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State v. Diaz

Court of Appeals of Louisiana, Fourth Circuit

September 6, 2017


         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 523-228, SECTION "E" Honorable Keva M. Landrum-Johnson, Judge


          Julie C. Tizzard, COUNSEL FOR APPELLANT, FRANK DIAZ.

          Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore

          Marion F. Edwards, Judge Pro Tempore.

         The defendant, Frank Diaz ("Diaz"), appeals his convictions for second degree battery and attempted manslaughter. Finding sufficient evidence to support the convictions, and that the convictions and sentences do not violate double jeopardy, for the reasons that follow, we affirm the convictions and affirm the sentences, as amended.


         On January 21, 2015, the State filed a bill of information charging Diaz with one count of second degree battery in violation of La. R.S. 14:34.1 ("Count I"), one count of attempted second degree murder in violation of La. R.S. 14:27(30.1) ("Count II"), and one count of extortion in violation of La. R.S. 14:66. Diaz pled not guilty to all counts at his January 26, 2015 arraignment.[1] Diaz was tried by a twelve-person jury on October 7-8, 2015, and found guilty as charged as to Count I and, as to Count II, guilty of the responsive verdict of attempted manslaughter in violation of La. R.S. 14:27(31).[2] The trial court denied Diaz's motions for new trial on February 29, 2016.[3] After waiving delays, the trial court sentenced Diaz to eight years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on Count I, and ten years imprisonment at hard labor on Count II, both to run concurrently and both counts designated as crimes of violence. Due to the State's having filed a multiple bill of information, which was ultimately withdrawn, the trial court deferred acting on Diaz's oral motion for an appeal. On November 4, 2016, Diaz filed a written motion for appeal, which the trial court granted. This appeal follows.


         Kristen Blake, a 911 operator and a custodian of records of the 911 dispatch office, identified an incident recall printout containing information received during a 911 call from the victim, B.A., who reported that the subject, Frank Diaz, had a warrant out of Florida for domestic violence.[4] B.A. described a history of domestic abuse and reported that during the previous evening, Diaz had struck her in the face, head, and on her body, resulting in a bump on her forehead. B.A. advised that, when Diaz was asleep, she had packed up all of her belongings and fled the location and was on a RTA bus headed to the Greyhound Station. Based on the victim's report, the 911 operator dispatched an EMS unit and advised B.A. to exit the bus and wait for the ambulance to arrive. The 911 operator also dispatched the police under a signal of misdemeanor domestic abuse battery. The signal was later changed by the operator to attempted domestic homicide at the direction of the police officers responding to the call.

         New Orleans EMS paramedic, Dona Reilly, testified that on January 10, 2015, in response to a 911 dispatch, she proceeded to the bus stop located at the intersection of North Broad and St. Bernard Avenues. Upon arrival, Ms. Reilly located the victim and observed her to have facial trauma, a hematoma on her left forehead, bruising on her right cheek, and bruising on her upper lip. B.A. advised Ms. Reilly that, on the previous evening, she had been punched and hit by her boyfriend, and that he had "attempted to put a plastic bag down her throat - - into her mouth and down her throat." It was unknown if B.A. "had lost consciousness at the time of the incident." She did not appear to be intoxicated. As a precautionary measure, the victim was placed in a C-collar and then transported by ambulance to the Emergency Room at University Hospital for treatment.

         On cross examination, Ms. Reilly testified that she did not observe any handprints, scratches or marks on the victim's face or neck, nor did she observe any injury to the back of the victim's head. Additionally, B.A. reported that she did not have any pain to her head, neck or back. B.A. did not indicate to Ms. Reilly that she had experienced any difficulty swallowing.

         NOPD Officer Michael Sartain testified that he and his partner, Terrence Hilliard, responded to the 911 dispatch of a signal 35-D, which related to a domestic abuse battery. He relocated to University Hospital and met with the victim in the Emergency Room. At that time, B.A. was wearing a neck brace. They observed her demeanor to be calm, but fearful. B.A. reported that her boyfriend, Frank Diaz, had assaulted her the previous evening. Based on her account of the assault, the officers changed the original dispatch signal from domestic abuse battery to a signal 27/30-D, which related to an attempted murder, domestic. The officers also called out the crime lab to photograph the victim's injuries.

