State Of Louisiana VS Elizabeth Zachary

Annotate this Case

Download PDF

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 KA 0678 9r a STATE OF LOUISIANA VERSUS ELIZABETH ZACHARY Judgment Rendered On Appeal December 21 2007 from the 21 st Judicial District COUli in and for the Parish of Livingston State of Louisiana District Court No 10481 The Honorable Elizabeth P Wolfe Judge Presiding Scott M Perrilloux Counsel for Plaintiff Appellee District State of Louisiana Attorney Livingston La Leanne Malnar Assistant District Molly Attorney L Balfour Assistant Attorney General M Michele F OUl11et Counsel for Defendant Baton Elizabeth Rouge La BEFORE wLL 9 CARTER J C Appellant Zachary PETTIGREW AND WELCH n CARTER C J PROCEDURAL HISTORY The indictment with first not obstluction defendant Zachary degree murder of justice A pled not guilty The State filed the defendant was a a was amended the defendant and 14 30 and the 14 130 1 guilty charged as felony habitual offender first motion to the quash to pled charge the defendant habitual offender bill of information therein the trial court declined hearing to violation of LSA R S jury found second a defendant filed her Following a charged by grand jury was violation of LSA R S a Thereafter the indictment guilty with Elizabeth defendant alleging In response offender bill habitual invoke the the provisions of the habitual offender law and sentenced the defendant to ten years at hard labor The defendant moved for reconsideration of her sentence was denied The State moved to reopen the bill but the trial State s State s for application a Zachary was a State to be offender a App hearing comi determination for so the denying the as to whether State resentencing the trial court found the evidence a to fmd the defendant second motion granted the motion writs which this court denied 1 Cir 11 5 01 a granted court v 1 Cir 4 24 00 The defendant filed supervisory matter for constitutionally insufficient bill and the trial the habitual offender vacated the order habitual offender and if 00 0579 La Following writ supervisory on Thereafter this denied the motion motion and remanded the the defendant App court hearing but the motion to 2 to be a the habitual quash the habitual offender The State filed State Thereafter the Louisiana presented by v an Zachary Supreme application for 01 2225 La Court reversed the trial court granting s State proceedings curiam for a hearing to The defendant hard labor without benefit of probation previously imposed was actually had now served appeals follow we sentence was affirm quash the ten or State proceedings I suspension vacated and new assignments of the conviction case habitual offender bill sentenced was deducted from the designating court 03 16 6 third motion this court per and remanded the quash to offender 829 So 2d 405 the trial court found the defendant to be habitual offender felony 1 Cir App a 10 25 02 of the habitual offender completion 01 2225R La the habitual quash remand from the supreme on The defendant filed Following La granting of the second motion to the trial comi Zachary 01 3191 Zachary v Subsequently reversed the v of the first motion to habitual to of sentence sentence the 2 at The defendant The defendant For the offender second twenty years the time error a that reasons and adjudication sentence FACTS On July 9 1993 at Department responded to Storage sitting on on a approximately George The record does not reflect continued 2 on a petition sentence sentence was police found Paul Weber a a hearing T ruling on on seat s Both Weber and the defendant Taylor the third motion to the motion was held quash the habitual and the matter the trial court failed to state that the defendant s sentence served at hard labor for at the Interstate Mini was motion of the defense Although offender Walker Police building and the defendant seated in the driver of the vehicle of the victim offender bill but indicates At that location the the m report of a suspicious person Walker South Road the side of the 9 30 p as was to be twenty 20 years for the habitual Louisiana Revised Statutes 14 130 1 1B provides it did sentence the defendant to in 14 130 1 B 1 at hard labor to be served with Additionally the Department 3 the sentencing of COlTections minutes reflect that the were intoxicated defendant s amount s wallet caught were s the of the vehicle bumper police discovered defendant Jail and dry rolled up a large being booked for public intoxication was her legs of jeans policy required injured prisoners replied The N police of the steps and o ma am went to unlocked door but answered no one taken the sofa the victim a morning of July blunt head trauma and stab wound close to his blood children blood The else on s on the the outside might have been splattered particles hospital injured someone with the living were found on of dirt bedroom matched the rug found near 1993 s house the victim s approximately body one was discovered and three tenths The victim suffered two fatal stab wound in the chest He also suffered a injuries nonfatal spine jail and Bernard testified the defendant told her that she the Kathy