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State v. Spruell

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

STATE OF LOUISIANA Plaintiff-Appellee
BRITTANY SPRUELL Defendant-Appellant STATE OF LOUISIANA Plaintiff-Appellee
COREY R. SPANN, JR. Defendant-Appellant

          Appealed from the Fifth Judicial District Court for the Parish of West Carroll, Louisiana Trial Court No. 2015F122 Honorable Stephen G. Dean, Judge.

          JOHN D. & ERIC G. JOHNSON LAW FIRM, LLC By: Eric G. Johnson Counsel for Appellant Brittany Spruell

          FLOWERS, LONG & HATCH, LLP By: Christopher Hatch Counsel for Appellant Corey R. Spann, Jr.

          JOHN M. LANCASTER District Attorney AMANDA WILKINS Assistant District Attorney Counsel for Appellee

          Before MOORE, PITMAN, and BLEICH (Pro Tempore), JJ.

          PITMAN, J.

         Defendants Brittany Spruell and Corey R. Spann, Jr., were each convicted of second degree cruelty to juveniles and sentenced to 40 years at hard labor. They appeal their respective convictions and sentences. For the following reasons, we affirm.


         On November 24, 2015, the state filed a bill of information charging Spruell with one count of second degree cruelty to juveniles.[1] On August 2, 2016, the state filed a motion to join the cases of Spruell and Spann for trial, and the trial court signed an order joining the cases. On August 28, 2017, the state filed a motion to amend the bill of information to join Spruell and Spann for trial, and the trial court signed an order to amend the bill of information.[2] The state then filed a bill of information charging Spruell and Spann with one count each of second degree cruelty to juveniles, alleging that they committed this crime on or about September 27, 2015, in West Carroll Parish. The victim of these charges is Spruell's son, M.P., whose date of birth is February 20, 2012.

         On August 2, 2016, the state filed a notice of intent to use evidence of others crimes, i.e., a charge of second degree cruelty to juveniles pending against Spann in Union Parish and a protective order issued in relation to the

          Union Parish charges prohibiting him from having any contact with M.P. The state alleged that the other crimes evidence would be used at trial to show his intent to commit the West Carroll Parish charge and as evidence of his system of crimes against M.P. On August 22, 2017, the state filed a second notice of intent to use evidence of other crimes, i.e., his willful and repeated violations of the Union Parish protective order.

         On August 28, 2017, Spruell and Spann's case was set for a preliminary examination and a hearing on other motions, including the state's request to use other crimes evidence. Keith Blackmon, a former detective with the Union Parish Sheriff's Office, testified about his investigation of two prior incidents involving M.P. and Spann. Det. Blackmon stated that in August 2014, he was notified by Child Protective Services ("CPS") that M.P. had suffered burns to his face from a pot of boiling water. In September 2014, M.P. was injured while in the sole care of Spann. As a result, M.P. was hospitalized and diagnosed with bleeding on his brain, bleeding behind his eye, a lacerated liver and diffuse bruising. Doctors opined that M.P. had been abused and that his injuries were caused by blunt force trauma. Spann was charged with second degree cruelty to juveniles; and, on September 29, 2014, a protective order was issued prohibiting him from having any contact with M.P. or his family. The protective order was made effective until September 29, 2016. Following additional testimony related to the preliminary examination and other motions, counsel for Spruell argued that admission of the Union Parish incidents and the protective order would unfairly prejudice her. The trial court took the matter under advisement.

         On November 2, 2017, the day of trial, counsel for Spruell raised an objection to allowing the state to use the other crimes evidence, arguing that his client would be unfairly prejudiced by the state's reference to Spann's pending Union Parish charges and the protective order. Noting Spruell's concern, the trial court ruled to permit the use of the other crimes evidence.

