Petition for Writ of Certiorari — Rousselle v. Louisiana

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FILED

NO. JUN 2 1988

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CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1987

TEDDY ROUSSELLE,

Petitioner

VS

STATE OF LOUISIANA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT, STATE OF LOUISIANA

ROBERT E. LEE, SR.

Attorney for Petitioner

3942 Peach Tree Crt.

New Orleans, Louisiana 70131

(504) 391-0472

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED

May a state refuse to Apply the same principle of law

equally as between a convicted female defendant whose

conviction was reversed and a convicted male defendant

whose conviction was upheld, when both were charged with

the same offense, and the identical criminal element

necessary for a conviction under the statutory law and

jurisprudence of said state was applied to reverse the

female defendant’s conviction but denied as to the male

defendant without opinion or reasons stated, in the face of

Griffen v People of State of Illinois, 76 S. Ct. 585, 351 U.S.

12, 100 L.Ed. 891, rehearing denied 76 S. Ct. 844, 351 U.S.

958, 100 L.Ed. 1480?

aaa ies ih

ii

TABLE OF CONTENTS

Page

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I, GE FN vis ctsssisccttasictnnicccsssssccssinsestieatocnianes 1

Constitutional Provisions Involved.................c:cssesseeseeseeees 2

ROE GE CG GD vst sesctascnicicitsninnstcenssiarniccccapatentenaand 2

Reasons for Granting the Writii..s..cccscscssscsscasesscccscesssenssnans 4

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IID 35-5 cn cinhssn panne suka cabade de nana 5

CD OE Nino ctniercsiiscetcise indienne 7

APPENDIX A, Reconsideration Denied by La.

Ce, AE Fj i iicccescessissiscssucvenererinsaanmnasiainatonss A-l

APPENDIX B, Writ of Certiorari Denied by La.

ee, Ch, BRON 31; BR icdsctiteinidinciaionncs A-2

APPENDIX C, Decision of the Fourth Circuit

Court of Appeal (one dissent).................cseeeeseeseeeeeeeeee A-3

APPENDIX D, Trial Excerpts of Transcript refer-

red to in Court of Appeal decision of defendant’s

DD i voisiinsiinssinnsinsdnteahianinanecadningnrastageaasianasaaadaiaanalaealiaaasin A-11

APPENDIX E, Entire Case, State of Louisiana v.

Reeiey, 463 Ban 140 (1 GGG ).ncccinsccnisnassareosessssnenssactes A-17

APPENDIX F, Application for Re-Hearing to La.

Supp. Ct. (Constitutional Question Raised) Last

pareuregh: OF ADUCAIID . .sicninssnnccsctemcnmmamnnss A-20

a7! .

lil

INDEX OF AUTHORITIES

CASES Page

Griffin v. People of State of Illinois, 76 S.Ct. 585,

ee I ee I Ry ER se anhcsacicitagiigsitcccnccncicceecaccestess 2,5

State v Berkley, 482 Snd 140 (1986)... eeeeeeee 4

Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct.

ne casas snes nn naaseenseennboonestonessnbients 5

State v Rousselle, 520 Snd 739 (1987)............. A-1,A-2,A-3

OTHER AUTHORITIES

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Fourteenth Amendment to the United States

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1

In the

Supreme Court of the United States

OCTOBER TERM, 1987

TEDDY ROUSSELLE,

Petitioner

VS

STATE OF LOUISIANA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT, STATE OF LOUISIANA

The petition of Teddy Rousselle, respectfully prays

that a Writ of Certiorari issue to review the judgment and

the opinion of the Louisiana Supreme Court entered in

these proceedings on April 11, 1988, denying reconsidera-

tion of its denial of a Writ of Certiorari entered on March

7, 1988.

OPINION BELOW

The opinion of the Louisiana Fourth Circuit Court of Ap-

peals, 520 Snd 739, (1987, bearing Docket No. 87-K-2419,

of the Louisiana Supreme Court, is appended hereto as Ap-

pendix “‘A’’, page 11, Appendix ““B’’, page 12, and Appen-

dix ‘‘C’’, page 13 hereof.

JURISDICTION

The judgment of the Louisiana Supreme Court, final,

was entered on April 11, 1988. (Appendix ‘‘A’’, page 11).

|

2

This Petition for Certiorari to the Supreme Court, State of

Louisiana is filed herein within sixty days of the final

denial of reconsideration described below. This Court's

jurisdiction is invoked under 28 U.S.C. Section 1257(3) and

Griffen v. People of State of Illinois, 76 S.Ct. 585, 351 U.S.

