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State v. Rosario-Colon

Court of Appeals of Louisiana, First Circuit

September 27, 2019

STATE OF LOUISIANA
v.
WALTER ROSARIO-COLON

          Appealed from the 32" d Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 735365 The Honorable Juan W. Pickett, Judge Presiding

          Joseph L. Waitz, Jr. District Attorney Ellen Daigle Doskey Assistant District Attorney Houma, Louisiana Counsel for Appellee State of Louisiana

          Bertha M. Hillman Covington, Louisiana Counsel for Defendant/Appellant Walter Rosario-Colon

          BEFORE: HIGGINBOTHAM, PENZATO AND LANIER, JJ.

          LANIER, J.

         The defendant, Walter Rosario-Colon, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. He pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He moved for a post-verdict judgment of acquittal and a new trial, but the motions were denied. He was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. He now appeals, contending the evidence was insufficient to support the verdict. For the following reasons, we affirm the conviction and sentence.

         FACTS

         On September 18, 2016, the defendant struck the victim, Antonio Aguado, with a pool cue/pool stick at Los Amigos, a bar in Houma. The pool cue entered the victim's skull and brain. Dr. Charles Joseph Ledoux, deputy coroner for Terrebonne Parish, performed the autopsy of the victim. Dr. Ledoux listed the victim's cause of death as severe open head injury, depressed skull fracture, and destruction of cerebral matter.

         At the time of his death, the victim was thirty-three years old, 5' 10" tall, and weighed 220 lbs. Dr. Ledoux indicated the victim had a 3 cm. (approximately 1.25 inch) "circular defect, " above and behind his left ear extending three or four inches into the intracranial cavity. Dr. Ledoux opined that the injury was consistent with being stabbed with a pool cue, adding that the victim's brain "kind of fell apart from the trauma." Dr. Ledoux did not find any evidence of injury consistent with being struck by a pool cue on the side of the victim's head.

         Dr. Ledoux testified that at the time of this incident, the victim had a blood alcohol concentration of 0.237 milligrams per deciliter. He indicated that this was not a lethal level, but would have resulted in impaired judgment, reduced alertness, and impaired muscular coordination.

         Dr. Ledoux agreed with the defense hypothetical that multiple blows to or dropping of the victim's head after the pool cue strike could have increased his chance of death, but only "if ... accompanied by brain damage." Dr. Ledoux also agreed, however, that if the victim's head had been pounded on the ground sufficient to cause additional brain damage, he would have suffered additional external injuries to his head. Dr. Ledoux found no additional external injuries to the victim's head.

         The trial court permitted Steven Gregory Lee to give general information on behalf of the defendant in the field of pathophysiology-the study of what happens to cells and tissues in disease states or secondary to trauma. After reviewing the victim's autopsy, Lee indicated the victim's brain was injured on the border of the parietal and temporal areas. Lee testified the parietal lobe is responsible for understanding language, behavior, memory, and hearing, but does not control any "life critical features." Lee indicated the victim's brainstem, however, appeared normal, noting that the brainstem controls breathing, blood pressure, heart beat, and swallowing. Dr. Ledoux explained that the "[b]rainstem is roughly speaking, where the brain goes into the spinal cord, at the base of the skull."

         Lee also testified that "predictable behavior" for someone with the victim's blood alcohol level of 0.237 would include judgment impairment, loss of balance, anger, possibly combativeness, lack of inhibition, and poor decision making. He also indicated, however, that alcohol affects people differently, and that drowsiness was also a general characteristic at the victim's blood alcohol level.

         Anthony Joseph Jurado was working as a DJ at the bar on the night of the incident. He exited the DJ booth when the defendant was screaming loudly at the victim. Jurado did not see the victim "swing at, or provoke" the defendant. According to Jurado, "[the victim] started to laugh and turned around to head towards the entrance door. [The defendant] raised the pool [cue] and he stuck it in his head. ... The cue-tip broke in half. It fell on the floor. The sticker [sic] part fell on the floor. The skinny part was inside his head."

         Filiberto Laria Mendez and his girlfriend, Anna Seguna, were with the victim at Los Amigos on the night of the incident. When they arrived at the bar, they sat at a table with Katherine Batista, the defendant's girlfriend, and bought a bucket of six beers. Mendez only heard the victim say "cheers" to Batista. He saw the defendant leave the pool table, talk to the victim at the table, and then return to the pool table. He denied the victim confronted the defendant, stating, "do we have a problem here?" Mendez indicated when they were about to leave, Nicia Fernandez, the owner of Los Amigos, came to the table, asked if everything was okay, and they answered affirmatively. He denied that the victim hit or pushed Fernandez, as the defendant claimed. Thereafter, the victim went to the defendant to say goodbye. Mendez stated the defendant did not want to say goodbye to the victim and hit the victim with the pool cue "from behind." He claimed the defendant hit the victim with the small end of the pool cue, and the ...


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