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    STATE of Louisiana v. Kortney T. SMITH.
    No. 04-KA-199.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet L. Clark, Vincent Paciera, Jr., Thomas S. Block, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee.
    Jane L. Beebe, Gretna, LA, for Defen-danVAppellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   MARION F. EDWARDS, Judge.

Defendant Kortney T. Smith appeals his conviction and sentence for second-degree murder. We affirm.

At 4:30 a.m. on October 30, 2001, seven-month-old infant Kortney Smith died after sustaining a depressed skull fracture and brain hemorrhage while in the care of his father, the defendant Smith. Smith was indicted by a Jefferson Parish grand jury for the second-degree murder of the infant in violation of LSA-R.S. 14:30.1. Smith pled not guilty at arraignment. After a hearing, the trial judge denied Smith’s motions to suppress his statement and the evidence.

Following trial before a twelve-person jury, Smith was found guilty as charged. He was subsequently sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence to be served consecutively with an unrelated sentence. Smith appeals.

At-the trial, the child’s mother, Trekisha Sanders, testified that at the time of this incident, she was living in Harvey with Smith and her three children, Trey, |3Trey Juan, and the victim, Kortney. Smith was Kortney’s father. On Monday, October 29, 2001, the day preceding the child’s death, Trekisha left for work at 8:45 a.m. Trey went to school, and Smith stayed home with Kortney and Trey Juan. According to Trekisha, baby Kortney was sleeping in the upstairs bedroom and although he had a cold, he was breathing with no difficulty.

Trekisha called home twice that day. When she called at approximately 10:00 a.m., Smith told her Kortney was awake and crawling around. When she called at 3:30 p.m., Smith related that the children were fine. Trekisha went home at approximately 6:00 p.m. to bring the family some supper. Smith told her that the children were upstairs, but she did not actually see them, staying only for five or ten minutes before returning to work. Smith told her that he was bored and wanted to go out and take a ride. Later that evening, Smith called her at work to tell her that Kortney was choking and turning blue. When she arrived home, her aunt was holding the baby and rocking him. A friend from work, who had driven her home, carried the baby to the ambulance. At that time, Kortney told her that he had been feeding the baby when he turned blue, and Kortney never said anything about the child falling down the stairs. At. the hospital, she found out the baby had head fractures and telephoned Smith, who had gone home. He told her that he did not know how the baby may have been injured. After he had been - arrested, Smith stated that the child had fallen down the stairs, but that he had been afraid to tell her.

Deputy Carl Quijano of the Jefferson Parish Sheriffs Office was dispatched to Smith’s residence at approximately .7:07 p.m. Deputy Quijano saw Carolyn Sanders, Trekisha’s aunt, holding and rocking the child. According, to Deputy Quijano, the child appeared to be “lifeless.” The child’s arm was “dangling,” he was breathing sporadically, and Deputy Quijano could not find the child’s pulse.. According to Deputy Quijano, Smith identified himself as “Wayne Washington” [¿and said that he was a friend of the family, helping to take care of the child for their mother, Treki-sha. Sanders related that the child began to choke while Smith was feeding him milk. When Kortney stopped breathing, the two attempted to revive him by patting him on the back and by shaking him. Deputy Quijano testified that Sanders initially provided the history, but that Smith repeated what she had said. Smith added that he had attempted to give the child CPR.

At the hospital, Homicide Detective Donald Meunier spoke to Carolyn Sanders and Smith, who still identified himself as “Wayne Washington.” According to Detective Meunier, Smith told him that the child had choked, but did not mention that the child had fallen down the stairs or hit his head. Detective Meunier asked Sanders and Smith to stay where they were while he went to cheek on the child’s condition. However, both Sanders and Smith were gone when the officer returned.

Detective Meunier asked some follow-up questions of the other family members, and returned to the detective bureau. At approximately 12:30 a.m. on October 30, 2001, Detective Meunier spoke to Sanders at the bureau, where she went voluntarily. In her first taped statement at 4:51 a.m., Sanders, who lived across the street from Smith, said that a neighbor summoned her to Smith’s residence when the child started choking. However, she did not provide additional information relative to the child’s injuries. Sanders acknowledged that Wayne Washington was not Smith’s real name, and'that Trekisha and Smith had asked her to identify him as such. She told the police that the last time she babysat the child was either Friday (October 26th) or Saturday (October 27th), pursuant to Smith’s request.

At the conclusion of the recorded statement, Detective Meunier told Sanders that the child’s choking on a bottle did not explain his injuries and death. At 10:02 a.m., Sanders gave a recorded statement in which she admitted'that she knew more [5about the child’s injuries than she originally said. During this time, Sanders did not ask to leave, nor did Detective Meunier intimidate her or imply she would go to jail. The tapes and transcripts of both of Carolyn Sanders’ statements were admitted at trial and the tapes were played for the jury.

In her second statement, Sanders stated that Kortney was holding the baby and telling him to shut up. He “popped” the baby, and it didn’t sound like a slap, but rather like something hard. She saw him swing his arm, but did not see an object in his hand. Smith then went into the kitchen to get ice to put on the back of the baby’s head. When Sanders asked why he was putting ice on the baby, Smith responded “because I slapped him, I hit him.” Sanders left, returning when a neighbor summoned her because the baby was not breathing. Smith told her he was giving the baby a bottle when the child began to choke. She went to the hospital, but left after Smith did, to go home and change her clothes. Smith was at her home, along with her boyfriend and her nephew. Sanders asked him if he hit the baby with the.skillet and he stated that he had. “He was still kind of out of it....”, and was beginning to have a seizure.

At trial, Sanders testified that she often babysat with the children. She stated that on October 29th, 2001, Smith borrowed a skillet from her, and he appeared to be in a bad mood at the time. Sanders walked across the street to the house later in the day, and the door was ajar. She could hear Smith telling the baby to shut up, and he tapped the baby on the head. According to Sanders initial trial testimony, Smith did not hit the baby with anything. Then the State presented her with the second statement she had given to police on October 30, 2001.

Upon questioning at trial, Sanders admitted: “The truth’s on the tape.” She reiterated at trial that Smith admitted hitting the baby with the skillet. After she was summoned by the neighbor, Sanders tried to give the baby mouth-to-mouth resuscitation. When she got to the hospital, she gave the police a fake name for |fiSmith, calling him “Wayne Washington.” On cross-éxamination, she stated that her previous testimony, that Smith did not hit the child with an object, was a mistake, and the result of being tired.

Pierre Smith, who lived with Carolyn Sanders at the time, corroborated her testimony regarding Smith’s admission about striking the child with the skillet. Pierre stated that Smith and Brad Bartholomew, Carolyn’s nephew, came to Carolyn’s house that night before Carolyn returned from the hospital. . Pierre said he was upstairs when he heard Brad say that Smith had “caught a seizure,” and Pierre ran downstairs and grabbed him. However, Pierre stated that he had calmed Smith down ■ by the time Carolyn arrived, and that he did not appear to have any difficulty understanding Carolyn when she asked Smith if he had struck the child with the skillet. Additionally, Pierre testified that he was certain that he heard Smith reply affirmatively to Carolyn’s question.

Dr. Aaron Thompson, a pediatric hospi-talist, and Dr. John Steck, a neurosurgeon, examined the child in the emergency room. Dr. Thompson was accepted as an expert in pediatrics and Dr. Steck was accepted as an expert in neurosurgery. 'Dr. Thompson testified the family said that the child ■ had choked on a bottle, and was shaken try to get the formula up. The baby then stopped breathing. Dr. Thompson considered the history to be vague, and it was inconsistent with the injuries the child had sustained, which Dr. Thompson; described as severe.

The doctors found a large area of swelling and a depressed skull fracture in the right parietal occipital area of the child’s skull. The 'fracture was palpable, that is, it could be felt with fhe fingers, and it was pushed in toward the brain. There was bruising behind the child’s ear, and he exhibited signs of a severe neurological injury because he did not respond to pain and he was “posturing.” Dr. Thompson explained that posturing is when the arms and . legs are straightened out 17uncontrollably. Through the use of an ophthalmoscope, the doctors observed extensive retinal hemorrhages, which occur in the back of the eye when the blood vessels break. Dr. Thompson explained that retinal hemorrhages are pathogno-monic, or specific, signs for “shaken baby syndrome.” In fact, Dr. Thompson stated that one does not see retinal hemorrhages in any condition other than shaken baby .syndrome. Dr. Thompson explained retinal hemorrhages are caused by the “force of going forward and back repetitively with very sharp acceleration and deceleration and actually rips the blood vessels and causes bleeding in the back of the eye.”