12, 100 L.Ed. 891.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution, provides, in pertinent part:

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty, or property without due process of law; nor

deny to any person within its jurisdiction of equal protec-

tion of the laws.”

STATEMENT OF THE CASE

Defendant, Rousselle, and Loretta Matthews were

living together as common law husband and wife with the

infant daughter of Loretta from another man-not from

Rousselle, in defendant’s mother’s house, Joan McDonald.

On the evening of September 10, 1985, Loretta was

lifting the infant child, Elizabeth, age 13 months, from a

rear car seat when she felt a soft spot on the baby’s head

and calling this to the attention of defendant whereupon

they proceeded to his mother for her opinion. Mrs.

McDonald advised the couple to take the child to Charity

Hospital, in New Orleans, immediately which they did.

While at the hospital several doctors examined the

child, one of them Dr. Assad, a female pediatrician from

ie 8 8686 SC

3

Egypt. The examination was conducted after the defen-

dant had left Loretta and the child since he had to arise ear-

ly the next morning for work as a dispatcher for the local

fire department.

Loretta was asked by Dr. Assad how did the child

receive its injury to the head and two old fractures to the

child's wrist. Loretta advised this doctor that she did not

know but that one day while she was bathing Elizabeth she

got out of the tub and while running away banged her head

on the floor as she slipped. And that Elizabeth was a very

active child. It had also been determined by Dr. Assad that

the child was suffering from seizures due to the pressure on

her brain and probably caused by a subdural hematoma

which caused the soft spot on her head.

Several hours later Loretta was interviewed by the

Plaquemines Parish Sheriff's Office, which had jurisdic-

tion, who advised her to tell them what really happened or

she would be charged with Cruelty to a Juvinelle

whereupon Loretta changed her story and implicated

defendant as the perpetrator of the child's injuries.

Defendant was never interrogated but was arrested

and charged with Cruelty to Juveniles, R.S. LSA 14:93,

had a judge trial, found guilty and sentenced to 15 years at

hard labor in Angola. Part of this sentence resulted due to

a multi-billing by the State.

Defendant objected vigorously to the multi-billing on

the grounds that defendant had received an illegal sentence

some years before and also that the 5 year period between

offenses had expired cutting off the State’s time to multi-

bill.

Further, and more seriously, the State never offered

any evidence as to the defendant's age, a vital element in

4

the crime of Cruelty to Juveniles.

‘Petitioner pointed out the unconstitutionally of

refusing to address the question of defendant's age in his

Application for Rehearing filed in the Louisiana Supreme

Court."’ Last paragraph. (Appendix ‘‘F’’) Citing violations

of the Equal Protection Clause of the Fourteenth Amend-

ment and violation of the 5th Amendment.

REASONS FOR GRANTING THE WRIT

This petition sets out with stark reality that for

reasons of its own, the State of Louisiana, chose not to ad-

dress the age of the defendant in the face of a case describ-

ed by the same Court of Appeals some 10 months earlier

reversing a conviction of a female convicted with Cruelty to

Juveniles wherein this Court used non-proof of the defen-

dant’s age by the State as grounds for reversal in a short

concise opinion. State v. Berkley, 482 Snd 140 (1986) (Ap-

pendix ‘‘E’’, page 15) In the only reference to defendant's

argument in his brief to the Fourth Circuit, the opinion

held that references to defendant’s employment as an am-

bulance driver was sufficient to supply the missing ele-

ment, age of 17 or over.* These references were elicited by

defense counsel-not the State. Defendant never took the

stand. When defendant took writs to the Louisiana

Supreme Court on this point the conviction was allowed to

stand without comment except for one dissent. (Appendix

“A”, page 11)

No other rational explanation for the above describ-

ed ‘“‘double standard” exists except for that of sex

discrimination.

* See Appendix “D’’, page 14 for excerpts from trial transcript.

5

THIS HONORABLE COURT SHOULD AND OUGHT

TO GRANT THE WRIT OF CERTIORARI TO THE LOUI-

SIANA SUPREME COURT, APPLIED FOR HEREIN,

OTHERWISE THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION WILL BE REDUCED IN

DIGNITY, FORCE AND RESPECT.

ARGUMENT

In this case the Louisiana Fourth Circuit Court of

Appeals apparently lined up on the side of the prosecutor

to convict and affirm the lower court’s decision, given the

silence by the State when it had every opportunity to elicit

the age of defendant. ‘‘Under the Fourteenth Amendment,

differentiations by a state with respect to criminal appeals

that have no relation to a rational policy of criminal appeal

are not sanctioned."’ Griffen, supra. and, ‘To allow on ap-

peal, but with some difference among convicted persons as

to terms upon which appeal is exercised, does not deny due

process but may present a question of equal protection.”’