         At trial, Erica Elliott Brumley testified that in September 2015, she worked as a registered nurse in the emergency room of West Carroll Memorial Hospital. She recalled Spruell bringing her three-year-old son, M.P., into the emergency room at approximately 11:00 a.m. on September 28, 2015. Spruell told her that she found M.P. on the floor beside his bed that morning. Spruell noted that she thought M.P. had had a seizure one year prior, but she could not give his history because CPS had removed M.P. from her care at that time. Nurse Brumley described M.P. as "unresponsive . . . limp, pale, cold" and observed bruising on his body. He had a hematoma on his head. She identified photographs she took of M.P. on that day, showing bruising to M.P.'s right hip, upper right rib cage, back and chin. The bruising on M.P.'s back varied in color, which indicated that the bruises were at various stages of healing and had occurred at different times. She further testified that M.P. was unresponsive and his teeth were clenched, which indicated a possible seizure. Medical personnel administered Ativan to M.P., and he was transferred to St. Francis Medical Center to be treated by a pediatric specialist. She stated that she suspected that M.P. had been physically abused, so she notified CPS. During cross-examination, she identified a report interpreting results of a CAT scan taken at West Carroll Memorial Hospital and stated that there was no showing that M.P. had suffered a brain injury. She explained, however, that the signs and symptoms of a brain injury are not always immediately evident on a CAT scan and may progress over time.

         Det. Blackmon testified that in 2014, he investigated allegations of child abuse against Spann involving M.P. He identified a bill of information filed in Union Parish that charged Spann with two counts of second degree cruelty to juveniles, alleged to have occurred on September 6 and 7, 2014. He also identified a Union Parish protective order ordering Spann not to "abuse, harass, stalk, follow, or threaten," go within 100 yards of M.P., contact M.P.'s family or go to M.P.'s residence or school. The order was signed September 29, 2014, and was effective until September 29, 2016. He identified Spann as the same person listed in the Union Parish bill of information and protective order. He stated that the charges against Spann were still pending in Union Parish, and the protective order was still in effect after being extended.

         Kristi Thomas testified that in September 2015, she was an investigator for the Department of Children and Family Services, also known as CPS, when the agency received a phone call regarding possible physical abuse of M.P. by Spruell and Spann. During her investigation of these allegations, she became aware of the investigation and protective order in Union Parish and that CPS had previously removed M.P. from Spruell's care and did not recommended that he be returned-although he was returned to Spruell's custody in July 2015. On September 29, 2015, Thomas visited M.P. at St. Francis Medical Center where he was in the pediatric intensive care unit. M.P. was unconscious, unresponsive and on a ventilator. Thomas identified a series of photographs she took of M.P. at approximately 1:30 p.m. that afternoon. They showed him connected to a ventilator with a swollen face and neck. There was a large scrape under his chin and on his neck and a scrape from his hip to his back. There were bruises on his feet, back and legs. His head was shaved and a tube was protruding from the top of his head to relieve cranial pressure from his swollen brain. Based on their history and photographs posted on Facebook on August 24, 2015, Thomas was convinced that Spruell and Spann were living together in September 2015. Two of the photographs from Facebook were of Spruell and Spann together, and another photograph was of M.P., his sister and another child. When Thomas spoke with Spruell, she denied having any contact with Spann or being in a relationship with him. At the time of trial, CPS continued to monitor M.P. Thomas stated that M.P. was in foster care, attended a pediatric daycare and no longer required the use of a feeding tube. However, M.P. had very limited use of his right hand, had issues with depth perception and was unable to see out of his right eye. Thomas stated that during her last visit with M.P., who was five years old at the time, he used only three words ("no," "stop" and "hey") to communicate with her.

         Det. Charles Irby of the West Carroll Sherriff's Office testified that on September 29, 2015, he returned a call from Kristi Thomas, which led him to initiate an investigation into Spruell and Spann related to M.P. That evening, Det. Irby interviewed Spruell after she waived her Miranda rights. She confirmed the charges against Spann in Union Parish and the protective order, but she claimed that she had ended her relationship with him and had not seen him in almost a year. Spruell denied living with Spann and said that she had been alone with M.P. at her house for the three days before he was injured. She stated that on the evening of September 27, 2015, she gave M.P. a bath around 11:00 p.m. and saw no bruises or other injuries on him, other than a scrape on his foot. She then put him to bed. When M.P. did not awaken by 10:00 a.m. the next morning, she went to his bedroom and found him on the floor. His body was rigid, and he had vomited on himself. She removed his clothing, wrapped him in a blanket and drove him to the West Carroll Memorial Hospital. She told Det. Irby that she thought M.P. had fallen from his bed onto some toys on the floor.

