State v. Galliano, 05-KA-962.

• Decision Date: 29 August 2006
• Docket Number: No. 05-KA-962.,05-KA-962.
• Citation: 945 So.2d 701
• Parties: STATE of Louisiana v. Joe GALLIANO.
• Court: Court of Appeal of Louisiana — District of US

Page 701

945 So.2d 701

STATE of Louisiana v. Joe GALLIANO.

No. 05-KA-962.

Court of Appeal of Louisiana, Fifth Circuit.

August 29, 2006.

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Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, David Wolff, Churita Hansell, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Ferdinand J. Kleppner, Metairie, Louisiana, for Defendant/Appellant.

Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and JAMES C. GULOTTA, Pro Tempore.

CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

The Jefferson Parish District Attorney filed a bill of information charging the defendant, Joe Galliano, with second degree cruelty to a juvenile, a violation of LSA-R.S. 14:93.2.3. The defendant pled not guilty at arraignment.¹ After a hearing, the trial judge denied the defendant's motion to suppress his statement on September 16, 2002.

The defendant requested notice of any evidence the State intended to introduce under LSA-C.E. art. 404(B) and moved for a hearing on that evidence. The State noticed its intent to introduce evidence that the victim had sustained a spiral fracture of his femur while in the defendant's care several months before the charged offense. After a hearing, the trial judge ruled the evidence was admissible on October 11, 2002. The defendant sought writs to this Court, which reversed the decision of the trial court.² The State applied to the Louisiana Supreme Court, which reversed this Court's decision on January 10, 2003.³

On November 23, 2004, the defendant filed a motion in limine to exclude evidence of an incident that occurred to the victim's head when the defendant was removing the child from the defendant's vehicle on the day of the charged offense. The trial judge ruled that the evidence was admissible on November 30, 2004.

The trial before a twelve-person jury began on November 30, 2004 and lasted until December 3, 2004, when the jury returned a verdict of guilty as charged. The defendant filed a motion for new trial and a motion to recuse the trial judge before hearing the defendant's motion for new trial. Both motions were denied. After an extensive sentencing hearing, the trial judge sentenced the defendant to 40 years of imprisonment at hard labor on March 3, 2005. The defendant's motion to reconsider the sentence was denied. This timely appeal follows.

FACTS

On Wednesday, November 14, 2001, the defendant was babysitting two-year-old Christopher Cook, the son of the defendant's fiancée, Stacy Cook, at their residence at 2340 Missouri Street in Metairie. Sometime after 12:00 p.m., the child began having seizures and difficulty breathing. The defendant brought the child next door to his father's residence, where 911 was called and the child was taken to East Jefferson General Hospital. Later that afternoon, the child was transferred to Children's Hospital where he was treated by a number of physicians, including Dr. Scott Benton, who was accepted at trial as an expert pediatrician. The child was unconscious and was on a ventilator. He was in critical condition and it was the consensus of the medical team that the child would probably die.⁴ Dr. Benton reviewed East Jefferson's medical records on the child, which revealed that he had sustained a closed head injury without significant external trauma. The CAT scan showed subdural bleeding, which is blood in between the halves of the brain and under the membrane covering the brain. There was also evidence of cerebral edema, or brain swelling. Dr. Benton observed that the child was suffering retinopathy, or bleeding behind the eyes. Dr. Nadell, a pediatric neurosurgeon, was consulted to monitor the child's intracranial pressure, which was three times the normal level. He inserted a pressure monitor into the child's skull.

The Jefferson Parish Sheriff's Office was notified and Sergeant Kelly Jones of the Personal Violence Unit was one of the first responders to Children's Hospital. Sergeant Jones talked to the defendant while another officer interviewed Stacy Cook. After waiving his rights, the defendant agreed to answer Sergeant Jones' questions. He told the officer that, while playing with the family's new puppy, Christopher had wet his pants. Shortly thereafter, he began having a seizure. Defendant took the child to his father's house, which was nearby, where his father called 911.

The defendant also told Sergeant Jones that the child had been with James Cook, the child's grandfather, over the weekend in Independence, Louisiana. The defendant speculated that the child could have hurt himself when the child was in Mr. Cook's vehicle by himself and the vehicle rolled down an embankment. Because the physicians believed the child's condition was life threatening, Jefferson Parish Homicide Officers took over the investigation at the hospital.

