State of Louisiana v. Charles P. Mayeux, Jr. AKA Charles P. Mayeux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 18-97

STATE OF LOUISIANA

VERSUS

CHARLES P. MAYEUX, JR.

AKA CHARLES P. MAYEUX

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 188,015-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of Sylvia R. Cooks, John E. Conery, and D. Kent Savoie, Judges.

AFFIRMED.

Annette Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
APPELLATE COUNSEL FOR DEFENDANT/APPELLANT:
Charles P. Mayeux, Jr.

Anthony F. Salario
First Assistant District Attorney
439 North Main Street
P.O. Box 503
Marksville, LA 71351
(318) 240-7123
COUNSEL FOR APPELLEE:
State of Louisiana

Michael Francis Kelly
First Assistant District Attorney
P. O. Box 1200
Marksville, LA 71351
(318) 253-5815
COUNSEL FOR APPELLEE:
State of Louisiana

Hon. Charles A. Riddle, III
District Attorney, 12th JDC
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

Defendant, Charles Mayeux, appeals his conviction of second degree murder

and sentence of life imprisonment at hard labor without benefit of probation, parole,

or suspension of sentence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of March 21, 2015, Defendant, who was the Chief

of Police and the Assistant Fire Chief of Evergreen, Louisiana, called 911 to report

a fire at his residence in Evergreen. The body of Defendant’s wife, Shelly, was later

found in the bedroom of the residence. They had been married for about ten months

at the time of Shelly’s death. After an investigation, Defendant was subsequently

arrested. On July 16, 2015, he was charged by grand jury indictment with one count

of second degree murder of his wife, which is a violation of La.R.S. 14:30.1. A jury

trial was held August 28, 2017, through September 1, 2017.

Evidence introduced at trial indicated that Defendant was the only person

present with Shelly in their residence at the time of her death. Although an autopsy

was performed, the cause of Shelly’s death was undetermined. All experts agreed,

however, that Shelly died before the fire. The cause of the fire was also

undetermined; however, the fire marshal concluded that the fire was intentionally

set to cover up a homicide. His conclusion resulted from the suspicious timing of

Shelly’s death with the onset of the fire; the Defendant’s lack of effort to try to rescue

Shelly despite his training as a firefighter and despite the proximity of both the fire

station and Defendant’s firefighting gear; a history of violence between Defendant

and Shelly; a history of abusive behavior by Defendant toward his ex-wife and ex-

girlfriend; and Defendant’s inconsistent statements as to the events leading up to the

fire.

Following trial, Defendant was found guilty of second degree murder by a 10-

2 jury verdict. He filed a Motion for New Trial on September 12, 2017, which was

denied by the trial court. On September 12, 2017, the trial court sentenced Defendant

to life imprisonment at hard labor without benefit of probation, parole, or suspension

of sentence.

Defendant filed a notice of appeal on September 12, 2017, which was granted

that same date. On appeal, Defendant states the following as assignments of error:

1. The evidence introduced at the trial of this case, when viewed under
the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) standard, was insufficient to prove beyond a reasonable doubt
that Charles Mayeux committed the second degree murder of Shelly
Mayeux.

2. The trial court erred in allowing evidence of other alleged other
crimes/bad acts to be admitted at trial when no exception to the hearsay
rule applied and/or the probative value of the evidence was far
outweighed by the prejudicial effect the evidence would have on
Charles Mayeux.

3. Counsel rendered assistance below that guaranteed by the Sixth
Amendment and Charles Mayeux was prejudiced as a result of
counsel’s deficient performance when counsel failed to object to the
admission into evidence of the investigative report prepared by Deputy
State Fire Marshal Chase Hawthorne, which contained inadmissible
hearsay and evidence.

4. The trial court erred in providing an incorrect and/or insufficient
limiting instruction to the jury concerning evidence admitted at trial.

5. The trial court erred in accepting Deputy State Fire Marshal Chase
Hawthorne as an expert in origin and cause and fire investigation.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find no errors

patent.

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ASSIGNMENT OF ERROR NUMBER 1

Defendant contends that the evidence was insufficient to find beyond a

reasonable doubt that he committed the second degree murder of his wife, Shelly

Mayeux.

Standard of Review

The following jurisprudence sets forth the standard of review in this case:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court 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, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Thus, to affirm, the record must reflect that the State satisfied its burden of

proving beyond a reasonable doubt all of the essential elements of second degree

murder under the above standard. Louisiana Revised Statute 14:30.1(A)(1) defines,

in pertinent part, second degree murder as “the killing of a human being . . . when

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

Because the instant case involves a conviction based upon circumstantial

evidence, we are further mindful of the following in connection with our review:

When the conviction is based upon circumstantial evidence, La.R.S.
15:438 provides that the state “must exclude every reasonable
hypothesis of innocence” in order to convict. State v. Camp, 446 So.2d

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1207, 1209 (La.1984). “Circumstantial evidence consists of proof of
collateral facts and circumstances from which elemental factors may be
inferred according to reason, experience and common sense.” State v.
Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983). However, La.R.S.
15:438 does not establish a stricter standard of review on appeal than
the rational juror’s reasonable doubt standard. The statute serves as a
guide for the jury when considering circumstantial evidence. 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. Williams,
13-497 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, writ denied, 13-2774
(La. 5/16/14), 139 So.3d 1024.

State v. Baumberger, 15-1056, pp. 10-11 (La.App. 3 Cir. 6/1/16), 200 So.3d 817,

826–27, writ denied, 16-1251 (La. 5/26/17), 221 So.3d 859, cert. denied, ___ U.S.

___, 138 S.Ct. 392 (2017).

While Defendant herein also challenges the admissibility of certain evidence

introduced at trial, we will consider all of the evidence introduced at trial for

purposes of reviewing the record for sufficient evidence. See State v. Hearold, 603

So.2d 731, 734 (La.1992):

When issues are raised on appeal both as to the sufficiency of the
evidence and as to one or more trial errors, the reviewing court should
first determine the sufficiency of the evidence. The reason for
reviewing sufficiency first is that the accused may be entitled to an
acquittal[.]. . . 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 . . . .

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.

Review of the Evidence

At the time of the incident, Defendant was the Chief of Police and the

Assistant Fire Chief of Evergreen. Defendant testified at trial. He stated that on

Friday, March 20, 2015, the day prior to the fire, his wife Shelly had woken up sick

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and was vomiting. Therefore, he stayed home with her, rather than going to work.

According to Defendant, Shelly told him that she might be having a miscarriage.

However, there was evidence reflecting that Shelly had previously had a tubal

ligation; but, Defendant denied knowledge of that. Defendant testified that Shelly

would not stop vomiting and that they drove to the hospital that morning. However,

he could not make Shelly go inside the hospital; therefore, they left the hospital and

stopped to get gas in Bunkie.

Defendant further testified that on March 20, 2015, he had responded to a

police call regarding horses that were loose on the highway. He indicated that a

horse was behind his house, so he searched for it on foot; however, he was unable to

find it.

He stated that when he returned home from the call, he and Shelly began

making plans for picking up Shelly’s children. He told Shelly he would go pick up

his paycheck from work and then go pick up the children. He testified that after

picking up his check, traffic caused him to run late; therefore, the stepmother of

Shelly’s two sons called him. Defendant indicated that after he had picked up the

children, he brought them to Shelly’s mother’s house. He then stopped at Walmart

to purchase medicine for Shelly, and then stopped at Family Dollar in Cottonport to

purchase soup and crackers for Shelly. He testified that it was approximately 5:00

p.m. and still daylight when he returned home. He indicated that later that evening,

Shelly had quit vomiting, they watched television, and then laid in bed together and

had sexual intercourse.

According to Defendant, he then spoke to his dad about a new truck, and asked

Shelly if she wanted to ride with him to his dad’s house in Bunkie. While driving,

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Defendant received a call from Mr. Rushing Juneau. Defendant testified that they

never made it to his dad’s house because Shelly had gotten nauseated again.

Defendant also indicated that, as a police officer, he had made “rounds” on

March 20, 2015, prior to the fire. He explained that he typically made rounds at

night, before going to bed, and, at trial, he described his route as follows:

A. I leave my home, that’s my home, I usually check the fire station,
my sister use [sic] to live here and I use [sic] to make a round and I’ll
cross the bayou, I had the senior apartments here, I go through the
parking lot, that’s what’s good about being a police officer in a small
town, you know everybody, so if something’s out of place, you
recognize it, I check on my old people and I go down College, C.G.
Lobin Construction is right here, I check that business, because it’s
attempted to be broken into before, I check all, I go down College, the
Baptist church and cemetery is right her.

....

A. I check this area, I come across, there some apartments in this
area that I have trouble with sometimes with people that live there, so I
always look that area [sic], the park is right here, I use [sic] to have a
lot of problems with people hanging out drinking right here.

....

A. I checked the park because I had trouble with people with
loitering, drinking, and stuff like that, and there’s a little, there was a
little store right here, a little mom and pop store I call it, it closes at like
3:00 in the afternoon, I’ll check the catholic church, the K.C. Hall, the
rectory, the cemetery back here.

Q. That’s a different cemetery, so there [sic] two cemetery [sic]?

A. I mean yeah, that’s all we got in Evergreen, you know I’ll go the
Burn’s road, my city limits end in this area just like here, here on the
highways, I’ll go a little bit further.

Q. Why?

A. Because the Sherriff’s[sic] office is, their [sic] busy, they have a
lot more traffic than I do, so sometimes I’ll go a little bit further out if
there’s like about this area is a big tractor shed for a farm, so sometimes
I’ll just go out at night and I turn around there, just shine the spot light
make sure no one’s breaking in and I have to turn around anyway, I do
it on the Burn’s road, there’s a potato plant right here, sometimes I shine

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my light at the potato plant, I know the guy that owns it, I do it as a
favor, I’ll go back down Hills Street and we have the Sewer plant that’s
back here and believe it or not, people will break in to a sewer plant,
there’s tools, there’s chemicals and I’ll go . . .

Q. Let me ask you, does your fire, is your fire district bigger than
your city limits?

A. It’s a lot bigger than the city limits, my fire district goes almost
to Goudeau, and around this COOP [sic], it’s a lot bigger than the city
limits.

Q. We’re talking about the rounds that you make every evening?

A. It’s a little gravel road, I’ll check the sewer plant right here, my
city limit on end [sic] here, I mean I don’t care to turn around right at
the city limits.

Q. Do you have jurisdiction outside the city to make an arrest?

A. Of course, yeah, if you’re assisting the Sheriff’s office or another
town, yeah, you’re a police officer.

Q. How many miles from your house to where we are right now,
roughly?

A. May be a mile.

Defendant explained that the night of March 20, 2015, he had made rounds

along the route he described, but he did not remember where he had turned around.

