeared to be happy.

Mrs. Cotten testified she was jointly charged with Defendant, her husband,

for the second-degree murder of Aiden, who was not Defendant’s biological son.

Mrs. Cotten stated she was testifying on her own free will and nothing had been

offered to her. According to Mrs. Cotten, Aiden suffered from acid reflux,

seasonal allergies, eczema in the bends of his arms and legs, occasional cradle cap,

but no other medical conditions. At the time of the incident, he was taking Claritin

for his allergies, but no cough medicine. The morning of March 6, 2014, after

feeding and dressing Aiden and getting ready for work, she woke Defendant so he

could take care of Aiden. Between 8:30 and 9:00 a.m., Mrs. Cotten videoed Aiden

and Defendant on the bed while Aiden attempted to wake Defendant.

About four hours after arriving at work, Mrs. Cotten received a phone call

from Defendant that Aiden had been having seizures and she needed to leave work

immediately to ride with him in the ambulance. During the ambulance ride, Mrs.

Cotten observed Aiden screaming, then passing out, and waking up screaming.

Emergency room personnel told her they would do everything they could, but that

Defendant and Mrs. Cotten were to remain in a waiting area. Defendant, Mrs.

Cotten, her mother, and their pastor waited for news of Aiden’s condition. Before

the doctors relayed any information, two policeman arrested Defendant. The
7

doctors then informed them that Aiden had suffered blunt force trauma to the brain

which caused bleeding on the left side of his brain, rendering him “brain dead.”

Mrs. Cotten testified she spoke to Aiden’s father, Dustin Dyson, and they agreed to

remove him from life support. Mrs. Cotten testified she was “lost” and her “whole

world was turned upside down.” When she went down to ask Defendant what had

happened, he told her, “he had no idea what happened, that he was just in his room

sleeping – Aiden was – and he heard him crying and he went to go pick him up and

he just started having a seizure. And, he told [her] he didn’t know why.” He said

nothing about Aiden hitting his head on the entertainment center, and Mrs. Cotten

had not seen Aiden bump his head on the entertainment center that morning.

According to Mrs. Cotten, Aiden had started holding onto things and walking but

was not “free walking” yet. When asked if he fell a lot, Mrs. Cotten replied that

“he fell on his butt.”

Dr. James Hebert, the emergency room physician who examined Aiden, was

accepted by the court as an expert in emergency and trauma, with expertise in

diagnosing blunt force trauma. Upon seeing Aiden, Dr. Hebert observed

intermittent seizure activity, mottled skin, a slow heart rate (rare in children, and

thus indicative of a significantly ill child), intermittent pauses in breathing, and

posturing, which is a neurologic reflex indicative of significant head injury. An

examination of his eyes showed retinal hemorrhages in both eyes. Aiden’s eyes

were “going in two different directions” when he arrived in the emergency room.

Dr. Hebert testified of the approximately 40,000 patient encounters he has had in

ten years, this was one of the most memorable. After doing the retinal

examination, he instructed the nurse to contact child protective services and police

because he suspected this was an abusive head trauma case. He explained:

A. The presence of retinal hemorrhages is a statistically very
significant finding. When there are bilateral and large massive areas
of hemorrhage, statistically you’ll find that that type of hemorrhage
8

only occurs in cases of abuse. You will see retinal hemorrhages with
accidental trauma. But post-mortem studies, retrospective analysis
studies published by the American Journal of Opthamology [sic] in –
Pediatric Opthamology [sic] and Strabismus in 2009 – found that in
all cases of accidental trauma where it was a known accident, there
were minimal to no retinal hemorrhage. In the cases where it was
known to be an inflicted injury or an abusive injury, a significant
occurrence, almost half of these patients had retinal hemorrhages.
And every patient in the study that had severe bilateral hemorrhages
were victims of abuse. And that was corroborated by a 2006 by the
American Academy of Opthamology [sic] that postmortem autopsy
reviews found that as increasing severity of hemorrhage involving
both eyes, involving the optic sheath, the incidents that it was caused
by abuse and non-accidental trauma was a significant correlation
there. You really just don’t see bilateral hemorrhages or severe
hemorrhages outside of inflicted or abusive head trauma.

