State of Louisiana Versus Seth Redell ( 2023 )

STATE OF LOUISIANA NO. 22-KA-457
VERSUS FIFTH CIRCUIT
SETH REDELL COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 16-2841, DIVISION "D"
HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING
April 26, 2023
CORNELIUS E. REGAN
JUDGE, PRO TEMPORE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Cornelius E. Regan, Pro Tempore
AFFIRMED
CER
JGG
SJW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand
Jennifer C. Voss
Matthew Whitworth
COUNSEL FOR DEFENDANT/APPELLANT,
SETH REDELL
Roger W. Jordan, Jr.
James A. Williams
REGAN, J.
Defendant, Seth Redell, was charged by grand jury indictment with the
second degree murder of a known juvenile, date of birth 7/19/2014, in violation of
La. R.S. 14:30.1. He pled not guilty at arraignment. At the conclusion of trial on
May 6, 2022, a twelve-person jury unanimously found defendant guilty of the
responsive verdict of negligent homicide. On May 11, 2022, the trial court
sentenced defendant to five years in the Department of Corrections, without benefit
of parole, probation, or suspension of sentence, and imposed a $5,000 fine.
Defendant appeals. For the following reasons, we affirm.
FACTS
This case involves the death of H.U.,1 the twenty-one-month old son of
Julienne Frederico, who was defendant’s girlfriend. At trial, Jessica Burkhardt, a
paramedic, testified that on the morning of April 24, 2016, she and her partner
were dispatched to a call for service at 601 Allo Avenue in Marrero. When they
arrived, they were uncertain where to go because no one met them outside or
flagged them down, which was unusual. After several minutes, defendant exited
the house carrying a child who was cold, wet, limp, and unresponsive, but still had
a pulse. Ms. Burkhardt testified that the child had a right-sided gaze, which meant
looking off in one direction with the eyes not moving. She provided that this was
typically indicative of head trauma or a significant head bleed. According to Ms.
Burkhardt, defendant told them that he placed the child in a cold bath in an effort
to awaken him. H.U. was transported to University Medical Center (“UMC”).
Deputy Nathaniel Obiol of the Jefferson Parish Sheriff’s Office (“JPSO”)
testified that on April 24, 2016, he was dispatched to Allo Street regarding a child
1
Although La. R.S. 46:1844(W)(1)(a) allows the use of a juvenile crime victim’s name when the crime
results in the death of the victim, we use the victim’s initials under the authority of La. R.S. 46:1842(3)(a)
and La. R.S. 46:1844(W)(3), which allow this Court to identify a homicide victim who is also a minor by
using his or her initials. See State v. Becnel, 17-591 (La. App. 5 Cir. 6/27/18), 250 So.3d 1207, n. 1.
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who had fallen down the stairs. When he arrived, he came into contact with
defendant, who was pacing back and forth and appeared nervous. Deputy Obiol
asserted that when he asked what happened, defendant responded that his
girlfriend’s child had fallen down the stone stairs near the rear of the residence.
Defendant told him that he had returned home from dropping off the child’s
mother at the airport and was making breakfast when he heard the dog run inside
the kitchen towards the back door, after which he heard the child whimper.
Defendant said when he turned around, he saw H.U. lying face down at the base of
the stairs. Deputy Obiol testified that defendant also told him he brought the child
inside and put him under cold water in the bathroom. According to Deputy Obiol,
he gave defendant updates on H.U.’s condition, but defendant never asked about
the child and seemed unconcerned about how he was doing.
Detective Gabriel Faucetta of the JPSO testified that on April 24, 2016, he
went to 601 Allo Street at approximately noon and saw defendant in the back of a
patrol car. He obtained a search warrant for defendant’s residence and took
pictures of the house. He also seized defendant’s cell phone. Later at the detective
bureau, Detective Faucetta took defendant’s statement.
In his statement, defendant said that he and H.U. arrived home after
dropping Ms. Frederico off at the airport and H.U. was fussy, so he brought him
into his room to change his diaper. He stated that H.U. started throwing a fit, so he
brought the child into the kitchen and let him run around instead of putting him in
his high chair. He explained that the back door was open because the dog went in
and out all of the time. Defendant claimed that he then heard sounds, after which
he got up and saw H.U. lying face down at the bottom of the steps. Defendant
stated that he brought H.U. into the bathroom and held him under water in the
shower to awaken him, but it did not work. He provided that the child was getting
worse, and he saw mucus and “stuff” come out of his mouth and nose. Defendant
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called his father, who told him to call 9-1-1, but he asked his father to call because
he was taking care of H.U. Thereafter, he received a call indicating that EMS was
outside, so he took H.U. outside and gave him to EMS.
While defendant was giving his statement, Detective Donald Zanotelli
entered the interrogation room and told defendant that a fall down the stairs was
not consistent with the injuries the child sustained, according to the neurologist.
Defendant then stated that H.U. was throwing himself around in his room that
morning. He denied shaking or abusing him or losing his temper. Detective
Faucetta provided that defendant was arrested for cruelty to a juvenile.
