State of Louisiana v. Donasty Anwanique Cohen

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-297

STATE OF LOUISIANA

VERSUS

DONASTY ANWANIQUE COHEN

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 332,130C
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

WITH INSTRUCTIONS.

Edward K. Bauman
La Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Donasty Anwanique Cohen

Hon. Phillip Terrell, Jr.
District Attorney
Catherine L. Davidson
Cheryl A. Carter
Assistant District Attorneys
Ninth Judicial District Court
Post Office Box 7358
Alexandria, Louisiana 71306-7358
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

Defendant, Donasty Anwanique Cohen, was charged by indictment filed on

February 22, 2017, with second degree murder, a violation of La.R.S. 14:30.1.

Trial by jury commenced on November 7, 2017. Defendant was subsequently

found guilty of the responsive verdict of manslaughter, a violation of La.R.S.

14:31. On January 23, 2018, Defendant was sentenced to serve seventeen years at

hard labor, without benefit of probation, parole, or suspension of sentence.

Defendant now appeals asserting three assignments of error: 1) the evidence was

insufficient to support her conviction; 2) her sentence is excessive; and 3) the trial

court erred in denying her challenges for cause. For the following reasons, we

affirm as amended with instructions.

FACTS

Defendant and Kenneth Anderson were the sixteen-year old parents of

twenty-seven day old Ashtyn Cohen. The three lived in the home of Kenneth’s

grandmother, Susie Willis. Kenneth’s brother, Kalib Anderson (who was fifteen

years old at the time of trial), also lived in the home. On January 2, 2017, Susie

called 911 because Ashtyn was having trouble breathing. Ashtyn subsequently

died, and Defendant was charged with second degree murder in his death.

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 an error

present.

The trial court erred in ordering Defendant’s sentence to be served without

benefit of parole.1 Defendant was sentenced to serve seventeen years without the

benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes

14:31 provides, in pertinent part:

B. Whoever commits manslaughter shall be imprisoned at hard
labor for not more than forty years. However, if the victim killed was
under the age of ten years, the offender shall be imprisoned at hard
labor, without benefit of probation or suspension of sentence, for not
less than ten years nor more than forty years.

During its recitation of the reasons for the sentence, the trial court noted that

because the victim was under the age of ten, the law provided for a minimum

sentence of ten years and a maximum sentence of forty years. Under that

sentencing provision, Defendant was ineligible for probation or suspension of

sentence. The sentencing provision, however, requires no restriction of parole

eligibility. The trial court also stated that manslaughter is designated as a crime of

violence. At the time the offense was committed, La.Code Crim.P. art. 893(A)

prohibited a suspended sentence for an offense designated as a crime of violence.

Article 893 did not, however, authorize the trial court to restrict parole for an

offense designated as a crime of violence. Thus, the trial court erred in ordering

Defendant’s sentence to be served without the benefit of parole. Accordingly,

Defendant’s sentence is amended to delete the denial of parole eligibility, and the

trial court is instructed to make an entry in the minutes reflecting this change. See

State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981; State v. Levy, 08-

1467 (La.App. 3 Cir. 6/10/09), 12 So.3d 1135; and State v. Dupree, 07-98

(La.App. 3 Cir. 5/30/07), 957 So.2d 966.

1
This issue was raised by Defendant within her excessive sentence claim.

2

ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, Defendant contends the evidence adduced at

trial was legally insufficient to sustain her manslaughter conviction.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979), the Supreme Court set forth the constitutional standard for
testing sufficiency of the evidence, requiring that a conviction be
based on proof sufficient for any rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, to find the
essential elements of the crime beyond a reasonable doubt. Pursuant
to La.R.S. 15:438, “[t]he rule as to circumstantial evidence is:
assuming every fact to be proved that the evidence tends to prove, in
order to convict, it must exclude every reasonable hypothesis of
innocence.”

Circumstantial evidence involves, in addition to
the assertion of witnesses as to what they have observed,
a process of reasoning, or inference by which a
conclusion is drawn. Like all other evidence, it may be
strong or weak; it may be so unconvincing as to be quite
worthless, or it may be irresistible and overwhelming.
There is still no man who would not accept dog tracks in
the mud against the sworn testimony of a hundred eye-
witnesses that no dog passed by. The gist of
circumstantial evidence, and the key to it, is the
inference, or process of reasoning by which the
conclusion is reached. This must be based on the
evidence given, together with a sufficient background of
human experience to justify the conclusion. Prosser,
[LAW OF TORTS], at p. 212.

Consequently, before a trier of fact can decide the ultimate
question of whether a reasonable hypothesis of innocence exists in a
criminal case based crucially on circumstantial evidence, a number of
preliminary findings must be made. In addition to assessing the
circumstantial evidence in light of the direct evidence, and vice versa,
the trier of fact must decide what reasonable inferences may be drawn
from the circumstantial evidence, the manner in which competing
inferences should be resolved, reconciled or compromised; and the
weight and effect to be given to each permissible inference. From
facts found from direct evidence and inferred from circumstantial
evidence, the trier of fact should proceed, keeping in mind the relative
strength and weakness of each inference and finding, to decide the
ultimate question of whether this body of preliminary facts excludes
every reasonable hypothesis of innocence.

State v. Chism, 436 So.2d 464, 469 (La.1983).

3

....

In reviewing the jury’s verdicts, we are not required by
constitutional law to determine whether we believe that the evidence
establishes guilt beyond a reasonable doubt or even whether we
believe the witnesses. Jackson, 443 U.S. 307, 99 S.Ct. 2781; State v.
Mussall, 523 So.2d 1305 (La.1988). Discretion in determinations of
credibility is vested in the jury, which may accept or reject testimony
within the bounds of rationality, and we will only impinge upon its
discretion “to the extent necessary to guarantee the fundamental
protection of due process of law.” Mussall, 523 So.2d at 1310. Rather,
we are charged in this case with reviewing the record to determine
whether the evidence and the reasonable findings and inferences
permitted by that evidence were sufficient to exclude every reasonable
hypothesis of innocence. Chism, 436 So.2d 464.

State v. Buteaux, 17-877, pp. 11-13 (La.App. 3 Cir. 3/14/18), 241 So.3d 1094,

1101-02.

As noted above, Defendant was convicted of manslaughter, which La.R.S.

14:31(A)(1) defines as:

A homicide which would be [first or second degree murder],
but the offense is committed in sudden passion or heat of blood
immediately caused by provocation sufficient to deprive an average
person of his self-control and cool reflection. Provocation shall not
reduce a homicide to manslaughter if the jury finds that the offender’s
blood had actually cooled, or that an average person’s blood would
have cooled, at the time the offense was committed[.]

The elements of “sudden passion” and “heat of blood” are mitigating factors in the

nature of a defense and must be established by a defendant by a preponderance of

the evidence. “Provocation and time for cooling off are questions for the jury to

be determined under the standard of the average or ordinary person, one with

ordinary self-control.” State v. Reed, 14-1980, p. 24 (La. 9/7/16), 200 So.3d 291,

311, cert. denied, __ U.S. __, 137 S.Ct. 787 (2017).

Larry Brown was employed by Acadian Ambulance on January 2, 2017. He

testified that, on that date, he was dispatched to 385 Cook Avenue. Upon his entry

4

into the residence, Kenneth came out of the hallway and approached Brown with a

baby that was face down. The baby was “limp, blue, cyanotic and very gray in

color,” and Brown knew the baby was in cardiac arrest. Kenneth handed the baby

to Brown and stated he did not know what was wrong. Brown began performing

CPR at that time, but the baby did not respond. Brown testified that he asked

Kenneth what happened but could not get an answer. He then went to the couch

where Defendant was sitting. Defendant also stated she did not know what had

happened to the baby. Brown testified, “there was no remorse. It’s more of when I

asked her a question, she just kind of rolled her eyes at me.”

Because the room was crowded, Brown took the baby outside and continued

CPR. Once the “unit” arrived, he put the baby on a stretcher. That was when he

noticed bruising on the baby’s right temple, face, and abdomen. When police

arrived, Brown showed them the bruising, and they took pictures. Brown indicated

Defendant did not approach the ambulance, ask questions, or cry, and was not

hysterical. Brown testified that it was not common to see that type of bruising on a

twenty-eight-day-old baby.2 Brown stated the bruising he observed was not from

CPR. Austin Rivers and Benjamin Fontenot, employees of Acadian Ambulance,

were present as well. They both testified that they saw bruising around both of the

baby’s eyes, his mouth, and his abdomen.

Officer Samuel Propst arrived on scene when Brown was performing CPR

on the baby. Brown asked him to keep people away from the truck so he could

continue his efforts to save the baby. Officer Propst observed bruises on the

baby’s abdomen and head. He and a trainee secured the scene until the crime

2
According to the autopsy report, the baby was actually twenty-seven days old. (State’s
Exhibit 9.)

5

scene division and detectives arrived. The occupants of the home, including “the

brother, the mother, the father and the grandmother,” were transported to the police

department for questioning. Officer Propst advised them of their rights, and let

them know they would be questioned by a detective.

Juvenile Detective Terrance Howard testified that Susie slept on the couch in

the living room; Defendant, Kenneth, and Ashtyn shared a room and a bed; and

Kalib had his own room. Detective Howard interviewed Defendant and was

questioned about that interview as follows:

Q Tell us - what did she tell you as to the incident?

A Initially she advised that she was asleep. She didn’t know what
happened. Kenneth woke her up. The baby was gasping. They woke
up Ms. Susie. Ms. Susie notified the paramedics. And then they were
brought to the police station.

Q Okay. And did she indicate that - so she said Kenneth was holding
the baby?

A Right.

Q Did she indicate whether or not Kenneth was feeding the baby or
anything? Just holding the baby?

A I think later in the interview she said that Kenneth told her he fed
the baby. But I don’t think she saw him feed the baby. If that makes
a difference. I think she said that he told her he fed the baby.

Q Okay. And what else did she tell you?

A I asked her about the bruising to the baby’s face. She said she only
noticed the bruises when Kenneth woke her up and told her that the
baby wasn’t responding - that the baby was gasping for air.

Q Did you talk to her about the bruising on the abdomen and the back
of the baby?

....

A . . . I believe she said that she didn’t know about them. Kenneth
was the one that usually changed the baby. And I think he said vice

6

versa - it was her that usually changed the baby and he didn’t know
about them.

Detective Howard testified that Defendant indicated Kenneth was the baby’s

primary caretaker, and Kenneth indicated she was. Detective Howard clarified that

Defendant said she saw bruises on the baby’s face after Kenneth woke her up.

Detective Howard further testified about his interview with Defendant as follows:

Ms. Susie - I don’t know if it was Ms. Susie’s daughter or her sister -
Kenneth’s aunt, I believe, was there during the day. They played with
the baby in the living room. Kalib left to play with friends. Initially I
think she went to bed. Kenneth came in with the baby. Kenneth sat
on the edge of the bed scrolling through TV guide I believe she said.
He handed her the baby. Woke her up, gave her the baby, told her he
was going to take a shower. He supposedly left and took a shower,
came back. He said that the baby was up. So he went to the kitchen
to get a bottle. Came back, fed the baby. After he fed the baby, he
said he left to put the bottle back up. When he came back the baby
was gasping. He didn’t know what to do. He grabbed a syringe,
cleared the nose and mouth. The baby still wasn’t responding. He
woke up Donasty then Ms. Susie and they notified paramedics.

Defendant indicated to Detective Howard that she noticed bruising on the baby

after Kenneth took a shower. She had not seen it before that time.

Detective Howard was further questioned about the interview as follows:

Q And I believe in the statement you asked her what was Ashtyn
wearing and her answer was he had a bruise right before but it looked
like it was going away. Do you remember her saying that?

A Right. Under the chin. Which Detective Bowens or any other
advise of a bruise on the chin. The bruising that they told me was the
face and abdomen, and then the scabs on the back.

....

Q So she indicated she saw bruising on the chin?

A She did, but I believe she stated she didn’t know where it came
from.

7

Detective Howard indicated Ashtyn had scabs on his back, indicating old injuries.

Detective Howard testified that Defendant either did not know about the scabs or

did not know where they came from.

Detective Howard was asked about Defendant’s demeanor. He indicated

that initially “it was like she just didn’t care. Nonchalant. But once the baby

passed, she showed a little emotion.” Detective Howard described her reaction as

a whimper. He thought she began to cry when he told her she would be brought to

the Renaissance Home, a detention center for juveniles. He stated that Kenneth

“was the same way. He showed no emotion, even after I told him the baby had

passed. He was just okay.”

