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State v. Degregory

Court of Appeals of Louisiana, Fourth Circuit

June 12, 2019

STATE OF LOUISIANA
v.
CRISTIAN DEGREGORY

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 525-330, SECTION "G" Honorable Calvin Johnson, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu Chief of Appeals Irena Zajickova Assistant District Attorney COUNSEL FOR THE STATE OF LOUISIANA/APPELLEE

          Holli Herrle-Castillo LOUISIANA APPELLATE PROJECT COUNSEL FOR APPELLANT/DEFENDANT

          Court composed of Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Paula A. Brown

          REGINA BARTHOLOMEW-WOODS JUDGE

         Defendant-Appellant, Cristian DeGregory ("Defendant"), appeals his conviction, by jury trial, of second degree cruelty to a juvenile, a violation of La. R.S. 14:93.2.3. In this appeal, Defendant raises several assignments of error, which we find lack merit. For the reasons that follow, we affirm Defendant's conviction and amend Defendant's sentence to remove the restriction of his parole eligibility. In all other respects, Defendant's sentence is affirmed.

         STATEMENT OF THE CASE

         On June 25, 2015, the State filed an indictment charging Defendant with second degree cruelty to a juvenile, a violation of La. R.S. 14:93.2.3.[1] On July 22, 2015, Defendant appeared for arraignment and entered a plea of not guilty. Defendant filed motions to suppress evidence and statement. On March 31, 2016, the district court heard these motions, and on April 25, 2016, denied both of them.

         Trial by jury began on June 13, 2017, and concluded on June 15, 2017; the jury returned a verdict of guilty as charged. On June 23, 2017, the district court sentenced Defendant to forty (40) years imprisonment at hard labor. On that same date, the State filed a bill of information charging Defendant as a multiple offender;[2] Defendant pled not guilty. On July 7, 2017, Defendant filed a motion to reconsider sentence. On November 21, 2017, the district court, in consideration of the pending multiple bill hearing, denied as moot Defendant's motion to reconsider.

         On January 12, 2018, Defendant filed a motion for a new trial, which the district court denied. On that same date, the district court held the multiple offender hearing. On January 26, 2018, the district court ruled Defendant a second offender, [3] and vacated Defendant's sentence and resentenced Defendant to fifty (50) years imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. It is from his conviction and sentence that Defendant now appeals.

         STATEMENT OF THE FACTS

         At the beginning of the jury trial, the State called Sergeant Merrell Merricks, the Custodian of Records for the New Orleans Police Department ("NOPD"). Simultaneously, the State published to the jury Defendant's call to dispatch Emergency Medical Services ("EMS"). During the call, Defendant requested emergency assistance for a six-year-old male child who was experiencing a seizure.

         Next, the State called New Orleans Emergency Medical Technician Theodore Andressen ("EMT Andressen"), who testified that on May 25, 2015, he was dispatched to a home located in New Orleans, and upon entry into the residence, he noticed Defendant[4] standing near a young boy who was "sprawled out on the floor," unconscious and not moving. Defendant reported to EMT Andressen that the young boy's three-year-old sister had hit him in the head with a metal lunchbox. EMT Andressen observed that the young boy had a black eye and bruises, which prompted him to call law enforcement. After placing the young boy in the ambulance and cutting off his clothes, EMT Andressen observed that the child was emaciated with a distended stomach, had cigarette burns, and his teeth had been recently knocked out or were broken. The young boy was in critical condition and transported to Children's Hospital.

         Additionally, the State called Richard Fredrick ("EMT Fredrick"), a paramedic in Baton Rouge.[5] EMT Fredrick[6] explained that when he arrived, he observed a "young child, male, unresponsive" in critical condition with "irregular and rapid" breathing with periods of apnea - symptoms of a "traumatic event" as opposed to a seizure.[7] After completing a physical examination of the young boy, EMT Fredrick noted a "left nystagmus gaze, abdominal distention, and irregular respirations." EMT Fredrick also noted "multiple various stage bruising to [his] head and face" associated with blunt force and a "clubbed boxer life appearance"[8]to both ears, and superficial abrasions to both his hands and face. Ultimately, EMT Fredrick testified that he had "no doubt that [the] child would have died that day" without medical intervention.