Bernard trial a 10 in tall grass bedspread miles from the defendant at s was a vehicle On the wrapped in s wall Blood and fresh loose The lUg in the defendant s was to the home and knocked s fearing that the defendant on a It s They discovered There splattered were to be it s not my blood the defendant went inside the home floor and testified a they noticed the corrections officer asked the defendant if she room the were on of wet blood fresh blood injured home the floor in the rear of the vehicle under the front corrections officer noticed that the on the victim When the police unrolled the rug wet grass While the defendant so to was on 20 feet from the vehicle approximately lying in the vehicle and The victim lap Grass and weeds rug to Keys and Donna Peters 4 met the defendant in defendant 9 July and Weber had invited the victim 1993 According Weber hit the victim with Bernard to defendant told Bernard that she place and the car Weber then drove around until Bernard the defendant stated she was the played for s July 12 at trial jury days before house where and dump they at to drank beer 8 25 her from the victim not taking her s rug According to never the defendant did statement was the defendant stated she had The victim victim she needed to her house but the the store neighbor She claimed that and drove her According to the defendant the next day dropped Weber off cigarettes to so that he would his house anyway and asked him to to a and The defendant stated she neighbor refused fi om the gas station neighbor asking atTested week before the incident together telephoned called her times a The defendant body audiotaped a m but the victim drove her store defendant claimed she for in the incident the victim had invited her and Weber to his they a body saw The argument s on the time of the incident 1993 a frightened and told the take her an victim the defendant then drove with the defendant toward his house became into the were In the statement known the victim for less than two house testimony adding that although the defendant scared and upset The defendant s helped Weber because she loved him told her that Weber threatened her indicate she they got helped Weber roll the body into the trunk of a Peters offered similar the defendant the defendant stated that she shovel after a to The victim gas station and her come and The get apologized The defendant neighbor picked her up the victim called her house several if she would clean and cook for him and she told him that she would consider the offer 5 The defendant maintained that just showed went into out was up at her house the bathroom on of the bathroom the victim contact was on fine when she was However when she lens the rug in victim came pool of blood and Weber a beating him with a shovel She also claimed Weber forced another object into the victim with the shovel The defendant claimed she frightened and terrified of Weber menacing threatening told her tone claimed Weber rolled the victim car night of the incident the She stated that the victim adjust her to the and ordered her into the dumped the s car She claimed he not to body use the in the rug yelled scared her and in at telephone was The defendant put the lUg into the victim She stated she did not s know where Weber body When asked how she got blood on her knees the defendant stated it possible that she had remember what had blanked a out helped Weber carry the rug happened after the body She claimed she did not out was When asked if Weber had indicated was dumped and must have why he had hit the victim the defendant claimed Weber told her the victim would bother her not again TIMELINESS OF HABITUAL OFFENDER ADJUDICATION In assigmnent of number 1 error the defendant imposition of completion of her initial sentence toward the end of her and in an enhanced sentence light of her rehabilitation offender hearing within a more than argues that the four years after the parole supervision since release violated her right to reasonable time and her constitutional a habitual right to a speedy trial Proceedings under 15 529 1 need not be a habitual offender bill filed completed prior 6 to pursuant to LSA R S the time the defendant satisfies the original La imposed by the sentence 5 25 04 15 529 1 R S 875 2d So does 45 not specify whether delays including the in of the right the instructive in the whether delay the the of a filed within set for March 26 for to a felony hearing the to file on May quash the habitual 7 1998 to to the accused are is held and Abusive 1998 February On alleging 19 or hearing on January 9 1998 the State the defendant was a 1998 the trial court advised gave the defense the habitual offender bill and set the matter the defense filed its first motion offender bill of infOlmation 7 nor proceeding they Id s Id On March 26 At that or the accused neither definitive rights under the habitual offender law objections evaluating considerations convicted of obstruction of justice habitual offender case proceeding In delay prejudice are by unexplained are for the offender habitual offender bill of information days case at 55 speedy trial relevant reasons