Susie told Detective Howard the baby was fine before the “baby went in the

room. All parties indicated the baby was fine before he went in the room.”

Detective Howard testified that Susie told him Defendant and Kenneth were in the

room with Ashtyn.

Detective Howard further testified regarding Defendant’s knowledge of the

events as follows:

A . . . she seemed she didn’t care. She didn’t have any knowledge of
any of the baby’s injuries - the scabs, the bruising, anything. Even
asking her did she hear any noise, she said she was asleep.

....

A . . . The baby was in the room with her, in the bed with her. If
anything was going on, she should have been aware of it. The baby
was crying, screaming - they’re in the same bed you know. It’s kind
of hard for me to believe that she had no knowledge of what was
going on when she was right next to the baby, the victim.

Defendant said she never saw Kenneth or Susie hit or abuse the baby. She

also stated Kalib “never had the baby,” as they did not allow him to “have the

baby.” Defendant indicated it was not possible that the baby fell. Defendant

8

reported she left Ashtyn with Susie that day while she went to the store, and

Ashtyn was fine upon her return. Detective Howard later testified:

Based on all accounts, the baby was fine until the baby went in
the room with Kenneth and Donasty. Donasty was in the bed,
apparently awake when Kenneth came in. According to both their
testimony [sic], I believe Kenneth said she was up and he gave her the
baby. I believe she said she was asleep and he woke her up and gave
her the baby. Both accounts, she received the baby from him. They
were in the bed. If anything happened from that time until the time
they called the paramedics, [it’s] her and Kenneth in the room. I don’t
see how she wouldn’t know what happened.

Detective Howard was further questioned about the bruising as follows:

Q Okay. And Donasty in her conversation with you and her interview
with you indicated that she was not aware of the bruising or she did
not know where the bruising had come from?

A Correct.

Q Where did she say she saw bruising?

A Around - I believe she said the right eye. I believe he said the left
eye. Or vice versa. They both gave the opposite side of the face. But
they both indicated that it was bruising to the face.

Detective Howard indicated Defendant initially said she did not know what

occurred. She then stated she was asleep, Kenneth brought her the baby, and

Kenneth woke her up and told her that Ashtyn was gasping for air or was

unresponsive. Detective Howard then asked Defendant what led to Acadian

Ambulance arriving at the residence. Detective Howard was then questioned

regarding this interaction as follows:

A She said her son stop[ped] breathing.

Q . . . And then you asked how do you know that, is that correct?

A Yes.

Q What was her response?

A She didn’t see his stomach moving.

9

Q Okay. So the truth is she did know that her son was not breathing,
is that correct? Based on her statement?

A Yes, sir.

Q But then you kind of let it go, as good detectives do, and you came
back to it, didn’t you?

A Yes, sir.

Q And her story changed a little bit. You followed back up by asking
about Kenneth being in the shower?

A Correct.

Q And then she gave you a different story about what happened when
he got out of the shower?

A I believe she said that he woke her up and said that the baby was
gasping for air.

Q And then they went and got grandmother who called?

A And she called the paramedics.

Q So she did observe the baby [be]cause she told you that, correct?

A Correct.

Q Because she noticed the baby’s stomach was not moving?

A Correct.

Q You also asked her at that time, in the beginning of the statement,
who was all with her. Do you recall who she said?

....

Q In the room when the baby - she observes the baby’s stomach not
moving?

A Her and Kenneth.

Defendant never asked to stop the interview so that she could go check on

her son. Detective Howard did not recall Defendant asking about the condition of

the baby. However, after the first time Ashtyn coded, Officer Littleton called

10

every few minutes to say the baby coded again and to ask what Defendant wanted

to do. In response to Officer Littleton’s question, Defendant indicated she wanted

life-saving efforts to continue.

Detective Torence Bowens was present during Defendant’s interview with

Detective Howard. He reinforced Detective Howard’s testimony, adding that

Defendant appeared to be “very detached” during the interview. According to

Detective Bowens, Defendant showed a little emotion when she was told the baby

died and a lot of emotion when she was told she would be detained at Renaissance

Home.

Dr. Christopher Tape was accepted as an expert forensic pathologist. He

performed an autopsy on Ashtyn Cohen on January 3, 2017. Dr. Tape opined that

Ashtyn was twenty-seven days old and suffered blunt force trauma to the head.

Externally, there was a contusion to the right cheek that was eight by seven

centimeters. There were hemorrhages in the whites of the eye and the inner eyelid.

The petechial hemorrhages of the eye were a direct result of whatever

caused the cheek injuries. Internally, there was hemorrhaging of the right scalp

and right temporalis muscle. There was also a left scalp hemorrhage. There was a

traumatic brain injury and a subdural hemorrhage, between the dura and the brain,

on both sides. There were also subarachnoid hemorrhages in the area of the

bridging veins, veins between the dura and the brain, that were broken due to

shearing forces, most typically due to acceleration/deceleration. Dr. Tape

described shearing forces as “kind of side to side.” The corpus clausum, a piece of

tissue about half a centimeter wide that connects the two hemispheres of the brain,

was torn. Dr. Tape opined that injury may have also been the result of shearing

forces, swelling, or from being connected to a respirator. Dr. Tape examined the

11

baby’s eyes and found hemorrhages in the retina and the optic nerve. Dr. Tape

believed this was caused by brain swelling.

There were blunt force injuries to the external body. There were contusions

to the left upper chest, left lower chest, right abdomen, and right lower back.

There were also multiple healing lacerations with scabs on the back and multiple

healing lacerations where the scabs had been recently removed.

Dr. Tape found injuries to the muscles next to the vertebrae. The eleventh

rib on the back side was fractured very close to “where it comes to the vertebrae.”

There was a hemorrhage and a contusion to the middle portion of the right lung, a

contusion or hemorrhage to the diaphragm, and a liver contusion and laceration

that extended into the parenchyma. There was also hemorrhaging around the right

kidney and the right adrenal, which was probably due to the liver laceration. There

was a hemorrhage or bruise on the surface of the esophagus. There was also a

hemorrhage to the right hip area, which included “internal injuries along the soft

tissue and is actually tracking down into the scrotum.” The injuries were the result

of blunt force trauma. Dr. Tape testified there were 200 cubic centimeters (cc) of

blood in the abdominal cavity and another 200 cc in the right thoracic cavity. Dr.

Tape indicated that was a significant amount of blood.

Dr. Tape was then questioned as follows:

Q Okay. Now, the liver and the other injuries that you are talking
about - was this a one time or ongoing type of injuries [sic] that you
observed during your autopsy?

A These are all roughly the same age. And this child isn’t very old,
obviously. But there are so many injuries - you can’t have an injury
to the head and the body. I can take my hand and make a big injury
on the body and cover say the liver and the lung and that sort of thing.
But I can’t cover the head as well. So it would have to be some sort
of separate injury.

12

Q The injuries that was [sic] done to this baby with the liver, would
that be within hours or days? Or how long?

A One of the things I did in this case, and very typically in a case like
this, is I take multiple - make multiple microscopic slides in multiple
places of where the injuries are. And what you can see is when you
first get injured, you’ve got fresh red blood cells and then they
become broken down or laced. And then you sort of get acute
inflammation and you get chronic inflammation. So we have in these
injuries anywhere from acute injuries with just intact red blood cells
to sort of a little bit of acute and chronic inflammation. So we’re
talking days old. Maybe three days to five days, give or take on the
liver and the head injury. They’re not weeks old. But I can’t rule out
that they were separate. You know, it could have been three days and
five days. Because those are overlapping ranges, obviously.

Dr. Tape stated that he gave his opinion in an autopsy report ten percent of the time

and did so in this case to support his conclusion that the death of the baby was a

homicide. He read his opinion:

[T]he injuries are acute - which I believe many approximately days
old. Although there are injuries involving the liver, it suggests healing
as well as the scabs on the back which are both more remote. I want
to add to that, I think the subdural hemorrhage is also probably days
old as well.

....

And then I say, . . . a 27 day old infant cannot move extensively
on its own and therefore any injuries are either due to accident or
intentionally inflicted or both. Given the multiple locations of injuries,
including the head and abdomen, and the severity of the injuries
including a liver laceration and brain injury, as well as different
healing injuries, implying multiple events, the most likely cause of
these is intentional infliction, non-accidental trauma . . . . For these
reasons the manner of death of homicide is most appropriate.

He could not determine the order in which the injuries occurred or what caused

them.

Dr. Tape further testified as follows:

There’s bruises on either side of the cheek. So, for instance, if you hit
a child really hard with an open fist, that would shake the head and the
brain and make the shearing injuries. If you took a child and you
slammed them against the bassinet, that would make injuries. One of

13

the things is that some of the injuries internally can be caused by
things that don’t leave injuries externally.

....

Babies are pretty pliable. For instance, I think what you’re
getting at - if I punched a baby in the stomach, I can maybe rupture a
kidney or a liver and maybe there might not even be a mark on the
external or maybe it doesn’t form right away. But the - you know, the
kid died before it forms, in other words.

....

. . . [Babies are] very vulnerable actually. But their skin makes
it so injuries don’t always show up. Sometimes it’s a surprise when
you have a baby, there’s no external injuries and then there’s a
subdural. That’s not the case here. There’s a subdural external injuries
[sic], rib fracture and internal injuries.

The injuries to the liver were not consistent with CPR. Dr. Tape further described

the causes of blunt force trauma as follows:

Well again, there’s nothing on the body that specifically tells
me. But there’s a number of things that make common sense. You
can [use] a fist. You can use an open hand. You can use an elbow.
You can use a knee so you can punch somebody in the stomach and
rupture the liver. You could hit somebody in the back and fracture the
rib and injure the liver perhaps. You could slap somebody on the side
of the head and cause the bruise, the petechial hemorrhages and the
brain injuries. Infants, I believe, get slammed against bassinets. I
have to mention shaking since you’re going down that path. In my
opinion you can shake a human infant to death. What’s called shaken
infant is probably more than that usually. . . . But a shaking could
explain brain injuries but it wouldn’t explain the liver injury, for
instance, or the rib fracture typically.

Dr. Tape was asked if shaking could explain the acceleration/deceleration brain

injury he referred to. He responded:

So the brain is kind of free floating there. And if it moves enough it’s
going to break those bridging veins and that starts a bleed. And that’s
your subdural hemorrhage which eventually kills you. . . . Shaking is a
blunt force injury; it’s an acceleration/deceleration.

14

Dr. Tape indicated a baby sustaining such injuries would feel pain and

typically cry. There would be inflammation, so the baby would feel and look sick.

If there were just internal injuries, a parent might not know and think the child was

fussy. A layperson would detect external injuries when bathing and dressing the

child and changing his diapers. Dr. Tape thought it would be hard to miss the

injuries.

The rib fracture was “[w]ithin days old.” Assuming the liver injury was in

place, the baby “would probably not want to eat at all. It would probably be

shutting down the whole digestive tract would be my guess.” Dr. Tape believed

Ashtyn died as a result of the combination of his injuries.

Dr. Olga Zand worked in pediatric intensive care. She was called to the

emergency room on January 2, 2017, because a newborn baby had been intubated,

was in respiratory failure, and had no pulse. She explained the measures employed

to save Ashtyn’s life. Dr. Zand indicated that a specialist took pictures of the back

of Ashtyn’s eyes, and retinal hemorrhage was observed. She stated that was

consistent with “inflicted child injury.” She reached out to the parents, through

police, and informed them that attempts to save the child’s life were futile. Dr.

Zand recommended stopping those efforts. Once Dr. Zand saw the retinal pictures

and blood work, she again reached out to the parents and said there was a pulse,

but if the child went back into cardiac arrest, he could never be the same. She

worked on Ashtyn for three hours and fifteen minutes. He was actively bagged

throughout his stay in the pediatric intensive care. She noted multiple bruises to

the back, the right cheekbone, and the left temporal region under the eye. Ashtyn

also had scratches on his back and “bruising anteriorly.” Nurses took photographs

15

of the injuries. Dr. Zand believed that a very significant event would have had to

occur for Ashtyn to have gone into cardiac arrest.

Karen Hall testified that her nephew is Kenneth Anderson, the baby’s father,

and that Defendant and Kenneth lived at the home of Karen’s mother. Karen

testified that she visited her mother’s home on January 1, 2017, at approximately

11:00 or 12:00. During that time, she held Ashtyn, and he started crying. She then

stated, “Not really crying, just yelling” and “squalling.” Karen testified that she

told Kenneth something was wrong with Ashtyn and handed the baby back to

Kenneth. When she handed the baby over, the baby “kind of like jerked.” She

further stated, “[l]ike shivering.” She did not see any bruises on the baby.