He stated that when he returned home, it was dark, and he and Shelly wanted to rent

a movie. He also went to the fire department to get a laptop computer.

Several other witnesses testified concerning communications they had with

Defendant and Shelly on March 20, 2015, the day prior to the fire. Briana Rabalais,

an employee of the Avoyelles Parish Sheriff’s office and Shelly’s co-worker,

testified that Shelly had called in sick the morning of March 20, 2015, and sounded

very upset at the time. Ms. Rabalais also indicated that she had called Shelly later

in the day and that Shelly sounded irritated.

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In addition, Brian Bordelon, the owner of a trucking company for which

Defendant worked, testified that on March 20, 2015, Defendant sent him an email

or text indicating that Shelly had miscarried the night before and that he would be

staying home with her. Mr. Bordelon stated that typically Shelly would pick up

Defendant’s paycheck, but that on March 20, 2015, Defendant had picked it up and

Shelly was not with him.

Laurie Bordelon, who was the stepmother of Shelly’s two sons, testified that

on March 20, 2015, Shelly was scheduled to pick up her sons from her between 4:00

p.m. and 4:15 p.m. When Shelly did not arrive as scheduled, she called Defendant’s

phone since Shelly did not have one, and Defendant answered telling her he was at

the dentist for a broken tooth. Defendant, however, denied, making this statement

to Ms. Bordelon. Ms. Bordelon also indicated that when Defendant finally arrived

to pick up the boys, he was by himself, which was unusual, and that Defendant told

her Shelly was sick.

Shelly was also scheduled to have visitation with her daughter the weekend

of the fire. Sherie Lemoine, Shelly’s daughter’s stepmother, testified that on March

20, 2015, she received a message indicating that Shelly would pick up her daughter

at 5:30 p.m. because they only had one vehicle. The daughter, however, wanted to

stay with her stepmother because they were boiling crawfish, so she tried to call her

mother on Defendant’s phone. She talked to Defendant and indicated she might not

go. Shelly’s daughter called back later and told Defendant she did want to go to

their house, and Defendant told her he was not sure if he would be able to pick her

up by 7:30 p.m. Defendant ultimately did not show up at all, without notice.

According to Ms. Lemoine, this was unusual, as Shelly would always let her know

whether or not she was coming to pick up her daughter.

8

Defendant testified that on March 20, 2015, the night before the fire, he had

fallen asleep on the couch watching a Will Farrell movie and Shelly had fallen asleep

in the recliner. He indicated that in the early hours of March 21, 2015, he woke up

to the fire, but did not “hear wood popping, wood splitting, like you do in a normal

fire.” At that point, he thought the house was “smoldering,” so he got up, but did

not see Shelly. He thought that maybe she “went to the bedroom or she ran out of

the house”, and he indicated that her blanket was still in the chair where she had

fallen asleep. He testified that he then “got down” and crawled and tried to scream

for Shelly, but that his “voice would cut out.” Then he went outside. He stated that

he did not see flames because of all the smoke, and that he did not have his “SCBA,

which would be the face mask, the air pack,” with him, as it was at the fire station.

Defendant further explained that when he was exiting the house, he passed by the

carport door and went towards the back door instead, but that he did not know why

he did this.

Defendant testified that when he left the house, he was coughing, throwing

up, and trying to catch his breath. He stated that, although he could not holler, he

looked for Shelly. He further indicated that he saw flames rolling out of the bedroom

window but saw no flames in the rest of house, and he called 911 three times.

Defendant testified he called 911 and then “went back in the house” to find

Shelly. He indicated that he was able to make it “to the bar.” When he went out of

the house, he then heard ammunition “going off” inside, which he stated sounded

like “hand grenades.” He explained that he had boxes of rifle bullets and other

shotgun shells in the house. He then stated that he tried to go back into the house

for a third time but was not able to go very far and he then ran out of the house. He

testified that something had hit him in the head, although it did not cause him any

9

injury, and he noted that ceiling tiles were falling. Defendant further explained that,

at that point, he was “hysterical” and could not remember if he “crawled, ran, [or]

skipped, the third time[.]”

Evidence of Defendant’s calls to Avoyelles Parish 911 was submitted at trial.

Defendant’s first call was at 2:08 a.m. on March 21, 2015. Over the course of five

minutes, Defendant called 911 three times. He told the 911 operator that his wife

was in the residence, that he could not get her out, and that bullets were “going off”

in the residence. During the calls, Defendant did not give his full name or address,

and emphasized his concern for the safety of the firefighters. He explained he did

not give his name or address because he thought the 911 operator recognized his

voice.

Clint Armand, the Fire Chief of the Evergreen Fire Department, responded to

Defendant’s 911 calls, and he testified at trial. He explained that he and Defendant

were close friends, Defendant had been his assistant at the Evergreen Fire

Department for about seven years, and Defendant was trained as an EMT. Chief

Armand further testified that, as a fireman, Defendant was issued “turnout gear,”

consisting of a coat, pants, hood, gloves, and a helmet. He also noted that on March

20, 2015, the day prior to the fire, Defendant did not stop by for his usual visit

because, according to Defendant, “they were all sick or throwing up[.]”

According to Chief Armand, Defendant’s residence was approximately 450

feet from the Evergreen Fire Department, Defendant had the code to access the fire

station, and he knew how to operate the fire truck. He also testified that when he

received Defendant’s 911 call, the fire truck was at the station with the keys inside

the truck.

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After receiving the 911 call, Chief Armand drove the fire truck from the

Evergreen Fire Department to Defendant’s residence. He testified that when he

arrived at the scene, he saw a fire on the left rear side of Defendant’s residence.

While he was handling the fire hose, he saw Defendant running in the opposite

direction, back towards the carport of the residence. Defendant did not speak to him.

Chief Armand indicated that he attempted to fight the fire from the outside of the

house because, at the time, he was the only one who had arrived at the scene. He

also testified that he was panicked and upset because he was friends with Defendant.

Joseph Frank , the Fire Chief of Bunkie, also testified at trial. He had received

a page at 2:20 a.m. on March 21, 2015, concerning the fire at issue. At trial, Chief

Frank was accepted without objection as an expert in the field of firefighting. He

testified that he arrived on the scene about seven or eight minutes after receiving the

page, and when he did, other men from his department were already there. He

described the fire as a “small cage” fire, “meaning that the whole building was not

engulfed in flames[.]”

Despite Defendant’s warning that bullets were “going off” in the residence,

Chief Frank’s men entered the residence to extinguish the fire. Chief Frank, and

others, testified that while it was necessary to be aware of the ammunition, the

ammunition was not being used as a weapon, and therefore it would simply “pop”

like a firecracker, causing the casing to burst. There was also evidence indicating

that Defendant had previously pawned his service weapon, and only Defendant’s

duty belt with its “mags” was in the bedroom.

Chief Frank indicated that one of his men first extinguished the fire in the

kitchen without turnout gear, and then, with full gear, his men extinguished the

remaining fire. According to Chief Frank, the fire was under control in twenty-five

11

to thirty minutes. Chief Frank also indicated that Defendant never voiced any

concern about getting his wife out of the residence, and Defendant never had to be

restrained from going inside the residence.

Chase Hawthorne, a Deputy State Fire Marshall, also testified at trial. He was

accepted as an expert in origin and cause of fire. He indicated that he arrived at the

scene at approximately 3:15 a.m. or 3:20 a.m., at which time, the fire was under

control.

Mr. Hawthorne testified that Shelly’s body was found in the bedroom and that

the bedroom was where the fire had originated. He noted that the fire was still

burning when he arrived at the scene, the bedroom door was closed, the bed was still

intact, and the mattress had not burned. Mr. Hawthorne also explained that Shelly’s

body was found face down, in a boxer’s stance, which suggested to him that she had

made no attempt to move away from the intense heat of the fire, which he explained

had originated on the right side of Shelly’s body. This observation lead Mr.

Hawthorne to opine that Shelly had died before the fire. He further indicated that

the couch on which Defendant alleged he was sleeping when the fire started was

twelve to fourteen feet away from where Shelly’s body was found. Mr. Hawthorne

also noted that Defendant left a door to the residence open, which he suggested

would allow the fire to receive more oxygen and grow faster.

Mr. Hawthorne also testified that while he was investigating the scene,

Defendant appeared in the bedroom window. He asked Defendant to leave the crime

scene and noted that Defendant became upset at the reference to a crime scene. Mr.

Hawthorne asked Defendant to submit a statement, and he read Defendant’s

statement, which was written at 6:08 a.m. on March 21, 2015, into the record, stating

as follows:

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A. “Friday morning I woke up with my wife she was sick and called
in to work, we both went back to bed and got up again at 8, she took a
bath we watched TV for a little while and she went back to bed. I took
care of different chores around the house.” I’m assuming that says like
laundry. “At about 1:15 my wife got up again and went lay on the
recliner she asked me if I would go get the kids and bring them to her
mom’s house because she was not feeling good. I picked up the boys
at Wendy’s at 4:30 and brought them to their grandmother, my mother-
in-law I stayed for about 30 minutes. I went to Wal-Mart to pick up my
meds and look for some nausea meds for Shelly. On my way home I
stopped at the Dollar Store picked up some Sprite and soup for Shelly.
I came back home, I talked to my dad on the phone, I put up the things
from the store, and put some clothes in the dryer. Shelly was still
sleeping I went to Bayou Express in Cottonport and got something to
eat. I came back home and Shelly was up. I told her I got her some
soup but she did not want to eat. We watched TV for a little while. I
asked if she wanted to get out the house, she said yes. We left to go to
my dad’s but the ride was making her sick, we turned around at the old
co-op across from DC-2 and came back home. We started to watch a
movie around 9:35 and I fell asleep. I woke up after getting hot and
coughing and when I woke up everything was black. I tried to get to
the bedroom but could not get past the TV because it was too hot and
bullets were going off. I went outside to see if she made it out. I called
dispatch and went back in the house, I got about mid-way through the
kitchen but could not go further. I went back outside after hearing more
bullets going off. I fell in the grass, threw up, that’s when I first . . .
that’s when the first fire truck pulled up.”

Defendant gave another statement at the Avoyelles Parish Sheriff’s Office at

11:50 a.m. on March 21, 2015, at which time he voluntarily turned over his clothing

and cell phone and submitted to DNA testing. According to Hawthorne, at this time,

Defendant showed no signs of injury, and his clothes did not smell of smoke. This

was confirmed by the testimony of Michael Cammack, a detective with the

Avoyelles Parish Sheriff’s Office, who was present during the March 21 st interview.

