STATE of Louisiana v. Robyn B. Little DAVIS. No. 13–275. Decided: October 23, 2013

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JOHN E. CONERY, Judges. Glen D. Vamvoras, Shane Hinch, Vamvoras, Schwartzberg & Hinch, Lake Charles, LA, for Defendant/Appellant, Robyn B. Little Davis. John Foster DeRosier, District Attorney, Carla Sue Sigler, Karen C. McLellan, Assistant District Attorneys, Lake Charles, LA, for Appellee, State of Louisiana.

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. 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 Baumgartner, 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 Baumgartner 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 State v. Davis and Saltzman, 12–236 (La.App. 3 Cir. 3/28/12) (unpublished opinion).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 (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–Davis 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. She alleges that the “evidence, when viewed in the light most favorable to the State, merely showed that Robyn Davis' cell phone may have been within the geographical area, constituting numerous square miles, at times she says she was not.” There was absolutely no proof, Defendant–Davis argues, that she shot the victim or was present at the time of his death. Additionally, Defendant–Davis alleges that the State failed to exclude every reasonably hypothesis of her innocence: 1) that she was with Defendant–Saltzman running errands in Lake Charles at the time of the murder; and 2) that the victim was killed by someone else, possibly his mistress' husband, Shane Dietz.

Preliminary Investigation

Detective Brent Young testified that he was present when Defendant–Davis was notified of her husband's death. Once told of her husband's death, Defendant–Davis was dry-heaving and/or vomiting. Defendant–Davis was cooperative with the detectives and told them that on the day he disappeared, the victim was supposed to be going boat shopping in Beaumont. Defendant–Davis also told Detective Young that the victim was “ratholing” approximately $700.00 for a new boat. When asked if the victim kept money in his sock, Defendant–Davis said he did from time to time because of the nature of his job, collecting insurance premiums.

David Guzzardo, district manager for Union National Life Insurance Company in Lafayette, testified that the victim was an agent of the insurance company. Mr. Guzzardo explained that the agents generally collect the premiums by physically going to the homes of the policy holders, some of whom live in low-income neighborhoods. The premiums are usually paid in cash, check, or money orders.

On July 2, 2009, the day after the victim's body was discovered, Detective Les Blanchard spoke with Defendant–Davis in order to gather background information and establish a timeline of the victim's whereabouts on the day of his murder. Defendant–Davis told Detective Blanchard that the victim left for work early that morning. According to Defendant–Davis, the victim drove her Trailblazer to work because the victim's Honda Accord was having wheel trouble. The victim wanted to go boat shopping, so he came home early from work—around 11:00 a.m. The victim and Defendant–Davis went boat shopping in Lake Charles and then went to Jerry's Marine in Sulphur. They arrived back at home around 2:00 or 3:00 that afternoon. At that time, the victim took his Honda Accord and headed to Beaumont to continue boat shopping. Aimee Davis, the victim's sister-in-law, spoke with a boat dealership in Beaumont that remembered the victim calling to say he was heading that way, but the victim never made it. Defendant–Davis testified that when the victim headed to Beaumont in his Honda Accord, she took her Trailblazer to go run errands—the cleaners, the grocery store and an oil change.

Defendant–Davis told Detective Blanchard that the victim had two life insurance policies—one for $90,000.00 and one for $40,000.00. Defendant–Davis also told Detective Blanchard that she learned in March of 2009, that the victim was having an affair with Fannie Dietz, a coworker of the victim. When she found out about the affair, Defendant–Davis confronted Ms. Dietz.

Several days later, on July 9, 2009, Detectives Blanchard and Young received permission from Defendant–Davis to search her residence and Trailblazer. With the help of Defendant–Davis' son, Justin Little, the detectives collected a box of ammunition belonging to the victim. The box of ammunition contained some 9–millimeter Hydra–Shok rounds.

Defendant–Davis gave a formal statement to the detectives on July 9th. In this statement, Defendant–Davis repeated much of what she had already told Detective Blanchard on July 2nd. Defendant–Davis also told the detectives that she spoke to the victim once after she and the victim went their separate ways on the day of the murder. Then, when she attempted to call the victim again, the call went straight to voicemail. When the victim did not come home, Defendant–Davis called the police to see about reporting him missing and was told that she must wait twenty-four hours from the time she expected him home. The next morning, Defendant–Davis called the victim's work and learned that no one there had heard from him. David Guzzardo verified that Defendant–Davis called him that Tuesday morning to see if he had seen the victim. Defendant–Davis called the police that night, and a policeman came to Defendant–Davis' home. Mark Chatman, an officer with the Lake Charles Police Department, confirmed that he received a call from Defendant–Davis about a missing person and went to Defendant–Davis' home Tuesday around 4:30 p.m. Defendant–Davis told Officer Chatman that the victim was supposed to be heading to Beaumont in his Honda.

In her July 9th statement, Defendant–Davis told detectives that before she and the victim left to go boat shopping on June 29th, the victim went to Kroger to get his sick daughter (Bailey) some soup. Catherine Davis, the victim's sister, testified that Defendant–Davis told her that the victim never returned from Kroger. In her statement to detectives, however, Defendant–Davis explained that she and the victim went boat shopping after he returned from Kroger and later split ways. When they split ways, Defendant–Davis picked up Defendant–Saltzman to go run errands. As for the victim's mistress, Defendant–Davis told Detective Young that the mistress' husband, Shane, had threatened to beat the victim's “a_ _” and get him fired. Mr. Guzzardo, the district manager for Union National Life, testified that the victim told him that his mistress' husband, Shane Dietz, might try to have him fired.

As for their financial situation, Defendant–Davis stated that her account was overdrawn by almost $800.00, that her house note had not been paid since March, and that they had no car insurance. Defendant–Davis also stated that she thought the victim gambled more than she was aware. Julius Oaties with Union National Life Insurance testified that both Defendant–Davis and Defendant–Saltzman worked for Union National at one time. Defendant–Saltzman was terminated in March of 2009, and Defendant–Davis was terminated one week later. Despite their financial situation, Darrell Pettifer of Jerry's Marine testified that on the day of his murder, the victim was looking at a $30,000.00 boat. The victim told Mr. Pettifer that he planned to pay for the boat with a settlement or lump sum of cash that he was getting in the near future.

After Defendant–Davis' July 9 th statement and before her July 13th statement, Detective Young became concerned with information he learned from Defendant–Davis' cell phone records. A call made by Defendant–Davis at 3:50 p.m. “pinged” off of a tower on Elliot Road in Lake Charles. According to Detective Young, the tower is south of the area in which Defendant–Davis claimed to have been running errands.

In her next statement to police on July 13, 2009, Defendant–Davis repeated much of the same information given in her previous statements but added information about Defendant–Saltzman's use of the victim's Honda Accord. Defendant–Davis explained that the victim's Honda Accord was not at the house the morning of the murder because Defendant–Saltzman drove it home the night before when her car would not start because she left her lights on. On the morning of the murder, while the victim was at work, Defendant–Davis jumped Defendant–Saltzman's car off so that Defendant–Davis could drive to the drugstore. According to Detective Young, Defendant–Davis said she called Defendant–Saltzman to tell her the Jetta was “good” and that she could come pick it up. According to Defendant–Davis, Defendant–Saltzman picked up the Jetta and left the Accord at their house while Defendant–Davis and the victim were boat shopping. Defendant–Davis reiterated that that she and the victim split ways between 2:30 and 3:00 the afternoon of the murder. Defendant–Davis talked to the victim about 3:00 while driving to Defendant–Saltzman's house. Defendant–Davis had to wait for Defendant–Saltzman to get ready. The two then went to the cleaners, Albertson's, and back to the Davis residence.

When told by Detective Young that her cell phone was being used in the area of the victim's murder, Defendant–Davis stated that she was not there. In fact, she stated that she had never been in the area where the murder occurred until after the victim's body had been found. Defendant–Davis had no explanation for her cell phone being used in the area of the victim's murder.

Defendant–Saltzman also gave a statement to detectives on July 13, 2009. Defendant–Saltzman stated that she was at the Davis home all afternoon on the day before the murder, which was a Sunday. When Defendant–Saltzman started to leave around midnight, her car would not start. Defendant–Davis told Defendant–Saltzman to take the victim's Honda Accord since the victim would be driving Defendant–Davis' Trailblazer to work the next morning. The next morning, Monday, Defendant–Davis called Defendant–Saltzman to tell her that the victim would be needing the Honda Accord. Defendant–Saltzman put $5.00 to $10.00 worth of gas in the car and drove it to the Davis residence. According to Detective Blanchard, a video from Shop Rite showed Defendant–Saltzman at the store shortly after 11:00 p.m. According to Defendant–Saltzman, she drove the Honda Accord to the Davis residence, and Defendant–Davis then drove Defendant–Saltzman back home. Defendant–Saltzman claimed that she stayed home until Defendant–Davis picked her up to run errands later that afternoon. Defendant–Saltzman was not ready when Defendant–Davis arrived, so they did not leave to run errands until an hour later. When the two left Defendant–Saltzman's house, they went straight to the dry cleaners and then to Albertsons. At first, Defendant–Saltzman stated that Defendant–Davis drove while running errands but later remembered that she (Defendant–Saltzman) drove. The two women completed the errands and arrived at the Davis residence around 5:00 or 5:30 p.m.

When the victim was still missing on Tuesday, Defendant–Saltzman drove around looking for him. Because the victim had previously taken them fishing at Calcasieu Point, Defendant–Saltzman drove to Calcasieu Point to look for the victim. When asked what she thought about the fact that Calcasieu Point was close to the murder scene, Defendant–Saltzman replied that she never thought about that. According to Detective Blanchard, the victim's body was found less than a mile from Calcasieu Point Landing.

