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State v. Drummer

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

STATE OF LOUISIANA
v.
JOHN DRUMMER, JR.

          APPEAL FROM THE TWELTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2015-189360 HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

          Katherine M. Franks Louisiana Appellate Project Attorney for Appellant John Drummer, Jr.

          Anthony F. Salario Asst. District Attorney, Avoyelles Parish Attorney for Appellee State of Louisiana

          Court composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery, Judges.

          SYLVIA R. COOKS, JUDGE

         FACTS AND PROCEDURAL HISTORY

         On September 10, 2015, John Drummer, Jr. (Defendant), who was home alone with his girlfriend's children, severely beat two-year-old Marcus Deal, Jr. (Marcus, Jr.)[1" name="FN1" id="FN1">1]. Shortly thereafter the child became unresponsive. Defendant took the victim to the hospital where he died as a result of massive internal injuries received during the beating. Dr. Christopher Tape, M.D. (Dr. Tape), a forensic pathologist with the Louisiana Forensic Center, performed an autopsy on Marcus, Jr.'s body on September 11, 2015. Dr. Tape testified Marcus, Jr. suffered a subdural hemorrhage on the right side of the brain and bruising on the frontal part of the brain. On the left side of the head there was a ripping tear behind the ear. There were several rib fractures in both the front and back of the child's body. Some of these fractures were older, healed fractures, and others were fresh, acute fractures. There were contusions on the lower parts of the lungs. Dr. Tape testified these could only be caused by blunt force trauma. Marcus, Jr. had lacerations to his spleen and liver large enough to cause significant bleeding in the abdominal cavity. His pancreas was lacerated and his adrenal glands, located on top of the kidneys, were torn in half-something Dr. Tape testified he had never seen before. He further stated there were also "well healed" scars-meaning it took a long time for the wounds to heal-along the back of the child's head, down his back, and the backside of one arm, which would have been impossible to miss when he was being bathed. Dr. Tape concluded the cause of death was blunt force injuries to the internal organs and the head consistent with a physical assault. He opined the acute rib fractures, head injuries, and the injuries to the internal organs were zero to three days old.

         On September 24, 2015, Defendant was indicted for one count of first degree murder of Marcus Deal, Jr., a juvenile under the age of twelve, a violation of La.R.S. 14:30.[2] The State filed a "Notice of Intention to Introduce Evidence of Other Crimes, Wrongs, or Acts, " on May 9, 2016. A hearing was held on May 26, 2016. The trial court ruled the State's evidence admissible. On August 23, 2016, the trial court held a hearing on the State's "Motion to Determine the Admissib[i]lity of Witnesses Statements" and, after a hearing on the motion, ruled the statement would be admissible at trial. A jury trial commenced on January 10, 2017, and Defendant was found guilty of second degree murder. Defendant filed a "Motion for New Trial" on February 27, 2017.[3] Defendant's motion for a new trial was subsequently denied. Defendant was sentenced on April 27, 2017, to life imprisonment without benefit of parole, probation, or suspension of sentence and the trial judge further stated Defendant's sentence "is not subject to diminution for good behavior as being a crime of violence."

         Defendant timely appealed his conviction and sentence, asserting three assignments of error: (1) the trial judge erred in allowing the hearsay statements of the victim's sister, Markala Deal (Markala), to be admitted into evidence; (2) the trial judge erred in allowing evidence of other crimes or acts to be admitted at trial and in failing to include a jury charge as to the proper use of the evidence in the final jury instructions, and (3) the trial judge erred in failing to grant a new trial.

         TRIAL TESTIMONY

         Marcus Deal, Sr. (Marcus, Sr.) is the father of the victim, Marcus, Jr., four-year-old Markala, and one-year-old Miracle. He testified he lived with the children's mother, Domonique Enette (Ms. Enette), for approximately five years until 2013. He did not know Defendant prior to Defendant and Ms. Enette living together. Marcus, Sr. testified that during his visitation with the children they appeared to be afraid of Defendant. The children would cry when they realized he was taking them back to their mother. He received a call on September 10, 2016, telling him Marcus, Jr. was in the hospital. When he arrived at the hospital around 7:15 p.m. Markala was outside and met him as he exited his car. Marcus, Sr. testified Markala told him Defendant hit "Poppee" in the head because he would not eat his food. He further testified he noticed bruising on Marcus, Jr.'s body a few weeks prior to the child's death. He said his mother, the child's grandmother, also noticed the bruising when she was babysitting the children and mentioned it to him. He additionally said he did not notify the police but discussed it with his parents and the children's mother. Marcus, Sr. told a police officer at the hospital what Markala told him about Defendant hitting Marcus, Jr.