Mr. Hawthorne testified that Defendant added additional information to his

story in connection with his second statement, including that Defendant had been

watching a Will Farrell movie prior to the fire. Mr. Hawthorne indicated that the

movie case was found at the scene, however, no DVD was found in the DVD player.

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Mr. Hawthorne also testified Defendant had revealed to him that he and Shelly

routinely fought and discussed divorce; but that, around the time of the fire, they had

not fought because his wife was sick.

Similarly, Detective Cammack testified that Defendant admitted he and

Shelly fought often, with Shelly often asking for divorce. Defendant, however,

denied physically abusing Shelly. According to Detective Cammack, Defendant had

also revealed that, while he had not physically abused any other women with whom

he had previously had relationships, he had pinned one of the women against the

wall.

Mr. Hawthorne and Detective Cammack also testified that, when the officers

sought to collect Defendant’s clothes during the interview, Defendant, without

prompting, voluntarily stated that he and Shelly had sexual intercourse around 5:00

p.m. the night of the fire, despite Defendant’s indication that Shelly was sick that

day.

Detective Cammack further testified that Defendant explained he had tried to

go into the residence to rescue Shelly several times, but the smoke and heat

prevented him from doing so and that he did not think about using the police radio

in his possession, despite his training. Detective Cammack further noted that one of

the back doors to Defendant’s residence had previously been kicked in because

Defendant was angry about keys being left in the house, and that the door to

Defendant’s office as chief of police had also been kicked in. Defendant described

himself to the detectives as a “hot head” and that he had a “firecracker temper.”

Detective Cammack interviewed Defendant a second time in July 2015, and

he testified as to several inconsistencies in Defendant’s statements. For example, he

noted that Defendant suggested during the first interview that his wife had been

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vomiting the day of the fire; but during the second interview, he stated she had a

miscarriage. Defendant also indicated to Cammack that his wife was bleeding badly,

and he had convinced her to go to the Bunkie hospital; however, when they arrived

at the hospital, they did not go in and went back home. Defendant also indicated

that his wife was not bleeding when they had sex prior to the fire. Defendant further

denied during the interview that his wife had previously had a tubal ligation,

suggesting that he knew she had been hiding something from him.

Detective Cammack also testified concerning inconsistencies between

Defendant’s statements and his cell phone records. He reviewed the cell phone

records with Detective Jeremiah Honea, who was an Avoyelles Parish detective

accepted at trial as an expert in electronic data extraction. Defendant had told

detectives that on March 20, 2015, the day prior to the fire, he and his wife had begun

to drive to Defendant’s father’s house, but turned around near the Evergreen co-op

because she was sick. Defendant explained that during the drive, he had spoken to

Mr. Rushing Juneau on his cell phone between 9:00 a.m. and 9:30 a.m.

However, Defendant’s cell phone records suggested that Defendant was not

near the Evergreen co-op during this time. Rather, the three precision locations for

Defendant’s phone during the time of his call to Mr. Juneau was 1.75 miles away

from Defendant’s residence, in a rural and wooded area just outside of Evergreen,

described as a “ditch, forest area.”

Detective Cammack additionally testified as follows concerning the

inconsistencies between Defendant’s first and second interviews:

A. He did in the second interview come back and state oh I went and
made rounds. We also found that he had went to the fire department
which he left out in the first interview, I’m sorry police department is
right behind it. He went there gave his statement [sic] was he was going
to get a computer, the computer, left out that . . . we asked him why

15

were you at this location according to the phone and he never gave
really a true answer stated that oh I want to call somebody, I might have
went down the Burns road which is 1178 runs kind of parallel to 361; I
might have went down there and looked for the . . . did not give a true
specific answer.

Q. So the whole business of going down 361 he gave you two or
three different versions, is that right?

A. Yes, sir.

Detective Cammack also testified as to several text messages sent between

Defendant and his wife, all of which suggested to him that they had separated in

November 2014.

At trial, Defendant testified concerning the alleged inconsistencies in his

statements, and the following colloquy took place between Defendant and the State’s

counsel:

Q. The first time you were question[ed], you didn’t say anything
about taking Shelly to the hospital?

A. No I didn’t.

Q. The second time in July, they were telling you that they had
looked at your phone, right?

A. Yeah, well I knew they were, yeah.

Q. You knew that was happening?

A. Yeah, I gave them my phone.

Q. And they asked you about going to Bunkie?

A. Bunkie General, yes.

Q. Well the Bunkie area?

A Yeah.

Q. And that’s when you told them oh I took her to the hospital?

A. Yes.

16

Q. You didn’t think that was important to talk about the first time?

A. When Shelly died and I was being accused.

Q. You were being questioned, okay?

A. Mr. Mike, when Shelly first died, I said what I could remember.

Q. Right, and then you said you had sex with a woman you believed
had miscarried that day, right?

A. When we had sex, we kind of figured she didn’t have a
miscarriage.

Q. She was so sick, you said, that you actually took here [sic] to the
hospital?

A. That morning, early that morning, we had sex that night.

Defendant also explained that, while he had been accused of adding details to

each of his statements, “at the time I wasn’t thinking in a lot of detail.”

Multiple witnesses who had responded to the scene following the fire testified

that Defendant did not assist in extinguishing the fire at issue, despite Defendant’s

experience and training. At trial, Defendant explained that his police training

included domestic abuse training, and he stated as follows regarding his firefighter

training: “[Y]ou know you show up at the fire station and take the hoses off the truck

and put new hoses on the truck, that’s considering training, because you’re

familiarizing yourself with the truck and the hose.” Defendant also indicated that he

had never responded to a house fire within the city limits of Evergreen.

Defendant testified as follows when asked about any attempts to assist Chief

Armand, who was first to arrive at the scene.

A. When I saw the fire truck, I didn’t see him at first, when I saw
the fire truck, I took off running from my back yard because before that
I was looking for Shelly, I thought she might have been on the porch at
the neighbor’s house across the street next door, [I] collapse[d] in the
yard, I was looking for her, I didn’t want to believe she was still in the
house, then I saw the fire truck.

17

....

A. I thought he was going to stop by drive way [sic], you know but
he drove to where the fire was on the end of the house, I saw this,
because I’m on the ground, I’m on my hands and knees and I’m trying
to scream his name, and my voice cuts out, I can’t scream, I see Clint’s
[Armand’s] legs on the other side of the fire truck from underneath I
can see him running, I seen the fire hose, when I saw him come around,
I said come on and I got up and I ran under my car port [sic], I thought
he was behind me with the fire hose, it’s not his fault, he was our hero
that morning but he went to the fire, he didn’t go to go in the house, he
ran straight to the fire which was the window, I couldn’t open the car
port [sic] door and I couldn’t understand why, but I didn’t come out
my car port [sic] door, so I started kicking that door in when I kicked it
in I heard Nikki Ducote, the Bunkie fireman scream Charles get out of
the way and he’s running with the hose and I said there’s bullets, there’s
bullets because the popping and he said no don’t worry about it, get out
of the way and I got out of the way and I collapse[d] right there in front
of my police care [sic] which was by my carport and someone, I don’t
know who walked me to my 18 wheeler across my yard and I was sitting
against the fuel tank, against the truck, trying to catch my breath,
crying[.]

Several witnesses at the scene following the fire also testified that they saw

Defendant’s “turnout gear” under the carport of Defendant’s residence. According

to Defendant’s testimony at trial, his jacket and pants were in the carport and his “no

maze hood,” helmet, and gloves were in the trunk of his vehicle. There was also

evidence that a police radio found in Defendant’s residence was working and

communications could be heard coming through it.

When questioned at trial about his efforts to extinguish the fire, Defendant

explained that responding to a fire at his own residence was different than responding

to a fire from another location because he did not have time to mentally prepare. He

stated that, at the time, he did not think about going to the station to get the fire truck.

He also testified that he did not consider using his turnout gear, but that “[he] could

have had every piece of gear on and [he] wouldn’t have been in [his] right mind.”

Defendant also stated that, at the time, he did not consider going the short distance

18

to the fire station, despite knowing the code to the station and that there was a key

inside the fire truck. Defendant also testified as follows regarding the police radio

identified at the scene:

It wasn’t a radio, it was the pager I heard, the fire pager is one way, you
can hear, but you can’t talk in it, that was by the back door by my radio,
I mean I could have grabbed my radio, but I didn’t think I had what I
had with me and I didn’t even call dispatcher’s number, they had a 253-
4000 number, I called 911 and I went back in the house

During trial, Defendant denied killing Shelly, but acknowledged that he and

Shelly were the only people inside of the house before the fire and he did not believe

a third person started the fire. Defendant further admitted that Shelly would still be

alive if he had not been a coward. He also stated that he did not start the fire or know

how it started.

The State’s expert, Deputy Fire Marshal Hawthorne, testified at trial

concerning the cause of the fire. He ruled out natural gas, electricity, and weather

as potential causes. He further indicated that he did not find any remnants of

cigarettes or candles; however, he did suggest that a glass remnant found at the scene

could have been a candle holder or a drinking glass. He also noted that samples

taken from the scene tested negative for flammable liquids and he had not found any

products in the area that could have been an ignition source. He also indicated that

there was no evidence of a flash fire.

Mr. Hawthorne ultimately concluded that Defendant had intentionally set the

fire to conceal Shelly’s murder, based upon the following circumstances. First, in

his opinion, the fire was minimal at the time of the initial 911 call and Defendant

should have been able to get Shelly out of the bedroom, either by walking into the

bedroom and carrying her out, or by rescuing her through a bedroom window. Also,

the demarcation line of the fire was five or six feet, which would have given

19

Defendant room to safely move around in the residence. In addition, as a trained

firefighter, Defendant should have been able to put on his bunker gear and extinguish

the fire with the hose found near the back door, and Defendant’s only explanation

for not using the fire truck or gear available to him was that he had panicked and did

not think about it. Mr. Hawthorne also opined that Defendant was the only person

that could have set the fire, since the autopsy report showed that the victim was dead

before the fire. He also noted Defendant’s inconsistent statements.

Mr. Hawthorne testified as follows concerning his opinion regarding the cause

of the fire:

Sir, we take all the data, we take everything we gather and we take all
the witness statements, we take [Defendant’s] own testimony, we take
the autopsy report, we take the lab results, we take the actual scene
itself, everything together is put together. And several hypothesis’ [sic]
are created. And then we eliminate one at a time on being possible or
not. So we was able to eliminate everything. [Defendant] told us
several lies, the calculations of the fire’s growth and development, the
fire’s intensity patterns, the amount of time he spent there, 11 minutes
waiting on the fire department and you had very limited damage to the
room. All that taken into consideration leads you to an incendiary fire
cause.