In a separate interview conducted on that same date (July 13, 2009), Defendant–Saltzman stated that she had previously lived with the Davises for three years. Defendant–Saltzman told Detective Blanchard that she had no knowledge of the victim's death. When Detective Blanchard explained to Defendant–Saltzman the difference between first and second degree murder, Defendant–Saltzman asked if he thought she killed the victim. Detective Blanchard told Defendant–Saltzman that he thought she had either direct or indirect knowledge of the victim's murder. Defendant–Saltzman stated that she did not know what happened and asked to leave the interview. At that point, the interview was concluded.

Stephanie Wells, a good friend who was living with the Davises at the time of the murder, testified that she had eye surgery the day the victim disappeared. Ms. Wells testified that she remembered seeing Defendant–Saltzman's car parked in the grass when she left for surgery. When Ms. Wells returned home from her surgery around 10:30 a.m., she did not recall seeing Defendant–Saltzman's car at the Davis residence. Defendant–Davis was at home when Ms. Wells returned home, and the victim arrived a few minutes later. The victim asked Ms. Wells if she would watch his daughter, Bailey, while he and Defendant–Davis went boat shopping. Although Ms. Wells never saw the victim again, Defendant–Davis returned home around 5:00 p.m. Ms. Wells called the victim between 3:00 and 3:30 p.m., but the phone call went to voicemail. At 3:42 p.m., Ms. Wells sent the victim a text message stating that Bailey was not feeling well. Detective Young testified that the victim's cell phone records indicate Ms. Wells tried to call him at 3:42 p.m., and the phone call went straight to voicemail. The voicemail was followed by a text message stating that Bailey was ill. Although Ms. Wells did not receive a call back from the victim, she did receive a call from Defendant–Davis. According to Detective Young, Defendant–Davis called Ms. Wells at 3:50 p.m.. Ms. Wells assumed the victim and Defendant–Davis were still together. Ms. Wells thinks Defendant–Davis told her she was going to run errands. She acknowledged that in her previous statement to police she said that Defendant–Davis told her she was going to pick up Defendant–Saltzman to run some errands. Ms. Wells also acknowledged that Defendant–Davis made this call to her around 3:50 p.m.. Defendant–Davis and Defendant–Saltzman arrived home from running errands around 5:00 or 5:30 p.m.. According to Ms. Wells, Defendant–Davis was very distraught and crying when the officers notified her of the victim's death.

As for the cars at the Davis residence, Ms. Wells testified that when she left that morning for her eye surgery, Defendant–Saltzman's Jetta was parked off to the side of the driveway on the grass. Ms. Wells did not believe the victim's Honda was there when she left. When Ms. Wells returned, however, she believed Defendant–Saltzman's Jetta was gone and the victim's Honda was there. Ms. Wells also testified that after she went inside, she does not know what vehicles were picked up or dropped off.

Kelsey Little, Defendant–Davis' daughter, arrived at the Davis residence around 7:30 the morning of the victim's murder. Kelsey was with her boyfriend and went to sleep until approximately 2:00 p.m.. Kelsey left with her boyfriend and did not arrive back at home until around 9:00 that night. According to Kelsey, Defendant–Davis told her that the victim never came home from work, and no one could get in touch with him. When the police notified Defendant–Davis of the victim's death, Defendant–Davis was crying and throwing up.

Babette Bartholomew, Defendant–Davis' mother, testified that she deposited $4,000.00 into Defendant–Davis' account around the time of the victim's disappearance. Defendant–Davis told Ms. Bartholomew that she was instructed by police not to use the account since the victim was missing. Ms. Bartholomew stated that she did not know the victim was deceased when Defendant–Davis asked her for the money. When asked if she ever told the police that Defendant–Davis told her the account was frozen because of the death investigation, Ms. Bartholomew stated that if she did, it was because the victim was already dead at the time she was being interviewed. In her statement to police, Ms. Bartholomew stated:

I deposited $4,000 into a new account for my daughter, Robyn Davis, around the time of the funeral. I don't exactly remember when, but it was after he had died. Robyn said she couldn't use her account or they, detectives, wouldn't let her use the account because they wanted to watch the activity of Robyn's deceased husband's credit card or account as part of the investigation. I don't remember if Robyn told me that the account was frozen, I just assumed that, but I think I told them she said it was frozen.

At trial, Ms. Bartholomew testified that she deposited the money into Defendant–Davis' account before the victim died.

Detective Young testified that Ms. Bartholomew told him and Detective Blanchard that she deposited the money into Defendant–Davis' account because Defendant–Davis said the police froze the account due to the victim's death investigation. At first, this statement did not concern Detective Young. The detective became concerned, however, when he reviewed the financial records and learned that Ms. Bartholomew's deposit was made on July 1, 2009, the same date the victim's body was found.

Fannie Dietz confirmed that she and the victim had had an affair for about one and a half years. The affair ended in March 2009, when Defendant–Davis confronted her about the affair. According to Mrs. Dietz, her husband, Shane, also confronted the victim about the affair. Shane confirmed that he confronted the victim about the affair but denied ever threatening the victim. Mrs. Dietz was questioned by police on July 7 th and took the officers to a spot at which she had previously met the victim. Detective Brent Young described the spot as being “off of Henry Pugh Boulevard, which runs off of Big Lake Road near Calcasieu Point landing.” According to Detective Blanchard, the victim's body was found less than a mile from Calcasieu Point Landing.

Detective Young testified that Mrs. Dietz's cell phone records showed that she was in the Iota and Crowley area on June 29th. Detective Young also testified that Shane Dietz's phone records showed that he was not in the Lake Charles area on June 29th. However, Detective Young admitted that there was a gap of several hours between phone calls for both Mr. and Mrs. Dietz. Shane Dietz' records showed that he made a phone call at 2:50 p.m. and then received no other calls or texts until he received a text at 10:54 p .m. Likewise, the phone records for Mrs. Dietz show no activity between 9:28 a.m. and 4:56 p.m. According to Detective Blanchard's testimony at trial, Detective Young also spoke with Shane's boss, who verified that Shane was at work on the day of the victim's disappearance.

Murder Scene

Matt Vezinot, one of the deputies that responded to the murder scene, testified that the victim's vehicle appeared to have been having tire trouble. The lug nuts were taken off of one of the tires, and the car's spare tire was on the ground. In order to protect the tire from further damage during the towing process, Deputy Vezinot replaced the seemingly damaged tire with the spare. The tire was taken to Southern Tire Mart to be examined for defects. Billy Carnahan, Southern Tire Mart's store manager, testified that he found no defects in the tire. Mr. Carnahan also testified that if a flat tire was driven over the terrain he saw in a photograph shown to him by the State, the tire would have been damaged. On cross-examination, Mr. Carnahan acknowledged that although it does not happen often, new tires will leak if they are not sealed well around the rim. Mr. Carnahan also agreed that there are situations in which a tire can go flat even if there is no damage to the outer part of the tire.

Lynn Miller, with the Southwest Louisiana Crime Lab, was asked to examine fingerprints lifted from the crime scene in the present case. The fingerprints were lifted from the carjack, the windows of the victim's Honda Accord, an iPOD found in the car, the spare tire rim, and the mirror on the sun visor of the Accord. The only fingerprint that Ms. Miller was able to identify was Defendant–Davis' fingerprint on the mirror of the sun visor.

LeAnne Suchanek, also with the Southwest Louisiana Crime Lab, performed a DNA analysis on items recovered from the crime scene. According to Ms. Suchanek, the victim's body was too decomposed to yield a blood sample. Ms. Suchanek explained that the only way to obtain a “known [DNA] profile” from someone is to obtain a sample directly from the person's fluid or cellular material. Ms. Suchanek concluded that DNA found on the victim's belt, on the victim's fingernails, a bottle cap found at the scene, and the victim's driver's license belonged to an unidentified male. In Ms. Suchanek's opinion, the unidentified male was most likely the victim. Ms. Suchanek reached this opinion by examining the victim's left and right fingernails, from which she obtained a single DNA profile. Because the fingernails are an “intimate sample” taken from the victim, Ms. Suchanek expected the victim's DNA to be present. Ms. Suchanek compared the DNA found on the victim's belt buckle, beer bottle cap and driver's license with the profile obtained from the victim's fingernails and concluded that they were consistent. Finally, Ms. Suchanek testified that she discovered no female DNA on the items recovered from the scene.

Testimony Regarding Victim's Gun and Weapon Used to Kill Victim

Jody Baiamonte, an agent with Union National Life Insurance, testified that he knew the victim very well and knew that the victim carried a firearm in his car. Another agent, Robert Konrady, introduced the victim to a shooting club when the victim bought a Springfield automatic pistol and wanted to learn how to shoot better. Mr. Konrady testified that the victim was proficient in firearms and carried a gun in his vehicle. Justin Little, Defendant–Davis' son, testified that the victim always kept a Springfield XD 9–millimeter handgun either on his person or in his car.

Douglas Lancon, accepted as an expert in firearms and tool mark identification and ballistics, examined two projectiles found in the victim's body. According to Mr. Lancon, these two projectiles were fired from the same gun and were characteristic of “Federal's hydroschock design.” On cross-examination, Mr. Lancon acknowledged that there are at least eleven manufacturers that could have made the gun that fired these bullets, one of which was Springfield.

