State of Louisiana v. Elizabeth Trahan A/K/A Elizebeth Trahan

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-873

STATE OF LOUISIANA

VERSUS

ELIZABETH TRAHAN

A/K/A ELIZEBETH TRAHAN

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 59524
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett and Billy H. Ezell,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

SAUNDERS, J., dissents and assigns reasons.

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(337) 336-8994
COUNSEL FOR DEFENDANT-APPELLANT:
Elizabeth Trahan

Keith A. Stutes
District Attorney, Fifteenth Judicial District
John V. Ghio
Assistant District Attorney
100 N. State St., Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana
1

PICKETT, Judge.

FACTS

The victim, Carl Johnson, was northbound on U.S. Highway 167 in

Vermilion Parish on December 15, 2015, when his motorcycle was struck from

behind by a Dodge Charger. Mr. Johnson died as a result of injuries he sustained

in the crash.

The defendant, Elizabeth Trahan, was charged with vehicular homicide, a

violation of La.R.S. 14:32.1; reckless operation of a vehicle, a violation of La.R.S.

14:99; obstruction of justice, a violation of La.R.S. 14:130.1; injuring public

records, a violation of La.R.S. 14:132; and failure to notify of her change of

address for driver’s license purposes, a violation of La.R.S. 32:406. The charges

stemmed from the accident in which the victim, Mr. Johnson, died.

At the close of evidence at trial, the trial court granted the defendant’s

motion for a judgment of acquittal on the charge of obstruction of justice. The jury

found the defendant guilty of vehicular homicide on January 16, 2019. The state

dismissed the remaining charges. The defendant filed a motion for new trial and/or

post-verdict judgment of acquittal and/or in arrest of judgment on April 23, 2019.

The trial court denied the motion on August 23, 2019.

The trial court sentenced the defendant to fifteen years at hard labor with all

but six years suspended. Those six years are to be served without benefit of parole,

probation, or suspension of sentence. The defendant will be placed on active

supervised probation with special conditions for three years upon release. The

defendant filed a motion to reconsider her sentence on grounds of excessiveness on

September 25, 2019. The trial court denied that motion without a hearing on

October 1, 2019.

ERRORS PATENT

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

this court for errors patent on the face of the record. After reviewing the record,

this court finds two errors patent involving the sentence imposed. The trial court

failed to impose a payment plan as to certain fees imposed as conditions of

probation and the trial court failed to set a probation supervision fee.

As part of the sentence imposed by the trial court, the defendant was ordered

to pay $40.00 to the indigent defender board and $420.50 in court costs. This court

has held that if costs or fines are imposed as a condition of probation, the trial court

must establish a specific payment plan. State v. Arisme, 13-269 (La.App. 3 Cir.

10/9/13), 123 So.3d 1259. Therefore, we remand the case to the trial court with

instructions to establish a payment plan for the fees imposed, noting that the plan

may either be determined by the trial court or by the Department of Probation and

Parole with approval by the trial court.

The trial court failed to impose a supervision fee as a condition of the

defendant’s probation. The trial court ordered the defendant to “pay a supervision

fee to defray the costs of probation,” but failed to specify a monthly probation

supervision fee. Louisiana Code of Criminal Procedure Article 895(A) provides in

pertinent part: “When the court places a defendant on probation, it shall require

the defendant to refrain from criminal conduct and to pay a supervision fee to

defray the costs of probation supervision . . .” Article 895.1(C) further provides

that the supervision fee must be paid monthly and must not be less than $60.00 nor

more than $110.00.

This court has stated the following regarding a trial court’s failure to set a

probation supervision fee:

2

The defendant’s sentence does not necessarily have to be
vacated if the trial court decides to set the minimum monthly
supervision fee. See State v. Harris, 93-1098 (La.1/5/96); 665 So.2d
1164. In Harris, the Louisiana Supreme Court remanded the case
and gave the trial court the option of amending the court minutes to
reflect the change in sentence without bringing the inmate to court.
The court stated that the district judge retains the discretion to vacate
the sentence originally imposed and to resentence the inmate in open
court. Harris allowed ministerial corrections of the record in
instances where the trial court failed to impose special restrictions
required by law. However, the trial court has some discretion in
setting the probation supervision fee, as it can impose a fee between
twenty and one hundred dollars per month. Therefore, if the trial
court opts to assess the minimum fee required by law, it can correct
the sentence in accordance with the procedures set forth in Harris.
However, if the trial court wishes to set a higher fee, the trial court
should vacate defendant’s sentence and resentence him in open court.
Therefore, although we affirm the defendant’s conviction, we must
remand the case to the trial court with instructions to set a monthly
probation supervision fee to be paid in accordance with article
895.1(C).

State v. Iles, 96-256, pp. 4-5 (La.App. 3 Cir. 11/6/96), 684 So.2d 38 at 40-41.