The child was intubated, meaning that a tube had been placed down his throat into his lungs because he was not breathing on his own. Additionally, a tube had been placed in the child’s stomach to prevent the accumulation of air or secretions. An interosseus needle, which is a needle inserted into the bone, was also in place because there had been difficulty with starting an I.V. Dr. Steck explained that the child had also suffered a subdural he-matoma, which is bleeding under the dura, the outer covering of the brain. The doctors attempted to obtain further I.V. access because an interosseous line does not last very long. However, the child began to have problems with his heart rate, his heart failed, and the child became brain dead. According to the autopsy report, the child died at 4:30 a.m. on October 30, 2001.

According to both doctors, the injuries were not consistent with the history provided, and were not consistent with an infant choking on formula, falling out of bed, or falling down stairs. The police were notified of possible abuse, because of the nature of the injuries, which were signs that some type of severe trauma had occurred. The skull fracture was consistent with the child having been struck with an object such as a frying pan, and could not have been sustained by a slap on the back of the head. Further, the retinal hemorrhages are caused by repetitive | «shaking rather than one blow. The child could not have fallen down the steps fast enough to cause a depressed skull fracture, although such a fall can cause a simple linear fracture.

Dr. Steck testified that brain injuries such as those suffered by this infant do not occur absent a significant force. In his opinion, the child had more than one insult to the brain to cause that injury. To have a depressed skull fracture that is closed, one has to be hit by a large broad object at a significant force, such as in a car wreck or being thrown up against a wall. That type of event would not have caused the other brain injuries, which were consistent with a shaken baby.

Dr. Scott Benton, an expert in pediatric forensic medicine, testified that he had reviewed the child’s medical records, the autopsy protocol, Dr. Bhattacharjee’s report, the defendant’s three statements, photographs of the scene and photographs of the child, both prior to his death and post-mortem. According to Dr. Benton, the important finding was the injury to the axon, or nerve system. Dr. Benton explained that under accelerating, decelerating conditions, the brain develops cracks that tear the nerves with it, causing “diffuse axonal injury.” Dr. Benton explained that it is a specific type of brain injury that is seen with trauma.

Dr. Benton explained the type of forces that caused the child’s injuries:

There’s two things going on. There is impact trauma, which is manifest by the skull fracture, the hematoma that’s noted on the scalp, or the blood hemorrhage or bruise, if you will, that’s on the scalp. That’s impact trauma. Something hit the head very hard, or the head was accelerated very fast against something. That’s what that tells you. And it was focal trauma, meaning it wasn’t diffuse in that instance. At that point it was focal. It was a concentrated amount of force to that part of the skull.
The second aspect is that there is not diffusion of that force but diffusion of a another force that caused the hemorrhages in the eyes, to the optic nerve sheath and to the rest of the brain in what is seen as diffuse axonal injury. The impact to the skull — and let me be clear about this — did not propagate the force to the other side of the brain or to that other optic nerve sheath. That was a second force that was applied to this child’s brain; and that’s an acceleration, deceleration, or, in layman’s term, a shaking force, at least in the environment that I’ve been described. The only other time that we see this is in massive motor vehicle accidents—

19Considering the type of damage sustained, Dr. Benton believed it most unlikely that if the baby fell, that he would have been crying for a couple of minutes, because there is an immediate change in the level of consciousness after a traumatic injury. A blow with the skillet could have caused the skull fracture and bruising, but would not have caused the other injuries.

. Dr. Susan Garcia, a forensic pathologist with the Jefferson Parish Forensic Center, testified that the autopsy on the child had actually been performed by Dr. Rudner, who was no longer employed with the Forensic Center. The autopsy report reflected that Dr. Rudner found that the child’s cause of death was multiple blunt force traumatic head injuries. Additionally, Dr. Rudner found .3 centimeter braise on the left upper cheek area, a .5 centimeter bruise behind the right ear, and a .7 centimeter braise in the midline of the scalp. When the scalp was removed, there was blood in the soft 'tissue covering the bone. Further examination revealed a 7 centimeter depressed semicircular skull fracture, a 5 centimeter linear fracture radiating from the depressed fracture, and a 1.5 centimeter fracture in the middle of the skull. Once the skull cap was removed, Dr. Rudner discovered the brain was swollen and saw bleeding under the membranes covering the brain. Dr. Rud-ner also noted perioptic nerve hemorrhage, which is blood in and around the nerve connecting the eye to the brain.

In Dr. Garcia’s opinion, the injuries could not have been caused by a child falling down five or six carpeted stairs, but are consistent with a blunt force trauma to the back of the head.

Dr. Rudner removed the child’s brain and sent it to Dr. Meena Bhattacharjee, a pediatric neuropathologist at Texas Children’s Hospital. Dr. Bhattacharjee testified that she found moderate to severe diffuse brain swelling. There was also multifocal, subarachoid hemorrhage that was most prominent in the right, parietal occipital region consistent with the site of the associate depressed |inskull fracture. According to Dr. Bhattacharjee, the hemorrhage was of recent origin. Dr. Bhatta-charjee used State’s Exhibit 12, a photograph of the child’s brain, to-illustrate the difference between the normal left hemisphere and the, injured right hemisphere. Dr. Bhattacharjee stated that the photograph showed the subdural blood, which ■was the blood clot, and the subarachnoid blood, which was the more diffused red stain. These injuries are not consistent with a fall, and it is unlikely to have been ' caused by a slap with an open hand, but rather the result of severe trauma.

Detective John Drury testified that he, Detective Meunier, and Detective Clogher, responded to the .call received from the medical center. At 11:14 a.m. on October 30, 2001, Detective Drary obtained a warrant for Smith’s arrest and a search warrant. for his apartment. The fact that Smith was wanted by the police was broadcast on- the evening .news. At approximately 7:45 that night, Smith showed up at the detective bureau and made several recorded statements to Detective Drury after waiving his constitutional rights. The tapes and transcripts of -all three statements were admitted into evidence and the tapes were played for -the jury. During the time Detective Drury spoke with him, Smith was calm.

In the first statement, Smith described the events of the day leading up to the child’s having difficulty breathing. Sidney Bartholomew had come over earlier in the day to use the telephone. Carolyn came over between 1:00 and 2:00 that afternoon. The baby had a runny nose, but was not sick. Later, Sidney’s brother Brad came over, and Smith took the children for a ride with Brad before waiting for Trey’s bus, which usually arrives at 4:30 p.m. According to Smith, Kortney was asleep in his playpen downstairs at 5:15 p.m. Smith placed the child on a pallet on the floor upstairs in the master bedroom to sleep. At 6:30 p.m., he heard the child crying and went upstairs to change his diaper. He returned downstairs to warm a bottle for the child. When he fed the child the bottle, however, the baby l^began to choke and to have difficulty breathing. He patted the child on the back, tried CPR, called the ambulance, and yelled to a neighbor who was outside to summon Sanders.

Smith said that he went to the hospital, giving the police a false name of Wayne Washington, but left when Trekisha told him to go. He went with Brad to a number of different places, including Brad’s girlfriend’s residence, where they spent the night. The family had Brad’s beeper number, and would page them when there was any news. Brad went to the hospital the following morning. When Brad returned, he told Smith that the child was dead. Brad told Smith that Trekisha’s mother was blaming him (Smith), and that he (Smith) later went to his family home.

Detective Drury continued to question Smith. Shortly before his second recorded statement at 4:41 a.m. on October 31, 2001, Smith said for the first time that the child had fallen down the stairs. In his second statement, Smith stated that he had not told the truth the first time about what happened after he brought the child upstairs. According to Smith, he brought all the children upstairs and closed the door, going downstairs to fix something to eat. He surmised the other children must have opened the door and the baby crawled out of the room. After hearing a thumping sound on the steps, Smith discovered Kort-ney six or seven steps from the top of the staircase, with his head facing down. The other children were at the top of the stairs. According to Smith, he was afraid to tell anyone that the child had fallen because he was embarrassed that he had let the accident happen.