Crime Scene Reconstruction Expert

Mr. George Schiro testified for the State as an expert in crime scene reconstruction. After reviewing photographs of the crime scene, Mr. Schiro opined that because the victim's Honda Accord was not muddy, the vehicle had to have arrived at the scene before it rained on the day of the murder. The meteorology reports from the Lake Charles Airport indicate that the rain began around 3:45 p.m. on the day of the murder and lasted until about 7:00 that night.

Mr. Schiro also noticed that there was a live round located near the victim's vehicle. This fact, Mr. Schiro opined, may indicate that the person firing the weapon was not familiar with that particular firearm:

[I]f someone ․ is not familiar with a particular firearm, they may—if they're not familiar with all the safety functions, they may pull the trigger to try and click and nothing happens and then they'll rack one out and maybe at the time, you know, figure out how some of the safety mechanisms that may be involved

Mr. Schiro further opined that the shooter may have been standing and the victim bending over when the shooter shot the victim in the back. The victim then turned around and was possibly shot again, with the final blow being a shot to his head.

Additionally, Mr. Schiro testified regarding his opinion as to whether the victim was shot with his own gun. In reaching his opinion, Mr. Schiro looked at the information concerning the brand of the live round found at the scene and information concerning the weapon owned by the victim. After looking at this information, Mr. Schiro opined the following:

The evidence at the scene supports a probability that he may have been shot with his own gun. Given that there's a particular type of ammunition called Hydra–Shoks and, you know, the shootings that I have investigated, you rarely ever see Hydra–Shoks, with the exception of law enforcement personnel and shooting enthusiasts.

I saw photographs of that same type of ammunition at Mr. Davis' house, so I just think that lends more support, and given the fact that the bullets recovered from his body were Hydra–Shoks and the cartridge casings found at the scene were Federal just lends more support to that he may have been shot with his own gun.

On cross-examination, Mr. Schiro acknowledged that he would need to examine the victim's firearm to determine if it was the actual gun that shot the bullets found at the scene. Mr. Schiro agreed that his opinion is limited to the fact that it was probably the victim's gun based on the fact “there were Hydra–Shok rounds—he had Hydra–Shok rounds found in his possession [.]” Finally, on re-direct, Mr. Schiro testified, “Relatively speaking, among shootings, you very rarely see Hydra–Shok ammunition, again, unless it's usually a shooting enthusiast involved or law enforcement.”

Finally, Mr. Schiro rendered an opinion as to whether the crime scene was staged:

Well, I believe that the whole tire incident was staged, because all the documentation that I examined show that that tire was fairly recently purchased. There were no defects in it. As far as I know, it held its—its charge of air once it was charged. There appeared to be no defects on it. So, to me, that part of the scene was staged and that someone had to deflate that tire, and I don't know if it was staged for the benefit of the investigators who come out there, you know, and make it look like he was changing a flat tire, or if it may have been for Mr. Davis' benefit to make him think that there was a flat tire associated with this vehicle.

The other thing is, in addition to that, Mr. Davis had a compressor in the trunk of his car. And I don't know whether or not that compressor was functioning or not, but if the tire was truly flat, instead of changing the tire, you know, perhaps could have used the compressor. So, just the whole thing with the functionality of the tire indicated to me that that portion of the scene was staged.

On cross-examination, Mr. Schiro acknowledged that crime scene contamination can thwart the investigation of a case. The jury had previously heard the testimony of Deputy Roxanne Baumgarten, a registered medical-legal death investigator with the Calcasieu Parish Sheriff's Department, regarding possible contamination of the crime scene in this case. Deputy Baumgarten acknowledged that because there were photographs showing the Honda Accord's trunk open and photographs showing the Honda Accord's trunk closed, someone did not follow the proper protocol, i.e., no touching of the evidence until all photographs and video are taken. Deputy Baumgarten further expressed concern with the fact that Deputy Vezinot took the allegedly defective tire and put it in the trunk of the vehicle. The problem, Deputy Baumgarten recognized, is that anything on the outside of the trunk could have been transferred to the inside of the trunk. Mr. Schiro agreed that putting the tire in the trunk without individually protecting it was improper.

On cross, Mr. Schiro recognized that the victim's body was found in a secluded area and that the victim's belt was unbuckled and his shoes and a sock were off. Mr. Schiro admitted that the victim could have been getting undressed when he was killed. When asked, however, if his opinion would have been affected by testimony that the victim liked to go to remote areas to have sex with his mistress, Mr. Schiro replied, “No, it wouldn't have affected my opinions, based on what I've, you know, laid out here today.”

Further Investigation—Walgreens Video

Based on the fact that Defendant–Davis stated that she went to the drugstore on the morning of the victim's disappearance (June 29th), Detective Young obtained a video from Walgreens Drugstore for June 29th. The video was introduced into evidence and played for the jury. The video shows that at 8:52 on the morning of June 29, 2009, both Defendant–Davis and Defendant–Saltzman entered the store. According to Detective Young, Defendant–Saltzman never mentioned going to the drugstore with Defendant–Davis.

Cell Phone Records

Detective Young testified as to discrepancies he discovered when looking at Defendant–Davis' cell phone records. Although Defendant–Davis told detectives that she called the victim once after they split up, Detective Young testified that Defendant–Davis' phone records showed that from 3:00 p.m. on, Defendant–Davis' first call to the victim was at 5:58 p.m. Detective Young also testified about the phone call from Defendant–Davis to Ms. Wells at 3:50 p.m. on the afternoon of the victim's disappearance. In her statement, Defendant–Davis told the detective that when she made the 3:50 call, she was waiting on Defendant–Saltzman to dry her hair so that they could go run errands. According to the cell phone records, this call “pinged” off of a Sprint tower located at 7279 Elliot Road. The use of this tower concerned Detective Young, because the tower is south of Country Club Road, when the Defendants claimed they only went to Albertson's and AAA Cleaners. That same tower was used in a two-second phone call made from the victim's phone at 3:44 p.m. p.m. on the 29th. At the beginning of Defendant–Davis' 3:50 p.m. call, the southwest sector of the tower (sector 4), was the portion of the tower being used. During the call, however, the sector being used switched to sector 3 of the same tower, indicating that Defendant–Davis was mobile. In her statement, Defendant–Davis stated that she did not go anywhere that afternoon besides Albertson's and AAA cleaners. A surveillance video from AAA Cleaners verified that both Defendant–Davis and Defendant–Saltzman were at AAA Cleaners at 4:40 p.m..

Detective Young also testified regarding Defendant–Davis' claim that she left lots of voicemails for the victim. According to Detective Young, Defendant–Davis said she called the victim's voicemail “bunches” of times. However, when the victim's voicemail was played for the jury, there were no messages from Defendant–Davis from June 29, 2009, at 2:58 p.m., until July 4, 2009, at 9:20 a.m.

As for Defendant–Saltzman, Detective Young testified that she told him that she was home in the afternoon of June 29th, until she went with Defendant–Davis to run errands. Defendant–Saltzman's cell phone records, however, indicated that a phone call made by Defendant–Saltzman to Defendant–Davis at 1:38 p.m. “pinged” off of Centennial Tower 940 located at 316 Ben Wright Road in Hackberry, Louisiana. According to Detective Young, Hackberry is located south of Sulphur. Detective Young previously testified that there is a Centennial tower located on Irvin Jensen Lane that is approximately 100 yards from Defendant–Saltzman's residence, which is located in Lake Charles. At 2:41 p.m., Defendant–Davis called Defendant–Saltzman, and Defendant–Saltzman's cell phone “pinged” off a Centennial tower located by the airport in south Lake Charles. Then, at 2:49 p.m., Defendant–Saltzman called Defendant–Davis, and Defendant–Saltzman's phone “pinged” off of a Centennial tower in Sweetlake, Louisiana. Finally, Defendant–Saltzman received a call at 3:01 p.m. that initially “pinged” off of the tower near the airport and ended at Irvin Jensen tower near Defendant–Saltzman's residence. Detective Young testified that the final call was from Troy Fletcher to Defendant–Saltzman.

In addition to the Defendants' cell phone activity on the 29th, Detective Young testified as to the Defendants' cell phone activity on Sunday the 28th. According to Detective Young, both Defendants told him that they were at the Davis home sitting by the pool and grilling. However, at 5:00 p.m. on the 28th, Defendant–Davis called Defendant–Saltzman, and Defendant–Saltzman's phone “pinged” off of the Centennial tower located in Hackberry, the preferential tower for a call made from the murder scene. At 6:26 p.m. on that same date, Defendant–Davis called Defendant–Saltzman, and Defendant–Davis' phone “pinged” off of a cell tower located at 2381 Augustus Street in Sulphur, Louisiana. According to Detective Young, the Augustus Street tower is located near Jerry's Marine, the same location at which the victim and Defendant–Davis were seen boat shopping the following day. At 7:31 p.m. on that same date, the victim called Defendant–Davis, and the victim's phone “pinged” off of a tower located on Canal Street near his home. Defendant–Davis, however, “pinged” off of the tower located at 7279 Elliott Road, which is the same tower off of which her 3:50 p.m. call to Ms. Wells “pinged” the following day (June 29th).

