Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana No. 11-14-0698
Honorable Louis R. Daniel, Judge Presiding
C. Moore III District Attorney Monisa L. Thompson Assistant
District Attorney Baton Rouge, Louisiana Attorneys for
Appellee, State of Louisiana
Cynthia K. Meyer New Orleans, Louisiana Attorney for
Defendant/Appellant, Vernell Day
Vernell Day Angola, Louisiana Defendant/Appellant, Pro Se
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
defendant, Vernell Day, was charged by grand jury indictment
with second degree murder, a violation of La. R.S. 14:30.1.
He pled not guilty and, following a jury trial, was found
guilty as charged. He was sentenced to life imprisonment at
hard labor without benefit of parole, probation, or
suspension of sentence. The defendant now appeals,
designating three counseled assignments of error and one pro
se assignment of error. We affirm the conviction and
August of 2014, the defendant was living at North 28th Street
in Baton Rouge with his eight-year-old daughter, D.B., and
his five-year-old son, J.B. As the children's biological
father, the defendant was given custody of D.B. by the
Department of Children & Family Services (DCFS) when she
was about five years old. A few months prior to August of
2014, DCFS placed J.B. in the care and custody of the
evening of August 18, 2014, the defendant and his children
were at home. According to D.B., who testified at trial, she
and the defendant were in the defendant's bedroom
watching television. J.B. was in the adjacent bedroom on his
knees, having been punished by the defendant. At some point,
the defendant brought J.B. into his bedroom and placed him on
his knees in there. According to D.B., while the defendant
was standing directly in front of J.B., J.B. "looked
funny at him or something or in a rude way." Angered at
J.B. apparently having shown some sign of disrespect toward
him, the defendant grabbed J.B. by the ankle and, without
letting go, swung J.B. around the bedroom. J.B.'s head
struck the wall and the door several times. According to
D.B., J.B.'s head also struck the floor about two times.
became unresponsive from the injuries he sustained. The
defendant carried J.B. to the couch and tried to resuscitate
him. With J.B. showing no signs of consciousness, the
defendant called 91L The defendant told D.B. to tell anyone
who asked that J.B. had been jumping on the bed in the
defendant's bedroom and had fallen off and hit his head.
J.B. was taken by ambulance to Our Lady of the Lake Regional
Medical Center (OLOL). After a preliminary examination in the
emergency room, J.B. was moved to the pediatric intensive
care unit (PICU).
Andrew DeSalvo, with the Baton Rouge Police Department, went
to the hospital and took pictures of J.B. The photographs
revealed that J.B. was malnourished and had bruises and marks
on much of his body, including on his head, legs, back,
buttock, and ear.
Jeffrey Gruner, a trauma surgeon at OLOL, testified at trial
that J.B. was the "sickest of the sick." Dr. Gruner
noted that J.B. was very thin and very small for a
five-year-old. Dr. Gruner documented the various injuries to
J.B., including bruises on the right buttock, left ear, left
hip, left forehead, and a pronounced hematoma on the right
side of the forehead. Dr. Gruner thought J.B.'s injuries
were from nonaccidental trauma. Dr. Gruner testified that the
pattern of bruising to J.B.'s head suggested multiple
blows to his head. Dr. Gruner consulted with a neurosurgeon
about a possible surgery. However, they decided against
surgery because J.B.'s Glasgow Coma Scale score was so
poor and because with the extent of the diffuse injury within
the brain, there would have been no benefit from surgery.
Brian Binck, a pediatric intensivist, was the attending
physician who cared for J.B. in the PICU. In his death
summary report, Dr. Binck noted that J.B. had been intubated
when he was first brought in because he had made no effort to
breathe on his own. During a neurological exam, Dr. Binck
discovered that J.B.'s pupils did not constrict to light,
which according to Dr. Binck, was extraordinarily abnormal.
There was no evidence of brainstem activity. Dr. Binck noted
that J.B. was very emaciated and had multiple fresh bruises
on various parts of his body, including his chest, forehead,
thighs, and sacral area. A CT scan of J.B.'s head
revealed subdural bleeding. The radiologist was highly
suspicious that the injuries were caused by nonaccidental
trauma, and Dr. Binck concurred. Dr. Binck testified that,
with falls, you do not see severe head trauma and multiple
bruises all over the body.
twenty-four hours of nonresponsiveness by J.B., including no
attempt to breathe on his own, J.B. was eligible for a
brain-death examination, which was performed by Dr.