In accordance with Iles, the present case is remanded for the trial court to

impose a specific supervision fee as a condition of the defendant’s probation. The

trial court should follow the procedure set forth in Harris if it imposes the

minimum supervision fee. If, however, it chooses to impose a higher fee, the trial

court must vacate the sentence imposed and resentence the defendant in open court.

ASSIGNMENTS OF ERROR

The defendant asserts two assignments of error on appeal:

1. The state failed to prove sufficiently that Elizabeth Trahan was guilty
of vehicular homicide. The state failed to prove that she was the
operator of the car. Alternatively, even if she was the operator, the
state failed to prove how the drugs in her system contributed to the
accident in any way.

2. The trial court erred in denying the motion for a new trial. The clerk
of court failed to re-issue subpoenas for defense witnesses, while
doing so for the state without any need for a subsequent request to
subpoena witnesses. A key witness for the defense was never served
and did not appear for trial to testify. The clerk’s error was not
harmless, and the ends of justice required a new trial be granted.

3

Assignment of Error Number One

The defendant contends the state failed to sufficiently prove she was guilty

of vehicular homicide because it did not prove she was the operator of the car.

Alternatively, the defendant argues, even if she were the operator, the state failed

to prove how drugs in her system contributed to the accident.

The standard of review in a sufficiency of the evidence claim is “whether,

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found proof beyond a reasonable doubt of each of the

essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.

7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279 (2007)

(citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Captville,

448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively

embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to

substitute its own appreciation of the evidence for that of the fact-finder.” State v.

Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521 (citing State v. Robertson,

96-1048 (La. 10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847

(La.1990)). The appellate court’s function is not to assess the credibility of

witnesses or to reweigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661

So.2d 442.

The factfinder’s role is to weigh the credibility of witnesses. State v. Ryan,

07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268 (citing State v. Lambert, 97-64,

pp. 4-5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27). Thus, other than

insuring the sufficiency evaluation standard of Jackson, “the appellate court should

not second-guess the credibility determination of the trier of fact,” but rather, it

should defer to the rational credibility and evidentiary determinations of the jury.

Id. at 1270 (quoting Lambert, 720 So.2d at 726-27). Our supreme court has stated:
4

However, an appellate court may impinge on the fact finder’s
discretion and its role in determining the credibility of witnesses “only
to the extent necessary to guarantee the fundamental due process of
law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In
determining the sufficiency of the evidence supporting a conviction,
an appellate court must preserve “ ‘the factfinder’s role as weigher of
the evidence’ by reviewing ‘all of the evidence . . . in the light most
favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120],
[134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 (quoting Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979)). When so viewed by an appellate court, the relevant question
is whether, on the evidence presented at trial, “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Applied in cases relying on circumstantial evidence, . . . this
fundamental principle of review means that when a jury “reasonably
rejects the hypothesis of innocence presented by the defendant[ ], that
hypothesis falls, and the defendant is guilty unless there is another
hypothesis which raises a reasonable doubt.” State v. Captville, 448
So.2d 676, 680 (La.1984).

State v. Strother, 09-2357, pp. 10-11 (La. 10/22/10), 49 So.3d 372, 378 (first

ellipses and third alteration in original).

Vehicular homicide is defined, in pertinent part, as:

the killing of a human being caused proximately or caused directly by
an offender engaged in the operation of, or in actual physical control
of, any motor vehicle, aircraft, watercraft, or other means of
conveyance, whether or not the offender had the intent to cause death
or great bodily harm, whenever any of the following conditions exist
and such condition was a contributing factor to the killing:

(1) The operator is under the influence of alcoholic beverages
as determined by chemical tests administered under the provisions of
R.S. 32:662.

....

(3) The operator is under the influence of any controlled
dangerous substance listed in Schedule I, II, III, IV, or V as set forth
in R.S. 40:964.

(4) The operator is under the influence of alcoholic beverages.

....

(7) The operator’s blood has any detectable amount of any
controlled dangerous substance listed in Schedule I, II, III, or IV as set
forth in R.S. 40:964, or a metabolite of such controlled dangerous
5

substance, that has not been medically ordered or prescribed for the
individual.

La.R.S. 14:32.1(A).

The plain text of [La.R.S. 14:32.1(A)] now requires the state to prove
four things: 1) the killing of a human being; 2) caused proximately or
caused directly by an offender engaged in the operation of, or in
actual physical control of, any motor vehicle; 3) a prohibited degree of
intoxication; and 4) a link between the intoxication and the killing.
Most importantly, the link between the intoxication and the killing
does not have to be a “proximate cause,” but simply a “contributing
factor.”