delay should not be tolerated the defendant of her fifteen 2d So reasonable time a sentencing was second a determining whether the habitual offender hearing was a file the habitual must proceeding habitual The defendant 1998 habitual offender bill habitual offender While these factors Id context a Muhammad 875 speedy trial and to proceeding completed vindictive a also has held that courts may look to resulting from the delay dispositive in Court concluding length assertion of her time within which to determine concluded extraordinarily long the habitual offender law LSA the district attorney Supreme evaluation is warranted promptly Muhammad 03 2991 v reasonable time Id a The Louisiana has been a State court Although 54 of information must be filed offender bill within trial Over the course of these proceedings the defense filed two bill of information rulings the first on judgments comi s State v 3191 La La two 01 2225 02 25 10 1 Cir conviction La per curiam for sentencing motion to quash on Following this on quash was September set for June 1 attributed State State unfavorable one offender comi 15 s was filed month after the defendant hearing filing also at was 2003 bad faith or bill of infonnation and the State adverse trial comi s lulings with this on was a the State that moved The matter continuance exercise of her exercise of its court was The habitual right right cannot to seek to to be Rather the quash the seek review of and with the Louisiana assignment of error is without merit 8 set October 26 2005 Comi This was The third motion to vindictiveness of the part of the State s a The defendant then filed her third mally completed to the defendant s of the habitual offender bill defendant s request and it was held within June 2003 decision the matter 2005 and the defendant moved for delay is attributable 01 2225R against the defendant delay in completing the habitual offender adjudication to 01 Zachary v Zachary v 22 2005 to reopen the habitual offender issue adjudication The s 1 Cir 4 24 00 App the habitual offender bill of information continued Febluary offender approximately within three months of the of infonnation La 1 Cir 11 5 01 App The initial habitual reasonable time court 03 reasonable time a quash the habitual offender 00 0579 Zachary v The habitual offender bill of infonnation within to sought review of the trial 829 So 2d 405 16 6 motions motions both of which resulted in reversal of the trial See State Zachary App The State more Supreme EXCESSIVE SENTENCE In the of assignment minimum mandatory number 2 the defendant argues error under the habitual sentence excessive and constituted cruel and unusual The defendant failed to make accordance with LSA C Cr P assigmnent Duncan of elTor 94 1563 is or file 881 1 art a App 1 Cir 15 12 offender law was punishment motion to reconsider sentence in Accordingly review of the procedurally barred LSA La imposition of C Cr P art 881 1E 667 So 2d 1141 95 instant State 1143 en v banc per curiam SENTENCING UNDER LSA R S 14 130 INDICTMENT SUFFICIENCY OF 1 1B CONSTITUTIONALITY OF LSA R S 14 130 1 UNDER APPRENDI In erred assignment in of of error error a of the accusation 466 RS 14 130 court 1 1B In number 4 the defendant argues the amendments to the indictment resulted in 530 U S number 3 the defendant argues the trial sentencing the defendant under LSA assigmnent cause error violation of her against right to be infonned of the her and the rule of Apprendi 120 S Ct 2348 147 L Ed 2d 435 number 5 the defendant argues LSA R S 2000 v In nature and New Jersey assigmnent of 1 130 violates the rule of 14 Apprendi by giving the sentencing judge the authority to decide the grade of the offense An accused in nature and cause sufficiency of a an set prosecution has of the accusation indictment is sufficient unless it is construction criminal fOlih so an against him not to be infonned of the LSA Const art I S13 a questioned right at defective that it does identifiable offense 9 trial not against the If the the indictment is by any reasonable laws of this state and infonn the defendant of the statutory basis of the offense So 2d 176 178 La 1 Cir App 1987 charged in the indictment submitted beyond S Ct reasonable doubt Jones a 1215 1219 v 143 L Ed 2d 311 to a Elements of 1999 charged in an U S at 243 n 6 submitted Apprendi 530 U S 119 S Ct at 1224 Subsection B of LSA R S for an n offense must be an Govel111nent United States 526 U S 227 Any to at fact penalti that increases the maximum reasonable doubt Bass 509 v jury and proven by the conviction indictment State a jury other than for crime a and proven 476 120 S Ct 232 a 119 prior must be beyond at 2355 a Jones 526 6 14 obstruction of justice conviction 1 130 specifies the applicable penalties Specifically Whoever commits the crime of obstruction of justice shall be subject to the following penalties 1 When the obstluction of justice involves in which sentence of a criminal death life imprisonment proceeding be fined not more than one may be imposed the offender shall hundred thousand dollars imprisoned for not more than fOliy years at hard labor 2 or in which hard labor for