Case Number: KA-17-0848

Judge: SHANNON J. GREMILLION

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Hon. Asa Allen Skinner
Thirtieth Judicial District Attorney
Terry Wayne Lambright
First Assistant District Attorney

Defendant's Attorney: Katherine M. Franks
Louisiana Appellate Project

Description: On February 10, 2016, Defendant and his wife, Clarissa, were engaged in a
physical altercation at their Anacoco, Louisiana, home. Defendant placed Clarissa
in a choke hold, where he held her until she passed out. Sometime between 12:00
and 12:30 a.m., Defendant went to the home of his neighbor, Mr. Justin Kay, and
asked if he could use his phone because his wife had hidden their phones. Mr. Kay
testified that Defendant told him his wife had been drinking, fell, and hit her head
on the wall. Defendant told Mr. Kay that he thought Clarissa had broken her neck.
Mr. Kay asked if he should call an ambulance, to which Defendant responded that it
was too late, “She’s cold.” Defendant then called 9-1-1.
Deputy Drew Coleman of the Vernon Parish Sheriff’s Office was the first
authority to arrive on the scene. Defendant was in his back yard. He told Deputy
Coleman that he thought his wife had committed suicide. Deputy Coleman entered
the home and found Clarissa seated or propped up beside the bed of the master
bedroom. Her eyes were open, but her skin was red-purple. She had what appeared
to be blood around her mouth and nose.
To preserve the scene, Deputy Coleman began to take photographs of the body
and surroundings. The space in which Clarissa’s body sat was very close to a wall.
In the course of attempting to photograph the body, Deputy Coleman knocked it over
when he disturbed the mattress. He replaced the mattress and repositioned the body
where it had been. Deputy Coleman also called his supervisor, Deputy Jerry
Twyman, who was already en route.
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Detective Misti Bryant led the sheriff’s office investigation of Clarissa’s death.
She testified that after she completed her survey of the scene, she proceeded to the
sheriff’s office, where Defendant had been taken. After advising Defendant of his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), Detective
Bryant interrogated Defendant, who told her that his wife had begun drinking earlier
in the evening. Defendant cooked supper, got the couple’s two children ready for
bed, then went to bed himself. He woke up around midnight and went to the
bathroom and found his wife dead on the floor.
Later, Defendant was interviewed by Detectives Bryant and David Vance. In
this interrogation, which lasted about four hours, Defendant stated that his wife had
retired to the room of his two children, with “her bottle,” to watch a television
program. He cooked supper and got his kids ready for bed. He and his two children
then got into his bed and began watching a DVD movie. Some time later, according
to Defendant, Clarissa then began trying to kick the door in before she realized it
was not locked. Clarissa was angry at the couple’s daughter, Belle. Clarissa entered
the room and began to hit and shake Belle. Wyatt, Belle’s younger brother,
attempted to intervene, but Clarissa hit or pushed him off the bed. At that point,
Defendant told the investigators, he seized Clarissa from behind in a choke hold,
which he maintained until, he thought, Clarissa passed out. Defendant left Clarissa
passed out on the floor and restarted the movie. Later, he awoke and saw that
Clarissa was still on the floor. At this point, he discovered that she was dead. He
then went to Mr. Kay’s home and called 9-1-1.
Belle was interviewed at the Rapides Children’s Advocacy Center in
Alexandria. Detective Bryant was present, but Bethany Branim conducted the
interview. She told the interviewer that her mother entered the room as Belle, her
dad, and brother were watching a “dragon show.” Clarissa entered the room and
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started kicking Belle, telling her to get out of the bed and go to her room. Then
Clarissa began hitting Defendant. Defendant then grabbed Clarissa and was
“holding on (gestures) to her neck really long and she stopped. . . .” Belle later stated
that Defendant held Clarissa for ten seconds. After Clarissa stopped moving,
Defendant told Belle that Clarissa was asleep, but Belle thought her mother was dead.
She unequivocally identified Clarissa’s drinking and behavior as the catalyst for the
violence, attributing it to Clarissa’s consumption of vodka and Coke. “And when
she drunk it every time, she started to be bad and be mean.”
A Vernon Parish grand jury indicted Defendant for second degree murder.
Several discovery motions were filed by Defendant and the State. The State filed a
