State v. Merritt , 884 So. 2d 1283 ( 2004 )

884 So. 2d 1283 (2004)

STATE of Louisiana
v.
Dillon James MERRITT.

No. 03-946.

Court of Appeal of Louisiana, Third Circuit.

October 13, 2004.

Van Hardin Kyzar, District Attorney, 10th Judicial District Court, Natchitoches, LA, for State of Louisiana.

Phyllis Elaine Mann, Alexandria, LA, for Dillon James Merritt.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS and ARTHUR J. PLANCHARD^[*], Judges.

ON REHEARING

ULYSSES GENE THIBODEAUX, Chief Judge.

We granted rehearing for the purpose of again reviewing the propriety of the four convictions and sentences for cruelty to juveniles against the Defendant. For the following reasons, we grant in part and deny in part the Defendant's application for rehearing.

After careful reconsideration of the entire record, we again affirm the Defendant's convictions and sentences on Counts 1, 3 and 4. We reverse the Defendant's conviction on Count 2 and remand to the trial court for retrial. Dr. Springer's testimony is inadmissible hearsay and should have been excluded from evidence. See La.Code Evid. arts. 705(B), 801(C), and 803(4). Furthermore, the erroneous admission of Dr. Springer's testimony was not harmless error.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A NEW TRIAL ON COUNT 2.

Chief Judge THIBODEAUX would additionally grant the rehearing to reverse on Count 4 and would order the entry of an acquittal and would further order concurrent sentences on Counts 1 and 3.

Judge PLANCHARD affirms all convictions for the reasons articulated in the original majority opinion.

NOTES

[*] Honorable Arthur J. Planchard, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.