State v. Marinello

• Decision Date: 06 October 2010
• Docket Number: No. 09-1260.,09-1260.
• Citation: 49 So.3d 488
• Parties: STATE of Louisiana v. Vincent MARINELLO.
• Court: Court of Appeal of Louisiana — District of US

49 So.3d 488

STATE of Louisiana
v.
Vincent MARINELLO.

No. 09-1260.

Court of Appeal of Louisiana,
Third Circuit.

Oct. 6, 2010.

49 So.3d 490

Paul Connick, Jr., District Attorney, Jefferson Parish, Thomas Block, Andrea F. Long, Vincent Paciera, Jr., Juliet Clark, Roger W. Jordan, Jay W. Adair, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.

Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Vincent Marinello.

Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA, for Defendant/Appellant, Vincent Marinello.

Vincent Marinello, Angola, LA, pro se.

Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.

AMY, Judge.

**1 A jury convicted the defendant of second degree murder following the shooting death of his estranged wife. The trial court imposed a mandatory life sentence following the unanimous verdict. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that Mary Elizabeth "Liz" Marinello was shot twice in the face at approximately 3:57 p.m. on Thursday, August 31, 2006. The offense occurred while Liz was in the parking lot of the Metairie Towers office building in Jefferson Parish. Although others found Liz immediately after the shooting and she was taken to the hospital, she died during the early morning hours of September 1st.

Responding officers from the Jefferson Parish Sheriff's Office (JPSO) learned that Liz was shot while leaving her therapist's office after attending her regularly scheduled therapy session. The investigating detectives also learned that Liz was in the midst of divorce proceedings with her estranged husband, Vincent Marinello.

49 So.3d 491

Witnesses informed detectives that, in the time frame immediately before the murder, as well as in the days preceding the murder, a man was seen in the area riding a bicycle. Among other things, witnesses described the man seen on the day of the murder as warmly dressed for the August temperatures and explained that he had facial hair.

A detective was assigned to retrieve the security camera footage from Metairie Towers, located at 433 Metairie Road. He explained it revealed a person standing in and moving about the parking lot before the murder. At trial, one witness verified that the person on the video tape met the description of a man who made her nervous when she exited the building shortly before the murder.

**2 In an initial statement to detectives, Mr. Marinello explained that on the evening of August 31st, he was at the home of friends, Annette and David Daniels, in Mississippi. He stated that he left the Lakeview ¹ area of Metairie at approximately 3:15-3:30 p.m. and arrived at the Daniels' home at around 6:00 p.m. Detectives obtained Mr. Marinello's cell phone records from the relevant time period and spoke with the Daniels regarding a .38 caliber revolver once in their possession.

Subsequently, detectives executed search warrants of, among other places, the white Ford Taurus Mr. Marinello was driving as a loaner vehicle and the FEMA trailer where he was living following his separation from Liz. Detectives also interviewed witnesses regarding Mr. Marinello's alleged purchase of a fake mustache and .38 caliber bullets consistent with fragments recovered from the body of the victim.

A grand jury indicted Mr. Marinello for second degree murder in December 2006. In light of media coverage, the trial court granted the defendant's motion for change of venue. In December 2008, following a jury trial in Lafayette in the Fifteenth Judicial District,² a jury returned a unanimous verdict of guilty as charged.

The defendant appeals, assigning the following as error:

1) The evidence introduced in the trial of this case was insufficient to prove that Appellant was the person who shot and killed Mary Elizabeth Marinello.

2) **3 The trial court erred in permitting the prosecution to introduce alleged other bad acts and uncharged offenses. The court also erred in allowing prosecution witness Gwen Hanhart to testify as to the personal advise [sic] she gave her divorce clients. Further, the prosecution's closing argument and rebuttal argument unduly highlighted this improperly admitted evidence and the requested mistrial should have been granted. Admission of this highly prejudicial evidence violated Appellant's

49 So.3d 492

right to a fair trial guaranteed to him by U.S. Constit. Amend. 5 & 6 and La. Constit. Art. I, § 16.