notice of its intent to introduce evidence of prior domestic violence incidents
pursuant to La.Code Evid. art 404.
In response to discovery requests, Defendant identified Rich Clementi and
Matthew Larsen as potential expert witnesses. These men were identified as experts
in the “naked choke hold.” The State moved for a hearing pursuant to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
Larsen testified that he joined the United States Marine Corps in 1984. While
stationed at Marine Barracks Tokyo, he began training in martial arts. This training
continued throughout Larsen’s duty with the Marine Corps. After leaving the
Marine corps, Larsen enlisted in the United States Army. While in the Army, Larsen
convinced his then-commander, Stanley McChrystal, that the prevailing methods of
hand-to-hand combat training were insufficient. Larsen was tasked with developing
new methods, which resulted in Larsen being named Battalion Master Trainer.
Larsen went on to become the Regimental Trainer for an Army Ranger Regiment at
Fort Benning, Georgia, then Brigade Trainer for an entire Ranger Brigade.
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In 2002, Larsen re-wrote the Army Field Manual for hand-to-hand combat.
This manual was used to train every active-duty, reserve, and National Guard soldier.
Larsen re-wrote the manual in 2009, after he had retired from the Army and had been
hired by the Army as Director of its Combatives Program. Mr. Larsen continues to
train soldiers, law enforcement officers, and private individuals.
Larsen was questioned about the “rear naked” choke hold. This is a hold
taught in hand-to-hand training in the Army. One combatant attempts to restrict the
blood flow to the brain by applying pressure to one side of the neck with his biceps
and to the other with his forearm, effectively forming a “V” with his arm. The hands
are clasped, allowing the holder to apply force with his back muscles. This usually
results in the person being held losing consciousness in between ten and twelve
seconds, according to literature from the United States Judo Association. After the
hold is released, consciousness will return as the blood flow is restored. The hold is
called “naked” because it does not rely upon using the held person’s clothing to gain
mechanical advantage.
The rear naked choke hold is taught in judo to students as young as twelve.
The hold is considered a legal hold in Olympic judo competition, as well as in jiu
jitsu and mixed martial arts competitions. The rear naked choke has been taught in
the Army since 1905.
On cross-examination, Larsen admitted that he had met Defendant the day of
the hearing. In preparation for the hearing, Larsen reviewed the statements given by
the witnesses to Clarissa’s death. Larsen opined that Defendant employed a rear
naked choke hold on Clarissa primarily based upon Belle’s description of the
incident. He also opined that a rear naked choke hold was used based upon the lack
of damage to Clarissa’s neck area. Larsen possesses no specialized medical training
beyond the type of trauma medicine taught Army Rangers, nor does he have any
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forensic training. While he did not necessarily opine that the choke was used
correctly Larsen was careful to state that it was not used incorrectly, which would
be indicated by damage to Clarissa’s esophagus. Larsen has been accepted by a
military court as an expert in hand-to-hand combat.
At the close of his testimony, Larsen was offered by Defendant as “an expert
in martial arts, specifically, the application of the rear naked chokehold.” The trial
court granted the State’s motion to exclude Larsen as an expert because it did not
feel that he was qualified to opine whether the application of a rear naked choke
resulted in Clarissa’s death. Accordingly, the trial court denied Larsen qualification
as an expert witness.
Defendant’s jury trial commenced on April 3, 2017. Detectives Bryant and
Vance testified as set forth above. Belle testified that “everyone” was asleep in her
parents’ bed when Clarissa suddenly slapped Defendant in the face. Defendant
attempted to slap her back, but instead hit Belle. Belle’s parents then started fighting
and rolled off the bed, and Defendant began to choke Clarissa on the floor and
stopped when he thought she was “asleep.” Belle had no recollection of her
interview at the Rapides Children’s Advocacy Center. That interview was played
for the jury.
The State called Dr. Terry Welke, forensic pathologist at the Calcasieu Parish
Forensic Center, who performed the autopsy on Clarissa’s body. Dr. Welke
catalogued the many signs of trauma he noted to Clarissa’s body, including bruising
on both sides of her head, her chin, breasts, and neck. He opined that Clarissa died