Detective Faucetta testified that he and Detective Zanotelli went to the
hospital, met with the child’s mother, and learned that H.U. was brain dead. They
also learned from Ms. Frederico that defendant said H.U. broke his necklace that
morning. Detective Faucetta obtained a second search warrant for defendant’s
residence where he found a broken necklace.
Detective Zanotelli of the JPSO testified that he was the lead investigator in
this case. He requested that defendant’s phone be extracted by the digital forensics
unit, and he prepared a timeline of the case. According to Detective Zanotelli, the
timeline showed that on the morning of April 24, 2016, defendant and Ms.
Frederico sent several text messages to each other after Ms. Frederico arrived at
the airport. Detective Zanotelli testified that at 8:05:43, defendant sent Ms.
Frederico a Facebook message that said, “H.U. just broke the f*cking chain you
got me.” He said that at 8:05:52, defendant called Ms. Frederico, and that at 8:13
a.m., Ms. Frederico sent defendant a Facebook message saying that they would get
it fixed and that H.U. needed him because she just left. Detective Zanotelli
testified that Ms. Frederico texted defendant two more times at 8:13, and that at
8:15, defendant called Stephen Hayes. He further testified that defendant called
his father at 8:17:16, and defendant’s mother called 9-1-1 at 8:18:49 to report that
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the child had fallen down the stairs. At 8:20 a.m., the JPSO and EMS were
dispatched to 601 Allo Street.
Dr. Jennifer Mooney testified that on April 24, 2016, she was the attending
trauma surgeon at UMC when H.U. was brought in. Dr. Mooney stated that H.U.
initially made some crying noises but eventually stopped. She also stated that the
child was breathing on his own but as time progressed, he began to “posture,”
which she explained was one level above doing nothing on the Glasgow Coma
Scale. Dr. Mooney asserted that this was an indicator of severe brain injury and
noted that the only external injury they saw was a bruise on his forehead. She
further asserted that she spoke with EMS who relayed that the child either fell or
was pushed by a dog down three stairs on an outside porch onto concrete.
Dr. Mooney testified that she obtained a CT scan and that H.U.’s injuries
were inconsistent with the story that was being told. Dr. Mooney found the
injuries to be very suspicious and not the result of accidental trauma. She also
found it suspicious that there was a delay in time from the incident to the 9-1-1 call
and that the child was put under cold water to wake him up.
Dr. Frank Culicchia was accepted as an expert in neurosurgery. He testified
that on April 24, 2016, he was the neurosurgeon on call at UMC, and the
emergency room doctors referred H.U. to him. Dr. Culicchia explained that he
reviewed the CT scans that were taken and saw a subdural hematoma on the
images, which was a blood clot between the skull and the brain. Dr. Culicchia
testified that the subdural hematoma was putting pressure on the brain causing it to
be pushed over and swollen. He asserted that this was something that had
“immediately happened,” and that something needed to be done to relieve the
pressure in H.U.’s brain. Dr. Culicchia noted that the scalp did not show swelling
and there was no skull fracture. He provided that H.U. was taken immediately into
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surgery, where they removed the blood clot and part of the skull to allow the brain
to swell. However, Dr. Culicchia did not think the child was going to survive.
Dr. Culicchia testified that he was told H.U. fell down stairs, which did not
make sense to him because there was no external evidence of trauma. He saw a
small bruise on H.U.’s forehead, but it was unrelated to his internal injuries and
showed discoloration indicating it had been there for some time. He noted that
there was no abrasion, skin breakage, or laceration on the scalp or face to explain
the injury and this alarmed him.
Dr. Culicchia asserted that an ophthalmologist was consulted because with
no evidence of external trauma, there was a strong suspicion of shaken baby
syndrome. He explained that retinal hemorrhages were typically found in shaken
baby cases and that H.U. had retinal hemorrhages in both eyes. Dr. Culicchia
testified that the child could not have received his injuries from falling down the
stairs or out of his caretaker’s arms. Rather, his injuries were much more likely
caused by shaken baby syndrome. He asserted that H.U.’s injuries were
acceleration/deceleration injuries and not from an impact with any object or
surface. Dr. Culicchia testified that the surgery was not successful and that H.U.
was declared brain dead on April 27, but they kept him alive until April 29 so his
organs could be harvested.
Dr. Peter Kastl, who was accepted as an expert in ophthalmology, testified
that on April 25, 2016, he was called to examine H.U. based on a suspicion of
abuse. Although he did not examine H.U., a resident did and found bilateral retinal
hemorrhaging in all four quadrants of the eyes with no external trauma. Dr. Kastl
maintained that he had not seen any other child this age with bilateral retinal
hemorrhaging to this extent except in shaken baby syndrome. He opined that H.U.
could not have sustained the injuries in any way other than shaken baby syndrome.
22-KA-457 5
Dr. Dana Troxclair, the chief forensic pathologist for the Jefferson Parish
Coroner’s Office, was accepted as an expert in forensic pathology. Dr. Troxclair
testified that she performed an autopsy of H.U. on April 29, 2016, at 7:00 a.m., and
found that the cause of death was blunt force trauma to the head and the manner of
death was homicide. She explained that her findings of subdural hematoma, retinal
hemorrhages bilateral in all four quadrants, and cerebral edema were seen in
shaken baby syndrome. Dr. Troxclair explained that the child’s injuries did not
appear to result from a short fall, because she did not see a contusion on the
opposite side of the brain. She also explained that with short falls, the patient
usually has an epidural hematoma, not a subdural hematoma. Also, Dr. Troxclair
stated that with short falls, patients do not have symptoms right away or
hemorrhages in both eyes bilaterally. Dr. Troxclair concluded that H.U. died as a
result of shaken baby syndrome.