Expert Testimony Regarding Cell Phone and Cell Phone Towers

Special Agent William Shute of the Federal Bureau of Investigations was introduced by the State as an expert in historical cell site analysis. Agent Shute examined the call detail records of the Defendants and victim, as well as the cell towers themselves, to make sure the towers were in the same condition they were in at the time of the crime. Agent Shute took an engineering cell phone to the tower locations to see if the phone would reselect to that particular cell tower. Agent Shute explained that when a phone is in idle mode, it is constantly “stacking and racking”—meaning “[i]t's taking all the various cell sites that the phone can see and has stacked and racked at the top the one it sees with the clearest signal, the best quality of signal.” Agent Shute prepared a power-point presentation to demonstrate the cell towers used as well as the range of the towers. When asked how accurately the circles drawn on his demonstration depict the radio frequency of the towers, Agent Shute responded:

Well, a cellular signal doesn't have a perfect ending, a perfect circular sort of ending. It looks more like an ameba, if you were to really draw it by using additional equipment. But what this represents is it's the furthest possible distance that the phone was most likely at during that time, by doing testing east and west of the tower, and when the phone that I used to test with would drop the Centennial Wireless signal from that tower.

Again, when your phone is stacking and racking, it puts that cell site to the top of the list so that if it's about to make a phone call or receive a phone call, that's the cell site that the call gets originated on, the call gets set up on. Outside of that area, the call was not—or the phone was not reselecting to that cell site. That's why we draw it like this. It's an approximation, and actually it's to actually be fair to the person who actually has the phone, because you have to show, you know, all the possible areas the phone could have been.

In reality, Agent Shute testified, the outside areas could be further away or closer to the cell site. Additionally, Agent Shute explained:

And, again, is that the exact depiction? No. But it's—if it's different, it's not that much different than that. Because, again, my phone that I use to test with, this shows where the phone no longer had that signal. And so outside of that area it's very unlikely the phone to reselect to [Tower] 2610.

․

So, you know, in reality the signal probably goes, you know, further and further and further. But the phone would not reselect to it because the phone cannot see it ․ [a]s a clear quality signal.

Using his demonstration to explain his testimony, Agent Shute testified that on June 28th, the day before the murder, Defendant–Davis called Defendant–Saltzman at 5:00 p.m. Defendant–Davis' phone utilized cell tower 3278, which is the tower near the Davis residence in Lake Charles and the preferential cell site at the residence. During that same call, Defendant–Saltzman's phone utilized Centennial Wireless Cell Site 940 located off of Ben Wright Road in Hackberry, which is located south of Sulphur and is the preferential cell tower for a call made from the murder scene. At 6:26 p.m. on June 28th, Defendant–Davis called Defendant–Saltzman, and Defendant–Davis' phone utilized Sprint Tower 3015, the tower near Jerry's Marine, where the victim and Defendant–Davis were seen boat shopping the following day. During that same call, Defendant–Saltzman's phone utilized Centennial Tower 2610, a tower located approximately 370 yards from Defendant–Saltzman's residence. According to Agent Shute, tower 2610 is the serving tower for Defendant–Saltzman's residence. Finally, at 7:31 p.m. on June 28th, Defendant–Davis made a phone call that used cell tower 3045, a tower that covers an area as close as1/212 mile from the murder scene.

The following day, June 29th, Defendant–Davis called Defendant–Saltzman just after midnight. Defendant–Davis appeared to be in the vicinity of her residence because her phone utilized cell tower 3278, while Defendant–Saltzman appeared to be at her residence because her phone utilized tower 2610. Relying on the video surveillance at Walgreens, Agent Shute testified that later that morning, both Defendant–Davis and Defendant–Saltzman were together at Walgreens. At about the same time the Defendants were at Walgreens, Defendant–Davis received a phone call, and her phone utilized tower 3278, the same tower used at her residence. According to Agent Shute, Walgreens is in the same coverage area for tower 3278. Notable to Agent Shute was the fact that Defendant–Davis' presence at Walgreens was also supported by the cell site information.

At 11:18 a.m., Defendant–Saltzman is recorded on video at the Shop Rite on Country Club Road in Lake Charles. Defendant–Davis called Defendant–Saltzman at 11:25 a.m., and Defendant–Saltzman's phone utilized tower 2610, the tower near Defendant–Saltzman's home in Lake Charles. Later, at 1:38 p.m., Defendant–Saltzman called Defendant–Davis, and Defendant–Saltzman's phone used tower 940, the tower located in Hackberry, Louisiana, and the preferential tower for a call made from the murder scene. This is the same tower, according to Agent Shute, that Defendant–Saltzman's phone used the previous day. Agent Shute testified that the tower is 300 feet high and actually covers as far out as eight miles. According to Agent Shute, a cell phone used on the access road of the murder scene would utilize this same tower. During the 1:38 p.m. call, Defendant–Davis utilized tower 2273, a tower near Lake Area Marine in Lake Charles, one of the places at which the victim and Defendant–Davis boat-shopped on June 29th.

Approximately one hour later at 2:41 p.m., Defendant–Davis called Defendant–Saltzman. At that time, Defendant–Davis utilized tower 3015, which is the serving cell site for Jerry's Marine in Sulphur. At that time, Defendant–Saltzman had moved from tower 940 in Hackberry to tower 2470 by the Lake Charles airport. For the next thirty minutes (from 2:41 p.m. to 3:08 p.m.), Defendant–Davis had five phone calls, all of which used tower 3015, the serving site for Jerry's Marine. Three of the phone calls were with Defendant–Saltzman. One of the calls (the call at 2:53 p.m.) was with the victim. During this call, both Defendant–Davis and the victim used the same cell tower, 3015. Both Defendant–Davis and the victim were recorded leaving Jerry's Marine at 2:55 p.m. The last call, during which Defendant–Davis' phone used cell tower 3015, was made at 3:08 p.m.

The next call from Defendant–Davis' phone is a 3:50 p.m. call. During this call, Defendant–Davis' phone originated at Sprint tower 4045 and ended 2 minutes and 23 seconds later on Sprint tower 3045. According to Agent Shute, neither tower 4045 nor tower 3045 can be utilized at the murder scene. However, the towers can be used “a half a mile up the road” from the murder scene. Notable to Agent Shute was the fact that Defendant–Davis' phone could have been as close as one-half mile from the crime scene or as far away as five miles. Agent Shute also testified that because the 3:50 p.m. phone call originated on one cell tower and ended on another, Defendant–Davis was mobile during that phone call.

Agent Shute used mapping software and a drive test to find the most direct route from Jerry's Marine to the areas covered by towers 3045 and 4045, the towers used by Defendant–Davis during her 3:50 call. The mapping program and drive testing showed a distance of twenty-one miles and an approximate travel time of twenty-eight minutes. Thus, Agent Shute opined that it was possible for Defendant–Davis and the victim to arrive at the murder scene by 3:36 p.m. Defendant–Davis' phone calls after the 3:50 p.m. call show that she moved a little to the east and then a little to the southeast and then back to the vicinity of her residence. At 4:39 p.m., Defendant–Davis made a phone call that used Sprint tower 2280. Both AAA Cleaners and Albertson's are in the coverage area for that tower. Finally, at 9:36 p.m. on June 29, 2009, Defendant–Davis made a call and Sprint tower 3278, the serving site for her residence, was used.

As for the victim's cell phone records, Agent Shute testified that the victim's cell phone was used at 3:01 p.m on the 29th and used tower 3015, the cell site for Jerry's Marine. Then, at 3:44 p.m., the victim's phone made an outbound call lasting only two seconds. The phone used cell tower 3045, the same tower used by Defendant–Davis in her 3:50 p.m. call. Agent Shute noted that Defendant–Davis' cell phone used cell tower 3045 at 7:31 p.m. the day before the murder and at 3:50 p.m. the day of the murder.

On cross-examination, Agent Shute explained that the population of calls on a network has no bearing on the range of the tower. In other words, if the population in an area decreases, the range of a tower will not increase. Agent Shute further explained that although geography could affect the range of a tower, the weather has minimal effect on the range. Although Agent Shute did not agree or disagree with defense counsel, defense counsel noted that on June 28th (the day before the murder), both the victim and Defendant–Davis were using their cell phones in the vicinity of Jerry's Marine between 6:25 p.m. and 6:29 p.m. Additionally, when questioned about the use of multiple cell towers during phone calls that Defendant–Davis made on June 27 th within seconds of one another, Agent Shute opined that Defendant–Davis was either mobile or within an area of overlap for those towers.

As for the time it took to get from Jerry's Marine to the murder scene, Agent Shute testified that if a person drove the speed limit, it is possible for that person to reach the crime scene in twenty-eight minutes. If a person drove over the speed limit, of course, that person could arrive sooner. During the cross-examination of Agent Shute, the defense offered documentation showing that a pontoon bridge on the way to the murder scene was opened for barge traffic (and thus closed to road traffic) between 3:31 and 3:47 p.m. on June 29th. Allyson Bailey, a bridge operator with the Department of Transportation and Development, confirmed that the Black Bayou Bridge on Big Lake Road was closed to road traffic from 3:31 p.m. until 3:47 p.m. Agent Shute agreed that if this documentation was accurate, no one could have crossed the bridge between 3:31 p.m. and 3:47 p.m. This fact, Agent Shute acknowledged, was not factored into his analysis.

On re-direct, the following colloquy took place regarding the effect of the bridge opening on the travel time to the murder scene from Jerry's Marine:

Q: All right, Agent Shute. I'd like to draw your attention to prior testimony and this bridge stuff. Now, we didn't have that bridge information, but over the lunch hour I asked you to look at that bridge information, did I not?

A: Yes, on the map. Sure.

Q: Okay. And there was a call in those call detail records, I believe, from Robyn Davis' phone at 3:08?

A: 3:08, yes.

Q: All right. In what sector was that phone call made?

A: Thirty-fifteen.

Q: And which sector is that? Is that the one by Jerry's Marine?

A: Yes.

Q: All right. I want to go back to your fly-over exhibit. Okay. (Addressing assistant.) Can you go to the one that shows the sector? All right. Right there. Okay. That's 3015, correct?

