Opinion
DOCKET NUMBER 2022 KA 0494.
11-04-2022
STATE of Louisiana v. Anthony Christopher DEARMAS.
Lieu T. Vo Clark , Mandeville, Louisiana, Attorney for Defendant-Appellant, Anthony Christopher Dearmas. Warren L. Montgomery , District Attorney and J. Bryant Clark, Jr. , Assistant District Attorney, Covington, Louisiana, Attorneys for Plaintiff-Appellee, State of Louisiana. BEFORE: McDONALD, McCLENDON, and HOLDRIDGE, JJ.
Lieu T. Vo Clark , Mandeville, Louisiana, Attorney for Defendant-Appellant, Anthony Christopher Dearmas.
Warren L. Montgomery , District Attorney and J. Bryant Clark, Jr. , Assistant District Attorney, Covington, Louisiana, Attorneys for Plaintiff-Appellee, State of Louisiana.
BEFORE: McDONALD, McCLENDON, and HOLDRIDGE, JJ.
McDONALD, J.
A St. Tammany Parish grand jury indicted the defendant, Anthony Christopher Dearmas, with first degree murder, a violation of La. R.S. 14:30. He initially pled not guilty. The State gave notice it would not seek the death penalty. Prior to trial, the defendant filed a motion to change his plea to not guilty and not guilty by reason of insanity and for the appointment of a sanity commission. The trial court granted the motion and appointed a sanity commission to report on the defendant's mental condition at the time of the offense. The sanity commission members thereafter examined the defendant and later filed reports and gave expert opinion testimony at trial that the defendant was sane at the time of the offense. Following a jury trial, the jury found the defendant guilty as charged by a non-unanimous verdict. The trial court sentenced him to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. On appeal, this court found merit in the defendant's claim that he was entitled to relief under Ramos v. Louisiana, ___ U.S. ___, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020); thus, we set aside the conviction and sentence and remanded for a new trial. State v. Dearmas, 19-1609 (La. App. 1 Cir. 7/24/20), 309 So.3d 391.
When a defendant enters a combined plea of "not guilty and not guilty by reason of insanity," the court may appoint a sanity commission to examine the defendant's mental condition at the time of the offense and may also order the commission to examine the defendant's present mental capacity to proceed. La. C.Cr.P. art. 650; State v. Robinson, 18-1005 (La. App. 1 Cir. 4/10/19), 275 So.3d 938, 942. Here, the defendant did not challenge his mental capacity to proceed at trial. His request for a sanity commission was limited to "an examination as to the defendant's mental condition at the time of the offense."
Upon retrial, the jury found the defendant guilty as charged by a unanimous verdict. He filed motions for a new trial and a post-verdict judgment of acquittal, which the trial court denied. The trial court then sentenced the defendant to life imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. He now appeals his conviction on retrial, challenging the sufficiency of the evidence. For the following reasons, we affirm the conviction and sentence.
FACTS
The defendant and Delnita Smith were the parents of twin boys, Karter (the victim) and Karmello, born on March 25, 2017. The twins were born two months prematurely and spent about a month in the neonatal intensive care unit before coming home. The defendant, Ms. Smith, the twins, her three-year-old son, Darius, and her cousin, Ganarro "Narro" Johnson, were temporarily staying in her sister's trailer in Slidell, Louisiana.
On the night of May 9-10, 2017, the defendant cared for Darius and the six-week-old twins at the trailer, while Ms. Smith worked a 9:00 p.m. to 7:00 a.m. shift at Waffle House. Ms. Smith had worked that same shift the previous two nights, and the defendant had cared for the twins on those nights as well. When Ms. Smith left the trailer on the night of the incident, the twins were uninjured and sleeping in their car seats. Later that night, the defendant called her and stated that Darius, the three-year-old, had dropped the victim, and the victim was not breathing. Ms. Smith told the defendant to call the police. Ms. Smith then immediately called her cousin, Mr. Johnson, and told him "something had happened with the baby." He told her that he had just arrived at the trailer.
Mr. Johnson testified that, when he entered the trailer, he saw the defendant sitting on the couch, holding the victim. The victim had "snot and blood coming out of [his] nose." Mr. Johnson lifted up the victim's clothing and noticed the victim's stomach was "mushy and the [victim was] blue." Mr. Johnson immediately called 911. Mr. Johnson testified that the defendant did not want to talk to the 911 operator, and, once EMS personnel arrived, the defendant resisted their efforts to take the victim from him and interfered with their attempts to render aid. He eventually relented, however, and rode in the ambulance with the victim to the hospital. The victim died three days later.