         Angela Simon (Ms. Simon), Defendant's aunt, testified that on September 10, 2015, she saw "Poppee" between 2:00 p.m. and 3:00 p.m. when Defendant and Ms. Enette came to her house with the children. They wanted her to babysit but she had an afternoon engagement and was not able to keep the children. She testified Ms. Enette worked at the Bailey House from six in the morning to two in the afternoon, then at Piggly Wiggly from three until nine at night. "Poppee" appeared to be fine when she saw him that afternoon. She also stated she never saw a problem between Defendant and the children. Ms. Simon further stated she never bathed "Poppee" when she babysat him and thus never saw any scars or bruising on his body.

         Detective Joe Johnson (Detective Johnson) with the Bunkie Police Department was dispatched to the hospital around 6:50 p.m. He testified Defendant told him that after Defendant finished showering, he called for Marcus, Jr. According to Defendant the child took two steps, then collapsed. Detective Johnson testified he saw bruises on the child's body after he died. At the hospital, after the detective read Defendant his Miranda rights, he used his cell phone to record an interview with Defendant. The detective stated that before he interviewed Defendant, Markala told him Defendant hit her brother on the head because he would not eat his food. During this interview Defendant told Detective Johnson and Dr. Lovell J. Mayeux, M.D. (Dr. Mayeux) he sat Marcus, Jr. on the sofa with a bowl of Cheetos in front of the television while he showered. He stated his shower lasted about twenty to twenty-five minutes. When he was done, he called out to "Poppee" to do something. According to Defendant, "Poppee" got off the sofa, took two steps, and collapsed. Defendant said he attempted to revive Marcus, Jr. by pouring glasses of water on him. He said "Poppee" did attempt to get up once but rolled his eyes back and thereafter did not move. He maintained he immediately took the boy to the hospital after calling 911. Defendant said he was "surprised" when the doctor told him about the broken ribs. Defendant further stated he noticed "Poppee" staring off at something a few days before. When asked about the scarring on Marcus. Jr.'s back, Defendant at first denied knowing anything about it, but then said that "Poppee" had walked into a belt that Defendant was idly swinging around. When asked why he was swinging the belt he gave a vague response and stated he did not own a belt. Defendant admitted he was the only adult caring for Marcus, Jr. that day except for a brief period around two in the afternoon when Ms. Enette was at home. According to Defendant he sat outside while the children remained in the house for a time. At this point in the interview he became defensive and, when the detective attempted to arrest him, he responded aggressively and began swearing and screaming, shouting he wanted to talk to his people. Several voices can be heard on the taped interview yelling at him to calm down. Scuffling sounds can also be heard. Defendant can be heard screaming that he could not breathe and that he did not do anything. Detective Johnson arrested Defendant following the interview.

         Approximately seven to eight hours later, Detective Johnson, along with Detective Myra Fontenot (Detective Fontenot), searched Defendant's residence. Although Defendant said he had taken a shower just before the child collapsed, Detective Johnson observed when he encountered Defendant at the hospital Defendant was wearing dirty clothes, had dirty bare feet, and he noticed the smell of body odor. The detective also stated that while at Defendant's residence he checked the shower and noted the shower was completely dry, including the inside of the shower drain. Detective Johnson further testified that during two sessions held on September 15 and November 11, 2015, at a children's advocacy center, Markala would not speak of the incident between Defendant and Marcus, Jr.

         Dr. Mayeux, an expert in family and forensic medicine, testified regarding his findings as the Coroner for Avoyelles Parish. Dr. Mayeux testified he was called to the hospital at approximately 9:15 p.m., shortly after Marcus, Jr. died. He explained his job as coroner was to investigate the deaths of individuals in the parish, determine the cause and manner of death, and determine whether an autopsy was warranted. An autopsy is always conducted on any child under the age of twelve unless the child dies of a pre-diagnosed condition, such as cancer. The coroner stated the first thing he did was to examine the child's body. He noted bruising and scarring on the body and bruising on the head, along with a torn ear. He requested an x-ray of the body and a CAT scan. He noted that on the x-ray he could see dark areas in the chest and abdominal areas which he attributed to bruising of the organs or blood in the chest and abdominal cavities. He too, saw rib fractures. He also observed possible bruising to the head and brain.

