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Date: 05-14-2021
Case Style:
STATE OF LOUISIANA VERSUS MICHAEL DAN ROBERTS
Case Number: KA -0020-0265
Judge: Judge John E. Conery
Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: Honorable Asa A. Skinner
District Attorney
Defendant's Attorney:
Criminal Defense Lawyer Directory
Description:
Lake Charles, LA - Criminal defense attorney represented Michael Dan Roberts with a felony domestic abuse battery by strangulation charge.
According to Mrs. Roberts’testimony at trial, she and Defendant were at
home in Vernon Parish on the morning of the offense, March 20, 2018, when
Defendant began drinking beer after having his morning coffee.
1 Mrs. Roberts explained that she and Defendant had divorced by the time of trial.2
Mrs. Roberts noted she worked from her home office2
for a few hours that
morning before she and Defendant left the house for a meeting with an attorney. She
testified that they first stopped at the American Legion in Leesville. The couple
stayed for roughly an hour, during which time Defendant drank three beers. Mrs.
Roberts testified that, after spending about forty-five minutes at the lawyer’s office,
Defendant drove them to the Daiquiri Station, arriving “between two and 2:30,
roughly.” Mrs. Roberts explained that Defendant had more than three beers there.
They then left because she wanted to greet their daughter, Cameron, as she arrived
home from school. Mrs. Roberts noted that Defendant was getting agitated about
wanting to play cards at the Daiquiri Station during the drive home. After returning
home, to drop off Mrs. Roberts, Defendant immediately went back to the Daiquiri
Station to play cards. He left the house before 3:30 p.m.
Mrs. Roberts noted she and Cameron were in her home office when Defendant
returned around 6:30 p.m. She explained that when Defendant returned, he was
smiling, he wavered a little bit in his stance, and his eyes were red. She also noted
he was “a little fumbly” when he got out of the truck. Having been married to
Defendant for six years at that point, Mrs. Roberts believed that Defendant had
continued drinking while he was gone. Mrs. Roberts noted he stayed in the home
office with her and Cameron for a few minutes, joking with them.
After he returned to the living room to watch television, Mrs. Roberts and
Cameron approached Defendant to discuss his drinking. When Defendant profanely
responded, Cameron began to cry. Mrs. Roberts explained that Defendant then
2 Noting she has a master’s degree in nursing and education, Mrs. Roberts stated that, at
the time of trial, she was on long-term leave for post-traumatic stress disorder (PTSD) and
traumatic brain injury. She testified that prior to her leave beginning in March 2019, she had been
a senior clinical consultant for a health insurer.3
pointed at Cameron and told Mrs. Roberts, “‘You know what she thinks of you? She
hates you. She wishes you would leave.’” Mrs. Roberts testified Defendant tried to
hug Cameron, who resisted, at which point he picked her up and “put her very
roughly on the couch and then s[a]t on her[,]” which led to Cameron begging him to
get off. Mrs. Roberts testified that after she stood up, Defendant likewise stood up,
and she put her arm up to defend herself.
According to Mrs. Roberts, Defendant then went outside to the back porch.
She followed him, and he began to repeatedly curse her. Mrs. Roberts testified that,
at that point, Defendant grabbed her with both hands near her shoulders and upper
body and slammed her onto the tile floor. She explained that she landed on her back
with Defendant on top of her, punching her and calling her names. Mrs. Roberts
stated that after hitting her repeatedly, Defendant placed his forearm against her
throat and put all his weight on his forearm. She testified she felt like she was dying
because she could not breathe. She testified that Defendant twice pushed his forearm
into her neck and throat, impeding her breathing.
Mrs. Roberts explained that the couple continued to struggle, with Defendant
placing his hands on her throat, punching her, and slamming her head against the
floor. Mrs. Roberts stated that she managed to stand, at which point Defendant threw
her to the ground again and continued choking her with his hands. She noted
Defendant eventually pressed his shin and knee against her throat, again preventing
her from breathing. She testified that she was finally able to get Defendant off her,
at which point he returned to the living room where Cameron had been when the
attack started. Mrs. Roberts testified that she was unable to stop Defendant from
going back to the living room, stating he again picked her up and slammed her onto 4
the kitchen floor before kicking, punching, and strangling her until she became
unconscious.
