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State v. Vail

Court of Appeals of Louisiana, Third Circuit

December 28, 2017

STATE OF LOUISIANA
v.
WILLIAM FELIX VAIL

         APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 1699413 HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

          John F. DeRosier 14th JDC District Attorney Carla S. Sigler Karen C. McLellan Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana

          Chad M. Ikerd Louisiana Appellate Project COUNSEL FOR DEFENDANT-APPELLANT: William Felix Vail

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.

          ELIZABETH A. PICKETT JUDGE.

         FACTS

         On October 30, 1962, Mary Horton Vail's body was recovered from the Calcasieu River. Her husband, William Felix Horton, had reported to the local authorities in Lake Charles that he and his wife had been in a boat on the river at night, checking trot lines, when his wife accidently fell out of the boat and drowned. The investigating officers were suspicious of Mr. Vail's account of how he claimed the incident occurred based on what they viewed as inconsistencies between what he reported to them and physical findings on the boat. Mr. Vail was arrested and charged with his wife's murder. The coroner, however, concluded the manner of death was accidental drowning. When this matter was presented to a grand jury the matter was ultimately pretermitted. Having failed to secure an indictment, the state dropped the charges pending against the defendant.

         Throughout the ensuing years the matter continued to be investigated, off and on, both by law enforcement and private investigators. Additional evidence was gathered which the state believed to be both relevant and significant.

         On June 27, 2013, a second grand jury indicted the defendant for the 1962 second degree murder of his wife, Mary Horton Vail, committed in violation of La.R.S. 14:30.1.

         Trial commenced on August 8, 2016. On August 12, 2016, the jury returned a verdict of guilty of Second Degree Murder against the defendant. On September 21, 2016, the defendant filed a "Motion and Memorandum Regarding Sentencing." The defendant was subsequently sentenced, on September 26, 2016, to life in prison without the benefit of parole, probation, or suspension of sentence. On September 29, 2016, the defendant filed a "Motion to Reconsider Sentence" which was denied without a hearing.

         The defendant appeals both his conviction and sentence.

         ASSIGNMENTS OF ERROR

1. The State failed to sufficiently prove Felix Vail was guilty of murdering his wife.
2. A Presumption Wrapped in a Probability: the trial court erred by allowing the State to offer unproven "other bad acts" evidence by use of "the doctrine of chances."
3. The trial court erred by failing to properly instruct the jury as to the burden of proof required before the other crimes evidence could be considered.
4. Conviction by Deposition: The trial court erred in declaring key State witnesses unavailable for trial when they were merely inconvenienced by having to appear at trial, and allowing their prior depositions to be admitted by video at trial.
5. Conviction by Misrepresentation: The trial court erred in denying the defense's motion to suppress the evidence of Gina Frenzel on grounds the motion was untimely-not on the merits- when the defense established "good cause" for the late filing.
6. The 54-year delay in prosecuting this case was prejudicial to Felix Vail. The delay violated his rights to a fair trial.
7. The trial court's sentence of life, because the previous sentence was unconstitutional, was an ex post facto increase in punishment and a violation of the Separation of Powers. Therefore, the only constitutional sentence was to the maximum for the next lesser included sentence of manslaughter.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find one error patent concerning the information given to the defendant by the court regarding the time limitation for filing an application for post-conviction relief.

         The court improperly advised the defendant that he has "two years from today's date and the sentence becoming final to file for post-conviction relief." Louisiana Code of Criminal Procedure Article 930.8 provides that the prescriptive period for filing post-conviction relief is two years, and it begins to run when the defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922.

         The trial court is instructed to correctly inform the defendant of the provisions of Article 930.8 by sending appropriate written notice to the defendant within 10 days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

         In addition, neither the court minutes nor the sentencing transcript reflect that the court specified the life sentence imposed is to be served at hard labor. However, the exchange at sentencing between the court and defense counsel clearly reflects an understanding by all parties that the sentence is a hard labor sentence. Accordingly, the trial court is instructed to correct the court minutes to reflect that the defendant's sentenced is to be served at hard labor.

