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
composed of Sylvia R. Cooks, Marc T. Amy and John E. Conery,
R. COOKS, JUDGE
AND PROCEDURAL HISTORY
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
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. 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. 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
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.
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
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.
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.
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.
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.
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.
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
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
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.
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 . . . .
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.
OF ERROR NUMBER ONE
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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 ...