Griffen, supra.

Finally, petitioner's case, conviction and appellant

review deserve a review by this Court, for, ‘Only by sifting

the facts and weighing the circumstances on a case-by-case

basis can a nonobvious involvement of a state be attributed

its true significance in determining whether the state in

any of its manifestations has become significantly involved

in private discrimination.’’ Reitman v. Mulkey, 387 U.S.

369, 87 S.Ct. 1627.

CONCLUSION

For the reasons set forth hereinabove this Honorable

Court should and ought to issue its Writ of Certiorari

6

to review the judgments of the Louisiana Supreme Court.

Respectfully submitted,

ROBERT E. LEE, SR.

Attorney for Petitioner

3942 Peach Tree Crt.

New Orleans, Louisiana 70131

(504) 391-0472

7

CERTIFICATE OF SERVICE

I hereby certify that on this 31 day of May, 1988,

copies of this Petition for Writ of Certiorari to the United

States Supreme Court were mailed, postage prepaid, pro-

perly addressed, and deposited in the United States Mails

to:

William J. Guste, Jr. Darryl W. Brubrig, Sr.

Attorney General District Attorney

State of Louisiana Parish of Plaquemines

State Capitol Point-ala-Hache, La.

P. O. Box 44005 70092

Baton Rouge, La. 70804

IT IS FURTHER CERTIFIED AND SWORN TO THAT

ALL OF THE APPENDICIES ATTACHED HERETO TO

THIS PETITION FOR WRIT OF CERTIORARI AND FILED

HEREIN ARE TRUE COPIES OF WHAT THEY PURPORT

TO BE.

SWORN TO AND SUBSCRIBED BEFORE

ME THIS _____ day of , 1988.

NOTARY PUBLIC

AAS he &

ROBERT E. LEE, SR.

Attorney for Petitioner

3942 Peach Tree Crt.

New Orleans, Louisiana 70131

(504) 391-0472

A-1

APPENDIX A

STATE OF LOUISIANA V TEDDY ROUSSELLE,

520 sd 739(1987)

JUDGMENT OF LOUISIANA SUPREME COURT

(RECONSIDERATION DENIED)

ENTERED ON APRIL 7, 1988

Che Supreme Court of the State of Louisiana

STATE OF LOUISIANA

VS

TEDDY ROUSSELLE No. 87-K-2419

IN RE: Rousselle, Teddy, Applying for Reconsideration of

this Court’s order of March 11, 1988; to the Court of Ap-

peal, Fourth Circuit, Number KA-3791: Parish of Pla-

quemines 25th Judicial District Court Div. B, Number

80630

April 7, 1988

Reconsideration denied.

HTL JAD PFC

WFM JLD JCW

LFC

Supreme Court of Louisiana

April 7, 1988

/S/ illegible

Clerk of Court

For the Court

ld

A-2

APPENDIX B

STATE OF LOUISIANA V TEDDY ROUSSELLE,

520 sd 739(1987)

JUDGMENT OF LOUISIANA SUPREME COURT

DENYING WRIT OF CERTIORARI

ENTERED ON MARCH 11, 1988

Che Supreme Court of the State of Louisiana

STATE OF LOUISIANA

VS

TEDDY ROUSSELLE No. 87-K-2419

IN RE: Rousselle, Teddy, Applying for Writ of Certiorari

and/or Review; to the Court of Appeal, Fourth Circuit,

Number KA-3791: Parish of Plaquemines 25th Judicial

District Court Div. B, Number 80630

March 11, 1988

Denied. The result is correct.

JCW JAD WFM

JLD LFC

CALOGERO, J., concurs with reasons.

LEMMON, J., would grant the writ.

Supreme Court of Louisiana

March 11, 1988

/S/ illegible

Clerk of Court

For the Court

A-3

APPENDIX C

STATE OF LOUISIANA V TEDDY ROUSSELLE,

520 sd 739(1987)

DECISION OF FOURTH CIRCUIT

COURT OF APPEAL

ENTERED ON OCTOBER 7, 1987

STATE OF LOUISIANA * No. KA-3791

versus ° Court of Appeal

TEDDY ROUSSELLE * Fourth Circuit

° State of Louisiana

* * * * *€* *€* € * KF

APPEAL FROM THE TWENTY-FIFTH JUDICIAL

DISTRICT COURT FOR THE PARISH OF

PLAQUEMINES, NO. 80630,

Division ‘‘B”’

