State v. Strother

• Decision Date: 22 October 2010
• Docket Number: No. 2009-K-2357.,2009-K-2357.
• Citation: 49 So.3d 372
• Parties: STATE of Louisiana v. Alton Lane STROTHER.
• Court: Louisiana Supreme Court

49 So.3d 372

STATE of Louisiana
v.
Alton Lane STROTHER.

No. 2009-K-2357.

Supreme Court of Louisiana.

Oct. 22, 2010.

49 So.3d 373

James D. Caldwell, Attorney General, James C. Downs, District Attorney, Monique Yvette Metoyer, Asst. Dist. Atty., for Applicant.

Michael Anderson Brewer, for Respondent.

49 So.3d 374

PER CURIAM.¹

**1 The state charged defendant in a two-count bill of information with second degree cruelty to juveniles, in violation of La.R.S. 14:93.2.3, and with cruelty to juveniles, in violation of La.R.S. 14:93. After trial by jury, defendant was found guilty of attempted second degree cruelty to juveniles and guilty as charged of cruelty to juveniles. The trial court sentenced him to consecutive terms of 10 years imprisonment at hard labor. On appeal, the Third Circuit reversed defendant's conviction for attempted second degree cruelty to juveniles on grounds that the state failed to present evidence sufficient to support that verdict or a verdict for any other possible lesser and included offense. State v. Strother, 09-0110 (La.App. 3rd Cir.10/7/09), 19 So.3d 598 (Amy, J., concurring in part and dissenting in part). As to that count, the court of appeal ordered defendant **2 acquitted. With regard to the second count, the Third Circuit panel affirmed defendant's conviction for cruelty to juveniles. However, the Third Circuit panel vacated his sentence as excessive and remanded for resentencing. We granted the state's application to review both aspects of the decision below and reverse for reasons that follow.

The evidence at trial established that on the afternoon of February 2, 2007, Effie LeBleu, a 26-year-old mother of several children, two of whom lived with her at home, appeared at the Cabrini Hospital in Glenmora, Louisiana, with her eight-month-old daughter. According to Vanessa Barnes, a registered nurse on duty in the emergency room that day, the baby was covered with bruises, in pain, and "just very unsettled, very distressed." The child was so unsettled, and remained that way for "hours," that Barnes was unable to lift or hold her in her arms. She just "kind of cradled her in a sheet and never actually grabbed her." The baby was admitted, and on the following day, Dr. Amarjit Nijjar examined her in the hospital's emergency room and determined that, in effect, she had been battered from head to toe. Dr. Nijjar testified that the baby "had multiple bruising on the face, on the head, on the right side of the face, on the left side of the jaw, back of the neck, both ears were all red and swollen up." The baby's upper lip was swollen and bruising extended from the right side of her body across her abdomen and over both buttocks and down both thighs to her calves. The bruises appeared of different ages. They were bilateral, and they were "all over," an unmistakable sign, in the doctor's opinion, of deliberate and systematic abuse. The doctor detected a hematoma under the muscle in the baby's hip area and noticed that the child had difficulty moving her left arm, which also displayed significant bruising. An x-ray determined that the humerus bone of her left arm appeared **3 fractured at the elbow. The x-ray also revealed evidence of an older fracture at the same point. Dr. Nijjar testified that he became so upset by the appearance of the eight-month-old child that he had to step outside of the examination room to gather himself.

In the opinion of Dr. Mark Dodson, an orthopedic surgeon who also examined the baby on February 3, 2007, the x-ray of the child's elbow revealed a relatively new fracture, which had probably occurred within the prior three days, and displayed signs of an older fracture in the same area occurring anywhere from two to four weeks before he examined the child. The

49 So.3d 375

orthopedist testified that the fractures, new and old, of the baby's elbow would not have been caused by a toddler falling as she attempted to walk but by "a twisting injury or a fall from a height."