A: Yes.

Q: And that's the one that her phone was on at 3:08?

A: That's correct.

Q: All right. That covers a wide range of area, does it not?

A: Yes.

Q: Okay. So I see I–10 on that—in that particular sector, correct?

A: Yes.

Q: If that phone made a call at 3:08, could it have been on the outside of the area?

A: You mean towards the outside of the coverage area, out this way?

Q: Oh, yes, sir. That's what I mean.

A: Sure.

Q: Like if someone were going down I–10, say to go back to Lake Charles, it would go all the way back over to where that sector ends, right,—

A: Out—

Q:—or it could?

A: Out this way, yes.

Q: Yes, sir.

A: Sure.

Q: All right. From 3:08, did—no, scratch that. Back when you said 30—no, 28 minutes?

A: Twenty-eight minutes.

Q: That was timed from where?

A: From right here, from Jerry's Marine.

Q: All right. So, there's some time in that 28 minutes that it would have taken to get from Jerry's Marine to the outer edge of that sector, correct?

A: Yeah, using the same mapping software that I utilized when I did this, I checked. And to get from about Jerry's Marine up this road and out on Interstate 10 to about this approximate geographical area would take about six minutes.

Q: Okay. So, the six minutes—if the call would have came in at 3:08, then it could be at the end? It would be at the end or somewhere in that particular area that you talked of?

A: Well, again, we don't know where the phone was, but if the phone was towards the outskirts of the sector out here on Interstate 10 in this geographical vicinity, sure.

Q: All right. And did you run the mapping software on this area to see from 30—I mean, from that particular area how long would it take to get to the murder scene?

A: I believe I checked from the—that location to being able to get beyond the pontoon bridge.

Q: Okay. And what was that?

A: Twenty-two minutes.

Q: Okay.

A: Going the speed limit.

Q: So if at 3:08 you turned that way and you added 22 minutes, that gets you there at 3:30?

A: 3:30.

Q: Prior to the time that pontoon bridge opens?

A: It is possible, if going the speed limit, you could have gotten there before the—before the bridge opened. Now, if you were going faster, then you could—even five minutes, five miles an hour over the speed limit, you could have gotten there a lot—a lot sooner than the bridge opening.

Q: So, having this bridge opening really doesn't affect your opinion, does it?

A: No. It doesn't mean anything.

As for the two-second call made from the victim's phone at 3:44 p .m., Agent Shute testified that that call could have been a “pocket dial,” a misdial with a quick hang-up, a phone call that quickly lost signal, or any number of things. When asked if the phone could have been thrown into water while it was on, Agent Shute replied, “If the phone was connected to—for a signal and then dropped into the water or thrown into the water, the call signal would terminate immediately.” Agent Shute testified that he did not believe the victim's cell phone was found at the crime scene. Finally, Agent Shute opined how long it would take for a person to travel from the murder scene to the AAA Cleaners and Albertson's in Lake Charles. Agent Shute opined that the drive time was approximately twenty-three minutes. Noting that the Defendants were seen at AAA Cleaners at 4:22 p.m., Agent Shute testified that there was enough time for the Defendants to make it from the crime scene to the cleaners if they were traveling at 3:50.

In its case in chief, the defense offered its own communications expert, John Minor. Mr. Minor opined that Agent Shute's report was biased in several areas. Mr. Minor testified that “cell sites or cellular antennae range from 100–meter coverage in what's called a picocell in a shopping mall to over several thousand meters.” Coverage on an interstate, Mr. Minor testified, could be up to forty miles. When asked to explain the difference between live tracking and historical cell site analysis, Mr. Minor stated that live tracking is highly accurate. According to Mr. Minor, in live tracking, other location techniques are used. The accuracy of the location technology used in this case, historical cell sector analysis, was explained by Mr. Minor as follows:

Well, the accuracy of this technology is based upon the radiation footprint of the cell site. So, you have a cell site in some cases that have a capability to communicate at perhaps, as that Hackberry tower, so-called, at 8, 12 miles perhaps, and maybe on an interstate highway, a cellular tower may be communicating at 20 or 30 miles.

In town in a suburban or more and more densely urban area, the cell sites are closer together, and so the radiation footprint becomes smaller. So, the actual working range of the cell site becomes smaller. So, this thousand meters plus is just a number. It could be—it could actually be lower than that, if it were a piocell—one of the little cells inside a shopping mall, for example. It might be accurate within a hundred yards. But in this case we're talking about cell sites that range from basically about 2 miles—just thinking about the arrangement here in town, probably 1 to 2 miles out to 10 to 15 miles working range and accuracy.

Mr. Minor disagreed with Agent Shute that the cell phone controls which tower it uses. According to Mr. Minor, the carrier network, not the phone, determines the cell site to which the phone registers. Mr. Minor explained further:

Well, the neighbor cells concept is, I think as Special Agent Shute described, some stacking and racking. Your cell phone actually monitors and remonitors every 6 to 12 seconds the visible radio signal from cell sites in the vicinity around your handset. When you switch on your handset, it immediately begins to gather information and will register to the highest quality signal that it can locate that the carrier network will allow it to.

Although a cell phone typically attempts to seek the strongest or best quality signal in most instances, there are many factors that will affect how the cell phone actually registers on the network. Thus, Mr. Minor stated, it is “not always a sure thing that your handset will register to the nearest cell site or strongest signal.” Some of the factors that could affect the cell site to which the handset registers are “heavy traffic loading,” “network operating conditions, cell site maintenance,” “radio frequency in use,” “antenna array configuration,” “geography and topographical features,” and “interference factors.” According to Mr. Minor, Agent Shute did not consider some of these factors in his report. In fact, no maintenance records were obtained in this case. Thus, there is no indication in Agent Shute's report that he consulted the maintenance records “to know whether or not the system was the same the day he performed the test as it was whenever these cell data records he looked at were generated.

Mr. Minor also disagreed with Agent Shute that weather is not a factor that should be considered. Weather, Mr. Minor testified, affects the “network operating condition.” For example, cellular networks can experience “rain fade” during heavy rain storms, causing the signal to fail to propagate through the rain. The person using the cell phone would not notice, however, because the cell phone will reselect to another tower. According to Mr. Minor, lightening can also cause tremendous problems. Finally, Mr. Minor explained what happens when a cell site experiences problems:

[I]f some or many of the cell sites were experiencing outages, either one sector or an entire site blinking out, the network would expand to fill the voids, and the working range would extend, and your handset might actually be in another geolocation.

Mr. Minor also testified that if the population in an area decreases because of a hurricane, for example, fewer subscribers will be in a geographical area, resulting in less of a load on that segment of the network. In Mr. Minor's opinion, the working range of the Hackberry tower extended ten to twelve miles rather than the eight miles estimated by Agent Shute. Mr. Minor testified that it is entirely possible for someone to be on the outer edge of the twelve mile range and have the Hackberry tower pick up his cell phone call. Mr. Minor further testified that a shift change at one of the refineries along Big Lake Road could cause a surge in call traffic. Such a surge could cause a tower to be used that would normally not be used. Thus, Mr. Minor stated, just because a phone “pings” off of the tower in Hackberry does not mean the person is in Hackberry.

The airport tower, Mr. Minor testified, is a little over twelve miles from the Hackberry tower. The Hackberry tower frequencies, Mr. Minor testified, actually reach the airport tower. Thus, Mr. Minor opined, someone could be south of the Country Club Road area in South Lake Charles and still be picked up by the Hackberry tower depending on certain conditions. Mr. Minor testified that it is possible that Defendant–Saltzman might have “pinged” off of the Hackberry tower even though she was far north of where Agent Shute estimated her to be. Additionally, Mr. Minor testified that when looking at the accurate facts from the tower areas, a more possible explanation would be that Defendant–Davis was in her own neighborhood when she made the 3:50 p.m. call. Furthermore, Mr. Minor testified, Mr. Shute's theories were “really ․ mess[ed] up” by the fact that the road was shut down for sixteen minutes by the opening of the pontoon bridge. Finally, Mr. Minor concluded that this type of analysis is a “very inexact process.”

On cross-examination, Mr. Minor testified that he did not perform any testing himself. Mr. Minor also testified that he did not know whether a shift change actually took place at the plants on Big Lake Road. Additionally, Mr. Minor did not know whether there were any problems with the networks when this crime occurred nor what type of cell-site maintenance was transpiring. As for his testimony that Tower 940's coverage extends twelve miles, Mr. Minor testified that he did not go out and test or measure anything. Thus, his testimony is simply an estimate. Finally, Mr. Minor testified that he has no idea of the population in Hackberry, Lake Charles, or Sulphur.

Background Information About Victim and Defendants

Justin Little, Defendant–Davis' son, knew of the victim's affair with Fannie Dietz because Justin worked with the victim for Union National in Lafayette. According to Justin, the victim would stop to play video poker on the way to work in the mornings and sometimes on the way home. The victim's video poker playing, Justin testified, escalated in the six months prior to his death. Justin knew that his mom, Defendant–Davis, also gambled. John Nelson, an employee of KD's Diner in Lake Charles, recognized Defendant–Davis as being a continual customer at the video poker machines in the few days preceding July 11, 2009.