In a May 10, 2017 video recorded statement, the defendant gave three different accounts of the incident. Initially, he blamed the victim's injuries on Darius and on Ms. Smith for not teaching Darius manners. After being told that the victim's injuries were too severe to have resulted from a fall of a couple of feet, the defendant stated he had fallen twice with the victim. Lastly, the defendant stated the victim was crying and he "flashed out" or had a flashback to his mother. In this last account, the defendant stated he was trying to clean, and the victim would not stop crying.
Ms. Smith testified at trial. According to Ms. Smith, Darius had not been permitted to stand and hold either of the twins, but she admitted that, earlier on the night in question, Darius had held the victim while sitting on a couch. Further, she stated that the defendant did not complain of being stressed out or incapable of caring for the twins at any time after they came home from the hospital or on the night of the incident. Additionally, Ms. Smith never saw any evidence that the defendant was hearing voices or talking to, or responding to, hallucinations. She also never had to explain anything to him or define words for him "as if he was intellectually disabled."
Dr. Michael B. Defatta, chief pathologist for the St. Tammany Parish Coroner's Office, was accepted by the court as an expert in forensic pathology. He performed the autopsy of the victim and determined the cause and manner of death was homicide by blunt force trauma — child abuse. The victim suffered seven skull fractures and a subdural and subarachnoid hemorrhage-crushing injury. According to Dr. Defatta, there was no way the victim could have survived his head injury.
The victim also had a "fairly large" area of bruising along his thorax and right back. The area of bruising started at the top part of his right armpit, continued over his mid axillary area, and wrapped around to his back. Two scrapes were associated with the upper portion of the injury. Dr. Defatta testified this injury resulted from blunt force trauma, such as from blows or from striking the victim against a hard object. Internal examination of the victim's body revealed hemorrhage on the lower portion of his right lung. This part of his lung was up against his right posterior chest cage, and thus, the injury may have been associated with the bruising to his right thorax. Dr. Defatta testified that, if a blow to the back is hard enough, it can cause bleeding in the lung. According to Dr. Defatta, the injury could not have resulted from the victim being dropped.
The victim also had a five-centimeter by five-centimeter area of recent bruising on his forehead. Dr. Defatta testified this was an impact injury from a strike by a hand or an object, or from a fall. The victim also suffered a three-centimeter by two-centimeter area of faint bruising on his right cheek. Dr. Defatta testified this injury could have resulted from a hand. Additionally, there was an area of swelling on the left side of the victim's head in the left temporal region. Dr. Defatta testified the victim's "soft spot" was not closed. It was bulging, which indicated extreme swelling in the brain.
The victim had five fractures to the top of, or to the vertex of, his skull. Those fractures were not associated with additional fractures on the left and right sides of the victim's skull. Dr. Defatta testified the fractures to the vertex were stress fractures, rather than impact fractures. He noted that, in babies of the victim's age, the bone has not calcified and ossified. The bone remains extremely pliable and extremely easy to bend. Thus, normal drops and falls do not cause stress fractures.
Dr. Defatta indicated the stress fractures to the vertex were indicative of the victim's skull being compressed on both sides. He testified, "[t]he skull bows out upward and those fractures will occur and stretch out." According to Dr. Defatta, while the victim's stress fractures could have resulted from different blows to the head, in his opinion, the injury was a "crushing injury." He stated such an injury would result from pressure applied to one or both sides of the head, "typically in which one side of the head is against a hard surface and pressure is pushed down." Dr. Defatta testified the stress fractures were not consistent with: a three-year-old child dropping the victim; an adult of average height dropping the victim; or, an adult holding the victim and falling with him. Dr. Defatta noted that, if an adult fell on top of a baby, the baby would, in addition to head injuries, have bilateral rib fractures, shoulder dislocation, or liver lacerations. Thus, the absence of such injuries in this case led him to discount that scenario.
Regarding the amount of pressure necessary to cause stress fractures, Dr. Defatta testified more pressure would be needed than could be applied by squeezing the back of a baby's head with one hand. Dr. Defatta noted a baby's skull is bendable, flexible, pliable, and "almost rubber like." He stated an extreme amount of force would thus be required to "crack a baby's skull." When asked whether it was possible to cause such injuries "even with two hands placed on the sides of the head," he testified that it was possible, but not likely. Rather, he opined that pressing down on a baby's skull with an elbow or arm could possibly cause such, pressing down with a knee would certainly cause such, and "[j]ust simply stepping on the side of [a] baby's head could do that if enough force is applied."
