SAUNDERS, Judge.
On January 30, 2007, the Vernon Parish Grand Jury indicted Defendant, Ron Stewart Martin, with one count of second degree murder. Prior to trial, Defendant waived his right to a jury trial and moved to proceed via bench trial. Following trial on the merits, the trial court found Defendant guilty of manslaughter, in violation of La.R.S. 14:31.
Defendant now appeals his conviction.
On November 25, 2006, Gladys Martin, a ten-week old infant, sustained injuries that caused her mother, Sheila Newhouse, to transport her to Beauregard Hospital. The doctors at Beauregard Hospital examined Gladys and eventually informed the
On November 28, 2006, the medical staff at the LSU Medical Center in Shreveport determined that Gladys's prognosis was fatal. At that point, Defendant was first interviewed by Vernon Parish detectives. In that interview, Defendant claimed that Gladys was in the care of Sheila when the injuries occurred. This fact was corroborated by Sheila.
After the family obtained a second opinion, life support was removed. Thereafter, an autopsy was performed on November 30, 2006, seeking the nature, extent, and possible cause of the Gladys' injury and eventual death. Based on the information obtained through the autopsy and developed during the course of the investigation, Defendant was interviewed a second time.
The first portion of Defendant's second interview was consistent with the information he relayed in the first interview. Defendant maintained that Sheila had dropped Gladys while giving her a bath; however, Defendant changed his story before the end of the interview. Defendant then said that it was he who had dropped the infant. Defendant explained that he and Sheila had originally stated it had been Sheila because he was scared he would get into trouble with his being on parole.
Defendant professed that the baby slipped out of his hands during a bath because she was slippery from the soap. When she fell, her head hit the side of the bathtub. Defendant said he picked up Gladys after she fell, took her into the bedroom, and called Sheila. Defendant also stated that he had consumed a six-pack of alcoholic beverages that day. Defendant agreed that the baby's crying frustrated him, but it was not enough to make him intentionally hurt the infant.
Defendant was eventually arrested and charged with second degree murder of Gladys. At trial, several witnesses testified, including Dr. James Traylor, an expert in the field of forensic pathology. Dr. Traylor autopsied Gladys Martin in late 2006. Prior to starting his examination, Dr. Traylor had been informed that Gladys had been dropped in a bathtub. Dr. Traylor's examination revealed that Gladys' soft spot was bulging, which indicated swelling of the brain. There was a large linear skull fracture, about seven centimeters long, running backwards from behind the right ear. The fracture was initially obscured by the soft tissue hemorrhage caused by the bleeding associated with the skull fracture. After the tissue was removed, Dr. Traylor discovered the impact point just behind the right ear. It was one to one and a half centimeters in diameter, which is a little smaller than a dime. In addition, to the subdural hemorrhage, there was also a subarachnoid hemorrhage, which means there was blood located between the brain and the membrane covering it. The brain, itself, was swollen. Therefore, the autopsy showed that the cause of death was "blunt force injury to the head resulting in a linear skull fracture with all the other associated things."
Dr. Traylor explained that, in falls, the brain is injured at the site of the impact as well as on the opposite side from the recoil caused by the impact. Though a baby's brain slides around more easily because it is not fixed within the skull like an adult's brain, there was no indication of a recoil injury in the instant case. Therefore, the evidence in Gladys' autopsy was inconsistent with a fall. Further, according to Dr. Traylor, Gladys' linear skull fracture could not have been the result of her being dropped, even from chest height.
On cross-examination, Dr. Traylor explained that the surfaces of a porcelain tub would not have caused injuries consistent with those discovered during the autopsy because the injuries were caused by an object that had a point. However, Dr. Traylor did state that it was possible that the injury could have been caused by the baby sling shown in the bathtub in one of the photographs taken by detectives if the point of impact was a corner where pieces of the metal frame joined.