         Officer Sartain testified that after having received a detailed description of Diaz from the victim, they relocated to Diaz's workplace, a tire store on Chef Menteur Highway, and were told by a supervisor that Diaz had come to work that morning, but had left.[5] The supervisor allowed the officers to view a security video, which showed the defendant arriving at work. Thereafter, the officers commenced searching the surrounding area for Diaz. Upon locating him, the officers elected to stop Diaz, at which time Diaz identified himself. After detaining and advising him of his Miranda rights, Diaz stated that he and B.A. had gotten into a "verbal altercation" the previous night at his home and that he had slapped her once. After he was questioned, the officers transported Diaz to jail for booking. Officer Sartain testified that at the time of his arrest, Diaz was in possession of a black plastic bag similar to the bag described by B.A. as being used by Diaz when he attempted to choke or suffocate her.

         The officers' interactions with Diaz were recorded on their respective body cameras. Over defense objection, the video footage from Officer Sartain's camera was introduced into evidence by State and shown to the jury. The officers' body cameras recorded their interview with B.A. as well. After viewing a portion of the videotape, Officer Sartain confirmed that it accurately depicted B.A.'s physical appearance at the hospital. He also identified the photographs of the victim taken at the hospital by crime lab personnel.

         On cross-examination, Officer Sartain confirmed that Diaz did not attempt to flee when the officers approached him and that he was compliant with their directions. Finally, Officer Sartain testified that, aside from the initial interview of the victim at the hospital and their apprehension of Diaz, he and his partner had no further involvement in the case.

         Dr. Heather Murphy-Lavoie, an expert in emergency medicine, testified that she was the supervising treating physician who treated B.A. when she arrived in the Emergency Room at University Hospital at 7:35 a.m. on January 19, 2015. B.A. presented with observable facial swelling, vomiting, bruising on the mouth, left wrist and right knee, and a decreased range of motion of her neck. B.A. reported nausea, muscle pain, neck stiffness and tenderness, and pain in her mouth, left wrist, and right flank, light headedness and headaches. B.A. provided a detailed history of being assaulted the previous night. As she did so, B.A. appeared nervous and anxious.

         Dr. Murphy-Lavoie testified that B.A. had sustained a blunt force trauma to the head that was severe enough for her to have lost consciousness and, consequently, a CAT scan of her head was ordered. X-rays to B.A.'s elbow showed a small fracture, but the doctors could not rule out the possibility that this finding was consistent with arthritis or an old injury and not as a result of the assault. Due to B.A.'s reported history of being choked, coupled with neck tenderness upon palpation on exam, a vascular CAT scan of her neck area was ordered. Against medical advice, B.A. elected to leave the hospital prior to receiving the results of the scan; she got on a bus and left New Orleans. The result of the vascular CAT scan was negative, indicating there was no observable internal damage.

         Dr. Murphy-Lavoie testified that B.A. had reported to her that she had been drinking at the time of the assault. While the medical records reflected no clinical intoxication, the records did contain a notation that there was an odor of alcohol on B.A.'s breath. On cross examination, Dr. Murphy-Lavoie clarified that B.A. did not appear to be "clinically intoxicated" at the time of her physical exam, but conceded that no blood alcohol tests were ever conducted. On cross-examination, Dr. Murphy-Lavoie testified that there were no observable injuries to the victim's neck, nor did B.A. report any problems with her breathing or ability to swallow. Dr. Murphy-Lavoie explained, however, that external injuries are commonly not observed in cases of strangulation, which was the basis for ordering a vascular CAT scan for the victim.

         B.A. was the last witness for the State. She testified that she was fifty-two years old and originally from New York. In 2008, she was living and working in Miami, Florida where she began a romantic relationship with Diaz, who was a neighbor. B.A. stated that while initially everything in the relationship was fine, things deteriorated when Diaz began drinking heavily and would become belligerent and berate her. B.A. described Diaz as a jealous man. If he saw her speaking with another man, Diaz would accuse her of sleeping with the man. According to B.A., the situation escalated over July 3 and 4, 2013, when Diaz got intoxicated, accused her of sexual infidelity, and then began hitting her. B.A. testified that she called 911, and when she did so, Diaz left the residence and did not return. In fear, B.A. went to a women's shelter and eventually obtained an order of protection. In the process of doing so, she received a phone message from Diaz stating that if he were to catch her, he would kill her.