In the third statement, Smith added that he had forgotten to tell Detective Drury that he had stopped by Sander’s apartment after leaving the hospital. According to Smith, Carolyn was entering her residence as he and Brad were leaving. Smith admitted that he spoke to Carolyn, but could not recall what he said.

j12At trial, Smith testified that none of the children were ever mistreated. He denied that he slapped or hit Kortney at any time. Smith said that he stayed home to take care of the children while Trekisha was at work. On the day in question, he and Sidney Bartholomew went to Carolyn’s to borrow a skillet to fix some pancakes. After eating, Sidney left. Carolyn came over between noon and 1:00 p.m. to borrow some sugar. The next time Smith saw Carolyn was when she came over to help after Kortney started choking. He denied that Carolyn said anything to him about hitting Kortney and denied he applied ice to Kortney’s head that day.

According to Smith, the children did not have any accidents or any problems before Trekisha came home at 6:00 p.m. Kortney was placed on a pallet upstairs on the floor in the room, and Smith closed the door. The pallet where he placed the child was approximately three to four feet from the staircase. Approximately thirty-five minutes after Trekisha returned to work, he heard Kortney falling down the stairs. Smith testified that the child was crying, but he did not see any signs that the child was injured. According to Smith, the child was near the bottom of the stairs, but did not actually hit the bottom. The other children came downstairs after Kortney fell. Smith stated that he fed the child a bottle to calm him down, but the child began choking, the milk was coming out of the child’s nose and mouth, and he was having difficulty breathing. Smith shook the child, attempted CPR and called for a neighbor to summon Carolyn. He called 911 as well as Trekisha.

Smith rode to the hospital with Brad because he could not get in the ambulance. He told the police that he was “Wayne Washington” because he was wanted for “serious charges” and feared he would be taken to jail. Smith left the hospital after Brad said that he heard a police officer say that everything wás alright. When Brad repeated to Smith what he had heard, however, the officer denied that she had made the remark, and a verbal altercation ensued. The family told Smith and Brad they could leave, and that they would page Brad with any |ianews. Smith stayed at the hospital for two hours, but left because he feared he would go to jail on outstanding charges.

According to Smith, the family paged Brad at 11:00 p.m. and again at 2:30 a.m., but there was no additional news. The next morning, Brad brought his children to school and then went to the hospital. When Brad returned home at approximately 9:00 a.m., Brad told Smith that Kortney had died.

Smith acknowledged that he went to Carolyn’s house after leaving the hospital, but said that Carolyn did not tell the truth in her second statement to the police. Smith went to talk to the police after he saw' the ■ news reports that he had hurt Kortney, and he was very upset because the reports were untrue.- Smith reiterated that he did not tell anyone that Kortney fell down the stairs because he was ashamed that he left him unsupervised. He further testified that he had pled guilty to attempted possession with intent to distribute cocaine in 1999, and he also pled guilty to two counts of possession of cocaine and two counts of possession of a firearm by a convicted felon.

Smith’s aunt, Deidre CÍeggett, and his mother, Janice Goods, testified that Smith had a close relationship with Kortney, and that they had never known him to abuse the baby. Smith also called Trekisha as a witness in his case. She testified that Carolyn Sanders never told her that she saw Smith strike Kortney. Trekisha further testified that she had previously believed that Kortney’s death was an accident, and that Trey Juan told her the baby had fallen down the stairs.

Smith contends that the evidence is insufficient to support his conviction because the only direct evidence of his guilt was recanted by Carolyn Sanders at trial and that the circumstantial evidence did not exclude the reasonable possibility that the child fell down the stairs.

We review the issue of sufficiency by determining whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a | ■, national trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. The rule as to circumstantial evidence is: ' assuming ' every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a standard separate from the Jackson rule, but provides a helpful methodology for determining the existence of reasonable doubt. In assessing other possible hypotheses in circumstantial evidence cases, the appellate court does not determine whether another possible hypothesis suggested by a defendant could afford an exculpatory explanation of the events. Instead, the reviewing court evaluates the evidence in the light most favorable to the prosecution and determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under the Jackson standard.

Smith was convicted of second degree murder, a violation of LSA-R.S. 14:30.1, which provides in pertinent part:

(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(b) When the offender is engaged in the perpetration of cruelty to juveniles, even though he has no intent to kill or to inflict great bodily harm.

In order to convict a defendant of second degree murder pursuant to La. R.S. 14:30.1(A)(1), the state must prove (1) the killing and (2) specific intent to kill or to inflict great bodily harm. Specific criminal intent is “that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow .his act or failure to act.” LSA-R.S. |1fil4:l0(l). The determination of specific criminal intent is a question of fact and may be inferred from the circumstances and the actions of the defendant.

In order to convict Smith of second degree murder pursuant to La. R.S. 14:30.1(A)(2)(b), the State must prove that Kortney’s death occurred while Smith was engaged in the perpetration of cruelty to juveniles. Cruelty to juveniles is defined in LSA-R.S. 14:93(A) as “the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child.” The term “intentional” within the meaning of this statute, requires general criminal intent to cause a child unjustifiable pain and suffering. Mistreatment as used in this statute means “abuse.” To be criminally negligent in his mistreatment or neglect of the child, the defendant must have such disregard for the interest of the child that his conduct amounted to a gross deviation below the standard of care expected to be maintained by a reasonably careful person under like circumstances.

Smith urges that other than the testimony of Sanders and Pierre Smith, there'was no evidence to indicate the injuries were anything other than a tragic accident. We disagree.

Although Smith asserts that Dr. Bhatta-charjee testified that the child’fe bruises were not consistent with being hit on the head with a frying pan, the record does not support this allegation. When asked about whether being struck by a frying pan could have caused the bruise behind the child’s ear, Dr. Bhattacharjee replied, “Not in my opinion, but I’m not entitled to comment about that.” Additionally, while Smith avers that Dr. Bhattacharjee could not say that the 1 ^child’s injuries were inconsistent with the baby’s head hitting a wall, the record reflects otherwise. When defense counsel showed Dr. Bhattacharjee' State’s Exhibit 8, which is a photograph of the bruise on the top of the child’s head, and asked whether the doctor could rule out the possibly that the impact of a corner of the wall caused it, Dr. Bhattacharjee replied negatively. Thus, the context of Dr. Bhattaeharjee’s testimony indicates that she could not rule out the corner causing the bruise, not the totality of the child’s injuries.

None of the experts believed that the . injuries to Kortney could have been caused by falling down the stairs, choking, or CPR. Dr. Bhattacharjee testified that she did not believe the injuries were consistent with rolling down carpeted stairs, falling out of bed, or patting a choking child on the back. Dr. Garcia also testified that the child’s injuries were not consistent with such a fall. According to Dr. Thompson, it is rare to see a skull fracture caused by a fall down the stairs. When asked by defense counsel whether he could , rule out the possibility that the child’s head struck the corner, Dr. Thompson replied, “From a fall down .the stairs. I mean if someone took the child and smashed his head into the corner, then I suppose it could cause that.” According to Dr. Thompson, shaken baby syndrome could not have been caused by thumping down twelve or thirteen steps or by shaking a child to attempt to revive it.

' Similarly, when shown the photograph of the stairs in the Smith’s apartment, Dr. Steck opined that there was “no way” that the child’s injuries could have'been sustained by falling down those stairs. Further, Dr. Steck testified that he could not conceive of any physical properties of stairs that could cause these types of injures. Dr. Benton testified that nothing on the stairway in Smith’s apartment could have accidentally caused the child’s injuries. According to Dr. Benton, even if the child had fallen down the stairs, he would not have gone more than a couple of steps, and the injuries could not have been caused even if he had fallen all the way to the 117bottom. Dr. Benton had never seen a fatality from a stairway fall. According to studies discussed by Dr. Benton, the . older children fell down stairs further than younger children because older children have .more mass than younger children. Further, Dr. Benton opined that the “conclusion was that if you see significant trauma on the order of what we’re seeing here, then you’re not dealing with a stairway injury.” Finally, Dr. Benton explained that shaken baby syndrome is not caused accidentally, and is indicative of abuse, regardless of what explanation is tendered. Based on the foregoing, we find the experts negated the possibility that a fall down the stairs in Smith’s apartment could have caused the child’s injuries.

