State Of Louisiana VS Gary L. Copp
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NOT DESIGNATED FOR PUBUCATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KA 1012 STATE OF LOUISIANA VERSUS GARY L COPP Judgment rendered December 23 2008 Appealed from the 22nd Judicial District Court in and for the Parish of St Tammany Louisiana Trial Court No 412974 Honorable Peter J Garcia HON JAMES D BUDDY CALDWELL Judge ATTORNEYS FOR STATE OF LOUISIANA ATTORNEY GENERAL TERRI R LACY EMMA J DEVILUER ASSISTANT ATTORNEYS GENERAL BATON ROUGE JAMES E LA BOREN ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLANT GARY L COPP BEFORE 1 1 PETTIGREW McDONALD AND HUGHES lJ PETTIGREW J L Defendant Gary Copp was violation of La RS An amended bill of information was degree battery a degree battery the amended bill of information and defendant denied by the trial the sentence and 2 7 34 was Defendant entered tried before of placed defendant probation which a community service and attendance a at anger a not gUilty l a plea of not guilty to The jury motion for jury determined new trial which was of ten years at hard labor but or for a period of five years six months in the serving 10 000 00 with parish jail a five hundred hours of management classes as error the State did not disclose evidence testimony of the alleged Mandeville Mayor Fix until after timely disclose the evidence probation fine of appeals citing the following 1 Failure to a term on included period of home incarceration Defendant plea of court special conditions two year a charging defendant with aggravated second filed The trial court sentenced defendant to suspended Defendant entered Defendant subsequently filed guilty was 14 34 1 violation of La R S 14 a bill of information with second originally charged by 404 B opening arguments and because of this untimely notice the State should have been precluded from using the testimony or evidence of the purported fix for any purpose voir dire jury selection and conviction must be reversed because the State s late notice of its intent to introduce 404 B evidence of the Mandeville Mayor Fix denied 2 Copp s Copp the opportunity to expose bias or prejudice panel regarding the controversial Mandeville Mayor 3 The State failed to Reveal the Deal further the trial court with key on the part of the jury witness Officer Lambert of his Sixth Amendment right of deprived Copp confrontation by prohibiting Copp s defense from cross examining Officer Lambert about the possibility that the State had leverage over Lambert due to Lambert s alleged participation in the Mandeville Mayor Fix denying Copp s motion for new trial evidence available post trial indicated Officer Lambert s testimony as to a fix was 4 The trial court erred in false 5 The trial Mandeville 1 Walter Reed voluntary 2 courts failure to record two conferences Mayor Fix precludes adequate appellate the District Attorney for the Twenty Second Judicial District was granted subsequently prosecuted by the Louisiana Attorney General of information alleges defendant used his shoe as a dangerous weapon recusal This The amended bill concerning the review case was 2 an order of presented by the State was insufficient to convict Copp of aggravated second degree battery Copp lacked the specific intent to inflict serious bodily injury on the victim additional medical expert testimony have supported a not guilty verdict unavailable to Copp at trial would 6 The evidence 7 The trial court should have granted Copp s motion for new trial based on false expert testimony and newly discovered medical evidence from both a neurosurgeon and the victim s reasons that For the follow treating neurologist we affirm defendant s conviction and sentence FACTS At m acquainted through developed Rome area suggested 22 February their mutual business Brown dealings in stay 2006 Mary Brown arrived Brown and Rome had Because Brown personal friendship a on the victim home of Paula Rome Mandeville Orleans 4 00 p approximately initially become the healthcare field and at her home over time in the New involved in meetings was at the due to the scarcity of hotel space following Hurricane Katrina Rome arrived at her home two teenage children the Mandeville a few sips before return to Rome a two women decided to go out to dinner at a local restaurant in During dinner Rome consumed only drank where shortly after Brown and after preparing dinner for her s leaving residence the they could have a one the restaurant women drink and visit of wine and ordered Although a their initial second but plan was to decided to go to the Cru Wine Bar in Mandeville They arrived around 7 00 p m and each ordered glass of wine At approximately 10 00 p m defendant David Cefalu entered the Cru Wine Bar The two Fountainbleau High School and decided to there was some that she could very bizarre accompanied by his long men had just attended stop afterwards As defendant and Cefalu visit with each other 3 glass at the bar approached the bar type of verbal exchange between defendant and not a jazz for a Defendant testified that as he entered had a stick 3 Brown testified that Rome the bar Rome up his ass 3 concert at drink and to to order their drinks Rome Rome testified remember the exact comment but claimed defendant said and not nice to her walked in here like he time friend something responded to defendant s immediately approached him and told him that he comment to her by referencing that defendant Rome complained about defendant to Brown interjected that he Rome if she wanted to feel it defendant so while Cefalu where Shawn Hare and that Rome to trying spoke with was Rome that testified Rome wearing a However Brown toupee rather did not direct her comment towards defendant stated that comment and was this Ansley Pair wearing not made s her gross uncomfortable Brown in conversation she walked the of the bar owners to a few feet also testified that Rome inappropriate behavior never nor to over twenty minutes and stated she was Both Hare and Yet both Hare and Pair asshole as an around Hare testified seated were get away from defendant because he would not leave her alone Pair testified that Rome described defendant s his hair and asked grabbed toupee exchange approximately fifteen him for a only defendant overheard Rome No thank you that replied initial engaged Nevertheless she asked them to take any action against defendant for did they witness any inappropriate behavior by defendant toward Rome Jason Alcott who was also seated Rome testified that Pair asked him if there at the bar in the vicinity of defendant and situation between defendant and Rome was a According to Alcott he had observed defendant and Rome engaging in which he likened to children interacting flirting mean on a something different Alcott assured Pair there playground who was no say some one weird thing yet problem between defendant and Rome After bar and speaking with the sat on the other side with Cefalu and defendant owners Rome returned to where Brown of Brown Joel Miller near Rome wanted to avoid asked Miller if he wanted to sit with her in the had earlier observed Rome and defendant they went to that area Miller and