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State v. Lastrapes

Court of Appeals of Louisiana, Third Circuit

October 2, 2019



          Douglas Lee Harville Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Roman Joseph Lastrapes

          Roman Joseph Lastrapes Louisiana State Prison PRO SE DEFENDANT/APPELLANT: Roman Joseph Lastrapes

          John Foster DeRosier District Attorney, 14th Judicial District Karen C. McLellan Shelley A. Deville Assistant District Attorneys COUNSEL FOR APPELLEE: State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy H. Ezell, and John E. Conery, Judges.

          JOHN E. CONERY, JUDGE.

         On November 5, 2015, Defendant, Roman Lastrapes, was charged by bill of indictment with the first degree murder of Linda Moore, perpetrated during the commission of an aggravated rape, in violation of La.R.S. 14:30(A)(1). Defendant sought and was granted a waiver of his right to jury trial and was ultimately tried and convicted by the trial court on March 27, 2018 of the first degree murder of Linda Moore. Defendant sought a new trial, which was denied after a hearing. Defendant waived delays, and the court proceeded to sentence him on June 8, 2018. Defendant received the mandatory sentence of life imprisonment at hard labor to be served without the benefit of probation, parole or suspension of sentence. Defendant, through counsel, now appeals his conviction and sentence. Defendant also filed a pro se appeal of the trial court's ruling denying him the right to withdraw his waiver and exercise his right to a jury trial. For the following reasons, we affirm.


         Defendant and his then attorney, Mr. Robert Shelton, filed a motion for speedy trial and a "Motion to Waive Trial by Jury," which were both signed on November 10, 2016, and set for a November 28, 2016 hearing. The "Motion to Waive Trial by Jury" included Defendant's signature and the following passage: "ROMAN LASTRAPES, defendant, further states that he fully understands his right to a trial by jury and thus waives right [sic] knowingly, voluntarily, and intelligently."

         Defendant was not present at the November 28, 2016 hearing, but the trial court ordered the Clerk of Court to serve Defendant with certified copies of both motions. The attorneys and the trial court discussed the motion for speedy trial, noting the time delays would begin to run, but Defendant's new January 17, 2017 trial date was within the time delays allowed for a speedy trial motion.[1] At no point was the "Motion to Waive Trial by Jury" discussed. The assistant district attorney present stated that the District Attorney's Office had not yet indicated whether it intended to seek the death penalty. However, a later minute entry, dated January 4, 2017, indicated that the district attorney's office had communicated to Defendant's previous attorney, Mr. Shelton, that the State would not seek the death penalty in this matter.

         On December 1, 2016, the trial court granted the State's "Motion and Order to Fix Status Conference," setting the conference for December 12, 2016, to discuss a possible attorney conflict based upon Mr. Shelton's relationship to the victim. At the December 12, 2016 hearing, Mr. Shelton withdrew from representing Defendant based upon Mr. Shelton's relationship to the family of the victim. Additionally, the trial court ruled it would hold all filed motions in abeyance so that subsequent counsel could decide which motions he or she would like to adopt.

         The record reflects that Mr. Richard White from the public defender's office assumed Defendant's defense in July 2017. Subsequently, Defense counsel requested two continuances, which the trial court granted. The case was rescheduled for trial on March 27, 2018.

         On March 26, 2018, one day before the bench trial was scheduled to begin, Defendant and defense counsel sought to withdraw Defendant's jury trial waiver and sought a jury trial. Louisiana Code of Criminal Procedure Article 780(D) specifically states, "A waiver of trial by jury is irrevocable and cannot be withdrawn by the defendant."

         Defense counsel argued that Defendant had waived his right based upon the advice of Mr. Shelton, [2] that neither Defendant nor present defense counsel knew the strategic reason Mr. Shelton believed it was in Defendant's best interest to do so, and Defendant's present counsel did not agree with the decision to waive jury trial. The trial court deferred ruling on the mode of trial until the following day so that transcripts of prior pre-trial hearings held on October 3, 2016, November 28, 2016, and December 12, 2016, could be reviewed.

         On March 27, 2018, the trial court ruled Defendant's trial would commence as a bench trial, noting Defendant's waiver filed in November of 2016 was in proper form and was irrevocable under La.Code Crim.P. art. 780(D). Defense counsel objected, again noting he could not determine why Defendant's former counsel, Mr. Shelton, felt a bench trial would be in Defendant's best interest.

         Defendant's bench trial then began, and at the conclusion of the trial on March 29, 2018, the trial court found Defendant guilty of the first degree murder of Linda Moore stating in part:

The totality of the evidence, both circumstantial and scientific, exclude every reasonable hypothesis. The Court is convinced beyond a reasonable doubt that the defendant is responsible for the death of Linda Moore and as such he will be found guilty of first degree murder. As per Article 814 we need to -- or 873 -- I need to set a sentencing date.

         On June 8, 2018, Defendant filed a "Motion for New Trial," once more arguing his trial should have been a jury trial because the tactical reasoning for initially waiving his right to a jury trial was lost when Mr. Shelton died. He also asserted "it was particularly important that Defendant's female peers constitute part of such jury. Terry Welke, M.D., coroner for Calcasieu Parish, Louisiana, and clearly a witness with unmistakably pro-prosecution proclivities, offered certain evidence that likely would have been viewed as borderline absurd if heard by female jurors." Defendant summarized his argument by stating he was denied the effective assistance of counsel and his jury trial waiver should not have been considered irrevocable, despite the clear and unambiguous language of La.Code Crim.P. art. 780(D), because new counsel disagreed with prior counsel's strategy.

         At the hearing on the Motion for New Trial held the same day, defense counsel argued a bench trial adversely affected his ability to represent Defendant, "I feel like I ended up trying the case with one hand tied behind my back as a result, and I respectfully contend, Your Honor, that, consequently, Mr. Lastrapes was denied -- effectively denied right to counsel."