Smith also contends that Sanders credibility was suspect, and that she recanted the only direct evidence in the case. Rather, the record reflects that although Sanders initially testified that Smith merely tapped the baby, she later acknowledged that her final statement to the police was the truth. In addition, Pierre Smith corroborated Sanders’ testimony regarding Smith’s admission.

Smith’s explanation for the child’s injuries was that the child had fallen down the stairs. In returning the guilty verdict, the jury obviously rejected this hypothesis of innocence. “When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” It is the role of the fact-finder to weigh the respective credibility of the respective witnesses, and a reviewing court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review.

After considering all of the evidence, direct and circumstantial, we find that a rational trier of fact could have reasonably rejected Smith’s version of events and | ^concluded beyond a reasonable doubt that, at the very least, Kortney died at the hands of Smith while the latter was engaged in the perpetration of cruelty to juveniles. This assignment of error has no merit.

Smith also claims that the trial judge erred in failing to either admonish the jury or grant á mistrial after the prosecutor made an improper remark in rebuttal.

Smith objected after the prosecutor made the following remarks during rebuttal:

He’s no father, he’s not a real man. He is a cold-blooded, angry, controlling, manipulative murder.
You go back there, you take your vote. Ten out of twelve, Mr. Regan’s going to tell you don’t change your vote, don’t listen, don’t do this, don’t argue, don’t talk. You go back there, you look at the evidence, take the photographs, ask for the photographs to go back there.
That is a cold-blooded, calculating murderer who still hasn’t got a clue. He doesn’t deserve to be on our streets. Take him off our streets forever. Don’t let him do that to somebody else. (Emphasis supplied)

Thereafter, Smith objected and asked for an admonition. The trial judge responded that he was about to read the jury charges and these instructions would advise the jurors how they should consider the arguments of the attorneys. The record reflects that the court told the jury that the opening statements and closing arguments were not to be considered as evidence and that the jury should not be influenced by either sympathy or prejudice.

After the court announced that the jury had reached a verdict, Smith argued that the court’s instructions were insufficient to cure the prejudice caused by the prosecutor’s remark and moved for a mistrial, which the court denied. The court noted that it had instructed the jury several times during the trial that the words of the attorneys were not evidence and that the full instructions immediately after the objection remedied the situation.

LSA-C.Cr.P. art. 774 defines the scope of argument and rebuttal:

| mThe argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.
The argument shall not appeal to prejudice. The state’s rebuttal shall be confined to answering the argument of the defendant.

LSA-C.Cr.P. art. 771 provides that the trial judge shall promptly admonish the jury upon request of the State or the defendant when a prejudicial remark is made during trial or argument when a mistrial is not mandatory under LSA-C.Cr.P. art. 770. Further, the article provides that the court may grant a mistrial if it is not satisfied that the admonition was sufficient to assure • a fair trial for the defendant. However, a mistrial is a drastic remedy and, except in instances that a mistrial is mandatory, is warranted only when the defendant suffers substantial prejudice that deprived him of any reasonable expectation of a fair trial.

Nevertheless, prosecutors have considerable latitude in making closing arguments, and even when a prosecutor has exceeded that latitude, a conviction will not be reversed unless the reviewing court is “firmly convinced that the jury was influenced by the remarks and that' they contributed to the verdict.”

In the present case, we find that the prosecutor’s remarks, although arguably improper, were not so inflammatory as to warrant reversal. We are not firmly convinced either that the jury was influenced by the remarks or that they contributed to the verdict. The prosecutor’s remarks were harmless in light of the evidence against Smith, and because of the trial court’s specific instructions to the jurors that the arguments of attorneys were not evidence. .

This assignment of error has no merit.

Smith also complains that the trial court improperly ordered his life sentence to be served consecutively with a five-year sentence for unrelated charges. | ¡>nHowever, Smith did not file a written motion to reconsider sentence, nor did he object to the trial court’s order that the sentence would be consecutive. Further, he does not contend on appeal that his life sentence was constitutionally excessive. Thus, he is precluded from challenging as excessive the consecutive nature of his sentence.

The record was reviewed for errors patent, and find none that require corrective action on the part of this court.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tilley, 99-569 (La.7/6/00), 767 So.2d 6, 24, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

      . See State v. Jones, 98-842 (La.App. 5 Cir. 2/10/99), 729 So.2d 57, 63.

      . State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1020, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).

      . Id.

        . State v. Williams, 97-1135 (La.App. 5th Cir.5/27/98), 714 So.2d 258, 263.

      . State v. Sandoval, 02-230 (La.App. 5 Cir. 2/25/03), 841 So.2d 977, writ denied, 03-853 (La. 10/3/03), 855 So.2d 308.

      . See, State v. Richthofen, 01-500 (La.App. 5 Cir. 11/27/01), 803 So.2d 171, 184, writ denied, 02-0206 (La. 1/31/03), 836 So.2d 57, and the cases cited therein.

      . ■ Id.

      . State v. Richthofen, supra (citing State v. Porter, 99-1722 (La.App. 3d Cir.5/3/00), 761 So.2d 115, 123).

      . State v. Captville, 448 So.2d 676, 680 (La.1984).

      . State v. Wallace, 00-1745 (La.App. 5 Cir. 5/16/01), 788 So.2d 578, 584, writ denied, 01-1849 (La.5/24/02), 816 So.2d 297.

      . State v. Harris, 00-3459 (La.2/26/02), 812 So.2d 612, 617.

      . State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 375, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996).

      .La. C. Cr. P. art. 881.1; State v. Watson, 02-1154 (La.App. 5 Cir. 3/25/03), 844 So.2d 198, 212.


source: Caselaw Access Project

author: SOL GOTHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Marcel McCLAIN.
    No. 04-KA-98.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Jackie Maloney, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Kristen A. Moe, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   SOL GOTHARD, Judge.

Defendant, Marcel McClain, appeals his conviction and sentence on a charge of indecent behavior with a juvenile in violation of La. R.S.' 14:81. Defendant was tried by a jury for the charged crime and found guilty. He was sentenced to five years at hard labor which was suspended in favor of five years of active probation. In addition to the general conditions of probation, defendant was ordered to register as a sex offender and pay a $5,000.00 fine.

FACTS

According to the facts contained in the record, on June 3, 2002, K.T., age twelve, lived with her mother (M.T.), brother and sister at a town home in Metairie. K.T. was upstairs watching television when her sister came upstairs and |aannounced defendant was there. Defendant was dating M.T. and had come to pick up his daughter, McKenzie, who was also at the residence.

According to KT.’s taped interview with Omalee Gordon at the Children’s Advocacy Center (CAC), given ten days after the incident on June 13, 2002, she and her sister were lying down under a blanket when defendant came upstairs. Defendant tickled KT.’s sister and asked K.T. how she was doing. Defendant then reclined under the covers with K.T. and her sister and began rubbing KT.’s stomach with his hand. Defendant asked K.T. if she liked it when the boys rubbed her stomach to which K.T. replied no. Defendant next rubbed KT.’s breasts. He shifted her bra to the side and rubbed his hand on the skin of her breasts. He again asked K.T. if she liked it when the boys did the same thing. K.T. replied that she did not. Defendant grabbed KT.’s pubic area on top of her clothes and repeated the same question. K.T. again answered that she did not. Thereafter, defendant tried to unbutton KT.’s pants. K.T. told defendant to stop at which time his daughter came into the room followed shortly thereafter by KT.’s mother. K.T. stated that defendant immediately stopped and quickly shifted his position away from her. K.T. then left the room to get her shoes because she had to go with her mother to pick up her grandmother from a concert.

During the CAC’s taped interview, K.T. stated she was upset after the incident and did not know how to tell her parents what had happened. K.T. eventually told her grandmother later that night after they returned home. KT.’s grandmother testified at trial that K.T. told her defendant had touched her. KT.’s grandmother could not remember exactly where defendant had touched K.T. but stated she knew it was in the area of the front part of the body. KT.’s grandmother then told KT.’s mother who called the police and KT.’s father.