Stephen Hayes testified that he had known defendant for approximately
twenty years. He stated that his mother was a registered nurse in the emergency
room at Children’s Hospital. Mr. Hayes asserted that on April 24, 2016, at
approximately 8:15 a.m., defendant called him and asked where his mother was,
but he did not know. Mr. Hayes stated that he heard “panicked chaos,” with a lot
of noises and shuffling in the background. Mr. Hayes testified that defendant told
him H.U. had fallen and was unconscious, and defendant was pleading with the
child to wake up. Mr. Hayes recalled that he immediately told defendant to take
the child to the emergency room. He stated that he could hear the faucet turned on,
the water running, and then the shower.
Julienne Frederico, H.U.’s mother, testified that she met defendant and
developed a relationship with him after moving to Louisiana with H.U. She
asserted that her job took her out of state once a month. On the morning of April
24, 2016, defendant took her to the airport for a trip to California. She recalled that
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H.U. was crying because she was leaving him. Ms. Frederico provided that she
and defendant texted each other while she was in the airport, and that as she was
about to board the airplane, she got a message from defendant saying “H.U. broke
my f*cking chain.” She stated that she then spoke to defendant and told him they
could have the chain repaired and that it was not a big deal. She further testified
that when she asked where H.U. was, defendant said he was “throwing a fit in his
room.” Ms. Frederico stated that defendant sounded extremely upset, so she told
him to take a break and smoke a cigarette. She also told defendant that it would be
a difficult day for H.U. and that he would need more affection.
Ms. Frederico asserted that when she was at a stop in Houston, she received
a phone call from defendant, but she could not speak to him because they were
about to take off. She then received a message from a deputy indicating there was
an emergency and she needed to call. Ms. Frederico called and learned that there
was an accident and that H.U. was unconscious and on his way to the hospital. She
later learned that her son died.
Ms. Frederico admitted writing a letter to defendant after the incident, telling
him it was an accident; however, she explained that she had no medical expertise
and was a grieving, abused young mother in denial. She also admitted that she
went back to defendant for more than two years, but this was a bad decision.
Defendant testified at trial that he met Ms. Frederico in August of 2015 and
their relationship became serious. Defendant explained that he and Ms. Frederico
were always together when she was in town, but she went out of town for work
once a month. He stated that Ms. Frederico initially left H.U. with her mother, but
in 2016 he started caring for H.U. when she was out of town. Defendant stated that
there were no problems with H.U., other than him throwing tantrums during which
he would throw himself on the ground and hit his head against the wall. He
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indicated that the tantrums generally occurred after Ms. Frederico left. Defendant
stated that he never physically reprimanded H.U. nor did he strike or shake him.
Defendant testified that on April 24, 2016, he dropped Ms. Frederico off at
the airport. When he and H.U. returned home, H.U. was crying and upset, so he
brought H.U. to his room to get his toys. He provided that H.U. grabbed the chain
Ms. Frederico had just bought him and the chain popped. Defendant testified that
he called Ms. Frederico and told her what happened. He acknowledged using a lot
of “f bombs” in the conversation but said it was not because he was angry. He
explained that after the call, he went back into H.U.’s room because he heard H.U.
hitting his head against the wall. He picked him up to put him into his crib, and
while holding H.U. with his left hand, he took the toys out of the crib with his right
hand so H.U. would not climb on top of them and fall. Defendant maintained that
when he got to the last of the toys, H.U. flung himself backward, hit his head, and
landed on the ground. Defendant said he panicked and thought H.U. might have
“paralyzed himself” when he saw how H.U. was lying. He stated that he picked
him up and that H.U. started spitting things up and had trouble breathing.
Defendant testified that he called Mr. Hayes because his mother was a nurse.
While he was on the phone, he put H.U. under the shower to try to wake him up.
Defendant said that he called his father and asked him to call 9-1-1. He explained
that he did not like talking to strangers, especially police officers, but he was not
“dillydallying” or trying to hide anything. He stated that a dispatcher called at
some point and told him an ambulance was outside. Defendant admitted that he
was not truthful with Deputy Obiol when he arrived. Defendant also admitted that
he was not truthful when he gave a statement to the police at the detective bureau.
Defendant testified that after H.U.’s death, he and Ms. Frederico continued
to see each other for almost two years until 2018. Defendant denied losing his
temper after H.U. broke the chain, and he denied having a heated conversation
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with Ms. Frederico after the chain broke. He admitted that he lied when he said
H.U. fell down the steps in order to protect himself, because “they always blame
the boyfriend.”
Dr. Zhongxue Hua testified for the defense that he was the chief medical
examiner for Bergen County, New Jersey, and he was accepted as an expert in
neuropathology and forensic pathology. Dr. Hua testified that he reviewed Dr.
