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State v. Bench

Court of Appeals of Louisiana, Third Circuit

September 26, 2018

STATE OF LOUISIANA
v.
ZACHARY ALEXANDER BENCH

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 26440-15 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

          Edward Kelly Bauman Louisiana Appellate Project COUNSEL FOR DEFENDANT-APPELLANT: Zachary Alexander Bench

          John Foster DeRosier Fourteenth Judicial District Attorney Ross Murray Elizabeth B. Hollins Assistant District Attorneys COUNSEL FOR STATE-APPELLEE: State of Louisiana

          Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett, Judges.

          ELIZABETH A. PICKETT JUDGE.

         FACTS

         Julia Barlow, the victim's widow, testified that on August 25, 2015, she spoke to her husband, Jody Barlow, around 8:30 p.m. Julia stated she and the victim lived in Texas and the victim was at Niblett's Bluff, an RV Park near Starks, LA, looking for a place for the two of them to go camping the following weekend. She testified she spent much of the following day trying to contact the victim, calling him around 6:30 a.m. on her way to work along with several other calls and numerous text messages.

         Julia stated she left work around 5 p.m. when Jody's sister contacted her and told her Jody had failed to meet their dad for coffee. She contacted Jody's mother, Tammy, and they began searching for him at hospitals, jails, and anywhere they could think to look. Julia stated her and Jody's camper was at the RV park, and she stayed there on August 26 after she was unable to contact Jody. Julia noted Jody was familiar with the Starks area, having spent time there while young. Julia and Tammy reported Jody missing to authorities at 8 a.m. on Thursday, August 27, 2015. Jody's body was found and identified later that day.

         Julia testified Jody had been prescribed medication for Attention Deficit Disorder. Julia testified that after Jody's death, she also learned he had been taking additional medication including the narcotic pain reliever Suboxone which were delivered to Jody's father's house. She testified she only remembered one occasion during the three and a half years she and Jody were together where Jody seemed high on narcotics. She further testified that Jody was a loving, generous person whom she had never known to be violent.

         Mr. Steven Hyatt, a life-long resident of Starks, Louisiana, testified that he saw the defendant, Zachary Alexander Bench, in a side-by-side vehicle on the morning of August 26, 2015. Mr. Hyatt identified a picture of the victim's side-by-side as the vehicle the defendant was riding when Mr. Hyatt spoke to him that morning. Mr. Hyatt also verified that he had previously picked the defendant out of a photo lineup.

         Mr. Matt Nichols, an employee at Niblett's Bluff, an RV park, testified that he spoke with Elizabeth Demarest, the defendant's girlfriend, between 7:30 and 8 in the morning on August 26, 2015. Mr. Nichols testified Ms. Demarest was upset and crying and told him she "was looking for Jody and Zack." He also testified he knew Ms. Demarest from Vinton High School, as it is a small town, and that she left through the front gate of the park headed toward a side-by-side.

         Mr. James McDonald, a friend of Jody Barlow's, testified Jody typically kept his side-by-side at James's house, as Jody lived in Houston and had nowhere to store it. He stated Jody had picked up his side-by-side around 10 p.m. on August 25, 2015. Mr. McDonald also testified that the following morning, he saw Jody's truck, pulling his side-by-side on its trailer, but that the truck did not honk the horn at him like Jody always does. This occurred in front of Mr. McDonald's business on Wright Road. Mr. McDonald believed he saw Jody's truck around 10 or 10:30 a.m., then again about thirty minutes later.

         Ms. Brenda Doyle, a fifty-nine-year resident of Calcasieu Parish, testified that on the morning of August 26, 2015, sometime between 9:45 and 9:55 a.m., she saw smoke just above the tree line while driving to her mother's house. She marked the area where she saw smoke on a pair of aerial photographs of the Greenmoor area, noting she never saw fire, just the smoke. Ms. Doyle acknowledged that she never reported the fire she believed she saw. Ms. Doyle did note however, that it was common for people to burn things in the area and she only noticed the smoke because there was a strong smell emanating from it.