         Marcus, Jr.'s body was then sent to Lafayette, where Dr. Tape conducted an autopsy the next day. Dr. Mayeux discussed Dr. Tape's autopsy report at length. He essentially agreed with the findings set out in Dr. Tape's autopsy report, however, he testified in his opinion the injuries that caused Marcus, Jr.'s death were inflicted up to three hours prior to Defendant taking the child to the hospital. Based on this conclusion, Dr. Mayeux surmised Defendant inflicted the injuries considering he was the only adult around Marcus, Jr. at the time.

         Dr. Mayeux spoke with Defendant at the hospital as part of his investigation. He said Defendant stated at that time "Poppee" was fine until after Defendant finished showering. Defendant told him "Poppee" was sitting on a sofa, eating Cheerios, and watching television. Defendant said he got out of the shower, called out to "Poppee, " who took two steps, and collapsed. Defendant told the doctor he was alone with the children all afternoon.

         Ms. Enette's mother, Cynthia, and her sister, Gabby, testified they did not notice any problems between Defendant and Ms. Enette's children. Defendant's mother and sister, Anita and Kendra Drummer, testified they witnessed Ms. Enette being physical and verbally abusive to her children, including grabbing them by the ears, on many occasions.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record we find there is one error patent concerning Defendant's sentence.

         The court minutes of sentencing state in pertinent part:

AS REQUIRED BY ARTICLE 890.1 OF CODE OF CRIMINAL PROCEDURE AND ARTICLE 894.1D OF THE CODE OF CRIMINAL PROCEDURE, THE COURT DESIGNATED THAT THE CRIME INVOLVED WAS A CRIME OF VIOLENCE OR ATTEMPTED CRIME OF VIOLENCE AS DEFINED OR "AS REQUIRED BY ARTICLE 890.1 OF THE CODE OF CRIMINAL PROCEDURE ENUMERATED IN R.S. 14:2"13" [sic], AND ALSO INFORMED THE DEFENDANT WHETHER, PURSUANT TO THE PROVISIONS OF R.S. 15:571.3, THE DEFENDANT'S SENTENCE WAS NOT SUBJECT TO DIMINUTION FOR GOOD BEHAVIOR . . . .

         At sentencing, the court stated, "[t]he Court notes that this is a crime of violence; however[, ] regardless of the designation the sentence is not subject to diminution for good behavior as being a crime of violence and is being issued without benefit of probation, parole or suspension of sentence." This appears to be a denial by the trial court of diminution for good behavior or what is commonly referred to as "good time." "'[A] trial judge lacks authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is "directed to the Department of Corrections exclusively."'" State v. Fallon, 15-1116, p. 4 (La.App. 3 Cir. 4/6/16), 189 So.3d 605');">189 So.3d 605, 608 n. 2 quoting State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 14 So.2d 698');">714 So.2d 698, 699). Defendant's sentence is hereby amended to delete the trial court's statements regarding diminution eligibility and the trial court is instructed to make an entry in the minutes reflecting this amendment.

         ASSIGNMENT OF ERROR NUMBER ONE

         Defendant argues the trial court erred by allowing hearsay statements made by Markala, the victim's older sister, to be admitted at trial. During the trial Marcus, Sr. testified that Markala, who was four-years-old at the time, ran up to him when she saw him at the hospital and told him Defendant hit "Poppee" on the head because he would not eat his cereal. She also made the same statement to her grandfather and, at the urging of her grandfather, told a police officer at the hospital Defendant hit the victim. Markala did not testify at trial.

         Hearsay is defined as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La.Code Evid. art. 801(C). The issue of Markala's statements was raised at the August 23, 2016, hearing on State's "Motion to Determine the Admissib[i]lity of Witnesses Statements." The trial court ruled the statements made to Markala's father and grandfather were admissible at trial as an excited utterance, an exception to the hearsay rule. Louisiana Code of Evidence Article 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The trial court further found that the statement made to the police officer was also not hearsay but "res gestae" and, thus, was admissible at trial.

         Defendant sought this court's review of the trial court's ruling. This court ruled the trial court did not abuse its discretion when it permitted the witness's out- of-court statements. State v. Drummer, 16-776 (La.App. 3 Cir. 11/3/16) (unpublished opinion), writ denied, 16-2151 (La. 12/16/16), 11 So.3d 393');">211 So.3d 393. In State v. Humphrey, 12 So.2d 507');">412 So.2d 507, 523 (La.1981) (emphasis added), the supreme court explained that an appellate court is not precluded on appeal from reviewing its previous pretrial ruling on supervisory writs:

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result.

