STATE of Louisiana v. William Felix VAIL, 236 So. 3d 644

PICKETT, Judge FACTS On October 30, 1962, Mary Horton Vail's body was recovered from the Calcasieu River. Her husband, William Felix Horton, had reported to the local authorities in Lake Charles that he and his wife had been in a boat on the river at night, checking trot lines, when his wife accidently fell out of the boat and drowned. The investigating officers were suspicious of Mr. Vail's account of how he claimed the incident occurred based on what they viewed as inconsistencies between what he reported to them and physical findings on the boat. Mr. Vail was arrested and charged with his wife's murder.

The coroner, however, concluded the manner of death was accidental drowning. When this matter was presented to a grand jury the matter was ultimately pretermitted. Having failed to secure an indictment, the state dropped the charges pending against the defendant. Throughout the ensuing years the matter continued to be investigated, off and on, both by law enforcement and private investigators. Additional evidence was gathered which the state believed to be both relevant and significant.

On June 27, 2013, a second grand jury indicted the defendant for the 1962 second degree murder of his wife, Mary Horton Vail, committed in violation of La.R.S. 14:30.1. Trial commenced on August 8, 2016. On August 12, 2016, the jury returned a verdict of guilty of Second Degree Murder against the defendant. On September 21, 2016, the defendant filed a "Motion and Memorandum Regarding Sentencing." The defendant was subsequently sentenced, on September 26, 2016, to life in prison without the benefit of parole, probation, or suspension of sentence.

On September 29, 2016, the defendant filed a "Motion to Reconsider Sentence" which was denied without a hearing. The defendant appeals both his conviction and sentence. ASSIGNMENTS OF ERROR 1. The State failed to sufficiently prove Felix Vail was guilty of murdering his wife. 2. A Presumption Wrapped in a Probability: the trial court erred by allowing the State to offer unproven "other bad acts" evidence by use of "the doctrine of chances." 3. The trial court erred by failing to properly instruct the jury as to the burden of proof required before the other crimes evidence could be considered. 4.

Conviction by Deposition: The trial court erred in declaring key State witnesses unavailable for trial when they were merely inconvenienced by having to appear at trial, and allowing their prior depositions to be admitted by video at trial. 5. Conviction by Misrepresentation: The trial court erred in denying the defense's motion to suppress the evidence of Gina Frenzel on grounds the motion was untimely-not on the merits-when the defense established "good cause" for the late filing. 6. The 54-year delay in prosecuting this case was prejudicial to Felix Vail. The delay violated his rights to a fair trial. 7.

The trial court's sentence of life, because the previous sentence was unconstitutional, was an ex post facto increase in punishment and a violation of the Separation of Powers. Therefore, the only constitutional sentence was to the maximum for the next lesser included sentence of manslaughter. 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 one error patent concerning the information given to the defendant by the court regarding the time limitation for filing an application for post-conviction relief. The court improperly advised the defendant that he has "two years from today's date and the sentence becoming final to file for post-conviction relief." Louisiana Code of Criminal Procedure

Article 930.8 provides that the prescriptive period for filing post-conviction relief is two years, and it begins to run when the defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. The trial court is instructed to correctly inform the defendant of the provisions of

Article 930.8 by sending appropriate written notice to the defendant within 10 days of the rendition of this opinion and to file written proof in the record that the defendant received the notice. In addition, neither the court minutes nor the sentencing transcript reflect that the court specified the life sentence imposed is to be served at hard labor. However, the exchange at sentencing between the court and defense counsel clearly reflects an understanding by all parties that the sentence is a hard labor sentence.

Accordingly, the trial court is instructed to correct the court minutes to reflect that the defendant's sentenced is to be served at hard labor. ASSIGNMENT OF ERROR NUMBER ONE The defendant argues that the evidence submitted at trial was insufficient to prove that he murdered his wife, Mary Horton Vail. He argues the evidence in this case is entirely circumstantial, the state failed to exclude every reasonable hypothesis of innocence, and that Mary Horton Vail's death was accidental. In State v.

Williams , 13-497, pp. 3-5 (La.App. 3 Cir. 11/6/13), 124 So.3d 1236, 1239-40, writ denied , 13-2774 (La. 5/16/14), 139 So.3d 1024, this court discussed the standard of review for sufficiency of evidence, as follows: In State v. Bryant , 12-233 (La. 10/16/12), 101 So.3d 429, the Louisiana supreme court addressed the sufficiency of the evidence claims, reiterating that the appellate review of such claims is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See State v. Captville , 448 So.2d 676 (La.1984).