At trial, K.T. stated that she could not remember anything about the incident that occurred on June 3, 2002. She expressed anger about having to testify at trial disclaiming she was told she would not have to take the stand. K.T. would only state that she remembered watching television with her little sister and then going to pick up her grandmother. She remembered defendant coming over to pick up his daughter but did not remember defendant coming into the room in which she was watching television. K.T. admitted writing a note on the night of the incident, which was introduced at trial, and she stated everything in the note was true.

Deputy Wayne Weidenbacher responded to the call at KT.’s residence. When he arrived, KT.’s mother was crying and shaking and was visually upset, as was K.T. Deputy Weidenbacher received a handwritten note from K.T. and took M.T.’s statement. According to M.T.’s statement, defendant had asked to use the bathroom and went upstairs. M.T. thought it was odd because the downstairs bathroom was not occupied. M.T. later went upstairs and found defendant lying with K.T. in the master bedroom. When M.T. walked into the room, she saw defendant abruptly remove his hand from HT.’s stomach. At trial, M.T. admitted seeing defendant in the room with K.T. but denied seeing any inappropriate activity between defendant and K.T.

Approximately ten days after the incident, Detective Scott Guillory contacted defendant and advised him he was under investigation. Defendant voluntarily presented himself at the Detective Bureau and gave a statement after being advised of and waiving his rights. The statement was not taped. According to Detective Guillory, defendant initially stated he went to the residence to pick up his daughter but never went upstairs. Defendant eventually stated he went upstairs to use the bathroom. He then admitted standing in the doorway of the room where K.T. was lying. Defendant denied ever going into the room.

Defendant, age 46, testified at trial that Detective Guillory’s testimony regarding his statement was inaccurate. Defendant stated he never denied going upstairs or into the bedroom. Defendant testified he went to the residence, to pick [fiup his daughter at .the request of M.T. He explained his daughter was upstairs when he arrived and he went upstairs to get her. He stated he was upstairs for maybe two minutes helping his daughter find her shoes and socks. He testified he briefly sat down in the television room to get out of the way of the television but denied ever improperly touching K.T.

LAW

In brief to this court, defendant assigns four errors. In the first he argues that the evidence presented is insufficient to support the conviction of indecent behavior with a juvenile. He claims the jury’s verdict was irrational, and challenges the credibility of the evidence by asserting the allegations resulted from an angry child who had argued with her mother earlier in the day and whose divorced parents fought over her mother’s relationship with defendant. Defendant claims the State failed to prove he behaved indecently with the victim. Defendant points out that the victim refused to testify at trial about the incident, and later recanted her allegations. Additionally, he notes that he had no history of sexual improprieties and had been alone with the victim and other children on multiple occasions without incident. He further points out that he voluntarily went to the police and gave a statement.

The State maintains it met its burden of proof through the videotape of the victim’s interview at the CAC and the victim’s handwritten note about the incident.

When issues are raised on appeal as to sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine sufficiency of the evidence. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any issues regarding trial errors | fibecome moot. State v. George, 95-0110 (La.10/16/95), 661 So.2d 975, 978. In assignment of error number three, defendant challenges the admissibility of the videotape. When determining the sufficiency of the evidence, the reviewing court looks at all the evidence, both admissible and inadmissible. The rationale is that when the entirety of the evidence, both admissible and inadmissible, is sufficient to support the conviction, the defendant is not entitled to an acquittal. The reviewing court then considers whether there was a trial error, such as admitting inadmissible evidence. If the reviewing court determines there was trial error, which was not harmless, the defendant is entitled to a new trial. In such. circumstances, the defendant is not entitled to an acquittal even though the admissible evidence, considered alone, was insufficient. State v. Hearold, 603 So.2d 731, 734 (La.1992).

The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, -443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under Jackson, a review of a criminal conviction record for sufficiency of evidence does not require a court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. State v. Breaux, 02-882 (La.App. 5 Cir. 10/16/02), 830 So.2d 1003,1009. A reviewing court is required to consider the whole record and determine whether a rational trier of fact would have found guilt beyond a reasonable doubt. Id.

It is not the function of the appellate court to second-guess the credibility determinations of the trier of fact or to reweigh the evidence. State v. Carter, 98-24 (La. App. 5 Cir. 5/27/98), 712 So.2d 701, 708, unit denied, 98-1767 (La.11/6/98), 727 So.2d 444. As such, a reviewing court accords great deference to the finder of fact’s decision to accept or reject the testimony of a witness in whole or in part. State v. Reyes, 98-424 (La.App. 5 Cir. 12/29/98), 726 So.2d 84, 88, unit denied, 99-1474 (La.10/8/99), 750 So.2d 967.

To support a conviction for indecent behavior with a juvenile under LSA-R.S. 14:81, the State must prove that 1) there was an age difference of greater than two years between the accused and the victim, who was not yet seventeen, 2) the accused committed a lewd or lascivious act upon the person or in the presence of a child, and 3) that the accused intended to arouse or gratify either his own or the victim’s sexual desires. State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 708. Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. Id.

The evidence established that K.T. was twelve years old at the time of the offense and defendant was forty-six years old. At trial, K.T. refused to testify about the incident. However, the videotaped interview of K.T. conducted at the CAC on June 13, 2002 was played for the jury. During the interview, K.T. detailed the incident. She stated defendant squeezed and rubbed her breasts. She explained that defendant shifted her bra to the side which allowed him to rub the skin of her breasts. K.T. also stated defendant grabbed her pubic area over her clothes and attempted to unbutton her pants. She further stated that, while defendant was touching her, he asked her several times whether she liked it when the boys did the same things to her.

The State also introduced a handwritten note which K.T. admitted writing. During her trial testimony, K.T. stated she wrote the note the same night of the incident and that everything she wrote in the note was true. The note was given to the police when they came to investigate the night of the incident. In the note, K.T. wrote that defendant got under the covers with her and touched her breasts and pubic area. She also stated defendant tried to open her pants.

| RFurther, the State presented the testimony of Deputy Wayne Weidenbacher, who investigated the incident on the night it occurred. Deputy Weidenbacher testified that KT.’s mother gave a statement the night of the incident stating she saw defendant lying on the floor with K.T. She stated that, when she walked into the room she saw defendant abruptly remove his hand from the top of the blanket which was on top of KT.’s stomach. During her trial testimony, KT.’s mother denied seeing any inappropriate activity between defendant and K.T. She further denied seeing anyone under a blanket and stated defendant was sitting at a distance from K.T.

The credibility of a witness, including the victim, is within the discretion of the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, units denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066. “The inconsistencies in the witness’s statement are one of any number of factors the jury weighs in determining whether or not to believe the witness’s trial testimony.” Id. at 1045. The Louisiana Supreme Court has made it clear that “the Jackson standard does not serve as a vehicle for a reviewing court to second guess the rational credibility determinations of the factfinder at trial.” State v. Juluke, 98-341 (La.1/8/99), 725 So.2d 1291, 1293.

Although defendant denied improperly touching K.T., and KT.’s mother denied seeing any inappropriate behavior between the two, the jury apparently found the State’s evidence more credible. The victim never denied the incident occurred even though she refused to testify about the incident during her trial testimony by claiming she did not remember anything. Further, the victim admitted writing the handwritten note about the incident that was introduced into evidence and testified that its contents were true.

| ¡^Defendant argues the evidence showed the victim’s allegations were the result of an angry child who had fought with her mother earlier in the day and whose father disapproved of defendant’s relationship with the victim’s mother. ■ The jury was fully aware of the family dynamics at the time of the incident. The record shows the victim’s mother and father had been through a bitter divorce. The record also establishes that, at the time of the incident, defendant was dating the victim’s mother to the disapproval of the victim’s father. Additionally, KT.’s mother testified that, on the day of the incident,' she and K.T. had an argument and were not really talking to each other that night. K.T. admitted she was sent upstairs ■ that night because she did not want to ■ bathe her little sister. Fully aware of these dynamics and events, the jury still believed the victim’s version of the events.

A review of the record as a whole shows the jury’s determination was reasonable. The jury made a credibility determination. The record supports the jury’s credibility determination and contains sufficient evidence to uphold defendant’s conviction for indecent behavior with a juvenile. We find this assignment of error to be without merit.