Rome that Rome However which was suggested to Rome at each other bickering one that 4 was conversing interacting with defendant separated from the main bar by spent apprOXimately Brown seated at the so she foyer of the bar Miller admitted that he hour initially complained that defendant Miller Although was she rude simply and leave he agreed and set of double doors in this area talking was a so had Miller testified an attitude things alone At approximately was 11 00 p m his tab and Rome told Brown it was was Rome told Miller that she the bar was was going was standing Brown paid agreed and indicated she to tell when she told Brown it was to see a a ran over to was aware According her and help who was saw standing to Cefalu Rome adversarial and aggressive next to was in manner with last recollection of being in as Brown picked up her thing she remembered was was being taken to another thing cigarette in her hand he knew Rome was a stomp his foot two times defendant at the time then stood placed her and see defendant defendant s defendant it his foot s Hare testified that he noticed a a beeline towards defendant and acting in Cefalu testified that as she Prior to this incident Hare had 5 an although he head Cefalu testified Immediately following this the bar immediately took two steps and stomped the heel of his shoe s disturbance and coffee table and floor in Rome s face her torso to hold her down they left to the flying appeared defendant pushed her away foot touch Rome incident Cefalu grabbed defendant and Hare heard Rome hit on a Miller testified of the incident testified he face with smoke toward defendant approached that he did not s approached put her purse down he told her to leave it alone defendant looked away when Rome defendant Rome Rome had walked back into the bar and made over the door and near doctor that she began walking towards defendant Cefalu the sofa main bar thing before she left for time to go and watched he looked in another direction and the next Miller on one more foyer and neurosurgeon Miller testified that after Rome before she defendant Rome testified that the next flashing light and being told by hospital the entrance between the Cefalu at the bar near purse and went to the restroom red near Rome then set her purse down evening defendant who a time to go home where Miller area going to use the restroom As Rome and Miller waited the the bartender indicated to Rome and Miller that it Riley Miller and Rome walked back into the main bar time closing Jason saw defendant sling Rome down on the floor was lying on Rome no indication there s face five or was on her back six times with about to be a confrontation defendant such hearing raised as just prior to the incident she heard defendant and Rome Pair testified that back and forth floor and looked over from the bar and and Rome saw standing was testified defendant then moved Jason Alcott was Rome off a on defendant over and bar saw defendant a Rome push furious and in no a Defendant Cefalu state Im seated two barstools as he to the out the transported Parish was to St was about to altercation an Rome with his foot defendant Riley came turned around from behind the Riley testified that prior to this Riley described defendant as occur by Riley the floor of the bar Hare testified that he heard Once in the parking some bleeding from her mouth When the lot bleeding evaluated by following day 6 a According paramedics arrived Rome Because the CT scan taken at St Tammany Parish Hospital to be saw respective vehicles in and out of consciousness Hospital Just before the Defendant then moved toward her sorry I don t know what set him off on using the heel Alcott testified he register when he heard Hospital revealed Rome had West Jefferson the floor and Hernandez and delivered three stomps to her face escorted out of the bar Meanwhile Rome lay loud noise and cursing during the incident state of rage defendant and Cefalu left in their to Hare she a right of defendant spoke to Pair area indication anything so her her head twice viciously striking was stomped who fell to the floor was on restrained defendant and pushed him outside incident he had moving brief period before he barstool and she fell backwards closing was moving Rome while she and kicked Rome two times in her rib Riley She then observed defendant the floor seated at the bar also heard incident Alcott had his back turned pushing the tile barstool a her face saw cowboy boot stomped on Rome for over Angel Hernandez who When she looked up she on Pair then heard the sound of approximately three times on of his seeing changes in the posture of or Rome or bickering voices in her brain neurosurgeon she Rome was was Tammany transferred to was released the Dr Richard Rome Inglese who medical records s subdural hematoma a left lacerations parietal hemorrhages deep within Inglese opined Dr Dr striking to Dr Inglese a a Rome sustained her on and arm on s single table during a fall against a rather these injuries table fall and then being kicked the St headaches who beaten to s was saw go home until she was in the emergency Rome also testified that she still suffers from sense of smell since this incident hospital the following day she appeared as friend a if she had Ronsiek also testified that Rome had trouble with her memory sustaining these injuries presented testimony from Dr in emergency room medicine and trauma Rome s Brown also testified as to observing In Dr Sakla Sakla Sherif Sakla who was accepted as an Dr Sakla reviewed the medical records injuries including the ambulance records the hospital records from St Tammany and West Jefferson the Dr the continuing memory problems following this incident regarding head Inglese explained dating Rome at the time of the incident and remains Rome in the pulp a The defense expert to has trouble concentrating and has lost her and concentration since Rome Dr testimony reflected that she could not remember anything that occurred testified when he been stomped repeatedly problems Tammany Parish Hospital Mike Ronsiek or were type of injuries Rome sustained she could have from the time she told Brown she wanted room at her chest symptoms of post concussive syndrome include headaches memory loss and concentration Rome a injuries indicated three to four tremendous impacts long standing problems including post concussive syndrome common occipital skull lip subarachnoid hemorrhage four her brain and two bruises Inglese further testified that with three most an posterior rib fracture two frontal brain contusions that these that cannot be attributed to consistent with as an According back of head fracture expert in internal medicine reviewed accepted was s x ray reports and the actual films taken of Rome s opinion alcohol played a major role in how this trauma occurred specifically noted that approximately four hours following this incident Rome st blood alcohol level burn off of 15 20 was measured at 143 gram percent Dr Sakla estimated an alcohol percent per hour and estimated that her blood alcohol level at the time 7 2 grams of the event exceeded observed the lower part of Rome s Dr percent brain Sakla noted that on the