HONORABLE EMILE E. MARTIN, III JUDGE

* * * * * * *&* KF KF

JIM GARRISON

JUDGE

* * * *€£ *€ *€ €& F K

(Court composed of Judges Jim Garrison, Denis A. Barry

and Charles R. Ward)

BARRY, J., DISSENTS WITH WRITTEN REASONS

HON. WILLIAM J. GUSTE, JR., ATTORNEY GENERAL

New Orleans, Louisiana 70112

HON. DARRYL W. BUBRIG, SR.,. DISTRICT ATTORNEY

Pointe-A-La-Hache, Louisiana 70082

GILBERT V. ANDRY, III, ASST. DISTRICT ATTORNEY

New Orleans, Louisiana 70130

Attorneys for Plaintiff-Appellee

ROBERT E. LEE

New Orleans, Louisiana 70114

Attorney for Defendant-Appellant

Oct 7 1987

AFFIRMED

_ h——e—zazia sl

A-4

The defendant, Teddy Rousselle, was charged by bill

of information with cruelty to a juvenile, a violation of

LSA-R.S. 14:93. After waiving his right to a trial by jury,

the defendant was found guilty as charged by the trial

judge. The defendant was later sentenced as a multiple of-

fender to fifteen years at hard labor. He now appeals his

conviction and sentence.

On September 11, 1984, Loretta Mathews and the

defendant, Mathews’ boyfriend with whom she lived,

brought Mathews’ thirteen month old daughter, Elizabeth,

to the Charity Hospital Emergency Room in New Orleans

for bruises and a hematoma on her head and for seizures.

Dr. Nahed Assaad examined the child and found a

hematoma on her head, bruises on her face, back and but-

tocks and lesions inside of her mouth. Because Dr. Assaad

suspected child abuse, he ordered x-rays to be taken of the

child. These x-rays indicated that the child also had healing

fractures in both wrists. Tests conducted on the child’s

brain indicated an affection; therefore, Dr. Assaad con-

sulted a pediatric neurologist who diagnosed that the child

had suffered focal seizures. Medication was then given to

the child to prevent more seizures and the child was kept

at the hospital for observation for eight days.

At the hospital, Loretta Mathews told the doctor

that the child’s injuries had been caused because the child

was highly active and often got hurt while running too

quickly. Later, Mathews recanted her version of the in-

juries given at the hospital and told a police detective that

the defendant was responsible for the child’s injuries.

Mathews claimed that she lied initially out of fear of the

defendant who had allegedly beaten her in the past.

At trial, Mathews testified that the defendant would

often slap the child when she cried in her playpen. In

another instance, while riding in a car, the defendant

A-5

repeatedly slapped the child in the face because of her

refusal to be quiet. Mathews also testified that one day

when the defendant was sick and at home, the child started

crying and when Mathews walked into the room, the defen-

dant was holding the child down on the bed and punching

her in the face. The defendant later attempted to apply ice

to the child’s bruises caused by the punching but when she

refused to remain still, he became angered, put the child

face down on a towel filled with ice and tied the child;’s feet

and arms behind her back. After this incident, the child

refused to eat or drink. The couple finally took the child to

the hospital when Mathews noticed that the child had a

soft spot on her head and that the child’s eyes were rolling

in her head.

In the first assignment of error, defendant argues

that the trial court erred in overruling his objection to

allegedly leading questions asked by the State to its

witness, Loretta Mathews. Because the defendant did not

brief this assignment of error, it is deemed abandoned on

appeal. Uniform Rules, Courts of Appeal Rule 2-12.4.

In the second assignment of error, the defense argues

that the trial court erred in not allowing State witness

Loretta Mathews to answer, on cross-examination, the

theoretical question of whether a car seat used to transport

her child could have caused some of the child’s injuries.

Because this witness was not qualified as an expert, the

trial court properly sustained the State’s objection to this

question because a non-expert witness can only testify as

to facts within her knowledge and cannot give an opinion.

LSA-R.S. 15:463.

Thirdly, the defendant argues that the trial judge er-

red in sustaining the State’s objection to certain testimony

given by the defendant’s mother, Joan McDonald. The

State’s objection was based on the argument that the

A-6

testimony was hearsay and improper impeachment of a

State witness.

The questionable testimony concerned the night that

the child was brought to the hospital. Earlier that evening,

Mathews and the defendant were at McDonald’s house and

they showed McDonald the soft spot on the child’s head.

When McDonald asked Mathews what had happened to the

child, Mathews responded as follows, according to

McDonald's testimony:

‘‘Well today, when I was washing the baby, she

was irritable and cross and she didn’t want to

take her bath.”’ And she said, ‘“‘So I picked her up

and said, ‘‘Little girl, you are going to take your

bath or else.”’