Mrs. Roberts testified that the last things she remembered before passing out
were that Cameron had hidden, that she felt she was going to die, and that Defendant
kicked her in the head. The next thing she remembered was her neighbor, Dawnn
Rommes, standing over her in the kitchen.
The neighbor, Ms. Rommes, also testified at trial, explaining that she became
involved in the matter after finding Cameron upset in the front yard and seeing
Defendant leave the home in his vehicle. When Cameron informed Ms. Rommes
that her parents were fighting, Ms. Rommes sent Cameron into the Rommes’ home
and told her to lock the door. Ms. Rommes then entered the Roberts’ home, finding
Mrs. Roberts “laying on the kitchen floor.” After Ms. Rommes called 911, Acadian
Ambulance arrived, placed Mrs. Roberts in a C-spine with a collar, started I.V.s, and
moved her into an ambulance. Mrs. Roberts was taken to Byrd Regional Hospital,
where she later spoke with Deputy Sullivan of the Vernon Parish Sheriff’s Office. 3
In addition to taking her statement,4 Deputy Sullivan also took photographs of Mrs.
Roberts’ wounds.5
3 Ms. Rommes’ statement to authorities indicated:
I entered their home & saw Jen curled on the floor, trying to use her phone – which
couldn’t work w/her knuckle. She had visible abrasions on her mouth, both arms
& neck (chest) areas. She said she couldn’t move & I told her to stay still, as I
called 911.”
4 Mrs. Roberts noted that Deputy Sullivan had to write her statement for her because her
vision was impaired following the blows to her head.
5 Referencing those photos at trial, Mrs. Roberts noted she had numerous hematomas on
her head and numerous marks on her neck and throat area, including a mark just below her
windpipe that she believed was caused by Defendant’s putting his boot on her neck. Mrs. Roberts
testified that she has several ongoing medical and mental ailments as a result of the attack. 5
The record indicates that Defendant was arrested two days following the
incident. On July 10, 2018, the State initially charged Defendant with one count of
misdemeanor domestic abuse battery against his wife, a violation of La.R.S. 14:35.3.
The State subsequently filed a September 17, 2018 amended bill of information
charging Defendant with felony domestic abuse battery by strangulation, a violation
of La.R.S. 14:35.3(A) and (L). After Defendant waived his right to a jury trial in
May 2019, the matter proceeded to a bench trial in October of that year.
At trial, in addition to Mrs. Roberts’ testimony and photographs taken at the
hospital, the State entered a purported video of the altercation into evidence at the
bench trial. Mrs. Roberts explained that she recorded the footage of the attack from
an eight-camera security system installed by Defendant about five weeks before the
offense. Mrs. Roberts explained that she provided the recording to Detective
Rhonda Jordan with the Vernon Parish Sheriff’s Office. As addressed further below,
Defense counsel objected to the introduction of the video of the incident, claiming
it had no idea the video was recorded by the victim and not obtained by the Sheriff’s
Office on its own. The court, however, admitted the video and stated:
All right, the testimony shows that it is the -- the same or
substantially the same as it was. I know there’s some technical
difficulties and this -- this system did not actually have a disc that
should be taken out. So, I am going to allow it. I will note your
objection for the record, Mr. Fontenot.
Upon the State’s playing of the video--which depicted the attack up to the point
where the couple returned to the interior of the home—Mrs. Roberts confirmed that
the video accurately depicted what happened on March 20, 2018, and verified
Defendant was the person attacking her.
Defense counsel challenged the sufficiency of the State’s evidence, in part by
questioning Mrs. Roberts at length about why she used the phrase “impeded [her]6
breathing” in court when she did not use that phrase in her prior statements, and
pointed out that x-rays taken at the hospital did not show any breaks. Defense
counsel also questioned Mrs. Roberts’ own actions that evening, asking why she
followed Defendant outside on the back porch, why she thought it was a good idea
to confront Defendant about his drinking while he was drunk, and insinuating that
she followed him outside simply because she knew there were cameras on the porch.
Defense counsel then posed a series of questions regarding Mrs. Roberts’ behavior
after the attack, including reports she made to the FBI, attempts to have him removed
from his Masonic Lodge, and an incident in which she blocked Defendant’s vehicle
in a parking lot. Defendant also raised questions regarding Mrs. Roberts’ behavior
during a court-ordered custody evaluation performed during the couple’s divorce
proceeding.
