KA-0020-0412 Nonprecedential Affirmed Processed

State of Louisiana v. Daniel White -Aka- Daniel Jackson

Louisiana Court of Appeal, Third Circuit · Filed May 18, 2022

Authorities cited

Identified automatically; this list may not be exhaustive.

State ex rel. Green v. State 250 So. 3d 262
State Ex Rel. Graffagnino v. King 436 So. 2d 559
State v. Duncan 420 So. 2d 1105
State v. Moody 393 So. 2d 1212
State v. Richardson 425 So. 2d 1228
State v. Kennerson 695 So. 2d 1367
State v. Colomb 747 So. 2d 1074
State v. Johnson 664 So. 2d 94
747 So. 3d 1074 not in our corpus
State v. Kaufman 304 So. 2d 300
State v. Jackson 629 So. 2d 1374
State v. Jackson 637 So. 2d 1046
State v. Day 414 So. 2d 349
State v. Mims 524 So. 2d 526
Snyder v. Taylor 531 So. 2d 267
State v. Green 437 So. 2d 302
State v. Green 443 So. 2d 1121
State v. Guidry 496 So. 2d 650
State v. Guidry 500 So. 2d 420

Opinion text

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-412

STATE OF LOUISIANA

VERSUS

DANIEL WHITE

-AKA- DANIEL JACKSON

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 14-2374
HONORABLE JOHN C. REEVES, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

Court composed of D. Kent Savoie, Van H. Kyzar, and Jonathan W. Perry, Judges.

AFFIRMED.

p. 2

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Daniel White A/K/A Daniel Jackson

Daniel White
Louisiana State Penitentiary
Oak 3
Angola, Louisiana 70712
COUNSEL FOR DEFENDANT/APPELLANT:
Daniel White A/K/A Daniel Jackson

Hon. Bradley R. Burget
District Attorney
Ann S. Siddall
Assistant District Attorney
Austin Lipsey
Assistant District Attorney
Seventh Judicial District
4001 Carter Street, Suite 9
Vidalia, Louisiana 71373
(318) 336-5526
COUNSEL FOR APPELLEE:
State of Louisiana

p. 3

SAVOIE, Judge.

On September 3, 2014, a Catahoula Parish Grand Jury indicted Defendant

Daniel White A/K/A Daniel Jackson for the first degree murder of Gwendolyn

McIntosh, in violation of La.R.S. 14:30. On July 2, 2018, the State amended the

bill to second degree murder, as defined by La.R.S. 14:30.1. The trial court heard

Defendant’s motion to suppress on September 22, 2017. The motion was denied.

The State filed two other motions on the same date which the court granted on

August 2, 2018.1

The parties conducted jury selection February 25-26, 2019, and the jury

began hearing evidence on February 27. At the end of trial, the jury found

Defendant guilty as charged on March 12. Defendant was sentenced to life in

prison, without benefit of probation, parole, or suspension of sentence, by the trial

court on April 4, 2019.

Defendant now appeals his conviction and sentence. For the following

reasons, Defendant’s conviction and sentence are affirmed.

FACTS

A Catahoula Parish jury convicted Defendant of the murder of Gwendolyn

McIntosh. The bulk of the details regarding the murder were supplied by the trial

testimony of Leah Pontiff, Defendant’s alleged accomplice. Pontiff explained that

she originally met Defendant in 2014 when she was on a work-release program due

to a previous offense. Both were working in a restaurant in Monroe. At some

point, they became sex partners, but Defendant had another girlfriend named

Hannah. Pontiff attended a birthday party for Defendant’s oldest son and met
1
Defendant brought a writ to this court, but the issue it addressed is not pertinent to the
current appeal. See State v. White, 18-590 (La.App. 3 Cir. 8/2/18) (unpublished opinion), writ
granted, 18-1297 (La. 8/4/18), 250 So.3d 262.