         The trial court denied the motion for new trial and defense counsel objected; however, Defendant waived delays and proceeded to sentencing. Defendant was sentenced to "life imprisonment at hard labor without benefit of probation, parole or suspension of sentence."

         Defendant now appeals his conviction and sentence. Through counsel, Defendant contends there was insufficient evidence to convict him, particularly arguing the State failed to prove Linda Moore's murder was not committed by either Paul Delafosse or Marlin Jenkins. Defendant raises an additional claim pro se that his right to a jury trial was denied when the trial court refused to allow Defendant to withdraw his waiver of jury trial. Defendant contends "he did not knowingly and intelligently waive his right to a jury trial." For the following reasons, this court affirms Defendant's conviction and sentence.


         Charles Hunter, Jr., Chief Investigator for the Calcasieu Parish Coroner's Officer with thirteen years of experience, was the first witness to take the stand. The court accepted Mr. Hunter as an expert in the field of death investigations without objection. He testified he was assigned to the crime scene once the coroner's office was informed Linda Moore's body had been found. Mr. Hunter identified numerous photographs he had taken of the scene. Mr. Hunter testified that based on blood found in multiple areas between the street and where the victim's body was found, it was his opinion Ms. Moore was attacked outside of the alleyway and forced into the alleyway by her attacker.

         Based upon the liquidity of bodily fluid which was located on Ms. Moore's buttocks, Mr. Hunter testified he believed the victim's body had not moved since said bodily fluid was deposited. Mr. Hunter noted he took a swab of the fluid which was subsequently sent off for DNA testing. Mr. Hunter noted there were blue jeans laid on the ground directly in front of Ms. Moore's body, which he felt were likely placed there so that her assailant could sexually assault her without injuring his knees. Mr. Hunter also noted there was broken glass on the ground near the victim's body. He further testified that there was residue on Ms. Moore's hands which matched the nearby shed, likely an indication of a struggle.

         Mr. Hunter testified Ms. Moore had a number of facial injuries consistent with blunt force trauma from a fist and noted the evidence indicated she was still alive and breathing when she sustained her injuries, which included a fracture of her nose where the bone was actually exposed. He also noted there was a linear pattern on Ms. Moore's face that was consistent with her sweatshirt being pulled over her head and no movement from where she was assaulted. Mr. Hunter also noted there were broken bottles and pools of blood on the ground, which became visible once Ms. Moore's body had been removed, indicating she did not move from that location and she did not willingly lay down on the ground.

         Mr. Hunter testified that he would expect the assailant would have abrasions or lacerations on his hands if he indeed used his fists to assault Ms. Moore. He again confirmed his opinion that Ms. Moore's body did not move from where she was beaten. He further opined Ms. Moore was likely incapacitated from her injuries.

         On cross-examination, Mr. Hunter testified there was no evidence Ms. Moore's body was dragged at any point. Mr. Hunter acknowledged he was at some point informed the name Marlin Jenkins had become a part of the investigation, but noted he never interviewed Mr. Jenkins, nor could he have picked him out of a lineup. Mr. Hunter testified he did not believe Ms. Moore's body was posed for effect. He then reiterated the placement of the body, the state of Ms. Moore's clothing, and the bodily fluid dripping down her buttocks was consistent with her being sexually assaulted in the exact location where she was found.

         Dr. Terry Welke, the coroner for Calcasieu Parish, was accepted as an expert in forensic pathology. Dr. Welke testified that Ms. Moore's death was a homicide resulting from blunt force injuries of the head. Dr. Welke testified as to the contents of his autopsy report, which included the following description of facial injuries:

Lacerations (skin tears) are: on the mid-forehead, 1-3/8 inches; between the eyes, 1/8-inch; left bridge of nose, V-shaped, 3/8 x 3/8-inch; mid-portion of the lower lip, 3/16-inch. Bruises involve: right forehead; left and right, eye orbits; left jaw. Abrasions (scrapes) involve: mid-forehead, 1-1/2 x ¾-inch in greatest dimension; outside of the left eyebrow, 3/8 x 3/16-inch. There are numerous broken bones (fractures) of the face: nasal bone; left and right eye orbits; maxilla (bony portion of upper mouth holding the teeth). As a result of the aforementioned injuries, there are bruises involving the white portion (sclera) of each eye. Internally: Pink foam is in the voice box (larynx); blood is in the windpipe and lower airways (trachea/bronchi); the lungs are heavy and blood-filled; blood is in the stomach. Blood is present on the undersurface of the scalp overlying the back of the head (occiput); the injury is predominantly greater on the right side.

         Dr. Welke also noted he found "intact non-motile sperm" in Ms. Moore's vagina. He opined that indicated sexual activity was relatively recent, as sperm only remain intact for around sixteen hours in a live person, and Dr. Welke noted the time would be lessened for someone who died shortly after intercourse. When asked how he believed Ms. Moore died, Dr. Welke opined:

In my mind's eye I felt that there was an assault, meaning a physical assault of some -- near the scene, and then Ms. Moore had become incapacitated but still alive, and, basically, placed on the ground or fell backwards on the ground, and then additional injuries occurred to her face, and then the sexual activity occurred. And I felt that due to the position of the body that the legs were probably over the shoulders of the assailant, and then after the orgasm had occurred, the assailant basically had taken Ms. Moore's legs and then basically pushed them off his shoulders, and then that's why they were in the position of being on the wall.

         When asked if he thought someone could have left the semen in Ms. Moore in a different location, Dr. Welke responded "I say the attack occurred at the scene." He also stated that it was his expert opinion the person who deposited ...

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