         The State next called NOPD Officer Matthew White ("Officer White"), a child abuse detective to testify.[9] Officer White stated that on May 25, 2015, he was dispatched to Children's Hospital in response to an unconscious victim, L.S., [10]where he first spoke to the head nurse, and then to the EMTs who treated and transported him. Officer White also requested that the Crime Lab come to the hospital to photograph L.S.'s injuries. Thereafter, Officer White interviewed L.S.'s mother and relocated to L.S.'s residence where he encountered Defendant and L.S.'s younger sister; Officer White then relocated all three individuals to the NOPD Child Abuse Office. At the office, Officer White and NOPD Detective Tania Pruitt interviewed Defendant.[11] During the interview, Defendant attributed L.S.'s injuries to his younger sister hitting L.S. with toys and slamming the lid of a toy box on L.S.'s hands. A search warrant was executed on the residence to "obtain any evidence pertaining to the injuries that were discussed" by Defendant during the interview; a trash bag, containing blood-stained gauze, paper towels, Q-tips and a sheet, was recovered.

         NOPD Detective Eddie Williams ("Detective Williams"), who, at the time of the trial, was assigned to the digital forensics unit, [12] testified next. In connection with the child abuse investigation, Detective Williams processed and generated a data report on five (5) mobile phones that contained photos and videos of L.S.

         Next, the state called Dr. Jamie Jackson, an expert in pediatric medicine, who testified that since 2010, she has worked at the Audrey Hepburn Care Center at Children's Hospital and consulted on forensic interview administered to children who are suspected of being abused; she participated as a consultant in L.S.'s forensic interview. According to Dr. Jackson, L.S. was brought to the emergency room, intubated to stabilize his breathing, and received a craniotomy[13] and X-rays;[14] Dr. Jackson explained that L.S.'s injuries signaled child abuse because such injuries require external force inconsistent with an accidental fall. Despite the fact that Defendant reported that L.S. experienced previous seizures, Dr. Jackson testified that L.S.'s medical records provided no indication that L.S. had a history of seizures.[15] While testifying, the State showed Dr. Jackson photographs of L.S.'s injuries. Dr. Jackson identified the following injuries: healing injuries (abrasion, laceration, or possibly a burn) to his lips, missing teeth, lacerations across his nose, bruising and swelling on both the left and right eyes, a gash on the left side of his face, a healing bite mark on his back, head lice, thin and malnourished appearance, repeating pattern of burn marks, cuts and abrasions to some toes, hyperpigmentation or healing bruises ("different marks all over"), avulsed or torn off fingernails, injuries to his hands and forearms, swelling and a curvature to the arm indicating an underlying injury to the arm (an acutely fractured humerus that required resetting), scraped skin, and a boxer's or wrestler's cauliflowered right ear, as well as bruises and abrasions on the left ear, [16] and symmetrical burns on both wrists and hands.

         Next, Kimberly Gambel, an occupational therapist[17] at Children's Hospital, testified that on June 2, 2015, after L.S. had been medically stabilized, she began working with him. According to Ms. Gambel, L.S. was "tearful . . . hesitant of being moved or touched," required "total assistance to sit up, total assistance to hold up his head," and could only move the left side of his body. During therapy, L.S. had to learn to dress himself and use the toilet. Ms. Gambel further testified that when L.S. was discharged from therapy on September 2, 2015, he still required assistance with self-care tasks such as dressing, grooming, bathing, using the toilet, feeding himself, and walking (L.S. could "ambulate only short distances of about 50 feet").

         The State then called NOPD Detective Tyra Pruitt, who, at the time of the underlying incident, was assigned to Child Abuse as part of the Special Victims' Unit.[18] Detective Pruitt interviewed Defendant on the day of the incident.[19]Defendant told Detective Pruitt that L.S.'s injuries were caused by a radiator, a Nerf gun, and hot water; Detective Pruitt did not believe Defendant because the injuries were too severe. On cross-examination, Detective Pruitt affirmed that she was "firmly convinced that those injuries were not caused by the three-year-old," L.S.'s younger sister.