         Mr. David Smith, a retired Calcasieu Parish resident, testified that on August 27, 2015, he and his wife discovered a body hidden underneath their boat near their normal fishing spot. He testified he never got closer than about ten feet from the body, but that he called 9-1-1 once he was able to get out of the woods where his phone had service.) Mr. Smith noted you would need some type of off-road or four-wheel-drive vehicle to reach the spot where his boat was located.

         Jason Alexander, a Lieutenant with the Calcasieu Parish Sheriff's Office's forensic investigative unit, testified that he oversaw the collection of evidence at the scene of the crime, assisted in some of the evidence collection, and took photographs at the scene. The state introduced photographs Lieutenant Alexander identified as photographs he took at the defendant's home. The state also introduced photographs Lieutenant Alexander took at the burn site.

         Lieutenant Alexander identified a number of items he recovered, including a muddy pack of Marlboro Light cigarettes and a muddy Porter-Cable light recovered from the defendant's bedroom as well as a Marlin Model 60 .22 caliber rifle recovered from the living room of the defendant's home. Lieutenant Alexander acknowledged on cross-examination that he did not know who owned the rifle and that he collected evidence irrespective of its ultimate relevancy to an investigation.

         Sergeant Kent Johnson, a ten-year veteran of the Calcasieu Parish Sheriff's Office, testified that he recovered a pair of latex gloves at the burn site.

         Detective Brandon Peresich, a member of the Calcasieu Parish Sheriff's Office's Forensic Division, testified that he created a hand-drawn sketch at the body site and recovered evidence from the site. The evidence included a couple of Marlboro Light cigarette butts, several spent .22 caliber shell casings, and multiple live .22 caliber rounds.

         Ms. Melissa Durflinger, a sixteen-year veteran of the Calcasieu Parish Sheriff's Office, testified she is part of the Forensic Investigative Unit and took a number of pictures of the body site which were introduced into evidence. Ms. Durflinger also collected a partially burned cigarette from next to the victim's right hand.

         Mr. Charles Hunter, Jr., the chief investigator for the Calcasieu Parish Coroner's Office, was certified as an expert in the field of "death investigation." He discussed the process the coroner's office takes in documenting and recovering evidence from a victim's body, which in this case included small caliber bullets taken from the victim's neck and head.

         Jade Marler, a SANE (Sexual Assault Nurse Examiner) nurse at Lake Charles Memorial Hospital, testified she drew blood and obtained buccal swabs from the defendant on August 29, 2015.

         Terry Faulk, a deputy with the Calcasieu Parish Sheriff's Office, testified that he was called out to an area about a quarter-mile west of Greenmoor regarding the discovery by a couple of people on four-wheelers of a burned-out truck. He was not sure if it was August 28 or 29, 2015.

         Bob Nordan, fifteen-year veteran of the Calcasieu Parish Sheriff's Office, testified that he is a security auditor in the corrections department whose duties include flying a drone in order to get aerial surveillance photographs. Mr. Nordan stated that on August 28, 2015, he was called out to deploy the drone and take photographs of the burn site.

         Lieutenant Nicholas Heinen of the State Fire Marshal's Office was accepted as an expert in the field of fire origin and cause investigation. Lieutenant Heinen investigated the burned truck, trailer, and side-by-side at a warehouse after the sheriff's office secured the vehicle. Lieutenant Heinen testified that the truck "was burned down to the bare metal" and he was unable to definitively determine the cause of the fire. Lieutenant Heinen noted the truck was powered by diesel, which burns at a lower rate than gasoline and thus burns longer, and that it is uncommon for a diesel-powered vehicle to self-ignite. Lieutenant Heinen was unsure of the date of his examination of the truck.