In his second assignment of error, defendant argues- the trial court erred in denying his motion for new trial because the victim recanted her testimony after trial. He maintains that new details about the victim’s allegations surfaced after trial through the victim’s mother and grandmother, which constituted new evidence arid warranted a new. trial.

At the motion for new trial, defendant presented the testimony of the victim, her mother and her grandmother. The victim testified that defendant did nothing improper with or to her. She .stated that she made the allegation against defendant because her father gave her the idea. K.T. stated her father told her negative things about defendant and she did not want her mother near defendant. She explained that she told her mother and grandmother after the trial that nothing happened. ImBoth KT.’s grandmother and mother corroborated K.T.’s testimony by stating K.T. told them after trial that defendant did nothing to her.

KT.’s grandmother further testified that she helped K.T. write the handwritten note detailing the incident. She stated she did not like defendant at the time she helped K.T. write the note.. She claimed she did not know the “whole story” and -now believed defendant to be a caring man who helped K.T.’s family. She believed KT.’s false allegations against defendant were encouraged by KT.’s father, with whom K.T. did not have a good relationship.

K.T.’s mother also testified that K.T. was motivated to lie because of her father’s threats. KT.’s mother further testified that the incident could not have occurred because she went upstairs immediately after defendant and did not see any improper conduct between defendant and K.T. She claimed the statement she gave to the police the night of the incident about seeing defendant move his hand from under the cover was false.

In denying the motion for new trial, the trial court stated:

I’ve heard all the testimony of the witnesses. I, again, have heard testimony today. I’ll tell you. Some things concern me about the testimony, because I believe that some of the information provided under oath is untruthful. I firmly believe that there are people who have lied to the Court, because of discrepancies in their testimony.
The Court does not find a basis for granting a new trial. The information provided at. the trial of the matter, by [the victim], was that she was a very uncooperative witness, as I recall, as was [the victim’s mother], as was [the victim’s grandmother]. However, [the victim], at the trial, although she wouldn’t go into the facts, she would not say that what she said on that tape was not true.
[The victim’s mother], today, for whatever reason, says that she really doesn’t remember the events of that night too clearly. She did give a statement to the police where she indicated that she saw the Defendant under these covers as they lay on the floor, with her daughter. All of a sudden today, she doesn’t remember that. All of a sudden today, that didn’t happen, you know. I find it offensive. She’s lying. Either she lied then, or she lied now; she is an admitted liar. I certainly cannot grant a new trial based on anything that would come from her mouth.
In Again, the Court finds no basis for a new trial in this matter, based upon what it has heard today. Certainly, there is a conflict, a domestic dispute between [the victim’s mother] and her husband. I don’t know if she’s — if they’re divorced at this point in time or not. I’m not involved in their domestic matter. It’s being heard by another Court.

But the Motion for New Trial is denied.

LSA-C.CrJP. art. 851(3) provides that a motion for new trial may be based on newly discovered evidence if the following four requisites are met: 1) the evidence must have been discovered since the trial; 2) the failure to learn of the evidence at the time of trial was not due to defendant’s lack of diligence; 3) the evidence must be material to the issues at trial; and 4) the evidence must be of such a nature that it would probably produce an acquittal in the event of a retrial. State v. Bolden, 03-266 (La.App. 5 Cir. 7/29/03), 852 So.2d 1050, 1063. The trial court’s ruling as to whether these requisites are met is entitled to great weight and a denial of a motion for new trial will not be disturbed on appeal absent a clear abuse of that discretion. Id. In evaluating whether the newly discovered evidence warrants a new trial, the test to be employed is not simply whether another jury might bring a different verdict, but whether the new evidence is so material that it ought to produce a verdict, different from that rendered at trial. State v. Smith, 520 So.2d 1252, 1255 (La.App. 5 Cir.1988), writ denied, 523 So.2d 1320 (La.1988). Recantations are highly suspicious and, except in rare circumstances, a motion for new trial should not be granted on the basis of a recantation. The rationale is that the recantation is tantamount to an admission of perjury so as to discredit the witness at a later trial date. State v. Bolden, supra at 1064. It is not an abuse of discretion on the part of the trial court to refuse to grant a motion urged on such a basis. State v. Clayton, 427 So.2d 827, 833 (La.1982).

As evidenced in its ruling, the trial court recognized that recantations are highly suspicious. There were no special circumstances presented that suggested bathe latest testimonies of the victim, her mother, and her grandmother were truthful. Immediately after the incident, the victim wrote a note outlining the incident. Ten days later, she gave a videotaped interview where she unwaveringly explained in detail how defendant touched her. Six months later at trial, the victim refused to testify about the incident claiming she had no memory of it but consistently stated what she wrote in the note was true. Approximately one year after the incident, at the hearing on the motion for new trial, the victim completely changed her story and denied defendant did anything to her. While both KT.’s mother and grandmother testified at the motion for new trial that K.T. recanted her allegations against defendant since the trial, neither gave a specific date or period of time when the recantation occurred. At trial, it was shown that defendant was a wealthy man who took care of KT.’s mother and her children. At the hearing on the motion for new trial, it was established that defendant had expressed a desire to marry KT.’s mother and have her live in his big house. Based on these facts, the recantations are too suspicious to be believed. See, State v. Clayton, 427 So.2d 827 (La.1982).

Defendant argues that the recantations are valid because the allegations were made out of fear of the victim’s father. However, nothing was presented at the hearing on the motion for new trial to show that circumstances had changed. The victim testified at the motion hearing that she was not currently living with her father. We note that there was no evidence that she lived with her father either at the time of the incident or at the time of trial. To the contrary, the evidence showed the victim lived with her mother at the time of the incident.

The theme of the evidence at the motion hearing was that the victim was influenced to make the allegations by her father of whom she feared. The victim, her mother and defendant all testified at the motion hearing that the victim’s father had threatened them. However, none of this was new evidence that could not have tabeen discovered before trial. In fact, evidence of the alleged influence and threats were presented at trial through the testimony of the victim, her mother and defendant. At trial, the victim testified that her father tried to make her think negatively of defendant and “sort of’ pressured her testimony. Also, the victim’s mother and defendant testified at trial that defendant had threatened them.

Under the circumstances of this case, we find no error in the trial court’s denial of defendant’s new trial motion.

In his third assignment of error, defendant asserts the trial court erred in admitting the videotaped interview of the victim into evidence because the victim refused to testify about the incident at trial. Defendant alleges the admission of the videotape denied his right to confrontation. Defendant maintains the victim’s refusal to answer questions about the alleged touching rendered her unavailable and, thus, the videotaped interview was inadmissible under LSA-R.S. 15:440.5.

The State played the videotaped interview of the victim during the testimony of its first witness, Omalee Gordon. Defendant objected to the videotape on the basis it was premature because the victim had not been called to testify. He further argued that the tape was inadmissible if the victim did not testify. The State responded that it planned to call the victim and that she would be available for both direct and cross examinations. The trial court then admitted the tape into evidence and it was played for the jury.

The victim was later called to testify. She reluctantly answered the prosecutor’s questions and explained that she was angry because she had to testify. The victim selectively testified about the day of the incident claiming she did not remember much. She remembered watching television with her little sister and defendant coming over to pick up his daughter. She remembered writing a note the night of the incident and testified everything in the note was true. However, ■ the victim claimed she could not remember what was in the note. She further claimed 114she did not remember defendant doing anything to her. Defense counsel then cross-examined the victim. He did not inquire into the incident but rather only questioned the victim about possible influences on her testimony. At the conclusion of the victim’s testimony, defendant did not renew or lodge a new objection to the admissibility of the videotape.

Prior to resting, the State sought to admit all of its exhibits, including the previously admitted videotape which was labeled S-l. Defendant noted his “earlier stated objection to Number 2,” which was the victim’s handwritten note. In order to preserve the right to appellate review of an alleged trial court error, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for the objection. LSA-C.Cr.P. art. 841. A new basis for an objection may not be raised for the first time on appeal. State v. Johnson, 03-620 (La. App. 5 Cir. 10/28/03), 860 So.2d 180, 187, unit denied, 03-3171 (La.3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem. It is also intended to prevent the defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by an objection. Id.