On redirect, Mrs. Roberts noted that while she did not explicitly use the word
“impede” in her statements to police, she considered her comments to Detective
Sullivan that Defendant choked her and stood on her throat with his boot to be
actions which impeded her breathing. The State rested after the conclusion of Mrs.
Roberts’ testimony. Defense counsel then moved for a judgment of acquittal,
stating:
[T]he only person who has testified in this Court that her breathing was
impeded is the victim. We have had a number of documents introduced
into evidence from the hospital, none of which indicate a loss of
consciousness or any report by the victim that she couldn’t breathe.
And in fact most of the test -- not most, all of the tests that were run --
run by the hospital show no evidence that she ever at any time had any
difficulty breathing.
The trial court denied the motion.
In response, Defendant called several witnesses and offered documentary
evidence in support of his position that Mrs. Roberts’ trial testimony regarding her 7
breathing being “impeded” was contradicted by hospital records and investigative
statements. Defendant also called a witness regarding Mrs. Roberts’ behavior after
the incident, including an incident in which Mrs. Roberts allegedly blocked
Defendant’s vehicle at a local restaurant, and events surrounding the abovereferenced court-ordered custody evaluation by Ms. Robin Miley, a licensed
professional counselor.
Ms. Miley, accepted by the trial court as an expert in custody evaluations,
testified that she and Mrs. Roberts initially met, along with Cameron, and Mrs.
Roberts agreed to let Ms. Miley conduct an interview with Defendant and Cameron.
However, on the day of the evaluation, Ms. Miley noted that a Mrs. Faircloth called
and spoke with Ms. Miley’s office manager and explained that there was a protective
order in place as well as charges pending against Defendant, so Ms. Miley called
Defendant and told him not to come, instead meeting with just Cameron. Ms. Miley
testified that she informed Mrs. Roberts’ mother, who had accompanied Cameron,
that she intended to call Defendant during the interview, at which point she was told
an arrest was planned if Defendant showed up at Ms. Miley’s office. Ms. Miley
testified that during the phone call with Defendant, Ms. Miley never felt Cameron
was afraid to be around Defendant.
Ms. Miley noted that Mrs. Roberts reported being “sexually abused when she
was 11 years old and again recently. Physically assaulted as a teenager and over the
past six years.” Ms. Miley testified that she “felt that Ms. Roberts truly believed that
she had been a victim of domestic violence[,]” but noted that Mrs. Roberts never
told her she was unable to breathe or that her breathing was impeded during the
subject attack. Ms. Miley testified that Defendant reported to her that he told Mrs.
Roberts prior to the March 20, 2018 attack that he was planning to divorce her and 8
that she was opposed to divorce; however, Ms. Miley did not discuss the issue with
Mrs. Roberts. Ultimately, Ms. Miley felt that both parties needed some
psychological evaluation before she could make any recommendation as to custody.
On cross-examination, Ms. Miley confirmed that she did not speak to Mrs.
Faircloth or Mrs. Roberts on the day of the interview with Defendant, simply that
her office manager had spoken to Mrs. Faircloth. She also noted that no one ever
told her the police had been called on Mr. Roberts and that law enforcement never
contacted her regarding Mr. Roberts. Ms. Miley also noted that she was concerned
with both the domestic abuse allegations against Defendant and his alcohol use,
noting that Mr. Roberts was not as concerned about his alcohol use as he considered
himself a “social drinker.” She acknowledged, however, that Cameron stated
Defendant’s temperament was worse when he was drunk. Ms. Miley noted she felt
Defendant increased his alcohol use after losing his job because he was bored, was
self-medicating, was depressed, and was compensating for lack of control in his life.
She also noted Defendant indicated he was still drinking at the time of the evaluation.
Defense counsel also called Ms. Rommes, the neighbor who found Mrs.
Roberts on the kitchen floor. Ms. Rommes testified that she had lived across the
street from Mrs. Roberts and Defendant for four years prior to the attack, and she
and Mrs. Roberts had a sister-like connection at that time. Ms. Rommes testified,
however, that she and Mrs. Roberts were no longer friends, in part because of things
that Mrs. Roberts had said about that evening. While she confirmed that Mrs.
