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State v. Lutz

Court of Appeals of Louisiana, First Circuit

November 1, 2017



          Richard J. Ward, Jr. District Attorney and Antonio M. "Tony" Clayton Terri R. Lacy Assistant District Attorneys Port Allen, Louisiana Chad A. Aguillard Assistant District Attorney New Roads, Louisiana Counsel for Appellee State of Louisiana

          Tiffany Myles Crosby Baton Rouge, Louisiana Samuel H. Winston New Orleans, Louisiana James Edgar Boren Baton Rouge, Louisiana Counsel for Defendant-Appellant Jason M. Lutz


          CHUTZ, J.

         The defendant, Jason M. Lutz, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, and pled not guilty. After a bench trial, he was found guilty as charged.[1] The trial court denied the defendant's motion for postverdict judgment of acquittal. The defendant was sentenced to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant now appeals, raising eight assignments of error challenging the sufficiency of the evidence, the admission of expert testimony, and the constitutionality of the sentence. For the following reasons, we affirm the conviction and sentence.


         On January 28, 2014, at 8:19 p.m., the 911 center of the Pointe Coupee Sheriffs Office (PCSO), received a call from a female reporting an unresponsive infant. PCSO Detective Joshua Adams, who was patrolling frozen roads at the time, responded to the scene at Patin Dyke Road, the residence of Jason Lutz (the defendant), Ashley Cogar (the codefendant), Joseph Lutz (the unresponsive infant and victim herein), and three other young children. Detective Adams noted that the residence was very dirty. He further noted that drug paraphernalia was in plain sight, including many small corner baggies with residue, and little straws on the counters, on the floor in the room with the baby, in the bathroom, and "just everywhere."

         Though they were not considered suspects at the time, Detective Adams advised the defendant and Cogar of their rights before asking them to write a statement on what took place that day. In the defendant's written statement, he noted that he and the codefendant walked into the victim's room at about 8:10 p.m., the codefendant moved the victim's blanket, and they noticed that the victim was not breathing. In her written statement, the codefendant stated that she checked on the victim around 4:30 to 5:00 p.m., before she and the codefendant went to the store, at which point the victim appeared to be fine. When they returned around an hour later, she fed her daughters and then went to get the victim to feed him. When she moved the victim's blanket, he did not move. She picked him up and turned him over and noticed that he was not breathing, and his blanket was stuck to the right side of his face. She removed the blanket and screamed for the defendant who ran for help. Neither the defendant nor codefendant made any statements to indicate that they tried to feed the victim at any point between a 6:00 a.m. feeding and the point that he was discovered that evening no longer breathing.

         PCSO Detective Robert Roy was assigned to the case and dispatched to the scene. Detective Roy received consent to search the residence from the codefendant and a consent form was executed. He worked his way to the back bedroom where the victim was located and took photographs of the victim and the surrounding scene, including a soiled diaper on the floor near cut pieces of straws and other drug paraphernalia such as plastic baggies, pills, and a metal pipe with suspected marijuana residue.

         After the victim and the crime scene were observed, the defendant and codefendant were transported to the Sheriffs Office and separately interviewed. The defendant and codefendant were each advised of their Miranda[2] rights, waiver of rights forms were executed, and each provided a recorded interview. The defendant stated that to the best of his knowledge, the last time he knew with one hundred percent certainty that the victim was alive was when he saw the codefendant feeding the victim that morning. The codefendant claimed that the victim was a "slow eater, " noting that she fed the victim four ounces of milk around 6:00 a.m. on the day in question before laying him down in the middle of his crib at about 7:15 a.m. and going back to sleep. She indicated that the defendant would usually check on the victim if he woke up while she was sleeping, and that they would routinely take turns checking on the victim. The codefendant woke up around 10:30 a.m., and the victim was still asleep at the time. The codefendant checked on the victim at about 1:30 p.m., when she went into the bedroom to change clothes. At that point, the victim moved around but remained asleep. The codefendant relaxed for awhile before deciding to go to the store with the defendant to get food around 4:30 or 5:00 p.m. She and the defendant asked her roommate, Natasha Garcia (referred to as Tasha), to keep an eye on the children while they went to the store. She further noted that she checked on the victim just before leaving, and he twitched when she made a noise but was "fine." The codefendant later reiterated that she saw the victim's blanket move at that time.

         When they returned, the codefendant asked Tasha if the victim woke up while they were gone, to which she responded negatively. The codefendant proceeded to cook dinner for her daughters before checking on the victim that night. The codefendant noted that she had laid the victim down on his stomach, but that he had rolled to the side of the bed, further noting that he would often roll to the side after being laid in the middle of the bed. As the codefendant approached the crib to check on the victim, the defendant started walking toward the bathroom, but turned around when the codefendant started screaming. According to the defendant, he began performing CPR and instructed the codefendant to call 911.