A “proximate cause” is one that directly produces an event and
without which the event would not have occurred. See Black’s Law
Dictionary (10th ed. 2014). By contrast, a “contributing cause” is a
factor that - though not the primary cause - plays a part in producing a
result. See id. A “factor” is an agent or cause that contributes to a
particular result. See id.; see also “Factor,” American Heritage
Dictionary (5th ed. 2019) (“One that actively contributes to an
accomplishment, result, or process”).

Leger, 284 So.3d at 615-16 (footnote omitted). The Leger court found the parties

stipulated to the defendant’s intoxication, “and the pre-collision evidence showed”

causation. Id. at 618. Thus, the supreme court affirmed the defendant’s

conviction.

In this case, the defendant and her boyfriend, Victor Guilamo, were traveling

north on Highway 167. The central issue at trial was whether she or Mr. Guilamo

was the driver of the Dodge Charger at the time of the collision. There is no

question that they were both occupants of the vehicle.

Carmelite Miller was traveling north on Highway 167 between Maurice and

Abbeville on February 12, 2015, when she witnessed the crash. She was driving in

the left lane around seventy miles per hour. She testified a dark Dodge car passed

her “going pretty fast.” Ms. Miller saw the crash and “saw the motorcycle fly to the

left, into the median.” The motorcyclist flew into the air and over the car that hit it

6

and landed on the road between that car and Ms. Miller’s vehicle. She testified if

she had not “slammed on the brakes, [she] would have run over the victim.”

Ms. Miller, a first responder and nursing student, got out of her vehicle and

provided aid to the victim lying in the road. She testified the defendant came from

the driver’s side of the car and ran to the victim as Ms. Miller was providing aid.

The defendant had blood on her forehead and “was quite upset, very hysterical.”

Ms. Miller testified she was the first person to reach the victim. She testified the

defendant said, “Please don’t let him die. I didn’t mean to hit him.” Other people

who had stopped at the scene went to sit with the defendant as Ms. Miller

continued to render aid.

Ms. Miller testified that she did not see the defendant get out of the car. She

did see the defendant come from the driver’s side of the of the car as she ran over

to the victim and made the above statement.

Jessica Comeaux was at work at Sam’s Country Store at the time of the

accident. She testified she heard a motorcycle, saw it turn as if to come into the

store’s parking lot, and “saw the car just like slam into him.” Ms. Comeaux saw a

girl in a pink shirt get “out of the front seat of the car.” She testified she saw the

entire accident through the store window.

On cross-examination, Ms. Comeaux again said she saw the defendant exit

the vehicle, and she never saw anyone else leave the car. When questioned about

vehicles that possibly impeded her view of the accident, she stated, “I watched the

whole—like the thing happen.”

Natalie Bienvenue was a registered nurse in the emergency room at

Lafayette General Hospital on the day of the accident and treated the defendant.

She noticed redness on the defendant’s left shoulder but no other injuries, and she

7

did not document any injuries or complaints. Ms. Bienvenue collected a urine

specimen from the defendant.

Leah Meade worked as the senior analyst in the toxicology unit of the State

Police Crime Lab before her retirement. She performed the analysis of blood and

urine specimens of both the defendant and the victim. She found no ethyl alcohol

detected in the blood of either, and she found “[n]o drugs of tox significance” in

the victim’s blood. The defendant’s blood, however, contained amphetamine and a

major metabolite of tetrahydrocannabinol, otherwise known as THC or marijuana.

Her urine sample also contained amphetamine, along with 7-aminoclonazepam, a

metabolite of the drug Clonazepam, and a marijuana metabolite. Ms. Meade

testified the defendant had detectable amounts of four types of drugs in her system.

She could not quantify any of the substances or determine whether the defendant

was under the influence of any of them at the time of the accident, but she

explained the results showed the defendant had at least the threshold limit of

fifteen nanograms per mil of THC. Ms. Meade could not determine when the

defendant ingested the THC.

The defendant testified she had smoked marijuana and used amphetamine

salts on the morning of the accident, and she admitted those were both illegal

drugs. She also testified she had taken Klonopin and Prozac that day. The

defendant testified she had a prescription for Klonopine. The defendant did not

indicate whether she had a prescription for Prozac.

State Police Master Trooper Craig Alexander was dispatched to Lafayette

General Hospital to obtain “some blood from the driver” involved in the crash. He

received the specimens from the defendant. Trooper Alexander read the defendant

her rights, and she gave him a written statement at the hospital. The defendant said

in her statement that she was a passenger in the vehicle. She said she was using
8

Google on her phone, trying to find the address to their destination, Evangeline

Downs. The statement said “Vic slammed the brakes.” Trooper Alexander thought

“Vic could have been the other guy that was in the vehicle with her[,]” but he

never saw him. In fact, Mr. Guilamo left the hospital before anyone from law

enforcement arrived.