Roberts had shown her the video recording and that it “pretty much sums up
everything” as to what she was initially told, other statements from Mrs. Roberts on
“Facebook Messenger” caused her concern. Ms. Rommes explained that:9
[T]he first time that I had heard … a scenario that Michael had hurt
Cameron that night … Jennifer had sent out a mass text on Facebook
Messenger and it detailed what she said happened that night and I didn’t
agree with it because Cameron would have told me. I was very close
with Cameron, she would have told me something.
On cross-examination, Ms. Rommes confirmed that she gave a voluntary statement
to law enforcement wherein she stated that Cameron was hysterical, crying that her
father was hitting her mother, and that when she found Mrs. Roberts on the floor,
Mrs. Roberts could not move very well and had bruises and abrasions around her
neck, mouth, and arms.
After the defense rested its case, the trial court found “beyond a reasonable
doubt that the State did prove each and every element of the crime charged and
[found] the defendant guilty of felony domestic abuse battery by strangulation.” On
January 21, 2020, the parties entered a stipulation that Defendant would be required
to pay Mrs. Roberts restitution in the amount of $24,475.00.
The trial court thereafter sentenced Defendant as follows:
[I]t is the sentence of the Court, that on felony domestic abuse battery,
you serve three years at hard labor with the Louisiana Department of
Corrections and pay a fine of $500 plus court costs. I am going to
suspend two years of that sentence. After you are released from prison,
you will be placed on supervised probation for a term of three years
subject to the general conditions of probation and the following special
conditions. Pay the fines, restitution of $24,475 to Jennifer Roberts,
and court costs per month on a pay plan through the probation office.
Pay supervision fee in the amount of $60 per month plus five dollars
and fifty … cents per month to the Sexo-Tech Fund. Complete a courtapproved domestic abuse intervention program. It’s also gonna be the
order of the Court that you not own or possess a firearm throughout the
entirety of the sentence. It’s also the order of the Court that after you
are released from prison, you will attend and complete a substance
abuse evaluation and whatever treatment is recommended. I’m also
gonna order that you not have any contact with Jennifer Roberts. And
when I say “any contact,” I mean any contact. You are not to drink
any alcoholic beverage or step foot in any business whose primary
business is the sale of alcohol while on probation. You’re gonna
comply with Code of Criminal Procedure Article 895(A).10
ASSIGNMENTS OF ERROR
Defendant appeals his conviction, assigning the following as error:
1. Appellant contends that the evidence is insufficient and failed to
establish [] an essential element of the crime charged herein.
2. The Trial Court erred in admitting video from victim’s phone
into evidence.
Errors Patent
In addition to the two assignments addressed in his appellant’s brief,
Defendant also seeks review for errors patent on the face of the record, a review this
court conducts as a matter of course pursuant to La.Code Crim.P. art. 920. Following
that review, we find one such error and further determine that the court minutes are
in need of correction.
The error pertains to the trial court’s conditions of probation; namely, the
order that Defendant make restitution to Mrs. Roberts in the amount of $24,475.00,
and to pay a fine of $500.00 and court costs. The trial court ordered these to be paid
“per month on a pay plan through the probation office.”
However, when such payment plans are determined by the Office of Probation
and Parole, trial court approval is required. In State v. Stevens, 06-818, pp. 3-6
(La.App. 3 Cir. 1/31/07), 949 So.2d 597, 599-601, this court stated:
Upon reconsideration, we find nothing in the statute which
prohibits the trial court from seeking assistance from outside sources,
including Probation and Parole, in formulating the appropriate payment
plan. In fact, Probation and Parole may be in a better position to
formulate a workable payment schedule than is the trial court. In taking
advantage of this assistance, the trial court in no way cedes its
responsibility to impose the payment plan, and it only becomes
effective upon approval of the trial court.
. . . .
Defendant’s sentences are affirmed. . . . We remand the case to
the trial court with the instruction that the court impose a payment plan 11
for restitution and for payment of the Indigent Defender Board which
complies with the requirements of La.Code Crim.P. art. 895.1(A) and
this opinion. We reiterate that the plan may either be determined by the
trial court or be formulated by Probation and Parole and approved by
the trial court.
Accordingly, as the trial court in this case anticipated that the plan would be
formulated by the Office of Probation and Parole, we remand this matter to the trial
court with directions to make certain the plan has been formulated and for its
approval of that plan once formulated.