         ASSIGNMENT OF ERROR NUMBER ONE

         The defendant argues that the evidence submitted at trial was insufficient to prove that he murdered his wife, Mary Horton Vail. He argues the evidence in this case is entirely circumstantial, the state failed to exclude every reasonable hypothesis of innocence, and that Mary Horton Vail's death was accidental.

         In State v. Williams, 13-497, pp. 3-5 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1239-40, writ denied, 13-2774 (La. 5/16/14), 139 So.3d 1024, this court discussed the standard of review for sufficiency of evidence, as follows:

In State v. Bryant, 12-233 (La.10/16/12), 101 So.3d 429, the Louisiana supreme court addressed the sufficiency of the evidence claims, reiterating that the appellate review of such claims is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville, 448 So.2d 676 (La.1984). In applying the Jackson v. Virginia standard, the appellate court must determine that, when viewed in the light most favorable to the prosecution, the evidence is "sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." Bryant, 101 So.3d at 432. See also La.Code Crim.P. art. 821.

         In State v. Spears, 05-964, p. 3 (La.4/4/06), 929 So.2d 1219, 1222-23, the supreme court stated that:

constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.
"Evidence may be either direct or circumstantial." State v. Jacobs, 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied, 11-1753 (La.2/10/12), 80 So.3d 468, cert. denied, ___ U.S. ___, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams, 33, 881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton, 436 So.2d 471 (La.1983)), writ denied, 00-99 (La.10/5/01), 798 So.2d 963. Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438.
In State v. Chism, 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating:
Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eyewitnesses that no dog passed by. The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion.
Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made. In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference. From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence.

         In the instant case, the defendant was convicted of second degree murder. The definition of a second degree murder is the killing of a human being when the perpetrator specifically intends to kill the victim or to inflict great bodily harm, and the victim dies as a result of the injuries inflicted La.R.S. 14:30.1.

         The testimony and evidence presented by the state to the jury was as follows:

         Dr. Terry Welke, the Calcasieu Parish Coroner, was the first to take the stand. The doctor testified that he has been a forensic pathologist since 1986 and has qualified as an expert in forensic pathology approximately two hundred seventy-five times. He has performed approximately seven thousand autopsies during his career. Dr. Welke testified that he had reviewed the 1962 autopsy report which was prepared by Dr. Avery Cook, who was deceased at the time of trial. Dr. Cook, although a pathologist, was not a forensic pathologist. Dr. Welke noted that while the autopsy report described the external and internal condition of the body, the report did not list the manner or cause of death. The death certificate, however, listed the cause of death as drowning and the manner of death as accidental. The death certificate was filled out and signed by the coroner at the time, Dr. Snatic, who was neither a pathologist nor a forensic pathologist. Dr. Welke also viewed two photographs taken of the victim immediately after she was pulled out of the water. Dr. Welke testified that from the information he received after viewing the photographs, together with his vast experience with handling drowning cases, he did not believe that Mary Vail died from drowning. It was his opinion that she was dead before she went into the water.

         Dr. Welke noted that the body came out of the water rigid and face up, with her arms crossed over her abdomen. He explained that after death, a stiffening of the muscles develops, generally known as rigor mortis. Over a period of time, however, the muscles become flaccid. The duration of the stiffness depends on various factors, including air or water temperature. The doctor explained that when a person drowns and starts to decompose, he or she floats up to the surface face down, arms and legs down, shoulders and back up, in a "dead man" position He stated that "[t]he cooling effect of the water slows down the decomposition which helps maintain her rigidity because it takes longer for the rigidity to disappear; and that was part of my consideration when I made my determination three years ago." The doctor stated that a drowned person may come to the surface belly first but this would only happen in advanced decomposition "[w]here they look like they could fly around the room backwards because they look like a balloon that's over-distended, you did not see people coming out of the water stiff and especially in what I call a coffin position." The doctor noted that the body in the pictures he saw was not in an advanced state of decomposition. The doctor illustrated the dead man's position with photographs of several drowned persons in the water.