p. 4

Gwendolyn McIntosh, the victim in this case and the mother of Defendant’s

children. In June 2014, Pontiff moved into an apartment in Sterlington, Louisiana,

with Defendant, McIntosh, and their two children. On Wednesday, June 11, 2014,

they went to a Bastrop nightclub together, then came back and slept at the

Sterlington residence. Pontiff slept on a mattress in the living room. On Thursday,

Pontiff and McIntosh made “a dope run” to Sicily Island on Defendant’s behalf,

before returning to Sterlington. Pontiff and McIntosh were both sexually involved

with Defendant at the time. On Friday, June 13, when Pontiff woke up, Defendant

and McIntosh were arguing. Defendant took McIntosh’s phone and left with the

children. Pontiff and McIntosh then spent the day together. That evening,

McIntosh went to her bartending job in Bastrop, and Pontiff stayed at the

Sterlington residence. Defendant dropped off the children, and Pontiff babysat

them. Pontiff testified she was high on methamphetamine at the time.

On Saturday, June 14, Pontiff and McIntosh went to a Monroe hotel to meet

a man named Wayne, so that McIntosh could have sex with him in return for

money. Earlier in the day, Wayne washed McIntosh’s car. Pontiff went back to

Sterlington and stayed there alone using methamphetamine. She checked on

McIntosh at the hotel at about 11 PM, but she found her asleep. Pontiff went back

to check on her at 5 AM, and the pair returned to the Sterlington residence

together. Once there, they both used methamphetamine. Later that same day,

Defendant called and invited them to a Father’s Day barbeque at his mother’s

house in Sicily Island.

Both women went to the barbeque, leaving Sterlington at about 7:30 PM and

arriving at about 9:30 PM. According to Pontiff, Defendant called her phone while

she was driving, and the victim answered. Defendant changed the plan from

p. 5

meeting at his mother’s house to meeting on the highway. Upon meeting, the

women followed him to the end of a local road. They took some drugs and then

the three of them left in Defendant’s Cadillac to buy gasoline and tequila. As he

was pumping the gasoline, Defendant handed a length of cord to Pontiff,

instructing her to choke the victim the next time they stopped. Pontiff put the cord

into her bra. The victim did not hear this conversation, as she was inside the store.

When they got back into the Cadillac, they drove around some more and

finally stopped on a local road where Defendant pulled Pontiff out of the car and

hit her, then grabbed the victim. Defendant urged Pontiff to choke McIntosh, who

had fallen to the ground. Pontiff was kneeling over her, but did not choke her, so

Defendant put the cord around the victim’s neck to choke her. McIntosh tried to

defend herself by putting two fingers between the cord and her neck. She begged

Pontiff to help her. Defendant was unsuccessful in choking the victim; at that

point, he punched Pontiff and put her hands on the victim’s throat. He then put his

hands over Pontiff’s hands and began squeezing. The victim’s legs were still

moving, and Defendant stomped on her until she died.

Subsequently, Defendant and Pontiff drove to meet a man who handed

Defendant a Delta Fuel card; Defendant drove the victim’s Toyota, and Pontiff

Defendant’s Cadillac. Pontiff and Defendant proceeded to Delta Fuel to put gas

into the Toyota and into a gas can. Defendant used the gas in the can to burn

McIntosh’s body in a barrel. The pair rented a hotel room at about 3 AM and

woke up about 6 AM to return to the barrel. Defendant decapitated the victim’s

corpse with a shovel; he discarded her ribcage in some nearby woods and disposed

of her skull in another wooded area. As they left the area, they neared a bridge,

and Defendant threw the shovel out of the car window.

p. 6

The following Friday, Pontiff drove the victim’s car to Terrebonne Parish

with some bags of clothing related to the murder. Defendant instructed her to burn

the clothes and the car. The victim’s mother filed a missing person’s report, and

the subsequent investigation led police to Pontiff in Terrebonne Parish.