from asphyxia, which is a deprivation of oxygen from the brain. There are several
means of succumbing to asphyxia, including strangulation, suffocation, exposure to
toxic gases, and “positional asphyxia,” which occurs when a person becomes
incapacitated and falls into a position in which the chin is too close to the chest.
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Dr. Welke submitted Clarissa’s blood for toxicological analysis. Clarissa’s
blood demonstrated an alcohol concentration of .277 grams per deciliter of blood,
roughly four times the limit for intoxication while driving. Clarissa’s blood also
contained a high level of Hydroxyzine, a sedative. Clarissa’s blood measured 477
nanograms per milliliter, and the “normal level is up to 80. ” “And, so, that means
it was elevated. And did she have any reaction to that, I don’t know, possibly, maybe
a little drowsiness, and in combination with the alcohol, probably so.” Dr. Welke
did not feel that the hydroxyzine and alcohol combination would have been
potentially lethal. Dr. Welke would not express an opinion whether Hydroxyzine
can cause seizures.
In Dr. Welke’s opinion, whether Clarissa asphyxiated from suffocation or
strangulation or positional asphyxia as a result of her being rendered unconscious
from a rear naked choke hold was of small import, because all three would be actions
of another person that led to her death, which meant that the death was a homicide.
He did concede that all of his findings are consistent with positional asphyxia.
On cross-examination, Dr. Welke agreed that bruising can be caused by a
number of things, including, in the case of someone with a high alcohol
concentration, simply falling down or bumping into objects. He also agreed that
Clarissa’s neck exhibited no damage to its internal structures. Dr. Welke was
familiar with a rear naked choke hold, which he termed a “carotid sleeper,” and
demonstrated the hold to the jury. In a rear naked choke hold, the choking arm does
not close the airway but compresses the blood vessels on the sides of the neck. This
hold can result in unconsciousness when applied for between ten and fourteen
seconds. A person placed in a carotid sleeper for ten seconds would not die from it.
If that person was then sat upright leaning against a bed, she would not likely
succumb to positional asphyxia.
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Defendant called two witnesses to testify. Vernon Parish Chief Deputy
Coroner Sharon Green testified as to her crime-scene examination of Clarissa’s body.
She noted that Clarissa’s tongue had been bitten as though Clarissa had experienced
a seizure. Nonetheless, Deputy Coroner Green felt that Clarissa’s death was a
homicide.
Defendant’s second witness was Dr. Cary J. Sharp. Dr. Sharp is an emergency
physician in Zachary, Louisiana. In preparation for his testimony, Dr. Sharp
reviewed the autopsy report, coroner’s report, toxicology report, and documented
injuries. He also reviewed several published studies related to positional asphyxia.
Dr. Sharp has not been trained in forensic pathology. He had been involved in cases
of positional asphyxia that were brought to the emergency room.
The State objected to Dr. Sharp’s qualification as an expert on the basis of his
lack of education and experience. The trial court ruled that an emergency room
physician was not qualified to deliver expert testimony of the nature Defendant
sought to elicit from Dr. Sharp regarding positional asphyxia. Defendant then sought
to offer Dr. Sharp as an expert on the issue of the effects of the combination of
alcohol and Hydroxyzine on the human body. The State objected to this
qualification of Dr. Sharp as well, arguing that the defense violated the Louisiana
Code of Criminal Procedure articles dealing with discovery of expert reports and
anticipated testimony. Specifically, the defense had listed Dr. Charles Mize as an
expert who would opine that Clarissa died from a combination of alcohol and
Hydroxyzine that resulted in positional asphyxia. The trial court refused to allow
Dr. Sharp to deliver expert testimony because of his lack of experience in death
investigations and on the grounds that posing purely hypothetical questions, as
Defendant sought to do, would confuse the jury.
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Following the disqualification of Dr. Sharp, Defendant rested his case.
Defendant exercised his right to not testify. The jury returned a unanimous verdict
finding Defendant guilty of second degree murder.
ASSIGNMENTS OF ERROR
Defendant contends that the trial court committed the following errors:
1. The evidence is insufficient to demonstrate that Daniel Eckert possessed the specific intent to kill or to inflict great bodily harm.

