State of Louisiana v. Roman Joseph Lastrapes

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-56

STATE OF LOUISIANA

VERSUS

ROMAN JOSEPH LASTRAPES

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25778-15
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy H. Ezell, and
John E. Conery, Judges.

AFFIRMED.

Douglas Lee Harville
Louisiana Appellate Project
Post Office Box 52988
Shreveport, Louisiana 71135
(318) 222-1700
COUNSEL FOR DEFENDANT/APPELLANT:
Roman Joseph Lastrapes

Roman Joseph Lastrapes
Louisiana State Prison
Camp C / Wolf 2
Angola, Louisiana 70712
PRO SE DEFENDANT/APPELLANT:
Roman Joseph Lastrapes

John Foster DeRosier
District Attorney, 14th Judicial District
Karen C. McLellan
Shelley A. Deville
Assistant District Attorneys, 14th Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On November 5, 2015, Defendant, Roman Lastrapes, was charged by bill of

indictment with the first degree murder of Linda Moore, perpetrated during the

commission of an aggravated rape, in violation of La.R.S. 14:30(A)(1). Defendant

sought and was granted a waiver of his right to jury trial and was ultimately tried

and convicted by the trial court on March 27, 2018 of the first degree murder of

Linda Moore. Defendant sought a new trial, which was denied after a hearing.

Defendant waived delays, and the court proceeded to sentence him on June 8,

2018. Defendant received the mandatory sentence of life imprisonment at hard

labor to be served without the benefit of probation, parole or suspension of

sentence. Defendant, through counsel, now appeals his conviction and sentence.

Defendant also filed a pro se appeal of the trial court’s ruling denying him the right

to withdraw his waiver and exercise his right to a jury trial. For the following

reasons, we affirm.

PROCEDURAL HISTORY

Defendant and his then attorney, Mr. Robert Shelton, filed a motion for

speedy trial and a “Motion to Waive Trial by Jury,” which were both signed on

November 10, 2016, and set for a November 28, 2016 hearing. The “Motion to

Waive Trial by Jury” included Defendant’s signature and the following passage:

“ROMAN LASTRAPES, defendant, further states that he fully understands his

right to a trial by jury and thus waives right [sic] knowingly, voluntarily, and

intelligently.”

Defendant was not present at the November 28, 2016 hearing, but the trial

court ordered the Clerk of Court to serve Defendant with certified copies of both

motions. The attorneys and the trial court discussed the motion for speedy trial,

noting the time delays would begin to run, but Defendant’s new January 17, 2017

trial date was within the time delays allowed for a speedy trial motion. 1 At no

point was the “Motion to Waive Trial by Jury” discussed. The assistant district

attorney present stated that the District Attorney’s Office had not yet indicated

whether it intended to seek the death penalty. However, a later minute entry, dated

January 4, 2017, indicated that the district attorney’s office had communicated to

Defendant’s previous attorney, Mr. Shelton, that the State would not seek the death

penalty in this matter.

On December 1, 2016, the trial court granted the State’s “Motion and Order

to Fix Status Conference,” setting the conference for December 12, 2016, to

discuss a possible attorney conflict based upon Mr. Shelton’s relationship to the

victim. At the December 12, 2016 hearing, Mr. Shelton withdrew from

representing Defendant based upon Mr. Shelton’s relationship to the family of the

victim. Additionally, the trial court ruled it would hold all filed motions in

abeyance so that subsequent counsel could decide which motions he or she would

like to adopt.

The record reflects that Mr. Richard White from the public defender’s office

assumed Defendant’s defense in July 2017. Subsequently, Defense counsel

requested two continuances, which the trial court granted. The case was

rescheduled for trial on March 27, 2018.

On March 26, 2018, one day before the bench trial was scheduled to begin,

Defendant and defense counsel sought to withdraw Defendant’s jury trial waiver

and sought a jury trial. Louisiana Code of Criminal Procedure Article 780(D)

1
The transcript for pre-trial hearings held on October 3, 2016, November 28, 2016, and
December 12, 2016, were introduced as an in globo exhibit on the first day of Defendant’s trial,
March 27, 2018.

2

specifically states, “A waiver of trial by jury is irrevocable and cannot be

withdrawn by the defendant.”

Defense counsel argued that Defendant had waived his right based upon the

advice of Mr. Shelton,2 that neither Defendant nor present defense counsel knew

the strategic reason Mr. Shelton believed it was in Defendant’s best interest to do

so, and Defendant’s present counsel did not agree with the decision to waive jury

trial. The trial court deferred ruling on the mode of trial until the following day so

that transcripts of prior pre-trial hearings held on October 3, 2016, November 28,

2016, and December 12, 2016, could be reviewed.

On March 27, 2018, the trial court ruled Defendant’s trial would commence

as a bench trial, noting Defendant’s waiver filed in November of 2016 was in

proper form and was irrevocable under La.Code Crim.P. art. 780(D). Defense

counsel objected, again noting he could not determine why Defendant’s former

counsel, Mr. Shelton, felt a bench trial would be in Defendant’s best interest.