         Dr. Welke noted that the autopsy report indicated there was some lividity or discoloration on the victim's face, chest and stomach. He explained that after death, the blood will pool towards the down side of the body. Dr. Welke explained that if the body is rolled into a different position, the blood will migrate to the down side. The migration of blood will occur until the blood finally gels. The fact that the lividity was on the front, or anterior part of the body, was not inconsistent with the doctor's conclusion that the victim was dead when she entered the water. To further support his theory that Mary Vail was dead when she went into the water, Dr. Welke noted that there were dark stains or streaks on her white sweatshirt, across her arms, hands, and chest area. The doctor thought her sweatshirt came out of the water too clean and the stains were not mud but some kind of petroleum product which would not have dissolved in the water. He speculated that after Mary Vail was killed, a tarp or canvas of some kind was placed over her or that what she was laid on had a greasy or oily compound on it. He conducted an experiment where he had his wife dress in a white, long sleeve shirt, lay down in the position Mary Vail was in when her body was pulled out of the water, and he pressed a painted piece of cardboard over her body. The doctor stated he was impressed by how the paint transfer onto his wife's body was duplicative of the stains seen on Mrs. Vail's shirt, arms, and hands. Pictures of this experiment were compared with the pictures of Mary Vail's body. The pictures were published to the jury.

         While Dr. Welke could not state what caused Mary Vail's death, he stated he was one hundred percent certain the manner of death was homicide. The doctor suggested that maybe because there was a scarf wrapped around her neck and over her mouth when Mary Vail's body was pulled from the water she could have been strangled or suffocated. Moreover, the autopsy report indicated there was a fairly significant bruise on the side of Mary Vail's head which might indicate that she received some kind of head trauma, which may have precipitated her death.

         A video deposition of Isaac Abshire was played for the jury. Mr. Abshire was deceased at the time of trial. The state filed a motion to perpetuate the testimony of Mr. Abshire for trial purposes.[1] The motion was heard on June 18, 2013. The trial court granted the state's motion to perpetuate the testimony and to allow state's Exhibits 1 and 2, photographs of Mary Vail after she was pulled out of the water, and Exhibit 3, a summary of the police investigation, dated October 28, 1962, to be admitted for trial purposes.[2] A transcript of the deposition was also submitted to the jury.

         At the time of the deposition, Mr. Abshire was ninety years old. Mr. Abshire stated that before marrying Mary Vail, the defendant had lived with him for some time. Mr. Abshire testified that at the time, he was aware of problems between the defendant and the victim. The defendant and Mary Vail had a baby son, but the defendant was not happy with having a child. The day before Mary Vail died, she was mad at the defendant. Mr. Abshire said it had something to do with another woman. On Sunday, October 28, 1962, Mr. Abshire heard that Mary Vail had drowned. Along with others, Mr. Abshire took a boat and helped search for Mary Vail's body along the river at the north end of Ryan Street. The next day, the body was located in the water. Mr. Abshire stated that the body was not slumped over in the water; it was "kinda laying on her side or kinda on her back like." He said she was face up and her arms were folded across her abdomen. He stated that the body was stiff when it was raised into the boat on a stretcher. He said there was a scarf wrapped tightly around her neck and across her mouth. Mr. Abshire testified that he was eventually given the two photographs of Mary Vail after she was pulled out of the water, a summary of a police investigation report, the coroner's report, and other documents. The police investigation summary report, compiled by detectives with the Calcasieu Parish Sheriff's Office, established the concerns and direction of the police investigation into Mary Vail's death at the time, as follows:

SUMMARY OF INVESTIGATION OF DROWNING OF MARY ELIZABETH VAIL, WHITE FEMALE, 22 YEARS, 922 CLEVELAND ST., LAKE CHARLES, LA.
There is on file a report of the initial investigation entitled "Drowning", dated October 28, 1962.
On Monday, October 29, 1962, I contacted the Husband of the deceased, William Felix Vail, at the scene of the drowning and requested that he come in to the Sheriff's Office and give a statement of the circumstances surrounding his Wife's death. At 11:50 AM Monday October, 29 William F. Vail gave a written statement and signed it, in the presence of William Perry and Leroy Authement. This statement was taken in shorthand originally and immediately afterward transferred into a typewritten statement by Mrs. Dee Houston.
After Vail signed the statement he accompanied Deputies Perry, Manuel and Authement to his boat stall at Shell Beach Pier. The above Deputies viewed the boat and observed contents as follows; one six gallon outboard motor gas tank, two cushion type life preservers, a pair of brown leather gloves, a poncho type raincoat, boat paddle, and a metal fishing tackle box. The tackle box contained, among other fishing gear, one coiled trot line. This tackle box and boat paddle was [sic] confiscated as evidence. While the above examining the boat the Vail Subject demonstrated the position that his gas tank was supposedly in when his motor stalled. It was noted that in the positon demonstrated it was possible to pump gas from the tank with the manual primer.
Upon further interview after examining the boat it was learned that Mr. Vail had his Wife insured to $50, 000.00 with the Wasey Company. At approximately 1:30 pm this date Mr. Breaux with the John L. Wasey, Inc., Insurance Company, 1032 Ryan St., Lake Charles, La., contacted and he advised that Mr. Vail, on June 1, 1962, was issued a $50, 000.00 accidental life insurance policy on his Wife, Mary Elizabeth Vail, through Traveler's Insurance Co.
On October 30, 1962 the sheriff's office was notified at approximately 3:30 PM that the body of Mary Elizabeth Vail had been recovered (See supplementary report of "DROWNING OF Mary Vail", dated October 30, 1962). At approximately 4:00 PM Deputies Mazilly, Manuel and Authement boarded the Sheriff's Dept. boat, CP27, on the river road approximately 1/4 mile west of Ryan Street and viewed the body. It was observed that the body was clothed in white tennis shoes, blue jeans, and white sweat shirt, and a dark colored scarf around her neck and chin. Photographs were made of the body at this time by Deputy Murphy. Dr. Snatic also accompanied the above to view the body and ordered the body moved by Hixson Ambulance to Hixon Funeral home where an autopsy was performed by Dr. Avery L. Cook. On this date the clothing of Mrs. Vail was received as evidence by Dep. Authement and on 10-31-62 was turned over to Dep. Ellis.
On October 31, 1962 the following witnesses were interviewed; (1) Jack M. Wier, Personnel Supervisor, PCI, (2) Ike Abshire, Jr., (3) Sylvia Hidalgo, and (4) Betty Payton.
On November 1, 1962 the following interviews were conducted; (1) Jennette McCain, (2) Jean Dailey, (3) Willy Ray Jordan, (4) Norma Kee, (5) Donald Glenn McCullough.
On November 2, 1962 the following interviews were conducted; (1) Henry Chevalier, (2) Mrs. Patricia Odom.
On November 3, 1962 interviews were conducted with (1) Mrs. Joyce C. Thibodeaux, (2) Judith Lynne Boyer, (3) Mr. and Mrs. Joseph A. Borel, (4) Mr. and Mrs. Don Steicken, (5) Amelia Franklin, and (6) Maylan Soileau. (see summaries of all of above interviews attached to this report)
During the invterview [sic] with Norma Kee it was learned that Mary Vail was wearing an off-white leather jacket, sorority sweat shirt, blue jeans and white sneakers when she left her home on Sunday just prior to her death. Norma Kee was babysitting for the Vails when they left home. We also learned from this witness that William F. Vail had an $8, 000.00 life insurance policy on his Wife Through Allstate Insurance Co. (See interview with Mr. Henry Chevallier on November 2, 1962.)
On November 4, 1962 at approximately 3:15 PM William F. Vail was arrested at PCI by Deputies Perry and Authement. The subject was returned to the Sheriff's Office and interrogated in reference to apparent discrepancies in his statement and after failing to give reasonable explanations was booked into the Parish jail at approximately 9:10 PM that date.
On the follwoing [sic] day, November 5, 1962 the subject was again interrogated for approximately during which time he was requested to take a polygraph examination and refused.
The following day, November 6, Mr. Vail's Aunt and Uncle, Mr. and Mrs. Finney were allowed to visit with Mr. Vail during which time he told them that he would take a polygraph examination the following morning. The next Morning November 7, 1962 the Vail subject again refused to take a polygraph examination after which he was released from jail.
During this period of interrogation the Vail Subject was questioned concerning the following points:
1. The fact that it was unlikely that his Wife would have been sitting on the back rest of the boat seat when she was not wearing a life preserver even though she had a great fear of water and could not swim.
2. The probability that had he maneuvered the boat as he had stated his Wife would have fallen differently.
3.The fact that he observed and passed up a lighted tug boat in the vicinity of the drowning without requesting assistance even though according to his own admission he did not panic and remained calm throughout the entire sequence of events and remembered every thing that happened.
4. The fact that he passed other lighted locations where he could have requested assistance but did not.
5. The probability that his boat motor would have continued to run even though his gas tank had turned over as indicated.
6. Why his gas tank was not sitting in the place provided for it in the boat.
7. The fact that his trot line, which he had just taken up from the river, was coiled and in his tackle box.
8. The fact that he had just recently purchased a $50, 000.00 accidental life insurance policy on his Wife in addition to the $8, 000.00 double indemnity policy that he already had on her.
9. The fact that he had made statements to the effect that he did not love his Wife, the [sic] she was stupid and at times he thought she looked vulgar.
10. The fact that on different occasions he had had sexual relationships with other females and at least one male.
11. The fact that a majority of the witnesses interviewed felt that he was capable of killing his wife.
12. The fact that by his own admission this was the first time that he ever taken his wife in the boat on the river at night to run the trot line.
13. The fact that, even though he was behind with most of his major financial obligations, he was able to pay the entire annual premium on the $50, 000.00 life insurance policy on his Wife.
14. The fact that he stated that his Wife was wearing the leather jacket when she fell in the water but that the body did not have a leather jacket on when recovered.
15. The fact that he could not present a reasonable explanation as to why he refused to take a polygraph examination.
This interrogation was conducted by Deputies Perry, Manual, Ellis, and Authement.[3]