         Det. Irby learned that Spruell and M.P. lived at a house located at 367 Barefoot Road. The owner of the house, Grace Sanders, provided him with a copy of a lease agreement, which was signed by Spruell and Spann as tenants. He also determined that Spann had initiated electrical service at the home.[3] On October 7, 2015, he executed a search warrant for the residence and found a copy of the September 2014 Union Parish protective order and a copy of Spann's birth certificate inside a drawer in a bedside table in the master bedroom. He located what appeared to be a game score sheet listing several names, including Spann. He found a check endorsed by Spann, two utility bills addressed to Spann for a different address, two paychecks made payable to Spann, a pair of adult men's boots, an assortment of men's clothing, a beard trimmer and men's deodorant. He also found a pair of men's underwear on the bathroom floor. He inspected M.P.'s bedroom and measured from the top of M.P.'s mattress to the floor, which was 13 inches in distance.

         Based on his investigation, Det. Irby obtained an arrest warrant for Spann for violation of a protective order. Spann waived his Miranda rights and gave a statement denying residing at 367 Barefoot Road or knowing anything about the score sheet found there. He claimed that he slept at his father's house on the evening of September 27, 2015, and returned to 367 Barefoot Road the next morning to feed his dog. According to Spann, when he arrived, he noticed that the dog had gotten out of the house, and he located it down the street. Det. Irby noted that Spann told his boss that M.P. had passed away so he could have enough time off of work to accumulate the money to bond himself and Spruell out of jail.

         Det. Irby obtained cell phone records for Spruell and Spann from AT&T.[4] The records indicated that at 6:30 p.m. on September 27, 2015, Spann's cell phone accessed a cell phone tower in Forest, Louisiana, which is the tower closest to 367 Barefoot Road. Spann's cell phone also accessed this tower when he made his next call at 9:37 a.m. on September 28, 2015. During the same time period, his cell phone did not access the cell phone tower closest to his father's home, where he told Det. Irby he had spent the night on September 27, 2015. Det. Irby explained that a cell phone generally accesses the cell phone tower closest to its location.

         Carlas Spann, Spann's uncle, testified that he, his wife, his brother (Spann's father), Spruell and Spann played a card game at 367 Barefoot Road prior to the weekend M.P. was injured. He identified the score sheet found by Det. Irby as the score sheet the group used while playing cards. He confirmed that M.P. was at the house when Spann was there playing cards. He stated that Spann and Spruell were in a boyfriend-girlfriend relationship.

         Brandon Burch witnessed Spruell and Spann sign the rental agreement to 367 Barefoot Road. In August and September 2015, he lived down the street from 367 Barefoot Road and recalled seeing Spann riding a lawnmower while Spruell and M.P. were standing in the yard.

         As owner of the house, Sanders testified that she was contacted by Spann on July 24, 2015, through a message on Facebook, about renting 367 Barefoot Road. She and Spann exchanged messages, and she advised him of the rent and security deposit amounts. Spann asked to see the house, and she agreed to meet him there that evening. She stated that Spruell, Spann, a young girl and a young boy met her at the house. In a message sent at 7:37 p.m. after viewing the house, Spann told her, "[W]e want it." On July 25, 2015, she sent Spann another message asking for his "wife's name," and he responded, "Brittany." On July 29, 2015, she, Spruell and Spann met to sign the lease, which was witnessed by Burch and Virginia Helmer. She recalled that she assumed the young boy with them was their son. She stated that she lived down the street from 367 Barefoot Road and recalled seeing Spruell, Spann and M.P. together at the house from time to time. On the morning of September 28, 2015, she saw Spann in her yard retrieving his dog. She spoke with him about the dog for a few minutes and remembered that he was wearing plaid pajama pants and a T-shirt at the time. On October 7, 2015, Spruell sent her a text message stating that she was moving out and asked if she would mail her a check for return of the deposit.