CT scan he appeared shrunken which is indicative of chronic alcohol abuse In Dr Sakla In against the table injuries caused were support of his opinion released within twenty four hours with was Dr Sakla no by a restrictions a fall to the West Jefferson pointed bleeding Ie event single in the brain and the fact Dr Sakla also relied upon Tammany Parish Hospital records indicating that Rome remained awake and alert the St evidence of fractures in the facial bones blood in the sinuses Moreover sustained soft tissue swelling hematoma caused was injuries were on Rome torso s when she was the was the by Rome opined that s subdural because the force that caused her skull fracture Finally Dr Sakla opined that the bruising noted were Sakla s Hamide noted that there on crew as an Dr expert in radiology testified line was no radiological documentation of were or vector caused by a they were caused by the evidence of facial trauma Hamide also noted that Rome a on behalf Rome single fall s Dr opinion that because Rome s skull fracture and subdural same atrophy which is characteristic of alcoholics condition could be associated with West Jefferson accepted opinion Rome s injuries s along the images he reviewed was Hamide reviewed all of the Hamide echoed Dr cerebella Sakla any indication Rome likely caused by the cervical collar attached by the ambulance Dr In Dr hematoma Dr or transported of defendant Hamide same vector same Dr John Hamide who injuries Dr Sakla found According to his review of the medical information during examination no s which failed to indicate Rome had any Hospital records she opinion Rome s a birth defect Hospital radiologist s report deep bleeding in Rome s brain by any trauma but by diabetes were more or high s dental injures CT 8 Dr any of the images indicated she had although he admitted that this opined the four areas areas of gliosis which identified were not blood pressure which evidenced living well on event Finally Dr Hamide disagreed with the in that he likely or same as caused someone not Defendant also testified at trial Defendant testified and Cefalu arrived at the Cru Wine Bar after High School According to defendant Rome approached him and told him Defendant testified he A short time later as because six months and I don t think so concert at question he Fontainebleau and a stick up your began talking previously Defendant claimed he found this action he underwent a procedure anything to was to drain his knee acting ass to Cefalu as if aggravating so something he moved was wrong Defendant testified that after provoke her got up whereupon he introduced himself to Miller who was some seated at the bar they spoke for a while Defendant testified that later in the evening he the bar the near claimed he was register speaking with the not confronted by the he asked to leave nor was that Rome approached him and stated owner was figured he that his hair was real as Rome seated at the side of and pointing standing near he tugged at him Defendant to on it was Cefalu defendant testified W hy don t you get your Defendant explained that he attempted responding saw managers of the bar about what owners As he occurring here in defendant stood at the bar Rome kicked him behind his knee and with her and denied he did Rome night they entered the bar and ordered drinks Defendant stated that Rome closer to the bar time after jazz the you walked in like you had merely responded to take you out stated Im going soon a attending on ass and your wig out of humorously diffuse the situation by Because Rome stopped talking he alleviated the situation When closing time arrived he observed Rome Brown and Miller leaving shaking hands with Miller Approximately saw five to ten minutes later reappeared walking right to defendant he as up to him and Rome inhaled How d you like that the group a he was After head toward the foyer of the bar leaning back against stopping about a bar stool Rome ten inches from him According drag of her cigarette blew smoke in his face and asked Defendant testified that he told Rome not to do that 9 again and to then she appeared Defendant and explained inhaling the cigarette again and that he According began to so pushed was placed his left foot to walk on past Rome Rome in him and took him to the an Defendant stated that he had any intention of home and fell over was Rome he down 4 reacted except the brought forward He testified that he effort to hold her down at which point Cefalu grabbed parking lot Defendant denied that he kicked was move to defendant he felt threatened and wanted to leave the bar to leave of force arm Rome with both hands by the force of his push and he wound up standing use her fearful Rome may have armed herself was off the barstool and came only way be hurting or stomped Defendant Rome asleep watching television but Mandeville Police requesting that he come and rights Rome and further denied that he explained circumstances justified under the Defendant waived his Miranda on that he felt threatened and his Defendant testified he drove awakened by was to the a straight phone call from the police station regarding the incident provided an oral statement which was not issue with the opinions recorded The State called Dr Inglese on of Drs Sakla and Hamide that Rome abuse According but also cerebral other s cerebella Dr Inglese took atrophy atrophy which Rome did not have chronic alcoholic was a Dr such was not caused cause by chronic alcohol cerebella atrophy Inglese testified there as Inglese also testified that the absence of blood in Rome bones was Inglese alcohol abuse would not only to Dr signs that Rome rebuttal anemia or s sinuses or GI were no bleeding Dr fractures of facial dispositive of whether she had sustained any trauma to her head SUFFICIENCY OF THE EVIDENCE In this assignment of error defendant argues the evidence support his conviction for aggravated second degree battery 4 Defendant stranger complications as explained is insufficient to Defendant argues the that some twenty fIVe years previously he had been stabbed in the back by a on the New Orleans Lakefront and as a result suffered life threatening he lit fireworks Defendant further testified that approximately a year and a half prior to this incident he underwent heart surgery and had to take Coumadin an anticoagulant which required that he exercise great caution regarding his safety and health 10 evidence fails to prove he had the specific intent unavailable to him at trial would have A conviction based See U S Const amend on most XIV favorable to the Const art La v 2 I v overall evidence a as it violates Due Process viewing the evidence in the 10 in Article 821 1979 La La is an Jackson Virginia 946 So 2d 654 The Jackson objective standard provides that the fact finder evidence excludes every reasonable App v for 822 So 2d 141 660 Virginia testing the analyzing must be satisfied the hypothesis of innocence 1 Cir 6 21 02 443 See also La Code Crim P 11 29 06 1988 v both direct and circumstantial for reasonable doubt When Patorno 2001 2585 p 5 La was The standard of review for the reasonable doubt Ordodi 2006 0207 p circumstantial evidence La R S 15 438 See