Binck's partner. Dr. Binck repeated the exam twelve hours
later. Having determined that J.B. was brain dead, Dr. Binck
declared J.B. deceased.
Van Vo, a forensic pathologist, performed the autopsy on J.B.
Dr. Vo noted several injuries on J.B.'s body, including a
hematoma within a contusion on the right side of the head;
various bruising and abrasions on the chest; bruising on the
left side of the neck; bruising on the left shoulder and left
arm; and bruises on the knees, left thigh, right foot, and on
the left and right side of the back and buttocks. Dr. Vo was
very suspicious that J.B. was malnourished. Dr. Vo determined
that J.B.'s cause of death was multiple blunt force
injuries. Dr. Vo testified that J.B. had bruises over much of
found two separate discrete areas of hemorrhage and hematoma
near the frontal bone of J.B.'s head and subgaleal
hemorrhage all over his skull. Near the occipital bone (back
of the head), Dr. Vo found three discrete areas of bleeding,
which according to the doctor, meant these injuries were
caused by three different events. Dr. Vo also found acute
(recent) subdural hemorrhage in J.B.'s brain. Dr. Vo
testified that there had been injury to every portion of
defendant testified at trial. The defendant indicated J.B.
had not been injured from falling off his bed. The defendant
explained he had told D.B. to tell people that J.B. had been
jumping on his bed because the defendant was afraid, and he
did not want to lose his children to DCFS. According to the
defendant, J.B.'s injuries were accidental. At the time
of the incident, J.B. was in the defendant's bedroom, but
he was not punished or on his knees, as D.B. had testified.
J.B., rather, was sitting in a small chair. The defendant, in
a playful manner, picked up the chair, with J.B. still in it,
and swung the chair around. J.B., according to the defendant,
slipped off the chair and hit the bed and then the floor.
Unhurt and happy, J.B. got up and ran toward the defendant.
The defendant then grabbed J.B. by his arms, picked him up,
and began swinging J.B. around. J.B. slipped from the
defendant's grip. J.B. hit the wall and the door and fell
to the floor.
ASSIGNMENT OF ERROR NO. 1
first counseled assignment of error, the defendant argues
that the trial court erred in denying his request to have his
own expert evaluate D.B. The defendant further argues that
the trial court erred in allowing a social worker to be
present with D.B. during her testimony, which violated his
right to confrontation.
to trial, the State filed a motion for protected person's
testimony to be taken outside the courtroom. The State
contended in the motion that D.B. qualified as a
"protected person" under the provisions of La. R.S.
15:283 because she was a witness to a crime who was under the
age of seventeen years; that she would likely suffer serious
emotional distress if forced to give testimony in open court;
and without simultaneous televised testimony, could not
reasonably communicate her testimony to the jury.
Revised Statutes 15:283 provides as follows:
A. On its own motion or on the motion of the attorney for any
party, a court may order that the testimony of a protected
person who may have been a witness to or victim of a crime be
taken in a room other than the courtroom and be
simultaneously televised by closed circuit television to the
court and jury, when the court makes a specific finding of
necessity based upon both of the following:
(1) Expert testimony that the protected person would be
likely to suffer serious emotional distress if forced to give
testimony in open court.
(2) Expert testimony that, without such simultaneous
televised testimony, the protected person cannot reasonably
communicate his testimony to the court or jury.
B. The court shall ensure that the protected person cannot
see or hear the accused unless such viewing or hearing is
requested for purposes of identification. However, the court
shall ensure that the accused is afforded the ability to
consult with his attorney during the testimony of the
C. The only persons who may be present in the room with the
protected person are the person or persons operating the
audio-video equipment, the presiding judge, the attorneys for
the state, the attorneys for the defendant, and any person,
other than a relative of the protected person, whose presence
is determined by the court to be necessary to the welfare and
well-being of the protected person during his testimony. The
persons operating the equipment shall be confined to an
adjacent room or behind a screen or mirror that permits them
to see and hear the protected person during his testimony but
does not permit the protected person to see or hear them.
D. Only the attorneys, or the presiding judge as authorized
by law, may question the protected person.
E. For the purposes of this Section, "protected
person" means a person who is the victim of a crime or a
witness in a criminal prosecution who is either of the
(1) Under the age of seventeen years.
(2) Has a developmental disability as defined in R.S.
Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that in all criminal
prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him. This right
provides two types of protections for a criminal defendant:
the right to physically face those who testify against him
and the right to conduct cross-examination. Coy v.
Iowa,487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101
L.Ed.2d 857 (1988). However, public policy considerations and
necessities may ...