3) The trial court erred in denying the defense's request to disqualify the Jefferson Parish District Attorney's Office from prosecuting the case.

4) The trial court erred in denying the defense's Motion to Quash the Grand Jury Indictment.

5) The trial court erred in denying the Motion to Suppress Evidence.

6) The trial court erred in denying the Motion to Suppress Cell Phone Records.

7) The demeanor, actions and arguments of the prosecutors during the trial of this case exceeded those acceptable and were so prejudicial as to deny Appellant his constitutionally guaranteed right to a fair trial.

8) The trial court erred in denying the Motion to Quash Indictment as Constitutionally Deficient.

In a pro se brief, the defendant supplements several of the above assignments.

Errors Patent

Our review of the record pursuant to La.Code Crim.P. art. 920 reveals no errors patent.

Sufficiency of the Evidence

The defendant first contends that the State did not prove that he was the individual who killed Liz. He asserts that the State's case was flawed by its failure to present the bicycle allegedly ridden by the suspect, present the weapon used, connect the weapon to him, or present the beard allegedly worn by the suspect. He **4 also points out that no bloody clothing was recovered and that the victim's blood was not found inside of his car. As he did at trial, the defendant questions the State's characterization of a "checklist" recovered from his trailer and further argues that the State did not establish a motive for the crime. Although he and the victim were divorcing, he contends that the process was no more turbulent than most. Finally, the defendant contests the recollection and credibility of several witnesses.

In State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86, the supreme court explained that:

The standard of appellate review for a sufficiency of the evidence claim 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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Mussall, 523 So.2d 1305 (La.1988). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. State v. Silman, 95-0154 (La.11/27/95), 663 So.2d 27, 35. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. State v. Bordenave, 95-2328 (La.4/26/96), 678 So.2d 19, 20. It is not the function of an appellate court to assess credibility or re-weigh the evidence. Id.

The jury convicted the defendant of second degree murder, defined at La.R.S. 14:30.1(A)(1) as: "the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm [.]" While the defendant points to what he contends are weaknesses in the State's case, the record contains more than sufficient evidence to support the conviction of second degree murder, particularly when viewed in the light most favorable to the State as required by the Jackson standard.

49 So.3d 493

Captain Dennis Thornton, Commander of the JPSO Homicide Division, explained that, after the call regarding the crime was received at 3:58 p.m., he traveled to the scene. He assigned himself scene investigator. While on site, he **5 spoke with Mary Ann Catalanotto, a social worker whose office is in Metairie Towers. She explained that Liz had a standing appointment each Thursday at 3:00-3:50 p.m. to address anxiety and depression related to marital problems. Captain Thornton testified that Ms. Catalanotto explained to him that the defendant was aware of the appointment as he attended sessions with Liz in the past. Captain Thornton also learned that Liz and the defendant were in the midst of divorce proceedings.

The State presented further evidence surrounding the difficulties of the Marinello marriage as a potential motive for the murder. Attorney Gwen Hanhart testified that she filed a divorce petition on Liz's behalf on July 10, 2006. She explained that the defendant vacated the marital home in Harahan between July 24th and August 1st. On August 2nd, she prepared an amended petition asking that the marriage be annulled due to an allegation that the defendant was not divorced from his former wife at the time of the marriage. Ms. Hanhart explained that, after speaking with the defendant's attorney, she drafted a consent judgment and, on August 31st, sent the original judgment to him.

The State also presented video surveillance footage and testimony in support of its theory that the defendant, dressed in disguise and riding a bicycle to the scene, killed Liz. Sergeant Dax Russo of the JPSO retrieved the surveillance footage from Metairie Towers. Sergeant Russo explained that the State's suspect, wearing a cap and a flannel/plaid type shirt over a white shirt, first appeared on the video at 3:30 p.m. and that he paced in the parking lot area, with arms crossed at times, in the following minutes. He testified that, by 3:53 p.m., the suspect moved in the direction of Liz's vehicle and the victim left the building three minutes later. Sergeant Russo stated that Liz was found in the area of her vehicle and suggested that an elongated **6 pixel on the...