State v 144 Defendant argues that the State s evidence that he intended serious was which any rational trier of fact could have found the beyond incorporated the on guilty verdict conviction is whether Mussall 523 So 2d 1305 1308 1309 standard of review overall not a 99 S Ct 2781 2789 61 L Ed 2d 560 State art 821 B a prosecution essential elements of the crime s U 307 319 supported insufficient evidence cannot stand sufficiency of the evidence to uphold State bodily injury Defendant further argues that additional medical expert testimony victim light to inflict serious bodily injuries presented mainly through the questionable and unreliable testimony of Dr Inglese Defendant asserts that Dr reasonable Inglese s testimony should not have been relied upon by jurors because he testified outside the scope of his expertise medicine specialist and is not an emergency room Louisiana Revised Statues 14 34 7 as an internal physician or radiologist provides in pertinent part as follows degree battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury A 1 Aggravated second For purposes of this Section serious bodily injury means bodily injury which involves unconsciousness extreme physical pain or protracted and 2 disfigurement or bodily member organ or obvious SpeCific the offender protracted loss or impairment of the function of mental faculty or a substantial risk of death a intent is the state of mind that exists when the circumstances indicate that actively desired the prescribed criminal consequences 11 to follow his act or failure to act v La RS 14 10 1 Such Cousan 94 2503 p 13 La be proven as a 11 25 96 and the that jury cause although their verbal mind can 684 So 2d 382 390 was presented of Rome s v with two conflicting Rome and defendant may have bickered at times there sparring would lead to the of force use as began kicking and stomping her by the bartender The witnesses who described Rome as she were her brain further result of defendant bruising the testimony of Dr Inglese such injuries could lead on she still are In stark contrast approached 5 suffered The State s was on her back until he was following in the bar this incident from stomping to memory loss on a subdural hematoma her head post concussive syndrome nearly two years headaches and the defense contention that he did not a difficulty in time he was at the bar and had even just before the incident and he felt his actions stomping claimed he placed his foot consistent with following presented evidence indicating defendant felt Rome According to defendant he feared Rome had retrieved him According to all consistent with post concussive syndrome Defendant denied were indication floor defendant walked directly at the time of trial acting strangely toward him throughout the threatened him she as a testimony indicated that even concentration which was was no by defendant testimony that Rome sustained and the incident not being in and out of consciousness presented The State s own Specific intent need injuries The State presented several eyewitnesses who testified toward her and Rome instant State versions of how this incident occurred to the away an Graham 420 So 2d 1126 1127 La 1982 eyewitnesses all stated that after pushing Rome pushed be formed in fact but may be inferred from the circumstances of the transaction and the actions of the defendant State The state of on or her to kicking keep Rome after she her down stomp or kick Rome two In were was weapon when in self defense on the floor and support of the defendant s experts testified that Rome s injuries single episode of falling and striking her head 5 a on the coffee table Despite defendant s testimony there was no evidence presented that indicated defendant complained about Rome or that he sought any assistance or intervention in keeping her away from him prior to this inddent 12 The trier of fact is free to witness when there is Moreover resolution of which matter is depends upon determination of the State guilt reject conflicting testimony determination of the not its testimony of a victim may about factual matters credibility of the bodily injury most The being kicked there occur was stomped on and direct evidence her head after she testimony from its a thorough jury s decision defense own opinions s s to all of thereby causing her to Rome on s Our review of the record indicates that was Rome s injuries pushed and caused were by struck the coffee table cross experts her on his position Inglese regarding as an internist in emergency room medicine and Under the facts and circumstances of this version of the incident on examination of Dr event we whether he and presented radiology case Defense to dispute Dr cannot say the accept the testimony presented by the State s witnesses and reject the conclude defendant stomped on It is also obvious that the by Rome of the effects she suffered from this make such conclusions based Inglese proof find the overwhelming direct evidence by the State s eyewitnesses that this did in fact counsel conducted could stomp Inglese provided opinion testimony that or we jury clearly chose to accept the testimony of the State injuries from which she still suffers Dr although v 878 SC 2d 582 588 writ denied 2004 favorable to the prosecution that defendant did in fact persuaded sustain head State testimony of any expert eyewitnesses and reject the defendant s version of the events was An 721 So 2d 929 932 rational basis to conclude the State satisfied its burden of the elements of this offense jury The trier of fact s sufficiency overturn a fact finder s determination of without the Viewing the evidence in the light a witnesses the 883 So 2d 1026 10 8 04 jury clearly had the present sufficient evidence to establish that the Odom 2003 1772 p 6 La App 1 Cir 4 2 04 La part the testimony of any given evidence is not subject to appellate review reweigh the evidence to victim sustained serious 1105 in whole or in Taylor 97 2261 pp 5 6 La App 1 Cir 9 25 98 v Moreover the to be weight court will not appellate a or weight of the evidence of the one accept was irrational The jury clearly had pushed Rome to the floor then stood over causing head injuries from which she suffers long 13 a reasonable basis her and term effects to repeatedly Based on our review of the record defendant s conviction for aggravated we second find the evidence sufficiently supports the degree battery This assignment of error is without merit FAILURE TO TIMELY DISCLOSE 404B EVIDENCE In his first evidence of the assignment of alleged Mandeville not disclose Mayor Fix until after voir dire jury selection and Defendant asserts that the State should have been opening statements using the testimony defendant argues the State did error precluded from evidence of the purported fix for any purpose or During the defendant s testimony he indicated that following the incident he returned home and fell Cru Wine Bar defendant he was awakened a while asleep short time later by a watching television Defendant and his provided a agreed and went statement to the station Defendant explained According to phone call from Corporal Randy Lambert of the Mandeville Police Department who