2. The trial judge erred in denying expert status to two proffered defense witnesses.

3. The actions of the trial judge denied Mr. Eckert his right to present a defense.

ANALYSIS
Sufficiency of the evidence
In State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court
stated that when issues of sufficiency of the evidence and other errors are asserted,
the issue of sufficiency of evidence should be addressed first. We stated, in State v.
Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371 (citations
omitted):
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court 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 proven beyond a reasonable doubt. It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson [v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)] standard of review. In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

Second degree murder is defined in La.R.S. 14:30.1(A)(1) as the killing of a
human being when the offender has a specific intent to kill or to inflict great bodily
harm. “Specific intent is the state of mind which exists when the circumstances
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indicate that the offender actively desired the prescribed criminal consequences to
follow his act or failure to act.” State v. Carroll, 95-859, p. 4 (La.App. 3 Cir.
1/31/96), 670 So.2d 286, 288. Specific intent may be inferred from the
circumstances of the case and the defendant’s actions. Id.
Defendant argues that Belle’s testimony establishes that he only choked
Clarissa for ten seconds. This, Defendant contends, shows that he lacked specific
intent to kill or inflict great bodily harm. The State, on the other hand, argues that
La.R.S. 14:34.1, defining the offense of second degree battery, defines “serious
bodily injury” as “bodily injury which involves unconsciousness. . . .” Because
La.R.S. 14:30.1 does not provide a more precise definition of “great bodily harm,”
we rely upon the legislative expression in defining “serious bodily injury” as a guide
in defining “great bodily harm.” We do not need to reach this question.
Defendant’s interrogation in which he stated that he held the choke hold for
ten seconds was played to the jury. Belle’s statement to Ms. Branim at the Rapides
Children’s Advocacy Center was also presented. These both contain references to
“ten seconds.” However, Belle also stated that Defendant held Clarissa in the hold
for a “really long” time. Belle’s testimony, as viewed from the stale transcript, can
reasonably be read to contrast quite vividly from her previous statement:
Q. Okay, and do you remember how long that he was on the floor choking her?

A. No, sir.

Q. Okay.

A. When um, he' d been choking her, I didn’t know time.

Q. Okay. So, when you think back on it, is it something that you’re not able to say how long it went on?

A. Yes, sir, I--I definitely didn’t know what time was.

Q. Okay.
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A. But now I do know what time is.

Q. Okay. When you’re watching your mom and dad fight did it seem like to you it went on for a long time?

A. It looked like it was kind of long.

Further along in Belle’s testimony, she stated:
A. She’s like, “get off, Dan, get off.”

Q. Okay, so she said it to him. She didn’t scream it at him, is that right?

A. She yelled at him.

Q. Okay. And did he get off?

A. No, he kept on choking her ‘til she, um, was dead, but he thought she was alive still and asleep. But –

Even if, as Defendant suggests, Clarissa was the aggressor in this confrontation, a
reasonable jury could find that she was attempting to withdraw, surrender, or
otherwise cease the confrontation, based on Belle’s testimony. Thus, any force
employed thereafter ceases to constitute self-defense. See La.R.S. 14:20. Further,
Defendant’s assertion that the evidence demonstrates that the choke hold was only
applied for ten seconds is not wholly correct; some evidence suggests that, but by no
means all. Belle’s actual testimony did not establish a ten-second limit to
Defendant’s choke hold. And a reasonable jury could conclude that a six-year-old
child might possess a tenuous grasp of concepts of time.
The elements of second degree murder, as set forth above, are a killing of
another with intent to kill or inflict great bodily harm. There is no dispute that
Defendant applied a choke hold to his wife; the only question for the jury to decide
was his intent. Given the facts elicited at trial, viewed in the light most favorable to
the prosecution, including the history of abuse—on the part of both Defendant and
Clarissa—in the relationship, the application of a choke hold by Defendant on
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Clarissa after she seemed to signal her intent to withdraw from the confrontation,
and the disputed length of time the choke was applied, we conclude that a rational
trier of fact could have found every element of the crime proven beyond a reasonable
doubt. This assignment of error lacks merit.
Exclusion of Matthew Larsen’s testimony
The decision to accept or reject a witness as an expert lies within the great
discretion of the trial court and will not be overturned unless that discretion was
abused. State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893, cert. denied, 528
U.S. 1026, 120 S.Ct. 542 (1999). The threshold necessary for the introduction of
expert testimony is set forth in La.Code Evid. art. 702, which states:
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.