State Police Trooper Kevin Prejean was dispatched to the scene of the

accident. He described Highway 167 as a divided roadway connected by a series of

crossovers. Upon arrival at the scene, he saw tire marks, skid marks, and debris in

the roadway and skid marks and tire marks going into the grass median.

A black Dodge Charger had rear-ended a motorcycle. Neither the

motorcyclist nor the driver or any occupants of the car were still at the scene when

Trooper Prejean arrived. Trooper Prejean spoke to Ms. Miller, Ms. Comeaux, and

another witness, Jennifer Romero, at the scene. They all said they had witnessed

the crash. Two of them identified the driver of the car or the person coming from

the driver’s side as a white female. Ms. Comeaux identified the driver as a white

female wearing a pink shirt. Trooper Prejean testified Ms. Romero stated the

“motorcycle slowed quickly . . . and the Charger hit it from behind[.]” Ms. Romero

did not testify at trial.

The motorcycle seat was embedded in the front grill of the car. Trooper

Prejean noted the driver’s seat of the car was moved closer to the dashboard than

the passenger seat and took measurements of the car’s interior to memorialize the

position of each seat. The speed limit at the crash site was sixty-five miles per

hour.

When Trooper Prejean completed the on-scene portion of his crash

investigation, he and his supervisor, Lieutenant Bill Comeaux, went to Lafayette

General Hospital and spoke to the defendant, who was wearing a pink shirt. She
9

told Trooper Prejean she and Mr. Guilamo were going to Evangeline Downs, and

“she was scanning through some destinations on the GPS and did not see the

casino’s address on her phone.” She stated she was not the driver of the car, which

was contrary to what Trooper Prejean had been told at the scene. Trooper Prejean

noticed blood on the defendant’s forehead and testified her pupils were dilated.

The defendant told Trooper Prejean the other person in the car was not

present. He had left the hospital. Trooper Prejean asked the defendant to call him,

but she said he had her cell phone. The defendant contacted Mr. Guilamo using a

hospital speaker phone, and Trooper Prejean listened to their conversation.

Trooper Prejean heard Mr. Guilamo say he “did not know the location of the

crash he was involved in.” Mr. Guilamo told the defendant:

the motorcycle rider went through the windshield of their vehicle.
And he told Ms. Trahan he didn’t do anything. He was adamant that
the [motorcycle] driver did not die. He told Ms. Trahan, “Even if I
told the State Police I was the driver, they would not believe me.”
They began to argue over their personal relationship at that point in
time.

The defendant’s statement to Trooper Prejean on the night of the accident

said she was looking down, and when she looked up, the motorcyclist was almost

at a complete stop to turn left. The defendant said she jumped from the passenger’s

side and ran to assist the motorcyclist after the crash. A white female approached

her and told her to sit on the side of the road. The defendant said she retrieved her

phone from the passenger side of the car and called her father.

The defendant told Trooper Prejean “she took medication for anxiety,

depression, insomnia, and she was anemic.” She told him “she had taken Klonopin

the night before last . . . . And then she explained to [Trooper Prejean] that she had

smoked a bowl of marijuana earlier that morning at 0500 hours, and that she had

taken Mr. Guilamo’s amphetamine salts that day as well.” Trooper Prejean smelled

10

no alcohol on the defendant’s breath. He did note her pupils were dilated in a well-

lit room.

Trooper Prejean went to Sammy’s Country Store the day after the accident

in hopes its surveillance camera had captured video of the crash. Although the

video did not show the actual collision, it showed northbound and southbound

traffic flow, including the Dodge Charger.

Trooper Prejean’s accident report indicated the surveillance video showed a

white box truck in the parking lot of Sammy’s Country Store that obstructed the

camera’s view of the northbound lane of the roadway. The video showed the crash

occurred at 1:54:05, and a female exited the front door of Sammy’s at 1:54:17.1

The video did not show who exited the driver’s side of the vehicle or the defendant

running ran back and forth, to and from, the motorcycle driver, and it did not show

Mr. Guilamo. The video was neither introduced into evidence nor shown to the

jury at trial.2

Trooper Prejean was not able to reach Mr. Guilamo until February 17, five

days after the accident. Mr. Guilamo was at the Belle Casino in Baton Rouge and

said he could not come to Troop I to give a statement because he did not have a

car. Trooper Prejean made arrangements to call Mr. Guilamo the next day, but Mr.

Guilamo did not answer his phone.

When Trooper Prejean again called the defendant’s phone number on

February 20, Mr. Guilamo answered. Trooper Prejean went to Mr. Guilamo’s

residence in Lafayette, and Mr. Guilamo gave him a statement. This was eight

1
Trooper Prejean testified “the actual time of the crash was 14:54, which is
2:54 p.m. . . . it was an hour difference between the video surveillance and the time
of the crash.”
2
The defendant made no objection to Trooper Prejean’s testimony about the
surveillance video or what he testified his report said about it.