Dr. Hebert testified he observed no other injuries on Aiden’s body.

According to Dr. Hebert, a study performed in Canada and reported in the

Canadian Medial Association Journal, revealed half of the infant victims of abuse

showed no signs of trauma. Dr. Hebert more fully explained the cause of retinal

hemorrhaging:

A. The cause of retinal hemorrhaging typically overwhelmingly is
trauma. Like I said, it’s - accidental trauma can cause small retinal
hemorrhages. But it’s really - it has to do with the sheer stress of an
acceleration, deceleration type injury; whether it’s a blunt trauma, like
a car accident, or a significant fall down a flight of stairs. Or in the
case of abusive head trauma, the shaking back and forth. The term
Shaken Baby Syndrome is commonly used. It’s an older term. It’s
easy to identify and understand. Shaking - everyone knows what
shaking means. And so they haven’t shied away from that term as far
as like public service goes and education to new parents. But
medically in 2009, we kind of moved away from that. American
Academy of Pediatrics embraced a broader term of abusive head
trauma. But it contains that umbrella of Shaken Baby Syndrome also
called Infant Whiplash Syndrome. Basically, children, infants
particularly, their head is disproportionate to their body. And their
neck muscles haven’t had a chance to develop to provide the support
of their brain and head that would be eventually developed. And so a
violent shaking will cause their head, you know, significant [sic] to
move back and forth. And then what can occur at that time, the brain
essentially sloshes around inside the skull; kind of bangs back and
forth inside the skull. And blood flow to the brain, it enters through
the carotid arteries and the vertebral artery through the basal artery
and then kind of branches off into the various arteries that surround
9

the brain. But it all exits pretty much the same way through these
bridging veins that go to these sinus tracks along the skull and then
down into the jugulars and back to the heart. And so what happens
unfortunately is with the sheer trauma and forward and back, forward
and back the brain is jerking back and forth and these bridging veins
can tear. And so you’ll get a hemorrhage inside the skull. And that is
one of the biggest problems for these children is the brain injury. You
can certainly see blindness from the result of the retinal hemorrhages
but it’s the brain injury that oftentimes results in the ultimate, you
know, morbidity and mortality. But the same concept in the eyes with
the violent shaking back and forth, basically at adhesion points where
the macula attaches to the retina. That’s basically the part of your eye
that does most of the seeing, most of the focusing on the retina where
the vitreous, which is the goo inside your eye basically where it
attaches to the retina. And at these points you’ll see that shearing.
And I guess the simplest way to describe it, it’s I guess gruesome, but
you kind of literally shake the eyes apart on the inside.

Dr. Hebert was asked, if Aiden had fallen and hit his head on the

entertainment center, whether this type of injury could have occurred. He

responded:

A. A subdural hematoma in the brain and bilateral retinal
hemorrhages could not occur from a minor trauma. A study done by
Children’s Hospital at Kansas City, Missouri published in 1999 where
they reviewed a lot of pediatric accidental falls – none of these were
abusive. These were all accidental falls, four feet. They found
eighty-five percent of the children in the study had no injury. They
had I think seven percent had linear skull fracture from the fall. And
two percent or two patients in the study had a hemorrhage. And it
was later proven that those were both victims of abuse. And so in this
study, where they retrospectively evaluated these patients, they found
with four foot falls – not a baby falling forward and bumping his head
on a table – they found no evidence of trauma – of bleeding at all;
much less significant retinal hemorrhage and subdural hematoma.

Dr. Hebert also explained the difference in intentional injuries and accidental

injuries:

A. Intentional verus [sic] accidental meaning the injury is occurred as
the result of someone actively harming the child as opposed to, you
know, a car accident or accidentally dropping down a flight of stairs.
Just meaning the child is the focus of the injury as opposed to just
anything happening. You know, the child falling or something falling
on the kid or getting in a car accident; things like that.