Authorities found McIntosh’s abandoned vehicle there and soon linked it to the

missing person’s case from Ouachita Parish. Additionally, Pontiff told her

boyfriend, Lee Short, III, who lived in Terrebonne Parish, about the murder, and he

told Pontiff’s mother. Pontiff’s mother then contacted law enforcement. Along

with other items, the shovel and fragments of the victim’s bones were recovered

during the investigation, which led to the arrest of Pontiff, who subsequently pled

guilty to manslaughter, and the arrest and trial of Defendant.

DISCUSSION

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

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

errors patent present.

I. Assignment of Error Number One

Defendant argues the evidence adduced against him at trial was insufficient

to support his conviction for second degree murder. As the State suggests,

Defendant’s core assertion is that Pontiff was not a credible witness.

The test for an insufficient-evidence claim 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

p. 7

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.

Second degree murder is defined by La.R.S. 14:30.1, which states, in

pertinent part:

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

(1) When the offender has a specific intent to kill or to
inflict great bodily harm[.]

The current record is extensive, as the trial transcript itself spans twelve

volumes. Having reviewed said transcript, Defendant is correct in asserting that

the case against him hinged upon Pontiff’s testimony. Her testimony supports the

required elements of the crime, i.e., that Defendant killed McIntosh with the

specific intent to do so.

Pontiff’s credibility was certainly open to attack. Defendant notes a number

of instances in which she changed her story regarding details of the crime. At trial,

Pontiff acknowledged lying to police through the course of five interviews. She

explained that, at the time, she was still in love with Defendant, and she was also

scared due to her involvement in the crime. One of the detectives testified that

Pontiff “lied all throughout the investigation.” Another detective testified

similarly. Pontiff acknowledged her lies on direct, explaining that she wanted to

conceal the extent of her involvement in the murder; she also acknowledged that

she had lied in the past in connection with her life as a drug-user. In its closing

argument, the State remarked, “They did this together. Mr. Regan [defense

p. 8

counsel] likes to talk about lies that Leah Pontiff told. She is not the greatest

person.”

However, the State also pointed out that Pontiff’s eyewitness testimony was

corroborated by three key items of evidence: cell phone records, gas pump records,

and DNA/blood evidence on one of Defendant’s shoes.

Regarding the cell phone evidence, Special Agent William C. “Chuck”

Williams testified regarding call detail records (CDRs) to identify cell towers used

by cell phone numbers associated with Defendant and Leah Pontiff on the dates

pertinent to the murder, i.e., June 15-16, 2014. The FBI agent’s analysis showed

that both Defendant’s and Pontiff’s AT&T signals used cell towers in the Sicily

Island area between 10:03 PM and 10:42 PM, between 11:29 PM and 11:48 PM,

between midnight and 1:59 AM, and between 2 AM and 3:30 AM. Analysis also

showed such activity at 3:32 AM, at 4:25 AM, and at 4:27 AM in the vicinity of

Chase, Louisiana, the location of a motel where Pontiff and Defendant allegedly

stayed. There was further cell activity near Sicily Island at 5:20 AM, then in a

nearby community between 6:23 AM and 6:44 AM, then in communities north of

Sicily Island along Highway 425 at 7:00 AM and 7:09 AM. This evidence

suggests that Defendant was in the vicinity of Sicily Island in the late-night-to-

early-morning hours of June 15-16, 2014, i.e., the general time period and area of

the murder, as recounted by Pontiff.

As for the gas pump related evidence, electronic records of a company called

Delta Fuel Company showed that one of its pumping stations was used after

midnight on June 16, 2014, to pump eleven gallons of gas, then used again about a

half hour later to pump approximately twelve gallons. The card was assigned to a

driver for an area hospital, Evora Humphries; those times were not normal times

p. 9

for a clinic driver to get gas, according to Janice Strong, accounts payable clerk for