At that point, the State objected and this objection was

sustained.

We concluded that the trial judge erred in sustaining

the State’s objection to McDonald’s testimony made on

the basis of hearsay and improper impeachment of a State

witness. Because McDonald’s statements were being of-

fered to show the contents of her conversation with

Mathews and not to show the truth of what had been said,

the hearsay objection was without merit. State v.

Shoemaker, 500 So.2d 385 (La. 1987).

The State’s objection, made on the basis of improper

impeachment, was also without merit in that there was no

indication that this testimony was being offered by the

defense for the purpose of impeaching the credibility of

Loretta Mathews. The defense was merely attempting to

present their version of the facts and should have been

allowed to do so.

A-7

In not allowing McDonald to complete her version of

the facts in this case, it can be surmised that the defendant

may have been prevented from presenting a defense, i.e.

McDonald’s possible implication of Mathews in this crime.

However, because the defendant did not make any showing

of prejudice and did not specifically allege that he was

denied the opportunity of presenting a defense, the refusal

of the trial judge to allow McDonald to complete her

testimony was harmless error.

In the fourth and sixth assignments of error, the

defendant claims that the evidence presented at trial was

insufficient to convict the defendant. Specifically, he

argues that the State failed to establish that the defendant

was over seventeen years of age at the time of the crime,

an essential element of the crime of cruelty of a juvenile.

For a conviction of the crime of cruelty to a juvenile,

the following elements must be established:

1) that the defendant was over the age of

seventeen;

2) that the victim was under the age of seventeen;

3) that the victim was caused unjustifiable pain or

suffering; and that the defendant intentionally

mistreated or neglected the victim, or

4) that the defendant was criminally negligent in

her mistreatment or neglect of the child. LSA-

R.S. 14:93.

Although the State did not offer any direct evidence as to

defendant’s age, testimony by Loretta Mathews and Joan

McDonald, defendant’s girlfriend and mother respectfully,

established that defendant was employed by the Belle

Chasse Fire Department and had been on ‘‘ambulance du-

ty’’ on the day before the evening that Elizabeth Mathews

was taken to the hospital. Although this evidence is

A-8

circumstantial, it allows for the reasonable inference that

the defendant had to be over the age of seventeen to qualify

to hold such a job.

The evidence clearly establishes the other elements

of this crime. The victim's mother testified that the victim

was thirteen months old at the time of the offense. The fact

that the victim was caused unjustifiable pain and suffering

was Clearly evidenced by the many bruises and fractures on

the child and the seizures suffered by the child. Testimony

also showed that the defendant intentionally mistreated

the child by slapping her, punching her and by placing her

face down on a towel containing ice with her hands and feet

tied. Therefore, viewing the evidence in the light most

favorable to the prosecution, the fact finder could have con-

cluded that the defendant was guilty beyond a reasonable

doubt of cruelty to a juvenile. Jackson v. Virginia, 443,

U.S. 307, 99 S. Ct. 2781 (1979).

In his final assignment of error, the defendant argues

that he was erroneously adjudged as a habitual offender

because the predicate offense used to enhance his sentence

for the instant offense was committed more than five years

before the instant offense. In the statute which provides

for the enhancement of sentences of habitual offenders,

LSA—R.S. 15:529.1, Section C provides as follows:

“C. This Section shall not be applicable in cases

where more than five years have elapsed since the

expiration of the maximum sentence, or

sentences, of the previous conviction, or convic-

tions, and the time of the commission of the last

felony for which he has been convicted. In com-

puting the period of time as provided herein, any

period of servitude by a person in a penal institu-

tion, within or without the state, shall not be in-

cluded in the computation of any of said five year

| periods.”

iia i eee

A-9

The Louisiana Supreme Court has interpreted the five year

cleansing period to mean that a sentence may not be

enhanced if five years have elapsed between the date of

defendant’s discharge from supervision for the predicate

offense and the date of the commission of the offense

resulting in defendant's instant conviction. State v. Vin-

cent, 387 So.2d 1097 (La.1980).

In this case, defendant's prior conviction occurred in

1979. He was sentenced to six years at hard labor but his

sentence was suspended and he was placed on six years ac-

tive probation. Therefore, because the defendant was not

even discharged from supervision at the time of the instant

offense in 1984, the five year cleansing period of 15:529.1(C)

had not yet begun to run. Thus, the trial judge properly us-

ed the defendant's 1979 conviction as a predicate in enhan-

cing defendant's sentence for the instant conviction.