10

When Dr. Hebert was asked if Aiden’s injury was intentional or accidental,

he responded:

A. The history I was given of having been fed a bottle and then put
down in the bed and then found this way later, is completely
incongruent with what we identified on exam. It is – based on the
statistical analysis of multiple cases and – the term evidence-based
medicine came about in the early two thousands. And basically it’s
when, as physicians, we moved away from just kind of going by our
anecdotal experience on how to treat things and started looking at
large cohorts of patients where they would study thousands of patients
in some cases and see what effect medications had on them and turns
out, like this medicine doesn’t actually help high blood pressure so we
stopped using it. And, this medicine is very effective. And the
concept of aspirin for a heart attack proven to save lives, that’s an
example of evidence based medicine being put into practice. So based
on, you know, the evidence that’s out there, statically [sic] you look at
other human beings. And the only patients in any study that had
severe hematoma associated with bilateral massive retinal hemorrhage
in any of these studies, without exception, they were from abusive
head trauma or intentional trauma.

Dr. Hebert testified that a fall from a stroller in October could not have been

the cause of the subdural hemorrhaging and the “bilateral retina” as resolution of

an intracranial bleed would occur within about a month. He testified that shaking

the baby would have caused immediate symptoms. The posturing, seizing, and

intermittent stopping of breathing that he had upon arrival could have taken some

time, but “overwhelmingly symptoms are present immediately.”

Dr. Hebert testified he spoke to the family and explained why police had to

be called. Aiden was transported to the Pediatric Intensive Care Unit from the

emergency room, and life support was withdrawn the following day. Dr. Hebert

was asked whether he felt this injury was intentional, and he replied, “[u]nder oath

in a court of law with a man’s future at stake, unequivocally I felt absolutely that

this was an inflicted injury.”

Dr. Marvin Mata, the pediatric ICU specialist that was consulted in Aiden’s

case, testified that the CT scan showed Aiden had a subdural hematoma (subdural

bleed) on the right side, but there was also evidence of bleeding on the left side of

11

the brain which had resolved. Blood was pooling between both sides of the brain,

and there was bilateral severe retinal hemorrhaging, which is typically associated

with non-accidental trauma, abusive head injury. He explained that abusive head

trauma “consists of acceleration/deceleration forces that effects [sic] the brain of

the child. It causes tearing to the deep layers in the eye that causes the bilateral

severe hemorrhages. It cases brain injury at the cellular level and so the brain is

not able to sustain its function and is not able to support the other organs in the

body as well.” Dr. Mata explained that acceleration/deceleration forces involve

rapid forward and backward or side-to-side movement of a child and can be part of

Shaken Baby Syndrome, a term used in the past. Dr. Mata, like Dr. Hebert,

testified that in about half of patients with abusive head injuries no external injuries

are observed. Dr. Mata testified that a seizure would not cause this abusive head

trauma and neither would a fall against the entertainment center, which would

cause a more focal injury where the head was bumped. Dr. Mata testified that the

true indicative sign of abusive head trauma is the presence of severe bilateral

hemorrhages. Dr. Mata confirmed on cross-examination that an

acceleration/deceleration force could be caused by the head hitting something,

rebounding, and hitting something else.

When it was ultimately determined that Aiden had no brain activity, Dr.

Mata spoke with the family who opted to withdraw life support. Dr. Mata testified

on redirect examination that a nine-month-old child was not capable of producing

the type of injuries Aiden had and based on the findings from the physical exam

and the neuro-imaging, Aiden’s injuries were consistent with being non-accidental.

Dr. Christopher Tape, the pathologist who performed the autopsy of Aiden,

was accepted by the court as an expert in the field of forensic pathology. His

findings were that Aiden suffered subdural hemorrhaging due to blunt force

injuries and the manner of death was homicide. He arrived at this conclusion due
12

to an asymmetrical brain injury pushing the brain to one side and subdural

hemorrhaging around the spinal cord in the back. He explained:

It’s pushing the brain to one side. So that says it’s not a natural cause
of a bleed, ‘cause if you had a natural cause of this bleed, it would just
be kind of everywhere. So I’m sort of left with – I have a nine month
old that is probably not very mobile and is probably not having these
injuries on its own too much, and I don’t have a better explanation for
this injury. So I sort of [by] default go to homicide. And again,
there’s two injuries here in two separate areas. They’re not likely
explained by a fall. A fall that’s going to kill you, you are probably
going to see some injuries on the head, on the scalp, maybe broken
bone, and there was none of that. So it’s not a big fall, like an
accident. And so I am again – so I’m left with homicide as a default.

