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State v. Calderon

Court of Appeals of Louisiana, Fifth Circuit

April 12, 2017

STATE OF LOUISIANA
v.
EMILIO CALDERON

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 14-3090, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand.

          COUNSEL FOR DEFENDANT/APPELLANT, EMILIO CALDERON Bruce G. Whittaker.

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

         SMC

         FHW

         SJW

          SUSAN M. CHEHARDY, CHIEF JUDGE

         Defendant, Emilio Calderon, appeals his convictions and sentences for second degree murder and first degree feticide. For the reasons that follow, we affirm his convictions and sentences, and remand the matter for correction of the commitment.

         FACTS AND PROCEDURAL HISTORY

         Katherine Martinez was found strangled to death in her apartment on June 7, 2014. She was eight months pregnant. Years before, in 2007, when Katherine was sixteen years old, she immigrated to the United States with her mother, Orla Martinez. They initially settled in New York City; but after Katherine had finished high school, she and her mother moved to Gretna in 2011, where Katherine got a job and began pursuing a career in nursing. Katherine also maintained a social life, befriending Santos Reyes, Juan Lozano, and Emilio Calderon, defendant. Although she was romantically involved with each of these men to varying degrees at various points in time, the evidence suggests Katherine established a steady relationship with Mr. Lozano sometime in 2012 and became pregnant with his child in late 2013.[1]

         On the night of Saturday, June 7, 2014, Katherine and Mr. Lozano were to pick up Katherine's mother from the airport. Mrs. Martinez, who was in New York, had spoken with Katherine that morning, but was unable to get in touch with her after 1:00 p.m. eastern time. Growing concerned, Mrs. Martinez called Santos Reyes around 5:00 p.m. central time to see if he could get in touch with Katherine. Mr. Reyes sent several text messages to Katherine but got no response. At Mrs. Martinez's insistence, Mr. Reyes went to Katherine's apartment looking for her. The lights were out and nobody answered the door, so he assumed she was not home and he left.

         Mrs. Martinez arrived at the New Orleans airport around 11:00 p.m. Mr. Reyes picked her up and they went straight to Katherine's apartment in Gretna. They forced open the door and found Katherine unresponsive on the kitchen floor. Mr. Reyes immediately began administering first aid, but soon realized that Katherine was stiff and cold to the touch. After failed attempts to revive her with fingernail polish remover, they called 9-1-1.

         Detective Gabriel Faucetta of the Jefferson Parish Sheriff's Office ("JPSO") responded to the scene around 1:00 a.m. on June 8, 2014. Katherine lay face up on the kitchen floor in only a brassiere, shorts, and underwear. Several of her acrylic fingernails were broken off, suggesting a struggle had occurred. She had sustained several stab wounds.

         The autopsy later confirmed Katherine's cause of death was asphyxia due to strangulation. This was also her unborn child's cause of death. It was determined that the five stab wounds had not caused her death because she had not lost a fatal amount of blood. It was estimated that Katherine had been dead between four and twelve hours at the time she was found.

         Through his investigation, Detective Faucetta was put in touch with Katherine's boyfriend, Mr. Lozano, who agreed to meet with him at the detective bureau. Mr. Lozano was very cooperative: he answered the detective's questions, allowed officers to search his cell phone, and provided a DNA sample. Mr. Lozano also removed his shirt and permitted officers to examine his body for injuries or scratches. None were found. Officers searched Mr. Lozano's vehicle, house, and business, but located nothing of value. Through the use of cellular records, Detective Faucetta corroborated Mr. Lozano's whereabouts on June 7, 2014. Mr. Lozano was ruled out as a suspect.

         Similarly, Mr. Reyes agreed to meet with detectives, and was also very cooperative, allowing officers to search his cell phone, providing a DNA sample, and permitting an examination of his body, which did not reveal any injuries or scratches. Mr. Reyes' whereabouts on June 7, 2014 were also corroborated with his cellular records. He too was ruled out as a suspect.

         As detectives continued their investigation, Mrs. Martinez advised them of troubling conversations she had with defendant through Facebook and WhatsApp, a text messaging application. The evidence suggested that defendant and Katherine had a falling out and that Katherine cut off communication with him, blocking him on social media. This prompted him to reach out to her mother. In a Facebook conversation on October 26, 2012, defendant told Mrs. Martinez that Katherine had hurt him but that he still loved her and did not know what to do.[2]Then, two days later, defendant messaged Mrs. Martinez asking for Katherine's phone number, explaining that "despite the insults, the lies, everything, I still love her and cannot forget her." On November 4, 2012, Mrs. Martinez relayed to defendant Katherine's message that she did not want to hurt him but it was best for him to forget about her. Months later, on April 7, 2013, defendant messaged Mrs. Martinez asking her to tell Katherine that he loved her, that she was the love of his life, and that he would wait his whole life for her. Over the next several months, ...


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