Defendant’s bench trial then began, and at the conclusion of the trial on

March 29, 2018, the trial court found Defendant guilty of the first degree murder of

Linda Moore stating in part:

The totality of the evidence, both circumstantial and scientific,
exclude every reasonable hypothesis. The Court is convinced beyond
a reasonable doubt that the defendant is responsible for the death of
Linda Moore and as such he will be found guilty of first degree
murder. As per Article 814 we need to -- or 873 -- I need to set a
sentencing date.

On June 8, 2018, Defendant filed a “Motion for New Trial,” once more

arguing his trial should have been a jury trial because the tactical reasoning for

initially waiving his right to a jury trial was lost when Mr. Shelton died. He also

2
Mr. Shelton was deceased at the time of Defendant’s trial, having passed away in
August 2017.

3

asserted “it was particularly important that Defendant’s female peers constitute

part of such jury. Terry Welke, M.D., coroner for Calcasieu Parish, Louisiana, and

clearly a witness with unmistakably pro-prosecution proclivities, offered certain

evidence that likely would have been viewed as borderline absurd if heard by

female jurors.” Defendant summarized his argument by stating he was denied the

effective assistance of counsel and his jury trial waiver should not have been

considered irrevocable, despite the clear and unambiguous language of La.Code

Crim.P. art. 780(D), because new counsel disagreed with prior counsel’s strategy.

At the hearing on the Motion for New Trial held the same day, defense

counsel argued a bench trial adversely affected his ability to represent Defendant,

“I feel like I ended up trying the case with one hand tied behind my back as a

result, and I respectfully contend, Your Honor, that, consequently, Mr. Lastrapes

was denied -- effectively denied right to counsel.”

The trial court denied the motion for new trial and defense counsel objected;

however, Defendant waived delays and proceeded to sentencing. Defendant was

sentenced to “life imprisonment at hard labor without benefit of probation, parole

or suspension of sentence.”

Defendant now appeals his conviction and sentence. Through counsel,

Defendant contends there was insufficient evidence to convict him, particularly

arguing the State failed to prove Linda Moore’s murder was not committed by

either Paul Delafosse or Marlin Jenkins. Defendant raises an additional claim pro

se that his right to a jury trial was denied when the trial court refused to allow

Defendant to withdraw his waiver of jury trial. Defendant contends “he did not

knowingly and intelligently waive his right to a jury trial.” For the following

reasons, this court affirms Defendant’s conviction and sentence.

4

FACTUAL BACKGROUND

Charles Hunter, Jr., Chief Investigator for the Calcasieu Parish Coroner’s

Officer with thirteen years of experience, was the first witness to take the stand.

The court accepted Mr. Hunter as an expert in the field of death investigations

without objection. He testified he was assigned to the crime scene once the

coroner’s office was informed Linda Moore’s body had been found. Mr. Hunter

identified numerous photographs he had taken of the scene. Mr. Hunter testified

that based on blood found in multiple areas between the street and where the

victim’s body was found, it was his opinion Ms. Moore was attacked outside of the

alleyway and forced into the alleyway by her attacker.

Based upon the liquidity of bodily fluid which was located on Ms. Moore’s

buttocks, Mr. Hunter testified he believed the victim’s body had not moved since

said bodily fluid was deposited. Mr. Hunter noted he took a swab of the fluid

which was subsequently sent off for DNA testing. Mr. Hunter noted there were

blue jeans laid on the ground directly in front of Ms. Moore’s body, which he felt

were likely placed there so that her assailant could sexually assault her without

injuring his knees. Mr. Hunter also noted there was broken glass on the ground

near the victim’s body. He further testified that there was residue on Ms. Moore’s

hands which matched the nearby shed, likely an indication of a struggle.

Mr. Hunter testified Ms. Moore had a number of facial injuries consistent

with blunt force trauma from a fist and noted the evidence indicated she was still

alive and breathing when she sustained her injuries, which included a fracture of

her nose where the bone was actually exposed. He also noted there was a linear

pattern on Ms. Moore’s face that was consistent with her sweatshirt being pulled

over her head and no movement from where she was assaulted. Mr. Hunter also

5

noted there were broken bottles and pools of blood on the ground, which became

visible once Ms. Moore’s body had been removed, indicating she did not move

from that location and she did not willingly lay down on the ground.

Mr. Hunter testified that he would expect the assailant would have abrasions

or lacerations on his hands if he indeed used his fists to assault Ms. Moore. He

again confirmed his opinion that Ms. Moore’s body did not move from where she

was beaten. He further opined Ms. Moore was likely incapacitated from her

injuries.

On cross-examination, Mr. Hunter testified there was no evidence Ms.

Moore’s body was dragged at any point. Mr. Hunter acknowledged he was at

some point informed the name Marlin Jenkins had become a part of the

investigation, but noted he never interviewed Mr. Jenkins, nor could he have

picked him out of a lineup. Mr. Hunter testified he did not believe Ms. Moore’s

body was posed for effect. He then reiterated the placement of the body, the state

of Ms. Moore’s clothing, and the bodily fluid dripping down her buttocks was

consistent with her being sexually assaulted in the exact location where she was

found.