         Mr. Abshire did not state why he was given the documents, but he said he had kept the documents. Mr. Abshire further stated that he was convinced the defendant killed Mary Vail. The defendant threatened to sue him if he did not stop telling people he killed her, but shortly thereafter the defendant left the state.

         Sandra Fontenot testified that in 1962 she worked for Ardoin Funeral Home. Mary Vail's funeral was conducted at Ardoin's. Ms. Fontenot identified a letter dated June 17, 1964, which advised the defendant that he still owed Mary Vail's funeral expenses. The letter noted the agreement was that once the insurance company paid Mary Vail's life insurance policy claim, he would settle the bill. Ms. Fontenot testified that the defendant never paid the bill. Eventually, Mary Vail's family paid the bill.

         Wesley Turnage, who lived in Monpelier, Mississippi, testified that he had known the defendant most of their lives. He stated he grew up with the defendant in Mississippi, where the defendant moved back to in 1964. During a time after the defendant moved back to Mississippi, Mr. Turnage and the defendant worked at the same place of employment. On an occasion when the defendant did not have a ride to work, he rode with Mr. Turnage. During the ride to work, Mr. Turnage said he stated he asked the defendant about his son. The defendant responded that Mary Vail had wanted another child to fix their marriage. Mr. Turnage testified that the defendant became angry and said '"I didn't want the youngin' I got, and I didn't want another one, and fixed that damned bitch. She won't never have another kid.'" Mr. Turnage stated he did not have much to do with the defendant after that. He told his parents what the defendant said but told no one else. He stated he had promised himself that if the matter of Mary Vail's death ever came up, he would report the defendant's remarks. Mr. Turnage said he called the District Attorney's Office after he read about the current indictment of the defendant in the newspaper.