In applying the Jackson v. Virginia standard, the appellate court must determine that, when viewed in the light most favorable to the prosecution, the evidence is "sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." Bryant , 101 So.3d at 432. See also La.Code Crim.P. art. 821. In State v.

Spears, 05-964, p. 3 (La. 4/4/06), 929 So.2d 1219, 1222-23, the supreme court stated that: constitutional law does not require the reviewing court to determine whether it believes the witnesses or whether it believes that the evidence establishes guilt beyond a reasonable doubt. State v. Mussall, 523 So.2d 1305, 1309 (La.1988). Rather, the fact finder is given much discretion in determinations of credibility and evidence, and the reviewing court will only impinge on this discretion to the extent necessary to guarantee the fundamental protection of due process of law.

"Evidence may be either direct or circumstantial." State v. Jacobs , 07-887, p. 12 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, 551, writ denied , 11-1753 (La. 2/10/12), 80 So.3d 468, cert. denied , 568 U.S. 838, 133 S.Ct. 139, 184 L.Ed.2d 67 (2012). We note that, whether the conviction is based on direct evidence or solely on circumstantial evidence, the review is the same under the Jackson v. Virginia standard. State v. Williams , 33,881 (La.App. 2 Cir. 9/27/00), 768 So.2d 728 (citing State v. Sutton , 436 So.2d 471 (La.1983) ), writ denied , 00-99 (La.10/5/01), 798 So.2d 963.

Circumstantial evidence is that where the main fact can be inferred, using reason and common experience, from proof of collateral facts and circumstances. Id. Where the conviction is based on circumstantial evidence, in order to convict, "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La.R.S. 15:438. In State v.

Chism , 436 So.2d 464, 469 (La.1983) (citations omitted), the supreme court discussed the use of circumstantial evidence, stating: Circumstantial evidence involves, in addition to the assertion of witnesses as to what they have observed, a process of reasoning, or inference by which a conclusion is drawn. Like all other evidence, it may be strong or weak; it may be so unconvincing as to be quite worthless, or it may be irresistible and overwhelming. There is still no man who would not accept dog tracks in the mud against the sworn testimony of a hundred eye-witnesses that no dog passed by.

The gist of circumstantial evidence, and the key to it, is the inference, or process of reasoning by which the conclusion is reached. This must be based on the evidence given, together with a sufficient background of human experience to justify the conclusion. Consequently, before a trier of fact can decide the ultimate question of whether a reasonable hypothesis of innocence exists in a criminal case based crucially on circumstantial evidence, a number of preliminary findings must be made.

In addition to assessing the circumstantial evidence in light of the direct evidence, and vice versa, the trier of fact must decide what reasonable inferences may be drawn from the circumstantial evidence, the manner in which competing inferences should be resolved, reconciled or compromised; and the weight and effect to be given to each permissible inference.

From facts found from direct evidence and inferred from circumstantial evidence, the trier of fact should proceed, keeping in mind the relative strength and weakness of each inference and finding, to decide the ultimate question of whether this body of preliminary facts excludes every reasonable hypothesis of innocence. In the instant case, the defendant was convicted of second degree murder.

The definition of a second degree murder is the killing of a human being when the perpetrator specifically intends to kill the victim or to inflict great bodily harm, and the victim dies as a result of the injuries inflicted La.R.S. 14:30.1. The testimony and evidence presented by the state to the jury was as follows: Dr. Terry Welke, the Calcasieu Parish Coroner, was the first to take the stand. The doctor testified that he has been a forensic pathologist since 1986 and has qualified as an expert in forensic pathology approximately two hundred seventy-five times.

He has performed approximately seven thousand autopsies during his career. Dr. Welke testified that he had reviewed the 1962 autopsy report which was prepared by Dr. Avery Cook, who was deceased at the time of trial. Dr. Cook, although a pathologist, was not a forensic pathologist. Dr. Welke noted that while the autopsy report described the external and internal condition of the body, the report did not list the manner or cause of death. The death certificate, however, listed the cause of death as drowning and the manner of death as accidental.