However, he was clothed at that time.

Susie Willis testified that Kenneth is her grandson.3 Defendant moved into

Susie’s home approximately a week before Thanksgiving, while Defendant was

pregnant. Defendant gave birth in December and brought Ashtyn to Susie’s house.

Although Susie was retired, she did not babysit, feed, bathe, or change Ashtyn, and

denied bruising the baby. Susie indicated Defendant took care of Ashtyn, bathing

and dressing him. She saw Kenneth change the baby’s diapers and feed him, but

she never saw Kenneth bathe or dress the baby. Susie stated Ashtyn did not cry a

lot and “seemed to be a pretty good baby.” She further stated Ashtyn did not seem

sick.

Susie was asked about Friday at the end of December.4 She indicated that

Kenneth went out and did not get back until Saturday at noon. During that time,

3
Susie referred to Kenneth by his middle name Wayne during her testimony.
4
The parties did not give dates for the days they discussed. After reviewing the bill of
information and consulting a calendar for the months of December 2016 and January 2017, we

16

Ashtyn cried, and Defendant asked Susie if she would take him for a while. Susie

played with Ashtyn, and he eventually calmed down. Defendant returned for the

baby about ten minutes later. Defendant “went back into the room and I didn’t see

the baby anymore.”

Susie further testified that after Kenneth got back Saturday, Defendant and

Kenneth bickered on and off. He went outside to play ball, and the arguing

resumed when he went back inside, and he left and then returned again. During the

arguments, Defendant and Kenneth were in the bedroom with Ashtyn. Susie stated

they argued about Kenneth being out all night. At approximately 5:00 p.m., Susie

asked what was wrong, and Kenneth said, “nothing.” Kenneth was subsequently

walking around the house really fast, and Susie told him that if he kept it up he

could have a seizure. Seconds later, Kenneth had a seizure. He was transported to

the hospital by ambulance at approximately 5:30 p.m. and returned home at almost

11:00 p.m. Susie testified that Kenneth had previously suffered a head injury

while playing basketball, began having seizures, and was placed on medication.

Kenneth was put back on a full dose of his medication after his seizure, and Susie

indicated Kenneth went to sleep when he returned home. While Kenneth was at

the hospital, only Defendant and the baby were left at home.

After Susie returned from the hospital, she went to church. She got back

home around 2:00 a.m. on January 1, 2017. She then went to bed because she had

to get up at 9:00 a.m. for Sunday school. Kenneth and Defendant were in bed

asleep at that time, and Ashtyn was sleeping in his bassinet. Susie and Kalib

returned to church Sunday and were there from 9:45 a.m. until 1:00 p.m. Susie’s

assume the testimony refers to Friday, December 30, 2016; Saturday, December 31, 2016;
Sunday, January 1, 2017, and Monday, January 2, 2017.

17

daughter, Karen, went to Susie’s home after church to eat. Karen held Ashtyn and

told Susie that something was wrong with the baby. Karen was at Susie’s home

until 8:00 p.m. Sometime later, Susie went to bed. She was awakened by Kenneth

asking her to call an ambulance because Ashtyn was not breathing. Susie gave

Kenneth the instructions relayed by the 911 operator, and he followed them.

During that time, Defendant was standing in the doorway of her bedroom talking

on the phone and texting. Defendant never assisted Ashtyn. Susie did not see any

bruises on Ashtyn at that time. Kenneth did not put his hand in Ashtyn’s face

while Susie was instructing him, as she watched what he was doing. Kenneth used

two fingers to pump the baby’s chest. Ashtyn was clothed, and Kenneth did not

remove the clothing. The baby had milk in his throat, and Kenneth tried to clear

his airway.

When the ambulance arrived, paramedics came into the house, and Ashtyn

was taken from Kenneth and brought outside. Kenneth went outside after the

paramedics, and Defendant later followed. Police subsequently brought all four of

them to the police department. Susie and Kalib left from there at 9:00 a.m.

When asked if she saw Defendant use wipes on the baby, Susie indicted that

she saw Defendant with a blanket that she went into the bathroom to wet. Susie

did not know what Defendant used this blanket for.

Susie had no relationship with Defendant. Defendant did not speak to her.

When asked how often she saw Defendant in a twenty-four-hour period, Susie

said, “None.” Susie then testified that she might have seen Defendant twice a day

because Defendant would go to the bathroom. Most of the time, Defendant stayed

in her room. However, Kenneth was active and went outside. Susie never saw

Kenneth or Defendant strike Ashtyn.

18

Kalib testified that Kenneth did not come home Friday night, but he, Susie,

Defendant, and Ashtyn were home. Ashtyn was in the room with Defendant.

Defendant spoke to Kalib once Friday night, asking where Kenneth was.

Defendant then returned to her bedroom. Kalib was home Saturday until “[f]ive

something,” which was after Kenneth had a seizure. He left for an hour.

Defendant did not leave the bedroom after he returned home. Kalib then went to

church with his grandmother and returned home Sunday morning. Sunday

evening, he saw Kenneth walking around, and Defendant was in the bedroom with

Ashtyn.

Kalib’s grandmother woke him up saying she needed help calling an

ambulance. Kenneth tried to save the baby after that call by doing CPR. Kalib

testified Kenneth was crying, and Defendant was standing in the bedroom door on

the phone. She was also crying.

Kalib never babysat, fed, or changed Ashtyn. Kalib testified that Kenneth

sometimes cared for Ashtyn, feeding and changing his diapers. However,

Defendant took care of Ashtyn most of the time. Kalib did not see Kenneth do

anything else for the baby. Kalib indicated Susie sometimes watched Ashtyn.

Defendant argues that the State failed to prove she committed acts of gross

negligence that constituted cruelty to a juvenile and resulted in Ashtyn’s death, nor

did the State prove she was a principal to the acts of Kenneth or anyone else.

Defendant contends she has no explanation for the injuries and did not attempt to

conceal them. Additionally, she argues that she was not the only person with the

opportunity to inflict the injuries Ashtyn sustained. Furthermore, there was no

evidence that she stood by and watched her child be beaten by a family member.

Defendant argues it is a reasonable hypothesis that Kenneth, Kalib, or Susie hurt

19

the baby without her knowledge, and, due to her immaturity and inexperience with

children, she did not see the signs of abuse. Defendant contends the evidence is

insufficient to sustain a conviction for manslaughter or a conviction as a principal

to manslaughter. Defendant avers that, at most, she may be guilty of negligent

homicide. She requests that her conviction be reversed for these reasons.

Cruelty to a juvenile is set forth in La.R.S. 14:93 and is defined as: “The

intentional or criminally negligent mistreatment or neglect by anyone seventeen

years of age or older of any child under the age of seventeen whereby unjustifiable

pain or suffering is caused to said child. Lack of knowledge of the child’s age

shall not be a defense[.]” Defendant was sixteen years old at the time of the

offense. Thus, La.R.S. 14:93 does not apply to Defendant.

We will now address Defendant’s claim regarding sufficiency of the

evidence to support her conviction for manslaughter. In State v. Thornton, 47,598

(La.App. 2 Cir. 3/13/13), 111 So.3d 1130, the defendant was convicted of second

degree murder in the death of his three-month-old son. The child died as the result

of a skull fracture caused by the defendant. On appeal, the defendant argued that

he should have been found guilty of manslaughter. The second circuit noted the

defendant informed police that he injured the child in order to hurt the child’s

mother, Ursula, who was his girlfriend. The defendant was angry because Ursula

did not inform him she was going to stay out all night, he did not approve of who

she was hanging out with, and he suspected she was cheating on him. The second

circuit addressed provocation sufficient for manslaughter as follows:

[T]he measure of the “provocation sufficient to deprive an average
person of his self-control” cannot be met by reference to the crying
and discomfort of an innocent victim only three months old. The
average person understands that no anger, much less anger
accompanied by force and harm, is a reasonable response to an infant.

20

With provocation totally irrelevant as an adult response in such
instance, Thornton’s asserted provocation by Ursula can likewise not
be transferred so as to make in any manner his violence against the
child less culpable. There is no reasonable correlation providing a
degree of justification between TJ’s crying, the defendant’s anger over
Ursula’s petty and vengeful acts, and the brutality that Thornton
showed his own son.

Thornton failed to prove, by a preponderance of the evidence,
that circumstances existed such that he was so provoked by sudden
passion or heat of blood that he was deprived of an average person’s
self-control and cool reflection. State v. Logan, [45,136 (La.App. 2
Cir. 4/14/10), 34 So.3d 528, writ denied, 10-1099 (La. 11/5/10), 50
So.3d 812]. Thus, the evidence was sufficient to support a conviction
for second degree murder.

Id. at 1136-37.

Based on the ruling in Thornton, we conclude that the evidence does not

support the verdict returned by the jury, and the jury’s verdict may have been a

compromise verdict.

A jury has the prerogative to compromise and render a lesser verdict
whenever it could have convicted as charged. State ex rel. Elaire v.
Blackburn, 424 So.2d 246 (La.1982), cert. denied, 461 U.S. 959, 103
S.Ct. 2432, 77 L.Ed.2d 1318 (1983). A compromise verdict is a
verdict which does not “fit” the evidence, but which the jurors deemed
to be fair. Id. Where a defendant fails to interpose a timely objection
to a legislatively provided responsive verdict which is not also a lesser
and included offense of the crime charged, a conviction will not be
reversed if such a verdict is returned, regardless of whether the verdict
is supported by the evidence, as long as the evidence is sufficient to
support the offense charged. Id. . . . It would be unfair to permit the
defendant to have the advantage of the possibility that a lesser
“compromise verdict” will be returned and then to raise the complaint
for the first time on appeal. Id.

State v. Stafford, 17-714, p. 21 (La.App. 3 Cir. 3/7/18), 241 So.3d 1060, 1075.

The indictment in this case charged Defendant with second degree murder, a

violation of La.R.S. 14:30.1(A)(1), which provides that second degree murder is

the killing of a human being “[w]hen the offender has a specific intent to kill or to

inflict great bodily harm[.]” Specific criminal intent is defined as “that state of

21

mind which exists when the circumstances indicate that the offender actively

desired the prescribed criminal consequences to follow his act or failure to act.”

La.R.S. 14:10(1). Because it is a state of mind, specific intent need not be proven

as a fact, but may be inferred from the circumstances and the defendant’s actions.

It may also be inferred from “‘the extent and severity of the victim’s injuries.’”

State v. Julien, 13-1327, p. 13 (La.App. 3 Cir. 5/21/14), 139 So.3d 1152, 1160, writ

denied, 14-1406 (La. 5/15/15), 169 So.3d 383 (quoting State v. Patterson, 10-415,

p. 11 (La.App. 5 Cir. 1/11/11), 63 So.3d 140, 148, writ denied, 11-338 (La.

6/17/11), 63 So.3d 1037).

The pertinent question in this case is who inflicted the injuries that caused

Ashtyn’s death. In Julien, 139 So.3d 1152, the two-and-a-half month old infant

was transported to the hospital by paramedics after his father, the defendant, called

911 because the baby had become unresponsive. At the hospital, it was determined

that the baby had a skull fracture which caused a subdural hemorrhage and twenty-

five fractures on fourteen of his ribs. Dr. Tape determined the rib fractures were

two weeks old, and the skull fracture occurred three to ten days prior to the baby’s

death.

Testimony in Julien indicated that the defendant lived in a one-bedroom

apartment with Natasha Daniels, his girlfriend and the baby’s mother; Daniels’

three children; the baby; a friend; the friend’s boyfriend; and the friend’s two

young children. On June 6, 2011, the baby’s mother worked from 11:00 a.m. to

5:00 p.m. After Daniels got home from work, she fed the baby and did not see any

bruising on his body or see him wince as if he was in pain. The defendant and

Daniels horseplayed while she was holding the baby, but he was not injured at that

time. Daniels subsequently left with the friend who lived in the apartment. At

22

approximately 10:22 p.m., Daniels received a call from the hospital regarding the

baby.

The defendant in Julien gave Daniels conflicting versions of what happened

to the baby. However, she never saw the defendant harm the baby. Daniels

indicated that other than a few hours spent with each of her two sisters, only she

and the defendant took care of the baby. Daniels further indicated that the baby

stayed with the defendant’s mother for several days approximately two weeks

before his death. The defendant told police the baby had rolled off the bed and

may have hit his head on a board that was between the wall and the bed. The

defendant stated he knew no one who had hurt the baby and denied that Daniels or

anyone else in the apartment had harmed the baby. The defendant also adamantly

denied harming his son.

