FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 523-228,
SECTION "E" Honorable Keva M. Landrum-Johnson,
A. Cannizzaro, Jr. DISTRICT ATTORNEY PARISH OF ORLEANS J.
Taylor Gray COUNSEL FOR APPELLEE, STATE OF LOUISIANA
C. Tizzard, COUNSEL FOR APPELLANT, FRANK DIAZ.
composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro
Tempore, Judge Terrel J. Broussard, Pro Tempore
F. Edwards, Judge Pro Tempore.
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.
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. 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). The trial court denied Diaz's motions
for new trial on February 29, 2016. 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which was ultimately withdrawn, the trial court deferred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.
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. 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.
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.
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.
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.
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. 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.
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
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.
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
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.
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.
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.
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.
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.
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
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
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.
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
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.
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.
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
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.
elected not to testify. The defendant affirmed this decision
after the trial court specifically advised him of his right
to do so.
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
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
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.
OF ERROR NUMBER 1
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.
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. 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
COUNT 1 - SECOND DEGREE BATTERY
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. The offense requires proof of a specific
intent to inflict "serious bodily
harm." "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." 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." 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.
testimony of a single witness, if believed by the trier of
fact, may be sufficient to support a conviction of second
degree battery. Moreover, a fact finder's decision
regarding the credibility of a witness shall not be disturbed
unless it is clearly contrary to the evidence.
State v. Jones,  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 ...