requested that he station at the the police where he waived his Miranda rights his willingness to come to cooperate arose from feeling that he had not done anything wrong In response to a question by his own regarding whether counsel he was aware allegations of improprieties regarding the investigation of this incident admitted he became Defendant went was he aware was on to contacted Mandeville Mayor Eddie Price an introduction to Police Chief Thomas Buell police with the a a summons The defense also called any action on charged with for in an effort to get an provide the some regarding the fact he was initially simple battery in the hours following the incident Mayor Price misdemeanor rather than with defendant at Defendant stated that he Defendant testified he wanted to as a defendant s behalf at any point a he of witnesses who would corroborate his version of the incident names misdemeanor felony acquaintance Defendant denied he requested anything improper issued defendant explain that the day after the incident going to be charged with of a witness Mayor Price denied that he took in time so that felony defendant would only be Mayor Price admitted that he spoke point but only provided him the number of Chief Buell 14 The defense also called Chief Buell asked him to do as a witness Chief Buell testified that anything improper regarding this incident nor no one did any of his officers report any irregularities in the handling of the investigation The State presented rebuttal evidence from Corporal Randy Lambert responded to the incident at the Cru Wine bar police were Corporal Lambert to when the trying to contact defendant Mayor Price called the station and spoke with Sergeant David Hurtsell who Lambert did not aware that the to go misdemeanor personally was take the shift supervisor Although Corporal part in the phone discussion Sergeant Hurtsell made him station and police prOVide statement if a to arrest defendant for aggravated battery a felony based witnesses at the bar and what he observed of Rome further testified that when defendant arrived at the he was they issued defendant Corporal Lambert testified that prior to this call the police summons understanding at the time Mayor had just spoken to defendant and indicated he would get defendant to the going According who only going Lambert testified that he was to be issued directed by s police a a were on statements from the condition Corporal Lambert station he indicated it misdemeanor Sergeant Hurtsell was his Corporal summons to write up the incident as a simple battery Officer Perry Otillio was incident at the Cru Wine Bar Regarding his another Mandeville police officer who The State called Officer Otillio in its testimony about the Mandeville Mayor Fix battery did opinion probable not exist until after the Officer Otillio issued the in his pointed out that a police warrant cause to charge defendant with aggravated charging defendant was obtained with regarding Corporal Lambert at the summons 15 Rome was scene Officer Gulino recalled Corporal Lambert being upset that defendant misdemeanor hospital aggravated battery Officer Dwayne Gulino of the Mandeville Police Department Officer Gulino assisted case However Officer Otillio obtained further information from the following day after more information rebuttal witness rebuttal Officer Otillio testified that Corporal Lambert told him about the involvement of the Mayor also testified that responded to the s was condition also called as a of the incident was only issued a Sergeant Hurtsell also called was Hurtsell testified that he did not recall a rebuttal witness as a conversation on the by night the State Sergeant of the incident with the According to Sergeant Hurtsell in the first hours after the incident there Mayor probable cause to issue defendant noted defendant was not a a misdemeanor flight risk As summons for simple battery and he part of his investigation into the incident contacted the hospital to determine the extent of Rome When he learned of the seriousness of her condition he Sergeant Hurtsell next shift and the investigators obtained Sergeant Hurtsell denied there Mayor did anything improper that Corporal Lambert had investigation because he knew Sergeant ever was on the Following completion of the State s rebuttal Brady In violation and that felony should be a the Mayor night no or that the recollection of the incident of the way the a motion support of the motion for mistrial defense counsel argued there was a the part of the State on mistrial a involving injuries the information to the warrant for fix any s handled was for mistrial a relayed Hurtsell also testified that he had complained only was Prieur notice and was defense counsel made case concerning the discovery of the 404B evidence appropriate because of the failure to provide the appropriate hearing The trial court reiterated that this evidence did not fit under La Code Evid 404B and Prieur subsequently ruled that there evidence not have because it may as soon as was no been another crime art The trial court Brady violation because the State disclosed this it became available Finally the trial court denied defendant s motion for mistrial On to be appeal presented defendant argues the trial court s on the State s rebuttal the trial court allowed the evidence that such a defense from So 2d 850 case 853 when introduced La on 1974 to put the defense in during the State s ruling effectively insulated disputing the State ruling allowing evidence of the fix s case case a worse in chief position than had Defendant argues the evidence from attack and prevented Defendant relies upon State Ghoram 290 v support his contention that other crimes evidence rebuttal must still be subject to the 16 Prieur the even procedural safeguards evidence of other acts of misconduct is inadmissible Generally however there are statutory and jurisprudential exceptions to this exclusionary rule when the evidence of other acts tends to prove showing the material issue and has a that the defendant is of bad character a man probative value of such evidence independent relevance must be Even if weighed against other than independently relevant its prejudicial effect statutory exception to the general rule of exclusion is other crimes evidence used knowledge when proof of such is It has been found that in this explanation for an La nothing wrong and had acted rebut that issue crimes a witnesses defense self in As referenced in State innocent State v voluntarily cooperated This defense directly v Silguero or placed his bad acts relevant to 608 So 2d at 630 if a genuine issue the prosecution may under certain circumstances in an effort to defendant use other During the State Mandeville Police Department testified appearance at the Lambert police by calling Mayor Price and Chief Buell station regarding However we s rebuttal case officers from voluntarily agreed to appear Louisiana Code of Evidence article at the also note that only one of those officers that he police station 4048 1 provides in pertinent part acts is not admissible to prove the character of a It may however be person in order to show that he acted in conformity