In the second part of this assignment, the defendant

argues that his sentence of six years probation for his 1979

conviction violates LSA—C.Cr.P. art. 893(A) which limits

a probation period to five years. If the defendant wishes to

attack the legality of his sentence for this earlier convic-

tion, he should seek post-conviction relief in the trial court

which issued this sentence.

For the reasons stated above, the defendant's convic-

tion and sentence are affirmed.

AFFIRMED.

BARRY, J. Dissents

I disagree with the majority's conclusion on the ex-

clusion of certian testimony by the defendant's mother,

Joan McDonald. The majority states that the ‘‘defense was

merely attempting to present their version of the facts and

should have been allowed to do so."’ However, the majority

concludes that this was harmless error because the defen-

dant “did not make a showing of prejudice and did not

specifically allege that he was denied the opportunity of

presenting a defense.”’

In determining whether an error is harmless the rele-

vant query is whether there is a reasonable possibility that

the evidence might have contributed to the conviction.

State v. Seward, 509 So.2d 413 (La. 1987).

It is obvious that the defendant was denied the op-

portunity to present a defense, i.e., that someone else was

responsible for the child's injuries. No other testimony in-

dicates that the mother threatened the child. If the

evidence had been admitted the trier of fact could have

determined its credibility.

Under these circumstances, I cannot conclude that

there was no reasonable possibility that the evidence (had

it been presented) might have contributed to the convic-

tion. See also State v. Shoemaker, 500 So.2d 385 (La. 1987);

State v. Jackson, 419 So.2d 425 (La. 1982) on rehearing.

The conviction should be reversed and the case

remanded for a new trial.

A-1l

APPENDIX D

EXCERPT OF TRIAL TRANSCRIPT

REFERRED TO IN COURT OF APPEAL DECISION

STATE'S EVIDENCE OF DEFENDANT'S AGE

25th JUDICIAL DISTRICT COURT

PARISH OF PLAQUEMINES

STATE OF LOUISIANA

STATE OF LOUISIANA NO. 80630

vs

TEDDY ROUSSELLE DIVISION “B”

(Cruelty to Juveniles)

Testimony and notes of evidence taken in open court,

under oath, in the above-entitled and numbered matter.

before HONORABLE EMILE E. MARTIN, III, Judge,

Division ‘‘B’’, presiding, on Wednesday, March 6, 1985.

APPEARANCES:

MR. FRANK KLEIN, ESQ.

Assistant District Attorney

MR. ROBERT E. LEE, ESQ.

Attorney for Defendant

ALSO PRESENT:

Teddy J. Roussell,

Defendant

REPORTED BY:

Peter P. Borrello, Jr.,

Official Court Reporter

MR. KLEIN:

I call, ‘State of Louisiana versus Teddy J. Roussell.”’

eee eee aa... ee

A-12

THE COURT:

“State of Louisiana versus Teddy J. Roussell, 80630.”’

Let the record reflect Mr. Roussell is present in

court accompanied by his attorney, Mr. Robert E.

Lee and that Mr. Frank Klein is the Assistant

District Attorney in this matter.

MR. LEE:

Good morning, your Honor.

THE COURT:

Good morning.

MR. KLEIN:

The State is ready for trial, your Honor.

MR. LEE:

The defense is ready for trial, your Honor.

THE COURT:

Proceed, Mr. Klein.

MR. KLEIN:

If your Honor please, at this time the State, in

accordance

WITNESS INDEX

DR. HAHED ASSAAD

Direct examination by Mr. Klein................ccceeeeeeeeeees 4

Cross examination by Mr. Le€................:cccsessesseeeeees 10

Redirect examination by Mr. Klein..................::0000+ 11

Direct examination by Mr. Klein...............::::ccccceeees 12

Cross examination by Mr. Le€.................cccssceeeeeeeeees 22

Redirect examination by Mr. Klein.................::000 31

A-13

JAMES R. HONEA

Direct examination by Mr. Klein...............0.ccccccc000e 34

Cross examination by Mr. Lee@..............ccccccsseceeeeeees 37

MICHAEL NUDGE

Direct examination by Mr. Klein..............00...ccccc0e. 39

Cross examination by Mr. Lee...........c:ccccccccsssseseeeeee 42

LORETTA MATHEWS

Direct examination by Mr. Klein.........0....00..cccc0000e. 44

Cross examination by Mr. Lee............cccccccccsccesseeeeee 61

JOAN McDONALD

Direct exainination by Mr. Lee...............cccccccceeseeeeeee 75

* * +

what happened.

MR. KLEIN:

I don’t think you ought to get abusive.

THE COURT:

Just ask questions.

CROSS EXAMINATION BY MR. LEE:

Q What happened, Loretta?

A__ I don’t know how she got the hematoma on her head.