Dr. Christopher Tape, who performed an autopsy of Shelly’s body on March

23, 2015, also testified at trial. He was accepted as an expert in forensic pathology.

He ultimately was unable to determine the cause and manner of Shelly’s death, but

he did conclude that she had died prior to the fire. Dr. Tape ruled out the fire, as

well as gunshot wounds and stab wounds, as causes of death. While Mr. Hawthorne

had testified that there was a hole in right side of Shelly’s body that was leaking

blood when her body was discovered, Dr. Tape opined that the fire caused the hole.

Dr. Tape also ruled out the possibility of natural death. He stated that even

though he could not absolutely rule out a seizure death, he indicated there was no

history of a seizure disorder. Therefore, according to Dr. Tape:

20

So it kind of leaves us with the cause of death that will kill you without
leaving a mark on your body. And there are some ways to do that. One
way is smothering, one way is different strangulation techniques that
may or may not leave any injuries. And particularly when . . . all the
skin burned away . . . there’s no injuries to see there anymore. So it’s
kind of left me with what are the causes of death that don’t leave any
injuries. And we have to talk about some terminology. Choking is you
eat the food particle and you choke on your hot dog . . . . That’s
chocking [sic], that’s external. Strangulation is external you can have
manual strangulation with your hand, your arm, legs even and then you
have ligature strangulation which is rope, belt, and other kind of scarf.

Dr. Tape then indicated he was not able to rule out choking or strangulation

as potential causes of death. While he noted that Shelly’s hyoid bone was still intact

with no fracture, he stated that ten to twenty percent of strangulation cases do not

result in a broken hyoid or larynx and it was “not uncommon for them not to break.”

He further testified that Shelly was thirty-one years old at the time of her death, “so

she may still be that age where [her bones] are somewhat flexible.” He further

explained the “carotid sleeper” choke hold:

basically . . . there are ways to kill a person without leaving a mark on
them. One of them is the carotid ceproble [sic] and what that basically
is is rather than choke with your hand, you take your upper arm and
your lower arm and the jugular and carotid are right here so what I can
do is if I come across straight here, I can cross this airway. But if I
come like this and do like that, then I can really crank that down, I can
cut off the jugular and the carotid and knock the airway. Looks like a
mixed martial arts move. And people will go unconscious from that
within ten seconds. And there are reports of death within under a
minute and normally you think well if you’re cutting off your oxygen
it should take you three or four minutes to die. Something else is going
on here it’s the cutting off of that blood somehow causes this death
rarely [sic] So again that’s away [sic] to kill somebody without leaving
a mark potentially. And especially when you have a burned body with
no petechial hemorrhages. But this is something that probably would
cause petechial hemorrhages. But again it has something to do with
how long you do it. But death happens very quickly, it’s probably not
going to be time for that pressure to build up. So there’s a lot of factors
and variables. But there are ways you can kill a person without leaving
a mark on them. And one of those ways is to smother him

21

Dr. Tape also explained that if one were to perform the “sleeper hold” while

pulling back and lifting up the body, more pressure would be applied, potentially

resulting in a quicker death.

Dr. Tape also discussed smothering as a cause of death that would not leave

injuries, explaining

You just eclude [sic] this area right here, you can do it with your mouth,
pillow whatever, that’s going to cause the same thing and you can’t
breathe. You’re going to die eventually depending on how long it’s
held there. But because there’s no real pressure you’re probably not
going to get petechial hemorrhages. And you may or may not get other
injuries on the body.

He further noted that in this case, petechial hemorrhaging was not visible because

the skin and eyes had been burned.

Dr. Tape also testified that toxicology tests indicated the presence of Paxil,

but that, in his opinion, Paxil did not cause or contribute to Shelly’s death, and there

was no evidence of overdose. Further, while he indicated he could not rule out

suicide as a cause of death, for Shelly to have committed suicide, it would have had

to have been by asphyxiation or strangulation that she would have had to do to

herself or with someone else’s assistance.

Dr. L.J. Mayeux, the doctor who directed the performance of an autopsy on

Shelly, also testified at trial. He indicated that he did not perform the autopsy and

did not go to the crime scene. At trial, he was accepted as a coroner and an expert

in the fields of family medicine and forensic medicine.

After reviewing the information given to him, he agreed with Dr. Tape’s

conclusion that Shelly did not die from the fire. He further testified that the charring

of Shelly’s body made it impossible to distinguish between a thermal burn, thermal

laceration, and a traumatic injury. He also explained that the “post-mortem boxer

22

like body posture” that Shelly’s body was found in resulted from dehydration from

the fire and the shrinking of the body and muscle tissue. Dr. Mayeaux also

concluded that Shelly had died prior to the fire, noting that the carbon monoxide

levels were less than 5%, there was no soot in her airways, and her lungs were

normal. He further ruled out seizure as a potential cause of death.

Dr. Mayeux also testified that Shelly’s use of Paxil, a common anti-

depressant, was not indicative of suicidal behavior, and opined that it is nearly

impossible for someone to suffocate themselves.

Dr. Mayeaux further explained that certain choke hold strangulations and

smothering could cause death without injury, noting there were multiple ways of

suffocation without fracture of the hyoid bone, including a “sleeper hold,” which he

described as follows:

If you are right handed your right arm would go around the victim’s
neck and then your left arm . . . hand would connect to the forearm and
you’ll put pressure . . . you can either go down with your pressure or
backwards with your pressure, or sideways. And that normally cuts off
the airway and/or the blood supply to the head. They call it the sleeper
hold because it can be an instant thing, passing out. If you do it long
enough sustained lack of oxygen to the brain, you get brain death.

He indicated that less than 2% of cases involving the “sleeper hold” resulted in hyoid

fractures.

Ultimately, Dr. Mayeux concluded in a supplemental report that the cause of

Shelly’s death was undetermined, but that manner of death was a homicide. He

testified as follows concerning his conclusions:

I have reviewed the following documents certificate of death, the
original autopsy report from Dr. Tape, supplemental report from Dr.
Tape completed May 26th of 17, incident investigation report from the
office of the state fire marshal, incident report, supplement from the
office of fire marshal and transcription of testimony taken on
September 26 of 16 from the State of Louisiana versus Charles Mayeux.
After reviewing these documents I am of the opinion that I would now

23

change my opinion as to the manner of death from undetermined to
homicide. First it is clear to me that Shelly Mayeux did not die from a
fire but she was dead prior to the fire. . . . - - - the state fire marshal has
ruled out flash fire. Dr. Tape finds there was no natural cause of death.
I do find there is substantial evidence of death by homicide and no
evidence of death by suicide or accident. I believe the evidence of
domestic violence by [Defendant]to his first wife and to the mother of
his two children is important. Both women reported that Charles
Mayeux choked them from behind. Shelly Catherine Mayeux appeared
at work with bruises on her face, neck and arms and . . . domestic
violence. Charles Mayeux had a history of excessive telephone calls to
his wife at work and threats over the phone. I agree with Dr. Tape that
there are no natural cause [sic] of death. I clearly believe that the most
likely cause of death was smothering with hand, pillow or other object
and special manual strangulation techniques such as carotid sleeper
hold.

In view of the most recent report by Dr. Tape and the evidence
submitted by you as outlined in this log, the manner of death of Shelly
Catherine Mayeux should now be classified as homicide and the death
certificate will be amended to reflect so.

Dr. Adel Shaker also testified at trial and was accepted an expert in the field

of forensic pathology, forensic medicine, anatomic pathology, and general medicine.

He agreed that Shelly had died prior to the fire. Dr. Shaker reviewed both Dr. Tape’s

initial and supplemental reports, but he did not agree that Shelly could have been

killed by a chokehold. According to Dr. Shaker, a rear neck chokehold, choking, or

strangulation was unlikely since she had no injuries to her tongue. He further

indicated that a “choke hold like we demonstrated with the V pattern” would not

show any visible injury to the neck, “[f]or a short time like 10-15 seconds. But

beyond that there will be bruises[,] contusions, hemorrhages.”

Dr. Shaker further concluded that he did not exclude a chokehold or

smothering as possible causes of death, but further noted that, unless Shelly was

infirm or intoxicated, she would fight for her life during smothering, resulting in

defensive wounds.

24

Detective Cammack, who had interviewed Defendant concerning the fire, also

provided the following conclusion at trial:

After taking the information from the report, after obtaining the
information from the facts that Shelly Mayeux was dead prior to the
fire, that she should have moved in some type of way because of the
fire being set near her, the fact that the fire investigators ruled this fire
was incendiary which is a set fire to relinquish any type of evidence the
probable cause was established to obtain arrest for Charles Mayeux for
the second degree murder of his wife.

When asked about a potential motive for the murder, Detective Cammack

indicated that Defendant and his wife had financial problems, noting unpaid bills, a

vehicle in poor condition, and that Defendant had pawned his service weapon.

Defendant testified that at time of Shelly’s death, he was $200 behind on his water

bill, Defendant’s Jeep was paid for but broken, and Defendant had pawned his

weapon.

There was also evidence at trial that, about a month before Shelly died,

$10,000 life insurance policies had been written for Shelly and Defendant.

Defendant testified that because the $10,000 policy was insufficient to pay for

Shelly’s funeral expenses, Shelly’s parents had paid for her funeral. He stated that

since Shelly’s death, he had received various donations from the fire department and

others.

At trial, several witnesses were called to testify concerning the relationship

between Defendant and Shelly. Shelly’s mother, Sheila St. Romain, testified that

Shelly and Defendant had been married for ten months and Shelly was thirty-one

years old when she died. She testified that she was not aware of violence between

Shelly and Defendant. She described Shelly as thin and weighing approximately

110 pounds, but explained that she would defend herself if necessary.

25

At the time of her death, Shelly worked in the booking department of the

Avoyelles Parish Sheriff’s Office. Several of Shelly’s co-workers testified that

Defendant would call Shelly frequently at work, and they often argued. One witness

testified that in an eight-hour day, Defendant called Shelly thirty-six times, whereas

another testified that Defendant would call as many as fifty times a day. Several of

the co-workers also testified that on one occasion when Shelly had Defendant on

speaker phone during a conversation, they heard Defendant state that if he could not

have Shelly, then he was going to kill her. There was also testimony suggesting that

Defendant would wait for hours in the parking lot for Shelly. When questioned

about the calls during trial, Defendant admitted that he would call Shelly often and

they would argue over the phone. He described Shelly as “feisty and fearless.”

One of Shelly’s co-workers also testified that Shelly had come to work one

day at the end of January 2015 “with hand prints around her neck, a black eye, and

a mark behind her ear.” She testified that when she asked Shelly what happened,

Shelly indicated that Defendant had choked her because she refused to have sexual

intercourse with him. The co-worker then reported the incident to the captain.