Troxclair’s autopsy report, the death certificate, the scene and autopsy
photographs, the x-ray reports, the microscopic slides, the EMS report, the
neuropathology reports, and the medical records of the last five days of H.U.’s life.
Dr. Hua concluded that H.U. died from blunt head trauma from a single
impact, which was most consistent with a short fall injury. He explained there
were case studies that showed that short falls could cause subdural hematomas.
Dr. Hua pointed out that Dr. Culicchia testified there were no scalp contusions, but
the medical records reflected that on April 24, 2016, at 1:21 p.m., Dr. Neil Patel
observed a contusion on the child’s head, specifically at the right side parietal back
and top of the head. He noted that the records show Dr. Culicchia confirmed this
observation twice on that same date. Dr. Hua testified that the CT scan taken at
9:40 a.m. showed swelling on the right parietal region. He stated that these
observations were made prior to surgery, which was important because surgery
generated new wounds and caused bleeding in the whole area.
Dr. Hua explained that Heparin was given to H.U. as part of the organ
harvesting, which promoted bleeding. He testified that brain swelling, increased
intracranial pressure, and coagulation problems can cause retinal hemorrhaging.
He further testified that there were too many medical interventions to make a valid
conclusion of retinal hemorrhaging due to shaken baby syndrome. Dr. Hua
indicated there was no neck injury and no medical or forensic evidence to support
a diagnosis of shaken baby syndrome in this case.
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The defense also called Dr. Michael Baden, an expert in forensic pathology,
who testified that he was asked to evaluate the cause and manner of H.U.’s death.
He reviewed the autopsy report, the scene and autopsy photographs, the x-rays, the
microscopic slides, the neuropathology consultation report, the death certificate,
the JPSO reports, medical records, and Louisiana Organ Procurement Agency
records and photographs. Dr. Baden concluded that the findings were consistent
with an accidental fall and were not consistent with the child being shaken to
death. He opined that the cause of death was blunt force trauma to the head, which
caused the subdural hemorrhage. Dr. Baden also asserted that a person can have
extensive retinal hemorrhaging after a fall and that it was impossible to evaluate
the cause of retinal hemorrhaging after H.U. had surgery.
Dr. Baden also testified that the CT scans showed scalp swelling and the
medical records showed there was a contusion on the top of H.U.’s head, which
indicated an impact and precluded a finding of shaken baby syndrome. Dr. Baden
opined that the bruises on H.U.’s body, except for the forehead, occurred after he
was admitted to the hospital. Dr. Baden maintained that organ donations change
the body due to chemicals, like Heparin. He testified that the belief that shaking
causes subdural hemorrhages was “junk science” and that all babies are shaken.
LAW AND DISCUSSION
On appeal, defendant raises two assignments of error. In his first assignment
of error, defendant argues that the evidence presented at trial was insufficient to
support his negligent homicide conviction. He contends that the State failed to
show that defendant had such disregard for H.U. that his conduct amounted to a
gross deviation below the standard of care expected to be maintained by a
reasonably careful person under like circumstances. Defendant maintains that the
testimony showed that he was holding H.U. appropriately when the child started a
tantrum and threw himself out of defendant’s arms, falling and hitting his head.
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Defendant asserts that the medical records show blunt force impact and a right
parietal contusion on H.U.’s scalp, which support a finding that H.U. fell.
The State responds that it presented sufficient evidence to support
defendant’s conviction. It notes that its experts found that H.U.’s fatal injuries
were caused by shaken baby syndrome, and that defendant was the only person
with H.U. when he sustained his injuries. The State also asserts that there was
sufficient evidence to convict defendant of the charged offense, second degree
murder, and therefore, it was also sufficient to support his conviction of the lesser-
included offense, negligent homicide.
The constitutional standard for testing the sufficiency of the evidence, as
enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979), 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 beyond a reasonable doubt. State v. Ortiz, 96-1609 (La. 10/21/97), 701
So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722(1998); State v. Scott, 06-134 (La. App. 5 Cir. 7/25/06), 939 So.2d 462, 470, writ
denied, 06-2133 (La. 3/30/07), 953 So.2d 61. Under the Jackson standard, a
review of a criminal conviction record for sufficiency of the evidence does not
require the court to ask whether it believes that the evidence at trial established
guilt beyond a reasonable doubt. State v. Flores, 10-651 (La. App. 5 Cir. 5/24/11),
66 So.3d 1118, 1122. Rather, the reviewing court must decide, after viewing the
evidence in the light most favorable to the prosecution, whether any rational trier
of fact could have found the defendant guilty beyond a reasonable doubt. Id.;
Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Ortiz, 701 So.2d at 930.
Evidence may be either direct or circumstantial. Flores, 66 So.3d at 1122.
Circumstantial evidence consists of proof of collateral facts and circumstances
from which the existence of the main fact can be inferred according to reason and
22-KA-457 11
common experience. Id.; State v. Williams, 05-59 (La. App. 5 Cir. 5/31/05), 904
So.2d 830, 833. When circumstantial evidence is used to prove the commission of
an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that
the evidence tends to prove, in order to convict, it must exclude every reasonable
hypothesis of innocence.” State v. Wooten, 99-181 (La. App. 5 Cir. 6/1/99), 738
So.2d 672, 675, writ denied, 99-2057 (La. 1/14/00), 753 So.2d 208. This is not a
separate test from the Jackson standard but rather provides a helpful basis for
determining the existence of reasonable doubt. Id. All evidence, both direct and
circumstantial, must be sufficient to support the conclusion that the defendant is
guilty beyond a reasonable doubt. Wooten, 738 So.2d at 675.