Dr. Terry Welke, the coroner for Calcasieu Parish, was accepted as an expert

in forensic pathology. Dr. Welke testified that Ms. Moore’s death was a homicide

resulting from blunt force injuries of the head. Dr. Welke testified as to the

contents of his autopsy report, which included the following description of facial

injuries:

Lacerations (skin tears) are: on the mid-forehead, 1-3/8 inches;
between the eyes, 1/8-inch; left bridge of nose, V-shaped, 3/8 x 3/8-
inch; mid-portion of the lower lip, 3/16-inch. Bruises involve: right
forehead; left and right, eye orbits; left jaw. Abrasions (scrapes)
involve: mid-forehead, 1-1/2 x ¾-inch in greatest dimension; outside

6

of the left eyebrow, 3/8 x 3/16-inch. There are numerous broken
bones (fractures) of the face: nasal bone; left and right eye orbits;
maxilla (bony portion of upper mouth holding the teeth). As a result
of the aforementioned injuries, there are bruises involving the white
portion (sclera) of each eye. Internally: Pink foam is in the voice box
(larynx); blood is in the windpipe and lower airways
(trachea/bronchi); the lungs are heavy and blood-filled; blood is in the
stomach. Blood is present on the undersurface of the scalp overlying
the back of the head (occiput); the injury is predominantly greater on
the right side.

Dr. Welke also noted he found “intact non-motile sperm” in Ms. Moore’s

vagina. He opined that indicated sexual activity was relatively recent, as sperm

only remain intact for around sixteen hours in a live person, and Dr. Welke noted

the time would be lessened for someone who died shortly after intercourse. When

asked how he believed Ms. Moore died, Dr. Welke opined:

In my mind’s eye I felt that there was an assault, meaning a physical
assault of some -- near the scene, and then Ms. Moore had become
incapacitated but still alive, and, basically, placed on the ground or
fell backwards on the ground, and then additional injuries occurred to
her face, and then the sexual activity occurred. And I felt that due to
the position of the body that the legs were probably over the shoulders
of the assailant, and then after the orgasm had occurred, the assailant
basically had taken Ms. Moore’s legs and then basically pushed them
off his shoulders, and then that’s why they were in the position of
being on the wall.

When asked if he thought someone could have left the semen in Ms. Moore

in a different location, Dr. Welke responded “I say the attack occurred at the

scene.” He also stated that it was his expert opinion the person who deposited the

seminal fluid in Ms. Moore was the person who attacked her.

The next witness to take the stand was Mr. Owen McDonnell, who was

accepted as an expert in the fields of crime scene analysis and blood stain pattern.

Mr. McDonnell testified he owns a forensic consulting company and has worked

on cases for both prosecutors and defense attorneys, as well as having worked on

cases for the Innocence Project. He testified the Calcasieu Parish District

7

Attorney’s Office contacted him to “determine how many assailants were present

in that specific area the body was found at the time that the blood was being

dispersed.” Mr. McDonnell testified that his expert opinion was the blood splatter

patterns indicated no one was present in the area where Ms. Moore was beaten

aside from herself and her attacker.

The State then called Ms. Shakena Ardoin, who testified she had a friendly

relationship with Defendant in January of 2010. She testified she remembered

getting into an argument with Defendant early one morning in January after he

woke her up by banging on her door. Defendant told her he wanted to stay at her

place because he had just been in a fight, but he would not tell her with whom he

fought. Ms. Ardoin could not give a specific date, but noted it was early January

2010. She testified she went to bed, Defendant stayed in the living room, and he

was gone when she woke up. Ms. Ardoin acknowledged previously giving a

statement to law enforcement and telling Detective Franklin Fondel that Defendant

was acting frantic or hysterical when he arrived at her door.

Although Ms. Ardoin recalled telling Detective Fondel that Defendant had

left a pair of shoes and a jacket at her home, she stated it was actually only his

jacket. She testified the jacket had spots of blood on it, but she dismissed it as a

result of the fight Defendant had mentioned. She did not recall telling Detective

Fondel that Defendant’s shoes also had blood on them. Ms. Ardoin noted she put

Defendant’s jacket in a bag and brought it to his grandmother. She recalled

Defendant’s knuckles being scraped when he came to her house and stated

someone at her aunt’s house had informed her a dead body was found not far from

her home the same morning. She testified she told Detective Fondel that she

“‘hope[d] [Defendant] didn’t have anything to do with [the dead body.]’”

8

On cross-examination, Ms. Ardoin reiterated she did not recall the exact date

Defendant showed up at her home in the early morning hours with blood on his

clothes and scrapped knuckles claiming to have been in a fight. She did not

recognize the name Marlin Jenkins. She testified she was worried about herself

and her children when she spoke to Detective Fondel; however, she also stated her

fear did not affect her statements to him. Ms. Ardoin acknowledged that she had

had an “off and on” physical relationship with Defendant in 2010, they were still

friendly and spoke while he was in jail, and the only reason she was testifying was

because she was subpoenaed.

On re-direct examination, Ms. Ardoin testified Defendant’s jacket was

white, that it was not uncommon for Defendant to get into fights, and Defendant’s

mother had brought her to the courthouse to testify.