         Thereafter, the State called Matteo Avocato, a paramedic with the City of New Orleans, who testified that he was dispatched to L.S.'s home on May 10, 2015, in response to a breathing problem, but upon his arrival at the residence, Defendant cancelled the call. Consequently, Paramedic Avocato did not have contact with the patient.

         Finally, the State called Linda Amos, L.S.'s adoptive mother.[20] According to Ms. Amos, prior to his injuries, L.S was a healthy, active child.[21] Ms. Amos recounted that L.S. was in a coma, hospitalized for three (3) months, paralyzed on his right side, and had to complete physical, occupational and speech therapy. Until his release from the hospital, L.S. was in a wheelchair, had to be carried everywhere, and had to wear diapers. Ms. Amos explained that now L.S. can walk, but wears a brace on his right leg and sometimes drags his right foot; wears a helmet to protect his head in case he falls; has a learning disability caused by his traumatic brain injury, which causes him to forget; does not have use of his right arm and had to learn to write with his left hand instead of his right hand; and is receiving physical and speech therapy.[22]

         At the conclusion of Ms. Amos' testimony, the State rested, and the jury exited the courtroom. Defense counsel then moved for a mistrial, [23] and the district court denied that motion. Defense counsel called Defendant to testify as the sole witness. Defendant conceded that in 2007, he had been convicted of possession of stolen property, a felony.[24] Defendant also conceded that he pled guilty to a misdemeanor, torturing animals.

         Defendant testified that on one occasion, he and L.S.'s mother discovered that L.S. was bleeding from his nose and mouth after L.S.'s younger sister had hit him with a Nerf gun. As a result, L.S. suffered loose teeth, inner-mouth abrasions, and a swollen nose, which they treated with a mixture of mouthwash and hydrogen peroxide. Defendant stated that in February 2015, L.S. suffered a 101° fever, and a few weeks later was ill again. According to Defendant, L.S. was treated with a hot compress that burned and blistered his neck.[25] Defendant also recounted an incident in which L.S.'s younger sister struck L.S. in the face with a metal lunchbox causing a gash under his left eye; according to Defendant, L.S.'s mother treated that wound with hydrogen peroxide and medical, adhesive strips.[26]

         According to Defendant, L.S., while exiting the bathtub, slipped, fell, and hit his head on the radiator. A few days later, L.S. experienced his first seizure, and Defendant requested emergency assistance; it was on this occasion that Defendant cancelled the ambulance call before the paramedic could treat L.S. On the following day, L.S.'s ear was red and swollen. Defendant testified that he was unaware of the severity of L.S.'s various injuries. According to Defendant, on May 25, 2015, L.S. suffered a seizure as Defendant was putting him to bed.

         On cross-examination, Defendant explained that although he is not L.S.'s biological father, he felt responsible for his care. Defendant was unable to take L.S. for medical treatment because he did not have a car[27] and did not know L.S.'s medical insurance information, but he encouraged L.S.'s mother to bring L.S. for medical treatment. The Defense rested after Defendant's testimony.

         DISCUSSION

         Errors Patent

         In accordance with La.C.Cr.P. art. 920, [28] we have reviewed this appeal for errors patent. A review of the record revealed one error patent. Upon sentencing Defendant as a habitual offender, the district court restricted the benefit of parole when imposing a sentence of fifty (50) years. During the sentencing, the district court stated, "Any sentence of [sic] the court hands down under the habitual offender statute is to be served at hard labor without the benefit of parole, probation or suspension of sentence." However, La. R.S. 15:529.1(G), which is applicable to sentences imposed on second and subsequent offenders, provides that the sentence imposed "shall be at hard labor without benefit of probation or suspension of sentence." Here, the district court erred in restricting Defendant's parole eligibility. See State v. Falkins, 2012-1654, p. 29 (La.App. 4 Cir. 7/23/14); 146 So.3d 838, 856-57. Accordingly, we amend Defendant's sentence to remove the restriction of his parole eligibility.

         Assignments ...


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