See also State v. Perry, 12-298 (La.App. 3 Cir. 11/7/12), 101 So.3d 575');">101 So.3d 575, writ denied, 12-2657 (La. 5/24/13), 116 So.3d 659');">116 So.3d 659.

         At the August 23, 2016, hearing, Defendant argued Markala's statements were clearly the product of reflective thought because the statements were made in the presence of relatives hours after the victim was beaten. He asserted family members at the hospital could have improperly influenced Markala.

         In brief, Defendant argues:

At the time of the hearing on the admissibility of M.D.'s [Markala's] statement, it was believed that John Drummer brought M.D. and her sisters to the hospital when he came with their brother. The belief was that Mr. Drummer had brought all the children to the hospital, meaning that the M.D. [sic] was in the presence of the person she said had abused her brother until the time she made the statement to Officer Fontenot. Under those conditions, the statement made could have been deemed an excited utterance. However, at the trial, it was established that the child had been picked up by her mother and had been in her presence and in the presence of Ms. Poole for the ride to the hospital, clearly when she had been asked what had happened. Under the circumstances elicited at trial, the statement cannot be considered an "excited utterance". It's [sic] admission into the evidence at trial was error.

         At the August hearing, there were only three witnesses. Markala's grandfather, Raymond Enette, stated Markala was at the hospital when he arrived, but he did not know how or when she arrived at the hospital. Detective Fontenot testified she did not know how or when Markala arrived at the hospital. She stated she was originally sent to Defendant's house regarding an unresponsive child. When she was almost to the residence she was flagged down by the victim's mother. The detective said she turned around and followed the vehicle transporting the mother to the hospital. When she arrived a few minutes behind the victim's mother, she saw Markala outside the hospital. She says this was the first time she saw Markala. Marcus, Sr. testified when he arrived at the hospital he was told by a nurse Defendant brought Markala and her younger sister to the hospital. He says he first saw Markala outside the hospital and she ran up to him as he was getting out of his car. He also stated Ms. Enette was already at the hospital. He further maintained that a lady sitting next to him told him Defendant first brought the victim into the hospital and then went back out to the car to get the girls.

         At the trial, Markala's grandfather, Raymond Enette, testified that after he was notified about Marcus, Jr. he rushed to the hospital. He stated when he and his wife got to the hospital, Markala's mother had not yet arrived. Raymond stated that as soon as he walked into the hospital area where family members were waiting, Markala ran up to him and told him Defendant hit "Poppee" on the head.

         Sarah Poole (Ms. Poole), Ms. Enette's co-worker, testified that after Ms. Enette got the news of her son being in the hospital, she drove Ms. Enette to her house to pick up Markala and her younger sister, Miracle, who were home alone. Ms. Poole testified Markala was upset and crying but made no statements to her mother during the trip to the hospital. Ms. Poole recalled meeting up with a police officer. She did not recall if Ms. Enette got out of the vehicle and talked to Detective Fontenot on the way to the hospital. After they arrived at the hospital, Ms. Poole escorted the two little girls into the hospital. Ms. Poole did not interact with any of the family and left about an hour later.

         As noted above, Defendant argues that because there was testimony at trial that Markala was transported to the hospital by her mother, rather than by Defendant, her statements did not qualify as excited utterances and thus were not admissible hearsay statements for the purpose of trial. The 911 call was made at 6:50 p.m. Marcus, Jr. was admitted into the hospital at 6:59 p.m. Marcus, Sr. testified when he arrived at the hospital at approximately 7:15 p.m., Markala was already at the hospital. As evidenced by the contradicting testimonies as to how Markala arrived at the hospital, there was much stress and confusion in the twenty to twenty-five minutes between Marcus, Jr. collapsing at home and Markala telling her grandfather and her father that Defendant hit Marcus, Jr. on the head because he would not eat his cereal. Defendant does not show that whoever transported Markala to the hospital had the opportunity or inclination to prompt Markala to make statements accusing Defendant of hitting Marcus, Jr. on the head.

         We find Defendant fails to show the trial record more clearly framed the issue regarding Markala's statement to her father and grandfather than when it was first considered and rejected on writ of review by this court. Defendant has also failed to show that ...


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