any or or both a sentence of imprisonment necessarily period less than imprisoned for not more a than twenty years thousand dollars imprisoned for not without hard labor The nature of the or more not more than ten than five years with or both underlying criminal proceeding for purposes of detennining the statutory maximum is the maximum sentence a judge may the basis of the facts as reflected in the verdict or admitted by the on Blakely L Ed 2d 403 hard Apprendi impose solely defendant at When the obstluction of justice involves any other criminal proceeding the offender shall be fmed Under at both 3 3 criminal a life sentence may be the offender may be fined not more than fifty thousand imposed labor or When the obstruction of justice involves proceeding dollars a v Washington 542 US 296 303 304 2004 10 124 S Ct 2531 2537 159 the applicable section of the obstruction of justice should be detennined State the date 98 1790 McKnight v by La 1 Cir 6 25 99 App 739 So 2d 343 353 755 So 2d 247 The defendant and Paul Weber as 14 130 1 which the act of obstIuction occurred on writ denied 99 2226 La 2 25 00 LSA R S statute were charged by grand jury indictment having committed first degree murder of George Taylor in violation of Article R S 14 30 of the Louisiana Criminal Code punished by death February 27 1997 to On life or a crime that may be The indictment imprisomnent charge the defendant as amended was on follows Zachary cOlllinitted the crime of obstruction ofjustice in that she tampered with evidence of the murder of George Taylor with the specific intent of distorting the results of the criminal investigation 01 prosecution of the murder of George Taylor in violation of LRS 14 130 1 Emphasis supplied On or 6 January 1998 the indictment of the murder of phrase and prior to Let January opening arguments me place but make again was amended George Taylor with the phrase After the George Taylor jury about 7 9 93 Elizabeth one 6 to replace of the death of indictment had been read 1998 the to the the trial court stated correction on here It was corrected in place The Clerk read it correctly It referred to the murder of George Taylor and that s incorrect We re dealing now with the death of George Taylor a homicide which is the killing of a human being But that s it one not another Although indicted for first degree to at manslaughter hard labor for 14 l30 1B 2 to a crime that carries a did not a 14 31 The State preclude crime of obstruction of justice s life 11 an sentence See acceptance of Weber the State from involving ultimately pled guilty sentence of imprisomnent period less than LSA R S manslaughter a murder Weber trying offense s necessarily LSA R S guilty plea the defendant for the greater than manslaughter Detennining whom when and how discretion of the district attOlney C Cr P to plead 61 art With the indictment LSA C Cr P accepted degree murder a See LSA Const consent matters art 558 That decision and S26 V art of the district attOlney within the B LSA defendant may a charged in the The district attOlney in the exercise of his manslaughter plea exercising his discretion of justice are prosecute lesser offense that is included in the offense a discretion to from Weber did not prosecuting on a of first charge limit the district attorney from the defendant herein for obstruction regarding an offense greater than manslaughter We also reject the defendant s claim that the amendments indictment violated her accusation right against her to be infOlmed of the nature and For approximately amendment of the indictment at with tampering with evidence concelning eleven months trial the defendant was cause to of the to the prior specifically charged the murder of George Taylor Even after the amendment of the indictment the record indicates the defense well aware justice of the fact that the defendant in connection with imprisonment could be an was being offense in which a counsel advised the jury that obstruction of justice See id Defense counsel also referred to 14 130 can the victim was tried for obstruction of sentence of death See LSA R S imposed the s killing as a life Defense 1 1B carry up to or forty years murder in opening and closing arguments Considering state that specifically the all of these factors it defendant the first detennine the grade degree tampered or second of the offense was with degree not essential that the indictment evidence in with murder of the victim in order to Even if the failure to 12 connection specifically refer to first degree or second rights of the accused LSA C Cr P Cir cert Apprendi degree were art 921 United States subject 1008 v Clinton 256 122 S Ct 492 harmless to 14 130 1 constitutionality of Courts legislation challenge 900 So 2d 837 838 the v See 315 316 2d Ed 404 5th 2001 concluding it is of constitutionality from the reaching unless the issue is essential to the Plainview Area Association controversy to So substantial hannless 311 151 L refrain should was 3d F analysis enor unnecessary for this COUlt to address the LSA R S was enor affected and the omission not denied 534 U S enors murder in the indictment State 05 0791 case