Dr. Tape confirmed that the injuries could not have been caused by a seizure

and the blunt force injuries could be indicative of abusive head trauma. When

asked if the retinal hemorrhaging was indicative of abusive head trauma, Dr. Tape

replied, “Not necessarily. Not in my opinion.” He explained:

A. This is a controversial area. My opinion, the retinal hemorrhages,
the optic nerve sheath hemorrhages are actually due to increased
intracranial pressure; which means just pressure inside the brain and
it’s kind of pressing, and it causes this bleed. Now, unfortunately, this
is an area where we don’t have very good scientific studies because
we can’t do this study. It would be unethical to do this study where
you do this to infants.

Q. But the subdural hemorrhaging would have been a bi-product of
the retina hemorrhaging?

A. The other way around. The retinal hemorrhages is a bi-product of
the subdural hemorrhage.

Dr. Tape testified that any type of impact or acceleration/deceleration injury is a

blunt force injury which can be created by whiplash action. A nine-month-old

baby’s neck is not mobile enough to stop the back and forth or side-to-side action.

On cross-examination, Dr. Tape testified that a nine-month-old pulling up

and falling forward and hitting a cabinet or falling backwards would not cause the

injuries Aiden sustained. Dr. Tape testified that in the vast majority of shaken

baby cases, the baby has not been shaken but more likely made impact with a soft

surface where there is an acceleration/deceleration impact. Because it is a soft
13

surface and babies have pliable bones, no injuries are seen but the

acceleration/deceleration impact is there. Dr. Tape also discovered a spinal cord

injury in Aiden’s mid-back, which he believed was a separate injury from the brain

injury. He explained that the spinal cord injury was probably an

acceleration/deceleration injury which could have been caused by shaking, a blow

to the back, or a high fall from at least five or six feet.

As for the manner of death being homicide, Dr. Tape explained that

homicide for his use is a medical legal definition that is one person causing the

death of another. A case of self-defense or a case where someone shoots a person

while hunting thinking they are shooting a deer are both still homicides because the

person intended to kill their target. Dr. Tape testified that he could not absolutely

rule out an accidental death in this case. However, on redirect examination, Dr.

Tape confirmed that a nine-month-old child cannot throw himself up against

anything and even if he fell backwards in his crib, it would not cause subdural

hemorrhaging.

Jordan May, who lived with Defendant and Mrs. Cotten briefly four years

prior to trial, testified that during the time she stayed there, she was at home during

the day with Mrs. Cotten and Aiden. When Ms. May moved in, Aiden was

approximately two or three months old, and he was about five or six months old

when she left. During the time she lived there, Ms. May witnessed Defendant and

Mrs. Cotten arguing. During one particularly bad argument, Defendant was angry

because Mrs. Cotten was giving too much attention to Aiden, who suffered from

numerous health issues. On that particular day, Mrs. Cotten had been caring for

Aiden all day and Defendant wanted her attention which he was not getting.

Jerry Guin, who served time in jail for second degree battery, testified that

he was housed in the same cell with Defendant for a period of time. Defendant told

Guin that “an accident occurred. . . . he had a bad accident. He did something he
14

wished he wouldn’t have done. Went a little bit too far.” Guin testified that he

contacted police because he felt like it was the right thing to do. When asked to

explain what he meant by going a little bit too far, Guin said he told police:

Just by shaking the baby and shaking it – you know, I mean he
shouldn’t have shook it. You know, and basically because – you
know, being a stepfather, you know, you can picture a time when kids
would make you feel like you should do something to them
wrongfully. You know, because they’re not yours. And, that’s just
the way – that’s the persona that I took then, you know, coming from
him. And, that’s why I reached out to y’all. I mean, Aiden he
couldn’t come back and reach out to him. Someone had to.