11

days after the accident. Mr. Guilamo said he and the defendant were returning

home from a friend’s house in Abbeville on the day of the accident. He told

Trooper Prejean he was driving the car, and he described the accident to the

trooper Prejean. He said Defendant immediately got out of the car to assist the

injured motorcyclist.

Trooper Prejean discovered Mr. Guilamo’s personal and commercial

driver’s licenses were suspended at the time of the crash because of an accident in

Lafayette in 2014. The licenses had not been reinstated.

No fingerprints or DNA swabbing was done on the steering wheel of the car.

Although photographs of the interior of the car showed a red cup on the passenger

side, no swabs were taken to determine who may have touched it or drunk from it.

On February 21, Trooper Prejean and Lieutenant Comeaux met with the

defendant and Mr. Guilamo at their residence. They all went to Ray Chevrolet

where the Dodge Charger was secured. Trooper Prejean videoed the defendant and

Mr. Guilamo each sitting in the driver’s seat. That video was played for the jury

but was not introduced into evidence.3 The jury had the opportunity to see both

individuals sit in the driver’s seat and also where the contents of the car were

located. At the conclusion of his investigation, Trooper Prejean identified the

defendant as the driver of the car.

After Trooper Prejean obtained toxicology results on June 1, he obtained an

arrest warrant for the defendant on June 18.

The defendant testified at trial after the trial court established that she

understood her rights. She said they were coming from a friend’s house going to

the casino at Evangeline Downs. She said she was a passenger in the vehicle driven

3
The defendant’s attorney indicated he did not object to Trooper Prejean’s
testimony about the video of the car.
12

by her boyfriend, Mr. Guilamo. She was trying to find the casino address to enter it

into the GPS, but she could not do that when the car was in motion. She testified

Mr. Guilamo was driving the car.

The defendant said she remembered a brochure in her purse that showed the

casino’s address, and she bent forward, “looking on the bottom floor.” She

testified, “And Vic, my boyfriend, he said, ‘Oh, my God.’ And when he said that,

I looked up and it was too late. The motorcycle was already in front of us.” She

immediately exited the car and ran to assist the motorcyclist. She “laid down with

him and held him and prayed over him and explained – was telling him, ‘I’m very

sorry, that my boyfriend didn’t see you and hit’ –[.]” The defendant said she had

the victim’s blood all over her hands, and some got on her forehead when she

brushed her hair out of her face. She testified authorities were told the blood on her

forehead “was from an injury, but it wasn’t.” The defendant disagreed with

testimony that said she admitted to being the driver. She testified that she would

not have said that because she was not driving. She was “pretty sure [she] stated

‘we didn’t mean to’ [hit the motorcyclist].”

The defendant identified her phone charger, wallet, and cup in a photograph

of the floor of the passenger side of the car. She testified that was where she was

sitting at the time of the accident. She said she was confused about why her

boyfriend had the option of going to the hospital, but she felt she was being forced

to go. She said she was not allowed to sign a waiver refusing treatment, but Mr.

Guilamo was given that option. He rode to the hospital in the ambulance with her.

At the hospital, Mr. Guilamo “left to go do something with an envelope –

put it in their little mail slot in the hospital[.]” He never came back. He took her

phone with him. When Trooper Prejean arrived, she tried to call Mr. Guilamo for

thirty to forty-five minutes before he finally answered. She said she “asked him
13

every single question that they wanted [her] to ask, but they didn’t want [her] to let

him know that it was on a speaker and that they were listening.” She heard him say

the police would not believe him if he said he was driving, but she had “no idea”

why he said it. She said she did not know his driver’s license was suspended or

that he had been involved in a prior accident. The defendant was upset because Mr.

Guilamo “wouldn’t come back to explain or to do the same thing” she was doing.

The defendant verified she gave statements to Trooper Alexander and

Trooper Prejean that night. She admitted taking her medication, smoking pot

around 5:00 a.m., and using amphetamine salts she obtained from Mr. Guilamo

earlier in the day. She testified she had taken her prescribed Klonopin the day

before the crash. The defendant testified she thought she “was normal,” not under

the influence of any of the drugs, at the time of the crash. She said her prescription

medication was for anxiety, depression, and insomnia.

The defendant testified that Mr. Guilamo called his pastor and ex-girlfriend

immediately after the accident. She said he offered no help to the motorcyclist

lying in the road. He never gave a statement at the scene to let them know he was

the driver. The defendant testified Mr. Guilamo “didn’t even not once get out to

check on [her] or even check on the guy that was laying [sic] limp in the road.”

She said to the jury, “I wasn’t the driver. Please believe me.” She testified Guilamo

had admitted to several members of her family that he was the driver. None of the

people, however, testified in court.