Catahoula Parish Hospital District #2 Medical Center. Peggy Olivero, who

managed billing for Delta Fuel Company, largely echoed Strong’s testimony. At

the time of the murder in 2014, Delta Fuel had an unmanned pumping station in

Sicily Island; the company issued gas cards to customers, and the cardholders

could use the cards to obtain gas at the station twenty-four hours a day. According

to Olivero, someone pumped gas at the Sicily Island station at 12:57 AM and again

at 1:30 AM; the approximate amounts were the same as stated by Strong.2 The

account for the card was designated to Catahoula Parish Hospital District. Area

resident Maurice Humphries testified that Evora Humphries is his mother; she lost

her job as a driver for the medical center due to his act of stealing her company gas

card. On the night of June 15, 2014, which happened to be Father’s Day, he took

the card from his mother’s purse while she was sleeping and turned it over to

Defendant. Humphries later contacted Defendant, as Humphries needed the card

back before his mother got up at 5:30 AM. Defendant texted back that the card

was outside on Mrs. Humphries’ car; when Humphries looked, the card had been

left stuck in the vehicle’s window seal. Humphries estimated the card was

returned between 3 AM and 4 AM. Pontiff testified that after the murder, she and

Defendant drove to the Delta Fuel station, where he put gasoline into a container.

They drove to a nearby cornfield, where Defendant put the victim’s corpse into a

barrel, poured gasoline on it, and then lit it on fire. Phone records show a series of

calls between Defendant and Humphries in a time period between 1:18 AM and

1:49 AM.

2
Olivero testified that these were the correct times; the times on the paperwork were not
correct, as the company clock was fast.

p. 10

Regarding the blood evidence, blood was found on a size twelve Rocawear-

brand shoe that was among the bagged items that Pontiff had taken to Terrebonne

Parish. DNA testing determined that it was the victim’s blood. Pontiff claimed

this shoe belonged to Defendant, but testing did not identify his DNA in the shoe.

In a statement to police early in the investigation, Defendant told investigators that

he wore a size twelve, and police found another pair of Rocawear shoes in a

storage unit Defendant was using. At trial, he was shown to be wearing size

thirteen shoes.

While Pontiff, the sole eyewitness, has questionable credibility, the cell

phone-related evidence corroborates her version of events. This evidence, the gas

card evidence, and Maurice Humphries’ testimony put Defendant in the vicinity of

the murder during the time period the murder and disposal of the body took place.

The shoe evidence was congruent with Pontiff’s testimony that Defendant

ultimately stomped McIntosh to death; however, the bloody shoe’s link to

Defendant was based upon Pontiff’s version of events and, thus, does not present

as strong a corroboration of her testimony as other evidence.

Defendant took the stand in his own defense, and his credibility is also

questionable. On appeal, he states he “had a compelling argument that it was his

SIM card authorities were tracing, but that his SIM card was in Gwen McIntosh’s

phone.” This is not what he told police in his initial statement. At first, he denied

leaving the Monroe area on the relevant dates; when confronted with fact that

phone-related evidence placed him in Sicily Island during the relevant time period,

he talked about participating in family activities but mentioned nothing about the

victim having his SIM card. Defendant failed to mention this in his second

statement as well. Regarding the phone evidence, Defendant argues that the cell

p. 11

phone location evidence indicated he made a call from Clayton, Louisiana, at about

3:32 AM. The State’s closing argument suggested the call was made to Defendant

by Pontiff as they passed through or near Clayton. The map scale on the FBI

agent’s cell phone maps indicates that Clayton is ten to fifteen miles from Sicily

Island. We find that a single call, apparently four-seconds long, within fifteen

miles of the relevant area is not fatal to the State’s case. The remainder of the cell

phone related and gas card related evidence, along with the testimonies of Pontiff

and Humphries, puts Defendant in the relevant area during the relevant time

period.

At the time of the trial, Pontiff had not been sentenced. In its closing

argument, the State admitted to using a carrot-and-stick approach with witnesses

subject to criminal sentences. Thus, the jury was fully aware of this, and it was a

factor to be weighed in the factfinding process. Also, Defendant notes that the

apartment manager who evicted Defendant and the victim from their unit in

Sterlington testified that she saw the victim alive after the eviction notice was

posted on June 16, 2014. Again, this was another item of evidence to be assessed

by the jury. As stated in Kennerson and acknowledged by Defendant in brief,

witness credibility is a matter for the jury and not one to be re-assessed by the

appellate courts. 695 So.2d 1367.

