APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 516-604, SECTION " J" . Honorable Darryl A. Derbigny, Judge.
LEON A. CANNIZZARO, JR., District Attorney, J. BRYANT CLARK, JR., Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR APPELLANT/ STATE OF LOUISIANA.
DANIEL ENGELBERG, COLIN REINGOLD, ORLEANS PUBLIC DEFENDERS, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins).
[2014-0213 La.App. 4 Cir. 1]
Sandra Cabrina Jenkins, Judge.
The State appeals the trial court's judgment granting Laderika Smith's motion to quash the indictment charging her with the second degree murder of her five-year old daughter, B.S., in violation of La. R.S. 14:30.1(A)(2).
The second degree murder indictment was based on allegations that defendant committed the predicate felony of cruelty to juveniles, by neglect and lack of supervision, in violation of La. R.S. 14:93. In her motion to quash, defendant argued that, as a matter of law, the allegations contained in the indictment and bill of particulars cannot support a conviction for second degree murder, pursuant to the Louisiana Supreme Court's holding in State v. Small, 11-2796 (La. 10/16/12), 100 So.3d 797. Following a hearing on the motion, the trial court granted defendant's motion to quash the indictment.
Upon our de novo review of the record, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On July 11, 2013, the grand jury indicted defendant for one count of second degree murder of her daughter, B.S., on June 23, 2013. On July 17, 2013, [2014-0213 La.App. 4 Cir. 2] defendant appeared for arraignment and entered a plea of not guilty to the indictment. On July 26, 2013, defendant filed a written motion to quash the indictment and, on August 7, 2013, defendant filed a motion for bill of particulars. The State filed opposition to both of defendant's motions. Subsequently, on August 27, 2013, the State filed a bill of particulars. On August 30, 2013, the State filed its opposition to defendant's motion to quash. On the same date, the trial court convened a bond hearing and a hearing on the motion to quash. The hearing was kept open and continued until September 20, 2013. On that date, the trial court heard further testimony and arguments on the motion to quash and took the matter under advisement. On September 26, 2013, the trial court granted defendant's motion to quash and issued written reasons.
The record before this Court on the appeal of the motion to quash the indictment is limited to the pre-trial documents and transcripts of the hearing on the motion. The facts relevant to this appeal are set forth in the police report and by the testimony of the lead detective, Detective Robert Barrerre.
On June 23, 2013, the New Orleans Police Department received a 911 call from defendant informing that her daughter had found a gun and shot herself at their residence at 2221 Galvez Street. Responding police officers arrived at the scene and observed the victim, five-year old B.S., suffering from a gunshot wound to the head. An ambulance soon arrived on the scene and transported the victim to University Hospital, where she arrived in critical condition. The victim died as a result of her injuries later that day.
[2014-0213 La.App. 4 Cir. 3] Det. Barrerre and his partner, Det. Travis Ward, arrived at the residence to investigate the shooting. In their initial interview with the defendant, she stated that at around 10:35 a.m. she left the victim alone watching television at the residence while she went to the grocery store to buy some milk. On her way to the store, defendant observed an altercation between two people she knew; she approached and talked with the individuals for approximately ten minutes. When she returned to the residence, defendant looked through the house for the victim. Defendant found the victim lying on the floor of the bedroom closet with a massive wound to her forehead and a firearm lying next to her on the floor. Defendant immediately called 911 and remained with the victim until she was transported to the hospital. Defendant stated to the officers that she lived at the residence with the victim and defendant's cousin, Leon " Speedy" Warren.
Outside of the residence, detectives spoke with Lawrence Williams, a cousin of defendant. ...