At the time of trial, the defendant and Mr. Guilamo lived together. She

testified they were not in a relationship anymore, but they were “co-parenting”

their twin boys. Mr. Guilamo was watching the children while the defendant was

attending the trial. Mr. Guilamo did not appear to testify at the trial.

14

Was the defendant driving the car?

Ms. Comeaux testified she witnessed the crash through a window from

inside Sammy’s Country Store, and she saw the defendant exit the vehicle from the

driver’s side. Trooper Prejean testified it was possible to see the collision while

standing inside the store. He acknowledged there were vehicles in the parking lot.

Although the testimony established a box truck blocked the view of the

surveillance camera, there was no evidence that the truck impeded Ms. Comeaux’s

view. She unequivocally testified that she saw the accident happen and that she

saw a white lady in a pink shirt get out of the driver’s side of the Dodge Charger.

Ms. Comeaux never denied there were vehicles on the parking lot. She testified her

view was unimpeded. The jury obviously believed her testimony.

Ms. Miller also identified the defendant as the driver. However, as a nursing

student and first responder, her first priority was providing emergency care to the

victim. Although Ms. Miller testified she saw the defendant come from the driver’s

side of the car, she also testified she never saw anyone actually exit the vehicle. Ms.

Miller’s testimony that she heard the defendant say, “I didn’t mean to hit him” was

uncontroverted except by the defendant’s testimony that she did not say it.The jury

viewed the videotape of both the defendant and Mr. Guilamo sitting in the driver

seat of the car. They saw the contents of the vehicle and were aware of the

location of the defendant’s purse and phone charger. Although the defendant

argues the location of the phone charger bolsters her claim she was a passenger, the

jury also heard Trooper Prejean’s testimony that every time he called the

defendant’s phone, her boyfriend answered it.

Ms. Bienvenue, the nurse at the hospital emergency room, testified the

defendant was uninjured except for redness on her left shoulder, which the state

argued was caused by the driver-side seatbelt. The jury was presented with
15

statements made by Mr. Guilamo to the trooper investigating the accident wherein

he stated he was the driver, as well as the fact that he made himself unavailable for

eight days. While there was certainly conflicting evidence, when the evidence

presented to the jury is viewed in a light most favorable to the prosecution, a

rational trier of fact can conclude the defendant was the actual driver of the car. We

cannot consider evidence, including statements made by witnesses to Trooper

Prejean and included in his report, that were not introduced into evidence. It is

impermissible for this court to second guess credibility determinations made by the

jury.

Were drugs in the defendant’s system a “contributing factor”?

In order to find the defendant guilty of the offense of vehicular homicide,

however, the jury was also required to find proof beyond a reasonable doubt that

the drugs in her system were a contributing factor to the accident. La.R.S.

14:32.1(A); State v. Leger, 17-2084 (La. 6/26/19), 284 So.3d 609. Whether the

drugs were a contributing factor is a determination that must be made by the jury

after considering all the facts and circumstances surrounding the collision.

This accident occurred at approximately 2:30 p.m. on a day with clear

weather and sunshine. At trial, Ms. Miller testified she was driving in the left lane

in excess of seventy miles per hour when the Dodge Charger passed her on the

right. The Charger then apparently moved back into the left lane because she

testified the collision occurred directly in front of her. She said she had to slam on

her brakes to avoid being involved. She was, however, able to stop.

Ms. Comeaux testified she heard the motorcycle coming and saw that the

motorcycle slowed and turned into the crossover toward the store parking lot when

the car slammed into him from behind.

16

Trooper Prejean testified that the statement from Mr. Guilamo indicated the

motorcycle came to an abrupt stop in front of him and he could not avoid hitting

him. He did not testify at trial, and the jury obviously rejected his claim to be the

driver. The collision between the car being driven by the defendant was obviously

a violent one since the seat of the motorcycle was embedded in the grill of the

Charger. There was no evidence presented that the defendant tried to stop before

hitting the motorcycle.

Although the defendant’s toxicology report showed the presence of

amphetamine, 7-Aminoclonazepam, and a marijuana metabolite in her blood and

urine, the levels of these drugs were not established. The defendant admitted she

had smoked marijuana around 5:00 a.m. and used amphetamine salts on the day of

the accident, which occurred just before 3:00 p.m. She had taken prescription

Klonopin the night before the accident and Prozac that morning. Ms. Meade

testified the defendant had at least the threshold limit of THC in her system.

Trooper Prejean testified the pupils of the defendant’s eyes were dilated at the

hospital after the accident, an indication she was under the influence of these drugs.