or La 4 29 05 per curiam SUFFICIENCY OF LIST OF RESPONSIVE VERDICTS In ened III criminal assigmnent failing to proceeding of include as a designated relative felony these offenses to the number 6 enor the defendant argues the trial judge responsive verdicts identifying the underlying specific grade or misdemeanor of murder along with manslaughter attempts or to commit She further argues that the failure of her trial counsel to inadequate responsive verdicts constituted ineffective a object assistance of counsel The verdict form submitted to the 1 Guilty of Obstluction of Justice Justice and 3 to Not Guilty The 2 jury listed the responsive verdicts Guilty of Attempted Obstruction of court instIucted the jury as follows in regard the penalty for obstruction ofjustice Whoever commits the crime of obstIuction of justice shall be subject to the following penalties When the obstruction of justice involves a proceeding in this case the offender shall be fined not more than one hundred thousand dollars imprisoned for not more than forty years at hard labor or both 13 as Later instIuction of receipt upon a note from the regarding the penalty for jUlY the again read the court obstruction of justice The same jury found the defendant guilty of obstruction ofjustice There is that it must State with v fonnal clearly requirement ambiguous verdict an to instluctions the The at 1021 object we to the the language 1021 La the intent of the LSA C Cr P jUlY App of the verdict 1 Cir 1985 jury can pleadings the evidence the admissions court reject presented the defendant be determined of the the herein to jUlY was test 1984 466 U S 668 must first requires functioning a show that the attorney showing counsel as that counsel made guaranteed by defendant requires was a a fair trial prejudice before relief will be granted to show that the error had some attorney s ineffective was so the deficient was Secondly not the the defense serious that the the defendant must prove actual It is not sufficient for the defendant conceivable effect 14 was serious that he errors were COUli in 80 L Ed 2d 674 performance errors so analyzed are perfonnance prejudiced showing that the deprived of clear Supreme the Sixth Amendment defendant must prove that the deficient This element States 104 S Ct 2052 In order to establish that her trial defendant which developed by the United Washington were to the jury constituted ineffective under the v 469 claim that the failure of trial counsel s Ineffective assistance of counsel claims Strickland by parties the Young at trial and the verdict responsive verdicts presented pronged art 810 When faced assistance of counsel two except submitted responsive verdicts presented consistent with the evidence to to the fonns of the verdict the or Finally as convey the intention of the 469 So 2d 1014 Young reference 2d So no on the outcome of the Rather he proceeding there is errors been different 1992 State probability Apprendi to object holdings La to the responsive in those two 859 860 La 1 Cir App 1993 not verdicts render deficient presented Because cases perfonnance by the jury to on the basis of the defendant has made that defense counsel rendered inadequate showing unprofessional Jones had been decided at the time of trial defense counsel did Accordingly failing nor s the outcome of the trial would have 610 So 2d 857 Serigny v writ denied 614 So 2d 1263 Neither the reasonable a show that but for the counsel must a deficient it is unnecessary for this court to address the issue of an performance prejudice Serigny 610 So 2d at 860 These assignments of error are without merit UNCONSTITUTIONAL VAGUENESS OF LSA R S 14 130 1 assigmnent of elTor In of LSA R S 14 130 1 Issues vague considered on not submitted 02 1030 defendant failed ambiguous are so appeal Williams number 7 the defendant contends the the trial to La challenge 15 10 02 LSA R S Accordingly consideration of this assigmnent unconstitutionally for decision will court Constitutional issues 02 0898 to that the statute is provisions are no 830 exception So 2d 984 14 130 1 of error is in the not State be v 988 The trial court pretermitted PLEA AGREEMENT In to assigmnent of error enforcement of her when the defendant into a number 8 the defendant argues she plea agreement with the State was under indictment for first plea agreement with the On January entitled 9 1995 degree murder she entered State in order to avoid the 15 was possibility of the death of The penalty guilty to plea agreement indicated the defendant had tendered that she The agreement Paul Weber in was to receive the maximum forth that the defendant would set testimony concerning the death of Taylor s George Taylor moved to enforce the At the plea agreement the State indicated it had letters were communicating concerning her statement that the defendant had defendant had given Weber the given police was conscience present The trial and of the hearing reversed the on App s a to marry granted The State 19 4 claiming statement the defendant applied ruling 96 to this court Thereafter writ denied The defendant offers comi to reverse this rehearing a writs 96 1288 