therewith admissible for other purposes such as proof of motive opportunity intent preparation or when it relates to conduct plan knowledge identity absence of mistake or accident E vidence of other crimes wrongs integral part or of the act or transaction proceeding 17 the the circumstances of defendant s initial provided testimony that directly rebutted defendant s assertions that constitutes an as negate any evidence that improprieties occurred during the investigation of this incident 6 an unknowingly to show that he sought Defendant advanced his defense had negate bad acts evidence to rebut the issue or Corporal done at issue and made evidence of other crimes guilty knowledge creates is used to police following the incident at the Cru Wine Bar because he felt that he had with the done possibly 6 1992 defendant On direct examination act as to prove La Code Evid art 404B 1 guilt guilty knowledge sense undoubtedly unlawful 608 So 2d 627 629 Silguero to establish required One that is the subject of the present Upon motion of the defendant within reasonable time before trial the State must furnish defendant with a offer at trial State Prieur 277 So 2d 126 130 v statement in a of the criminal acts writing La 1973 or offenses it intends to La Code Crim P art 720 Absent evidence that the State evaded Prieur notice requirements by deliberately reserving its other crimes evidence for requirements do not apply where the other crimes relevant State cross here as defendant Silguero 608 So v Defendant argues the State failed to State v examination presented during the State other crimes evidence used We s on cross First disagree rebuttal the case rules such evidence governing admissibility on cross although the evidence of the fix examination case on v to Ghoram to be the court extended the of other crimes evidence to include the or rebuttal However guidelines State v Ghoram were a matter of his use of addressed a calculated effort to Ghoram 290 So 2d at 852 previously discussed defendant himself put the Second defendant fails to State In Ghoram circumvent the Prieur In contrast as cooperation with the police point to any evidence in the record indicating the prosecutor deliberately reserved such evidence for its rebuttal we was procedural safeguards of Prieur apply prosecutor admitted his trial tactics Accordingly testimony makes this evidence and relies upon situation wherein the at issue own 2d at 630 find defendant s reliance we the Prieur notice examination and rebuttal misplaced under the circumstances of this procedural through his timely disclose Ghoram in support of its contention that rebuttal or case do not find the record reveals the State withheld using the other in chief to circumvent Prieur notice crimes evidence in its case 7 that she requirements Thus learned of the incident involving defendant and Mayor Price when she met with Corporal Lambert on the Friday preceding the start of trial the following Monday According to the prosecutor she was not aware of her ability to use that information and was hesitant to use it because of Corporal Lamberts discomfort It was not until defense counsel gave his opening statement referencing defendant s cooperatiOn with the police on the night of the inddent that she realized such infonnation was useful to the case After defense counsel s opening statement the prosecutor was The prosecutor explained initially able to meet with Corporal Lambert again after which she advised the trial court and defense counsel of the substance of this interview Corporal Lambert s testimony corroborates that he only revealed the involvement of Mayor Price on the eve of trial 18 under the circumstances the evidence of the Mandeville Mayor Fix was admissible without Prieur notice Moreover even without presented Prieur hearing such to the harmless error 11 27 95 La 664 So 2d 94 101 1379 p error is harmless is whether the verdict unattributable to the 11 3 00 1993 770 So 2d 908 915 cert denied 535 U S 934 In Sullivan error 124 L Ed 2d 182 2081 allowing evidence v State was of the See State The test for actually rendered to be admission of other erroneous analysis fix v Johnson 94 determining whether in this case was an surely Louisiana 508 U S 275 279 113 s n 2078 99 3075 Morris v writ denied 2000 3293 La pp 6 7 La 10 12 01 App 1 Cir 799 So 2d 496 122 S Ct 1311 152 L Ed 2d 220 support of his position that this that his credibility in the an error subject crimes evidence is 15 a if the trial court erred in central to his not harmless error was defendant maintains he acted in self defense theory that Defense counsel argues that in his opening statement he told the jury that defendant vOluntarily went to the Mandeville Police We disagree evidence of involvement he had not relayed no fix a on First there the Department and received we was Mayors part personally spoken to him one with the was on the Sergeant Hurtsell improprieties occurred during this police learned of the seriousness of Rome the While following day charging defendant with agree that defendant we himself testified s testified that he recalled credibility In investigation s a were condition support of this going to be upgraded shortly after defendant summons An arrest warrant felony was at issue we note Mayor Price consistently with defendant in that he admitted defendant spoke about the matter but that it was was night of this incident and further testified he provided his initial statement and received the misdemeanor was sworn in fact some Corporal Lambert who admitted that Sergeant Hurtsell testified how the charges against defendant when the was Mayor but the substance of that conversation However involving the Mayor did not think any witness who testified that there That witness by Sergeant Hurtsell conversation despite the objections and argument concerning note that only a summons not in the hours 19 to him immediately following the incident Defendant credibility s was also bolstered the although he had spoken with by the testimony of Chief Buell who stated that Mayor improprieties had not occurred during the investigation and defendant was ultimately charged with Second we note that despite any unattributable to such evidence The State Pair Alcott Miller and Rome Brown any type of Moreover threatening even manner in an not think Pair either kicked acting in Clearly there was a incident Rome admitted he looked basis for the jury to conclude that defendant was in the pOSition of being threatened with physical harm Alcott the on and Riley who all consistently testified how defendant multiple times after he pushed her to the floor more persuasive of testimony disputing whether his initial appearance at the police purely voluntary or made with the knowledge he summons from Hare Rome Miller stomped presented eyewitness testimony station misdemeanor was manner guilt than a to the immediately prior defendant s was was towards defendant at any point during the evening jury found the testimony of these eyewitnesses the Clearly or the verdict which failed to establish that Rome As to the incident itself the State Hernandez in this matter admission of the fix aggressive and antagonistic