         Dee Salador worked for the Calcasieu Parish Sheriff's Office in 1962. She testified that at that time, a person's statement was recorded by a stenographer. She recorded the defendant's statement to the police regarding his wife's death. While the original transcribed statement was lost, she recalled that the defendant claimed that he and Mary Vail were setting out trot lines at night when she fell overboard. He stated that they were alone in the boat. The defendant claimed he tried to save her. Ms. Salador recalled that the defendant did not seem overly emotional about his wife's death. Ms. Salador identified a photograph of the defendant taken about the time of Mary Vail's death. Ms. Salador remembered that Leroy Authement and William Perry were two of the detectives that investigated the case and that they were conscientious and thorough detectives.

         Mary Vail's younger brother, Will Horton, testified that although she could swim in a swimming pool, Mary Vail was terrified of "dark water." Mr. Horton explained that dark water in this case was where the bottom of the river cannot be seen. He stated that the defendant had a boat and that he and the defendant often went skiing in the lake together. Mary Vail never went out in the boat with them. The defendant's and Mary Vail's son, Bill, was only four months old when his mother died. Mr. Horton testified that he made it his duty to ensure Bill knew what a wonderful woman his mother was. Bill Vail died from cancer five to six years before the trial. Mr. Horton stated that he thought it was on a Sunday they got the news of Mary Vail's death. Later, however, he was told it was on a Monday morning that they got the news of his sister's death.

         A deputy with the Calcasieu Parish Sheriff's Office in the marine division, Ron Johnson, discussed the river where it passed by the north end of Ryan Street, using an enlarged Google Earth map. He showed the location where the defendant kept his boat on Shell Beach at the time of Mary Vail's death, testifying that it was approximately four miles by the river to where Mary Vail's body was located. He stated that in 1962, there were several all-night businesses located in that area on the river. One was an ice house that was kept well-lit. There were several warehouses along the river's edge, including a Halliburton petrochemical company which ran an all-night operation. Deputy Johnson also testified that he has pulled more than a hundred drowned persons out the water during his career as a marine officer. He stated that even if the body gets into the mud at the bottom of the river, generally as the body rises to the surface, the wave action washes off the mud. He further stated that almost all of the bodies he had recovered from the water surfaced face down in the "dead man" position.

         The state presented the next three witnesses via video depositions, accompanied with copies of the transcripts. The first witness was Robert Fremont. Mr. Fremont lived in San Diego, California, in 1969. He was thirteen or fourteen years old when he met the defendant through Bruce Biedebach, whose brother was dating Mr. Fremont's mother. Mr. Fremont said that he and the defendant took a three-week-long bike trip through California. During the trip, the defendant told Mr. Fremont that he killed his wife. Mr. Fremont stated that he was a little shocked and concerned, and he attempted to distance himself from the defendant. Mr. Fremont stated that even though he was freaked out by the defendant's statement, he did take a second, shorter trip with him to Mexico. Mr. Fremont testified that on this trip the defendant again talked about hitting his wife in the head with an oar, and there was something about a boat:

A. I remember something about a boat, a lake, something with her head involved and basically something about he disagreed with something that she was doing. And I don't remember the exact thing that it was or things, but something that obviously perturbed him and he didn't agree with, and because of that he felt like it was okay to take her life.

         Mr. Fremont stated he had nothing to do with the defendant after this trip. Mr. Fremont stated he did not tell anyone at the time what the defendant said about killing his wife because he did not think anyone would believe him, and he was unsure at the time whether the statement was true. Mr. Fremont testified that about nine months prior to trial, Mr. Biedebach called him and asked if the defendant had ever told him about killing his wife. Mr. Fremont stated that after he heard that two other women associated with the defendant had mysteriously disappeared, he thought it best to come forward with the information.