This court found:

Defendant is correct in that the only evidence given at trial to
establish the offense of second degree murder was the fact that he was
the primary caregiver and that the child was in his care the day of the
discovery of the injuries, which does not establish the necessary
element of specific intent to kill or inflict injury or unjustifiable pain
or suffering. However, the baby’s injuries themselves, could exhibit,
at the very least, Defendant’s specific intent to inflict great harm upon
him.

....

In the current case, Defendant postulated that the skull fracture
occurred when the baby rolled off a bed eighteen inches from the floor
and hit his head on a board. He also stated that the baby could have hit
his head on a ceramic mug when, as he sat on the bed, he dropped the
baby “playfully.” The jury did not find these explanations for the
baby’s injuries credible, and we will not second-guess that credibility
determination. See Lambert, 720 So.2d 724.

....

In the current case, Defendant testified that he was the babies’
[sic] primary caregiver, particularly after he lost his job from Wal–

23

Mart in May. He stated that other than one night at his mother’s
house, the only other person to care for the child was Ms. Daniels’
sister, who took care of the baby for several days. Ms. Daniels’
testimony was that each of her sisters had only spent a few hours with
the baby. Prior to the baby’s May visit to the hospital, there was
testimony that the baby had a loud cry. Ms. Daniels testified that after
the baby was discharged from the hospital in May, his cry was very
low and hard to hear. However, while Dr. Tape stated that rib injuries
could have caused the baby to have a weak cry, no rib injuries were
detected when the baby was admitted to the hospital in May.

We conclude that the evidence was sufficient to exclude any
reasonable hypothesis of innocence that anyone other than Defendant
inflicted the injury which resulted in the baby’s death.

Julien, 139 So.3d at 1160-61. This court went on to affirm the defendant’s

conviction. The skull fracture occurred three to ten days prior to the baby’s death.

However, testimony regarding the acts of the people living in the apartment

focused on the day the baby was transported to the hospital.

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

denied, 15-2191 (La. 5/2/16), 206 So.3d 877, a two-year old died as the result of a

transecting duodenal perforation after being cared for by the defendant, the

mother’s boyfriend. According to the child’s mother, Latricia Hunt, the night

before the child was brought to the hospital he felt as though he had a fever, had

abdominal pain, and had vomited. He slept with his mother and awoke around

9:00 a.m. but would not eat. Around 10:30 a.m., the child was nonresponsive and

limp. The mother’s cousin brought them to the hospital. Two blocks from the

hospital, the mother noticed the child was not breathing.

In Jackson, Dr. Tape found rib fractures that were one to three weeks old

and others that were three to six weeks old. Dr. Tape opined that the duodenal

perforation likely occurred at least twenty-four hours prior to death, and the child

was dead for perhaps a few hours before being brought to the hospital.

24

This court in Jackson addressed the matter stating: “The unrebutted

testimony and evidence, which is not challenged by the defendant, clearly indicates

that Derrion died as a result of cruelty to a juvenile and that there were only two

people who could have possibly committed that offense: [The d]efendant and Ms.

Hunt.” Id. at 766. This court set out the following timeline in its opinion:

Summer 2011 . . . . [the d]efendant and Ms. Hunt began dating and
living together on and off.

August 5, 2011 . . . . Derrion was brought to the hospital. He
complained of stomach and rib pain. Ms. Hunt gave a history of
Derrion being accidentally hit by a swing while in the care of [the
d]efendant. According to the medical records and testimony of Dr.
Howes, the chest x-ray did not show broken ribs.

October 7, 2011 . . . . Derrion was brought to the hospital for a burn
to his right hand (2nd degree burn) which happened on October 4,
2011. History from mother said it was a hot grease burn. The chest x-
ray did not show any broken ribs.

November 7 to December 12, 2011 . . . . Dr. Tape testified that
Derrion’s rib fractures occurred from one to six weeks from the date
of his death.

December 8, 2011 . . . . Ms. Sam [Derrion’s aunt] testified that
Derrion had a bruise on his forehead and scratches on his face.
Derrion said that [the d]efendant hit him, but Ms. Hunt testified that
[the d]efendant said Derrion hit his head on the wall.

December 18, 2011:

Morning . . . . According to Ms. Hunt, [the d]efendant arrives at
home.

11:42 a.m. . . . . According to Dr. Tape and the autopsy report, the
best estimate of when the injury occurred to the duodenum (twenty-
four hours before Derrion was pronounced dead at 11:42 a.m.). Both
[the d]efendant and Ms. Hunt could have been present.

3:00 or 4:00 p.m. . . . . According to Ms. Hunt, she goes to work.

4:30 p.m. . . . . According to [the d]efendant’s mother, she dropped
off [the d]efendant at Ms. Hunt’s home.

10:20 p.m. . . . . Ms. Hunt returns to her home.

25

December 19, 2011:

1:42 a.m. . . . . Dr. Tape admitted the injury could have occurred this
late (ten hours before Derrion was pronounced dead at 11:42 a.m.).
Both [the d]efendant and Ms. Hunt were with Derrion.

1:42 a.m. to 3:42 a.m. . . . . According to Dr. Fruge, the earliest the
injury occurred (eight to ten hours before Derrion was pronounced
dead at 11:42 a.m.). Both [the d]efendant and Ms. Hunt were with
Derrion.

5:42 a.m. to 6:42 a.m. . . . . According to Dr. Fruge, the best estimate
of when the injury occurred (five to six hours before Derrion was
pronounced dead at 11:42 a.m.). Both [the d]efendant and Ms. Hunt
were with Derrion.

5:04 a.m. to 9:04 a.m. . . . . Dr. Tape estimates Derrion died based
upon his body temperature taken upon arrival at the hospital, 11:04
a.m. (two to five hours before it was taken).

9:00 a.m. . . . . [the d]efendant leaves Ms. Hunt’s home.

9:00 a.m. to 11:00 a.m. . . . . Ms. Hunt and Tiffany [Ms. Hunt’s
cousin] testified Derrion was still responsive.

11:04 a.m. . . . . Ms. Hunt arrives at the hospital with Derrion, DOA
(dead on arrival), according to the medical records. Derrion’s body
temperature is 93.3 degrees Fahrenheit.

11:42 a.m. . . . Derrion is pronounced dead.

Id. at 767-68.

In Jackson, this court concluded:

According to the unrebutted testimony of the experts, the
timeline shows that [the d]efendant was present during all the times
when the injury likely occurred. Although the evidence indicates Ms.
Hunt was more than likely present when the trauma occurred, no
evidence was presented to prove Ms. Hunt committed the abuse.
Thus, we find that the jury obviously and reasonably rejected any
hypothesis of innocence based on Ms. Hunt having committed the
crime.

Id. at 768. The court further found:

In applying the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct.
2781 (1979)] standard when the conviction is based on circumstantial

26

evidence, we find that the evidence admitted at trial clearly and
strongly indicates that [the d]efendant was the perpetrator. As noted
above, [the d]efendant and Ms. Hunt were the only possible people
who could have committed the offense. No evidence was presented to
show that Ms. Hunt was the abuser. Additionally, there was
unrebutted testimony that on at least three other occasions when the
child was in the care of [the d]efendant, the child was injured.
Moreover, the unrebutted testimony of the experts indicates that [the
d]efendant was present at the time when the injury occurred. Thus,
after viewing all of the evidence in a light most favorable to the
prosecution, we find it is sufficiently reasonable that a rational juror
could have found proof of guilt beyond a reasonable doubt. Therefore,
we affirm [the d]efendant’s conviction.

Id. at 770. Jackson is similar to the case at bar in that the two caregivers were

most likely present when the child was injured. However, it is distinguishable

from the case at bar in that there was testimony regarding three other occasions

when the child therein was injured while in the care of the defendant.

In State v. Strother, 09-110 (La.App. 3 Cir. 10/7/09), 19 So.3d 598, aff’d in

part, reversed in part, 09-2357 (La. 10/22/10), 49 So.3d 372, the defendant, who

was the boyfriend of the child’s mother, was convicted of attempted second degree

cruelty to juveniles and cruelty to juveniles. This court reversed the defendant’s

conviction for attempted second degree cruelty to juveniles on the ground that the

state failed to present sufficient evidence to support that verdict or a verdict for any

other possible lesser and included offense. On review, the supreme court discussed

the evidence as follows:

The evidence at trial established that on the afternoon of
February 2, 2007, Effie LeBleu, a 26–year–old mother of several
children, two of whom lived with her at home, appeared at the Cabrini
Hospital in Glenmora, Louisiana, with her eight-month-old daughter.
According to Vanessa Barnes, a registered nurse on duty in the
emergency room that day, the baby was covered with bruises, in pain,
and “just very unsettled, very distressed.” The child was so unsettled,
and remained that way for “hours,” that Barnes was unable to lift or
hold her in her arms. She just “kind of cradled her in a sheet and never
actually grabbed her.” The baby was admitted, and on the following
day, Dr. Amarjit Nijjar examined her in the hospital’s emergency

27

room and determined that, in effect, she had been battered from head
to toe. Dr. Nijjar testified that the baby “had multiple bruising on the
face, on the head, on the right side of the face, on the left side of the
jaw, back of the neck, both ears were all red and swollen up.” The
baby’s upper lip was swollen and bruising extended from the right
side of her body across her abdomen and over both buttocks and down
both thighs to her calves. The bruises appeared of different ages. They
were bilateral, and they were “all over,” an unmistakable sign, in the
doctor’s opinion, of deliberate and systematic abuse. The doctor
detected a hematoma under the muscle in the baby’s hip area and
noticed that the child had difficulty moving her left arm, which also
displayed significant bruising. An x-ray determined that the humerus
bone of her left arm appeared fractured at the elbow. The x-ray also
revealed evidence of an older fracture at the same point. Dr. Nijjar
testified that he became so upset by the appearance of the eight-
month-old child that he had to step outside of the examination room to
gather himself.

In the opinion of Dr. Mark Dodson, an orthopedic surgeon who
also examined the baby on February 3, 2007, the x-ray of the child’s
elbow revealed a relatively new fracture, which had probably occurred
within the prior three days, and displayed signs of an older fracture in
the same area occurring anywhere from two to four weeks before he
examined the child. The orthopedist testified that the fractures, new
and old, of the baby’s elbow would not have been caused by a toddler
falling as she attempted to walk but by “a twisting injury or a fall from
a height.”

The child’s mother testified at trial and described for jurors the
events prompting the hospital visit on February 2, 2007. Effie LeBleu
testified that at the time of the injury she was living in a trailer owned
by defendant’s mother with defendant and two of her children. In the
early morning hours of February 2, 2007, she awoke to the sound of
her eight-month-old daughter crying. She testified that defendant
would not let her out of bed because her children “were very, very
spoiled to me, and he didn’t like the idea that my kids were spoiled.”
Defendant got up instead and took the child into the laundry area to
change her. Ms. LeBleu then heard a “boom boom” sound. When he
returned with the child, defendant explained that the baby had
“wiggled” away from him. At that time, she did not question the
explanation because the child could not walk and often wiggled or
squirmed when she moved. The baby stopped crying when defendant
put the child down on the mattress but the child wiggled off her
bedding after losing her pacifier. Defendant responded by grabbing a
belt. According to LeBleu, when she implored defendant not to hit her
daughter, he replied, “I wasn’t going to, I was just thinking about it,”
and he hit her instead on her hand underneath a blanket.

28

Later in the morning, at approximately 7:00 a.m., Ms. LeBleu
woke up and noticed bruises on the baby’s leg. However, she did not
notice any impairment of the child’s left arm. When asked why she
did not immediately summon help for her baby, Ms. LeBleu explained
that she did not have a phone, and defendant carefully monitored her
telephone calls on his own phone. He otherwise kept her isolated from
family and friends with the help of his own mother who lived nearby.
Instead of reporting the problem immediately, Ms. LeBleu went
shopping for diapers with defendant and her daughter, and after they
returned home, defendant went fishing for the day. Ms. LeBleu seized
on the opportunity to seek a neighbor’s help. Thereafter, she contacted
the Glenmora Police, and they called Cabrini Hospital. Ms. LeBleu
then brought her baby to the hospital that afternoon at approximately
2:00 p.m., and the child was admitted immediately.