         The state's next witness was LeeAnn Hebert, the former general manager of Hebert's Country Grocery in Vinton, Louisiana. She testified she knew the defendant by face, but not name, and identified him in open court. Ms. Hebert testified that the defendant always came to the store in a cut-off shirt and shorts, and typically bragged about his possessions. She stated that on August 26, 2015, however, the defendant came in wearing a long-sleeved shirt, a ball cap, and was very quiet. She also stated it was the first time she had ever seen him wear a ball cap.

         Detective Cory Myers, a sixteen-year veteran of the Calcasieu Parish -Sheriff's Office who is currently a vehicle crimes detective, testified that he worked a missing person's report on Jody Barlow on August 27, 2015. He testified that he spoke with the defendant at the defendant's residence in Vinton. Detective Myers stated that during this initial conversation, the defendant denied knowing who Jody was and even acted as if he thought Jody was a woman.

         The state then called Michelle Bench, the defendant's mother. Ms. Bench testified that on August 25, 2015, the defendant, who was living with her at the time, left sometime after 10 p.m. to "go somewhere with someone" and that she went right back to sleep. Ms. Bench stated she woke up about 5:15 a.m. the following morning and left for work around 6:15 a.m. but did not know if the defendant was at home. She testified that when law enforcement initially contacted her, she told them Elizabeth, the defendant's girlfriend, was looking for the defendant so she assumed he was not home. She also testified the family owned a camouflage side-by-side and that the defendant had spent about two years in the Navy.

         Ms. Bench testified that the defendant's biological father disappeared from his life around the age of seven and that the defendant's step-father was an alcoholic who was physically abusive toward the defendant at least once, noting they believed he had broken the defendant's ribs in early 2012. Ms. Bench claimed that it was common for the defendant to wear a ball cap and that he frequently wore a long-sleeved flannel shirt even when it was hot. She testified that the defendant had a little trouble with male authority figures and that it pre-dated his military service and continued after it.

         The state next called Detective Patrick Smith, a digital forensics investigator for the Calcasieu Parish Sheriff's Office who was a violent crimes investigator in August of 2015. Detective Smith testified that as part of the investigation he obtained surveillance footage from Niblett's Bluff RV Park. The videos introduced by Detective Smith show Elizabeth Demerest arriving at Niblett's Bluff RV Park at approximately 7:39 a.m. and leaving at 7:46 a.m. on August 26, 2015. Detective Smith also noted he recovered video from approximately 10:25 a.m. the same day from Dollar General, where Ms. Demerest purchased supplies to treat burns.

         Detective Smith testified video pulled from the Starks E-Z Mart gas station established both the defendant and the victim were at the gas station simultaneously prior to Jody Barlow's disappearance on August 25, 2015. Video from the Starks Truck Stop also showed the defendant and the victim walking around the store and approaching the register together, as well as leaving. The video was taken around 11 p.m. on August 25, 2015.

         Detective Smith testified video pulled from Hebert's showed the defendant getting gas in his truck at 8:32 p.m. on August 25, 2015. The truck left at 8:35 p.m. Another video taken from Hebert's from August 27, 2015, showed the defendant wearing a long-sleeved shirt and a ball cap.

         Detective Smith testified that on the night of August 27, 2015, he and Detective Casey LaFargue interviewed the defendant. The defendant executed a waiver of Miranda rights form at 1:24 a.m. on August 28, 2015. Detective Smith stated that, initially, the defendant was interviewed as a potential witness, the last person to see the victim alive. Thus, the defendant was not read his Miranda rights until about a quarter of the way through his interview. Detective Smith noted that, after the interview, he subsequently noticed burn marks on the defendant's body, including burns to both arms.

         Defendant's Interview

         The defendant's interview with Detectives Casey LaFargue and Patrick Smith began at 12:51 a.m. on Friday, August 28, 2015. The defendant initially told the detectives that he had never met Jody. He then stated he met Jody "last night at the gas station---or maybe it was the night before that." The defendant stated he bought Jody some ice when he met him at Hebert's in exchange for tire spacers for the defendant's truck and that he and Elizabeth went to town to hang out with his friend Brandon. The defendant told detectives he saw Jody again around 1:00 a.m. when Jody came to his house after seeing his truck. There appeared to be considerable confusion between the detectives and the defendant regarding when these events happened.