Justin also testified that Defendant–Davis was married to Justin's dad, Andrew Little, when Andrew died in a car accident in 2008. Andrew and Defendant–Davis had been separated since 2000, but Defendant–Davis stayed legally married to Andrew so that she could continue to carry Andrew on her medical insurance. According to Justin, Andrew could not work because of a bad back, and it would have been almost impossible for him to obtain medical insurance. Justin knew that Defendant–Davis carried life insurance on Andrew, but Justin did not know the value of the policies or what happened to the money from the policies. Finally, Justin was asked about a recorded conversation he had with Defendant–Davis while Defendant–Davis was in jail. The recording was later admitted into evidence and played for the jury. During the conversation, Defendant–Davis told Justin that there were people in jail with “way higher bonds” than her that didn't even kill anybody. When asked about the context of that statement, Justin explained:

We talked about me getting a haircut, a few other, you know, small things, and then I asked her if—I asked her if anybody had a higher bond than her and I also asked her jokingly if she was the hardest criminal in jail, which we can look at her and make that assessment, and I believe—you know, it was all in good fun and stuff and we were joking and she said, well—I believe she said to the extent that they got people with higher bonds that didn't kill anybody, which we were just talking about her arrest. We weren't talking about, you know, her actually doing anything or to that extent.

Justin testified that Defendant–Davis jokingly made the statement and was not confessing to murder. Justin stated that he asked his mother “straight up” if she had anything to do with the victim's murder, and she said “no.”

Defendant–Davis' daughter, Kelsey, was asked about her father, Andrew Little's, death. When asked if she ever indicated to police that there was a problem with the life insurance, Kelsey replied, “The problem? That she was the beneficiary and she got all the money.” Kelsey also told police that Defendant–Davis told her that there was only $25,000.00 in life insurance. However, when her father's house was being cleaned, a $100,000.00 policy was found. In her statement, Kelsey also stated that the situation was “shady” because Defendant–Davis bought a Trailblazer with cash, bought the victim a boat with cash, remodeled the house with new hardwood floors, bought new kitchen appliances, hired a professional painter to paint the entire house, and hired someone to landscape the house. In the statement, Kelsey described her mother as being unfair to other people. When questioned by defense counsel, Kelsey stated that she did not know how much life insurance money was paid when her dad died.

As for Defendant–Saltzman, Kelsey described her as a second mom. Kelsey stated that Defendant–Saltzman lived with them for four years, never paying any rent or buying groceries. In her statement to police, Kelsey stated that Defendant–Saltzman did not have any money and did not have to have any money if she hung out with Defendant–Davis.

Davis' Financial Records

Detective Young reviewed the Davis' financial records. The District Attorney asked Detective Young to look at withdrawals and expenditures beginning in February 2009. The records showed overdraft charges, frequent withdrawals, and withdrawals at gaming establishments. In particular, on July 10, 2009, Defendant–Davis' card was used to purchase $102.75 at Casino Gaming. On July 11, 2009 (ten days after the victim's body was found), Defendant–Davis wrote four checks at K.D's Diner—$202.75, $102.75, $102.75, and $62 .75.

Life Insurance

When he first spoke with Defendant–Davis, Detective Blanchard learned that the victim had two life insurance policies—one from Farm Bureau in the amount of $90,000.00 and one from Union National in the amount of $40,000.00. Later, however, Detective Blanchard learned from Kay Ashworth, of State Farm Insurance, that there were two additional polices—one in the amount of $100,000.00 and one in the amount of $250,000.00. The Farm Bureau policy was opened on September 30, 2004. Defendant–Davis was listed as a fiancé with a scheduled wedding date of December 18th. The $250,000.00 State Farm policy was opened on April 8, 2005, with Defendant–Davis listed as fiancé. Defendant–Davis became the owner of this policy on August 10, 2006. The $100,000.00 State Farm policy was opened on September 30, 2004, and Defendant–Davis was the beneficiary, listed as a girlfriend. The Union National Insurance Policy was a Prudential Policy opened October 29, 2004, in the amount of $50,000.00 with an additional $150,000.00 accidental. The spouse, Marla, was removed, and Defendant–Davis was added as a beneficiary, listed as a friend. Detective Young testified that there were four policies, totaling $645,000.00.

Defense's Case

In its case in chief, the defense offered the testimony of John Bloxom, a resident of Calcasieu Parish, who called Crime Stoppers after seeing a news report that a body was found at the end of Wagon Wheel Road on July 1, 2009. The day before the news report, Mr. Bloxom saw a red truck backed up by the trees on Wagon Wheel Road. Mr. Bloxom testified that he saw the truck before noon. Shane Dietz testified at trial that at the time of the murder, he drove a red F–150 four-door truck. When asked if he noticed anything unusual about the truck he saw, Mr. Bloxom stated that the doors of the truck were open. Mr. Bloxom also testified that he had been fishing in that area for twenty years and very seldom saw vehicles in that area. No one from law enforcement followed up with Mr. Bloxom. When asked why he did not follow-up on Mr. Bloxom's call, Detective Young testified that the victim's phone records indicated he was most likely dead on Monday.

Mark Fontenot, a friend of both the victim and Defendant–Davis, testified that he spoke with the victim on the morning of June 29th. Mr. Fontenot thought he remembered the victim telling him that he and Defendant–Davis were looking at boats at Henderson Implement in Welsh. Mr. Fontenot believed the call was at about 10:19 that morning. According to Mr. Fontenot, Defendant–Davis called him that evening, “around 7:00–ish,” to see if he had heard from the victim. Mr. Fontenot stated that he had not heard from the victim, but he began calling the victim and leaving voicemails. When he learned that the victim was missing, Mr. Fontenot thought the victim was either fooling around and did not want to be disturbed or something bad had happened. On cross-examination by the State, Mr. Fontenot described the victim as a “neat freak.” Finally, Mr. Fontenot stated that when he and the victim would fish together, they would mostly launch at Calcasieu Point on Henry Pugh Boulevard. According to Detective Blanchard, the victim's body was found less than a mile from Calcasieu Point Landing.

State's Argument

In closing, the State argued that instead of being home the afternoon of June 29th as she claimed, Defendant–Saltzman was driving the victim's Honda Accord and communicating with Defendant–Davis to determine when Defendant–Davis and the victim would be leaving Jerry's Marine. Defendant–Saltzman drove the victim's Honda Accord to Wagon Wheel Road and feigned a flat tire. Rather than going home and switching cars as Defendant–Davis claimed, the State argued that Defendant–Davis and the victim drove the Trailblazer straight from Jerry's Marine to Wagon Wheel Road. Although the State does not indicate which Defendant did the shooting, the State argued that once lured to the murder scene, the victim was murdered by the Defendants.

The State argued that the jury must either believe that Defendant–Davis and the victim went home to switch cars as Defendant–Davis claimed, or they must believe that Defendant–Davis and the victim drove straight to Wagon Wheel Road. Traveling the direct and less timely route, the State argued, made more sense in light of the pontoon bridge closing to traffic and in light of the fact that the Honda Accord had to be parked on Wagon Wheel Road before the heavy rains started. The weather reports indicate that heavy rain occurred between 3:00 and 4:00 p.m. Because no mud was found underneath the Honda Accord, it had to have been parked on Wagon Wheel Road before the rain started. Additionally, the State argued that it would have taken less time for Defendant–Davis and the victim to travel directly from Jerry's Marine to Wagon Wheel Road than it would have taken them to travel from Jerry's Marine to their house, switch cars, and then the victim travel alone to Wagon Wheel Road. The Defendants' cell phone records, the State argued, also support its theory. The cell phone records not only show that the Defendants were not where they claimed to be the day before the murder and the afternoon of the murder, they also placed the Defendants near the murder scene both the day before the murder and the day of the murder.

As a further connection of Defendant–Davis to the murder scene, the State argued that the projectiles found at the scene matched the ammunition found at the Davis residence. This particular type of ammunition is not used that often, but is common to law enforcement and gun enthusiasts. The State further noted that the flat tire at the crime scene appeared to be staged.

The State stressed the fact that Defendant–Davis and Defendant–Saltzman gave inconsistent stories as to how and when the victim's Honda Accord was returned to the Davis residence. Additionally, neither woman told police that they were together at Walgreens the morning of the murder. Defendant–Davis also lied to police about leaving the victim numerous voicemails when he did not return home. Additionally, the State pointed out the fact that Defendant–Davis told the victim's sister that the victim never returned home from his trip to Kroger to buy Bailey a Sprite. Although not argued by the State, we also note that Kelsey Little, Defendant–Davis' daughter, testified that Defendant–Davis told her that the victim never returned home from work. These all differ from what Defendant–Davis told police, that the victim never returned when they went their separate ways for him to continue boat shopping in Beaumont.

To prove motive, the State argued that Defendant–Davis knew the victim had been having an affair with Fannie Dietz. The State also pointed out the financial bind Defendant–Davis was in because of her loss of job, overdrawn bank account, video-poker playing, and late house-note payment. In addition, the State pointed out, Defendant–Davis lied to police regarding the amount of life insurance carried by the victim. In brief, the State argues that Defendant–Davis and Defendant–Saltzman have been nearly inseparable friends for years, that both Defendants were frequent gamblers, and that Defendant–Saltzman was financially dependent on Defendant–Davis.

As further indications of the Defendants' guilt, the State pointed out that Defendant–Davis was out playing video poker just days after her husband's death and that Defendant–Davis asked her mother to deposit $4,000.00 into her account because of the victim's death investigation before the victim was even found. Finally, the State argued that the two Defendants were alibis for one another.

