State v. Saltzman

• Citation: 128 So.3d 1060
• Decision Date: 04 December 2013
• Docket Number: No. 13–276.,13–276.
• Parties: STATE of Louisiana v. Carol Noland SALTZMAN.
• Court: Court of Appeal of Louisiana (US)

128 So.3d 1060

STATE of Louisiana

v.Carol Noland SALTZMAN.

No. 13–276.

Court of Appeal of Louisiana, Third Circuit.

Oct. 23, 2013.

Rehearing Denied Dec. 4, 2013.

Glen D. Vamvoras, Shane Hinch, Vamvoras, Schwartzberg & Hinch, St. Lake Charles, LA, for Defendant/Appellant, Carol Noland Saltzman.

John Foster DeRosier, District Attorney, Carla Sue Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges.

SAUNDERS, Judge.

On December 10, 2009, the Defendants, Robyn B. Little Davis (Defendant–Davis) and Carol Noland Saltzman (Defendant–Saltzman) were charged by grand jury indictment with the first degree murder of Defendant–Davis' husband, William Brian Davis.¹ On May 3, 2011, the indictment was amended to charge both Defendants with second degree murder. Both Defendants entered a plea of not guilty on November 7, 2011. The case was called for trial on November 7, 2011, at which time jury selection began and continued until a jury was selected on November 10, 2011. Before the conclusion of jury selection, the testimony of one of the State's witnesses, Roxanne Baumgarten, was perpetuated. The day after jury selection was completed, November 11, 2011, the State requested a continuance because of the physical health of the prosecutor in the case, Rick Bryant. Over the objections of defense counsel for both Defendants, the trial court granted the continuance. The trial court also refused defense counsels' request to swear in the jury.

On November 15, 2011, the Defendants filed a “Motion to Quash Prosecution and for the Dismissal of the Indictment with Prejudice.” Subsequently, on January 6, 2012; January 18, 2012; and January 24, 2012, the trial court heard testimony and argument regarding the motion to quash and dismissal. Both Defendants argued that double jeopardy attached when the State perpetuated the testimony of Roxanne Baumgarten before the trial court granted the State's continuance based on Mr. Bryant's health. The trial court denied the motion to quash based on double jeopardy. The Defendants also argued that the charges against them should be dismissed because of the prejudice they suffered by the granting of the continuance. The trial court denied the motion to quash and dismiss the charges on the prejudice grounds as well. On March 28, 2012, this court denied a writ application filed by both Defendants. State v. Davis and Saltzman, 12–236 (La.App. 3 Cir. 3/28/12) (unpublished opinion). This court instructed the trial court “to proceed with the trial as expeditiously as possible, with the original jury, if such can be accomplished without resulting prejudice [sic] to any party.” Id. If the trial could not proceed with the original jury, this court instructed the trial court to call a new jury panel. Id. Thereafter, on April 18, 2012, the supreme court denied a writ application filed by the Defendants. State v. Davis and Saltzman, 12–834 (La.4/18/12), 85 So.3d 1255.

Attempting to comply with this court's instructions, the trial court recalled the original jurors on April 23, 2012. Because several jurors had to be excused for cause, the trial court released the original jury and a new jury was selected. Both Defendants were tried before the same jury in a thirteen-day jury trial. At the close of the evidence, the defense moved to strike the responsive verdicts of manslaughter and negligent homicide. By an 11–1 vote, the jury found both Defendants guilty of second degree murder. The trial court subsequently denied motions for new trial and for post-verdict judgment of acquittal filed by the Defendants. Finally, on August 24, 2012, the trial court sentenced both Defendants to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence.

On August 24, 2012, Defendant–Davis' attorney filed a timely motion for appeal. Pursuant to that motion, Defendant–Davis is presently before this court, alleging nine assignments of error.

FACTS:

On July 1, 2009, a dead body was discovered lying next to a Honda Accord off of Big Lake Road in Calcasieu Parish. When deputies responded to the scene, the car's trunk and doors were open, and the car looked like it had been jacked up to change a tire. Deputies discovered that the vehicle was registered to Defendant–Davis and that Defendant–Davis had reported her husband missing. William Brian Davis' driver's license was also found in the vehicle. According to the autopsy report and death certificate, the body was identified as William Brian Davis by dental records and the presence of tattoos on his body.

Dr. Terry Welke, the coroner for Calcasieu Parish, estimated William Brian Davis' time of death to be sometime after 12:00 p.m. on June 29, 2009. He died of four gunshot wounds, one to the head and three to the torso. Dr. Welke ruled the manner of death as a homicide.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR NUMBER SIX:

We will address this assignment first, as it attacks the sufficiency of the evidence. A finding of insufficiency would require reversal of the conviction and, thus, obviate the need for discussion of the other eight assignments of error. See State v. Hearold, 603 So.2d 731 (La.1992).

This court has stated the following regarding the standard for reviewing a claim of insufficient evidence:

The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05–11, p. 91 (La.7/10/06), 936 So.2d 108, 170,cert. denied,549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05–477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96–1048 (La.10/4/96), 680 So.2d 1165;State v. Lubrano, 563 So.2d 847, 850 (La.1990)). The appellate court's function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94–3116 (La.10/16/95), 661 So.2d 442.

The factfinder's role is to weigh the credibility of witnesses. State v. Ryan, 07–504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. Thus, other than ensuring the sufficiency evaluation standard of Jackson, “the appellate court should not second-guess the credibility determination of the trier of fact,” but rather, it should defer to the rational credibility and evidentiary determinations of the jury. Id. at 1270 (quoting State v. Lambert, 97–64, pp. 4–5 (La.App. 3 Cir. 9/30/98), 720 So.2d 724, 726–27). Our supreme court has stated:

However, an appellate court may impinge on the fact finder's discretion and its role in determining the credibility of witnesses “only to the extent necessary to guarantee the fundamental due process of law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the factfinder's role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’ ” McDaniel v. Brown, 558 U.S. [120,] [134], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ](quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Applied in cases relying on circumstantial evidence, ... this fundamental principle of review means that when a jury “reasonably rejects the hypothesis of innocence presented by the defendant[ ], that hypothesis falls, and the defendant is guilty unless there is another hypothesis which raises a reasonable doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984).

State v. Strother, 09–2357, pp. 10–11 (La.10/22/10), 49 So.3d 372, 378 (alteration in original).

State v. Francis, 12–1221, pp. 6–7 (La.App. 3 Cir. 4/3/13), 111 So.3d 529, 533 (alteration in original).

Defendant–Saltzman argues that the State's case against her was a very weak circumstantial evidence case, devoid of any evidence that she was present during the commission of the murder, directly committed the murder, aided or abetted in the murder, or directly or indirectly procured another to commit the murder. The Defendant alleges that the “evidence, when viewed in the light most favorable to the State, merely showed that her cell phone may have been within a geographical area, constituting numerous square miles, at times she says she was not.” There was absolutely no proof, Defendant–Saltzman argues, that she shot the victim or was present at the time of his death. Defendant–Saltzman argues that the State's case against her is based on statements she gave to police “several weeks after the death of Mr. Davis when she was lied to and made to think she was incorrect in her answers to questions detectives asked.” The fact that there were inconsistencies, Defendant–Saltzman argues, is “not surprising given that few people can recall hour by hour what they did weeks before under extreme stress and grief.” According to Defendant–Saltzman, “There was nothing other than the unreliable historical cell site analysis, some inconsistent statements regarding...