The State then called Ms. Monica Quaal, the DNA Technical Leader at the

Southwest Louisiana Crime Lab. Ms. Quaal was accepted as an expert in the fields

of forensic DNA and serology. Ms. Quaal testified that she performed DNA

testing in this case and noted DNA was found under one of Ms. Moore’s

fingernails that matched Mr. Paul Delafosse. Ms. Quaal testified that she tested the

victim’s panties, which did not contain any semen. Noting that an unidentified

male profile was obtained from the semen sample recovered from Ms. Moore’s

buttocks, Ms. Quaal testified the profile eventually identified a possible match in

the CODIS database. Ms. Quaal testified she compared the previously unidentified

profile with the genetic profile of Defendant and stated there was a “one in 591

quadrillion” chance the semen on the victim did not come from Defendant. She

noted the sperm recovered from Ms. Moore’s vagina had identical odds of not

being Defendant’s.

9

On cross-examination, Ms. Quaal stated Mr. Jenkins was excluded as a

possible source of any DNA recovered from Ms. Moore’s body; however, Mr.

Delafosse was the source of the DNA recovered from underneath one of Ms.

Moore’s fingernails. She also noted law enforcement provided a DNA sample

from Mr. Delafosse, which allowed her to make the match. She could not explain

how, if Ms. Moore’s assailant beat her to death with his fist, there was no DNA

from the assailant on Ms. Moore’s face. She did, however, note there were a lot of

factors which could affect how much, if any, DNA would result from normal skin-

to-skin contact.

The State’s final witness was Sergeant Franklin Fondel of the Lake Charles

City Police’s detective division. Sergeant Fondel noted he had been in law

enforcement for a little more than twenty years. He noted he had been a detective

for over seventeen years and had been involved in over a hundred murder

investigations. Sergeant Fondel testified he responded to a report of a dead body

behind Thib’s Paint & Body Shop on the corner of Shattuck and Belden Streets at

approximately 8:52 a.m. on January 15, 2010. Sergeant Fondel testified he was

able to identify the victim through a “My Choice” casino card she had in her

wallet.

Sergeant Fondel stated that both Marlin Jenkins and Paul Delafosse were

investigated as persons of interest, but were ultimately excluded as suspects. He

noted, however, the CODIS hit occurred in August 2010, which is when he began

investigating Defendant. Sergeant Fondel testified Defendant had no visible

reaction to being told his DNA was found inside a murder victim.

Sergeant Fondel stated that when he interviewed Shakena Ardoin, she told

him that when Defendant came to her home banging on the door, he had blood on

10

his jacket and all over his white shoes. Noting Ms. Ardoin’s testimony that

someone told her about the body found in the Sunlight Manor area the same day

Defendant showed up at her home, Sergeant Fondel testified that he checked

reports and that there were no other bodies found in that area in January of 2010.

On cross-examination, Sergeant Fondel stated the name Marlin Jenkins first

came up in the investigation on January 18, 2010. He stated Mr. Jenkins’s name

arose from interviews with a few prostitutes and “a kid that was at the bus stop.”

He noted the young man at the bus stop was named Logan Richard, who described

seeing someone who matched Mr. Jenkins’s description near Thib’s Paint & Body

around 6:10 or 6:15 a.m. the morning Ms. Moore died. He acknowledged that his

affidavit in support of a no-knock search warrant for Mr. Jenkins stated he was

informed Ms. Moore worked as a local prostitute and included the following

statement, “While interviewing several other prostitutes, it was discovered that a

black male identified as Marlin Jenkins had beaten at least six other prostitutes and

had raped two of the six.” Sergeant Fondel testified Mr. Jenkins became upset and

began to cry during his interview. He testified Mr. Jenkins was excluded as a

suspect because his DNA did not match any of the samples recovered from the

murder scene.

Sergeant Fondel testified Mr. Delafosse’s name initially arose through

interviews with the victim’s sisters, one of whom mentioned Mr. Delafosse picking

Ms. Moore up from her house. He noted Mr. Delafosse was with the victim hours

before her death at the EZ Aces Casino on Belden Street. He then stated he did not

recall Mr. Delafosse’s DNA being found near Ms. Moore or on her body. After

the CODIS match came back in August of 2010, Sergeant Fondel was able to

obtain a DNA sample from Defendant, who was incarcerated at Angola at the time.

11

Sergeant Fondel testified the shoes and jacket Shakena Ardoin described were

never recovered.

On re-direct, Sergeant Fondel testified that he knew from speaking with Mr.

Hunter and Dr. Welke early on that whoever left semen in the victim was the

person who murdered her; therefore, he expected Marlin Jenkins’s DNA to match.

He noted that although Mr. Richard saw Mr. Jenkins near the crime scene around

6:15 a.m., the coroner concluded Ms. Moore was likely murdered around 4:30 a.m.

He reiterated that no forensic evidence connected Marlin Jenkins to Ms. Moore;

furthermore, he noted they were able to corroborate Mr. Delafosse’s story of what

happened that night so as to exclude him as a suspect. Following Sergeant

Fondel’s testimony, the State rested its case.