Ms. LeBleu informed jurors that defendant had struck her
daughter on the hand with a fly swatter when she cried, that he could
not stand the baby crying, and that he would “whip” the child for
crying. Defendant had also hit Ms. Lebleu with a belt in the past. She
further acknowledged that she had given birth to six children
beginning at age 15 and that she had lost them all in one fashion or
another, in part because social services became involved in her life
virtually at the outset of her child bearing years after she moved out of
her parents home and became pregnant with her first child when she
was 14 years old. Ms. LeBleu explained that her first child died of
SIDS, although the death certificate listed the cause as undetermined.
She gave up her next two children to her sister to forestall social
services from removing them from the family altogether. Her fourth
child resided elsewhere in Louisiana with his father, and her fifth
child, a son, and sixth, her daughter and victim in the present case,
were removed from the trailer home she shared with defendant
following the incident on February 2, 2007. The children were
subsequently adopted. Ms. LeBleu testified that the children were
removed from the home because she had failed to contact the
authorities for several hours after noticing the bruises on her
daughter’s legs, and she denied abusing either of them.

....

Defendant did not testify at trial but in a statement to the police
following his arrest, he related that he had been living with Effie
LeBleu and two of her children in the trailer for approximately six
months. He had moved in three days after meeting Ms. LeBleu.
Defendant told the police that when the baby began crying in the early
morning hours of February 2, 2007, Ms. LeBleu would not wake up,
and so he got up to change the child. He took her into a hallway which
served as a laundry area and put her on the washing machine. After he
changed her and began pulling up her pants, she “jumped” out of his

29

hands and fell face first into the control panel of the dryer next to the
washing machine. Defendant denied that the baby fell to the floor but
told the police that he noticed bruises on her face after he brought her
back from the laundry area and placed her on a mattress. In his
opinion, Effie LeBleu had spoiled her children, and defendant
acknowledged that he became the disciplinarian in the family for both
the baby and her three-year-old brother and that he had once struck
the baby with a fly swatter. Defendant further acknowledged that he
had never seen Ms. LeBleu abuse the children, but he also stated that
he did not spend that much time in the trailer.

Defendant also gave a statement to Ray Cooper, a child
protection investigator for the Office of Community Services.
According to Cooper, defendant informed him that when he awoke to
the sound of the baby crying, and Ms. LeBleu would not wake up, he
picked up the child despite a bad back which had placed him on
disability, and, “as he’s going into the washroom he dropped her.”
“That was his statement,” Cooper recalled, “the child jumped out of
his hands.”

Defendant’s parents testified in his defense. Both Jimmy and
Fay Strother saw defendant, Effie LeBleu, and the two children when
they were buying diapers on the morning of February 2, 2007.
Although defendant and Ms. LeBleu stated that the baby was bruised
at that time, defendant’s parents denied seeing any bruises. Jimmy
Strother further testified that Ms. LeBleu improperly pulled the baby
out of her carriage by grasping only one arm, “and that wasn’t the
proper way to do a child, a baby.” For her part, Fay Strother claimed
that it was Effie LeBleu, not defendant, who used a belt and fly
swatter on the baby. Mrs. Strother also testified that she saw Ms.
LeBleu throw the baby on the couch, causing the child to fall off and
hit her head on the floor, giving rise to knots on her forehead.
Although Mrs. Strother testified that she never saw defendant hit the
baby, when asked whether she would be shocked to hear that he hit
the baby with a fly swatter, she stated, “not really.” She also admitted
that she had seen defendant “pat” the baby on her bottom, but denied
that he whipped the child.

Strother, 49 So.3d at 374-76.

In Strother, the state charged that the second degree cruelty to juveniles was

committed on or about February 2, 2007, the day the defendant was alone with the

victim changing her diaper. The only issue at trial was which one of the two adults

living in the trailer committed the abuse. Defense counsel argued that LeBleu

30

caused the victim’s injuries during the few hours she spent alone with her children

before taking the victim to the hospital after the defendant left on his fishing trip

and they had been seen by the Strothers shopping. The possibility that the abuse

occurred during those hours was bolstered by LeBleu’s testimony that the victim

stopped crying and went back to sleep after the diaper-changing incident, yet

appeared distressed when they arrived at the hospital shortly after 2:00 p.m. that

afternoon.

The supreme court noted that this court found the state did not prove beyond

a reasonable doubt that the defendant, as opposed to LeBleu, had fractured the

victim’s arm. This court further noted there was no testimony indicating the

defendant was alone with the victim when the injury to her arm occurred, and there

was minimal testimony or other evidence given regarding acts committed

intentionally or negligently by the defendant that would have resulted in the injury

to the victim’s arm. The supreme court stated the only evidence that the defendant

could have caused the injury came from the testimony of Cooper regarding the

defendant’s statement that he had dropped the baby on the way to the laundry area.

This court dismissed that testimony as a “second-hand report.” Jackson, 19 So.3d

at 608. While LeBleu testified she heard a boom in the laundry area, she only

noticed bruises and did not report any impairment of the victim’s arm. This court

did not find that the defendant refused to seek medical attention for the victim’s

injured arm because there was no evidence which established that he was aware of

the injury. The supreme court addressed the case as follows:

In the present case, and in a decision seemingly at odds with
itself, the court of appeal found that jurors rationally and reasonably
rejected defendant’s hypothesis of innocence, that Effie LeBleu
inflicted numerous and varied injuries on her own daughter, as
reflected by the extensive bruising all over her body, when it found

31

him guilty on the count charging cruelty to juveniles, but acted
irrationally when it rejected defendant’s same hypothesis of innocence
offered on the count charging him with second degree cruelty to
juveniles involving the specific trauma which fractured the child’s
arm at the elbow. However, to reach that result with respect to the
more serious charge of second degree cruelty to juveniles, the court of
appeal had to reverse perspectives and view the evidence in a light
most favorable not to the state, but to the defendant. Thus, its
observation that “[w]hile the diaper-changing incident occurred within
the time frame of when the doctors theorized the injury occurred,
Defendant’s account of what happened did not indicate an injury to
the baby’s arm occurred at that time,” Strother, 09-0110 at 7, 19 So.3d
at 603, simply acknowledged that there was no direct evidence that he
caused the injury at that time, just as there was virtually no direct
evidence, apart from Effie LeBleu’s testimony, and defendant’s
statement, about his use of a fly swatter on at least one occasion, that
he had also caused the bilateral bruising of the child from head to toe
over the extended period of time alleged in count two of the bill of
information, although the jury held him fully accountable for that
conduct in a verdict affirmed by the court of appeal.

However, viewing the evidence from the correct, pro-
prosecution perspective, Judge Amy, dissenting, observed that “the
jury could have found this [statement about the diaper change]
inconsistent with the degree of bruising and injury, including a
fractured arm, discovered at the hospital.” Strother, 09-0110 at 1-2, 19
So.3d at 614 (Amy, J., dissenting). In fact, defendant gave not one but
two accounts of what happened, one to the police, and the other to
Ray Cooper, the child protection investigator, and the statements
conflicted. The statements purported to give alternative exculpatory
accounts, that the child either squirmed away from defendant just after
he had changed her on the washing machine and pitched face first into
the back panel of the dryer, but did not fall to the floor, or that she had
jumped out of his arms and fell to the floor as he carried her to the
laundry area to change her. The court of appeal discounted as a
“second-hand” report defendant’s statement to Ray Cooper, but under
Louisiana law, the statement constituted non-hearsay evidence
admissible for a fact finder to assess as substantive evidence in the
context of the other evidence in the case. La.C.E. art. 801(D)(2)(a)
(exempting from hearsay rule a statement offered against a party
which is “[h]is own statement, in either his individual or a
representative capacity.”). Any rational trier of fact would find the
inconsistency in defendant’s statements highly significant because it
provided an evidentiary basis for concluding that neither account of an
inadvertent, accidental fall caused by the child’s squirming and
wiggling was true, yet both statements acknowledged that some sort
of incident had taken place in those early morning hours when
defendant was alone with the baby, after which, hours later, the
mother then appeared at the hospital emergency room alone with her

32

badly battered child with a freshly broken arm while defendant went
fishing. Defendant’s statement to the police further acknowledged that
Effie LeBleu did not abuse the children and that he, not her, was the
disciplinarian in the family because he shared her view that the
children were “spoiled to her.” As [J]udge Amy observed, given
defendant’s admission that he disciplined an eight-month-old baby,
rational jurors could reasonably find “evidence of the defendant’s
rage” in Effie LeBleu’s testimony that defendant grabbed a belt to
strike the baby moments after she heard the thumping sound from the
laundry area, because defendant generally could not tolerate the
baby’s crying and could not rely on her to discipline her own children,
and “concluded that the abuse was occurring at the time of the loud
noise and while out of [her] sight.” Strother, 09-0110 at 1, 19 So.3d at
614 (Amy, J., concurring in part and dissenting in part).

Our independent review of the record shows that jurors had a
full and fair opportunity to consider defendant’s hypothesis of
innocence and weigh the inferences from testimony that the baby
settled down after the diaper changing incident but was then unsettled
and distraught hours later when she arrived at the hospital. Jurors
clearly found the testimony of Effie LeBleu credible, whatever
reservations they may have shared with the prosecutor about her
capabilities as a mother. Viewing the evidence in a light most
favorable to the state, and according due weight to the credibility
determinations made by the jury, we conclude that the jury reasonably
rejected defendant’s hypothesis of innocence and found that he had
been abusing the child during the time they lived together with the
mother in the trailer and then caused the fracture of her arm when he
was alone with her in the early morning hours of February 2, 2007.
No other alternative hypothesis is apparent from the record and the
lesser verdict of attempted second degree cruelty to juveniles did not
necessarily reflect doubts about the sufficiency of the state’s evidence
to prove the charged offense because Louisiana’s system of
responsive verdicts provides juries with the plenary power of
nullification to return a lesser verdict even in the face of
overwhelming evidence of guilt. See State v. Porter, 93-1106, p. 4
(La.7/5/94), 639 So.2d 1137, 1140 (“Treating the jury’s prerogative to
return a responsive verdict similar to the jury’s power of nullification,
this court has consistently held that the jury must be given the option
to convict the defendant of the lesser offense, even though the
evidence clearly and overwhelmingly supported a conviction of the
charged offense.”).

The court of appeal therefore erred in reversing defendant’s
conviction and sentence on the count charging second degree cruelty
to juveniles.

33

Jackson, 49 So.3d at 378-80. We note that the injury occurred within three days of

the child being brought to the hospital. However, testimony focused on the day the

child was brought to the hospital.

In State v. Tensley, 41,726, p. 17 (La.App. 2 Cir. 4/4/07), 955 So.2d 227,

239, writ denied, 07-1185 (La. 12/7/07), 969 So.2d 629, the second circuit stated

that contrary to the defense argument that neither defendant was shown by direct

evidence to have inflicted the beatings on the five-month-old that died as a result

of a skull fracture:

[E]ach defendant’s statement that the other defendant gave proper
care to the child and that the child exhibited no alarming symptoms of
injury until the morning of his death raised the inference that both
were directly and intentionally involved in abusing the child. Such
statements can be understood as circumstantial evidence of their joint
intentional abuse and the coverup of their actions in the face of the
overwhelming medical evidence of extended periods of trauma and
pain endured by the child.

In the present case, Susie testified Defendant was with Ashtyn in their

bedroom all of the time, and Defendant rarely left that room. Susie and Kalib saw

Kenneth feed and change Ashtyn’s diapers but nothing more. Defendant took care

of Ashtyn most of the time. Detective Howard stated that Defendant said Kenneth

was the primary caretaker, and Kenneth said Defendant was. Nevertheless,

Defendant also said she bathed Ashtyn and changed his clothes.

Dr. Tape opined Ashtyn’s injuries occurred three to five days before his

death on January 2, 2017. Kenneth left home sometime Friday, December 30,

2016, and did not return home until Saturday, December 31, 2016, at noon.

Defendant and Kenneth argued about him being out all night, and he had a seizure

around 5:30 p.m. Kenneth was transported to the hospital and returned home at

11:00 p.m. Testimony did not indicate Kenneth left home again until he was

34

transported by police for questioning on January 2, 2017. The only indication

Defendant left home between Friday, December 30, 2016, and January 2, 2017,

other than for questioning by police, was Detective Howard’s testimony that

Defendant said she went to the store “earlier that day,” and Susie watched Ashtyn.

Susie did not testify she watched Ashtyn while Defendant went to the store.

Susie’s testimony indicated Ashtyn was crying on Friday, December 31,

2016, and she quieted him after Defendant asked her to watch him. Approximately

ten minutes later, Defendant retrieved the baby. Karen held Ashtyn on Sunday,

January 1, 2017, and felt something was wrong with him.

The State relied heavily on Defendant’s statement to police. Defendant

stated that Kenneth brought Ashtyn to her after feeding him, and Kenneth went to

take a shower. When Kenneth came back, Kenneth said Ashtyn was gasping for

air.