The death certificate was filled out and signed by the coroner at the time, Dr. Snatic, who was neither a pathologist nor a forensic pathologist. Dr. Welke also viewed two photographs taken of the victim immediately after she was pulled out of the water. Dr. Welke testified that from the information he received after viewing the photographs, together with his vast experience with handling drowning cases, he did not believe that Mary Vail died from drowning. It was his opinion that she was dead before she went into the water. Dr.

Welke noted that the body came out of the water rigid and face up, with her arms crossed over her abdomen. He explained that after death, a stiffening of the muscles develops, generally known as rigor mortis. Over a period of time, however, the muscles become flaccid. The duration of the stiffness depends on various factors, including air or water temperature.

The doctor explained that when a person drowns and starts to decompose, he or she floats up to the surface face down, arms and legs down, shoulders and back up, in a "dead man" position He stated that "[t]he cooling effect of the water slows down the decomposition which helps maintain her rigidity because it takes longer for the rigidity to disappear; and that was part of my consideration when I made my determination three years ago." The doctor stated that a drowned person may come to the surface belly first but this would only happen in advanced decomposition "[w]here they look like they could fly around the room backwards because they look like a balloon that's over-distended, you did not see people coming out of the water stiff and especially in what I call a coffin position." The doctor noted that the body in the pictures he saw was not in an advanced state of decomposition.

The doctor illustrated the dead man's position with photographs of several drowned persons in the water. Dr. Welke noted that the autopsy report indicated there was some lividity or discoloration on the victim's face, chest and stomach. He explained that after death, the blood will pool towards the down side of the body. Dr. Welke explained that if the body is rolled into a different position, the blood will migrate to the down side. The migration of blood will occur until the blood finally gels.

The fact that the lividity was on the front, or anterior part of the body, was not inconsistent with the doctor's conclusion that the victim was dead when she entered the water. To further support his theory that Mary Vail was dead when she went into the water, Dr. Welke noted that there were dark stains or streaks on her white sweatshirt, across her arms, hands, and chest area. The doctor thought her sweatshirt came out of the water too clean and the stains were not mud but some kind of petroleum product which would not have dissolved in the water.

He speculated that after Mary Vail was killed, a tarp or canvas of some kind was placed over her or that what she was laid on had a greasy or oily compound on it. He conducted an experiment where he had his wife dress in a white, long sleeve shirt, lay down in the position Mary Vail was in when her body was pulled out of the water, and he pressed a painted piece of cardboard over her body. The doctor stated he was impressed by how the paint transfer onto his wife's body was duplicative of the stains seen on Mrs. Vail's shirt, arms, and hands.

Pictures of this experiment were compared with the pictures of Mary Vail's body. The pictures were published to the jury. While Dr. Welke could not state what caused Mary Vail's death, he stated he was one hundred percent certain the manner of death was homicide. The doctor suggested that maybe because there was a scarf wrapped around her neck and over her mouth when Mary Vail's body was pulled from the water she could have been strangled or suffocated.

Moreover, the autopsy report indicated there was a fairly significant bruise on the side of Mary Vail's head which might indicate that she received some kind of head trauma, which may have precipitated her death. A video deposition of Isaac Abshire was played for the jury. Mr. Abshire was deceased at the time of trial. The state filed a motion to perpetuate the testimony of Mr. Abshire for trial purposes. The motion was heard on June 18, 2013.

The trial court granted the state's motion to perpetuate the testimony and to allow state's Exhibits 1 and 2, photographs of Mary Vail after she was pulled out of the water, and Exhibit 3, a

summary of the police investigation, dated October 28, 1962, to be admitted for trial purposes. A transcript of the deposition was also submitted to the jury. At the time of the deposition, Mr. Abshire was ninety years old. Mr. Abshire stated that before marrying Mary Vail, the defendant had lived with him for some time. Mr. Abshire testified that at the time, he was aware of problems between the defendant and the victim. The defendant and Mary Vail had a baby son, but the defendant was not happy with having a child. The day before Mary Vail died, she was mad at the defendant. Mr.

Abshire said it had something to do with another woman. On Sunday, October 28, 1962, Mr. Abshire heard that Mary Vail had drowned. Along with others, Mr. Abshire took a boat and helped search for Mary Vail's body along the river at the north end of Ryan Street. The next day, the body was located in the water. Mr. Abshire stated that the body was not slumped over in the water; it was "kinda laying on her side or kinda on her back like." He said she was face up and her arms were folded across her abdomen. He stated that the body was stiff when it was raised into the boat on a stretcher.