SUFFICIENCY OF THE EVIDENCE
On appeal, the defendant challenges the sufficiency of the evidence to support his conviction for first degree murder. He argues the jury erred in returning a verdict of guilty as charged when evidence at trial "supported that this murder was committed in the heat of passion caused by the provocation of the circumstances in which [the defendant], a borderline intellectual functioning person, was left [alone] to care for twin newborns overnight for three nights in a row[.]" Thus, the defendant argues the jury should have returned a verdict for the responsive offense of manslaughter. He does not claim he was exempt from criminal responsibility for his actions and does not challenge the jury's factual determination that he failed to rebut his presumed sanity.
The defendant's brief contains three assignments or error. In assignment of error number one, he contends the trial court erred in denying his motion for post-verdict judgment of acquittal, which challenged the sufficiency of the evidence. In assignment of error number two, he contends the trial court erred in denying his motion for new trial, which focused on Mr. Johnson's credibility. In assignment of error number three, he contends the evidence is insufficient to convict him of first degree murder. We limit our review to the sufficiency of the evidence raised in assignments of error numbers one and three, as the defendant did not brief assignment of error number two. See Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Jarvis, 21-1181 (La. App. 1 Cir. 2/25/22), 340 So.3d 1137, 1141-42.
First degree murder, as applicable here, is the killing of a human being when the offender has a specific intent to kill, or to inflict great bodily harm, and is engaged in the perpetration, or attempted perpetration, of cruelty to juveniles, or second degree cruelty to juveniles. La. R.S. 14:30(A)(1). Pertinently, cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone seventeen years of age or older of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child's age shall not be a defense. La. R.S. 14:93(A)(1), Second degree cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect by anyone over the age of seventeen years to any child under the age of seventeen, which causes serious bodily injury or neurological impairment to that child. La. R.S. 14:93.2.3(A)(1). Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably prudent man under like circumstances. La. R.S. 14:12.
First degree murder, also as applicable here, is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm upon a victim who is under twelve years of age. La. R.S. 14:30(A)(5). Specific criminal intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent may be formed in an instant. Because it is a state of mind, specific intent need not be proven as a fact, but may be inferred from circumstances surrounding the offense and the defendant's actions. State v. Magee, 20-0096 (La. App. 1 Cir. 11/6/20), 2020 WL 6538506 at *2.
Manslaughter is a homicide that would be first degree murder or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31(A)(1). "Sudden passion" and "heat of blood" are mitigating factors in the nature of a defense. If the defendant establishes those factors by a preponderance of the evidence, a verdict for murder is inappropriate. However, provocation will not reduce a homicide to manslaughter if the fact finder finds the offender's blood had actually cooled, or that an average person's blood would have cooled, at the time the offense was committed. See La. R.S. 14:31(A)(1). In other words, if a man unreasonably permits his impulse and passion to obscure his judgment, he will be fully responsible for the consequences of his act. Provocation and time for cooling off are determinations made by the fact finder using the standard of the average or ordinary person with ordinary self-control. Magee, 2020 WL 6538506 at *2.
Dr. Raphael Salcedo was accepted by the court as an expert in forensic psychology. The court appointed him to evaluate the defendant's sanity at the time of the offense. When Dr. Salcedo questioned the defendant about the events on the night of May 9, 2017 that led to the victim's death, the defendant claimed amnesia "during the time frame of the offense." The defendant, however, was able to provide information concerning historical facts about his life. Records from the Orleans Parish School System indicated the defendant had behavior problems, had been diagnosed with attention deficit hyperactivity disorder, and had a learning disability. The records further reflected that testing of the defendant indicated he functioned in the borderline range of intelligence. On the issue of the defendant's borderline intellectual functioning, Dr. Salcedo noted an "average" IQ score was 100, and the average range went from 90 to 109. An IQ score between 80 and 89 was considered "low average," whereas an IQ range between 70 and 79 was considered "borderline." Lastly, an IQ score of 69 or lower indicates intellectual disability, previously referenced as mental retardation. According to Dr. Salcedo, the defendant's IQ was in the 70-79 range. Dr. Salcedo indicated a mental or intellectual disability rendering someone incapable of distinguishing right from wrong would not be present in a person with a functioning IQ in the 70-79 range. He indicated someone would have to have an IQ in the low 60s before there would be significant impairment in their ability to understand what they were doing. Dr. Salcedo added he had evaluated people who had IQs in the low 60s who were still able to distinguish right from wrong.