According to Guin, Defendant said he shook the baby because his wife did

not get home in time and he was babysitting. He said he shook the baby to get him

to “shut up.” Guin testified Defendant also talked to him about jealousy issues:

We was just talking about any normal stepdad that looks at a
kid that ain’t theirs. You know, a man can’t take that disease out of
him knowing that that ain’t his kid to where he don’t want to do things
for him or her that he would do for his own. You know, that’s
because in your mind you’re usually thinking that their daddy should
be doing it or you know, if my old lady didn’t have a kid with him, I
wouldn’t have to be doing this.

Guin responded affirmatively when he was asked if he took this as “jealousy

type anger.” According to Guin, Defendant told him, the “little son of a bitch cried

too much.” Guin also testified Defendant told him the following about the

incident:

A. That he just – you know, I mean it wasn’t – I don’t think it started
out to be a crime. Then it turned into one, you know. It went from
there. He didn’t mean to do what he meant to do. You know, I don’t
think no man could every intentionally kill a baby at the moment in
time. You know, no matter how old the baby is. But when you go
overboard, you go overboard. Basically, that’s what has come about.
The man went overboard, you know. What bits and pieces I’ve
picked up along the way, you know, he could have stopped a long
time ago. He could have left the woman or become better friends with
the father’s baby and got the father’s baby to spend more time with
him.

Guin was asked if Defendant ever told him that the baby fell. Guin testified

Defendant told him about another incident where he kicked the stroller too hard

15

and it fell over with the Aiden in it. Guin was asked whether Defendant ever said

that the baby fell during the times he had the baby. Guin responded, “I can’t recall.

I mean, it’s vague to me. You know, maybe too many marijuana sticks. I don’t

know.”

Guin was shown his statement given two years prior to refresh his memory

about an incident where Defendant wrapped Aiden in blankets. Guin then said:

A. He said he, you know, wrapped it up and then held it, you know,
and just – I can’t remember much about the blanket situation. I ain’t
going to – I can’t sit here and lie to you and say I do, you know. I
mean, I remember something about it but just – I don’t remember the
whole conversation about the blankets. So I mean –

Guin read from his prior statement in the following colloquy:

A. (reading) and that earlier she was with somebody else or she just
wanted to stay away from – a little while longer because she was
worried about him doing something. And he called her and she
wouldn’t answer the phone. The baby cried, cried, cried, cried and he
said he wrapped the baby up in a blanket and started shaking him. He
shut up for a little while and he said that I knew I couldn’t smother
him. He said that he just wrapped him up and he showed me the
blanket. And he said that he just wrapped him up and shook him and
shook him. And then he started thinking about some autopsy or
something so he started shaking sideways. The little fucker quit
crying.

Q. That’s what he told you?

A. Yes, sir.

Q. Is that what you recall?

A. Yes, sir. In so many words. I think somebody got – now that’s
not basically what was said, you know, I mean like that. I mean,
cause I couldn’t have been able to stay in a cell with him then. You
know what I’m saying?

Q. Okay.

A. So I mean, it wasn’t that gruesome, crucial like that. I mean, I’m
just being honest with you. I mean, it just – it wasn’t – but it was
something like that but it wasn’t that gruesome.

....

A. (reading) after he said he shook him sideways and he quit crying,
and what did he say happened. It just hurts me and I didn’t want to – I
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didn’t want to sit here and listen to this bitch save that man – y’all
should make sure the mother fucker don’t get away with that. I’m
telling you man that I – that no nine month old didn’t do nothing. He
just wanted to live. That’s it. And sorry piece of shit like him and –
taking care of him now for nothing.

....

A. He said shut up. And then he called his wife and told her the baby
had a seizure or something. She needed to hurry up and get home.
He said that bitch started hauling ass home and then she got home and
the baby was still. And they tried CPR on it something like that and
tried to shake him back. Well, then they called the ambulance. The
ambulance got there and they brought him to the hospital. Then he
said once they got to the hospital that’s when the doctors scared him.
The doctor knew what he had done, he said, but there was no way he
could prove it. And he could prove it now because the baby shake
bake or something they called it. Baby shake syndrome or something.

Q. Okay. So he’s telling you all this?

A. Yes, sir.

Q. What was going on through your mind when you’re receiving all
this information?

A. How can there be someone in this world like this? Basically. It
sums it up in short. I mean, a lot of words don’t need to be said in the
courtroom. It’s got a lot of women in here.