In the present case, defendant was charged with the second degree murder of
H.U. At trial, the State proceeded under the felony murder theory for second
degree murder, with cruelty to a juvenile as the underlying felony. Under the
felony murder theory, second degree murder is defined as the killing of a human
being: (2) when the offender is engaged in the perpetration or attempted
perpetration of ... cruelty to juveniles ... even though he has no intent to kill or
inflict great bodily harm. La. R.S. 14:30.1(A)(2). The felony murder provision of
La. R.S. 14:30.1(A)(2) contains the circumstances under which a defendant can be
found guilty under the felony murder rule, which dispenses with the necessity of
proving mens rea accompanying a homicide; the underlying felony supplies the
culpable mental state. State v. Small, 11-2796 (La. 10/16/12), 100 So.3d 797, 805.
Cruelty to a juvenile is defined in La. R.S. 14:93(A)(1) as the “intentional or
criminally negligent mistreatment or neglect by anyone seventeen years of age or
older of any child under the age of seventeen whereby unjustifiable pain or
suffering is caused to said child.” Mistreatment, as used in this statute, means
“abuse.” State v. Cortez, 96-859 (La. App. 3 Cir. 12/18/96), 687 So.2d 515, 519;
State v. Comeaux, 319 So.2d 897, 899 (La. 1975). In addition, to be criminally
22-KA-457 12
negligent in his mistreatment or neglect of the child, the defendant must have such
disregard for the interest of the child that his conduct amounted to a gross
deviation below the standard of care expected to be maintained by a reasonably
careful person under like circumstances. State v. Porter, 99-1722 (La. App. 3 Cir.
5/3/00), 761 So.2d 115, 123; see also La. R.S. 14:12.
Defendant was convicted of negligent homicide, which is a responsive
verdict for the charge of second degree murder. La. C.Cr.P. art. 814(A)(3).
Negligent homicide is “the killing of a human being by criminal negligence.” La.
R.S. 14:32(A)(1). “Criminal negligence exists when, although neither specific nor
general criminal intent is present, there is such disregard of the interest of others
that the offender’s conduct amounts to a gross deviation below the standard of care
expected to be maintained by a reasonably careful man under like circumstances.”
La. R.S. 14:12. Ordinary negligence does not equate to criminal negligence; the
State is required to show more than a mere deviation from the standard of ordinary
care. State v. Jones, 298 So.2d 774 (La. 1974).
If there is sufficient evidence to convict a defendant of a greater offense,
which includes the offense for which defendant was convicted, the evidence will
necessarily and automatically, because of Louisiana’s statutory system of
responsive verdicts, support the conviction for the lesser offense, as long as the
defendant did not object to the inclusion of this lesser-included offense. State v.
Ducksworth, 17-35 (La. App. 5 Cir. 12/13/17), 234 So.3d 225; State v. Schrader,
518 So.2d 1024, 1034 (La. 1988), cert. denied, 498 U.S. 903, 111 S.Ct. 265, 112
L.Ed.2d 221 (1990).
In State v. Becnel, 17-591 (La. App. 5 Cir. 6/27/18), 250 So.3d 1207, the
defendant was indicted for the second degree murder of three-year-old P.S. under
both the specific intent and felony murder theories. La. R.S. 14:30.1(A)(1) and
(A)(2). He was convicted of the lesser-included offense of negligent homicide.
22-KA-457 13
The underlying felony that the defendant was alleged to have committed was
cruelty to juveniles, in violation of La. R.S. 14:93. Id. at 1226. On appeal, the
defendant argued that the State’s circumstantial case was insufficient to prove he
committed negligent homicide. However, he did not object at trial to the inclusion
of negligent homicide as a lesser-included offense of second degree murder. This
Court found that because the evidence established that the defendant committed
second degree murder by killing P.S. while engaged in the perpetration of cruelty
to a juvenile through his negligent mistreatment of P.S., the evidence was
sufficient to convict the defendant of the lesser-included offense of negligent
homicide. Becnel, 250 So.3d at 1226-1227. This Court reasoned that although a
compromise verdict may have been reached by the jury, the verdict of negligent
homicide was nevertheless valid, given that the evidence presented would have
reasonably supported the charged offense. Id. at 1229.
In the instant case, like in Becnel, supra, defendant did not object to the
inclusion of negligent homicide as a lesser-included offense. The record shows
that a rational trier of fact could have found that the evidence was sufficient under
the Jackson standard to convict defendant of the greater offense, second degree
murder, and therefore, the evidence automatically supported the conviction of the
lesser offense, negligent homicide.