The child's mother testified at trial and described for jurors the events prompting the hospital visit on February 2, 2007. Effie LeBleu testified that at the time of the injury she was living in a trailer owned by defendant's mother with defendant and two of her children. In the early morning hours of February 2, 2007, she awoke to the sound of her eight-month-old daughter crying. She testified that defendant would not let her out of bed because her children "were very, very spoiled to me, and he didn't like the idea that my kids were spoiled." Defendant got up instead and took the child into the laundry area to change her. Ms. LeBleu then heard a "boom boom" sound. When he returned with the child, defendant explained that the baby had "wiggled" away from him. At that time, she did not question the explanation because the child could not walk and often wiggled or squirmed when she moved. The baby stopped crying when defendant put the child down on the mattress but the child wiggled off her bedding after **4 losing her pacifier. Defendant responded by grabbing a belt. According to LeBleu, when she implored defendant not to hit her daughter, he replied, "I wasn't going to, I was just thinking about it," and he hit her instead on her hand underneath a blanket.

Later in the morning, at approximately 7:00 a.m., Ms. LeBleu woke up and noticed bruises on the baby's leg. However, she did not notice any impairment of the child's left arm. When asked why she did not immediately summon help for her baby, Ms. LeBleu explained that she did not have a phone, and defendant carefully monitored her telephone calls on his own phone. He otherwise kept her isolated from family and friends with the help of his own mother who lived nearby. Instead of reporting the problem immediately, Ms. LeBleu went shopping for diapers with defendant and her daughter, and after they returned home, defendant went fishing for the day. Ms. LeBleu seized on the opportunity to seek a neighbor's help. Thereafter, she contacted the Glenmora Police, and they called Cabrini Hospital. Ms. LeBleu then brought her baby to the hospital that afternoon at approximately 2:00 p.m., and the child was admitted immediately.

Ms. LeBleu informed jurors that defendant had struck her daughter on the hand with a fly swatter when she cried, that he could not stand the baby crying, and that he would "whip" the child for crying. Defendant had also hit Ms. Lebleu with a belt in the past. She further acknowledged that she had given birth to six children beginning at age 15 and that she had lost them all in one fashion or another, in part because social services became involved in her life virtually at the outset of her child bearing years after she moved out of her parents home and became pregnant with her first child when she was 14 years old. Ms. LeBleu explained that her first child died of SIDS, although the death certificate listed the **5 cause as undetermined. She gave up her next two children to her sister to forestall social services from removing them from the family altogether. Her fourth child resided elsewhere in Louisiana with his father, and her fifth child, a son, and sixth, her daughter and victim in the present case, were removed from the trailer home she shared with defendant following the incident on February 2, 2007. The children were subsequently adopted. Ms. LeBleu testified that the children were removed from the home because she had failed to contact the authorities for several hours after noticing the bruises on

49 So.3d 376

her daughter's legs, and she denied abusing either of them.

Jennifer Fields, an investigator for the Rapides Parish Office of Community Services, confirmed that the children had been removed from the home because of the delay by Effie LeBleu in reporting her daughter's battered condition. Fields also stated that before the present case, "we had no validated cases of abuse or neglect on Ms. LeBleu."

Defendant did not testify at trial but in a statement to the police following his arrest, he related that he had been living with Effie LeBleu and two of her children in the trailer for approximately six months. He had moved in three days after meeting Ms. LeBleu. Defendant told the police that when the baby began crying in the early morning hours of February 2, 2007, Ms. LeBleu would not wake up, and so he got up to change the child. He took her into a hallway which served as a laundry area and put her on the washing machine. After he changed her and began pulling up her pants, she "jumped" out of his hands and fell face first into the control panel of the dryer next to the washing machine. Defendant denied that the baby fell to the floor but told the police that he noticed bruises on her face after he brought her back from the laundry area and placed her on a **6 mattress. In his opinion, Effie LeBleu had spoiled her children, and defendant acknowledged that he became the disciplinarian in the family for both the baby and her three-year-old brother and that he had once struck the baby with a fly swatter. Defendant further acknowledged that he had never seen Ms. LeBleu abuse the children, but he also stated that he did not spend that much time in the trailer.

Defendant also gave a statement to Ray Cooper, a child protection investigator for the Office of Community Services. According to Cooper, defendant informed him that when he awoke to the sound of the baby crying, and Ms. LeBleu would not wake up, he picked up the child despite a bad back which had placed him on disability, and, "as he's going into the washroom he dropped her." "That was his statement," Cooper recalled, "the child jumped out of his hands."

Defendant's parents testified in his defense. Both Jimmy and Fay Strother saw defendant, Effie LeBleu, and the two children when they were buying diapers on the morning of February 2, 2007. Although defendant and Ms. LeBleu stated that the baby was bruised at that time, defendant's parents denied seeing any bruises....