After the court denied a motion for acquittal under La.Code Crim.P. art. 778,

noting both circumstantial evidence and scientific evidence submitted by the State

supported a conviction, defense counsel called Ms. Mary LeDoux, Defendant’s

mother, to the stand. She testified that in early 2010, Defendant spent most nights

at either her home or her mother’s home. She stated Shakena Ardoin was

Defendant’s girlfriend at that time. She then stated, “I really don’t know where he

would spend the night, but I’m pretty sure he [stayed at Ms. Ardoin’s home] a

couple of times.” Ms. LeDoux testified Defendant would typically come home

before 2:00 a.m. She could not remember whether Defendant had a white jacket or

what type of shoes he typically wore at the time of the murder. She then stated

Defendant always wore black shoes. On cross-examination, Ms. LeDoux testified

she had “no idea where [Defendant] was at the time of [Ms. Moore’s] murder.”

Defendant then took the stand in his own defense. Noting that his birthday

is January 6, Defendant stated his hands were roughed up when he went to Ms.

12

Ardoin’s house because he was “in a fight a couple of days after [his] birthday.”

Defendant stated the night of the murder, he was at the Booker T. Apartments

around 8:00 p.m., having sex with Ms. Quinn Thomas. Although unclear exactly

what time he left, Defendant stated he left Ms. Thomas’s home alone and

eventually came into contact with Ms. Moore while walking down Goos Street.

Defendant stated Ms. Moore asked if he “was working,” which he clarified meant

she was asking if he had any crack cocaine, as his “work” was selling said drug.

Upon telling her he was working, Defendant testified she called him onto the porch

where she was sitting. He then testified that she wanted to trade sexual favors for

crack, to which he agreed. Defendant testified he gave the victim a crack rock, she

smoked part of it, then they had sex inside the residence.

Defendant testified once they finished having sex, she gave him a rag to

clean up, she did the same, and then she finished smoking the crack before walking

him out of the house, stating they were in the bathroom together around twenty

minutes. Defendant testified there was a man waiting outside the house when they

exited, who began “fussing with” Ms. Moore; Defendant left while they were on

the porch yelling at each other. He stated he could not understand the man because

“[h]e sounded like he, uh -- like he retarded.” Nonetheless, he remembered the

man telling Ms. Moore to “hurry up.”

Defendant stated he continued walking away, noting he sold a few more

crack rocks to a few prostitutes and a couple of men, though Defendant could only

name one, a prostitute named Tiffany. Defendant testified he sold the last of the

rocks he had on him at the apartments on Third Street and Fifth Avenue, but could

not give any indication of what time it was. He then stated he would probably

have gone to Ms. Ardoin’s house because it was the only place he could go on

13

foot, noting he did not have a car. Defendant testified that he did not own a white

jacket and that he wore black suede Jordans at the time, claiming he only wears

dark clothes.

Defendant then testified the first time he found out about Ms. Moore’s death

was when Sergeant Fondel questioned him in August of 2010. He stated he did not

recognize the name at all until they showed him a picture of the victim. He

acknowledged telling Sergeant Fondel that “‘[a]nything could have happened to

her after I fucke[3] her.’” He stated he was so callous because he was starting to

lose his temper with Sergeant Fondel insinuating he had murdered the victim.

Defendant noted he had prior convictions for simple robbery, theft over $500,

being a convicted felon in possession of a firearm, possession of marijuana, and

flight from an officer.

Defendant stated that he never left shoes or a jacket at Ms. Ardoin’s house

because he would have had to leave her house barefoot with no jacket. He testified

they were still friendly, as she was the mother of his three kids, and she visited him

nearly every week. Defendant stated that when he stayed at Ms. Ardoin’s home

overnight, the time at which he would depart varied, though he would sometimes

leave around noon. Although he admitted he recognized exactly where Ms.

Moore’s body was from photos, he testified he did not usually go to that area. He

testified he did not beat Ms. Moore to death.

On cross-examination, Defendant again confirmed his prior criminal

convictions. Acknowledging his brother previously worked at Thib’s, Defendant

testified he was not familiar with the building behind which Ms. Moore’s body was

found. Defendant reiterated that the night Ms. Moore died was the first time he

3
The language of the transcript has not been altered in any manner.

14

had sex with her. He stated it was still before midnight when he left Ms. Moore

arguing with an unknown male. Defendant contended he told police in his initial

statement that he left while Ms. Moore was arguing with an unknown male and

that he picked out the person from a photo lineup. Despite Defendant telling law

enforcement during his initial interview that he recognized numbers one and four

from the lineup, he testified at trial that it was definitely number five, Mr. Marlin

Jenkins. Both parties discussed what the Defendant said in his initial interview, in

which he did not identify Mr. Jenkins as the man who was arguing with Ms. Moore.

However, neither the video nor a transcript of Defendant’s initial interview was

introduced into evidence at trial and, therefore, is not a part of the record.

Although Defendant did not actually remember staying at Ms. Ardoin’s, but

believed he had, he nonetheless stated he would not have left before she woke up

because they would sleep together, and he could “barely get out of the bed without

her waking up.” Defendant essentially argued that everything Ms. Ardoin testified

to was false: he did not show up frantic banging on her door, he never slept on the

couch, he did not leave before she woke up, and he never had blood on his shoes.