The State’s experts testified that H.U. died from blunt force trauma to the
head caused by shaken baby syndrome. Dr. Mooney, the UMC trauma surgeon,
testified that the child’s injuries were not caused by accidental trauma and were
inconsistent with defendant’s story. Dr. Culicchia, the neurosurgeon who treated
H.U., testified that he could not have received his injuries from falling out of his
caretaker’s arms. He explained that taking into consideration the retinal
hemorrhages and the lack of a scalp injury or skull fracture, H.U.’s severe brain
injury was much more likely caused by shaken baby syndrome. Dr. Kastl, an
22-KA-457 14
ophthalmologist, testified that the bilateral retinal hemorrhaging in all four
quadrants of the child’s eyes with no external trauma could have only occurred
from shaken baby syndrome.
In addition, Dr. Troxclair, a forensic pathologist, performed the autopsy and
found the manner of death was homicide by shaken baby syndrome. She stated
that her findings of subdural hematoma, retinal hemorrhages in all four quadrants,
and cerebral edema were seen in shaken baby syndrome cases. Dr. Troxclair
testified that there was nothing on H.U.’s body that was consistent with a fall.
Further, the State presented evidence to show that defendant got very angry
with the child around the time of the incident. Detective Zanotelli testified that at
8:05:43, defendant sent Ms. Frederico a message that said, “H.U. just broke the
f*cking chain you got me.” Ms. Frederico recalled a heated conversation with
defendant immediately thereafter. Additionally, defendant admitted that he
initially lied to EMS, the police, and the child’s mother when he said H.U. fell
down the stairs. In his statement, defendant concocted a story wherein he said that
he brought the child into the kitchen where the back door was open, and after he
heard some sounds, he saw H.U. lying at the bottom of the steps. Later, at trial,
defendant testified that none of this was true. Rather, he asserted that he was
holding H.U. and taking toys out of the crib when H.U. flung himself backward
and hit his head. He denied shaking H.U. or being angry with him.
Contrary to the State’s experts, the defense experts testified that although the
child died from blunt force trauma to the head, his injuries were accidental. Dr.
Hua, a forensic pathologist, concluded that the child died of blunt head trauma
from a single impact, which he believed was most consistent with a short fall. He
pointed out discrepancies in Dr. Culicchia’s testimony and the medical records,
noting that Dr. Culicchia confirmed in the medical records that a contusion was
observed on H.U.’s head on April 24, 2016, but Dr. Culicchia testified at trial that
22-KA-457 15
there was no external evidence of trauma. Dr. Hua also testified that brain
swelling, increased intracranial pressure, and coagulation problems can cause
retinal hemorrhaging, and there were too many medical interventions to make a
valid conclusion of retinal hemorrhaging due to shaken baby syndrome. Dr. Hua
further testified that there was no medical or forensic evidence to support a
diagnosis of shaken baby syndrome.
Likewise, Dr. Baden, a forensic pathologist, testified that H.U.’s injuries
were consistent with a fall and inconsistent with the child being shaken to death.
He asserted that a person can have retinal hemorrhaging after a fall and that it was
impossible to evaluate the cause of retinal hemorrhaging due to H.U.’s surgery.
Dr. Baden pointed out that the medical records showed there was a contusion on
the top of H.U.’s head and there was clearly an impact, which precluded a finding
of shaken baby syndrome. Dr. Baden opined that individuals cannot sustain
subdural hemorrhages from internal impacts by shaking.
The jury considered the testimony of the witnesses and had to make
credibility determinations. The trier of fact shall evaluate credibility, and when
faced with a conflict in testimony, is free to accept or reject, in whole or in part, the
testimony of any witness. State v. Bradley, 03-384 (La. App. 5 Cir. 9/16/03), 858
So.2d 80, 84, writs denied, 03-2745 (La. 2/13/04), 867 So.2d 688, and 08-1951
(La. 1/30/09), 999 So.2d 750. It is not the function of the appellate court to assess
credibility or re-weigh the evidence. State v. Smith, 94-3116 (La. 10/16/95), 661
So.2d 442, 443.
When faced with the conflicting expert opinions presented by the State and
the defense, the jury was entitled to accept whichever one better explained the facts
of the incident. Id. A jury’s decision to accept one expert’s opinion over another
should not be disturbed by this Court unless that opinion is patently unsound.
Becnel, 250 So.3d at 1229.
22-KA-457 16
Considering defendant’s anger when the child broke his chain, the child’s
severe injury moments later, defendant’s lies about how he was injured, and the
testimony of the State’s experts that the child’s injuries were consistent with
shaken baby syndrome and inconsistent with a short fall, the jury could have
reasonably credited the State’s version of events over that of defendant. Although
the jury may have reached a compromise verdict, the verdict was valid given that
the evidence presented would have reasonably supported a conviction for second
degree murder. See State v. Miller, 15-720 (La. App. 3 Cir. 2/3/16), 185 So.3d
264, 269. This assignment of error is without merit.
In his second assignment of error, defendant argues that he was denied the
right to a fair trial and due process of law when the trial court prohibited him from
calling an expert witness, Dr. John Galaznik, at trial. He asserts that the trial court
did not reference any of the Daubert2 requirements in its ruling or make any
findings as to admissibility. Defendant complains that although the trial judge
refused to allow Dr. Galaznik to testify because he believed he was going to act as
a thirteenth juror, the trial judge allowed the State’s experts to act as thirteenth
jurors and testify that the child’s injuries resulted from shaken baby syndrome and
that all other reasonable causes could be excluded.