The only testimony about bruises on Ashtyn prior to paramedics arriving

was from Detective Howard. Defendant told Detective Howard she noticed

bruises on Ashtyn’s face when Kenneth woke her and told her Ashtyn was not

responding, which was after Kenneth took a shower. When asked what Ashtyn

was wearing, Defendant stated he had a bruise under his chin that looked like it

was going away. She did not know how he got that bruise. She also told Detective

Howard that Ashtyn had a bruise around one eye, and Kenneth reported he saw

bruising around the other eye.

The nature of Ashtyn’s injuries was sufficient to establish specific intent to

inflict great bodily harm, if not to kill, by the person who inflicted them. It was

reasonable for the jury to conclude Defendant was with Ashtyn when the injuries

that caused his death were inflicted, as testimony indicated Defendant rarely left

35

her room. Although it is possible Kenneth was present when Ashtyn’s injuries

were inflicted, he was not home for some time Friday and a large portion of

Saturday. Furthermore, Defendant’s statements to Detective Howard were

contradictory, her response about bruising to Ashtyn’s chin when asked about his

clothing was peculiar, and Brown’s testimony that Defendant rolled her eyes when

he asked her what happened to Ashtyn was damning. The jury’s verdict clearly

indicates it did not find Defendant’s hypothesis that someone else in the home

inflicted Ashtyn’s injuries credible.

Based on the ruling in Julien, 139 So.2d 1152, and the statement of the

second circuit in Tensley, 955 So.2d 227, we conclude it is sufficiently reasonable

that a rational juror could have found Defendant guilty of the crime of second

degree murder as charged beyond a reasonable doubt, and thus, the compromise

verdict of manslaughter is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

In her second assignment of error, Defendant contends that the sentence

imposed is constitutionally excessive.

Defense counsel made a contemporaneous objection to the sentence imposed

at the conclusion of the sentencing hearing. However, he did not set forth any

grounds for the objection or ask for reconsideration of the sentence. Furthermore,

no written motion for reconsideration of the sentence was filed. In State v.

Barling, 00-1241, 00-1591, pp. 10-11 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1041-42, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court discussed

review of sentences in such cases as follows:

The failure to timely file a written motion to reconsider
sentence or to orally urge any specific ground for reconsideration at
sentencing precludes a defendant from objecting to the sentence

36

imposed. State v. Moore, 98-1423 (La.App. 3 Cir. 3/3/99); 734 So.2d
706. See also State v. King, 95-344 (La.App. 3 Cir. 10/4/95); 663
So.2d 307, writ denied, 95-2664 (La.3/15/96); 669 So.2d 433.
La.Code Crim.P. art. 881.1 (emphasis added) serves as the basis for
this restriction and provides, in pertinent part:

A. (1) Within thirty days following the imposition
of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make
or file a motion to reconsider sentence.

(2) The motion shall be oral at the time of
sentencing or in writing thereafter and shall set forth the
specific grounds on which the motion is based.

....

D. Failure to make or file a motion to reconsider
sentence or to include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on
appeal or review.

In cases where courts have held that an oral objection alone is
sufficient to preserve the issue for review, the oral objection
contained the basis for the motion, such as excessiveness of sentence.
See State v. Caldwell, 620 So.2d 859 (La.1993); State v. Trahan, 98-
1442 (La.App. 4 Cir. 12/1/99); 752 So.2d 921.

This court has previously reviewed claims of excessiveness where no motion

to reconsider sentence was filed. See State v. Davis, 06-922 (La.App. 3 Cir.

12/29/06), 947 So.2d 201; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999

So.2d 338, writ denied, 09-606 (La. 12/18/09), 23 So.3d 936; State v. Johnlouis,

09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10),

38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932 (2011).

In State v. Rexrode, 17-457, pp. 3-4 (La.App. 3 Cir. 11/15/17), 232 So.3d

1251, 1253-54, this court discussed the standard of review for excessive sentence

claims:

37

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). The trial court has wide discretion in the
imposition of sentence within the statutory limits and such sentence
shall not be set aside as excessive absent a manifest abuse of
discretion. State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43 (citing State v. Etienne, 99-192
(La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La.
6/30/00), 765 So.2d 1067).

....

“[Louisiana] Const. art I, § 20, guarantees that, ‘[n]o law shall
subject any person to cruel or unusual punishment.’ ” Barling, 779
So.2d at 1042-43. “To constitute an excessive sentence, the reviewing
court must find the penalty so grossly disproportionate to the severity
of the crime as to shock our sense of justice or that the sentence makes
no measurable contribution to acceptable penal goals and is, therefore,
nothing more than a needless imposition of pain and suffering.” Id. at
1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).

The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate. Barling, 779 So.2d at 1042-43 (citing State v. Cook,
95-2784 (La. 5/31/96), 674 So.2d 957, cert denied, 519 U.S. 1043,
117 S.Ct. 615, 136 L.Ed.2d 539 (1996)). In reviewing the defendant’s
sentence, the appellate court should consider the nature of the crime,
the nature and background of the offender, and the sentences imposed
for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98),
726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court
must be mindful that the trial court is in the best position to consider
the aggravating and mitigating circumstances of each case. . . .” State
v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100
(citing Cook, 674 So.2d 957).

Defendant was convicted of manslaughter. The victim killed was under the

age of ten years. Thus, Defendant was subject to a term of imprisonment at hard

labor, without benefit of probation or suspension of sentence, for not less than ten

nor more than forty years. La.R.S. 14:31(B). Defendant was sentenced to serve

seventeen years at hard labor.

At the sentencing hearing, the trial court noted that it had considered the

presentence investigation report and the psychological evaluation of Defendant. In

38

the presentence investigation report, Defendant professed she did not commit the

offense. In her psychological evaluation, Dr. Simoneaux opined that Defendant

did “not appear to have any great potential for future danger.”

The court noted the following aggravating factors: 1) the offender’s conduct

manifested deliberate cruelty to the victim; 2) the offender should have known the

victim was particularly vulnerable or incapable of resistance due to extreme youth;

3) the offender used her position as a mother to facilitate the commission of the

offense; and 4) the offense resulted in the death of the victim. The court then set

forth the following mitigating factors: 1) Defendant had no history of prior

delinquency or criminal activity; 2) she was sixteen years old at the time of the

offense; and 3) she was living under circumstances where she was not given any

significant support by the adults in her life. The court then stated the following:

The evidence at trial clearly established the fact that an innocent baby
died from abuse - severe abuse which took place over a period of
several days. Baby Ashtyn lived for 27 days in a home with one adult
- his paternal great grandmother and 3 minor children - his father, his
mother, and his uncle. No one will ever know exactly what happened
in that home and why no one cared enough to call the authorities prior
to the night Ashtyn died. But after hearing all the evidence at trial, the
Jury found this defendant, Donasty Cohen, Guilty of Manslaughter.
This was a good verdict supported by the evidence. Manslaughter is a
homicide that would be first or second degree murder but is
committed in sudden passion or heat of blood immediately caused by
provocation sufficient to deprive an average person of self-control or
cool reflection. When the victim of the manslaughter is under the age
of 10 years old, as in this case, the law provides the defendant must
serve a minimum of 10 years and a maximum possible sentence of 40
years in prison. Many factors go into determining what sentence may
be appropriate in any given case. Four factors should always be
considered: First, Rehabilitation. Can this defendant, Donasty Cohen,
be rehabilitated? By law, the maximum sentence is 40 years, so she
will not spend the rest of her life in jail. What sentence provides for
the best chance of success upon release? Ms. Cohen was 16 years old
when this crime was committed. While incarcerated, she’s already
obtained her GED and indicated in her Victim Statement and her Pre-
Trial Investigation, that she wanted to further her education and
ultimately give back to her community. There is a strong possibility

39

that Ms. Cohen can rehabilitate herself and live a productive life upon
release. Thus, it’s important this Sentence does not have
counterproductive effects here. Secondly, is society. What Sentence
today, would serve as a general deterrence for the community as a
whole? Ms. Cohen was convicted of Manslaughter, which is a crime
of passion. Deterrence to society therefore is not a strong
consideration. The real societal issue herein is the epidemic of teen
pregnancy and the Sentence today is unlikely to have any impact on
that problem. The third consideration is the victim. Of course we must
consider the victim in this case. Baby Ashtyn was only 27 days old
and completely vulnerable when he died. He surely must have
suffered greatly in his short life and so justice demands that the
defendant be sentenced accordingly. The final factor is punishment.
What Sentence would specifically deter Ms. Cohen from future
criminal conduct? And, considering this factor, it’s significant that
Ms. Cohen has no criminal history and no history of violence at all.
She was a minor child herself at the time of the crime, was immature,
and terribly unequipped to handle this very adult situation. According
to the testimony at trial, she was offered little or no help from the
adults around her.

This crime involved the senseless death of a twenty-seven day old boy. As

noted by the trial court, Defendant was sixteen years old at the time of the offense

and had no criminal record. Further, Dr. Simoneaux opined she was unlikely to be

a danger in the future.

In State v. Jones, 99-2207 (La. 1/29/01), 778 So.2d 1131, a nineteen-year

old first offender was charged with first degree murder following the death of his

twenty-two month old daughter. 5 Although the defendant did not inflict the

injuries that caused the child’s death, his decision not to seek medical attention for

the victim contributed to the neurological crisis which took the child’s life. The

defendant ultimately entered a plea to manslaughter and was sentenced to twenty

years imprisonment. The supreme court affirmed that sentence, noting second

degree cruelty to juveniles was not a crime when the events at issue occurred, and

5
The defendant’s age was not referenced by the supreme court but was set out in this
court’s opinion in State v. Jones, 99-122 (La.App. 3 Cir. 6/23/99), 742 So.2d 597, which was
reversed by the supreme court in Jones, 778 So.2d 1131.

40

the penalty for the newly enacted offense of second degree cruelty to juveniles was

the same as that provided for manslaughter.

In State v. Hicks, 42,427 (La.App. 2 Cir. 10/24/07), 968 So.2d 307, the

defendant was charged with and pled guilty to manslaughter arising out of the

shaking death of his seven week old daughter. As part of the plea, the state waived

the minimum mandatory sentence of ten years. However, the defendant, a first

offender, was sentenced to forty years at hard labor. The second circuit affirmed

his sentence.

In State v. Givens, 45,246 (La.App. 2 Cir. 6/9/10), 41 So.3d 589, the

defendant was charged with second degree murder for the death of his girlfriend’s

twenty-two-month-old son. He was, however, found guilty of the responsive

verdict of manslaughter and sentenced to thirty-seven years at hard labor. In

considering his excessive sentence claim, it was noted the defendant had a

“misdemeanor prior criminal history.” Id. at 604. The second circuit further

stated:

[A] 22–month–old baby, died after being brutally punched and
squeezed. Evidence indicates that the child experienced pain and
suffering in the time between the infliction of the wounds and his
untimely and senseless death. These facts qualify as nothing short of
horrific and disturbing and would have supported a conviction on the
charged offense of second degree murder. Thus, the near maximum
sentence imposed for the manslaughter conviction cannot be said to be
grossly disproportionate to the facts of the offense or shocking to the
sense of justice.

Id.

In light of the nature of the offense, the fact that the jury’s verdict did not

adequately describe Defendant’s conduct, and the above-cited cases, the trial court

did not abuse its discretion when imposing a sentence of seventeen years.

41

ASSIGNMENT OF ERROR NUMBER THREE

In her third assignment of error, Defendant contends that the trial court erred

in denying her challenges for cause. She complains about prospective jurors

Patricia Alonzo and Jamarcus Chase.

Louisiana Constitution article I, section 17 guarantees a
defendant the “right to full voir dire examination of prospective jurors
and to challenge jurors peremptorily.” State v. Juniors, 03-2425, p. 7
(La. 6/29/05), 915 So.2d 291, 304. The number of peremptory
challenges granted to a defendant in a trial of an offense punishable
necessarily by imprisonment at hard labor, such as the one currently
before this court, is fixed by law at twelve. See La. Const. art. I, §
17(A); La. C.Cr.P. art. 799.2. When a defendant uses all twelve of his
peremptory challenges, an erroneous ruling by a trial court on a
challenge for cause that results in depriving the defendant of a
peremptory challenge constitutes a substantial violation of the
defendant’s constitutional and statutory rights, requiring reversal of
the conviction and sentence. Juniors, 03-2425 at 7-8, 915 So.2d at
304; see La. C.Cr.P. art. 921 (“A judgment or ruling shall not be
reversed by an appellate court because of any error, defect,
irregularity, or variance which does not affect substantial rights of the
accused.”). Therefore, prejudice is presumed when a challenge for
cause has been erroneously denied by a trial court and the defendant
exhausts all peremptory challenges statutorily afforded to the
defendant. Juniors, 03-2425 at 8, 915 So.2d at 305 (citing State v.
Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278, 1280, and State v.
Ross, 623 So.2d 643, 644 (La. 1993)). In summary, where all
peremptory challenges have been used, as in this case, a defendant
need only demonstrate the erroneous denial of a challenge for cause to
establish reversible error warranting reversal of a conviction and
sentence. See Juniors, 03-2425 at 8, 915 So.2d at 305.