Another co-worker stated she had seen Shelly with hand print marks around her

neck, two black eyes, and what looked like cigarette burns.

Similarly, another co-worker testified that about sixty days before Shelly’s

death, he had noticed that Shelly had a black eye and bruising on her neck “consistent

with . . . fingers or a hand grabbing on the side of her neck.” He indicated that Shelly

had hesitantly explained to her that she and Defendant had gotten into a fight the

night before and Defendant had hit her. This testimony was confirmed by another

co-worker who spoke to Shelly at the same time regarding this incident. The trial

court, on multiple occasions, instructed the jury that testimony concerning

26

statements made by Shelly to her co-workers was being presented as evidence that

a report of an incident had been made, and not for the truth of the statement given.

Doug Anderson, Sheriff of Avoyelles Parish, also testified that it had come to

to his attention that Shelly was being abused by Defendant and that Shelly agreed to

talk with him about it in mid-January 2015. The trial court again instructed the jury

that anything Shelly told the sheriff was being offered to show a report was made

and was not being offered for the truth of the statement. He testified that Shelly

stated she was not being abused by Defendant and that he did not recall seeing any

marks on her. He said that he stressed to Shelly that she needed to press charges,

but she pled with him not to.

At trial, Defendant denied ever physically fighting with or abusing Shelly, and

he further denied threatening to kill her. He accused Shelly’s co-workers of lying

when they stated they saw marks and bruises on Shelly and heard him threaten Shelly

over the phone. When questioned concerning text messages between him and Shelly

in January 2015, wherein Shelly indicated she was not returning home, he

acknowledged that they were arguing, but they had not separated. The following is

a colloquy between the State’s counsel and Defendant regarding text messages sent

between Shelly and Defendant:

Q. What about February 27, 2015, less than three weeks before she
died, Shelly died, what were doing [sic] that day, need to show you that
message, January 16, 2015, this is . . . to you, would you read that one
please, number 33?

A. I don’t believe you Charles.

Q. And then you said to her?

A. You got to, you have nothing to lose, if I’m wrong, you leave
happy.

Q. Now, this is what Shelly responded to you, right?

27

A. I’m not coming home, you’re just going to beat my ass when I
get there, come home we can put on the Cisco CD.

Q. Did she frequently accuse you of beating her?

A. That was her talking smack to me.

....

Q. But, this is serious, she’s trying to tell you that she doesn’t want
to come home, you’re trying to beg her to come back, then she says
you’re going to beat my ass if I come back?

A. And then there’s a joke about putting on the Cisco CD, we were
joking around.

Joshua Johns, a detective with the Avoyelles Parish Sheriff’s Office, also

testified at trial. He stated that he received a complaint on March 2, 2015, indicating

that Defendant and Shelly were arguing in the parking lot of the Sheriff’s Office.

When he responded to the complaint, he saw Defendant and Shelly driving out of

the parking lot, and he stopped their vehicle. Detective Johns testified that he did

not see any signs of battery, and that neither wanted to press charges. Defendant

denied that he or Shelly were yelling or screaming at the time, despite the reported

argument.

Two witnesses also testified at trial concerning prior acts of violence towards

them by Defendant. Valerie Carroll testified that she lived with Defendant between

1999 and 2002, and, during this time, Defendant physically abused her at least once

a month, sometimes three times a month. She indicated that he would slap her face,

choke her, pull her hair, shove her, and push her to the floor. She explained that

sometimes he would choke her from the front with his hand on her throat, and that

sometimes he would come from behind her with his right arm, choke her, and lift

her against him. She indicated that when he choked her from behind, she would

almost lose consciousness.

28

Ms. Carroll also testified that Defendant had physically abused her when she

was seven months pregnant, explaining that during a fight, he had pushed her down

to the floor, “pulled my hair in his hand, he kneed me in the back, kicked me in the

side, slammed my head on the floor and this was all in front of my three year old.”

Ms. Carroll explained that the abuse happened for financial reasons, that

Defendant was cheating, and that she did not want Defendant to party with his

friends all the time. She testified that he had threatened to beat her up and to kill

her, once while holding a gun to her head.

Defendant admitted at trial that, on one occasion when he and Ms. Carroll

were arguing, Ms. Carroll threw a whisky bottle at him, and then Defendant placed

his forearm across Ms. Carroll’s chest and pinned her against the wall. Defendant

further admitted that, during an argument, he had probably threatened to kill Ms.

Carroll. However, he denied ever choking or hitting her. He further stated that he

and Ms. Carroll were not together when she was seven months pregnant, and he

accused her of lying concerning the alleged incident when she was pregnant.

Adenia Jane Smith,1 who was married to Defendant from February 2008 until

June 2011, also testified at trial. She stated that Defendant physically abused her by

slapping, choking, and hitting her and that he was also emotionally and verbally

abusive. She explained that when Defendant would choke her, he would do so by

reaching around her neck from behind her, and that there were times she could not

breathe, but she did not lose consciousness. She testified that this happened more

than once a month and explained the reasons for the altercations as “[m]oney,

jealousy, things like that, sex kind of depended on what we were fighting about at

1
This witness is later referred to during trial as Athena, or Jane Athena.

29

the time.” She further indicated that Defendant threatened to kill her with a gun and

that a few times she believed him. She agreed, however, that she did not allege abuse

when she filed for divorce.

Ms. Smith also testified that after she and Defendant divorced, she had

received a message from Defendant in February 2015 stating that he needed to talk

with her. According to Ms. Smith, on February 27, 2015, Defendant drove to her

placement of employment in Natchitoches, she got into his vehicle, and Defendant

told her he and Shelly fought all the time and he wanted to divorce her. Ms. Smith

also stated that Defendant mentioned going back to her apartment to have sexual

intercourse, but that she had refused to do so.

Defendant testified as to a physical encounter with Ms. Smith as follows:

A. I was having trouble, I had a girlfriend once that was killed by a
drunk driver and she was sober, she was the sober one, and she died
and I had trouble dealing with that and I would always talked [sic] about
her and Jane thought I was comparing her to the girl and she told me
I’m not going to compete with a dead girl and I pushed her and she
kicked me between the legs and while I was on the ground, she was
laughing and I grabbed her by the ankles and I picked her up she fell on
her butt, I didn’t punch her, I didn’t go that ninja . . .

Q. Have you ever punched a girl?

A. No.

Defendant further admitted at trial that he and Ms. Smith had met in

Natchitoches in February 2015. He explained that he and Shelly had been arguing,

but he denied stating that he wanted a divorce or that he asked Ms. Smith to have

sexual intercourse with him. He accused Ms. Smith of lying.

The defense also called several witnesses at trial concerning Defendant’s

relationship with Shelly. Several witnesses, including Defendant’s former co-

worker, Chief Ernest Anderson, and Defendant’s neighbor and co-worker, Mike

30

Ducote, testified that they had never witnessed anything suggestive of an abusive

relationship between Defendant and Shelly. In addition, Kayla Brevelle, who had

formerly dated Defendant for three months, and Amanda Volker, who had formerly

dated Defendant for eighteen months, both testified that Defendant was not abusive

towards them during their relationships. Ms. Brevelle further testified that she

worked with Shelly until April 2014 and did not observe any marks or bruising on

Shelly during that time. Chief Armand, who was close friends with Defendant and

Shelly, and who saw them almost every day, also testified that he had never seen

Defendant act aggressively towards Shelly or any marks on Shelly indicating abuse.

In addition, Defendant’s landlord, Shirley Devillier, testified that she never received

any calls regarding any disturbances at Defendant’s residence and she never saw any

evidence of abuse of Shelly.

Analysis

On appeal, Defendant urges us to find that the State failed to present sufficient

evidence that Shelly was killed by Defendant (or anyone else), or that Defendant had

the specific intent to kill or inflict great bodily harm upon Shelly. Defendant argues

as follows in his brief to this court:

The State failed to prove beyond a reasonable doubt that Shelly died at
the hands of another, much less that [Defendant] was in any way
involved. The two pathologists could not provide a cause of death. A
seizure death was not ruled out, heavy metals was not ruled out, . . . it
is not clear that all other viral infections were eliminated. Death as a
result of an injury was ruled out as there was no damage to any of the
organs that would have resulted in her death and there was no sufficient
loss of blood as her organs still retained the proper coloring. Dr. Tape
noted in the autopsy report that Shelly suffered from cardiovascular
disease and moderate to severe nefphosclerosis of the kidneys, although
he opined that the natural diseases, coupled with the positive toxicology
was probably not enough to cause death. He did not rule out the
possibility of a heart attack, although he testified it was highly unlikely.
Dr. Tape did not rule out the possibility of suicide. Dr. Tape testified
that a body with no apparent injuries and no apparent cause of death

31

does not happen often. Both pathologists discussed strangulation and
smothering as possible causes of death but neither concluded this was
the actual cause of Shelly’s death. The hyoid and larynx were intact.
Dr. Tape testified that the hyoid could remain intact in ten to twenty
percent of strangulation cases, although Dr. Shaker believed the
number to be much less, especially if the victim was in a position to
struggle. Dr. Tape testified that the top of the larynx was easily broken
during strangulation. Dr. Shaker was more emphatic that had she been
choked or strangled there would have been injuries to the muscles and
tongue that would have been visible, even with the charred body, yet
Dr. Tape’s report indicated there were no visible injuries to these areas.
. . . The totality of the testimony indicates that death by strangulation or
choke hold was not proven to the be the [sic] cause of death. Dr.
Mayeux, who was not a forensic pathologist, offered little to the
discussion as to the pathological findings, although he opined a seizure
death was unlikely as adult onset seizures without underlying markers,
such as a tumor, were rare.

In response, the State stresses on appeal the deference that should be shown

to a jury’s rejection of a defendant’s hypothesis of innocence and argues in brief

that:

[T]he jury could rationally view all the evidence in this case as proving
the cause of death was either a strangulation or suffocation, caused by
a physically abusive spouse who choked at least one prior wife and one
prior girlfriend, of which one is the mother of his two children; who
intentionally burned his wife’s body, retarded the first responders and
lied repeatedly to investigators and the jury about his whereabouts and
his explanations for his actions.

On review, we note that the record does not contain any direct evidence that

Shelly was murdered, that Defendant killed her, or that Defendant started the fire at

issue. However, various circumstantial evidence apparently led experts to conclude

Shelly had died before the fire and the fire was intentionally set to cover up a

homicide. Both conclusions were based on expert opinions reached by scientific

methods that excluded other ways Shelly could have died and other ways the fire

could have been started. The jury was made aware of these expert opinions and

heard defense counsel challenge these opinions through its cross-examination and

testimony elicited from Defendant’s own witnesses and expert. The jury seemingly

32

chose to believe the State’s experts that Shelly was killed by some type of choking

or strangulation that left no injuries and that the fire was intentionally set to cover

up the homicide.