The State responds that the trial court did not abuse its discretion by not
allowing Dr. Galaznik to testify at trial. It further responds that defendant’s claim
that he was prohibited from presenting a defense is difficult to fathom given that he
was allowed to present the expert testimony of two forensic pathologists, Dr. Hua
and Dr. Baden, to dispute the State’s account. The State asserts that while it
disputes the conclusions of these defense experts and while the jury rationally
rejected their conclusions, these defense experts were qualified to testify as to their
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
22-KA-457 17
subject matter. However, Dr. Galaznik was not qualified to testify as an expert on
shaken baby syndrome. The State also responds that Dr. Galaznik intended to
testify at trial regarding the ultimate issue before the jury, which was prohibited by
La. C.E. art. 704.
On May 2, 2022, the State filed a “Motion for Daubert and La. CE Art. 702
Hearing for Dr. John Galaznik.” In that motion, the State asserted that based on
Dr. Galaznik’s curriculum vitae and expert report dated April 28, 2022, the
expertise of Dr. Galaznik was unclear, and the literature and methodology that Dr.
Galaznik relied upon were not generally accepted by the medical community. As
such, the State requested a Daubert hearing.
On May 5, 2022, a Daubert hearing was held. At that hearing, Dr. Galaznik
testified that he was board certified in pediatrics and had an active medical license
in Alabama. He explained that he became interested in shaken baby cases after
serving on a jury in a capital murder case. He further explained that in 2001, he
retired from full-time employment to pursue his interest in physical injury of
infants and small children, which usually involved issues of blunt force impact,
abusive shaking, or multiple fractures. Dr. Galaznik testified that he had qualified
as an expert in pediatrics in thirty-two states, Canada, New Zealand, and the
military. He provided that shaken baby syndrome has become fairly controversial,
asserting that in 2001, it was accepted that short falls did not cause subdural
bleeding, retinal hemorrhaging, or brain injuries, whereas by 2018, it was accepted
that short falls could cause them.
Following this testimony, defense counsel offered Dr. Galaznik as an expert
in pediatrics, specifically shaken baby syndrome. The prosecutor then questioned
Dr. Galaznik regarding his qualifications. Dr. Galaznik testified that in his
pediatric practice, he treated young children and college students. He explained
22-KA-457 18
that he did not pursue a pediatric child abuse fellowship when it became available
in 2009 because he was only interested in a small group of cases in that specialty.
Dr. Galaznik testified that his role was to bring the available science to the
courtroom and apply it to the objective data, which in this case was the imaging,
lab studies, autopsy, and physical exams. He explained that there was physical
evidence of blunt force impact in this case, but it was not his role to say whether it
was accidentally or intentionally inflicted. Dr. Galaznik asserted that his job was
to evaluate the quality of the job the doctors did. He testified that where a short
fall history was offered, if it plausibly accounted for the finding, then doctors
should not be able to come to court and assert that this case represented abusive
injury. He further provided that his role was to say that an impact injury to H.U.’s
head was able to produce large volume subdural brain infarction, death, subdural
bleeding, and extensive retinal hemorrhaging and that shaking was not a requisite
component to produce any of those findings.
Following Dr. Galaznik’s testimony, the trial judge decided that he was not
going to allow Dr. Galaznik to testify at trial, stating:
The Court heard testimony from Dr. Galaznik, and as the
gatekeeper, the Court is going to exercise that gatekeeper function and
preclude Dr. Galaznik from testifying. While Dr. Galaznik might be a
board-certified pediatrician, the Court from hearing what he intends to
opine on believes that he intends to act as the 13th juror and opine that
every other reasonable hypothesis could not be excluded. The Court
is not going to allow this courtroom to become a research paper. And
it appears that he intends to simply surmise all of his research in a
field that he is challenging at the moment. And the Court does not
find he is qualified to do so to this jury.
Defense counsel objected to the court’s ruling. The trial judge also stated:
What I heard from the witness testimony is that he is going to say,
based upon all of his looking at these, he’s going to bring a number of
reports and he’s attempting to challenge a certain field that he
essentially testified as - - in this court’s opinion what I heard - - I
don’t have a report in front of me. Nobody handed me a report and
said here’s what he was going to testify to. What I heard from the
witness stand was that he would say and suggest that every other
reasonable hypothesis has not been excluded. That’s what I heard
22-KA-457 19
from the witness stand. And as a result - - as a result the Court does
not find that he is permitted to testify in this manner.
****
I heard him making a legal conclusion, which is what [sic] I did
what I did.
The defendant’s right to present a defense is guaranteed by the Sixth
Amendment to the United States Constitution and Article I, § 16 of the Louisiana
Constitution. State v. Lirette, 11-1167 (La. App. 5 Cir. 6/28/12), 102 So.3d 801,
813, writ denied, 12-1694 (La. 2/22/13), 108 So.3d 763. This right, however, does
not necessitate that a trial court allow the introduction of evidence that is
inadmissible, irrelevant, or has so little probative value that it is substantially
outweighed by other legitimate considerations in the administration of justice. Id.La. C.E. art. 702 governs the admissibility of expert testimony and provides:
A. A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and
methods; and
(4) The expert has reliably applied the principles and methods
to the facts of the case.