Defendant suggests that Pontiff was in love with him and wanted the victim

out of the way. Pontiff admitted to being in love with Defendant and had already

pled guilty to manslaughter. Regardless, if Pontiff wanted McIntosh dead, that

would not exonerate Defendant.

p. 12

For the foregoing reasons and pursuant to Kennerson, we find that the jury’s

decision to convict Defendant was not irrational. Thus, Defendant’s first

assignment of error lacks merit.

I. Assignment of Error Number Two

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

by denying his motion to suppress, thus allowing improper “other crimes

evidence” to be admitted at trial. As Defendant observes, the trial court conducted

a hearing on the motion to suppress on September 22, 2017. However, a review of

the record indicates that the “other crimes evidence” the State wanted to use was

discussed in a hearing held on August 2, 2018. The issue arose because the State

filed a Notice of Intent to Use Other Crimes.

The use of “other crimes evidence” is governed by La.Code Evid. art.

404(B):

B. Other crimes, wrongs, or acts. (1) . . . , evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in
advance of trial, of the nature of any such evidence it intends to
introduce at trial for such purposes, or when it relates to conduct that
constitutes an integral part of the act or transaction that is the subject
of the present proceeding.

At the hearing, the State acknowledged that the acts at issue, prostitution and

use of illegal drugs, were not directly relevant to the murder. However, it argued

that those activities were “interwoven in the context of what happened.”

Thus, the State’s approach was not analogous to evidence traditionally

known as “res gestae,” because the acts at issue were not necessarily proximate in

time to the murder or integral to it. Rather, the evidence at issue, i.e., the general

p. 13

drug use and prostitution, was more similar to that discussed in State v. Colomb,

98-2813, pp. 3-4 (La. 10/1/99), 747 So.2d 1074, 1076:

The res geaste [sic] or integral act doctrine thus “reflects the
fact that making a case with testimony and tangible things not only
satisfies the formal definition of an offense, but tells a colorful story
with descriptive richness.” Old Chief v. United States, 519 U.S. 172,
186, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997). The test of integral
act evidence is therefore not simply whether the state might somehow
structure its case to avoid any mention of the uncharged act or conduct
but whether doing so would deprive its case of narrative momentum
and cohesiveness, “with power not only to support conclusions but to
sustain the willingness of jurors to draw the inferences, whatever they
may be, necessary to reach an honest verdict.”

Defendant’s brief makes a rather general argument with few record

references to specific testimony. Regarding the potential prejudice to his case, the

State accused Defendant of being a pimp in it close. However, this was obviously

a function of argument rather than evidence, and Defendant has not assigned error

to any part of the argument. Also, when he took the stand, Defendant admitted to a

ten-year-old drug conviction. Although he denied that he currently sold drugs, he

admitted “I have been around it.” In his June 2014 interview with police,

Defendant admitted to having been “locked up” in both Texas and Louisiana. On a

related note, the State argues there was no prejudice because Defendant took the

stand and was thus subject to cross-examination. The State cites no jurisprudence

but makes the practical argument that Defendant could be questioned about past

offenses (as he was) and that denials of such offenses by Defendant would have

allowed the State to introduce evidence of said offenses. However, usually

evidence of arrests for offenses for which there has been no conviction is not

admissible upon the issue of credibility. La.Code Evid. art. 609.1(B); State v.

Johnson, 94-1379, pp. 9-10 (La. 11/27/95), 664 So.2d 94, 99.

p. 14

Ultimately, the evidence at issue was admissible under the rationale cited in

Colomb, 747 So.3d 1074. Pontiff’s testimony indicated that she, the victim, and

some of their associates were frequent drug users. Also, the prejudice of having

the jury hear allegations of drug related acts was lessened by Defendant’s own

admissions in that regard. The record indicates that he, Pontiff, and McIntosh were

involved in drugs to some extent. Thus, any evidence introduced on this point did

not necessarily depict Defendant as a “bad man,” but simply depicted the lifestyle

that he and some of the other witnesses were living around the time of the murder.