         Dr. Aristoteles Pena-Miches, accepted as an expert in pediatric neurology, treated M.P. at St. Francis Medical Center on September 29, 2015. He performed a lumbar puncture to try to determine why M.P. had not woken up after having seizures. When he undressed M.P. to perform the procedure, he noticed bruising on M.P.'s back. The lumbar puncture indicated that M.P. had "incredibly" elevated intracranial pressure that was so high it required a pediatric neurosurgeon to place an intracranial pressure monitor into his skull. Analysis of the fluid taken during M.P.'s lumbar puncture did not reveal any abnormality indicative of an infectious disease, such as encephalitis or meningitis. He concluded that the swelling of M.P.'s brain was caused by abusive trauma. Additionally, he stated that there was no clinical condition that he was aware of that would cause the "patchy, focal, localized bruises in different areas of the body, in different areas of evolution." He also noticed bruises and petechiae, small red dots on the skin caused by broken capillaries, on M.P.'s neck, which indicated that the area had been squeezed. He opined that M.P. had been "kicked on the floor or he was hit with a very specific instrument that did not injure the skin around it." When asked whether M.P. could have sustained his injuries from falling from his bed, which was 13 inches off the ground, he replied, "Absolutely not. . . . you don't get a generalized cerebral edema with falls." He testified that he spoke with Spruell after examining M.P. and advised her that he was going to contact CPS. Spruell told him that she did not know what had happened to M.P.

         Dr. Pena-Miches identified photographs of M.P. and images from a CAT scan and MRI taken of M.P.'s head. The CAT scan images showed swelling and damage to the area of M.P.'s brain that affects vision, communication and behavior. The injuries corresponded to M.P.'s difficulties with vision and speech, as well as his abnormal, hyperactive impulsive behavior. A more recent MRI image, taken April 26, 2016, indicated atrophy of M.P.'s brain and that he had the brain of a 95-year-old. At the time of trial, he was still treating M.P. and explained that he is "severely neurologically handicapped with no chances for independent life."

         During cross-examination, Dr. Pena-Miches conceded that there have been cases where a child has suffered serious intracranial injury after a short fall, but those cases are "one in a million." He opined that the bruises found on M.P. were caused by either a fist, shoe or some other sort of blunt object. He also stated that it would be unusual for a child to get bruises on his back from falling.

         On November 3, 2017, the jury unanimously found Spruell and Spann guilty as charged of second degree cruelty to juveniles. Following hearings on February 21, 2018, the trial court sentenced both Spruell and Spann to 40 years at hard labor. Both Spruell and Spann filed a motion to reconsider sentence, and the trial court denied these motions.

         Spruell and Spann appeal their respective convictions and sentences.


         Evidence in Jury Deliberation

         In her first assignment of error, Spruell argues that the trial court erred in ruling that the jury could review Nurse Brumley's written notes and the radiologist report from West Carroll Memorial Hospital during deliberation. She contends that allowing jurors to have access to this written testimonial evidence during deliberation, contrary to its explicit prohibition in La.C.Cr.P. art. 793, prejudiced her in the minds of the jurors and affected the verdict they reached, thus creating reversible error.

         The state argues that the submission of Nurse Brumley's notes and the radiologist report to the jury during deliberation was not error. It contends that the reports were exhibits that were part of M.P.'s medical records, not testimonial documents. It notes that the radiologist report was a defense exhibit that showed no subdural hematoma, i.e., no brain injury, at the time a CAT scan of M.P. was taken. Furthermore, the state asserts that any error in allowing the jury to have a copy of the documents was harmless in light of the evidence of Spruell's guilt.

         La. C. Cr. P. art. 793(A) provides, in pertinent part:

[A] juror must rely upon his memory in reaching a verdict. He shall not be permitted to refer to notes or to have access to any written evidence. Testimony shall not be repeated to the jury. Upon the request of a juror and in the discretion of the court, the jury may take with it or have sent to it any object or document received in evidence when a physical examination thereof is required to enable the jury to arrive at a verdict.

         Generally, a jury is not to inspect written evidence except for the sole purpose of a physical examination of the document itself to determine an issue which does not require the examination of the verbal contents of the document. State v. Zeigler, 40, 673 (La.App. 2 Cir. 1/25/06), 920 So.2d 949, writ denied, 06-1263 (La. 2/1/08), 976 So.2d 708, citing State v.Perkins, 423 So.2d 1103 (La. 1982). A jury can examine a written statement to ascertain or compare a signature or to see or feel it with regard to its actual existence but not to examine its verbal contents. State v.Zeigler, supra, citing State v. Perkins, supra. Louisiana courts have reversed convictions where the jury viewed a defendant's confession or written statement or re-examined verbal testimony during deliberations. State ...

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