Defendant never objected to the admissibility of the videotape on the basis of the victim’s unavailability at the trial court level. Defendant’s initial objection was based on prematurity because the victim had not testified. Defendant did not assert, either during or after the victim’s testimony, that the victim was an unavailable witness because of her responses. He never asked the trial court to declare the victim unavailable and never suggested at trial that he was not able to effectively cross-examine her. Thus, we find defendant is raising a new ground for his objection to the admissibility of the videotape on appeal that was not raised at the trial court. As such, this issue is barred from review.

|1BIn the final assignment of error, defendant alleges the trial court improperly questioned one of the jurors about his verdict thereby casting doubt on the verdict. Defendant contends that the juror, Mr. Simmons, was singled out and questioned at the bench about his verdict because he wrote “no” on his polling slip. He argues Mr. Simmons was intimidated by the questioning and was unduly influenced to agree to a guilty verdict. As a result, defendant maintains the verdict was tainted with uncertainty. The State maintains defendant waived any error when he did not object to Mr. Simmons being called to the bench and when he - participated in questioning Mr. Simmons about his verdict.

We first address the State’s contention that defendant has failed to preserve this issue for our review by participating in the questioning. We have determined that defendant’s motion for a mistrial immediately after Mr. Simmons was questioned sufficiently preserved his right to appeal the issue. See; State v. Bannister, 97-48 (La. App. 4 Cir. 1/27/99), 726 So.2d 1135; State v. James, 99-1858 (La.App. 3 Cir. 5/3/00), 761 So.2d 125, 130, writ denied, 00-1595 (La.3/23/01), 787 So.2d 1010. Accordingly, we will consider the merits of this assignment.

After the verdict was read, the jury was polled. The trial judge noted that juror Simmons wrote “no” on his polling slip and called Mr. Simmons to the bench. In the presence of the prosecutor and defense counsel, the trial judge asked Mr. Simmons if he understood the question of whether or not this was his verdict. Mr. Simmons responded, “I ain’t never did this before.” The trial judge explained to Mr. Simmons that the question is whether the verdict that the jury rendered and that was read to the Court was his verdict, “the one [he] deliberated and agreed in the jury room.” The trial judge then asked Mr. Simmons if he agreed with the verdict. The transcript notes there was no audible response.

| ^Thereafter, the following exchange occurred:

THE COURT:
The polling question is — the question is:
“Is this your verdict?” What does that say?
JUROR SIMMONS:
“No.”
THE COURT:
So, is this your verdict or is it not your verdict?
JUROR SIMMONS:
That’s my verdict.
THE COURT:
Well, you need to explain to us what happened. I mean, I don’t understand.
JUROR SIMMONS:
Yeah, you have to explain it to me.
THE COURT:
You’re telling me that you agree with the verdict of the jury?
JUROR SIMMONS:
Yes.
THE COURT:
But when the polling slip was handed to you, you wrote the word “No”?
JUROR SIMMONS:
Yeah, I did.
THE COURT':
You need to tell us.
JUROR SIMMONS:
I was just confused. I ain’t never been in this situation and the whole situation got me just totally confused.
THE COURT:
You’ve got a question, Mr. Schmidt?
MR. SCHMIDT:
Yes. Mr. Simmons, is it your determination after hearing all of the evidence and reviewing that and discussing that, would you vote not guilty for Mr. McClain, or would you vote guilty? Aside from what anybody voted, I’m just asking your personal vote. Would you vote not guilty or guilty?
I l7JUROR SIMMONS:
Guilty.
THE COURT:
You said “guilty”?
JUROR SIMMONS:
Yeah.
THE COURT:
So, on the polling slip where it says “No,” that’s incorrect?
JUROR SIMMONS:
Yeah.
THE COURT:
And you do agree with the fellow members of your jury that the verdict is guilty of indecent behavior with a juvenile?
JUROR SIMMONS:
Yeah.

Thereafter, defense counsel objected to the verdict and moved for a, mistrial. • Defense counsel argued Mr. Simmons appeared confused and seemed intimidated, forcing him to agree with the other jurors. The trial judge noted that defense counsel asked Mr. Simmons whether he felt defendant was guilty or not guilty and Mr. Simmons responded guilty. The trial judge stated Mr. Simmons appeared confused about the procedure. ■

LSA-C.Cr.P. art. 812 provides:

The court shall order the clerk to poll the jury if requested by the state or the defendant. It shall be within the discretion of the court whether such poll shall be conducted orally or in writing by applying the procedures of Paragraph (1) or Paragraph (2) of this Article.
(2) The procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” Each juror shall write on the slip of paper the words ‘Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results. If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the 118verdict and order the jury discharged. If an insufficient number required to find a verdict answer ‘Yes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775.

The trial judge did not technically follow instructions set forth in LSA-C.Cr.P. art. 812(2) when he questioned the juror as opposed to remanding the jury for further deliberation or declaring a mistrial. However, we find the error to be harmless. In a similar casej State v. James, supra, defendant claimed the trial court erred in interrogating a juror regarding her “no” vote during the written polling of the jury in violation of LSA-C.Cr.P. art. 812. In James, the trial court called the juror to the bench and questioned her about her verdict. The juror revealed that she had initially felt the defendant was not guilty but felt outvoted and eventually voted that he was guilty. The Third Circuit concluded that, although the trial court did not comply with LSA-C.Cr.P. art. 812 when it failed to remand the entire jury panel for further deliberations or declare a mistrial, the error was harmless. The court noted the juror readily admitted she voted to convict during deliberations. The court further noted the record did not reveal she was pressured to change her vote during deliberations but simply changed her mind and voted with the majority. The court determined that by questioning the juror, the trial court determined that all six jurors voted to convict the defendant. Also, in State v. Amato, 96-606 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, 988-989, writs denied, 97-2626 and 97-2644 (La.2/20/98), 709 So.2d 772, the First Circuit found the trial court’s questioning of a juror who had written “no” on the written polling slip to be harmless error. In Amato, the juror wrote “no” on his polling slip when asked whether the verdict was his verdict. Thereafter, the trial court orally polled the jury at which time the juror responded “yes.” The trial court further questioned the juror who admitted he was confused. The First Circuit found any error in the 1 ^interrogation of the juror by the trial court was harmless because the record showed beyond a reasonable doubt that the verdict was unanimous.

In the present case, Mr. Simmons clearly stated he believed defendant was guilty. The record, as well as the personal observations of the trial judge, reflects Mr. Simmons was simply confused by the polling process. The questioning of Mr. Simmons was not suggestive or intimidating but was rather a harmless attempt to clarify the verdict. Mr. Simmons stated he was confused by the process and firmly stated he believed defendant was guilty. Therefore, we find that the failure to comply with La.C.Cr.P. art. 812 in this case is harmless error.

Finding no merit in any of defendant’s assignments of error, we affirm the conviction and sentence.

AFFIRMED.

      . LSA-R.S. 46:1844(W)(3) allows a court to use the initials of a crime victim who is a minor or a victim of a sex offense “to whatever extent ... [deemed] necessary to prevent the public disclosure of the name, address, or identity of such a crime victim.” (Emphasis added.) Since K.T. was thirteen years old at the time of trial, her initials, as well as her mother’s initials, are .used to protect her identity.

      . K.T.’s parents were divorced at the time of the incident.

      . It is noted defendant did not file a motion for post-verdict judgment of acquittal pursuant to LSA-C.Cr.P. art. 821. Although he did file a motion for new trial, procedurally there is a distinction between the two motions. This failure does not preclude appellate review of the sufficiency of the evidence. State v. Washington, 421 So.2d 887, 889 (La.1982); State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1017, footnote 3.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Leo J. ADDISON.
    No. 04-KA-135.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Churita Hansell, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, LA, for Plain-tiffiAppellee.
    Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY, and MARION F. EDWARDS.
   THOMAS F. DALEY, Judge.

The defendant, Leo Addison, has appealed his conviction of distribution of marijuana. For the reasons that follow, we vacate the defendant’s conviction and remand for a new trial.