This court recently addressed a similar circumstantial evidence case in State

v. Vail, 17-354 (La.App. 3 Cir. 12/28/17), 236 So.3d 644, stating the following:

In summary, the jury heard extensive testimony from three expert
witnesses regarding whether Mary Horton Vail was dead before she
entered the water or died after she entered the water. The experts also
offered opinion testimony as to the events surrounding her death, based
on the reports and evidence available to them as well as their opinions
pertaining to the cause of death. Two of the experts concluded the
manner of Mary Horton Vail’s death was a homicide. One testified that
he concluded the death was an accidental drowning. The jury heard the
testimony of all three experts in great detail, viewed the photographs,
and read the autopsy report. Faced with conflicting expert opinions, the
jury was entitled to accept whichever one, in their opinion, better
explained the facts of the incident. La.Code Evid. art. 702. An appellate
court should “not disturb the jury’s choice to accept one expert’s
opinion unless that opinion is patently unsound.” State v. Ellis, 28,282,
p. 5 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, 623, writ denied, 96-1991
(La. 2/21/97), 688 So.2d 521. After reviewing the experts’ testimony in
their entirety, we do not find the expert witnesses’ opinions of the cause
and manner of death to be patently unsound.

In great part, most of the witnesses in this case presented
evidence that was circumstantial in nature. This evidence consisted of
contradictory statements made by the defendant, information from
officers and investigators regarding the disappearance of two other
women connected to the defendant, information regarding life
insurance policies, testimony . . . that contradicted the defendant’s
statement that his wife accidentally fell into the river, and testimony
regarding the relationship between the defendant and the victim at the
time of her death.

The testimony of three of the state’s witnesses, however, is not
circumstantial in nature. Wesley Turnage, Robert Fremont, and Bruce
Biedebach all testified regarding statements the defendant made to each
of them at different times wherein he stated to them that he killed his
wife.

....

In the current case, the jury obviously concluded the three
witnesses to whom the defendant stated he killed his wife were worthy

33

of being believed. The jury seemingly believed Dr. Welke’s conclusion
that Mary Vail was dead when she went into the river late that evening
or Dr. Baden's theory that she may have died in the water as a result of
foul play. They heard testimony that she was fearful of being in “dark
water” and never went out in the defendant’s boat during the daytime,
yet she allegedly went fishing with the defendant after dark. The jury
also had the opportunity to peruse the Calcasieu Parish Sheriff’s Office
investigation report compiled in 1962 describing the direction of the
investigation and the concerns being addressed to determine what
happened to Mary Vail. While the report did not offer any conclusions
or explanations, it did reflect the defendant’s attitudes and behavior at
the time of Mary Vail's death.

....

Moreover, whatever was the cause of Mary Vail’s death,
strangulation, suffocation, or a blow to the head, the fact that the
defendant attempted to cover up the offense by trying to convince the
police that she accidently fell overboard was sufficient evidence for the
jury to conclude he had specific intent to kill her. “[S]pecific intent is a
state of mind, and need not be proven as a fact, but may be inferred
from the facts and circumstances of the transaction and the actions of
the defendant.” State v. Boyer, 406 So.2d 143, 150 (La.1981). “Specific
intent is an ultimate legal conclusion to be resolved by the fact finders.”
State v. Graham, 420 So.2d 1126, 1128 (La.1982).

The evidence, in this matter both direct and circumstantial, the
testimonies, documents, and the defendant’s statements, viewed in a
light most favorable to the prosecution, contained enough information
to exclude the defendant’s assertion of innocence and supports the
jury’s finding that the defendant killed his wife, Mary Vail.

Vail, 236 So.3d 644 at 668-69.

Although Vail is distinguishable from the present case in that there was direct

evidence of the defendant’s guilt, we find that Vail’s analysis of the jury’s verdict

and its deference to conclusions drawn by the jury are helpful. In Vail, there was

expert testimony that the victim had died prior to entering the water where she was

found. Similarly, in the instant case, there was expert testimony that Shelly had died

before the fire that burned her body. The experts in the instant case also ruled out

the likelihood of natural or accidental causes of death, as well as suicide.

34

Additionally, the experts excluded all causes of the fire except for an intentionally

set fire to cover up a homicide.

Also as in Vail, the jury in the instant case did not have to rely solely on the

experts’ opinions, but was able to draw its own conclusions from the rest of the

evidence introduced. The jury heard evidence suggestive of a volatile relationship

between Shelly and Defendant, including Defendant’s threats to kill Shelly, co-

workers’ observations of bruises and handprints on Shelly’s neck that she attributed

to Defendant, and Defendant’s own testimony that he and Shelly routinely fought.

The jury also heard evidence that Defendant had previously choked his prior

wife and ex-girlfriend and was able to compare this testimony with the expert

testimony that Shelly possibly died by a chokehold or by suffocation that did not

leave any injuries. The jury was also able to weigh this expert testimony against

testimony from the defense expert, Dr. Shaker, suggesting that a rear neck chokehold

would have likely caused injury to the victim’s tongue and no such injuries were

noted on Shelly.

Additionally, the jury heard Defendant’s testimony concerning the events the

day Shelly died, including his initial report that Shelly was vomiting and then

subsequent statements that she feared she was having a miscarriage. The jury also

heard evidence indicating that in his initial statement to police, Defendant did not

mention taking Shelly to the hospital, but then, in a subsequent statement, revealed

this information. Additionally, in his first statement to police, Defendant did not

mention that he went on rounds the day before the fire, or that he chased after a horse

that had gotten loose. The jury also heard testimony regarding the location of

Defendant’s cell phone and whether it was consistent with the location where

Defendant claimed to be at the time.

35

The jury also heard testimony that it was unusual for Shelly to not to pick up

Defendant’s check, not be with the Defendant when he picked up her two sons, and

to not text her daughter’s stepmother regarding her visitation. Furthermore, the jury

heard Mrs. Bordelon, stepmother to Shelly’s sons, testify that Defendant told her he

was late picking up the boys because he was having a broken tooth fixed.

Through all of the evidence and arguments at trial, the jury was made aware

of Defendant’s hypothesis of innocence that Shelly died of some type of natural

cause – a stomach virus, staph from a boil, a miscarriage, a possible seizure, and

possible cardiovascular disease. The jury also heard Defendant’s hypothesis that

Shelly died suddenly while holding a lit candle, causing the candle to fall and catch

the house on fire. Obviously, the jury rejected these hypotheses.

The supreme court has stated:

To preserve the role of the fact finder, i.e., to accord the
deference demanded by Jackson, this Court has further subscribed to
the general principle in cases involving circumstantial evidence that
when the fact finder at trial reasonably rejects the hypothesis of
innocence advanced 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). A
reasonable alternative hypothesis is not one “which could explain the
events in an exculpatory fashion,” but one that “is sufficiently
reasonable that a rational juror could not ‘have found proof of guilt
beyond a reasonable doubt.’” Id. (quoting Jackson ). Thus, in all cases,
the Jackson standard does not provide a reviewing court with a vehicle
for substituting its appreciation of what the evidence has or has not
proved for that of the fact finder. State v. Pigford, 05–0477, p. 6
(La.2/22/06), 922 So.2d 517, 521; State v. Robertson, 96–1048
(La.10/4/96), 680 So.2d 1165, 1166. A reviewing court may impinge
on the “fact finder’s discretion . . . only to the extent necessary to
guarantee the fundamental due process of law.” State v. Mussall, 523
So.2d 1305, 1310 (La.1988).

State v. Mack, 13-1311, pp. 9-10 (La. 5/7/14), 144 So.3d 983, 989.

Considering all of the evidence introduced at trial in a light most favorable to

the prosecution, we conclude that it was rational for the jury to find beyond a

36

reasonable doubt that the essential elements of second degree murder were proven

and all reasonable hypotheses of the Defendant’s innocence had been excluded.

ASSIGNMENT OF ERROR NUMBERS 2 AND 4

Defendant’s second and fourth assignments of error challenge the trial court’s

rulings allowing the State to elicit testimony from Defendant’s ex-wife and a former

girlfriend regarding alleged physical abuse during their relationships with

Defendant, as well as testimony from several of Shelly’s co-workers who allegedly

had conversations with Shelly concerning abuse by Defendant and witnessed

bruising on Shelly’s face and neck.

A pre-trial hearing was held on September 27, 2016, in accordance with

La.Code Evid. art. 404(B), regarding the admissibility of testimony from

Defendant’s ex-wife, Defendant’s former girlfriend, and six of Shelly’s co-workers

as “evidence of other crimes, wrongs or acts.” The trial court rendered Reasons for

Ruling on February 21, 2017, wherein it found that the probative value of the

evidence substantially outweighed any possible prejudice to Defendant and ruled the

testimony was admissible at trial.

During trial, a separate hearing was held concerning the admissibility of

statements that Shelly made to various co-workers before her death, which

Defendant argued was inadmissible hearsay. The State argued these statements were

admissible as a rebuttal to prior testimony suggesting that Shelly did not report any

abuse by Defendant and because the Fire Marshall’s report, which had already been

accepted into evidence, included the statements of these co-workers. The trial court

ultimately found the testimony permissible, noting that Shelly was unavailable, as

contemplated by La.Code Evid. art. 804.

37

Absent clear abuse, we will not intrude on the broad discretion of a trial
court in evidentiary decisions. It is within the trial court’s province to
determine the potential for prejudice afforded by certain evidence and
testimony and the degree to which such prejudice might exceed
probative value and taint the jury verdict.

Nugent v. Cont’l Cas. Co., 634 So.2d 406, 408 (La.App. 3 Cir. 1994). Further,

“[e]rror may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected[.]” La.Code Evid. art. 103(A).

Testimony from Ms. Smith and Ms. Carroll

On appeal, Defendant challenges the trial court’s ruling allowing the State to

elicit testimony from Defendant’s former wife, Ms. Smith, and from Defendant’s

former girlfriend, Ms. Carroll, as evidence of “alleged other crimes/bad acts.” These

witnesses provided testimony concerning alleged physical abuse during their

relationships with Defendant. Defendant argues that the State’s reliance on this

testimony to show motive was unfounded since the evidence was not factually

particular to Shelly and the crime with which Defendant was charged. Defendant

also argues that he was unfairly prejudiced by their testimony, as it “provided a

connection the State did not otherwise have to support the conclusion that Shelly

died by strangulation.”

In response, the State asserts that the testimonies of these women were

relevant to show “the motive, intent, opportunity, preparation, plan, knowledge and

identity, absence of mistake or accident of Mayeux, along with showing his

propensity for violence against those with whom he was involved in a romantic

relationship.”