Although the record includes multiple references to, or questions about,

Defendant’s possibly being a pimp, or suggestions that he might have been the

victim’s pimp, such references would arguably amount to improper comments,

questions, or arguments. They do not constitute “other crimes evidence,” as there

does not appear to be any actual evidence that Defendant was a pimp for anybody.

As mentioned earlier, Defendant does not allege improper argument on appeal.

The State also referred to Defendant as a “drug dealer” in its close, but again, that

was a matter of argument, not evidence.

For the reasons discussed, this assignment of error lacks merit.

II. Assignment of Error Number Three

In his third assignment of error, Defendant argues that he was improperly

interrogated after requesting counsel, in violation of Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602 (1966), during an interview on June 28, 2014. The State

counters, in its brief, that Defendant was not in custody for the murder but was

instead on a probation hold from another parish. After listening to the relevant

portion of the audio, we find there is no audible request for an attorney during the

early part of the statement; later, when Defendant clearly invoked his rights, the

p. 15

interview ceased. Defendant points to a section of transcript that suggests a

detective may have known of the earlier invocation, but again, having listened to

the audio, none can be heard. At the hearing on the matter, held on September 7,

2017, the parties focused on a section of the interview that was preserved at

approximately 4:19 (four hours, nineteen minutes) of the recording. The section of

transcript highlighted by Defendant is from the same portion of the interview.

Neither the transcript nor the recording includes a request for counsel. This

appears to have been the basis for the trial court’s ruling at the September 2017

hearing, rather than any issue regarding custody. We find the trial court’s ruling

was correct, and this assignment lacks merit.

III. Assignment of Error Number Four

In his fourth and final assignment of error filed by his counsel, Defendant

argues that his trial counsel should have been allowed to move closer to witnesses

because counsel had difficulty hearing various witnesses. Defendant now claims

that “the lower court made no attempt to accommodate Defense counsel.” The

State’s counterargument is that Defendant was simply using the alleged hearing

problem as a trial tactic. For example, when one of the prosecutors was

conducting an examination of a State witness, Defendant’s counsel placed a chair

close behind the prosecutor. Unfortunately, neither party provides record page

references. However, this specific matter came up after the testimony of apartment

manager Irene Watson. The court and the parties discussed the matter outside the

presence of the jury. The State argued strenuously that counsel’s action of moving

the chair was improper, and the trial court agreed. Defense counsel offered the

explanation that he was having trouble hearing the witness but generally

acquiesced in the ruling.

p. 16

As Defendant observes on appeal, defense counsel complained at trial that

he was having trouble hearing Leah Pontiff’s testimony. The State argued that

counsel was simply trying to interrupt the witness and that counsel would be able

to cross-examine her. Defense counsel retorted that he would not be able to cross-

examine a witness that he had not been able to hear during direct examination.

The trial court sustained the State’s objection and denied Defendant’s oral motion

for mistrial. The State asked Pontiff to speak louder. We note that defense counsel

was able to hear Pontiff well enough to raise objections that the State was leading

her.

There were a number of instances throughout the lengthy trial in which

Defendant’s counsel complained he could not hear various witnesses. However,

the State and the trial court generally asked its witnesses to repeat their answers or

to speak more loudly. After reading the entirety of the trial record, counsel’s

cross-examination does not appear to have been impaired, and Defendant does not

now point to any specific instance in which counsel’s ability to cross-examine

witnesses was impaired.

The trial judge in the present case wore a hearing aid, and there is no

indication he was unable to hear the witnesses or otherwise function properly in his

role. If defense counsel was attempting to represent Defendant on this murder

charge while being genuinely hearing-impaired, then the matter may need to be

revisited in the post-conviction process.

However, as presented here, this assignment of error lacks merit.