         In assignments of error numbers one, two, and seven, the defendant challenges the sufficiency of the evidence. In assignment of error number one, he specifically argues that the State did not put forth sufficient proof beyond a reasonable doubt that the defendant and codefendant neglected to feed the victim. In assignment of error number two, he argues that the State did not prove beyond a reasonable doubt that the victim unjustifiably experienced pain and suffering. The defendant argues that there was insufficient evidence that the victim's malnutrition was caused by the parents' neglect to feed him and that the trial court reacted emotionally to the photographs of the victim. The defendant further argues that Dr. Oliver Thelin's testimony on the possibility of adrenal hypoplasia was reasonable and difficult to exclude as a hypothesis of innocence. Finally, in assignment of error number seven and his reply brief, the defendant argues that due process, the principal of lenity, and the specific facts and allegations in this case require a conviction of negligent homicide as opposed to second degree murder. In that regard, the defendant cites State v. Small, 2011-2796 (La. 10/16/12), 100 So.3d 797, 806, in noting that the felony murder rule generally has been interpreted to require that a direct act of a defendant or his accomplice cause the death of the victim.

         In his reply brief, the defendant contends that the State glossed over the Supreme Court's holding in Small. The defendant argues that there were no direct acts of killing by the defendant and codefendant in this case. At oral argument on appeal, the defendant argued that the evidence of a direct act by him in particular is lacking due to codefendant Cogar's supposed role as the primary caregiver responsible for feeding the victim. Contending that the victim should have been hospitalized based on his weight at the time, the defendant also claims that this case involves the "intervening gross negligence" of Dr. Carl McLemore, Jr., a physician who treated the victim.

         A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged and the defendant's identity as the perpetrator of that crime beyond a reasonable doubt. State v. Jones, 596 So.2d 1360, 1369 (La.App. 1st Cir.), writ denied, 598 So.2d 373 (La. 1992). See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660. The Jackson standard of review, incorporated in Article 821(B), is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that the fact finder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. See State v. Patorno, 2001-2585 (La.App. 1st Cir. 6/21/02), 822 So.2d 141, 144. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987).

         Louisiana Revised Statutes 14:30.1(A)(2) defines second degree murder, in pertinent part, as the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of cruelty to juveniles. This section of La. R.S. 14:30.1 contains the circumstances under which a defendant can be found guilty under the felony murder rule, which dispenses with the necessity of proving mens rea accompanying a homicide-the underlying felony supplies the culpable mental state. Small, 100 So.3d at 805. The underlying felony that the defendant was found to have committed, cruelty to juveniles, is defined in La. R.S. 14:93(A)(1) as the "intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child." The term "intentional" as used in La. R.S. 14:93 refers to general criminal intent to mistreat or neglect and does not require an intent to cause the child unjustifiable pain and suffering. State v. Duncan, 2002-0509 (La.App. 1st Cir. 9/27/02), 835 So.2d 623, 629, writ denied, 2003-0600 (La. 3/12/04), 869 So.2d 812; State v. Morrison, 582 So.2d 295, 302 (La.App. 1st Cir. 1991). "Mistreatment" as used in this statute is equated with "abuse." State v. Comeaux, 319 So.2d 897, 899 (La. 1975).

         The Reporter's Comment to La. R.S. 14:93 indicates that the laws governing the jurisdiction of the juvenile court should be consulted to determine what constitutes a neglected child. See also State v. Booker, 2002-1269 (La.App. 1st Cir. 2/14/03), 839 So.2d 455, 469, writ denied. 2003-1145 (La. 10/31/03), 857 So.2d 476 (the trial court properly considered the statutory definitions of "neglect" and "caretaker" provided in La. Ch. Code art. 603 in determining the scope of La. R.S. 14:93). Under La. Ch. Code art. 603(18), "neglect" is the "refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child's physical, mental, or emotional health and safety is substantially threatened or impaired." (Emphasis added.) La. Ch. Code art. 603(4) defines "caretaker" as "any person legally obligated to provide or secure adequate care for a child, including a parent, tutor, guardian, legal custodian, foster home parent ... or other person providing a residence for the child." (Emphasis added.)

         Pursuant to La. R.S. 14:12, criminal negligence, the requisite mental state for a crime of cruelty to juveniles, is as follows:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

         Thus, in order for the State to prove the defendant was guilty of the second degree murder where the killing occurred during the perpetration of cruelty to a juvenile, it had to establish either that: (1) the defendant intentionally mistreated or neglected the victim, resulting in the infliction of unjustifiable pain or suffering, and, ultimately, death; or (2) that the defendant was criminally negligent in his mistreatment or neglect of the victim, causing the infliction of unjustifiable pain or suffering, and finally, his death. Duncan, 835 So.2d at 629. The same mental state is required for negligent homicide, which is "[t]he killing of a human being by criminal negligence." La. R.S. 14:32(A)(1). Accordingly, negligent homicide is "the killing of a human being by criminal negligence." La. R.S. 14:32.

         Dr. Allyson Boudreaux, an obstetrician and gynecologist qualified to deliver babies and examine prenatal babies, delivered the victim herein, on October 14, 2013, at Woman's Hospital in Baton Rouge.[3] Dr. Boudreaux noted that her records show that the codefendant was twenty-four weeks pregnant at her first visit for the pregnancy with the victim. Confirming that she delivers about 200 babies a year, Dr. Boudreaux noted that most women come in for prenatal care at seven to eight weeks pregnant, with twelve weeks being the extreme. Dr. Boudreaux recalled that the codefendant was an atypical patient, noting that she missed several appointments, which resulted in significant gaps in between her handful of ...

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