The trial court minutes of sentencing also require correction. The sentencing
transcript reveals Defendant was placed on probation for a period of three years
while the sentencing minutes indicate this period was two years. “[W]hen the
minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-
137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.
9/21/01), 797 So.2d 62. Accordingly, the trial court is ordered to correct the court
minutes of sentencing to accurately reflect that the term of Defendant’s probation is
three years.
Assignment of Error Number 1 – Sufficiency of the Evidence
In his first assignment of error, Defendant contends there is insufficient
evidence to support his conviction because he claims the State failed to prove that
as a result of his conduct, “the victim’s breathing or circulation of blood was
impeded by him applying pressure to the neck or throat.” Defendant also contends
that, aside from Mrs. Roberts’ testimony and the video of the incident, “[n]o other
evidence was presented by the State to support Mrs. Roberts[’] contention that the
conduct of [Defendant] impeded her ability to breath.”
The photographs of Mrs. Roberts, however, taken at the hospital hours after
the attack, clearly show bruising and damage to her neck and throat area. 12
Additionally, Mrs. Roberts testified extensively regarding Defendant’s use of his
weight against her neck, impeding her breathing.
The analysis for insufficient-evidence claims is well settled:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979), State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
Undermining Defendant’s contention that the evidence is insufficient as it is
based primarily on the victim’s testimony, the supreme court has explained:
A victim’s or witness’s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. State v. Davis, 02–1043, p. 3 (La.6/27/03); 848 So.2d 557,
559. In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the fact
finder, is sufficient support for a requisite factual conclusion. State v.
Robinson, 02-1869, p. 16 (La.4/14/04), 874 So.2d 66, 79.
State v. Dorsey, 10-216, pp. 43-44 (La. 9/7/11), 74 So.3d 603, 634, cert. denied, 566
U.S. 930, 132 S.Ct. 1859 (2012).
Defendant was convicted of domestic abuse by strangulation under La.R.S.
14:35.3(A) and (L). Strangulation is defined under La.R.S. 14:35.3(B)(7) as
“intentionally impeding the normal breathing or circulation of the blood by applying 13
pressure on the throat or neck or by blocking the nose or mouth of the victim.”
Defense counsel did not refute the evidence of the attack itself but claimed that the
State’s evidence was insufficient as Mrs. Roberts did not use the phrase “impeded
her breathing” until trial. The trial court clearly rejected this argument and stated:
It was brought up on numerous occasions that Ms. Roberts never said
the word impeded in any statement. The Court can tell you that, using
my commonsense, I’ve also never used or heard the word impeding
routinely used in conversation. I have heard or used the word choked
or strangled. When I looked at the Byrd records, Ms. Roberts said -- or
the record says, “The patient complains of pain to the throat and neck.
She stated that he stood on her neck.” The assessment was, “There was
tenderness present in the neck.” Her statement said, “He choked me,
then stomped me in the throat area. He then stood on my throat grinding
his foot into my throat.” I then read Deputy Sullivan’s report where she
reported him “punching her in the face and choking her.”
In ruling, the trial court referenced both the video of the attack and the
photographs of the victim taken shortly after the attack. In particular, the judge
explained that the video confirmed Mrs. Roberts’ claims that Defendant held her
down by the neck multiple times, including putting his knee and shin across her
neck. Pursuant to Dorsey, the video is actually not necessary to find the State met
its burden of proving beyond a reasonable doubt Defendant impeded the breathing
of the victim during his attack. Defendant’s argument regarding the admissibility of
video is thus not determinative.
In particular, there is no internal contradiction or irreconcilable difference
between Mrs. Roberts’ testimony regarding the attack and the physical evidence.
Despite Defendant’s claim that the hospital tests show no damage to her neck, the
evidence indicates that the only tests run were x-rays. Injury to a bone is not essential
to the State’s burden; it instead was required to demonstrate that Defendant
“intentionally imped[ed] the normal breathing or circulation of the blood by 14
applying pressure on the throat or neck or by blocking the nose or mouth of the
victim.” See La.R.S. 14:35.3(B)(7).
Additionally, the photographs taken at the hospital clearly show bruising and
swelling around Mrs. Roberts’ neck and throat, supporting her assertions that
Defendant stomped on her neck, used his knee and shin to put pressure on her neck,
and that he choked her. Given this evidence, any reasonable trier of fact, when
viewing the evidence in the light most favorable to the prosecution, could have found
there was sufficient evidence to prove beyond a reasonable doubt that Defendant’s
attack impeded the breathing of the victim by applying pressure to the throat or neck.