Defense Argument

Defendant–Davis acknowledges that although very close, there appears to have been enough time for Defendant–Davis and the victim to drive from Sulphur, clear the pontoon bridge before 3:31 p.m., arrive at the murder scene before 3:36 p.m., and the victim be murdered before 3:45 p.m. However, Defendant–Davis argues that the State's theory does not account for the fact that the victim's cell phone was north of the pontoon bridge at 3:44 p.m.—a period of time when the bridge was closed to traffic:

It was not possible for the phone to have made its way from the murder scene after the killing of Brian Davis, and be north of the pontoon bridge at 3:44 p.m. because the bridge was closed to traffic. If the cell phone analysis is given credibility enough to convict two people of murder, it should also be considered reliable enough to show that the State's timeline was flawed to the exclusion of every reasonable hypothesis. Simply put, there was not sufficient time for Brian Davis to have been murdered during the time frame that the state revealed in its rebuttal argument and still give credence to the cell tower analysis which places his phone north of the waterway at 3:44 p.m.

However, the State's cell phone expert, Agent Shute, did not testify that the victim's cell phone was located north of the pontoon bridge at 3:44 p.m. Agent Shute testified that the cell tower used by the victim's cell phone during the 3:44 p.m. call “sits north of the ․ murder scene.” Even so, Agent Shute was able to get a signal “just south of the pontoon bridge,” making it possible for the victim's phone to have been “within a half a mile of the murder scene.” According to Detective Young, Hackberry is located south of Sulphur. Thus, if the victim and Defendant–Davis were traveling from Jerry's Marine (located in Sulphur) to the murder scene, they were traveling south. Agent Shute agreed that the victim and Defendant–Davis had to get beyond the pontoon bridge to reach the murder scene. The murder scene was located south of the pontoon bridge. Consequently, if the murder scene was located south of the pontoon bridge and Agent Shute was able to get a signal “just south of the pontoon bridge,” the victim's cell phone could have also been south of the pontoon bridge when the 3:44 p.m. phone call was made.

The Defendants attempt to poke additional holes in the State's case by pointing out that the victim's time of death was not precise and could have been anytime in the afternoon or night of his disappearance, even possibly the morning after. Dr. Terry Welke, the coroner for Calcasieu Parish, estimated the victim's time of death to be sometime after 12:00 p.m. on June 29, 2009. Additionally, the Defendants argue that the testimony regarding the start of rainfall was based on information from the Lake Charles Memorial Airport, a different location than the murder. Thus, the Defendants argue, the rainfall at the murder scene could have been later.

Defendant–Davis also argues that Shane Dietz, the husband of the victim's mistress, had both the motive and opportunity to kill the victim. Even though Detective Young testified that Mr. Dietz' cell phone records cleared him as a suspect, the Defendant argues that it was impossible for Mr. Dietz to be cleared by his cell phone records since there is a large gap between calls on the day the victim was murdered. Additionally, she argues that the same type of truck driven by Mr. Dietz was seen near the murder scene the day after the victim was murdered. In closing argument, both Defendants also argued that when Defendant–Davis left Jerry's Marine, she was dressed in white capri pants and flip flops, attire not appropriate for going into a muddy cow pasture and killing someone.

Finally, the Defendant raises additional hypotheses of innocence:

Was Brian Davis going to engage in some monetary transaction that was illegal on the day of his demise? Was he killed in a drug deal gone bad? Was Brian Davis engaged in sexual conduct when he was caught by a jealous husband or boyfriend and killed? Did Brian Davis drive his car to Wagon Wheel Road, leave it parked there, and leave in another vehicle belonging to someone else?

Sufficiency of the Evidence Analysis

Both Defendants were convicted of second degree murder, which requires proof that the defendant killed a human being (1) with the specific intent to kill or inflict great bodily harm or (2) while engaged in the perpetration of an enumerated offense. La.R.S. 14:30 .1. This court has held that pointing a gun at a person and firing the gun is an indication of intent to kill that person. State v. Thomas, 10–269 (La.App. 3 Cir. 10/6/10), 48 So.3d 1210, writ denied, 10–2527 (La.4/1/11), 60 So.3d 1248, cert. denied, ––– U.S. ––––, 132 S.Ct. 196 (2011). The victim in this case died of four gunshot wounds, one to the head and three to the torso. Thus, the evidence was sufficient to establish a specific intent to kill the victim.

The only issue in this case is whether the victim was murdered by the Defendants. It is well-settled that “[a]s a general matter, when the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification.” State v. Neal, 00–674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002) (citing State v. Smith, 430 So.2d 31 (La.1983); State v. Brady, 414 So.2d 364 (La.1982); State v. Long, 408 So.2d 1221 (La.1982)).

“Generally, direct evidence consists of testimony from a witness who actually saw or heard an occurrence, proof of the existence of which is at issue.” State v. Jones, 46,758, 46,759, p. 11 (La.App. 2 Cir. 12/14/11), 81 So.3d 236, 243–44, writ denied, 12–147 (La.5/4/12), 88 So.3d 462 (citing State v. Lilly, 468 So.2d 1154 (La.1985)). “Circumstantial evidence, by contrast, consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.” Id. at 244 (citing Lilly, 468 So.2d 1154, and State v. Bounds, 38,330 (La.App. 2 Cir. 5/12/04), 873 So.2d 901). “When circumstantial evidence forms the basis of the conviction, such evidence must exclude every reasonable hypothesis of innocence.” Id. (citing La.R.S. 15:438).

In the present case, direct evidence placed Defendant–Davis with the victim shortly before the murder. Direct evidence also showed that Defendant–Davis was the beneficiary of over $645,000.00 in life insurance proceeds, that Defendant–Davis knew that the victim had an affair, and that both Defendant–Davis and Defendant–Saltzman lost their jobs. There was also direct evidence from both Defendant–Davis and Defendant–Saltzman as to their whereabouts on the day before the murder and the day of the murder, as well as surveillance video of the Defendants' whereabouts throughout the day of the murder. The jury heard this evidence and, thus, heard the inconsistencies in the two women's stories—i.e., the jury saw the Walgreens video showing both Defendants at the store the morning of the murder; the jury heard Defendant–Davis state that she went to Walgreens with no mention of Defendant–Saltzman; the jury heard Defendant–Saltzman make no mention of going to Walgreens; and the jury heard the different stories by both Defendants as to how the Honda Accord was returned to the Davis residence. The jury also heard direct evidence from the victim's sister that Defendant–Davis told her that the victim never returned home from going to Kroger to get a Sprite for Bailey as well as direct evidence from Kelsey Little that Defendant–Davis told her that the victim never returned home from work. Finally, the jury heard direct evidence that the Honda Accord's tire was not defective.

The jury also heard evidence in this case regarding the estimated time of the murder, evidence of when the victim and Defendant–Davis left Jerry's Marine and how long it would have taken them to get to the murder scene, evidence of the rainy weather near the time of the murder, evidence that the Honda Accord had no mud on it and, thus, had to arrive at the scene before the rain. Moreover, the jury heard evidence that Hydra–Shock ammunition was found at the murder scene and at the victim's residence, evidence that both Defendants were using cell phones near the murder scene both the day before the murder and the day of the murder, and evidence that the cell phones of both Defendants placed them in areas inconsistent with where they claimed to be both the day before the murder and the day of the murder. Additionally, the jury heard evidence of the Defendants' close friendship and that Defendant–Saltzman relies financially upon Defendant–Davis. Finally, the jury heard evidence that Defendant–Davis' mother stated that she deposited the money into Defendant–Davis' account because Defendant–Davis said the police froze the account due to the victim's death investigation when Bartholomew's deposit was made on the morning of July 1, 2009, the same date the victim's body was found.

As for the Defendants' hypotheses of innocence, the jury heard the statements of both Defendants as to their whereabouts the day before the murder and the day of the murder. The jury also heard the testimony of the Defendants' cell phone expert that the Defendants could still be where they said they were and make cell phone calls using towers near the murder scene. Further, the jury heard the testimony regarding the victim's affair with Fannie Dietz, the cell phone records of both Fannie Dietz and her husband, as well as the testimony that a truck similar to Mr. Dietz's was seen near the murder scene the day after the murder. Finally, the jury heard the State's expert testify that unidentified male DNA was found at the murder scene but no female DNA. Nevertheless, the jury rejected the Defendants' hypotheses of innocence.

As this court has held, “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.’ “ Francis, 111 So.3d at 533 (quoting State v. Strother, 09–2357, pp. 10–11 (La.10/22/10), 49 So.3d 372, 378, quoting State v. Captville, 448 So.2d 676, 680 (La.1984)) (alteration in original). Accordingly, we find that considering the direct and circumstantial evidence in this case, the jury reasonably rejected the Defendants' hypotheses of innocence, including any possibility that someone other than the Defendants committed the murder.

In a somewhat similar case, the second circuit found sufficient evidence of second degree murder. In Jones, 81 So.3d 236, the second circuit found sufficient evidence to convict Jones even though the direct evidence only placed the victim with Jones' shortly before the victim's murder. Circumstantial evidence, however, showed that bullets recovered from Jones' trunk were consistent with those used to shoot the victim, and cell phone records put Jones and the victim together in the area where the victim's body was found. The court held:

The direct evidence that Lioy [victim # 1] left Shreveport with Jones and Ms. Foster [victim # 2], coupled with the circumstantial evidence of the cell phone records that put them together in the area where the body was found, and that the bullets found in Jones' trunk were consistent with those that shot Lioy, all support a finding beyond a reasonable doubt that Jones killed Lioy, with a specific intent either to kill or inflict great bodily harm. The suggestion that somebody else might have intervened in this sordid sequence of events and shot Lioy is simply not sufficiently reasonable to dissuade a reasonable jury from its finding of Jones's guilt. This assignment of error lacks merit.

Id. at 245.