Dr. Salcedo testified he conducted the examination on June 24, 2019.
Dr. Salcedo testified that the video recording of the defendant's interview with the police was "very useful," because it showed what the defendant "was behaving like, what he was saying, his manner of relating, his recollection of the events in a very close time proximity surrounding the offense." Dr. Salcedo found the defendant's behavior and mannerisms while being questioned by the police unremarkable. Further, the defendant did not appear to have issues understanding the questions the police asked him. He did not ask for any words to be defined or for any sentences to be repeated.
Dr. Salcedo did not perceive the defendant to have any intellectual disability. Dr. Salcedo noted the defendant's answers were responsive, and he seemed to understand what he was being asked. Dr. Salcedo testified "individuals with intellectual disabilities, oftentimes you can tell just by the way they behave and the way they speak, and [the defendant] was not showing verbal or nonverbal signs of intellectual disability while he was interacting with the detectives that early morning."
In regard to the defendant giving multiple accounts of the incident, Dr. Salcedo testified it was not unusual for defendants to give self-serving statements. Thereafter, Dr. Salcedo read part of his report for the jury, as follows:
Contrary to what [the defendant] had mentioned to the undersigned when evaluated for his competency to proceed to trial, it appears that he had very good recollection for the circumstances which led to his arrest. He did provide conflicting statements, ultimately giving three versions of the events, which led to the severe injuries suffered by [the victim] and which ultimately resulted in his death. This did not appear to be the result of amnesia, but rather at least to the undersigned appeared to be different renditions, the first of which was the most legally self-serving one and the last one given by the defendant being the one most consistent with the evidence.
Dr. Salcedo testified his impression of the defendant was that he was trying to minimize his involvement in the victim's injuries and ultimate death. Dr. Salcedo noted any efforts whereby an individual is seen as trying to avoid apprehension, whether by fleeing the scene or by justifying his behavior in some kind of way, "logically seems to call for a conclusion that he understands that what he did was wrong[,] and he was trying to get around it or justify it in some kind of way that makes him not appear to have been wrong."
Dr. Salcedo opined that, at the time of the commission of the alleged offense, the defendant was not suffering from a major psychiatric disorder, i.e., a mental disease or defect, which would have impaired him so severely that he would have been incapable of distinguishing right from wrong. Dr. Salcedo testified the statements the defendant made to the police, what appeared to have been his responses, and the different versions of the incident he gave, pointed to the likelihood that "[the defendant] knew what he had done was wrong and was trying to explain it somehow in a way that ... served his interests."
Dr. Michelle Garriga was accepted by the court as an expert in forensic psychiatry. She was also appointed by the court to assess defendant's sanity at the time of the offense. Dr. Garriga testified the defendant gave an inconsistent report of the events that led up to his arrest. He claimed he had amnesia "for the event," and did not remember anything from that night, but then contradicted himself by stating he "F'd up that night." The defendant remembered taking drugs earlier in the day. He also claimed he "flashed out." Dr. Garriga testified that while "flashed out" can be attributed to post-traumatic stress, it is also a term meaning "you just lost your temper."
Dr. Garriga testified there was no reason for the defendant to have amnesia. She stated amnesia was not something that spontaneously happens. The defendant had no memory deficits except for those associated with the events surrounding the victim's death. She noted that the defendant had been hit by a car when he was a child resulting in a moderate concussion. However, Dr. Garriga found no supporting evidence to show that he had "very extreme problems with memory ... to not be able to remember such a significant day like [the day of the incident]."
Dr. Garriga noted the defendant had a history of mental illness and had been diagnosed with mental illnesses in the past. However, based on her evaluation of him and the video recording of his interview with the police, she found no evidence the defendant was actively suffering from those illnesses at the time of the incident. Dr. Garriga testified, "even if [the defendant] was having any mild symptoms that wouldn't be evident right then, those illnesses were not severe enough to render him incapable of distinguishing right from wrong." Dr. Garriga found the video recording of the defendant's interview with the police very helpful in evaluating him. She was able to see how the defendant interacted with the police. She observed his body language, facial expressions, and speech. She testified that she looked for different mental illnesses when considering the issue of insanity, and the most obvious one was when someone is psychotic. According to Dr. Garriga, psychotic people will be distracted. She noted, if someone is hearing voices, it is very hard for them to carry on a conversation with someone who is talking to them. Similarly, if someone is seeing things, they will glance away. Additionally, Dr. Garriga stated psychotic people tend to have disorganized thought processes, which she defined as "when your thoughts get all jumbled when you are speaking."