Louisiana Code of Evidence Article 404(B) provides, in pertinent part:

Other crimes, wrongs, or acts. (1) Except as provided in Article
412, evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that he acted in conformity

38

therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake or accident, provided that upon request by
the accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, of the nature of any such evidence it intends
to introduce at trial for such purposes, or when it relates to conduct that
constitutes an integral part of the act or transaction that is the subject of
the present proceeding.

In State v. Rose, 06-402 (La. 2/22/07), 949 So.2d 1236, the supreme court

addressed the admissibility of other crimes evidence in connection with a second

degree murder trial following the death of the defendant’s wife. The evidence

included the defendant’s previous conviction for the manslaughter of his former

wife, his convictions for violence perpetrated against his former wife, and his arrest

for domestic violence against the victim. The supreme court found the evidence was

admissible as it was “highly probative to show defendant’s identity, pattern, system

and motive, and his vicious attitude toward women with whom he shares a close

personal relationship.” Id. The supreme court reasoned:

It is well settled that courts may not admit evidence of other
crimes to show the defendant as a man of bad character who has acted
in conformity with his bad character. Evidence of other crimes, wrongs
or acts committed by the defendant is generally inadmissible because
of the “substantial risk of grave prejudice to the defendant.” However,
the State may introduce evidence of other crimes, wrongs or acts if it
establishes an independent and relevant reason such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident. The State must provide the defendant with
notice and a hearing before trial if it intends to offer such evidence.
Even when the other crimes evidence is offered for a purpose allowed
under art. 404(B)(1), the evidence is not admissible unless it tends to
prove a material fact at issue or to rebut a defendant’s defense. The
State also bears the burden of proving that defendant committed the
other crimes, wrongs or acts.

....

. . . . We find the State proved defendant committed the other
crimes, wrongs or acts by clear and convincing evidence. Defendant
was convicted of manslaughter and of the prior crimes committed
against Monica Young Rose. The case against defendant for municipal

39

domestic battery against Ms. Rose [(the victim of current offense)] was
not resolved at the time of Ms. Rose’s murder. At trial, defendant gave
his version of the facts surrounding each of the other crimes or wrongs
introduced and did not deny he was the same person involved in the
incidents at issue.

. . . . The identity of the perpetrator was a material issue at trial
because defendant claimed he did not kill Ms. Rose . . . . This court has
allowed the use of other crimes evidence to show modus operandi or
system as it bears on the question of identity when the prior crime is so
distinctively similar to the one charged, especially in terms of time,
place and manner of commission, that one may reasonably infer that
the same person is the perpetrator in both instances. “[T]o assure that
modus operandi evidence involving crimes or acts similar to the
charged offense does not become a passkey to the introduction of the
character and propensity evidence that La.C.E. art. 404(B) prohibits,
this court has ‘closely analyze[d] the . . . transactions in order to
determine whether they . . . exhibit such peculiar modes of operations
to distinguish them as the work of one person.’” The assessment of this
standard is fundamentally a balancing process[,] . . . .“[t]he greater the
degree of similarity of the offenses, the more the evidence enhances the
probability that the same person was the perpetrator, and hence the
greater the evidence’s probative value, which is to be ultimately
weighed against its prejudicial effect.”

As explained above, evidence of other crimes, wrongs or acts
may also be introduced to establish proof of motive. For evidence of
motive to be independently relevant, it must be factually peculiar to the
victim and the charged crime. Additionally, in a case in which the State
sought to elicit testimony as to defendant’s motive, this court observed,
“Clearly, evidence that defendant and his ex-wife, the person to whom
defendant’s alleged criminal conduct was directed, had had a poor
marital relationship and that defendant had a bad temper was relevant
as tending to show the commission of the offense. . . .

In the instant case, we find the evidence that defendant physically
abused Ms. Rose is independently relevant to show the volatile nature
of the relationship between defendant and Ms. Rose. This evidence
tends to show defendant’s motive for commission of Ms. Rose’s
murder. The State was attempting to prove that defendant was the
perpetrator of Ms. Rose’s violent death. The State’s case was largely
dependent on circumstantial evidence, so any evidence tending to prove
that defendant had a motive or reason for committing the murder was
extremely probative. Defendant’s documented physical abuse of Ms.
Rose illustrates a motive factually peculiar to her murder.

....

40

While we recognize there are clearly differences among the
crimes or acts at issue, we find that, taken as a whole, the similarities
are sufficiently probative as to defendant’s identity as Ms. Rose’s
murderer . . . .

Thus, the evidence of the prior crimes was relevant not because
it revealed defendant’s general criminal propensities or his propensity
for violence as it specifically related to women (both uses prohibited by
La.C.E. art. 404(B)), but because when considered together, the crimes
revealed sufficient similarities arising from a fixed and aberrant pattern
of behavior that tended to identify defendant as the perpetrator in the
death of his second wife. The other crimes evidence was extremely
probative, especially considering the circumstantial nature of the case
against defendant. The prior crimes evidence tended to corroborate the
remaining evidence introduced at trial. . . . The other crimes evidence
also showed defendant acted violently toward another woman with
whom he had a close personal relationship, and eventually killed her
during an argument. Thus, rational jurors could have found the
similarities sufficiently probative to identify defendant as Ms. Rose’s
murderer because a specific pattern of violent and obsessive behavior
earmarked the crimes as the work of one man and thereby “sustain[ed]
the willingness of jurors to draw the inferences, whatever they may be,
necessary to reach an honest verdict.”

When the probative value of the other crimes evidence is
balanced against its prejudicial effect, we find the evidence was
properly admitted because it was not unduly or unfairly prejudicial.
While the evidence that defendant had killed his first wife after acting
violently towards her and that he had physically abused Ms. Rose was
clearly prejudicial in his trial for the murder of Ms. Rose, it was highly
probative to show defendant’s identity, pattern, system and motive. We
do not believe the prejudicial effect of the other crimes evidence rises
to the level of undue or unfair prejudice when it is balanced against its
probative value.

Rose, 949 So.2d at 1243-46 (internal citations omitted; footnote omitted).

We find that Rose illustrates the probative value of Ms. Smith’s and Ms.

Carroll’s testimonies in the instant case. As in Rose, the instant case involves

circumstantial evidence and Defendant’s denial of committing the crime with which

he was charged. Additionally, Defendant herein does not deny his identity as the

person who committed prior criminal conduct against Ms. Smith or Ms. Carroll, but

rather denies the conduct itself. The fact that both of these witnesses claim

41

Defendant committed the acts against them, despite Defendant’s denial, is relevant

to dispute Defendant’s defense at trial that he was not involved in Shelly’s death and

that Shelly died of natural or accidental causes.

As for the similarities between the prior conduct and the conduct for which

Defendant was on trial, we note the following: Both Ms. Smith and Ms. Carroll

were in a romantic relationship with Defendant, as was Shelly; Ms. Smith and Ms.

Carroll testified as to Defendant choking them during an argument; and the manner

in which both Ms. Smith and Ms. Carroll described Defendant’s choking was similar

to the way experts testified Shelly may have died.

On appeal, Defendant argues Rose is distinguishable because the cause of

Shelly’s death is speculative and “the other crimes/bad acts evidence was used to

improperly bolster this speculation.” While we agree that Defendant’s prior acts

helped to bolster the State’s witnesses’ suggestions that Shelly died from Defendant

choking her in a similar way that he had choked Ms. Smith and Ms. Carroll, the

probative value of this evidence outweighs its prejudicial effect. As noted by the

court in Rose, the circumstantial nature of a case weighs in favor of the probative

value of such evidence. Furthermore, Defendant presented his own expert testimony

to discredit the State’s chokehold theory of death.

Defendant also argues on appeal that Rose is distinguishable from the present

case because the defendant in Rose was convicted of the other crimes, whereas

Defendant herein was not convicted of any crime pertaining to the alleged abuse of

Ms. Carroll or Ms. Smith. However, regardless of the lack of a conviction, we find

that the State satisfied its burden of proving the other crimes or bad acts by clear and

convincing evidence, given the testimonies of both Ms. Carroll and Ms. Smith.

42

Therefore, we conclude that the trial court did not err in allowing the State to

elicit testimony from Ms. Carroll or Ms. Smith, as their testimonies were “highly

probative to show defendant’s identity, pattern, system and motive, and his vicious

attitude toward women with whom he shares a close personal relationship.” See

Rose, 949 So.2d at 1236.

Testimony from Shelly’s Co-Workers

Defendant also argues the trial court erred in finding that testimonies from

Shelly’s co-workers regarding statements Shelly made to them, identifying

Defendant as having abused her, were admissible as an exception to the hearsay rule.

The trial court ruled:

[I]t appears to me quite frankly under 804, the declarant is unavailable
due to death, 804 says as a here say [sic] exception, except as otherwise
provided by the code, the declarant is unavailable as a witness when the
declarant cannot or will not appear in court and testify to the substance
of his or her statement made outside of court, including situations in
number four, is unable to be present or to testify at the hearing because
of death or an existing physical or mental illness, etc., in this case the
alleged declarant of the statement is deceased, so that is an exception
but subject to the admonition that I’m going to give the jury that it is
not made to say the truth that her husband did these things only
that she reported it, okay.

(emphasis added).

Defendant further argues that the trial court’s ruling that Shelly’s statements

to her co-workers were excluded from the hearsay rule, is inconsistent with the trial

court’s instruction that the statements Shelly made to her co-workers were “only

being offered for purpose to show that [Shelly] made a report not that it was true[.]”

Therefore, according to Defendant, both the admission of the testimony, and the

instructions given were erroneous, given their inconsistent nature.

“Hearsay is not admissible except as otherwise provided by this Code or other

legislation.” La.Code Evid. art. 802. Hearsay is defined as “a statement, other than

43

one made by the declarant while testifying at the present trial or hearing, offered in

evidence to prove the truth of the matter asserted.” La.Code Evid. art.

801(C)(emphasis added). Considering this definition, the co-workers’ testimonies

as to what they saw for themselves (i.e., bruises and marks on Shelly, Defendant

waiting in the parking lot for hours, and Defendant arguing with Shelly) are not

hearsay. Additionally, the co-workers’ testimonies as to the threats they heard

Defendant make to Shelly over the phone was not hearsay in accordance with

La.Code Evid. art. 801(D)(2). However, the co-workers’ testimonies as to Shelly’s

statements to them accusing Defendant of abusing her would be hearsay, if they were

offered to prove the truth of the matter asserted, and if they are not otherwise

exempted from the hearsay rule.