I just know that Teddy hit her in the face.

When?

When we went to the movies.

When?

On our birthdays.

What is the date of her birthday?

Pardon?

> Or - &

> ©

Or rO PHOrH pH

ODPr HPO PO PHO PL Pp

>

A-14

What is the date of her birthday?

Mine and Teddy’s birthday is the day we went to the

movies.

What was the date?

August 21.

How long did you live with Teddy?

Four months.

Do you know who he was employed by?

Yes.

Who?

Belle Chasse Fire Department.

Was he ever employed by any ambulance service?

Yes.

And in the course of his duties, was he ever required

to spend long periods of time away from the

house?

No. When he had ambulance, he stayed home.

Was he home 24-hours a day?

When he had ambulance.

He was home 24-hours a day?

No. Just 12.

Was he ever gone from home a week at a time.

No.

But, he was gone extended periods of time, 12 hours.

Yes.

And you were left with the child?

Yes.

Did you care for the child?

Did you bathe the child from time to time?

Yes.

Q

A

Q

A-15

And who changed the child and put diapers on her?

I did.

You testified about Teddy wanting to put some ice on

the child’s face and he took it out and laid it on

the bed and laid the child face down, is that

(After first being duly sworn,

the witness did testify as follows:)

DIRECT EXAMINATION BY MR. LEE:

Q

O > >

© >

Ms. McDonald, do you know the defendant on my left

here (indicating)?

Yes. He is my son.

That is your son?

Yes, sir.

Do you know the lady that he was living with at the

time that this baby was allegedly to have been

struck?

Yes, I do.

Did she, Loretta and your son approach you one day

in connection with a soft spot or what appeared to

be a wound i the baby’s skull?

MR. KLEIN:

Objection. Leading.

THE COURT:

The court is going to overrule the objection.

DIRECT EXAMINATION BY MR. LEE:

Q

A

Q

You can respond.

Yes, sir.

Now, tell the Court, please, the conversation from you

to the defendant, Teddy, your son and Loretta, in

connection with that baby?

A-16

A It was s Sunday night. My son had ambulance duty

that day. He was at the picnic. They were on

stand-by. He had told me that morning when I

called him to wake him up for ambulance duty,

that after he was on duty, they would go bowling.

Well, that night, they came by my house and he

said: ‘‘Mama, I want you to look at Elizabeth's

head, the baby.’’ And It had a little soft spot on

the left side. And I asked and I said, ‘‘What hap-

pened?”’ And Loretta said, ‘‘Well, today when I

was washing the baby, she was irritable and cross

and she didn’t want to take her bath.”’ And she

said, ‘‘So, I picked her up and I said, ‘‘Little girl,

you are going to take your bath or else.”

MR. KLEIN:

Your Honor, I will object again to all of this as pure

hearsay. Now, this is impeaching testimony of

the State’s witness. And in order to impeach a

State witness, certain procedures have to be

followed. You can’t introduce impeaching

testimony until you have asked the witness, ‘‘Did

you make such and

A-17

APPENDIX E

ENTIRE CASE, STATE OF LOUISIANA V BERKLEY,

482 Snd 140 (1986)

STATE of Louisiana

Vv.

Debra BERKLEY.

Fourth Circuit.

Jan. 15, 1986.

Defendant was convicted in the Criminal District

Court, Parish of Orleans, Frank A. Marullo, J., of cruelty

to juveniles, and defendant appealed. The Court of Appeal,

Byrnes, J., held that failure to present evidence showing

that defendant was over age of 17 was error patent.

Reversed.

Criminal Law 1129(1)

Infants 20

Failure to present evidence establishing that defen-

dant was over age of 17 was error patent in trial for cruelty

to juveniles.

LSA—R:S. 14:93.

Craig Cowart, Orleans Indigent Defendant Program,

New Orleans, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge,

Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Judith

Brewster, Asst. Dist. Atty., New Orleans, for appellee.

Before WARD and BYRNES, JJ., and PRESTON

H. HUFFT, J. Pro Tem.

A-18

BYRNES, Judge.

Defendant was convinced of cruelty to juveniles, a

violation of R.S. 14:93 and sentenced to eighteen months in

Parish Prison. This sentence was suspended and defendant

was placed on three years active probation with special con-

ditions. Defendant has appealed her conviction, assigning

as error the sufficiency of the evidence against her.

STATEMENT OF FACTS

On March 2, 1981, at approximately 10:00 a.m. the

defendant’s sister, Ms. Trivia Wicks, left her four-month

old son, Larry Donwell, in the defendant’s care at 6 Mars

Place (or Court) where the defendant and her sister resided.

