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State v. Day

Court of Appeals of Louisiana, First Circuit

June 21, 2018


          On 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

          Hillar 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


          PENZATO, J.

         The 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 sentence.


         In 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 defendant.

         On 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.

         J.B. 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).

         Corporal 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.

         Dr. 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.

         Dr. 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.

         After 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.

         Dr. Yen 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 his body.

         Dr. Vo 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 J.B.'s brain.

         The 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.


         In his 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.

         Prior 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.

         Louisiana 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 protected person.
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 following:
(1) Under the age of seventeen years.
(2) Has a developmental disability as defined in R.S. 28:451.2(12).

         The 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 ...

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