The fact of the presence of these drugs in the defendant’s blood and urine

does not allow the jury to assume the defendant was impaired or that the presence

of those substances was a contributing factor in the accident. The jury can,

however, consider the surrounding circumstances, including the reckless manner in

which the vehicle was being operated, the speed at which the vehicle was being

operated, and the defendant’s inability to respond to a vehicle slowing down in her

lane. The jury knew the vehicle immediately behind the defendant’s vehicle, which

was admittedly operating over the speed limit, was able to come to a complete stop

to avoid the accident. The jury heard eyewitness testimony as to how the accident

occurred. When viewing the evidence under the Jackson standard, there is
17

sufficient evidence to support the jury’s conclusion that the drugs impaired her

ability to respond and was thus a contributing factor in the accident which took Mr.

Johnson’s life.

Conclusion

When viewing the evidence in a light most favorable to the prosecution, we

find a reasonable jury could conclude that the defendant was the driver of the

Dodge Charger which struck and killed Mr. Johnson, that she was under the

influence of controlled dangerous substances listed in Schedule I and II and

detectable amounts were found in her blood, and the impairment caused by these

drugs was a contributing factor in the accident that caused the victim’s death. The

defendant’s conviction is affirmed.

Assignment of Error Number Two

The defendant argues the trial court erred in denying her motion for a new

trial. She argues the clerk of court failed to re-issue subpoenas for defense

witnesses, and a key witness for the defense was never served and did not appear at

trial to testify. The defendant argues the ends of justice requires a new trial be

granted.

In State v. Friday, 43,157, pp. 7-8 (La.App. 2 Cir. 3/26/08), 979 So.2d 672,

676, writ denied, 08-860 (La.11/14/08), 996 So.2d 1088, the second circuit set

forth the standard for appellate review of a motion for a new trial:

The denial of a motion for new trial is not subject to appellate
review except for error of law. La. C. Cr. P. art. 858; State v. Horne,
28,327 (La.App.2d Cir.8/21/96), 679 So.2d 953, writ denied, 96-2345
(La.2/21/97), 688 So.2d 521. The decision on a motion for new trial
rests within the sound discretion of the trial court. State v. Horne,
supra. The appellate court will not disturb this ruling on appeal
absent a clear showing of abuse. Id. Generally, a motion for new trial
will be denied unless injustice has been done, no matter on what
allegations it is grounded. State v. Dowden, 41,939 (La.App.2d
18

Cir.3/28/07), 954 So.2d 300, writ denied, 07-909 (La.11/9/07), 967
So.2d 501; State v. Horne, supra.

See also State v. Hollier, 09-1084 (La.App. 3 Cir. 4/7/10), 37 So.3d 466,

writ denied, 10-1037 (La. 12/10/10), 51 So.3d 722.

A hearing was held on the motion for a new trial at which the witness at the

heart of the motion and argument, Victor Guilamo, testified that he was the driver

of the vehicle that hit and killed Mr. Johnson. The trial court considered the

testimony at the hearing and the evidence produced at trial. In well-written

Reasons for Ruling, the trial court determined: (1) the evidence is not newly

discovered, as both the defendant and her attorney were aware at trial that the

witness had not been subpoenaed and failed to request an appropriate remedy, (2)

the defendant and Mr. Guilamo actually lived together at the time the trial was

being held, (3) he was watching their children while she was at trial, and (4) when

asked at trial if she wanted Mr. Guilamo to be present, she replied “No.” The trial

court concluded the defendant is not entitled to a new trial based on La.Code

Crim.P. art. 851(B)(3) or (4).

Upon review, we cannot say the trial court abused its discretion in

determining the defendant is not entitled to a new trial. This assignment of error

lacks merit.

CONCLUSION

The defendant’s conviction for vehicular homicide is affirmed. The case is

remanded for the trial court to establish a specific payment plan and to set a

probation supervision fee.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

19

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

19-873

State v. Elizabeth Trahan

Saunders, J., dissents and assigns written reasons.

I disagree with the majority’s finding that the state carried its burden of proof

in the matter below. One of the elements the state must prove is that Defendant was

intoxicated. Another is that the substances ingested by the Defendant were a factor

in the victim’s death. Despite these required elements, the state produced no

evidence of either.

In cases where intoxication or drug induced impairment are a required

element, expert testimony is generally used to establish the amount of a substance

the defendant has in his or her system and how that amount would influence the

defendant. This expert testimony is then corroborated by evidence of failed sobriety

tests, slurred speech, or other visible signs of intoxication. See State v. Dock, 49,784

(La. App. 2 Cir. 6/3/15), 167 So. 3d 1097, 1101; State v. Kestle, 2007-1573 (La.

12/2/08), 996 So. 2d 275, 281.

The Louisiana Supreme Court has explained that “[i]n some instances, the

state likely would have to introduce expert testimony concerning the probable

physiological effects of the intoxicant ingested by the defendant, especially in a case

involving a prohibited substance other than alcohol.” State v. Leger, 2017-2084 (La.