A defendant may challenge a juror for cause if “[t]he juror is
not impartial, whatever the cause of his partiality.” La. C.Cr.P. art.
797(2). Additionally, La. C.Cr.P. art. 797(3) provides a defendant may
challenge a juror for cause on the ground that “[t]he relationship,
whether by blood, marriage, employment, friendship, or enmity
between the juror and the defendant, the person injured by the offense,
the district attorney, or defense counsel, is such that it is reasonable to
conclude that it would influence the juror in arriving at a verdict.” A
“juror [who] will not accept the law as given to him by the court” may
also be challenged for cause by the defendant. See La. C.Cr.P. art.
797(4).

Voir dire examination of prospective jurors is designed to
discover bases for challenges for cause and to secure information for

42

an intelligent exercise of peremptory challenges. State v. Drew, 360
So.2d 500, 513 (La. 1978). The questions propounded are designed to
determine any potential adverse influence on the prospective juror’s
ability to render an impartial verdict. See id. A prospective juror’s
responses during voir dire cannot be considered in isolation. See State
v. Frost, 97-1771, p. 8 (La. 12/1/98), 727 So.2d 417, 426.

A trial judge is vested with broad discretion in ruling on
challenges for cause, and such a ruling is subject to reversal only
when a review of the entire voir dire reveals the judge abused his
discretion. Robertson, 630 So.2d at 1281. The trial judge’s refusal to
excuse a prospective juror on the ground he is not impartial is not an
abuse of discretion where, after further inquiry or instruction
(frequently called “rehabilitation”), the prospective juror has
demonstrated a willingness and ability to decide the case impartially
according to the law and the evidence. Id.

State v. Dotson, 16-473, pp. 3-5 (La. 10/18/17), 234 So.3d 34, 38-39 (footnotes

omitted).

JUROR ALONZO

During voir dire, the trial court asked if there was anyone who thought they

morally or emotionally could not deal with the case. Patricia Alonzo replied:

“Because it’s dealing with -this is dealing with a child so from past experience, I

don’t think I probably can’t be fair.” The judge responded: “Okay, just by the

very nature of the charges?” Alonzo answered affirmatively. The resulting

exchange took place:

BY THE COURT:

. . . So, does Ms. Alonzo, is there something
specific you want to talk to me about or are you
just saying I don’t - this is emotional for
everybody and it’s going to be emotional for
me.

BY MS. ALONZO, J1:

Psychologically - I don’t know. I just want
to be fair. I don’t want to, by things that
happened in the past, I don’t want to bring
something that happened in the past . . .

43

BY THE COURT:

Right and that’s why I’m asking if there’s
something specific to you that you want to talk
to me about.

BY MS. ALONZO, J1:

No, (inaudible).

The following exchange subsequently occurred:

BY MS. CARTER [THE STATE]:

Okay and without going into a lot, you know
but all your concerns and I believe you said,
maybe some psychological things that’s going
on, could you still be fair and impartial? And,
if you can’t, that’s okay. Just want honesty.

BY MS. ALONZO, J1:

I would try to be fair, but from past
experience, I probably would - I’m afraid I
might go - I wouldn’t be fair emotionally and
psychologically . . .

The State asked if prospective jurors could “still be fair and impartial” if

they knew Defendant faced life with benefit of parole, and Alonzo replied, “Yes.”

Alonzo stated her son had been a Texas State Trooper for four years, and she could

still be fair and impartial. When asked by defense counsel what made it so

difficult for her, Alonzo stated, “I have 9 sisters and we all went through so many

parental abuse[s] so I, I would - sometimes I find myself prejudging because of the

. . .” Defense counsel further asked Alonzo, “are you going to transfer what

happened to you to my client and say well my parents - what is it, what

phenomenon is working to make you to have such issues with it?” Alonzo

responded, “Because of pre-judging . . .”

Later, the following exchange took place:

44

BY THE COURT:

And. Ms. Alonzo, and I keep going back to
you and I’m just going to have to keep going
back until I’m comfortable with where
everybody stands. So, this is emotional. We all
know this is emotional. Okay, and it’s normal
to have emotions. In fact, they want people
with emotions because they want normal
people, alright, so, the question is, there’s no
doubt we’re all going to be sympathetic to the
child, right? The question is, can you still
apply the standards of the law? Can you still
listen to the evidence and I’m going to tell you,
you know, here’s the standards for Second
Degree Murder. You must find, uh, I’ll just tell
you right now. . . . Okay? So, I’ll give you, at
the end, here’s all the various things you can
pick, here’s all the elements of those things.
All I want you to do is have the story. Okay?
Have the story. How did this happen? Okay.
We’re all going to be sad, but how did it
happen? That’s all we want to know. So, can
you just put aside the - this is so emotional and
still find out how does this happen? Can you
do that Ms. Alonzo?

BY MS. ALONZO, J1:

Yes.

BY THE COURT:

Okay so you could be fair .

BY MS. ALONZO, J1:

Yes.

The trial court later asked: “Does anybody feel like they simply cannot be fair in

this case? If that’s true, raise your hand.” The trial court then spoke to prospective

juror Briggs.

Defense counsel challenged Alonzo for cause on the basis that she said she

could not be fair, was the victim of abusive parents, and her demeanor. He did not

45

feel Alonzo had been rehabilitated. The court noted it went back to rehabilitate her

because it felt her comments were conflicting, and she specifically said she could

be fair. The court further stated:

I think initially when people found out that it involved an infant, that
all of them had some reaction, but I think once, once we explained
that the emotion can be part of the judgment, that they, she understood
that and I gave her ample opportunity to say, No, I really just can’t be
fair. So, I’m not going to strike her.

Defense counsel objected to the ruling and used a peremptory strike to excuse

Alonzo.

Defendant argues the trial court did not sufficiently rehabilitate Alonzo.

Defendant avers Alonzo said she could be fair but never said she could be

impartial. In light of Alonzo’s responses prior to her statement that she could be

fair, Defendant alleges it was error for the trial court to deny her challenge for

cause. She cites State v. Tyler, 619 So.2d 807 (La.App. 1 Cir.), writ denied, 624

So.2d 1225 (La.1993), in support of her argument.

In Tyler, the defendant was charged with aggravated rape of a child. During

voir dire, the defendant challenged prospective juror Adams for cause on the

ground Adams had asserted she would be inclined to favor the child in the case.

The State argued Adams had said only that it would be personally upsetting or

perhaps very hard for her to listen to the evidence but that she would be able to

render a fair and impartial judgment based solely on the evidence. Adams sat

silent during repeated questioning by the State and defense concerning whether or

not any of the jurors would have any difficulty hearing that type of case. Adams

later interrupted and volunteered, “‘I have very sensitive feelings toward children

and animals and I’m not sure I could do this.’” Id. at 813. She next explained that

she would be able to listen to the evidence but expressed concern that her

46

“‘feelings are so sensitive when it comes to children.’” Id. When defense counsel

asked Adams whether she would be able to fairly evaluate the testimony or

whether she would place more weight on the child’s testimony, Adams stated, “‘It

would be hard for me to say at this point.’” Id. The court then explained to Adams

that everyone had certain prejudices and that the court was interested in whether or

not she could listen to the evidence and render a verdict based upon the evidence

presented. Adams responded, “‘I think I could do that, but I would probably feel

more for the child, and . . . my decision might be . . . [m]ore for the child on, based

on that.’” Id. Adams was not questioned further concerning this response.

The first circuit addressed the issue:

Under these circumstances, we find the trial court erred by
denying defendant’s challenge for cause of Adams. Although Adams
stated that she thought she could render a verdict based upon the
evidence, she then said that her feelings were slanted toward children
and implied that, in the event of a conflict between the testimony of
defendant and a child, she would be more inclined to believe the child.
Although bias of this kind can be overcome by rehabilitation, neither
the trial court nor the State rehabilitated Adams. In light of her
statements and in the absence of rehabilitation, it was not reasonable
to conclude that Adams was capable of serving as an impartial juror.
See, State v. White, 574 So.2d 561, 563 (La.App. 3d Cir.1991).

Id. at 813-14. The first circuit went on to state that the erroneous denial of a

challenge for cause was not automatically reversible error, and to defeat the

application of the harmless error rule, the defendant must establish that he was

prejudiced by the trial court’s ruling.

In the present case, the State suggests the erroneous denial of a challenge for

cause is not automatically reversible error, and Tyler is distinguishable from the

case at bar because there was no attempt to rehabilitate Adams. We note that in

footnote three of Dotson, 234 So.3d at 38, n.3, the supreme court stated that if all

available peremptory challenges have not been used, a defendant must show some

47

prejudice to overcome La.Code Crim.P. art. 921’s mandate that a ruling not be

reversed because of an error that does not affect substantial rights of the accused.

All twelve of Defendant’s peremptory challenges were used in the case at bar.

Thus, harmless error is inapplicable.

In Dotson, 234 So.3d at 41-42, the supreme court stated:

“[T]he fact that a juror may have painful memories associated
with the subject of a criminal trial is not listed as a basis for a
challenge for cause under La.C.Cr.P. art. 797.” State v. Magee, 13-
1018, p. 12 (La.App. 5 Cir. 9/24/14), 150 So.3d 446, 454, writ denied,
14-2209 (La. 10/2/15), 178 So.3d 581. That a prospective juror
personally has been the victim of a crime will not necessarily preclude
that prospective juror from serving on a jury. State v. Dorsey, 10-
0216, p. 3 (La. 9/7/11), 74 So.3d 603, 631. A prospective juror’s
relationship to a person who was the victim of a crime likewise does
not disqualify a prospective juror from serving. See id.; State v. Nix,
327 So.2d 301, 326 (La. 1975) (a prospective juror’s relationship to a
murder victim—his brother-in-law—was insufficient to establish
cause for excusing the venireman).

The law does not require that a jury be composed of individuals
who have not personally been a crime victim or who do not have close
friends or relatives who have been crime victims. It requires that
jurors be fair and unbiased. Juniors, 03-2425 at 11, 915 So.2d at 306.
Therefore, the prospective juror’s past experience as, or relationship
to, a victim of a crime similar to that for which the defendant is being
tried must be examined in conjunction with other evidence in the
record of the voir dire proceeding that bears on the prospective juror’s
ability to be fair and impartial and to apply the law as instructed by
the trial court. See Dorsey, 10-0216 at 38-39, 74 So.3d at 631; Nix,
327 So.2d at 326.

In State v. Burse, 14-564 (La.App. 5 Cir. 3/25/15), 169 So.3d 649, writ

denied, 15-804 (La. 3/4/16), 188 So.3d 1056, the defendant was charged with

aggravated rape and sexual battery. Both offenses were committed against a

victim under the age of thirteen. During voir dire, the trial court asked the

prospective jurors whether they or a close friend or relative had been the victim of

a crime. Prospective juror J.R. stated she was raped when she was eleven. J.R.

indicated she would be able to set aside her personal experience and give the

48

defendant a fair trial. Defense counsel challenged J.R. for cause, arguing she could

not be fair and impartial. J.R. was further questioned at the bench, wherein she

stated:

[T]he incident was not “out of her mind,” but that she had forgiven the
person who raped her. She stated that, at sixty-two years old, although
she thinks about the rape when she hears about similar instances of
sexual abuse, she does not “dwell on it.” After making those
comments, the following exchange took place:

DEFENSE COUNSEL: And when you hear similar
things happening it comes to your mind?

J.R.: Yes.

DEFENSE COUNSEL: And you have memories?

J.R.: Yes, and it bothers me.

MR. MILLER: And I noticed when you brought it up
you, emotions welled up with you, you maybe even cried
a little bit.

J.R.: Yes, sir.

MR. MILLER: Those emotions do you think you could
put those aside hearing more than once about
something—

J.R.: You know, to be honest with you I can try, I don’t
know how it would affect me further on, I don’t know, I
can’t say.

Id. at 655. Defense counsel re-urged his challenge for cause, arguing that even

after fifty-one years, J.R.’s emotions were profound and would get in the way of

her being fair and impartial. The state noted J.R. said she could be fair. The trial

court ultimately denied the challenge for cause.

