193 So.3d 487
Jeff Landry, Attorney General, Terri R. Lacy, Heather Hood, Assistant Attorneys General, Baton Rouge, LA, for Plaintiff/Appellee.
Tonya Otkins–Victor, Louisiana Correctional Institute for Women, St. Gabriel, LA, for Defendant/Appellant.
Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
JUDE G. GRAVOIS, Judge.
|
INTRODUCTION |
488 |
|
ASSIGNMENTS OF ERROR |
488 |
|
PROCEDURAL HISTORY |
489 |
|
FACTS |
490 |
| ASSIGNMENT OF ERROR NUMBER FIVE |
| |
Sufficiency of the evidence |
501 |
| ASSIGNMENT OF ERROR NUMBER ONE |
| |
First Amendment violation—free exercise of religion |
506 |
| ASSIGNMENT OF ERROR NUMBER TWO |
| |
Failure to grant motion for a continuance |
513 |
| ASSIGNMENT OF ERROR NUMBER THREE |
| |
Improper allotment of defendant's case |
518 |
| ASSIGNMENT OF ERROR NUMBER FOUR |
| |
Violation of La.C.Cr.P. art. 673 after motion for recusal filed |
522 |
| ASSIGNMENT OF ERROR NUMBER SIX |
| |
Denial of defendant's expert witness testimony |
524 |
| ASSIGNMENT OF ERROR NUMBER SEVEN |
| |
Violation of right to a speedy trial |
528 |
| ASSIGNMENT OF ERROR NUMBER EIGHT |
| |
Violation of right to confrontation |
532 |
| ASSIGNMENT OF ERROR NUMBER NINE |
| |
Improper composition of the Grand Jury |
533 |
| ASSIGNMENT OF ERROR NUMBER TEN |
| |
State pursued a bad-faith indictment and prosecution against Mr. Errol Victor Sr., LS and Mrs. Tonya Victor, LS. The prosecution as a whole was contrary to medical evidence and gender driven to the detriment of Mr. Errol Victor. [Gender Discriminatory Motives][.] |
534 |
| ASSIGNMENT OF ERROR NUMBER ELEVEN |
| |
Jurisdiction and Status |
535 |
| ASSIGNMENT OF ERROR NUMBER TWELVE |
| Defendant complains that she was brought before a court which lacked competent jurisdiction to conduct proceedings against her due to pending judicial district-wide motion to recuse all judges of the 40th JDC and because defendant denied corporate status. Defendant avers that these proceedings have root in vindictive prosecution because the D.A. and his staff were political and business enemies of defendant and the judicial process was utilized to execute personal retribution against defendant. The case before the court is a complete derivative of the twice-dismissed cases: 2008–CR–165; 2010–CR–172, (66175, 66575, 66576, 46420). A resultant acquittal from abandonment of legal appeal, res nova violation is claimed by defendant |
536 |
|
ERRORS PATENT REVIEW |
539 |
| CONCLUSION |
539 |
193 So.3d 488
INTRODUCTION
Defendant, Tonya Otkins–Victor, was convicted by a jury of the manslaughter of her son, the minor child M.L. Lloyd, III (“M.L.”). On appeal, she argues multiple assignments of error as noted below. After thorough review, we find no reversible error, and affirm defendant's conviction and sentence.
ASSIGNMENTS OF ERROR 1
1. The trial court abused its discretion in conducting trial on a Saturday, on defendant's Sabbath day, violating her right to the freedom of exercising his [sic] religious beliefs under the First Amendment of the U.S. Constitution and Article 1, § 3 of the Louisiana Constitution of 1974.
2. The trial court abused its discretion when it denied defendant's 6th Amendment Right to Counsel of Choice, because counsel wanted a few days on a continuance to get familiar with a few issues in the case before enrolling and representing him [sic] at trial.
3. Defendant's due process and equal protection rights was [sic] violated when her case was erroneously allotted “judge shopped ” to another court division and assigned a new case number after a re-indictment, while other re-indicted cases similar situated remained in the original allotted divisions and kept the same case numbers.
4. Defendant was denied her rights of a fair proceeding and due process of law when all the judges of the 40th JDC could not act, because a motion to recuse was filed on all the 40th JDC judges.
5. The Evidence Presented in The Trial Court Was Insufficient to Convict Defendant of Manslaughter Murder.
6. The Trial Court Abused Its Discretion by Restricting Defendant of The Right to Present an Expert Witness on Her Own Behalf And Restricting Evidence Showing Lack of Credibility of Witnesses.
7. Defendant Rights to a Speedy Trial Rights [sic] Was Violated on State and Federal Levels[.]
8. Defendant Was Deprived of Her Rights to Confront and Cross-examine Coroner During Trial.
9. Unconstitutional Jury-fixing Resulting in Discrimination and Tainted Jury Pool Requiring Disqualification of All Jurors (6th, and 14th Amend)
10. State pursued a bad-faith indictment and prosecution against Mr. Errol Victor Sr., LS and Mrs. Tonya Victor, LS. The prosecution as a whole was contrary to medical evidence and gender driven to the detriment of Mr. Errol Victor. [Gender Discriminatory Motives][.]