Dr. Traylor asserted that he ran gene testing on Gladys to make sure she did not suffer from osteogenesis imperfecta, commonly known as brittle bone disease. The results were negative for that disorder, but there was still a one percent chance that she had the disorder without it showing up in the test results. Dr. Traylor acknowledged that there was an ongoing debate in the medical field concerning pediatric head injuries.
On redirect examination, Dr. Traylor explained that the articles presented to him for discussion by the defense address the medical community's tendency to assume that all traumatic brain injuries in children were inflicted. The articles stress that some of those injuries could have been accidental. Diagnoses, causal determinations, and autopsy findings are all somewhat dependent on the history provided to the doctors. In testimony initially proffered but later accepted into evidence, Dr. Traylor examined the bath seat and explained that there was arguably one area on the item that could have caused the injury; however, even dropping the infant onto it from a height of five feet would not produce the force required to inflict Gladys' skull injury.
Defendant claims that the verdict is based on insufficient evidence where the State did not establish the cause of death. According to Defendant, the State merely relied on its evidence to suggest that the father was not truthful about how the accidental death occurred, without providing any evidence of what might have actually happened. Defendant also suggests that the State complained that the father did not go to the hospital enough during the baby's treatment and relied on other innocuous facts as evidence that he did not love the child. None of these facts proved any conduct of Defendant which could have caused the baby's death.
Further, the defense contends that the State's expert was not credible and that the jury should have given greater weight to the evidence presented by the defense showing the expert's opinion was not reliable. Defendant complains that, ultimately, he was only convicted because the State showed he was a bad father.
The State responds that credibility determinations are within the purview of the finder of fact. Thus, the trial court, as the factfinder in the instant case, found the State's witnesses to be credible after observing the witnesses, hearing the testimony, and inspecting the evidence presented at trial. The State maintains that its witnesses were credible and that the evidence was sufficient to support Defendant's manslaughter conviction. Insofar as Defendant argues that the State's expert witness was not reliable, the prosecution points out that Defendant did not challenge Dr. Traylor's expertise at trial.
Following the trial, the trial court set forth its reasons for finding Defendant guilty of manslaughter:
It is not the function of the appellate court to reassess credibility of witnesses or reweigh evidence:
State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted). "The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]" State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). "Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence." State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).
The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:
State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).
"Circumstantial evidence consists of proof of collateral facts and circumstances from which elemental factors may be inferred according to reason, experience and common sense." State v. Burns, 441 So.2d 843, 845 (La.App. 3 Cir.1983).
State v. Johnson, 09-231, p. 6 (La.App. 3 Cir. 11/4/09), 21 So.3d 1159, 1164, writ denied, 09-2643 (La.5/21/10), 36 So.3d 230 (quoting State v. Chism, 436 So.2d 464, 469 (La.1983)).
The trial court found that Defendant was guilty of manslaughter under La.R.S. 14:31(A)(2)(a): "Manslaughter is: .... A homicide committed, without any intent to cause death or great bodily harm[] [w]hen the offender is engaged in the perpetration or attempted perpetration of any felony not enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly affecting the person...." Second degree murder includes "the killing of a human being: .... When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or inflict great bodily harm." La.R.S. 14:30.1(A)(2)(b). Thus, because cruelty to juveniles is one of the offenses listed in La.R.S. 14:30.1, it is excluded from the statutory definition of manslaughter.
However, Defendant could still validly be convicted of manslaughter based upon evidence sufficient to prove second degree murder because manslaughter is a responsive verdict to second degree murder under La.Code Crim.P. art. 814. "[A]n appellate court will not reverse a [factfinder's] return of a responsive verdict, whether or not supported by the evidence, as long as the evidence is sufficient to support a conviction for the charged offense." State v. Harris, 02-1589, p. 4 (La.5/20/03), 846 So.2d 709, 712-13.