Q. Did he ever tell you that he thought – and you just kind of
answered it but I’m going to kind of elaborate on it – that he thought
he was going to get away with this?

A. Basically it was a fifty-fifty chance but he was leaving more
towards the fifty-one percent, being his.

Q. Did he tell you why?

A. No, sir. That’s just – I told you before, I mean, a lot has happened
since then, Your Honor. You know, I mean a lot of it’s vague to me.

Q. Did he tell you anything about what the doctor said to him?

A. I can’t recall, brother.

Q. Okay. I’m going to draw your attention to page six. Question –
but he said that the doctor – I’m going to let you start after that
question.

A. He said that it looks like a homicide. When the doctor said that he
said he knew one thing come out because they didn’t have shit on
him. And right there I knew right then that whenever they got
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interviewed that all whatever – they come out of the interview room
standing across from each other. He had their heads down and she
looked up and said, what did you do to my baby? And he told her, I
did nothing. What do you – our baby – he said, I ain’t do nothing to
our baby. That was your baby.

Q. Alright. And continue on.

A. He said right then that he knew the bitch was going to turn
state[’s] evidence on him. What you mean by that? He say I think I
may have let it slip a couple times that what I did to him on the way to
the hospital but she was so hysterical she didn’t realize that. Okay.
I’m sorry. When did they say anything about being interviewed by
the police? Just a little – not so much the details – that whoever
interviewed him is a rookie or something. But he didn’t know what
questions to ask and that even though – could put him on the stand
and turn him upside down he said ain’t going to have a chance
because I’m firing him to a lawyer on the way for him because – and
her lawyer . . . couldn’t be in the same lawyers office and have him
conflict something I told him. . . .

....

A. Well, he’s like well, I know that the bitch is going to turn state[’s]
evidence on me because they dropped her bond from a million dollars
and put her on house arrest. I told they [sic] just know she didn’t have
nothing to do with it. She was at work. You killed her son. He say, it
was an accident. I was just trying to get the little fucker to shut up
where she wouldn’t hear him crying in the background think I’m
doing something wrong to him.

Q. And I’ve got to ask you this question. When you say – I don’t like
to use the term – the little f – er. Okay. I’m not going to say that. Is
that your words or was that his words? [sic]

A. It was his words.

Q. He was that cocky? That confident?

A. Yes, sir. Yes, sir.

Q. Why are you here today?

A. I really and truly don’t know, brother. It’s just something – felt
like the right thing to do. I don’t know. I don’t believe in no other
spirits and the God above me, you know. You ask for blessings and
you receive them. You know. And since then I’ve asked for a lot of
blessings to see a different side of being here today, you know. And I
didn’t receive no other blessings than to be here. And it’s easier for
Aiden or for Cotten’s case, I don’t know. I’m just telling you what I
feel in my heart and mind, you know. And it’s not influenced by
anyone or no substance. It’s just influenced that I feel in my body,
you know. I mean, I can’t explain it no other way than that. . . .
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Q. Are you facing any charges right now?

A. No. I ain’t got nothing on me. Nothing. I ain’t got no charges. I
might have after this. But, I mean, I ain’t got none on me as of right
now.

....

Q. And what did I tell you to tell?

A. The truth. That’s what I told. I won’t lie to you. I don’t know
you from Adam.

Guin affirmed that no promises had been made to him by the State in

exchange for his testimony.

On cross-examination, Guin was questioned about the veracity of his

testimony that Mrs. Cotten asked Defendant what he did to her baby when they

exited the interview rooms. Defense counsel referenced Mrs. Cotton’s testimony

that Defendant was taken to the police station while she remained at the hospital,

and also Detective Alford’s testimony that the two were not interviewed at the

same time. Guin responded that he did not know.

Guin stated on cross-examination that he also testified in a similar case to

this one and did not receive anything for his testimony. His extensive criminal

history was discussed including simple criminal damage to property, trespass, two

counts of theft, domestic abuse/battery, simple burglary, possession of

hydrocodone, possession of marijuana, identity theft, filing false public records.

Guin admitted his memory is not very good due to his extensive marijuana use.