FACTS:

Leo Addison was charged with distribution of marijuana after he was identified as the person who sold marijuana to Agent Kim Blanche on November 30, 2000. At trial, Sergeant Joe Williams testified that he received information from a “concerned citizen” that a black male named Leo Addison would be willing to sell one-fourth of a pound of marijuana. At approximately 2:00 p.m. on November 30, 2000, Agent Blanche went to a convenience store located at Highway 90 and Glendella Drive in Avondale. Sergeant Williams and Agent Lisa Thornton were members of the surveillance team for the operation. Agent Blanche testified that she was provided with $400.00 of U.S. currency earlier in the day. | ^According to Agent Blanche, she was alone in her vehicle, when a black male, whom she later identified as defendant, approached her car. She asked the man if he had one quarter pound of “weed.” Agent Blanche testified that she could not recall what the man said to her, but she testified that she gave him $400.00 in exchange for a white paper bag that contained marijuana within a plastic bag.

After the transaction, Agent Blanche met Agent Lisa Thornton at a pre-ar-ranged location and gave her the substance she purchased. This substance field-tested positive for marijuana. It was then brought to the crime lab where further testing was positive for marijuana and the weight was calculated to be 195.44 grams.

Agent Blanche testified that she recognized Addison because she had played with his siblings as a child. Agent Blanche testified that she told Sergeant Williams that she recognized the defendant, but she did not tell Agent Thornton. Rather, she provided a physical description of the defendant to Agent Thornton, who compiled a photographic lineup containing photographs of defendant and five others. Agent Blanche viewed the lineup on December 1, 2000, and positively identified defendant as the person who sold the marijuana to her.

At the conclusion of trial, the jury found Addison guilty as charged. After his Motion for New Trial was denied, he was sentenced to 20 years imprisonment. After pleading guilty to being a second felony offender, the original sentence was vacated and he was resentenced to 20 years. This timely appeal followed.

ASSIGNMENTS OF ERROR:

On appeal, Addison asserts that his right to present a defense was abridged because the trial judge granted the State’s Motion in Limine, which prohibited him from presenting testimony from Lawrence Kennedy, whom defendant contends was the confidential informant. Specifically, Addison asserts that he was Lprejudiced because Kennedy, who was willing to testify at trial, witnessed the drug transaction and would have been in the position to testify that defendant was not the seller. The State responds that the trial court properly granted the Motion in Limine because defendant was not entitled to know the confidential informant’s identity.

The record indicates that on March 24, 2003, the defendant petitioned the trial court to order a “Writ of Habeas Corpus Ad Testificandum” for Lawrence Kennedy, who was confined in the Hunt Correctional Center, and the trial judge granted the order. On March 26, 2004, the trial court held a hearing on the State’s Motion in Limine. At the hearing, the prosecutor urged the trial court to “exclude any testimony, evidence, documents or records concerning the identity of any confidential informant that may be used in this case[.]” The prosecutor would not confirm or deny whether Lawrence Kennedy was the confidential informant. However, the defense attorney responded that he believed Kennedy was the confidential informant and stated that Kennedy had agreed to testify on behalf of the defense.

LSA-C.E. art. 514 provides for a privilege when individuals furnish information to assist in an investigation for a potential violation of criminal law. At the hearing on the Motion in Limine in ’ the present case, the prosecutor asserted that the State’s motion was based on LSA-C.E. art. 514, which provides as follows:

Art. 514. Identity of informer

A. General rule of privilege. The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.
B. Who may claim the privilege. The privilege may be claimed by the prosecuting authority or an appropriate representative of the public entity to which the information was furnished.
C. Inapplicability of privilege. No privilege shall be recognized if:
| K(l) The informer appears as a witness for the government and testifies with respect to matters previously disclosed in confidence.
(2) The identity of the informer has been disclosed to those who have cause to resent the communication by either the informer or the prosecution, or in a civil case, a person with authority to claim the privilege.
(3) The party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer’s testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence.
(4) In a criminal case, the prosecution objects.
D. Order to disclose identity. If the court orders disclosure of the identity of an informer and the prosecution opposes the disclosure, the court:
(1) In a criminal case, shall enter one of the following orders exclusively:
(a) An order suppressing the evidence concerning which the identity of the informer has been ordered.
(b) An order declaring a mistrial.
(2) In a civil case, may make any order justice requires.

(Emphasis as found in the original.)

Defendant argued at the hearing on the Motion in Limine that the informant would have been able to contradict Agent Blanche’s trial testimony because the police report conflicted with Agent Blanche’s suppression hearing testimony. The police report is not contained in the record or the exhibits submitted with this appeal. However, at the hearing, the defense attorney read portions of the police report into the record stating that just prior to the transaction, the informant was seen speaking to the Negro male that Agent Blanche purchased the marijuana from.

By granting the State’s Motion in Li-mine, the trial judge essentially concluded that the informant’s identity was privileged. Thus, the threshold issue presented to this Court is whether the trial judge’s conclusion was correct.

In Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957), the United States Supreme Court noted that what is usually referred to as the informer’s privilege is actually the prosecution’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to law enforcement officers. This privilege is founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging citizens to supply information to the police by preserving their anonymity. Roviaro, 353 U.S. at 60, 77 S.Ct. at 627. However, the Roviaro court recognized that the privilege no longer applies once the identity of the informer “has been disclosed to those who would have cause to resent the communication.” Id.

In State v. Dick, 362 So.2d 547 (La. 1978), the Louisiana Supreme Court concluded that the informer’s privilege was inapplicable because the informant had disclosed his identity to defense counsel. In that case, the affidavit supporting the search warrant recited that a reliable informant had seen a substance that he believed to be marijuana in the defendant’s motel room. The affidavit stated that a sample of the material was given to the affiants which, when tested, proved to be marijuana. When the warrant was executed, the officers seized marijuana and items for rolling and distributing the substance. Id. at 548.

The defendant in State v. Dick filed a Motion to Suppress on the basis that the affidavit contained untrue allegations about the reliability of the informant and that the information furnished by the informant had been unlawfully obtained. At the' hearing, defense counsel questioned one of the officers as to whether David Arcemont, the owner of the motel, was the informant. The trial court sustained the State’s objection to this question, along with other questions in a similar vein, on the basis that the disclosure of the informant’s identity was not warranted. Thereafter, the defense called David Ar-cemont to the stand, who testified that he |7was the informant in the case, but denied that he had entered the defendant’s room. The trial judge, however, sustained the State’s objection to the entire line of inquiry regarding Arcemont’s status as the informer. Additionally, defense counsel testified under oath that Arcemont admitted he was the informant in the case. Id. at 549.

The Louisiana Supreme Court concluded that the State’s privilege in withholding the informant’s identity from disclosure was inapplicable because the record clearly established that the defense knew the informant’s identity. As such, the Louisiana Supreme Court held that the trial judge improperly curtailed defense counsel’s examination of the police officers and the informer. Id. at 549-550.

As in Dick, we find that the record establishes that the defense knew the identity of the confidential informant. Since the record is clear that the defense knew the identity of the informant, the prosecution had no privilege to protect the identity of the informant. Additionally, Comment (d) of Code of Evidence article 514 states that “... the language employed in Paragraph A means that if the informer-witness is willing to identify himself the prosecution may not unilaterally prevent it by its objection.”

Based on Dick and Comment (d), we find the trial court erred in granting the State’s Motion in Limine, prohibiting the defense from calling Lawrence Kennedy as a witness. The defendant’s right to present a defense and call witnesses in his behalf is granted by the Sixth Amendment of the United States Constitution and Article I Section 16 of the Louisiana Constitution. The trial court’s preclusion of Lawrence Kennedy’s testimony was an abuse of discretion that resulted in prejudice to the defendant’s fundamental right to present a defense. Accordingly, we must vacate defendant’s conviction and sentence and remand this matter to the trial court for a new trial.

^CONCLUSION: .

For the foregoing reasons, the defendant’s conviction is vacated. This matter is remanded to the trial court for a new trial.

CONVICTION VACATED; MATTER REMANDED.

      . On cross-examination, Sergeant Williams described the tipster as a confidential informant.

      . Although State v. Dick was decided before LSA-C.E. 514, however the reasoning of the case is applicable to interpret paragraph (C)(2).

      . Our error patent review revealed numerous discrepancies between the transcript and the minute entries involving the defendant’s sentence. Because we have vacated defendant’s sentence, no action is required by the trial court to correct these discrepancies.