Cruelty to juveniles includes, "[t]he intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under
The evidence most favorable to the prosecution shows that baby Gladys suffered terminal injuries while in Defendant's sole care. The injuries consisted of blunt force trauma caused either by someone hitting the infant in the side of the head or slamming the child's head against another object. Though Defendant and Ms. Newhouse initially claimed the baby had either hit her head on the side of the bathtub or on the floor of the bathtub in a fall, the fatal injury could not have been derived from either of those scenarios as Gladys' autopsy yielded no evidence that the injuries were sustained in a fall. Also, notwithstanding Dr. Traylor's testimony that he could not rule out the injury being caused by a spot located on the baby's bath cot, Dr. Traylor continued on to say that dropping an infant onto the bath seat, even from a height of five feet, would not create enough force to inflict baby Gladys' skull injury. Moreover, although the defense postulated that the infant's injuries were due to normal handling of one afflicted with brittle bone disease, genetic tests showed only a one percent chance that the baby had brittle bone disease, and Dr. Traylor explained that, due to the elastic nature of infant bones, it would take more force to cause this injury to a baby than it would to cause the same or similar injury in an adult. Finally, Defendant's initial efforts to conceal the fact that Gladys was harmed while in his sole care indicates a guilty conscience. See State v. Aymond, 08-1292, p. 16 (La.App. 3 Cir. 4/1/09), 8 So.3d 795, 803-04 (citing State v. Richards, 06-1553 (La.App. 3 Cir. 5/2/07), 956 So.2d 160, writ denied, 07-1129 (La.12/14/07), 970 So.2d 529); see also, State v. Williams, 42,803, p. 6 (La.App. 2 Cir. 12/5/07), 972 So.2d 1214, 1218, writ denied, 08-144 (La.6/20/08), 983 So.2d 1271 (citing State v. King, 41,084 (La.App.2d Cir.6/30/06), 935 So.2d 815, writ denied, 06-1803 (La.2/16/07), 949 So.2d 411).
In another circumstantial evidence case involving the death of a child caused by non-accidental brain trauma, this court found sufficient evidence to support the defendant's second degree murder conviction where the defendant was the only person with the opportunity to inflict the injury. State v. Miller, 06-595, pp. 6-8 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, 869, writ denied, 06-2577 (La.5/11/07), 955 So.2d 1278. As in Miller, there was sufficient evidence presented in the instant case to support a conviction for second degree murder. Hence, a rational factfinder could have found evidence sufficient to support the responsive verdict of manslaughter.
Accordingly, this assignment of error is without merit.
Defendant also asserts that the State improperly shifted the burden of proof to the defense: "The State's expert speculated about the injury to the baby and shifted the burden to the father to establish some causation when in fact there was no unambiguous fact supporting a finding of homicide." Though Defendant's brief initially sets forth this statement regarding the shifting burden of proof as an assignment of error, there is no corresponding argument contained in the brief. Accordingly, this assignment of error is waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.
Defendant asks this court to consolidate this appeal with that arising from his habitual offender adjudication and sentence: "The appeal should be consolidated
The State replies that it has no objection to the cases being consolidated. However, it points out that Defendant did not file a motion to quash the habitual offender bill of information objecting to the use of a second docket number while the cases were still before the trial court. The prosecution adds that the defense also failed to file a motion to consolidate the cases for purposes of appeal and that Defendant has further failed to specifically state what, if any prejudice, he has suffered from the dual docket numbers and appeal.
As noted by the State, the record is devoid of any attempt by Defendant to consolidate the cases in either the trial court or this court prior to the filing of his brief. Further, even though Defendant generally and conclusorily alleges prejudice, he lists no specific or particular prejudice. Finally, as Defendant's appeals in the instant case were considered in conjunction with each other, there was no actual prejudice to Defendant.
Accordingly, this assignment of error is without merit.