Defendant acknowledged telling Sergeant Fondel that Ms. Thomas had dropped

him off and picked him up from Fifth Avenue, contrary to his prior testimony

regarding the lengthy distances he walked.

After being unable to find a possible alibi witness to subpoena to obtain her

testimony, the Defense rested. Following closing arguments, the court returned its

verdict, stating its oral reasons, in pertinent part:

The defendant’s version, he admits that there was a sex act, but
his location would be a physical impossibility based on the scientific
evidence that was in fact submitted and received both on the victim
and the clothing of the victim. I do find his testimony to be self-
serving and incredulous in that aspect.

15

The totality of the evidence, both circumstantial and scientific,
exclude[s] every reasonable hypothesis. The Court is convinced
beyond a reasonable doubt that the defendant is responsible for the
death of Linda Moore and as such he will be found guilty of first
degree murder. As per [La.Code Crim.P.] Article 814 we need to -- or
873 -- I need to set a sentencing date.

Defendant now timely appeals his conviction and sentence, asserting one

assignment of error through counsel and one assignment of error through a pro se

brief filed by the Defendant.

ASSIGNMENTS OF ERROR

Defendant submits the following counseled assignment of error:

There was insufficient evidence to prove that Roman Joseph Lastrapes
was guilty beyond a reasonable doubt.

Defendant submits the following pro se assignment of error:

Appellate’s [sic] constitutional rights were violated by the trial court
when he did not knowingly and intelligently waive his right to a jury
trial.

LAW AND DISCUSSION

Errors Patent

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

errors patent on the face of the record. After reviewing the record, we find there is

a potential error patent regarding Defendant’s waiver of jury trial. This error is

raised in Defendant’s pro se brief and will be addressed as an assigned error.

Counseled Assignment of Error: Sufficiency of the Evidence

In his sole counseled assignment of error, Defendant contends there was

insufficient evidence to support his conviction for first degree murder. Specifically,

Defendant contends the State failed to prove Ms. Moore was not murdered by

either Mr. Paul Delafosse or Mr. Marlin Jenkins. We find that this assignment of

error lacks merit.

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The analysis for insufficient-evidence claims is well settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and
therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

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

Defendant was convicted of first degree murder, in violation of La.R.S.

14:30(A)(1), defined as the killing of a human being:

When the offender has specific intent to kill or to inflict great
bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, second degree kidnapping,
aggravated escape, aggravated arson, aggravated rape, forcible rape,
aggravated burglary, armed robbery, assault by drive-by shooting,
first degree robbery, second degree robbery, simple robbery,
terrorism, cruelty to juveniles, or second degree cruelty to juveniles.

Defendant was accused of killing Ms. Moore during the commission of an

aggravated rape. At the time of Ms. Moore’s death, aggravated rape was

relevantly defined under La.R.S. 14:42(A)(1) as a rape where the “anal, oral, or

vaginal sexual intercourse is deemed to be without lawful consent of the victim

because it is committed . . . [w]hen the victim resists the act to the utmost, but

whose resistance is overcome by force.” Accordingly, the State was required to

prove Defendant killed Ms. Moore while acting with specific intent to kill or to

inflict great bodily harm while perpetrating a rape in which the victim’s resistance

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was overcome by force. Considering the expert testimony and evidence submitted

at trial, the State has met its burden.

Both Mr. Hunter and Dr. Welke, accepted as experts in their fields, opined

that a struggle resulted in Ms. Moore being beaten until she was incapacitated and

unable to move. Both believed she was then raped and left unresponsive on the

ground with her genetalia exposed and her feet propped against the wall following

her assailant pushing her legs off his shoulders once he had achieved an orgasm.

Dr. Welke also testified that Ms. Moore was definitely raped in the same location

where she was discovered; both men believed whoever raped Ms. Moore was the

individual who killed her.

Mr. McDonnell, accepted as an expert in the fields of crime scene analysis

and blood stain pattern, testified that, in his opinion, there could have only been

one person attacking Ms. Moore. Ms. Quaal, accepted as an expert in DNA

analysis, testified the sperm recovered from inside Ms. Moore’s vagina and off her

buttocks belonged to Defendant. There was no mention of any other contributors.

In State v. Rubin, 16-456 (La.App. 3 Cir. 2/1/17), 211 So.3d 532, writ

denied, 17-406 (La. 12/15/17), 231 So.3d 641, this court found sufficient evidence

to sustain a first degree murder committed during the perpetration of an aggravated

rape. In Rubin, the evidence consisted of the defendant’s DNA being recovered

from inside of the victim, who was found naked in her apartment with over thirty

knife wounds. This court affirmed the conviction, despite multiple expert

witnesses refusing to say the victim had, in fact, been raped. We find the evidence

in the current case is significantly greater than in Rubin. Whereas Rubin was a

nearly thirty-year old cold case, law enforcement matched Defendant’s DNA to the

sperm found in and on Ms. Moore within a year of her death. Multiple experts

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testified she was beaten to the point of incapacitation, was raped, and then

subsequently died without ever having moved from where said rape occurred. As

recently noted by the second circuit:

Specific criminal intent is that state of mind which exists when
the circumstances indicate that the offender actively desired the
prescribed criminal consequences to follow his act or failure to act.
La. R.S. 14:10(1). As a state of mind, specific intent need not be
proven as a fact, but may be inferred from the circumstances of the
offense and the defendant’s actions. State v. Thornton, 47,598
(La.App. 2 Cir. 3/13/13), 111 So.3d 1130. Specific intent to kill or
inflict great bodily harm may be inferred from the extent and severity
of the victim’s injuries.