Another prospective juror in Burse, D.F., was a special education teacher at

an elementary school. She agreed the fact that she worked with children did not

mean that she was “‘predisposed against any defendant charged with a crime in

49

which it is alleged a child was abused.’” Id. at 656. D.F. stated that she could be

fair, impartial, and could listen to both sides. D.F. also disclosed that when she

was eight years old, she and her sister were abducted by a man on the way home

from school. She further explained that she was sexually molested, but she and her

sister got away. The trial court noted that the memory of that experience visibly

upset D.F. and asked her whether she would be able to sit through a trial and listen

to evidence of alleged sexual abuse of a small child. D.F. stated she could but

indicated, “‘I don’t know how to say that my experience won’t influence me

because I don’t know how to separate that.’” Id. She went on to state that she

would listen to the evidence and would be fair because a man’s life was at risk.

The trial court acknowledged that each juror entered the courtroom with their own

personal experiences and asked D.F. whether she understood the distinction

between the defendant and the man who sexually abused her when she was a child.

D.F. indicated that she understood and further stated she was smart enough to

know that the defendant was another man. Defense counsel challenged D.F. for

cause on the basis that she was a victim and became very emotional. In denying

the challenge for cause, the trial court found that, in spite of being emotional, D.F.

clearly stated that she would follow the law as a juror.

In addressing Burse’s claim that his challenges for cause were improperly

denied, the fifth circuit stated:

Louisiana appellate courts have repeatedly upheld the denial of
challenges for cause of prospective jurors who have been the victims
of crimes similar to the one of which the defendant stands charged,
where the juror states that he or she would be fair, impartial, and not
prejudiced against the defendants. See State v. Thomas, 13-475
(La.App. 3 Cir. 11/06/13), 124 So.3d 633; State v. Stovall, 439 So.2d
618 (La.App. 1 Cir.1983); State v. Williams, 44,418 (La.App. 2 Cir.
6/24/09), 15 So.3d 348, writ denied, 09-1746 (La.3/26/10), 29 So.3d
1250.

50

This Court addressed the issue in a similar case, State v.
Mazique, 09-845 (La.App. 5 Cir. 04/27/10), 40 So.3d 224, writ
denied, 10-1198 (La.12/17/10), 51 So.3d 19. In Mazique, this Court
affirmed the trial court’s denial of the defendant’s challenge for cause
with regard to a potential juror whose child had been the victim of a
crime of sexual violence similar to the one for which the defendant
was charged. Id. The defendant in Mazique was charged with
aggravated incest and pornography involving juveniles, and therefore
claimed that the prospective juror could not be impartial because her
daughter had been sexually molested as a child. Id. at 239. During
voir dire, the prospective juror stated she did not know whether her
experience would affect her ability to sit on the jury but indicated that
she had not formed an opinion as to the defendant’s guilt or
innocence. Id. When the prosecutor asked the prospective juror
whether she could be fair and impartial to both sides she responded “I
think I can . . . It’s so hard.” Id. However, later, when asked the same
question she stated “I can. It will be hard, but I can.” Id. Upon further
questioning by defense counsel, the prospective juror indicated that
the incident in her life was very traumatic and she was emotional
every time she thought about it. Id. She also agreed that given the
nature of the case, the incident would weigh heavily on her mind. Id.
at 240.

The defendant in Mazique challenged the prospective juror for
cause on the basis that she was “visibly shaken and very emotional
and upset by the whole thing.” The trial court denied the challenge,
finding she was rehabilitated and noting her statement that she could
be fair in this case. In affirming the judgment of the trial court, this
Court found that the prospective juror’s responses, “as a whole, did
not reveal facts from which bias, prejudice, or inability to render a
judgment according to law could be reasonably implied.”
Accordingly, this Court held the trial court did not abuse its discretion
by denying the defendant’s challenge for cause.

Here, it appears that J.R. [] and D.F.’s voir dire testimony as a
whole clearly shows their willingness and ability to be fair and
impartial jurors and to decide the case according to the law and
evidence. All [] jurors clearly communicated their willingness and
ability to serve as fair and impartial jurors and to render a judgment
according to the applicable law. Therefore, here, as in Mazique, the
fact that prospective jurors J.R. [] and D.F. had prior experiences as
victims of similar crimes to the ones Mr. Burse was charged with is
not determinative of their ability to serve as fair and impartial jurors.
Thus, we find that the trial court did not err in denying Mr. Burse’s
challenges for cause with regard to jurors J.R. [] and D.F.

Id. at 656-57.

51

Based on the rulings in Burse, 169 So.3d 649, and State v. Mazique, 09-845

(La.App. 5 Cir. 4/27/10), 40 So.3d 224, writ denied, 10-1198 (La. 12/17/10), 51

So.3d 19, which was cited in Burse, we find that the trial court did not abuse its

discretion when denying the challenge for cause as to prospective juror Alonzo, as

Alonzo ultimately indicated she could put aside her emotions and be fair.

JUROR CHASE

Jamarcus Chase stated he was a correctional officer at Raymond Laborde

Correctional Center. When the jury panel was asked if anyone knew Defendant or

her attorney, the following exchange occurred:

BY MR. CHASE, J8:

I believe I know her. Um, I think my sister
dated one of her brothers if I’m not mistaken.

BY THE COURT:

Okay. Your sister dated one of her brothers?

BY MR. CHASE, J8:

If her brother’s name is Troy Price, she
definitely dated him.

BY THE COURT:

Okay, um, do you - other than knowing that
she may have that name, do you know
anything about her or about this case?

BY MR. CHASE, J8:

I have heard about this case.

BY THE COURT:

Okay, I’m going to talk to you about that
probably in private.

52

The State asked if prospective jurors could “still be fair and impartial,” if they

knew Defendant faced life with benefit of parole, and Chase replied, “Yes,

ma’am.”

Defense counsel challenged Chase for cause, stating: “I mean he heard, my

client and her husband killed the baby. I mean that’s - I don’t know how you get

around that.” The court then stated the following regarding an “off the record”

conversation:

BY THE COURT:

. . . because we’ve talked to him outside the
presence of the microphones, off the record,
and uh, Mr. Chase, when talked to Mr. Smith
and Ms. Carter and myself, outside the presence
of the jury, because he had indicated that he
heard something about the case, he stated and
so you’re both hearing . . . he stated that he, his
younger sister had gone out with the
defendant’s brother at some point and . . . she
had told him at some point, he doesn’t
remember how it came up - oh I heard she and
her boyfriend killed the baby. And so when
questioned about that, he said, I don’t have any
preconceived ideas about it. I don’t know any
specifics about how it happened. I just know
that she just said that and I saw something on
KALB about it when I knew I had jury duty.
Um, he said he could be fair, he’s a correctional
officer, um, I don’t think - he said it would not -
I mean if anybody, I would think the bias would
be against the State because he’s somewhat
personally connected to the defendant. But, he
also stated (interrupted)

BY MR. SMITH [DEFENSE COUNSEL]:

I don’t care who the bias is for. It’s a bias.
That’s - a relative of his . . .

BY THE COURT:

I mean he said she was young, his little
sister’s young and that she just went out with

53

this guy a couple of times. She didn’t even
know the - whether or not [s]he was her sister
until given more information.

BY MS. CARTER:

Plus he indicated he’s never met Ms. Cohen
...

BY THE COURT:

He’d never met her. He didn’t know one
thing about the case.

MS. CARTER:

. . . had no interaction with her. Correct.
BY THE COURT:

It’s just somebody made that statement.

Defense counsel re-urged his challenge for cause, which was denied by the trial

court. Defense counsel objected to the trial court’s ruling and used a peremptory

strike to excuse Chase.

Defendant argues that although it was Chase’s sister that had a relationship

with her brother, the challenge for cause should have been granted especially given

what Chase heard from his sister. Defendant cites the following from State v.

Brown, 496 So.2d 261, 265 (La.1986), in support of her argument: “When a

prospective juror admits to having a personal relationship with the victim or the

victim’s family, it is unrealistic to believe the juror could be impartial in his or her

deliberations concerning the defendant’s guilt or innocence.”

The State argues Brown is distinguishable in that the son of prospective juror

Nash had dated the seventeen-year old victim in high school, and Nash knew the

victim’s parents. The supreme court concluded that, even though Nash testified

she could give the defendant a fair trial, it was unrealistic to conclude her

54

relationship with the victim and the victim’s family would not affect her

deliberations in reaching a verdict.

In Brown, prospective juror Cockrell indicated that although he did not

know the victim, his son played on the same little league team with the victim’s

younger brother, he had visited with the victim’s parents in the bleachers while

watching games, and the victim’s parents and two of their children had attended a

party that Cockrell hosted for the baseball team. Cockrell was asked whether his

vote to let the defendant live would cause problems when he met the victim’s

parents at the ball park, and he stated it “[p]ossibly would.” Id. at 265. The

defendant’s request to excuse Cockrell for cause was denied. The supreme court

found the judge erred in denying the challenge for cause.

In State v. Wiley, 614 So.2d 862 (La.App. 2 Cir. 1993), the state challenged

for cause prospective jurors Henderson and Wimberly because each stated she had

a relationship with the defendant and/or his family which would influence her

decision if she served as a juror. The trial court granted the challenges, and the

defendant objected because both Henderson and Wimberly stated they would try to

set aside their feelings if they were selected and forced to vote. In addressing the

issue, the second circuit stated:

In State v. Drumgoole, 517 So.2d 909 (La.App. 3d Cir.1987), a
challenge for cause based upon a relationship with the accused’s
family was found to have been properly granted. Although the
potential juror stated that she would vote if she had to, she also stated
it would be hard for her to be impartial. Likewise, although the instant
potential jurors stated that they would attempt to set aside their bias if
forced to, both stated that it would be hard to do so because they felt
influenced by their relationship with the defendant. Under these
circumstances, the trial court did not err in excusing Henderson and
Wimberly for cause.

Id. at 866.

55

In Mazique, 40 So.3d 224, Ebeyer was the defendant’s co-worker and a

prospective juror at his trial. The defendant challenged Ebeyer for cause, arguing

Ebeyer’s status as his co-worker allowed Ebeyer to obtain potentially inaccurate

information regarding the case and would have been improperly influenced in

arriving at a verdict. During voir dire, Ebeyer stated he worked with the defendant

for four or five years but did not consider himself a friend of the defendant.

Ebeyer had not discussed the case with the defendant but had heard about it from

other people at work. He heard that pornographic material involving Mazique’s

relative was found on his phone and in his locker, and Ebeyer was told Mazique

was escorted from work. Based on the information he had heard, Ebeyer had not

formed an opinion as to Mazique’s guilt or innocence. The fifth circuit addressed

the issue, stating:

Ebeyer, Mazique’s co-worker, learned some limited information
regarding this case at his place of employment. Nevertheless, Ebeyer
demonstrated a willingness and ability to decide the case impartially
according to the law and evidence, and his responses as a whole did
not reveal facts from which bias, prejudice, or inability to render a
judgment according to law could be reasonably implied.

Id. at 239. Thus, the fifth circuit found the trial judge did not abuse his discretion

by denying the challenge for cause as to prospective juror Ebeyer.

In State v. Gray, 533 So.2d 1242 (La.App. 4 Cir. 1988), writ denied, 546

So.2d 1209 (La.1989), the defendant was charged with aggravated rape of his three

children. He complained the trial court erred in denying the challenge for cause of

the principal of his children’s school. The principal knew the family and was

aware of an investigation into possible physical abuse of the children but had no

knowledge of the results of the investigation nor was he aware of possible sexual

56

abuse. The fourth circuit found the prospective juror’s responses clearly showed

his willingness and ability to be an unbiased, impartial juror.

In Brown, 496 So.2d 261, and Wiley, 614 So.2d 862, the prospective jurors

indicated that a relationship with the defendant or the victim would affect their

verdicts, whereas Chase indicated that he did not know Defendant and stated he

could be fair and impartial. The relationship between Defendant and Chase is also

distinguishable from Mazique, 40 So.3d 224, and Gray, 533 So.2d 1242, in that

Chase did not know Defendant. Furthermore, Chase informed the trial court that

he had no preconceived ideas about the case and did not know any specifics about

how the offense occurred. The trial court then stated Chase said he could be fair.

Based on the voir dire as a whole, we find that the trial court did not abuse its

discretion in denying Defendant’s challenge for cause as to prospective juror

Chase.

DECREE

Defendant’s conviction and sentence is affirmed. However, Defendant’s

sentence is amended to delete the denial of parole eligibility, and the trial court is

instructed to make an entry in the minutes reflecting this change.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

WITH INSTRUCTIONS.

57