no reason itself concerning this comi denied s Weber and that the her statement to The State indicated it could not in application for supervisory 1 Cir the defendant that the defendant and s good motion to enforce the for statement La Comi denied Zachary v and the record ruling 13 9 96 provides 16 95 2369 679 no 2d So s the La 104 basis for this made eleven years ago upon which and upon which the Louisiana denied review given denied the defendant comi State she had plea supervisory writs and this application for rehearing and the Louisiana Supreme defendant the defense ways for the defendant to back out of bargain noting that the defendant fully embraced the comi participation of plea agreement revealing attempted attorney s under duress court police give full and tluthful witness it knew would lie a to the of five years sentence death After the State indicated it would break the Weber plea the lesser included offense of accessory after the fact with the understanding motion a Supreme Court This assigmnent of en or is without merit MOTION TO SUPPRESS In in erred assignment of error number denying defendant to Foster July on the motion 2d So 9 1993 1987 at 11 45 p the burden and thus the 978 the oral to suppress given by the statement Livingston Parish Sheriff s Office Chief of Detectives Kerney incOlTectly applied suppress 9 the defendant contends the trial court 980 981 case La of The defendant argues the trial court m proof hearing on 3 Cir writ 505 So 2d 1216 506 granted affirmed and amended 517 So 2d 799 La 1988 argues the trial court abused its discretion in denying because Chief F oster testified that the defendant was the motion to Rowell La be remanded under State must App at the v The defendant also the motion to suppress still drunk when he spoke to her A defendant from use at the trial obtained adversely affected on LSA C CrP burden of proof is on the merits art on 703A may the move ground that it or the defendant statement warrant LSA C Cr P to prove the by the defendant art unconstitutionally ground of his or admissibility motion of a a admissible into evidence the State must show that an or purported of any evidence seized without confession must or inculpatory statement to affinnatively show that it voluntarily given without influence of fear duress intimidation threats inducements except a 703D It is well settled that for and was On the trial of the motion to suppress the that the State shall have the burden of proving the confession to suppress any evidence promises LSA R S 15 451 accused who makes 17 a statement was freely menaces Additionally the or be confession State during custodial intenogation Plain 99 1112 La The was for the trial comi testimony relating 1 Cir App admissibility first advised of her Miranda of a 00 18 2 confession is in the first instance its conclusions on the credibility great weight and will not evidence showing of voluntariness has a case by case a basis with be overturned unless to the regard The trial comi must consider the whether a nature confession is admissible they are confessions elicited or through threats rights not a question are accorded supported by analyzed facts and circumstances of each totality of the circumstances in on deciding Plain 752 So 2d at 342 by agents inculpatory of the State of Louisiana statements as obtained of violence and duress and in violation of the defendant State called Chief Foster to testifY at the hearing on then indicated it believed the burden of proof was was the case under the United States Constitution and Louisiana Constitution defense v weight of the been made is Prior to trial the defense moved to suppress oral and and of the confession the voluntary State 752 So 2d 337 342 to Whether rights moving to suppress a the motion on The to suppress but the defense because the The defense statement s agreed and questioned Chief Foster on direct examination No substantial questioning Chief cross Foster on were by the defense direct and redirect examination not denied any was the subject rather than opportunity to discovered at on admissibility of the motion to suppress and the defense challenge that foundation indicated that the defendant had been anested for was affected examination The State established the foundation for the of the evidence that was rights of the accused the mini warehouse 18 public Chief Foster intoxication after she Chief Foster advised the defendant of her Miranda rights prior the defendant was dlunk when he could make little defendant was not sense so He conceded in his questioning her to questioned of what she at the was drunk that she could Livingston Parish Jail and that He indicated however the saying not report that understand her rights or answer his questions the subject when questioned about the victim Chief Foster also conceded that he did not at 1 15 rely on signed was obtain reluctant to been arrested for a to certain questions but changed search that he obtained from the defendant he felt the defendant understood what she the waiver he police have time to Foster responded well the waiver for Although a m when she The defendant a explained