         Jaycine Brooks worked for Traveler's Insurance in the 1960s. She testified that the defendant came into the office within a few weeks after Mary Vail's death. She stated he spoke with an insurance adjustor because there was a problem with the insurance policy he had taken out on his wife. Mary Vail had not signed for the policy. Ms. Brooks had no further information; her office only sold the insurance policies and did not handle claims. However, she stated there was a settlement. She did remember that a deputy from the Calcasieu Parish Sheriff's Office came to the office to inquire about the policy.

         Finally, Bruce Biedebach testified he met the defendant at Mission Beach in California. The last time he saw the defendant was in San Francisco in the seventies. Mr. Biedebach testified that one day, the defendant said, "out of the blue" that he killed his wife. When Mr. Biedebach asked what the defendant meant, he was told that the death was ruled an accidental drowning. Mr. Biedebach let it go because he thought that the defendant felt he killed his wife because he was unable to rescue her. Mr. Biedebach never really concerned himself with the defendant's statements, although during their acquaintance, the defendant made the same statement several times-that he killed his wife. Once Mr. Biedebach said he asked the defendant if his wife was a bitch, and the defendant said yes. Mr. Biedebach stated the defendant also mentioned something about the oar causing more harm than help. Mr. Biedebach stated that about five years before the trial, he was contacted by Jerry Mitchell, a reporter for the Clarion Ledger in Mississippi. Mr. Mitchell questioned him about the defendant. Then he spoke with Mr. Fremont and shortly thereafter with the Calcasieu Parish District Attorney's Office.

         Gina Frenzel is a private investigator from Texas. She testified that she read an article written by Jerry Mitchell regarding the defendant and the mysterious disappearance of two women and, sometime in March 2013, offered to help him with his investigation. Ms. Frenzel stated she was able to come into contact with the defendant through an investigation into a fire that had occurred on property the defendant owned a few years prior. She visited with the defendant about four times over a period of six weeks. During conversations with the defendant, Ms. Frenzel stated they spoke about Sharon Hensley in a roundabout way without naming her, and discussed, in generalities, Annette Carver. He never mentioned to her that either woman had "disappeared."

         Ms. Frenzel testified she had access to the defendant's house after he was arrested. He had called her from jail and asked her to get his truck out of impoundment, to fix a hole in the roof of his house, and go into his house and throw away perishable food in the refrigerator. She obtained the defendant's truck and returned it to his residence. She went into the house and began to search for journals that she knew he kept. Prior to entering the house, she stated she contacted an attorney and was advised that unless she took something from the premises, she was not violating the law. She said that after a long search she found the journals and took about two thousand photographs of the pages in the journals. Ms. Frenzel testified that the earliest journal she found was from 1984. Ms. Frenzel testified that an entry dated October 25, 2003, from one of the journals may have explained why there were no journals prior to 1984. At the state's request, she read the following:

10/28 of 2003 Tuesday at noon. I've just stopped feeding the fire of books and papers from the attic that started about 8:00 a.m. Billy just called and will come this evening if his helper gets back from the doctor in time. I'm going to town and told him I'd be back by 2:00 p.m. or so. I have been finding college and high school notes of mine and bills, love letters and pictures of lovers from years past, books I have to keep, and many more that are burning at the moment. I am working my way through a journal of 89 through 3-90. This is the period where I had left Beth Field because of her whore-swinging stuff and was spending longer and longer periods of time here trying to get daddy off of mother's back. This was a challenging, mind stretching introspective, reexamination time for me. And I was altered by it in a positive way to enable me to handle, without murder, the upcoming debacle with daddy and mother and Kay and Buchie that is just now taking another step towards completion with my moving out of this house. Found stuff from Robin with a couple of guy's names she had marriage offers from while she was loving me and a note saying how devoted to me she was, and that she wanted to ball Brian. Ain't it just the way?