State v. Wilson, 50,589, pp. 8-9 (La.App. 2 Cir. 5/18/16), 196 So.3d 614, 620, writ

denied, 16-1102 (La. 5/12/17), 221 So.3d 72.

Based on the record on appeal, the State proved beyond a reasonable doubt

that Ms. Moore was the victim of a first degree murder during the perpetration of

an aggravated rape. The extent and severity of her injuries indicate her resistance

was overcome by force and further illustrate specific intent to kill or inflict great

bodily harm. The only question, then, becomes the identity of her murderer.

Defendant’s trial defense was that it could have been one of the two other suspects

who were investigated prior to the CODIS hit on the sperm recovered from the

victim. Defendant again raises the same argument to this court, which we find

unpersuasive.

As there were no eyewitnesses to the attack on Ms. Moore, Defendant’s

conviction is based, at least in part, upon circumstantial evidence. As such, this

court notes the following language from State v. Captville, 448 So.2d 676, 680

(La.1984):

When a case involves circumstantial evidence, and the jury
reasonably rejects the hypothesis of innocence presented by the
defendant’s own testimony, that hypothesis falls, and the defendant is

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guilty unless there is another hypothesis which raises a reasonable
doubt. An evaluation of the reasonableness of other hypotheses of
innocence provides a helpful methodology for determining the
existence of a reasonable doubt. As we have recognized in such cases
as State v. Wright, 445 So.2d 1198 (La.1984), State v. Graham, 422
So.2d 123 (La.1982), and State v. Sutton, 436 So.2d 471 (La.1983),
the court does not determine whether another possible hypothesis has
been suggested by defendant which could explain the events in an
exculpatory fashion. Rather, the reviewing court evaluates the
evidence in the light most favorable to the prosecution and determines
whether the alternative hypothesis is sufficiently reasonable that a
rational juror could not “have found proof of guilt beyond a
reasonable doubt”. Jackson v. Virginia, [443 U.S. at 324].

Although Defendant was convicted by a judge, not a jury, he nonetheless

took the stand in his own defense and attempted to argue that after he had

consensual sex with the victim, he left while she was arguing with Marlin Jenkins.

His identification of Mr. Jenkins from a photographic lineup, however, was

contrary to his previous viewing of the same lineup in 2010, when he identified

multiple other individuals as possibly being the person he saw arguing with Ms.

Moore. The trial court did not rely on Defendant’s 2010 initial interview

testimony, which was not submitted into evidence at trial, where Defendant,

contrary to his testimony at trial, was unable to identify Mr. Jenkins as the man

arguing with Ms. Moore. Defendant’s exculpatory evidence concerning the

identity of Mr. Jenkins was called into doubt by the lack of any DNA evidence

linking Mr. Jenkins to the crime scene and the murder of Ms. Moore. Additionally,

his attorney in his opening and closing statements argued law enforcement did not

do enough to exclude Mr. Delafosse as a potential suspect. The finder of fact

rejected Defendant’s testimony as “self-serving and incredulous.”

Defendant argued two hypotheses to explain Ms. Moore’s death in an

exculpatory fashion. However, neither hypothesis “is sufficiently reasonable that a

rational [judge] could not ‘have found proof of guilt beyond a reasonable doubt.’”

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Id. There was no evidence connecting Mr. Jenkins to the murder. Although a

single eyewitness had claimed to see Mr. Jenkins in the area near where Ms.

Moore was found at 6:15 a.m., Dr. Welke testified she likely died around 4:30 a.m.

Furthermore, there was no DNA evidence to connect Mr. Jenkins to the actual

crime scene in any fashion.

As for Mr. Delafosse, while his DNA was located under a single fingernail

of the victim, there was no other evidence to connect him to the murder. Law

enforcement investigated Mr. Delafosse and eventually excluded him as a suspect;

no evidence or testimony was presented to support Defendant’s contention that Mr.

Delafosse could have been responsible.

Given the expert testimony that a single assailant attacked Ms. Moore, beat

her until she was incapacitated, raped her, and left her to die in the same location

and in the same state she was in when raped, and Defendant’s sperm being both

inside her vagina and dripping down her buttocks, the evidence was more than

sufficient for a rational trier of fact to find Defendant guilty beyond a reasonable

doubt when viewed “in the light most favorable to the prosecution.” Jackson, 443

U.S. at 319.