He said there was a scarf wrapped tightly around her neck and across her mouth. Mr. Abshire testified that he was eventually given the two photographs of Mary Vail after she was pulled out of the water, a

summary of a police investigation report, the coroner's report, and other documents. The police investigation

summary report, compiled by detectives with the Calcasieu Parish Sheriff's Office, established the concerns and direction of the police investigation into Mary Vail's death at the time, as follows:

SUMMARY OF INVESTIGATION OF DROWNING OF MARY ELIZABETH VAIL, WHITE FEMALE, 22 YEARS, 922 CLEVELAND ST., LAKE CHARLES, LA. There is on file a report of the initial investigation entitled "Drowning", dated October 28, 1962. On Monday, October 29, 1962, I contacted the Husband of the deceased, William Felix Vail, at the scene of the drowning and requested that he come in to the Sheriff's Office and give a statement of the circumstances surrounding his Wife's death. At 11:50 AM Monday October, 29 William F. Vail gave a written statement and signed it, in the presence of William Perry and Leroy Authement.

This statement was taken in shorthand originally and immediately afterward transferred into a typewritten statement by Mrs. Dee Houston. After Vail signed the statement he accompanied Deputies Perry, Manuel and Authement to his boat stall at Shell Beach Pier. The above Deputies viewed the boat and observed contents as follows; one six gallon outboard motor gas tank, two cushion type life preservers, a pair of brown leather gloves, a poncho type raincoat, boat paddle, and a metal fishing tackle box. The tackle box contained, among other fishing gear, one coiled trot line.

This tackle box and boat paddle was [sic] confiscated as evidence. While the above examining the boat the Vail Subject demonstrated the position that his gas tank was supposedly in when his motor stalled. It was noted that in the position demonstrated it was possible to pump gas from the tank with the manual primer. Upon further interview after examining the boat it was learned that Mr. Vail had his Wife insured to $50,000.00 with the Wasey Company. At approximately 1:30 pm this date Mr. Breaux with the John L. Wasey, Inc., Insurance Company, 1032 Ryan St., Lake Charles, La., contacted and he advised that Mr.

Vail, on June 1, 1962, was issued a $50,000.00 accidental life insurance policy on his Wife, Mary Elizabeth Vail, through Traveler's Insurance Co. On October 30, 1962 the sheriff's office was notified at approximately 3:30 PM that the body of Mary Elizabeth Vail had been recovered (See supplementary report of "DROWNING OF Mary Vail", dated October 30, 1962). At approximately 4:00 PM Deputies Mazilly, Manuel and Authement boarded the Sheriff's Dept. boat, CP27, on the river road approximately 1/4 mile west of Ryan Street and viewed the body.

It was observed that the body was clothed in white tennis shoes, blue jeans, and white sweat shirt, and a dark colored scarf around her neck and chin. Photographs were made of the body at this time by Deputy Murphy. Dr. Snatic also accompanied the above to view the body and ordered the body moved by Hixson Ambulance to Hixon Funeral home where an autopsy was performed by Dr. Avery L. Cook. On this date the clothing of Mrs. Vail was received as evidence by Dep. Authement and on 10-31-62 was turned over to Dep. Ellis. On October 31, 1962 the following witnesses were interviewed;

(1) Jack M. Wier, Personnel Supervisor, PCI,

(2) Ike Abshire, Jr.,

(3) Sylvia Hidalgo, and

(4) Betty Payton. On November 1, 1962 the following interviews were conducted;

(1) Jennette McCain,

(2) Jean Dailey,

(3) Willy Ray Jordan,

(4) Norma Kee,

(5) Donald Glenn McCullough. On November 2, 1962 the following interviews were conducted;

(1) Henry Chevalier,

(2) Mrs. Patricia Odom. On November 3, 1962 interviews were conducted with

(1) Mrs. Joyce C. Thibodeaux,

(2) Judith Lynne Boyer,

(3) Mr. and Mrs. Joseph A. Borel,

(4) Mr. and Mrs. Don Steicken,

(5) Amelia Franklin, and

(6) Maylan Soileau. (see summaries of all of above interviews attached to this report) During the invterview [sic] with Norma Kee it was learned that Mary Vail was wearing an off-white leather jacket, sorority sweat shirt, blue jeans and white sneakers when she left her home on Sunday just prior to her death. Norma Kee was babysitting for the Vails when they left home. We also learned from this witness that William F. Vail had an $8,000.00 life insurance policy on his Wife Through Allstate Insurance Co. (See interview with Mr.