Meanwhile, Sergeant Jones and another officer went to interview James Cook. At trial, Mr. Cook testified that he went to a local landfill with his son John, and Christopher on the Saturday preceding the incident. While Mr. Cook and John were disposing of the trash, Christopher slid over the seat in the El Camino and put the car in drive or in neutral. The car rolled four to five feet down a slight slope. Mr. Cook walked alongside the car until it stopped. Mr. Cook explained that Christopher was in a seatbelt, but could reach the gear shift because the El Camino had the old style of "lap belts." Mr. Cook said that Christopher was not injured and went about his normal activities the rest of the day and night. Stacy picked up Christopher on Sunday. Sergeant Jones and her partner photographed and inspected the vehicle, which had minor damage, but nothing that appeared recent. Significantly, the officers found no damage to the vehicle that might account for the child's current condition.

Homicide Detective Morales and another officer met the defendant and Stacy at the hospital. The officers brought both of them to the Investigations Bureau in Harvey. Detective Morales informed the defendant that he was under investigation for criminal child abuse and advised him of his constitutional rights. The defendant waived his rights and made a recorded statement to Detective Morales at 10:20 p.m. The defendant told the officer that the child stayed with his grandfather on Saturday. When he and Stacy picked him up on Sunday, they noticed bruises on the child's chin, forehead, and left arm. The defendant said the child had a fever and vomited on Monday and Tuesday. The next morning, the defendant dropped Stacy at work, and went home. His father came over for a visit and played with Christopher, and the defendant's daughter, Rochelle, who had spent the night. Around 11:00, the defendant went to his brother's house to pick up a puppy. The defendant brought Rochelle home around noon. Around 1:30 p.m., Christopher was playing with the puppy and the defendant noticed that the child had wet his pants again. The defendant took the child inside to change him and then the child appeared to have a seizure. He ran with the child to his father's house, and performed CPR while his father called 911.

Detective Morales asked the defendant about an incident in June of 2001, in which Christopher sustained a spiral fracture to his femur while in the defendant's care. The defendant said he was having a conversation with his father while simultaneously removing the child from his car seat. The child's leg got caught in the booster seat and the defendant heard a popping noise. The defendant called Stacy and the two of them brought the child to the hospital. Thereafter, the Office of Child Protective Services placed Christopher in the custody of his grandfather, James Cook.

Because Detective Morales believed that the defendant had not been completely forthcoming, Detective Morales took the defendant to another room to talk to another officer. After approximately 15 minutes, the officer told Detective Morales that the defendant had failed to tell him something in the first statement. A few hours later, the defendant made another recorded statement. The defendant admitted he had failed to tell Detective Morales about an accident that had occurred at approximately 8:00 a.m. on November 14^th at Stacy's work. The defendant said that he had removed the child from his car seat after bringing Stacy to work. While he was taking the child out of the Yukon, he shut the door on the child's head. The defendant explained that there was a construction barrel near the door of the Yukon that interfered with his ability to close the door. The child cried for few minutes, but was fine later on. The defendant said he did not tell the detective about the incident because he was afraid he would be arrested, considering he had previously been accused of breaking the child's leg. The defendant said that he had not omitted any other incidents since that morning and that he had told Detective Morales everything to a "T."

This statement lasted about 10 minutes, and Detective Morales brought the defendant and Stacy home. Later that evening, the defendant's father, Roy Galliano, came to the police station and the defendant came with him. Sergeant Thornton advised the defendant of his rights and the defendant signed a waiver of rights at 7:20 p.m. The defendant did not make any recorded statements, but Sergeant Thornton wanted to ensure that the defendant was advised of his rights before engaging in any conversation with the defendant. The defendant did not reveal any new information to Sergeant Thornton.

On November 16, 2001, Detective Morales and Sergeant Thornton met with Dr. Benton, who pinpointed the time frame of the injury to moments before the 911 call. Dr. Benton informed the officers that the child's injuries were indicative of being shaken with his head being thrown back and forth. Dr. Benton said that the injuries were...