         Following the incident in Florida, B.A. testified that she moved to Puerto Rico for eight months and then relocated to New York, where she lived on the streets. While in New York, B.A. reconnected with Diaz through his mother with whom she had kept in touch. B.A. relocated to Texas to be with Diaz, where he was then living. Diaz then moved to New Orleans to look for work and, in late December 2014, he asked B.A. to come to New Orleans and spend New Year's with him. B.A. stated that Diaz offered to pay for her bus ticket; she agreed and arrived in New Orleans on New Year's Eve.[6]

         According to B.A., when she arrived in New Orleans, she stayed with Diaz in his rented trailer located on Chef Menteur Highway. At first Diaz was "nice, " but that changed when he began drinking and possibly using drugs. B.A. testified that on January 8, 2015, it was her birthday and she was celebrating by drinking. She claimed that Diaz became angry and demanded anal sex; she refused. Later, B.A. spoke with her son and made the decision to leave New Orleans.

         The following day, January 9, 2015, B.A. testified that she secretly packed up her belongings while Diaz was at work because she did not want Diaz to suspect that she was leaving for fear that he would get more angry. B.A. stated that Diaz arrived home that evening at approximately 8:00 p.m. and that "[h]e didn't look right. His eyes were weird." She claimed Diaz was angry and that he began to beat her up because she had consumed his beer. He demanded they have anal sex and when she refused, he continued to hit her with an open hand and pushed her to the floor where he positioned himself on top of her. Diaz began choking her causing her to lose consciousness.

         B.A. testified that when she regained consciousness, Diaz threw her on the bed and attempted to shove a plastic bag down her throat in an effort to cover her screams. He continued to hit her and tried to grab her by the neck, choking her, while she tried to kick him off of her. B.A. believes she momentarily lost consciousness a second time. She stated that Diaz kept threatening to kill her and told her that if she ever told anyone about what he had done, he would beat her up so badly that no one would be able to recognize her because "he wasn't going to go to jail for nobody, " not even her.

         B.A. explained that after assaulting her, Diaz told her to go to sleep. She claims she pretended to do so, and after Diaz had fallen asleep, she left the trailer. B.A. stated that she boarded a local bus with the intention of going to the Greyhound Station to leave the city. She testified that she called 911 from the bus because she wanted to report the assault and was told by the 911 operator to get off of the bus. B.A. claimed she initially advised the 911 operator that she did not need an ambulance because she did not realize she was hurt. She then exited the bus, met with the paramedics, and was transported to University Hospital where she spoke to the treating physician and met with the responding officers.

         During cross-examination, B.A. admitted that on her birthday, January 8, 2015, she drank an entire bottle of vodka and the beer that was in Diaz's refrigerator. While B.A. conceded that she possibly had consumed a significant amount of alcohol that day, she did not believe that she was intoxicated because she had eaten. B.A. denied that she had an alcohol problem, although she conceded that she was an everyday drinker while going through menopause. She denied having ever blacked out from drinking, but admitted she had previously suffered from dehydration. B.A. further testified that sometime between her arrival in New Orleans on December 31, 2014 and January 9, 2015, she had been drinking and had fallen while at a bus stop and was treated by paramedics at the scene.

         B.A. also testified on cross-examination that, contrary to the EMS report noting the victim to be accompanied by several suitcases, she only had a single bag of clothes and a Nutribullet blender with her when she left Diaz's trailer on the morning of January 9, 2015. She claimed that she left much of her clothing behind, as well as her medicines, a towel, and all the food at the trailer.

         During further cross-examination, B.A. testified that the bump (hematoma) on the left side of her forehead that was noted in the medical records was not as a consequence of the assault by Diaz on January 9, 2015. According to B.A., the bump was the result of an accident that occurred when she was living in Florida where she had fallen onto a tile floor while getting out of the shower. She denied that she had been drinking when this fall occurred.

         On redirect, B.A. viewed a police photograph of the black plastic grocery bag which Diaz had in his possession when he was arrested. B.A. testified that the bag looked like the one Diaz used during the assault. B.A. also described her employment in Texas, stating that she was working at a Macy's and at a Taekwondo school. During their time together in Texas, B.A. claimed that she and Diaz lost an apartment because they could not afford to pay the rent, which resulted in her having to stay in a women's shelter while continuing to work. Despite stating that she was living in a shelter in Texas, B.A. testified that she had money in a bank account when she arrived in New Orleans. She claimed that Diaz forced her to close the account and that he spent her money.