wanant and rely on a that a the defendant was in jail Also Chief waiver from the defendant because she had simple dlUnk without fall under her m falling asleep down while own She did without power not being questioned She did not have sluned speech have trouble and was After being approximately defendant Jail her one booking atTested and the time he sheet address emergency contact understood the into finding chair a a daze anything She did and not during questioning advised of her Miranda rights Chief Foster indicated rights quarter hours passed between the time the questioned her He also indicated that the defendant number thus was two and speak with him bumping not in the defendant indicated she understood those that doing search warrant is better if the Chief Foster indicated the defendant entered the room to at 11 45 p was telephone supplied number at the Livingston Parish the infonnation listed date of biIih emergency contact s social on security telephone number and The trial court denied the motion to questions asked 19 citing suppress Chief Foster and the testimony s questions that asked were and answered 4 At trial Chief Foster testified that questioned the defendant response to questioning victim and she had last s car after on her advising the defendant talking we find prior to around drunk she questioning the m rights he In When Chief located she tUlned her head was abuse of discretion in the trial Chief Foster testified that was interrogation court denial s though the even advised of and understood her Miranda He also indicated the defendant competently answered room numerous alert was during and there is able to was navigate and court found basis no rights questioning The trial questions of Chief Foster credible testimony Miranda the victim that afternoon seen no of the motion to suppress was of her at 11 45 p about her children Additionally defendant 1993 indicated she and Weber had the F oster asked the defendant where the victim and stmied 9 July the to oveliUln that determination This assignment of error is without merit INCOMPLETE RECORD assigmnent In of number error omissions fi om the record occurred when counselor other individuals with the judge that were correct In determining we are whether the mling defendant on numerous unrecorded Evans the the bench and approached interviewing prospective jurors 4 10 She Lee on occasions engaged specifically pertinent evidence given n 2 La 1979 20 trial during in conferences cites the court and Lenard at unrecorded bench the defendant s motion to suppress hearing on the motion not limited to the evidence adduced at the may also consider all 372 2d So 1222 1223 critical argues at the trial ofthe case State v was We Chopin conferences The defendant conferences that occurred later also at references judgment based upon a complete section 19 bench guarantees defendants a record of all evidence upon which the Additionally LSA C Cr P is based unrecorded trial Louisiana Constitution article I right of appeal other art 843 in pertinent part provides In felony record all the clerk cases court or stenographer shall of the proceedings including the examination of prospective jurors the testimony of witnesses statements rulings orders and charges by the court and objections questions statements and arguments of counsel Material omissions from the on the merits of 2d So 1143 contain the appeal 1144 1145 110 of four La state will La testimony of a 338 So 2d 107 testimony an transcript of the proceedings require 1980 state reversal and 1976 reversal a v reversal required writ denied 07 0275 La 10 5 07 Supreme La or App reference to objections Scott and made in open comi and the those 387 State v Ford missing the prospective jurors do not require 952 So 2d 60 67 1 Cir 12 28 06 964 So 2d 384 Court has never articulated or 952 So 2d at 68 a per exempting se rule either them from the However the Article 843 arguments generally only applies to objections arguments of counsel in closing because only objections and arguments rise invoke AIiicle 843 Robinson when record slight inaccuracies requiring the recording of bench conferences scope of AIiicle 843 bearing when record failed to witnesses and the voir dire of Scott 06 1103 The Louisiana required v defense expert witness Conversely inconsequential omissions reversal State See State at trial to Scott 952 So 2d a at 68 21 level of materiality sufficient Similarly the reference to in LSA mi I Const least not 19 to record evidence does those that do not satisfy the not encompass bench conferences materiality requirements of Article at 843 Scott 952 So 2d at 68 Moreover the defendant fails she suffered Nothing impact Lee as a the demonstrate any result of the bench conferences in the record on to not being transcribed suggests that the bench conferences had any discernible proceedings and Lenard did specific prejudice that not See Scott 952 So 2d at 68 serve on the jury Accordingly In particular no Evans reversible occurred This assignment of enor is without merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 22 enor

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.