IV. Pro Se Assignment of Error

In his pro se brief, Defendant complains that the lead prosecutor hugged

State witness Lee Short, III after Short’s testimony. Defendant argues that this was

p. 17

a form of vouching for Short’s testimony. Defendant correctly argues that

prosecutors cannot vouch for the credibility of witnesses or use the prestige of the

MR. REGAN:

MR. REGAN:

I do note, and I’m not sure how to correct the problem. I think it’s an
error, it’s an error and for the record, I’ll --

Thank you, your Honor.

p. 22

Thus, Defendant presents an allegation that a prosecutor in this case, through

his physical gestures or actions, vouched for the credibility of State witness Lee

Short, III. As mentioned earlier, Short was a resident of Terrebonne Parish and a

former boyfriend of Leah Pontiff. After the murder, Pontiff drove the victim’s car,

with bags of sooty clothes and the blood-stained shoe mentioned earlier, to the

Terrebonne area where she had grown up. According to Short, Pontiff put the bags

under the trailer where he and his father lived. He and Pontiff had sex and used

illegal drugs together, but Short testified that he became concerned because Pontiff

appeared to be involved with stronger drugs than he normally used. Further,

Pontiff told Short that she had been involved in a murder. Short reported this

alarming revelation to Pontiff’s mother, who in turn contacted law enforcement.

We found no cases regarding the possibility of physical actions or gestures

being used to vouch for a witness’s credibility. The closest case extant is State v.

Jackson, 629 So.2d 1374, 1383 (La.App. 2 Cir. 1993), writ denied, 637 So.2d 1046

(La.1994):

It is well settled that communications between jurors and
witnesses in a criminal trial, absent a showing that the actions
prejudiced the defendant, furnish no grounds for upsetting a
conviction. State v. Day, 414 So.2d 349 (La.1982); State v. Mims,
524 So.2d 526 (La.App. 2d Cir.), writ denied, 531 So.2d 267
(La.1988); State v. Green, [437 So.2d 302 (La.App. 2d Cir.), writ
denied, 443 So.2d 1121 (La.1983)] supra. In the present case,
Jackson failed to demonstrate any prejudice whatsoever.

At the conclusion of the first day of trial, Walsworth left the
courtroom after testifying and, in a hallway, soon engaged two
officers in conversation. Within minutes the court also released the
jurors, some of whom proceeded down the same corridor. As the
released witness simultaneously departed, he opened the door for an
unidentified woman in the manner, as explained in a subsequent
hearing, he had been “brought up to do.” He also shook hands with
one jury member, Kenneth Guyotte, after that individual extended his
hand in greeting. Only a very limited exchange of pleasantries
occurred, and without any discussion of the case. Thus, it is obvious

p. 23

that the trial court acted correctly in denying the mistrial. Cf. State v.
Guidry, 496 So.2d 650 (La.App. 1st Cir.1986), writ denied, 500 So.2d
420 (La.1987).

Nor should the witness’s testimony have been stricken based
upon defense contentions that he violated the rule of sequestration.
Clearly, his casual, innocuous courtesies did not impinge upon that
order. Furthermore, Walsworth had already been released from the
restriction. Simply put, defendant’s motion borders on absurdity.

It is also urged that Guyotte should have been replaced by the
alternate. However, as noted above, defendant revealed no prejudice
from the exchanged pleasantries.

Although Jackson did not address the same specific situation at issue in the

present case, it does provide an indicator that common pleasantries of everyday life

should not be recognized as having undue influence upon jurors. Further, Short’s

testimony related more to the early stages of the investigation, before police

arrested Pontiff, collected the bags she had brought, and brought her and the bags

to Catahoula Parish. Short had some secondhand information regarding the

murder, via what Pontiff had told him, but he was not present at the murder, did

not know Defendant, and did not know anything about Catahoula Parish. Thus,

any boost to his credibility was unlikely to have influenced jurors in the State’s

favor.

For the reasons discussed, this assignment of error lacks merit.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are

affirmed.

AFFIRMED.

p. 24