Later that day, Ms. Linda Billups, a Human Service

worker, investigated a claim of neglect at this address. She

found six children present, the oldest was seven years old

and the youngest (the alleged victim in this case) was four

months old. The house was dirty and in disorder. The milk

in the baby’s (the alleged victim’s) bottle was nearly sour

and there was no other food in the house suitable for the

baby.

Detective Joan Charles of the NOPD Child Abuse

Division also investigated this residence. She found the

alleged victim lying on a urine soaked mattress with a bot-

tle containing nearly sour milk. The cloth the baby was

wearing was wet. She also discovered human feces on a kit-

chen chair and in the bathroom.

ERRORS PATENT

We have reviewed the record for errors patent and

find errors.

A-19

SUFFICIENCY OF EVIDENCE

At the time of the offense, R.S. 14:93 provided:

Cruelty to juveniles is the intentional or criminal-

ly negligent mistreatment or neglect, by anyone

over the age of seventeen, 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.

Whoever commits the crime of cruelty to

juveniles shall be fined not more than one thou-

sand dollars, or imprisoned for not more than two

years, with or without hard labor, or both.

Due process is not satisfied, and a conviction cannot

stand unless the State proves the essential elements of the

crime beyond a reasonable doubt. State v. Trosclair, 443

So.2d 1098 (La. 1983). Applying this principle to the pre-

sent case, the state was required to prove:

1. That the defendant was over the age of

seventeen;

2. That the victim was under the age of seventeen;

3. That the victim was caused unjustifiable pain

or suffering; and

4. That the defendant intentionally mistreated or

neglected the victim, or

5. That the defendant was criminally negligent in

her mistreatment or neglect of the child.

State v. Green, 449 So.2d 141 (La.App. 4th Cir. 1984).

The record reveals that no evidence was presented at

trial establishing that the defendant was over the age of

seventeen. Because the State failed to prove this essential

element of the crime, we must reverse defendant’s

conviction.

REVERSED.

A-20

APPENDIX F

APPLICATION FOR REHEARING TO THE

SUPREME COURT OF LOUISIANA

No. 87-K-2419

DENIAL OF RECONSIDERATION

(REHEARING(

ENTERED ON APRIL 11, 1988

In the

Supreme Court of Louisiana

EEE KEE SKE KKE KEKE EE

STATE OF LOUISIANA

VS

TEDDY ROUSSELLE

APPLICATION FOR RE-HEARING

87-K-2419

Robert E. Lee

Attorney for Relator

3942 Peach Tree Crt.

New Orleans, La. 70131

391-0472

Relator

A-21

SUBJECT INDEX

CITATIONS OF AUTHORITY

State v. Berlkey,

482 S2 140

State v. Trosclair,

443 S2 1098, (cited in Berkley)

U.S. CONSTITUTION

A-22

ERROR COMPLAINED OF:

I The Fourth Circuit Court of Appeals committed er-

ror by not following the express law set out in State v

Berkley, 482 Snd 140 (Fourth Cir.) which held that failure

to present evidence (emphasis by undersigned) that defen-

dant was over the age of 17 was error patent in a trial for

cruelty to juveniles. The Court went on to state that ‘“The

record reveals that no evidence was presented at trial

establishing that the defendant was over the age of seven-

teen. Because the State failed to prove this essential

(emphasis-undersigned) element of the crime, we must

reverse the defendant's conviction.”

Ij The Fourth Circuit Court of Appeals committed er-

ror by denying defendant's mother, Joan McDonald, the

right to testify; this Court affirmed the Fourth Circuit and

defendant herein adopts Judge Dennis Barry's dissenting

opinion therein for the reasons expressed therein.

ARGUMENT:

The Supreme Court did not address this crucial issue

of defendant's age and the failure of the State to present

evidence as to defendant's age, ie., was he over the age of

17? State v. Hampton, supra states that “the State failed

to prove this essential element of the crime ....... . Criminal

statutes must be read stricti juris.

CONCLUSION

For this Supreme Court of Louisiana to not address

the serious, crucial issue of the defendant's age with the

State's failure, or negligence in not presenting evidence

thereto is a violation of defendant's rights under the U.S.

Constitution, the 5th amendment and the Equal Protection

Clause of the U.S. Constitution.

a |

A-23

CERTIFICATE

I hereby certify that I have mailed a copy of this Ap-

plication for Re-Hearing to all counsel of record and the

District Attorney for the Parish of Plaquemines, on the

21st day of March, 1988.

s/ Robert E. Lee —

Robert E. Lee

Attorney for defendant

3942 Peach Tree Crt.

New Orleans, La., 70131

391-0472