11. When Through Negative Averment of Jurisdiction “Status” and “Jurisdiction” Are Placed at Issue, the
193 So.3d 489
Burden Shifts to the Purported Party Asserting Competent Jurisdiction.
12. Defendant complains that she was brought before a court which lacked competent jurisdiction to conduct proceedings against her due to pending judicial district-wide motion to recuse all judges of the 40th JDC and because defendant denied corporate status. Defendant avers that these proceedings have root in vindictive prosecution because the D.A. and his staff were political and business enemies of defendant and the judicial process was utilized to execute personal retribution against defendant. The case before the court is a complete derivative of the twice-dismissed cases: 2008–CR–165; 2010–CR–172, (66175, 66575, 66576, 46420). A resultant acquittal from abandonment of legal appeal, res nova violation is claimed by defendant.
PROCEDURAL HISTORY 2
On April 1, 2008, the eight-year-old boy M.L. Lloyd, III, was brought to the emergency room at River Parishes Hospital in St. John the Baptist Parish, unresponsive, by his mother, defendant Tonya Otkins–Victor, his step-father, codefendant Errol Victor, Sr. (“Mr. Victor”),3 and his step-brother, Errol Victor, Jr. Emergency room personnel were unable to revive M.L. During emergency treatment, after M.L.'s clothes were removed, it was discovered that his backside from his neck to his knees was covered in deep bruises. Other injuries were discovered as well: M.L.'s buttocks were both scraped, he had wounds on his forearm, and an injury to his neck.
On April 15, 2008, defendant Tonya Otkins–Victor was charged by indictment with accessory after the fact to first degree murder and cruelty to a juvenile. On the same day, co-defendant Mr. Victor was charged by indictment with one count of first degree murder, in violation of La. R.S. 14:30.4 Defendant's case was randomly allotted to Division “A” under case number 2008–CR–165 of the 40th Judicial District Court, Judge Madeline Jasmine presiding. Defendant pled not guilty at arraignment.
On September 22, 2009, both defendant and Mr. Victor's charges were amended by indictment to second degree murder, while engaged in the perpetration of the crime of cruelty to a juvenile, in violation of La. R.S. 14:30.1(A)(2)(b). Defendant subsequently filed a motion to quash the indictment, which was granted on February 4, 2010. In written reasons, Judge Jasmine determined that the indictment must be quashed because of the “participation of the St. John the Baptist Parish Sheriff's Deputy in the grand jury process as a grand juror while wearing a shirt which openly advertised his employment with an office inherently aligned with the State.” After initially filing for reconsideration and/or an appeal of the judgment, on April 6, 2010, the State filed a notice of dismissal
193 So.3d 490
without prejudice of all pending charges in case number 2008–CR–165.
Six days later, on April 12, 2010, a newly empaneled grand jury re-indicted defendant and Mr. Victor with second degree murder, while engaged in the perpetration of the crime of cruelty to a juvenile, in violation of La. R.S. 14:30.1(A)(2)(b). The case was randomly allotted to Division “B,” case number 2010–CR–172 of the 40th Judicial District Court, Judge Mary Hotard Becnel presiding. Defendant refused to enter a plea at arraignment; the trial court entered a plea of “not guilty” on her behalf. Defendant filed multiple pre-trial motions, including a Motion to Recuse all of the judges on the 40th Judicial District Court on May 12, 2010, and an “Objection to ‘Allotment’ of Case to Division ‘B’ and Motion for Transfer to Division of Original Allotment Division ‘A,’ ” on May 17, 2010.5 All hearings on motions were stayed until the motion to recuse was heard by appointed ad hoc Judge Frank Foil on July 1, 2010. Judge Foil denied the motion to recuse. The motion to transfer to the originally allotted division was heard on August 4, 2010, and denied with written reasons on August 18, 2010.
Trial was originally scheduled to begin on August 16, 2011. However, defendants, who were out of jail on bond pending trial, did not appear in court on that day. It was later determined that they had absconded from the State of Louisiana. Defendants were located in Tifton, Georgia, in April 2012, whereupon they were extradited to the State of Louisiana to face the pending charges.
Trial commenced before a twelve-person jury as to both defendants on July 22, 2014. On August 1, 2014, the jury found defendant guilty of the responsive verdict of manslaughter.6 Prior to sentencing, defendant filed several post-verdict motions, including a motion for post-verdict judgment of acquittal, motion in arrest of judgment, and motion for a new trial, all of which were denied by the trial court on August 25, 2014. On September 15, 2014, defendant was sentenced to twenty-one years imprisonment at hard labor without the benefit of probation or suspension of sentence. The trial court further ordered defendant's sentence to run consecutively with any other sentence defendant may have been serving.7
Pursuant to defendant's oral motion for appeal made immediately...