         The defendant stated he tried to wake Elizabeth up to go with him, even though he claimed he did not want to go with Jody, but she stayed behind. He claimed that although Jody said he wanted to go to an area called Dynamite, he instead went towards Starks, stopping at multiple gas stations. The defendant stated that Jody was using a prepaid phone to call people trying to get some "bars."

         The defendant claimed he was getting paranoid because Jody was heading towards Starks, not Dynamite, so the defendant told him he had bars at his house so that Jody would bring him home. The defendant stated he pretended to look for bars before telling Jody he could not find them and that his "baby mama's tripping on [him]," at which point he claimed Jody left and he never saw him again.

         The defendant stated he told other sheriff's deputies he was probably the last to see Jody alive because he had been with him late into the morning, then proceeded to reiterate that Jody was "fucked up," had taken three or four Xanax, was falling asleep at the wheel, and "had a gun on him tripping me out---a little revolver." When asked what the gun looked like, the defendant responded "It was a gray revolver. I didn't---I never touched it." The defendant claimed both his mom and Elizabeth saw him come home around three a.m. that morning. He also claimed that his mom looked out her bathroom window and saw him. The defendant claimed that when Elizabeth woke up, he was in a different room and she got angry and was looking for him around the house and at his grandmother's house next door. He then stated he met Jody for the first time Wednesday night.

         After Detective Smith asked the defendant to go through his story again, the defendant stated the last time he saw Jody was about 4 a.m. Detective Smith then exited the room, and upon re-entry the detectives executed a Miranda rights waiver form. The defendant stated he decided to go with Jody because it was clear Jody was not going to leave, so he decided he might as well go and have some fun. The defendant again stated he started getting worried because Jody headed towards Starks, not Dynamite, stopped at multiple gas stations, was carrying a gun and had been taking pills, namely Xanax. He claimed Jody was arguing with someone on the phone about getting more Xanax, and the defendant lied to him about having pills at his house so that Jody would bring him home. The defendant also claimed that when he told Jody at his house that he could not find the Xanax that Jody was annoyed and had his hand on the gun he was wearing on his hip. He was also adamant that his mother woke up and saw Jody outside the house when they returned. The defendant stated he was wearing a white t-shirt, sweatpants and boots when they stopped at the gas stations.

         The defendant told the detectives that he was at home sleeping in bed with his daughter when Elizabeth woke up, to which the detectives informed him that Elizabeth claimed he was at his friend Brandon's house. The defendant subsequently admitted to taking half of a bar himself, and told detectives that Jody had "quite a few prescriptions in his glove box." He then claimed they never went mud-riding and that they never took the side-by-side off the trailer. The defendant asked the detectives if Jody was okay, to which they responded "[y]ou're the last one to see him, so we're hoping you can tell us." The defendant repeatedly denied having ever been to Jody's camper. The defendant stated that after Jody brought him home around 4 a.m., he went inside and did not leave again until after the sheriff's deputies woke him up around 11 a.m.

         Detectives Smith and LaFargue left the defendant alone, during which time he stated out loud that he "sure hope[d] everything's okay." After about ten minutes alone, the defendant again speaks aloud, wondering why violent crimes is looking into a missing persons case.

         After initially telling the detectives that he had no problem with them searching his home and truck and telling them he had no problem helping with anything they needed, the defendant was reluctant to give written consent for the sheriff's office to search his home, so the detectives ceased requesting for his consent. Again, the defendant admitted to taking half of a Xanax bar, stating Jody had already broken them up but also claimed he saw Jody take a whole bar. When Detective LaFargue mentioned maybe they had gone somewhere else that he had not mentioned, the defendant was ...


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