Accordingly, Defendant’s claim of insufficient evidence lacks merit.
Assignment of Error Number 2 – Admissibility of Video
Defendant contends in his second assignment of error that the trial court erred
in admitting State’s Exhibit 1, a video of the attack. Defendant objected at trial after
learning that Mrs. Roberts used her cellphone camera to record the video of the
security footage. Mrs. Roberts then provided the video to law enforcement.
Although defense counsel objected to the introduction of the video when it was
presented during trial, the State made its intention to introduce both the video and
the photographs of the victim taken at the hospital prior to Mrs. Roberts taking the
stand. At that time, defense counsel specifically noted that he had no objection to
either the video or the photographs.
The State contends that:
Most importantly, the video, itself, plainly shows that it was
copied from a computer monitor, at Ms. Roberts’ home, by Ms. Roberts
herself, on her cell phone, and was not an original CD provided by the
security company. There was absolutely nothing contained anywhere
in this video that would have led the defense to believe it was the
original security camera surveillance recording, or that it was an actual
duplicate, thereof, made by the security company. In fact, the record 15
shows that the State never indicated to the defense, in any manner, that
this video was anything other than a copy made by Ms. Roberts and
provided to the police.
The State also noted that the video was provided to defense counsel on January 15,
2019, with the DVD envelope stating it was “provided by the victim” and noting the
evidence log, provided as part of discovery, clearly shows it was provided by Mrs.
Roberts.
Review of the video confirms the State’s arguments as it is immediately
apparent that the video is not the original from the security camera. It is instead
clearly a recording of the video. Additionally, on the video, Mrs. Roberts can be
heard answering a phone call and having a conversation with the caller. The video
was provided to the defense prior to defense counsel actually enrolling on January
31, 2019. Accordingly, trial counsel was in possession of the video, which is clearly
a recording of a computer monitor, for over eight months prior to the commencement
of trial. There is no indication that defense counsel sought clarification regarding
the production of the video. Furthermore, defense counsel explicitly stated it had no
objection to the introduction of the video when trial commenced.
In State v. Coker, 625 So.2d 190 (La.App. 3 Cir.), writ denied, 624 So.2d 1204
(La.1993), the State introduced the defendant’s oath of office as evidence during a
trial for malfeasance in office. The defendant objected, arguing the State failed to
reference the oath of office during discovery when the defense sought disclosure of
all evidence which might be favorable to defendant. This court noted:
The appropriate remedy, if the defendant were dissatisfied with the
State’s incomplete response, would have been to submit a
supplementary discovery request or to have filed a motion to compel
discovery in order to force the State to fully answer the defense request.
Considering the fact that the defense had a lengthy period between the
time it received the State’s response and the beginning of trial, the
defendant had ample opportunity to assess the State’s answers and 16
determine whether additional information was necessary. The
defendant, therefore, suffered no prejudice as a result of the incomplete
answer.
Coker, 625 So.2d at 194.
This court also stated, “Defense counsel propounded the request and must be
held responsible for reviewing and evaluating the State’s responses. Permitting any
party seeking discovery to benefit at trial from its failure to pursue obvious
deficiencies in responses to discovery would encourage ‘sandbagging’ by that
party.” Id.
In this case, Defendant was in possession of the video of the attack for more
than eight months prior to trial. As in Coker, Defendant’s failure to pursue additional
information regarding the video during that time prevents him from now
complaining that he was unaware the video was not an original. Furthermore, even
if the video were inadmissible, any error would be harmless. As pointed out in the
sufficiency review, Mrs. Roberts’ testimony, coupled with the photographs taken at
the hospital following the attack, as well as the hospital records, are sufficient to
prove Defendant impeded Mrs. Roberts’ ability to breathe during his attack.
Accordingly, this assignment of error lacks merit.
Outcome: For the foregoing reasons, Defendant’s conviction and sentence are affirmed.
This matter is remanded to the trial court for its approval of the payment plan
formulated by the Office of Probation and Parole. The trial court is ordered to
correct the court minutes to accurately reflect that the Defendant’s term of probation is three years.
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