On redirect examination, Guin confirmed that Defendant told him he shook Aiden,

and “it was an accident and the baby died.”

As stated above, Defendant contends the State failed to exclude the very

reasonable hypothesis that if Defendant injured Aiden it was unintentionally done

by accident and with Defendant not realizing what he had done. Defendant argues

that Guin’s testimony was bizarre and inconsistent with the testimony of other
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witnesses. He points to Guin’s testimony that Defendant told him he shook the

baby to shut him up because his wife did not return home on time “that night,” as

inconsistent with testimony she was at work that afternoon and not expected home.

Additionally, Guin admitted he could not recall whether Defendant said Aiden fell

before he died because maybe he had too many “marijuana sticks.” Finally,

Defendant notes Guin reported that Defendant told him he kicked the baby’s

stroller in the prior incident, whereas Mrs. Cotten said the 2013 incident was

caused when Defendant hit a bump with the stroller. This resulted in unreliable

testimony asserts Defendant. However, “[t]estimony by a jailhouse informant is a

credibility determination made by the jury.” State v. Bowman, 48,797, p. 13

(La.App. 2 Cir. 4/23/14), 139 So.3d 529, 536, writ denied, 14-1136 (La. 4/2/15),

162 So.3d 394.

Applying the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979), we find the evidence presented at trial established that Defendant was the

only person present when Aiden’s injury resulting in his death occurred and that it

was not an accidental injury. The medical evidence and testimony was consistent

that Aiden suffered an abusive head injury that caused his death. The medical

testimony was unequivocal that this head injury could not have been caused by any

typical fall or bump Aiden may have sustained. After reviewing all the evidence in

a light most favorable to the prosecution, we find a rational juror could have found

proof of Defendant’s guilt beyond a reasonable doubt. Accordingly, we find this

assignment of error has no merit.

Assignments of Error Two and Three

Defendant notes that, although his counsel argued that a life sentence was

grossly out of proportion to the severity of the crime and requested a forty-year

sentence, the trial court rejected the argument finding no factors to warrant a

deviation from the mandatory life sentence. In his second assignment of error,
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Defendant claims his trial counsel was ineffective in failing to properly investigate

his background and circumstances which would establish that he is exceptional and

deserved a downward departure from a mandatory life sentence. Defendant

contends counsel failed to argue that he suffers from Post-Traumatic Stress

Disorder, (“PTSD”) and that his occupation as a corrections officer is one of the

most high-stress occupations in existence.

In his third assignment of error, Defendant contends the trial court erred in

failing to consider the merits of his pro se motion to reconsider sentence on the

basis that it lacked jurisdiction due to the granting of this appeal.

The failure of a trial court to rule on a motion to reconsider
sentence requires that the case be remanded for a ruling thereon, and
that appellate review of a defendant’s sentence be deferred. State v.
Augustine, 2013-0164, p. 11 (La.App. 4 Cir. 12/4/2013), 131 So.3d
109, 116; State v. Peters, 2010-0326, p. 4 (La.App. 4 Cir. 2/16/11), 60
So.3d 672, 675. However, the failure to rule on a motion to
reconsider sentence does not preclude review of the conviction.
Peters, supra; State v. Foster, 2002-0256, p. 3 (La.App. 4 Cir.
9/11/02), 828 So.2d 72, 74.

State v. Weathersby, 13-258, p. 9 (La.App. 4 Cir. 4/16/14), 140 So.3d 260, 266.

The State, in brief, concedes that the trial court retained jurisdiction to

consider Defendant’s motion to reconsider sentence. Clearly, the denial of the

motion was due to the trial court’s belief that it no longer had jurisdiction to

reconsider the sentence once the appeal was granted. Accordingly, we will affirm

defendant’s conviction and remand the case back to the trial court for consideration

of Defendant’s pro se motion to reconsider sentence. Defendant may raise his

contention that his occupation as a corrections officer entitled him to a downward

departure from a mandatory life sentence.

DECREE

For the foregoing reasons, Defendant’s conviction is affirmed. We remand

with instructions for a ruling on the motion to reconsider sentence.

AFFIRMED AND REMANDED.
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