Dr. Garriga did not find that the defendant showed any signs of psychosis. Specifically, the defendant did not show any disconnect with reality. He also did not seem inappropriately anxious or inappropriately distraught. Rather, the defendant was focused on his interaction with the police. He responded appropriately and logically to them. Dr. Garriga testified there was no evidence the defendant was suffering from a mental illness that was severe enough to render him incapable of distinguishing right from wrong.
Dr. Garriga also found that the defendant did not disclose a psychotic motive for the alleged offense, but instead, his motive was anger and frustration. Dr. Garriga testified that the defendant stated he was angry and frustrated that the baby was crying and "wanted to make the baby quit crying." Dr. Garriga noted that such a statement, rather than being evidence that the defendant was disengaged from reality, evidenced the opposite as it was "reality-based commentary about what was going on."
Dr. Garriga testified that the defendant had borderline intellectual functioning, which meant he was "right on the cusp of what we used to call mental retardation[.]" The defendant's medical history included at least one provisional diagnosis of mild mental retardation. However, Dr. Garriga opined that someone who had borderline intellectual functioning could still understand the difference between right and wrong. Dr. Garriga testified that even someone who was clearly mentally retarded could understand right from wrong. In regard to the defendant, Dr. Garriga stated:
You know, more advanced concepts would be difficult, but a basic understanding of, in this case, do you strike a newborn? That's a very basic concept, and I saw nothing in my evaluation of [the defendant] or in his history to indicate that he wouldn't understand such a basic concept.
The defendant's reliance on his borderline intellectual functioning to mitigate his actions is misplaced. Louisiana does not recognize the defense of diminished capacity. A mental disease or defect short of insanity cannot serve to negate an element of the crime. State v. Hebert, 10-0305 (La. App 1 Cir. 2/11/11), 2011 WL 2119755, *3, writ denied, 11-0864 (La. 10/21/11), 73 So.3d 380. Consequently, in crimes requiring specific intent, diminished mental capacity is not a recognized defense. State v. Dressner, 08-1366 (La. 7/6/10), 45 So.3d 127, 144, cert. denied, 562 U.S. 1271, 131 S.Ct. 1605, 179 L.Ed.2d 500 (2011).
In the instant case, Dr. Salcedo testified that a mental or intellectual disability rendering someone incapable of distinguishing right from wrong would not be present in a person with borderline intellectual functioning, i.e., a functioning IQ in the 70-79 range. Similarly, Dr. Garriga testified someone who had borderline intellectual functioning could still understand the difference between right and wrong. After reviewing a video recording of an interview with the defendant made within hours of the incident, Dr. Salcedo found the defendant was trying to minimize his involvement in injuring the victim. Dr. Salcedo testified the defendant's attempt to minimize his culpability "logically seems to call for a conclusion that he understands that what he did was wrong." After reviewing the defendant in the same video recording, Dr. Garriga found he did not show any signs of psychosis. Further, she testified the defendant told her he acted out of anger and frustration that the victim was crying and "wanted to make the baby quit crying."
Viewing all of the evidence in the light most favorable to the State, we conclude any rational trier of fact could have found that the State proved beyond a reasonable doubt that the defendant was guilty of the first degree murder of the victim and that no mitigating factors were established by a preponderance of the evidence. The evidence at trial did not establish that the defendant killed the victim in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. See State v. Thornton, 47,598 (La. App. 2 Cir. 3/13/13), 111 So.3d 1130, 1136-37 ("Regarding the defense's argument for manslaughter, the measure of the `provocation sufficient to deprive an average person of his self-control' cannot be met by reference to the crying and discomfort of an innocent victim only three months old. The average person understands that no anger, much less anger accompanied by force and harm, is a reasonable response to an infant."). As the trier of fact, the jury was free to accept or reject, in whole or in part, the testimony of any witness. On appeal, this court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder's determination of guilt. Hebert, 2011 WL 2119755 at *8. Further, in reviewing the evidence, the jury's determination was not irrational under the facts and circumstances presented. See State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. See State v. Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
These assignments of error are without merit.