6/26/19), 284 So. 3d 609, 616. Here, we have the type of case singled out by the

Court in Leger (“a case involving a prohibited substance other than alcohol”). As

such, I feel that the state need have introduced expert testimony on the effects of the

substances in Defendant’s system. This was not done. Rather, the state’s expert

could only testify that Defendant had detectible amounts of four types of drugs,

including at least a threshold amount of THC. Further, the state’s expert

testified that she was unable to tell whether Defendant was under the influence of

any the substances found in the test nor could she testify with certainty as to when

Defendant had ingested the substances. This testimony does not carry the state’s

burden.

Moreover, Trooper Prejean never testifies that Defendant was impaired.

Trooper Prejean did testify that Ms. Trahan’s eyes were dilated when he saw her at

the hospital. However, he did not testify that this suggested impairment nor did the

state attempt to qualify Trooper Prejean as an expert. Finally, the state did not

establish that Trooper Prejean had requisite knowledge, training, or experience to

give a lay opinion on whether Ms. Trahan was impaired based on his observations.

State v. Friday, 10-2309 (La.App. 1 Cir. 6/17/11), 73 So. 3d 913, writ denied, 11-

1456 (La. 4/20/12), 85 So. 3d 1258; State v. Stewart, 357 So. 2d 1111 (La.1978).

Furthermore, I find no clear indication in the record that Defendant was

driving the vehicle at the time of the accident. Contrarily, I feel the evidence

indicates that it is just as likely that Victor Guilamo was the driver as it was

Defendant.

First, I would give credence to the statement given to Trooper Prejean by

Charlot Davis. Davis, an impartial witness, had a superior point of view of the

accident and aftermath given she was in the vehicle directly behind the accident.

After the accident, Ms. Davis pulled over in the left lane and would have had a clear

view of which side Mr. Guilamo and Defendant exited the vehicle. Ms. Davis stated

that she “saw a white female with long hair get out of the passenger side of the

Charger” and “a dark male exited the Charger from the driver side.” Given her

proximity to the accident, Ms. Davis, who did not know either Mr. Guilamo or

Defendant, had a clear and unobstructed view.

2

Ms. Davis’s statement is corroborated by the passenger in her vehicle, Russell

Augustus. His statement given to Trooper Prejean stated, “a dark-skinned man

exited the driver side of the Charger and a white female exited the passenger side.”

Mr. Augustus, like Ms. Davis, had an obstructed view of the accident’s aftermath

and did not know Mr. Guilamo or Defendant. Given the factors surrounding the

state’s witnesses, Ms. Davis and Mr. Augustus were the only people, other than the

passengers of the vehicle themselves, that had a clear view of which side Defendant

exited the vehicle.

Second, Defendant and Mr. Guilamo consistently agreed that it was Guilamo

driving at the time of the accident. While Defendant and Mr. Guilamo’s involvement

in the accident renders them biased, the fact is that their statements are consistent

with one another and are supported by those of Ms. Davis and Mr. Augustus.

In sum, the people with the best view, or actual knowledge, of whether

Defendant was the driver of the vehicle consistently stated that she exited or rode on

the passenger side. The credibility of these statements is supported by photographs

of the inside of the vehicle which show several of Defendant’s items located on the

passenger side.

Finally, the post-accident actions of both Defendant and Mr. Guilamo can

easily be construed that Mr. Guilamo was the driver. At the scene, Mr. Guilamo

remained near the Charger, refrained from checking on the victim, and proceeded to

call an ex-girlfriend and his pastor. Meanwhile, even while visibly distraught,

Defendant’s actions after the accident were to go check on the victim, call out for

help, and pray over him.

Thereafter, Mr. Guilamo and Defendant left the scene of the accident in an

ambulance. Once at the hospital, without informing Defendant or anyone else, Mr.

Guilamo arranged to be picked up by a friend before investigators could arrive. He

then avoided answering calls from Defendant and investigators for between 30 and

3

45 minutes. To the contrary, Defendant complied with investigators by giving

samples for toxicology tests, answering questions, and helping the troopers to

contact Mr. Guilamo after he left the hospital. In my view, Mr. Guilamo’s actions

after the accident tends to indicate wrongdoing while, in contrast, Defendant’s

compliance tends to indicate innocence.

Inexplicably, Ms. Davis, Mr. Augustus, and Mr. Guilamo were not called to

testify at trial. Their testimonies, including the language quoted from Trooper

Prejean’s report strongly supports Defendant’s testimony, was never heard by the

jury. Given the failure of the jury to be presented with these testimonies, under the

standard of review, this issue alone is not enough to reverse the conviction.

However, as I discussed above, I would reverse Defendant’s conviction

because the state failed to carry its burden to prove that Defendant was impaired at

the time of the accident and failed to prove that Defendant’s impairment was a

contributing factor to the victim death. Accordingly, I respectfully dissent.

JDS

4