Defendant argues several assignments of error that appear to attack the sufficiency of the evidence. In Pro Se Assignment of Error No. 2, Defendant urges, "[t]he Defendant, Ron S. Martin did stipulate to Gladdie (Gladys) [being] in his care, but prosecution's expert witness could not say when exactly the injury occurred." In Pro Se Assignment of Error No. 4, Defendant asserts, "[p]rosecution presented punching or slamming my baby, but was disproven by Defendant's presentation of Goldsmith & Plunkett (Defense Exhibit No. 1) and Defendant's objection, and Defendant's statement of the causation of what happened." In Pro Se Assignment of Error No. 6, Defendant claims, "[t]he State complained of, and alleged numerous scenarios, but none was [sic] proven beyond a reasonable doubt." In Pro Se Assignment of Error No. 7, Defendant contends, "State's expert witness declared that a slip, drop, or fall could not be ruled out." In Pro Se Assignment of Error No. 8, Defendant alleges, "[t]he accidental slip from Defendant's arms was found to have caused a linear fracture to my babies [sic] skull, but expert witness testified that fracture had enlarged due to the swelling of Gladdie's brain and medical intervention." In Pro Se Assignment of Error No. 10, Defendant complains that the pathologist only investigated the cause of death stated by law enforcement: Detective only gave pathologist one (1) causation of my babies [sic] condition, and coersed [sic] the pathologist through the entire autopsy, and pathologist wasn't allowed to make his own professional opinion. Detective's [sic] never gave the pathologist the truth as another causation of her condition. In violation of law, and holding's [sic].
The argument in Defendant's pro se brief is restricted to discussing the sufficiency of the evidence. Defendant maintains both that the prosecution failed to prove Defendant was guilty of any criminal activity and that he was convicted because he had prior felonies. Defendant contests both the credibility of the State's evidence and the prosecution's failure to present any evidence favorable to the defense. Defendant further questions the qualifications of the judge and asks this court to vacate his conviction.
Accordingly, these assignments of error are without merit.
Defendant asserts, "[t]he alleged crime scene was not secured and people were inside the house to taint the evidence, or rearrange or move evidence." Defendant does not include any argument concerning this statement in his pro se brief, and there is no objection on the record at pages cited by Defendant. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4; see also La.Code Crim.P. art. 841.
Defendant alleges, "Defendant's credibility was attacked without Defendant testifying in violation of Defendants [sic] rights." As before, Defendant does not include any argument concerning this statement in his pro se brief, and there is no objection on this basis in the record at the page cited by Defendant. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4; see also La.Code Crim.P. art. 841.
Defendant contends, "[t]he witnesses, Hope Gaskin, Kendra Calcote, and Pam Newhouses' [sic] statements and testimony is [sic] heresay [sic], and should have been dismissed as such under that rule." Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.
Defendant claims, "[d]efense objected to witnesses reading from record's [sic], progress report's [sic], synopsis' [sic] verbatim which is in violation of law. Defenses' continuing objection." Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error has been waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.
Defendant urges, "[p]rosecution's expert witness, Dr. James Traylor, a forensic pathologist was only allowed to give testimony on the fact a death occurred not to the nature of the death." Defendant cites La.Code Crim.P. art. 101 in support of this argument.
Under La.Code Crim.P. art. 101, the coroner is required to investigate suspicious deaths:
Therefore, contrary to Defendant's contention, La.Code Crim.P. art. 101 does not prohibit experts in forensic pathology from testifying as to their findings concerning the cause and manner of death.
Accordingly, this assignment of error is without merit.
Defendant asserts, "[t]he introduction of State's exhibit No. 16 was improperly introduced by prosecution and wasn't told to the defense for the chance to defend against." Defendant does not include any argument concerning this statement in his pro se brief. Accordingly, this assignment of error was waived. See Uniform Rules—Courts of Appeal, Rule 2-12.4.
Moreover, the defense's initial objection to State's Exhibit No. 16 was that the record did not show that it was the bath seat actually used by Defendant and Ms. Newhouse to bathe their infant daughter. The defense was allowed to traverse Ms. Newhouse about whether the bath seat was the one used to bathe Gladys, and Ms. Newhouse confirmed that it was Gladys' bath seat. When State's Exhibit No. 16 was finally admitted into evidence, there was no objection by the defense. Accordingly, Defendant is also barred from raising this issue on appeal as there was no contemporaneous objection. See La.Code Crim.P. art. 841.
Defendant's conviction is affirmed.