La. C.E. art. 704 provides the law regarding opinion on the ultimate issue:
Testimony in the form of an opinion or inference otherwise
admissible is not to be excluded solely because it embraces an
ultimate issue to be decided by the trier of fact. However, in a
criminal case, an expert witness shall not express an opinion as to the
guilt or innocence of the accused.
In State v. Foret, 628 So.2d 1116 (La. 1993), the Louisiana Supreme Court
adopted the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), regarding proper standards for
22-KA-457 20
the admissibility of expert testimony, which require the trial court to act in a
gatekeeping function to ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable. State v. Boudoin, 11-967 (La. App. 5
Cir. 12/27/12), 106 So.3d 1213, 1225, writ denied, 13-255 (La. 8/30/13), 120 So.3d
260. The Daubert inquiry consists of four considerations: (1) whether the theory
or technique can be and has been tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known or potential rate of
error; and (4) whether the methodology is generally accepted by the relevant
scientific community. Id. at 1225.
In State v. Francois, 13-616 (La. App. 5 Cir. 1/31/14), 134 So.3d 42, 59,
writ denied, 14-431 (La. 9/26/14), 149 So.3d 261, this Court discussed the
Louisiana Supreme Court’s recognition of a limitation of the Daubert inquiry:
In 2003, ten years after adopting Daubert, the Louisiana
Supreme Court recognized a limitation of the Daubert inquiry.
Cheairs v. State ex rel. Dep’t of Transp. & Dev., 03-0680 (La.
12/3/03), 861 So.2d 536, 541-42. In Cheairs, the defendant
challenged the qualification of the plaintiff’s witness as an expert on
the ground that his education did not qualify him to give opinion
testimony on a particular matter. Id. at 541.
The Cheairs Court observed that Daubert only addresses the
reliability of the methodology used by the expert, not the adequacy of
the expert’s qualifications. Id. at 542. Therefore, the court adopted a
broader three-prong inquiry developed by the U.S. Eleventh Circuit
“to more fully assist [trial] courts in determining all the relevant issues
related to the admissibility of expert testimony[.]” Id. This three-
prong inquiry was first set forth in City of Tuscaloosa v. Harcros
Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), in which the Court
stated that the admission of expert testimony is proper only if all three
of the following are true:
(1) [T]he expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches
his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in
Daubert; and (3) the testimony assists the trier
of fact, through the application of scientific,
technical, or specialized expertise, to
understand the evidence or to determine a fact
in issue.
22-KA-457 21
A trial judge’s decision to qualify an expert witness or to admit or exclude
certain expert testimony is subject to an abuse of discretion standard. State v.
Stokes, 99-1287 (La. App. 5 Cir. 4/13/00), 759 So.2d 980, 984, writ denied, 00-
1219 (La. 2/16/01), 802 So.2d 607.
Based on the testimony and applicable law, including the considerations set
forth in Daubert, supra, we cannot say that the trial judge abused his discretion by
prohibiting Dr. Galaznik from testifying as an expert at trial. At the hearing, Dr.
Galaznik testified that in the instant case, where a short fall history was offered,
doctors should not be able to come to court and assert that this case represented
abusive injury. Although Dr. Galaznik admitted that he was not a pathologist, a
neurosurgeon, a radiologist, an ophthalmologist, or a specialist in child abuse
pediatrics, he testified that his job was to evaluate the quality of the job the doctors
did in this case. We find no error in the trial court’s determination that Dr.
Galaznik was not qualified to testify in this manner.
Further, we note that defendant was not denied his right to present a defense.
Dr. Hua and Dr. Baden, both qualified forensic pathologists, testified on
defendant’s behalf that the child’s injuries resulted from a fall and not shaken baby
syndrome. Accordingly, this assignment of error is without merit.
ERRORS PATENT
The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175(La. App. 5 Cir. 1990). One error requiring corrective action was noted.
The sentencing minute entry indicates that defendant was advised of the
prescriptive period for requesting post-conviction relief. However, a review of the
transcript reveals that the trial judge did not advise defendant of the prescriptive
22-KA-457 22
period for filing for post-conviction relief. The transcript generally prevails. State
v. Lynch, 441 So.2d 732, 734 (La. 1983).
If the trial court fails to advise, or provides an incomplete advisal, pursuant
to La. C.Cr.P. art. 930.8, the appellate court may correct this error by informing the
defendant of the applicable prescriptive period for post-conviction relief by means
of its opinion. See State v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864,
870. Therefore, we hereby advise defendant that no application for post-conviction
relief, including applications that seek an out-of-time appeal, shall be considered if
it is filed more than two years after the judgment of conviction and sentence has
become final under the provisions of La. C.Cr.P. arts. 914 or 922.
DECREE
For the foregoing reasons, we affirm defendant’s conviction and sentence for
negligent homicide.
AFFIRMED
22-KA-457 23
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
APRIL 26, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-457
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HON. SCOTT U. SCHLEGEL (DISTRICT JUDGE)
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