In the instant case, however, the trial court specifically instructed the jury on

multiple occasions that the testimony concerning statements Shelly had made to her

co-workers were being offered only for the purpose of showing that the statements

were made, and not for the purpose of showing that what she said was true.

Therefore, the statements were not “offered in evidence to prove the truth of the

matter asserted,” and are therefore not hearsay as contemplated by La.Code Evid.

art. 801.

Defendant argues that none of the exceptions to the hearsay rule provided by

La.Code Evid. art. 804(B), which are applicable to certain statements by an

“unavailable” declarant, are applicable to Shelly’s statements to her co-workers.

While we agree that La.Code Evid. art. 804 would not provide an exception for

Shelly’s statements to the extent the statements were hearsay (i.e. were being offered

to prove the truth of the statements), the trial court made clear that the statements

were not being admitted for that purpose. Thus, even though the trial court

44

erroneously suggested in its ruling that Shelly’s unavailability, alone, created an

exception to the hearsay rule, the trial court’s ultimate instruction rendered the

testimony non-hearsay, and was otherwise appropriate.

We further note that the co-workers’ testimonies regarding what Shelly told

them had already been admitted into evidence through the fire marshal’s report. In

addition, the co-workers’ testimonies suggesting that Shelly had reported

Defendant’s abusive behavior to them was in rebuttal to evidence presented by

Defendant at trial. Furthermore, even without the co-workers’ testimonies that

Shelly had revealed to them that it was Defendant who had left bruises and marks

they observed on Shelly, it would be reasonable for a jury to draw such a conclusion

from other evidence, including text messages showing the volatile relationship

between Shelly including Defendant’s threats to beat her, and Defendant’s threat to

kill Shelly during a phone call heard by Shelly’s workers. Therefore, the trial court’s

admission of the co-workers’ statements is not considered erroneous under La.Code

Evid. art. 103(A).

In addition, we conclude that the trial court’s admission of the testimonies of

Shelly’s co-workers as evidence of other crimes, wrongs, or acts under La.Code

Evid. article 404(B) was not erroneous. Like the testimonies of Ms. Smith and Ms.

Carroll, the testimonies of Shelly’s co-workers were also “highly probative to show

defendant’s identity, pattern, system and motive, and his vicious attitude toward

women with whom he shares a close personal relationship.” Rose, 949 So.2d at

1236.

Therefore, we find that Defendant’s second and fourth assignments of error

lack merit.

45

ASSIGNMENT OF ERROR NUMBER 3

In his third assignment of error, Defendant argues his trial counsel acted

ineffectively by failing to request that Shelly’s co-workers’ hearsay statements be

redacted from the fire marshal’s investigative report.

Effective assistance of counsel is guaranteed to criminal Defendants by
the U.S. Constitution. See State v. Bright, 98-398 (La. 4/11/00), 776
So.2d 1134, reversed on other grounds, 02-2793, 03-2796 (La.
5/25/04), 875 So.2d 37.

To establish a claim of ineffective assistance, a
defendant must show that counsel’s performance fell
below an objective standard of reasonableness under
prevailing professional norms; and, that counsel’s
professional errors resulted in prejudice to the extent that
it undermined the functioning of the adversarial process
and rendered the verdict suspect. This does not mean
“errorless counsel [or] counsel judged ineffective by
hindsight, but counsel reasonably likely to render effective
assistance.”

Bright, 776 So.2d at 1157 (citations omitted).

State v. OBrien, 17-922, p. 21 (La.App. 3 Cir. 4/4/18), 242 So.3d 1254, 1269.

The supreme court has stated the following concerning the appropriate time

to address a claim concerning the ineffective assistance of counsel:

Ineffective assistance of counsel claims are generally raised in
applications for post conviction relief. See, e.g., State v. Truitt, 500
So.2d 355, 359 (La.1987). This Court has more often than not declined
to consider ineffective assistance of counsel claims on appeal because
the record in such cases is usually insufficient to assess such a claim.
Id.; State v. Barnes, 365 So.2d 1282, 1285 (La.1978). Examining
ineffective assistance of counsel claims after a conviction has been
affirmed on appeal “enables the district judge in a proper case to order
a full evidentiary hearing.” State v. Barnes, supra, at 1285.

State v. Peart, 621 So.2d 780, 787 (La.1993). Similarly, this court has recognized

that:

Decisions relating to investigation, preparation, and strategy require an
evidentiary hearing and cannot possibly be reviewed on appeal. Only
in an evidentiary hearing in the district court, where the defendant could

46

present evidence beyond that contained in the instant record, could
these allegations be sufficiently investigated. Accordingly, the
defendant’s claims of ineffective assistance of counsel will be relegated
to post-conviction relief.

State v. Mitchell, 13-426, pp. 28-29 (La.App. 3 Cir. 11/16/13), 125 So.3d 586, 605,

writ denied, 14-102 (La. 6/20/14), 141 So.3d 807.

We find that counsel’s decision in this case to allow the fire marshal’s report

to be accepted into evidence without seeking redaction of Shelly’s statements made

to her co-workers may have been a trial strategy exercised by counsel. Therefore,

we relegate this issue to post-conviction relief, where an evidentiary hearing may be

held to investigate defense counsel’s reasons, if any, for not seeking to redact these

statements from the fire marshal’s report.

ASSIGNMENT OF ERROR NUMBER FIVE

In his final assignment of error, Defendant argues that the trial court erred in

accepting Deputy State Fire Marshal Chase Hawthorne as an expert in origin and

cause of fire and fire investigation.

This court has stated the following regarding the standard of reviewing the

trial court’s acceptance of expert testimony:

A witness qualified as an expert by knowledge, skill, experience,
training, or education may offer an opinion as to scientific, technical,
or other expert testimony if it will “assist the trier of fact to understand
the evidence or to determine a fact in issue.” La.Code Evid. art. 702. In
State v. Allen, 41,548, pp. 11–13 (La.App. 2 Cir. 11/15/06), 942 So.2d
1244, 1254–55, writ denied, 07–530 (La.12/7/07), 969 So.2d 619, the
second circuit addressed the admissibility and review of expert
testimony, stating:

In State v. Foret, 628 So.2d 1116 (La.1993), the
Louisiana Supreme Court adopted the test set forth in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding
proper standards for the admissibility of expert testimony
which requires the trial court to act in a gatekeeping
function to ensure that any and all scientific testimony or

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evidence admitted is not only relevant, but reliable. State
v. Chauvin, 02–1188 (La.5/20/03), 846 So.2d 697. To
assist the trial courts in their preliminary assessment of
whether the reasoning or methodology underlying the
testimony is scientifically valid and can properly be
applied to the facts at issue, the Supreme Court suggested
the following general observations are appropriate: 1)
whether the theory or technique can be and has been
tested; 2) whether the theory or technique has been
subjected to peer review and publication; 3) the known or
potential rate of error; and 4) whether the methodology is
generally accepted by the relevant scientific community.
Daubert, 509 U.S. at 592–594, 113 S.Ct. 2786. In Foret,
supra, the court adopted these observations as a helpful
guide for our lower courts in considering this difficult
issue. Id. Thus, Louisiana has adopted Daubert's
requirement that in order for technical or scientific expert
testimony to be admissible under La. C.E. Art. 702, the
scientific evidence must rise to a threshold level of
reliability. . . . The trial court may consider one or more of
the four Daubert factors, but that list of factors neither
necessarily nor exclusively applies to all experts or in
every case. Id. Rather, the law grants a district court the
same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability
determinations. Kumho [Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ].

A trial court has great discretion in determining the
competence of an expert witness, and that determination
will not be overturned absent an abuse of discretion. La.
C.E. art. 702; State v. Gipson, 37,132 (La.App.2d Cir.
6/25/03), 850 So.2d 973, writ denied, 03–2238
(La.1/30/04), 865 So.2d 75. The test of competency of an
expert is his knowledge of the subject about which he is
called upon to express an opinion. A combination of
specialized training, work experience, and practical
application of the expert's knowledge can combine to
demonstrate that a person is an expert. State v. Gipson,
supra.

State v. Williams, 13-497, pp. 13-14 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1245,

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

On appeal, Defendant argues that Mr. Hawthorne was improperly accepted as

an expert witness in the field of origin and cause of fires and fire investigations. He

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notes Mr. Hawthorne’s testimony that he did not have a certification as an arson

investigator, he was not aware of any minimum training requirements, and he did

not provide information concerning his level of involvement in other origin-cause

investigations or fatal fires or whether they involved structure fires. Therefore,

according to Defendant, Mr. Hawthorne’s “knowledge and work experience was

insufficient to meet the requisite standard to testify as an expert.”

In response, the State notes that Mr. Hawthorne had been a Fire Marshal for

over eight years and had served as an arson investigator for the Fire Marshal’s office.

He had also participated in an 80-hour class at the LSU Fire Emergency Training

Institute and National Fire Academy. The State also argues in its brief to this court:

Mr. Hawthorne testified he investigated one quad and several double
fatal fire investigations during his work with the Fire Marshal’s office.
He described in detail that his role was to investigate to determine the
cause and origin of a fire. . . . Mr. Hawthorne testified he had been
involved in over 300 cause and origin investigations and fifty fatal fires.
. . . This fire was his first fire in which homicide was charged but he
testified he had other alleged homicide fires since the Mayeux fire. . .
Mr. Hawthorne clearly evidenced his superior knowledge of fire origin
and cause in his testimony of the NFPA-1033 and National Fire Code
921. They are the seminal authority codes on fire investigation. . . .
Mr. Hawthorne clearly testified that he investigated over fifty fatal
fires. Investigations where he would have determined the cause and
origin of the fires.

We find that Defendant has failed to show any abuse of discretion in the trial

court’s acceptance of Mr. Hawthorne’s competency to testify at trial as an expert

witness under La.Code Evid. art. 702. Mr. Hawthorne testified as to experience and

training in origins and cause of fire, fire investigations, as well as arson. While Mr.

Hawthorne testified that he did not hold any certifications in fire investigations,

Defendant fails to show how Mr. Hawthorne’s lack of certification diminishes his

competency as an expert in these areas. Defendant also fails to explain how Mr.

Hawthorne’s minimal homicide experience affected his competency to testify as to

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the origins and cause of the fire itself. Additionally, even though there are no

minimum requirements for annual continuing education, Mr. Hawthorne testified

that he has nonetheless received numerous hours of training in his areas of expertise.

Therefore, we find that the trial court did not abuse its discretion in accepting Mr.

Hawthorne as an expert in the fields of origin and cause of fire and fire investigation.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the following reasons, Defendant’s conviction and sentence are affirmed,

and Defendant’s claim of ineffective assistance of counsel is to be relegated to post-

conviction relief.

AFFIRMED.

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