         The defense called Diaz's brother, Angel Diaz, as its sole witness. Counsel attempted to elicit testimony regarding B.A.'s drinking problems, including a history of black-outs and falls. The trial court, however, sustained the State's objection to this line of questioning and excused the witness; defense counsel proffered the testimony.

         Diaz elected not to testify. The defendant affirmed this decision after the trial court specifically advised him of his right to do so.



         In accordance with Article 920 of the Louisiana Code of Criminal Procedure, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent; i.e., the imposition of an illegally excessive sentence as to the second degree battery conviction.

         La. R.S. 14:34.1(C) provides that whoever commits the crime of second degree battery shall be imprisoned, inter alia, for not more than eight years, with or without hard labor. At least eighteen months of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence if the offender knew or should have known that the victim is an active member of the United States Armed Forces or is a disabled veteran, and the offender committed the second degree battery because of that status. The statute does not otherwise allow for denial of these benefits.

         Here, absolutely no evidence was adduced that B.A. was a member of the United States Armed Forces or a disabled veteran. Nevertheless, when the trial court imposed the maximum eight-year sentence upon the defendant, it specified that the sentence should be served without the benefit of probation, parole, or suspension of sentence, rendering it illegally excessive. Accordingly, we amend the defendant's sentence for second decree battery to delete the provision denying eligibility for parole, probation, or suspension of sentence. The trial court is instructed to make an entry in the court minutes reflecting this change.


         In his first assignment of error, the defendant-appellant asserts that the evidence was insufficient to convict him of violating either La. R.S. 14:34.1, second degree battery, or La. R.S. 14:27(31), attempted manslaughter. We disagree.

         When assessing the sufficiency of evidence to support a conviction, the appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.[7] In doing so, the reviewing court must consider the record as a whole and not just the evidence most favorable to the prosecution; if rational triers of fact could not disagree as to the interpretation of the evidence, the rational decision to convict should be upheld.[8]


         In a second-degree battery conviction, the State must prove the offender committed a battery without the consent of the victim and that he intentionally inflicted serious bodily injury.[9] The offense requires proof of a specific intent to inflict "serious bodily harm."[10] "Serious bodily injury" is defined by La. R.S. 14:34.1(B)(3) as "bodily injury which involves unconsciousness, extreme physical pain or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death." The term "extreme physical pain" as used in the statute refers to "a condition which most people of common intelligence can understand; it is considered subjective in nature and susceptible to interpretation."[11] Specific intent is defined as "that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act."[12] In short, the elements of second-degree battery are: (1) the intentional use of force or violence upon the person of another, (2) without the consent of the victim, (3) when the offender has the specific intent to inflict serious bodily injury.[13]

         The testimony of a single witness, if believed by the trier of fact, may be sufficient to support a conviction of second degree battery.[14] Moreover, a fact finder's decision regarding the credibility of a witness shall not be disturbed unless it is clearly contrary to the evidence.[15]

         In State v. Jones, [16] the defendant was tried on charges of aggravated second degree battery and forcible rape. Despite the victim's testimony that the defendant was armed with a knife and sliced her fingers with it when she tried to grab it, the jury returned the responsive verdicts of guilty of second degree battery and simple rape. The victim testified that the defendant had beaten and choked her, and the evidence established that she had a black eye and considerable swelling on one side of her face following the assault. In considering whether the evidence presented was sufficient to establish that the defendant had committed a second degree battery, this Court extensively reviewed previous case law:

In State v. Stowe, 93-2020 (La. 4/12/94), 635 So.2d 168, the defendant was convicted of the second degree battery of a police officer after the officer responded to a call of an injured person (the intoxicated defendant) walking along [La. Hwy. 125]. The officer learned that the defendant had earlier fought with his wife and punched through a window, resulting in a deep cut on his arm that was dripping blood. When the defendant became hostile and threatening, the officer advised him that he was under arrest for disturbing the peace. The defendant suddenly hit the officer in the head, knocking him backward into a ditch. The officer tried to remove ...

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