Defendant’s Pro Se Assignment of Error: Right to a Jury Trial

In his sole pro se assignment of error, Defendant “contends that his United

States Constitutional rights were violated when he was not allowed to have a trial

by jury.” Defendant contends his attorney “made a decision to file the Motion to

Waive Trial by Jury on his own.” Additionally, he asserts his attorney did not

consult with him “before making such a drastic decision.” Nevertheless, both of

these claims are contradicted by the record before this court.

The right to waive a jury trial is encapsulated in La.Code Crim.P. art. 780:

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A. A defendant charged with an offense other than one
punishable by death may knowingly and intelligently waive a trial by
jury and elect to be tried by the judge.

B. The defendant shall exercise his right to waive trial by jury
in accordance with Article I, Section 17 of the Constitution of
Louisiana. The waiver shall be by written motion filed in the district
court not later than forty-five days prior to the date the case is set for
trial. The motion shall be signed by the defendant and shall also be
signed by defendant’s counsel unless the defendant has waived his
right to counsel.

C. With the consent of the district attorney the defendant may
waive trial by jury within forty-five days prior to the commencement
of trial.

D. A waiver of trial by jury is irrevocable and cannot be
withdrawn by the defendant.

Defendant correctly contends he was not present in court when the “Motion

to Waive Trial by Jury” was presented to the court; however, Defendant’s presence

is not necessary. The code article anticipates a written waiver, and Defendant

signed said written waiver prior to its presentation to the court. As noted in State

v. Edwards, 13-665, p. 4 (La.App. 4 Cir. 1/22/14), 133 So.3d 132, 135, writ

denied, 14-383 (La. 9/26/14), 149 So.3d 259:

A defendant need only know and understand that the choice
confronting her is, “on the one hand, to be judged by a group of
people from the community, and on the other hand, to have her guilt
or innocence determined by a judge.” State v. Bazile,12–2243, p. 17
(La.5/7/13), [144] So.3d [719, 733], 2013 WL 1880395. If a
defendant understands that choice, her jury waiver is deemed knowing
and intelligent. See id., 12–2243 at p. 18, [144] So.3d at [733]. No
greater proof of knowing and intelligent waiver is constitutionally or
jurisprudentially required. See State v. Johnson, 389 So.2d 1302,
1304-1305 (La.1980). Additionally, in reviewing a defendant’s claim
that her waiver of trial by jury was not knowing or intelligent, we do
not consider the strategic considerations, motivations, or benefits
underlying a defendant’s waiver, but instead restrict ourselves solely
to the issue of her knowledge. See Bazile, 12–2243 at p. 18, [144]
So.3d at [733].

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Accordingly, Defendant’s contention that he did not understand the strategy

behind waiving a jury trial is irrelevant. In light of Edwards and Bazile,

Defendant’s knowledge of trial counsel’s strategy is not a proper consideration.

Additionally, Defendant contends that he could not waive his right to a jury

trial because he was charged with first degree murder and Defendant argues the

case remains a capital case even if the district attorney does not seek the death

penalty. Once again, we find that this argument lacks merit. Under La.R.S.

14:30(C)(2), it is clear that a first degree murder case where the death penalty is

not sought does not constitute a capital offense:

If the district attorney does not seek a capital verdict, the
offender shall be punished by life imprisonment at hard labor without
benefit of parole, probation or suspension of sentence. The provisions
of Code of Criminal Procedure Article 782 relative to cases in which
punishment is necessarily confinement at hard labor shall apply.

The statute is clear: if the district attorney does not seek the death penalty, as

was the situation in this case, the case is not considered a capital case. Prior to

2019, La.Code Crim.P. art. 782 stated that a capital case was to be tried before a

twelve member jury, all of whom must concur to return a verdict; cases where

punishment was necessarily confinement at hard labor required a twelve member

jury, only ten of whom had to concur. A conviction for any crime committed after

January 1, 2019, requires a unanimous verdict. See 2018 La. Acts No. 493, § 1.

Following Defendant’s argument that first degree murder is a capital case

even if the death penalty is not sought, no defendant could be found guilty by a

non-unanimous jury in any first degree murder case. This argument is without

merit. See State v. Bishop, 10-1840 (La.App. 1 Cir. 6/10/11), 68 So.3d 1197, writ

denied, 11-1530 (La. 12/16/11), 76 So.3d 1203.

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Furthermore, this court has previously rejected the exact argument

Defendant is now raising. In State v. Lewis, 09-846 (La.App. 3 Cir. 4/7/10), 33

So.3d 1046, writ denied, 10-967 (La. 11/24/10), 50 So.3d 825, the defendant

argued his two convictions for first degree murder, returned after a bench trial,

were invalid because he could not waive his right to a jury trial. In Lewis, the State

actually initially sought the death penalty, then reversed course and opted not to

seek capital punishment; the defendant waived his right to a jury trial after the

State took the death penalty off the table. This court affirmed the defendant’s

convictions, noting he suffered no prejudice since the death penalty was not a

possible punishment and the defendant actually requested a bench trial. Although

Defendant attempted to withdraw his waiver of his right to a jury trial in the instant

case, the fact remains he was not facing the death penalty and he signed the waiver

requesting a bench trial. Defendant’s argument lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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