away when the incident occurred cefalu did felony presented eyewitness testimony from Hare who testified that Cefalu approached defendant erroneous a was for his involvement in the incident only going to be issued Finally there was ample testimony that within hours of learning of Rome s condition the charge against defendant was upgraded and defendant Based alleged on our erroneous in fact continued to review of the record we admission of the alleged cooperate in the investigation find the verdict fix involving was unattributable defendant to any contacting Mayor Price This assignment of error is without merit DENIAL OF OPPORTUNITY TO VOIR DIRE JURY In this Mandeville of the assignment of defendant error argues that the late notice of the Mayor Fix denied him the opportunity to expose bias jury panel regarding Mandeville Mayor Price defendant argues that Mayor Price is a controversial 20 In or prejudice on the part support of this contention public figure and the inability of the defense to reversible question potential jurors regarding any bias prejudice against the Mayor is or error At the outset note that at we time did defendant no regarding the impact of calling the Mayor as a present this argument witness to the trial court See La argument has not been adequately preserved for review Thus we Code Crim find this P art 841 A In art I abundance of caution an which S 17 A prospective jurors reversible error provides 1978 La note defendant relies upon Louisiana Constitution accused with an Defendant also cites several right a State as witnesses in the Dyer 95 2368 v denied 96 2570 La 3 21 97 La 691 So 2d 81 to full voir dire examination of wherein cases when the trial court restricted voir dire towards those who may appear 519 we case reviewing court found a regarding See State App 1 Cir 10 2 96 State v the v juror s attitudes Boen 362 So 2d 682 So 2d 278 writ Sexton 477 So 2d 124 La App 4 Cir 1985 However unlike the the by cited by defendant this is not ability to conduct voir dire restriction of defendant s witness cases the defendant to corroborate defendant s despite defendant Moreover Mayor controversial figure we note that jury pool Although counsel Finally we note that the defense did not was well aware that there had been error was to call no called Mayor Price is witness as a Mayor Price Under these circumstances regarding is without merit 21 as a as a a by the affected by the defense witness defense opportunity to voir dire the jury regarding this matter assignment of subpoenaed testimony regarding his contact with assertion in brief that Mayor Price failure to conduct voir dire examination This was in this matter which would not have initially plan potential bias against the Mayor Mayor Price of the trial court s defendant s reference to actions taken Mandeville City Council occurred after trial the s a case a we cannot say that the potential witness was erroneous in ALLEGED IMMUNITY DEAL WITH CORPORAL LAMBERT Through with the deal this assignment of Lambert Corporal Sixth Amendment error defendant argues that the State failed to reveal Defendant further argues the trial court violated his to confrontation right by prohibiting defense counsel from cross examining Corporal Lambert about the possibility that the State had leverage against him due to his alleged participation Defendant asserts that March 6 affidavit from heard in Rome 2008 one s Mandeville in the Mayor Fix following his conviction Corporal Lambert civil suit against defendant deposed on Defense counsel obtained an was of defendant s civil defense attorneys wherein the attorney stated he Corporal Lambert state that between the end of the criminal trial and the deposition he had been read his Miranda rights interrogated and told he arrested by other Mandeville police officers defendant s civil attorney the According to an was affidavit executed being by the Attorney General s Office intervened and prevented Corporal Lambert from being arrested At the had as never hearing on s motion for new trial the points out any evidence of Corporal Lambert would to turn over not be considered an is irrelevant to Further from any Furthermore arrangement between the State and Brady material during post trial proceedings even Corporal Lambert violated the law for his involvement Fix prosecutor stated that she discussed any criminal repercussions against Corporal Lambert the State s brief required defendant our defendant s guilt or in the which the State would be In other words alleged Mandeville Mayor punishment for the present crime review of the record indicates defense counsel questioning Corporal Lambert whether on regarding examinatio crossn was not prohibited whether the State had type of leverage against him because of his involvement in charging defendant with misdemeanor rather than indicates defense counsel and the State objected intended to go with determine if a felony in the hours following the incident a The record attempted to read the malfeasance statute to Corporal Lambert In response to the trial court s such questioning Corporal Lambert had inquiry of where defense counsel defense counsel replied that he wanted received any 22 type of immunity to The trial court You responded can ask him about any of those questions but I don t think you need to go into the malfeasance statute court Clearly the trial Lambert specifically allowed defense What the trial court regarding immunity questioning Accordingly we Lambert Corporal cannot regarding immunity This was say regarding whether defense counsel the result of an counsel to prohibited he to ruling on erroneous defense counsel was committed failure s question Corporal crimes specific question Corporal Lambert the part of the trial court assignment of error is without merit FAILURE TO RECORD TWO BENCH CONFERENCES In this assignment of because there is not an defendant argues his conviction should be reversed error adequate record on appeal content of two bench conferences which occurred the trial court ruled the State could the record because they only were never use a Tuesday January 29 2008 wherein evidence of a fix on rebuttal are 19 guarantees defendants a part of right of appeal complete record of all the evidence upon which the judgment Further La Code Crim P art 843 not recorded Louisiana Constitution article I based upon on Specifically defendant argues the is based provides violation of ordinance enacted 5 pursuant to R 14 143 B and on motion of the court the state or the defendant in other misdemeanor cases tried in a district parish or city court the clerk or court stenographer shall record all of the proceedings In felony cases in cases involving an 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 The Louisiana the recording Supreme Court has of bench conferences However in State v or never articulated s Hoffman 98 3118 p SO La 4 11 00 requirement that objections these objections and made in open court and the objections and arguments per se rule either requiring exempting them from the scope of Article 843 denied 531 U S 946 122 S Ct 345 148 L Ed 2d 227 2000 843 a 768 So 2d 542 586 cert the court arguments be recorded as interpreted