Likewise, we find that the direct and circumstantial evidence presented in the present case supports a finding beyond a reasonable doubt that Defendant–Davis and Defendant–Saltzman killed the victim with the specific intent to kill or inflict great bodily harm. Louisiana Revised Statutes 14:24 provides, “[a]ll persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.” The evidence presented at trial shows that Defendant–Davis was with the victim shortly before the time the State alleges the murder occurred. Defendant–Davis and Defendant–Saltzman were in frequent communication the day before the murder and the day of the murder. Both Defendants gave inconsistent statements as to their whereabouts and the cell phone records of both Defendants place them near the scene of the murder both the day before and the day of the murder. Although Defendant–Saltzman was not with the victim shortly before the murder as was Defendant–Davis, the cell phone records indicate that Defendant–Saltzman was continually communicating with or was physically with Defendant–Davis both the day before the murder and the day of the murder. On the day of the murder, Defendant–Saltzman was seen with Defendant–Davis that morning, continually communicated with Defendant–Davis throughout the day (even within the hour the State alleges the murder occurred), and was seen with Defendant–Davis shortly after the State alleges the murder was committed. Defendant–Saltzman was also driving the victim's Honda Accord the day of the murder. Finally, Defendant–Davis knew the victim had been having an affair, admitted to being in a financial bind, and stood to benefit financially from life insurance policies. Defendant–Saltzman was a very close friend of Defendant–Davis and had been financially reliant on Defendant–Davis in the past. Considering this evidence, we find that the jury reasonably rejected the Defendants' hypotheses of innocence and convicted them both of second degree murder.

Accordingly, this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ONE:

In this assignment of error, Defendant–Davis argues that the trial court erred in failing to swear in the jury as required by La.Code Crim.P. art. 790 and then granting the State a continuance after the commencement of trial. For the reasons that follow, we find that this assignment lacks merit.

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, Deputy 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.

Subsequently, on January 6, 2012; January 18, 2012; and January 24, 2012, the trial court heard testimony and argument regarding a motion to quash and dismissal filed by both Defendants. Both Defendants argued that double jeopardy attached when the State perpetuated the testimony of Deputy Baumgarten before the trial court granted the State's continuance based on Mr. Bryant's health. 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 to dismiss the charges.

On February 24, 2012, the Defendants sought review of the trial court's denial of their motion to quash and dismissal of the charges. On March 28, 2012, this court denied the writ application, ruling as follows:

WRIT DENIED; STAY DENIED: Defendants argue error in the trial court's granting of a continuance and that jeopardy had attached and further prosecution would expose them to double jeopardy. Although the trial court stated that it granted a continuance, because it had no legal authority to do so, what was actually granted was a recess. Even though erroneously referred to as a continuance, the court's action must be treated as a recess. See La.Code Crim.P. arts. 707, 708, and 761 and State v. Hedgespeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150, writ denied, 08–467 (La.10/3/08), 992 So.2d 1008.

Additionally, Defendants argue error in the trial court's denial of their motion to quash, based on the erroneous granting of a continuance, and alleged prejudice resulting therefrom. As no continuance was granted, the motion is rendered moot. If either party continues to believe any prejudice had resulted from the recess, it can be addressed in the trial court.

This matter is remanded to the trial court with instructions to proceed with the trial as expeditiously as possible, with the original jury, if such can be accomplished without resulting prejudice to any party. If not, as jeopardy has not attached, a new jury panel shall be called. See Hedgespeth, 974 So.2d 150.

Thereafter, on April 18, 2012, the supreme court denied a writ application filed by the Defendants. Davis and Saltzman, 85 So.3d 1255.

This court has held that great deference should be afforded to pre-trial decisions:

Although a defendant may seek review of a pretrial ruling even after a pretrial supervisory writ application is denied, when the defendant does not present any additional evidence on the issue after this pretrial ruling, the issue can be rejected. State v. Hebert, 97–1742 (La.App. 3 Cir. 6/3/98), 716 So.2d 63, writ denied, 98–1813 (La.11/13/98), 730 So.2d 455, cert. denied, 529 U.S. 1072, 120 S.Ct. 1685, 146 L.Ed.2d 492 (2000) (quoting State v. Magee, 93–643, p. 2 (La.App. 3 Cir. 10/5/94), 643 So.2d 497, 499). However, “[j]udicial efficiency demands that this court accord great deference to its pre-trial decision unless it is apparent that the determination was patently erroneous and produced unjust results.” Hebert, 716 So.2d at 68. Our review of the record reveals no additional evidence for the defendant's allegations of prosecutorial misconduct which would support his pretrial motions.

State v. Perry, 12–298, p. 7 (La.App. 3 Cir. 11/7/12), 101 So.3d 575, 580, writ denied, 12–2657 (La.5/24/13), 116 So.2d 659 (alteration in original). We find that the Defendants have failed to prove that this court's pre-trial ruling was patently erroneous or produced unjust results. Thus, we abide by our pre-trial decision and refuse to reconsider whether the trial court abused its discretion in granting the continuance/recess.

However, we will address a new argument raised by the Defendants on appeal. The Defendants argue, in their appellate brief, that this court erred in finding the trial court's grant of a continuance was actually the grant of a recess:

Under the particular facts of this case, the continuance was specifically just that, a postponement without date of the trial that had already commenced. A recess is defined in La.C.Cr.P. Art. 708 as a “temporary adjournment”. The instant trial was continued without date for a period that ultimately consisted of five and one-half months and was not in any way a temporary adjournment. Further, it matters not the length of the delay, or the term used to describe the delay, the issue is whether a party is prejudiced by the delay, and if so, the error is reversible. State v. Hedgspeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150; State v. Love, 00–3347 (La.5/23/08), 847 So.2d 1198.

According to the Defendants, the trial court's action should have been considered an “illegal dismissal.” In making this argument, the Defendants cite State v. Hedgspeth, 42,921 (La.App. 2 Cir. 1/9/08), 974 So.2d 150, writ denied, 08–467 (La.10/3/08), 992 So .2d 1008, the case cited by this court in its writ ruling. In Hedgspeth, the state moved for a “continuance” after ten of the twelve jurors were selected and sworn. As the reason for the continuance, the state explained that it had been under the impression that DNA testing had been done and the results were inconclusive. The state discovered, however, that DNA testing was never actually performed. The defense objected to the continuance because ten jurors had already been selected. Finding that the DNA evidence was potentially critical evidence to the case, the trial court granted the state's motion and rescheduled trial for approximately three months later. When the trial finally took place, it was before a different trial judge and an entirely new panel of jurors.

On appeal, the second circuit stated the following regarding the appropriateness of a continuance in this situation:

Here, in order to determine whether the grant of the motion for continuance was proper, we must first determine if the initial trial had “commenced.” Louisiana C. Cr. P. art. 761 provides that, “a jury trial commences when the first prospective juror is called for examination.” Since it is undisputed that 10 of the 12 prospective jurors had been selected, pursuant to articles 761 and 708 the trial had already commenced. Thus, the trial court was without authority to grant a “continuance,” and in effect the action was an illegal dismissal. However, Hedgspeth must show he has been prejudiced by this action, as the dismissal alone does not constitute reversible error. State v. Love, 2000–3347 (La.05/23/03), 847 So.2d 1198.

Id at 154 (footnote omitted).

Adopting the second circuit's “illegal dismissal” terminology, the Defendants argue that the continuance/recess granted in the present case should have been considered an “illegal dismissal.” The Defendants acknowledge, however, that even if the continuance/recess is considered an “illegal dismissal,” the Defendants must still show they suffered prejudiced in order for the dismissal to constitute reversible error. Alleging prejudice, Defendant–Davis argues:

In the instant case, the trial court granted a continuance of trial after all of the jurors had been selected and also after the State had started its case by taking testimony from its key crime scene witness and introducing over 20 pieces of evidence into the record. The State was forewarned of serious deficiencies in their investigation during the cross-examination of their lead forensic investigator, Baumgarten, and the continuance allowed them to correct these errors and deficiencies. The delay caused by the wrongful granting of the continuance allowed the State time to correct problems regarding crime scene integrity, to test evidence, interview witnesses, and hire an expert witness to help shore up deficiencies that were made apparent during the first trial. An opportunity afforded them only because of the wrongful granting of the continuance and the delay caused by it.

The Defendants' prejudice argument is very similar to the argument made by the defendant in Hedgspeth and rejected by the second circuit:

On appeal, Hedgspeth complains that as a result of this “continuance” the state was given additional time to prepare for trial and that he was entitled to have his case tried before the jurors already selected. The right to have one's trial completed by a particular tribunal is within the protection of the constitutional guarantee against double jeopardy, since it is that “right” that lies at the foundation of the rule that jeopardy attaches when the whole jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). However, in the instant case, that “right” had not yet attached when the trial court granted the state's motion and dismissed the partial jury․

․

Moreover, the public has an interest in affording the state one full and fair opportunity to present its evidence to an impartial jury. See Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The right to have one's case tried before the jurors already selected cannot serve as a barrier to full and fair prosecution of the defendant under these particular circumstances. See State v. Marshall, 410 So.2d 1116 (La.1982). In the case at hand, since the jury was not sworn pursuant to La. C. Cr. P. art. 790, nothing prevents the state from pursuing a full and fair prosecution.

Further, we find that the record does not support, nor are we persuaded, that the additional preparation time afforded the state warrants reversal. Had the state moved for and been granted a continuance only a day earlier (prior to the examination of the first prospective juror), or had the trial been originally scheduled for a later date, such actions would not have been an abuse of discretion. The trial judge found that the DNA results were critical to the case because they could essentially exonerate the defendant or provide strong evidence of his guilt. The state explained that th