         Ms. Frenzel also found copies of letters. She noted one specific letter dated March 1973 from the defendant to his parents, which explained his girlfriend's absence. Ms. Frenzel read a portion of the letter to the jury, as follows:

Greetings. I'm not married anymore. And although she has just been gone two days, my thinking is starting to clear from the clouds that were in her mind. I thought I could get her clear, but I've given up the experiment with her anyway. So now I can begin training full time. I'm also postponing the boat experiment until after the '76 Olympics, then maybe Bill will be big enough to help with it. One more thing about my last wife for your own information and in case her folks inquire. She met a man who has a boat, and although he invited us both, I convinced them I have more pressing things to do at the moment. And so, I sent them off to the ocean and each other with my good wishes and blessing, and I might add, all to my great relief.

         Ms. Frenzel testified that a portion of the letter that was redacted indicated it was Sharon Hensley he was calling his wife in the above letter.

         Ms. Frenzel also read a copy of a letter the defendant sent to his parents to send to Sharon Hensley's mother.

Dear Mrs. Hensley; I'm in west Florida trying to rebuild a busted motor that blew a piston. And I called one of my sisters in Louisiana who had gotten a letter from my mother saying you had called. I share your concern about Sharon, but then she is of age and she should have the right and freedom from you to decide for herself how she wants to live her time on earth. When and if she contacts you, please write me through my mother, saying where she is, how she is, what she's doing and if she wants to see me. I'll write down all the things I can think of that might help you find her. And since I don't remember your mailing address or phone, I'll mail this to my mother and she will forward it.
. . . .
When I saw Sharon last was about a year ago in Key West. We met this couple from Australia who had a boat they were traveling and living on, about 35 or 40 foot, I think. I didn't hear their last names or have the occasion to ask if the boat was registered to either of them. If the boat had some name I didn't see it or hear it mentioned. Anyway, they, John and Vanessa, invited us to marry them and sail around with them. Sharon wanted to and I didn't. They seemed like nice, loving people, but I wanted to wait until we could get our own boat. She seemed to think that I was too much of a straight country boy to evolve at her speed, so she decided to leave me. She also said she was going to try to forget me, her family, and everybody else that she --that she knew so she should -- could become -- . . . . -- and everybody else that she knew so she could became a new person, clean and free from memory associations. Some kind of Zen/Buddhist thinking Vanessa was experimenting with, I think. If you plan to try to find her against her will, the only possibility I can think of is sailing around looking and talking to other people who are sailing around. I left before they did so I don't know which way they went. They talked of island hopping around South America and the West Indies, and they talked of stopping in Hawaii for a while, maybe a couple years in the Philippines then India, Egypt, and the Mediterranean islands and coast. I don't know how much of which of these, if any, they decided on or in what order. Mr. and Mrs. Hensley, Brian, Rick, Harry, I enjoyed meeting all of you and visiting there. It seem like when I'm not working I travel mostly, so get in touch with my mother if you think I can be an help to you. Although Sharon and me were not legally married we felt completely married to each other. So I feel like a kind of kinship to your family. If she changes her mind and gets in touch please tell her I love her and want to see her. In the spirit of love, health and consciousness, Felix.

         Ms. Frenzel found several documents concerning Annette Carver, who married the defendant and a few years later disappeared. Ms. Frenzel identified each document which related the following information: The defendant and Annette Carver were married in August 1983. The defendant was forty-one at the time; Annette was seventeen. Prior to their marriage, Annette and her mother, Mary Carver, purchased a house jointly in Tulsa, Oklahoma, in April 1982. In May 1984, Mary Carver quit-claimed her interest in the property to Annette. In July 1984, Annette conveyed joint ownership in the property to the defendant, and on August 28, 1984, she deeded her interest in the property to the defendant in sole ownership. Annette disappeared shortly thereafter.

         During Ms. Frenzel's investigation, she acquired a letter, dated January 19, 1985, that the defendant sent to Annette's mother. Mary Carver had already reported her daughter missing at the time the defendant wrote ...


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