Article applying only to arguments of counsel in closing because only rise to a level of 843 23 materiality sufficient to invoke Article We note that defendant of the ruling regarding admissibility We first note this matter objections on points to unrecorded Mandeville the record at trial specific unrecorded has failed to demonstrate any specific conferences not being transcribed that the conferences had or recorded we impact find he is not entitled to relief 768 So 2d at 587 does nor defendant s failure to illustrate how he has been conferences on the State 98 1388 893 528 U S pp 28 29 120 S Ct La 4 13 99 State v 70 cert denied the the trial court not reversible s 1025 119 S Ct 1267 Hoffman 98 3118 at SO v no stating specific prejudice the State error cert v denied that absence from the deny defendant effective appellate La 10 20 98 737 So 2d 660 143 L Ed 2d 362 failure to have each bench conference and error on Because of proceedings point to 1999 14 16 Brumfield 96 2667 pp 526 U S lodged result of those as a 758 So 2d 749 772 73 record of four unrecorded bench conferences did not review case anything in the record suggest See State 145 L Ed 2d 185 220 rebuttal bench conferences defendant failure to record bench conferences did not constitute reversible Castleberry s prejudiced by these unrecorded bench that where defendant could finding on he suffered prejudice that discernible a Fix the trial court s and these issues have been raised and addressed As for the content of the two appeal Mayor involving for review because defense counsel preserved was conferences 1999 holding that ruling properly transcribed when the defendant failed to show that he was 669 was prevented from presenting any relevant evidence and failed to establish that any prejudice resulted from their absence in the record This assignment of error is without merit MOTION FOR NEW TRIAL Defendant offers failing to assignments of two grant his motion for a new error addressing the trial court s errors in Defendant s first argument contends that trial following trial the defense learned that evidence became available indicating Corporal Lambert s testimony as to the the trial court erred in not alleged fix was false The second granting defendant s motion for 24 argument asserts that a new trial based on false expert testimony and newly discovered medical evidence from both Rome s neurosurgeon and treating neurologist Applications for new trials on received with extreme caution Under Louisiana evidence jurisprudence grounds of newly discovered the State v Jefferson in order to obtain the defendant has the burden by a lack of 3 diligence the evidence is of such The test for of evidence should be 305 So 2d 465 a new trial based 1 showing on the 468 newly new discovered evidence probably have produced determining whether newly discovered evidence a was was not the evidence is material to the issues at trial that it would a nature 1974 La 2 the failure to discover the evidence at the time of trial discovered after trial caused a and different verdict warrants a new trial is not Simply whether another trier of fact might render a different verdict but whether the evidence is at trial so material that it ought to The trial courts denial of clear abuse of discretion State v a produce a motion for verdict different from the new In defendant s fourth granted a new trial based counsel offered 829 So 2d 1037 he argues that he should have been error telephone records that would Mayor Price s testimony that there a testimony assignment of on rendered Brooks 2001 1138 p 13 La App 1 Cir 3 28 02 s Lambert regarding Corporal one new trial will not be disturbed absent 814 So 2d 72 81 writ denied 2002 1215 La 11 22 02 Evidence 4 was no fix In have corroborated his and support of this contention defense telephone records of defendant s cellular phone telephone numbers which all failed to indicate any call was his arrival at the Mandeville Police Department and his home and office placed to Mayor Price prior to Defendant argues these records unavailable at trial given the short notice of this issue and the amount were of time involved in obtaining the necessary subpoena We note trial that the defense failed to request Furthermore we Price and Chief Buell subpoena for these records during also note that defendant obtained instanter who testified the lack of any contact investigation a or Accordingly fix we subpoenas for Mayor consistently with defendant s own testimony regarding resulting from any involvement by the Mayor find this newly discovered evidence 25 in this to be cumulative of to exercise due existing evidence and defendant failed diligence in obtaining these records this Moreover defendant and Mayor Price only witness a s affects the credibility of evidence merely It has been held that will credibility ordinarily not Finally guilt reflect actual defendant no innocence of defendant has held that the basis for 324 329 find or 1946 State merit in this newly discovered obtaining v a new a motion for evidence new 701 So 2d 949 951 but at affecting State the Cru Wine Bar evidence Ie Longstanding affecting collateral v v records fails to merely reveals collateral facts Sgg State trial trial Lambert per curiam regarding defendant s telephone behavior following the incident s juriSprudence provide the evidence we note newly discovered support Cavalier 96 3052 97 0103 p 3 La 10 31 97 Corporal facts does not Atwood 210 La 537 27 So 2d Posey 137 La 871 69 So 494 496 1915 Accordingly we assignment of error False Expert Testimony and Newly Discovered Medical Evidence In defendant s seventh assignment of Dr testimony of Dr H Carson McKowen and the trustworthiness of the trial considered We Dr Fisher as a basis for were experts who testified on entirety of Rome and aware review of this that Dr be cumulative of evidence attack cross on the State examined s Dr s Inglese treating neurologist affects s expert and should be no basis to find that either Dr McKowen second The we Dr note that the two medical Sakla and Dr jury was well error already aware Hamide that Dr was accepted as an indicates that not expert both Inglese did in internal medicine in the record it would also serve as a counsel and the defense also 26 Our only would this proffered testimony further credibility expert Dr Inglese The record indicates Dr Inglese by defense or medical records available to form the basis of his opinion Inglese assignment of s proffered opinion trial defendant s behalf at trial not have the also Fisher Rome trial witnesses as disagreed with the opinions of was a new note there is we unavailable he argues the testimony of Dr Inglese the State granting First disagree error was extensively presented divergent opinions from two medical experts in Accordingly we denying defendant s motion for new trial This assignment of error is cannot say the trial court abused its discretion on this basis without merit CONCLUSION For the above and arguments on appeal and foregoing reasons we find no merit to any of defendant s affirm both his conviction and sentence CONVICTION AND SENTENCE AFFIRMED 27
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