There is no question in our minds that Larsen is an expert in hand-to-hand
combat; he literally wrote the book on the subject. However, simply being an expert
on a subject does not make one’s opinion testimony admissible. The first test of
admissibility of opinion testimony is whether it “will help the trier of fact understand
the evidence or to determine a fact in issue.”
We have already noted that significant discrepancies existed in the accounts
regarding the length of time the hold was placed on Clarissa. Larsen’s opinions were
predicated upon the ten-second application of the hold. A ten-second hold would
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not be lethal; a longer hold could be. Larsen was not going to state that the hold was
correctly applied by Defendant, but was instead going to testify that it was not
applied incorrectly. Whether the hold was correctly or incorrectly applied, however,
was not the issue. How long it was applied was the central inquiry, for upon that
inquiry lay the determination of the cause of Clarissa’s death and Defendant’s intent
in applying the hold, be it to calm her, incapacitate her, or kill her.
A trial court’s decision to not receive the testimony of an expert witness will
rarely result in reversal. State v. Craig, 95-2499 (La. 5/20/97), 699 So.2d 865, cert.
denied, 522 U.S. 935, 118 S.Ct. 343 (1997). This is particularly true where, as in
this case, the question of whether a ten-second rear naked choke would result in
death was not disputed. Dr. Welke confirmed that it would not. Accordingly, even
if we were to conclude that the trial court erred in not admitting Larsen’s testimony,
that error would be deemed harmless. This assignment of error lacks merit.
Exclusion of Dr. Cary J. Sharp’s testimony
Dr. Sharp had been an emergency room physician for twenty-two years at the
time of trial. Other than cases that presented to his emergency room, Dr. Sharp had
no experience in death investigations. He had not received training in forensic
pathology. Defendant asserted at trial and in brief that the questioning of Dr. Sharp
would have been limited to hypothetical questions related to positional asphyxia and
the effects of the alcohol-Hydroxyzine combination. The trial court refused to allow
this testimony on the basis that it felt Dr. Sharp was not qualified and that such
questioning would confuse the jury.
Even were we to conclude that we would have allowed Dr. Sharp’s testimony,
we can only overturn the trial court’s decision if we conclude that the trial court
abused its discretion in refusing to allow the testimony. Edwards, 750 So.2d 893.
In the present case, given the other evidence in the case and the lack of evidence
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regarding positional asphyxia, we find no abuse of the trial court’s discretion. With
regard to the effects of the alcohol-Hydroxyzine combination, we agree with the trial
court regarding the potential for confusing the jury. Those effects are relevant to the
issue of positional asphyxia, which we have already addressed, and that of whether
Clarissa might have suffered a seizure that caused or contributed to her asphyxia.
While there was some evidence that she might have suffered a seizure, primarily the
bitten or clenched tongue, a critical inquiry of whether to allow expert opinion
testimony is the foundation of that testimony in sufficient basis in fact or data. We
cannot say the trial court erred in this regard.
Assignment of error three
Defendant maintains that the exclusion of Larsen and Dr. Sharp as expert
witnesses denied him a meaningful opportunity to mount an defense:
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, Chambers v. Mississippi, supra, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S., at 485, 104 S.Ct., at 2532; cf. Strickland v. Washington, 466 U.S. 668, 684–685, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) (“The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment”). We break no new ground in observing that an essential component of procedural fairness is an opportunity to be heard. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507–508, 92 L.Ed. 682 (1948); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor's case encounter and “survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984). See also Washington v. Texas, supra, 388 U.S., at 22–23, 87 S.Ct., at 1924–1925.

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Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S. Ct. 2142, 2146–47 (1986). Given
our discussion above relative to the exclusion of Larsen’s and Dr. Sharp’s
testimonies, we conclude that no “competent, reliable evidence” was excluded at
trial. Id.

Outcome: Defendant’s conviction is affirmed.
AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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