Henry Chevallier on November 2, 1962.) On November 4, 1962 at approximately 3:15 PM William F. Vail was arrested at PCI by Deputies Perry and Authement. The subject was returned to the Sheriff's Office and interrogated in reference to apparent discrepancies in his statement and after failing to give reasonable explanations was booked into the Parish jail at approximately 9:10 PM that date. On the following [sic] day, November 5, 1962 the subject was again interrogated for approximately during which time he was requested to take a polygraph examination and refused. The following day, November 6, Mr.

Vail's Aunt and Uncle, Mr. and Mrs. Finney were allowed to visit with Mr. Vail during which time he told them that he would take a polygraph examination the following morning. The next Morning November 7, 1962 the Vail subject again refused to take a polygraph examination after which he was released from jail. During this period of interrogation the Vail Subject was questioned concerning the following points: 1.

The fact that it was unlikely that his Wife would have been sitting on the back rest of the boat seat when she was not wearing a life preserver even though she had a great fear of water and could not swim. 2. The probability that had he maneuvered the boat as he had stated his Wife would have fallen differently. 3. The fact that he observed and passed up a lighted tug boat in the vicinity of the drowning without requesting assistance even though according to his own admission he did not panic and remained calm throughout the entire sequence of events and remembered every thing that happened. 4.

The fact that he passed other lighted locations where he could have requested assistance but did not. 5. The probability that his boat motor would have continued to run even though his gas tank had turned over as indicated. 6. Why his gas tank was not sitting in the place provided for it in the boat. 7. The fact that his trot line, which he had just taken up from the river, was coiled and in his tackle box. 8. The fact that he had just recently purchased a $50,000.00 accidental life insurance policy on his Wife in addition to the $8,000.00 double indemnity policy that he already had on her. 9.

The fact that he had made statements to the effect that he did not love his Wife, the [sic] she was stupid and at times he thought she looked vulgar. 10. The fact that on different occasions he had had sexual relationships with other females and at least one male. 11. The fact that a majority of the witnesses interviewed felt that he was capable of killing his wife. 12. The fact that by his own admission this was the first time that he ever taken his wife in the boat on the river at night to run the trot line. 13.

The fact that, even though he was behind with most of his major financial obligations, he was able to pay the entire annual premium on the $50,000.00 life insurance policy on his Wife. 14. The fact that he stated that his Wife was wearing the leather jacket when she fell in the water but that the body did not have a leather jacket on when recovered. 15. The fact that he could not present a reasonable explanation as to why he refused to take a polygraph examination. This interrogation was conducted by Deputies Perry, Manual, Ellis, and Authement. Mr.

Abshire did not state why he was given the documents, but he said he had kept the documents. Mr. Abshire further stated that he was convinced the defendant killed Mary Vail. The defendant threatened to sue him if he did not stop telling people he killed her, but shortly thereafter the defendant left the state. Sandra Fontenot testified that in 1962 she worked for Ardoin Funeral Home. Mary Vail's funeral was conducted at Ardoin's. Ms. Fontenot identified a letter dated June 17, 1964, which advised the defendant that he still owed Mary Vail's funeral expenses.

The letter noted the agreement was that once the insurance company paid Mary Vail's life insurance policy claim, he would settle the bill. Ms. Fontenot testified that the defendant never paid the bill. Eventually, Mary Vail's family paid the bill. Wesley Turnage, who lived in Monpelier, Mississippi, testified that he had known the defendant most of their lives. He stated he grew up with the defendant in Mississippi, where the defendant moved back to in 1964. During a time after the defendant moved back to Mississippi, Mr. Turnage and the defendant worked at the same place of employment.

On an occasion when the defendant did not have a ride to work, he rode with Mr. Turnage. During the ride to work, Mr. Turnage said he stated he asked the defendant about his son. The defendant responded that Mary Vail had wanted another child to fix their marriage. Mr. Turnage testified that the defendant became angry and said " 'I didn't want the youngin' I got, and I didn't want another one, and fixed that damned bitch. She won't never have another kid.' " Mr. Turnage stated he did not have much to do with the defendant after that. He told his parents what the defendant said but told no one else.

He stated he had promised himself that if the matter of Mary Vail's death ever came up, he would report the defendant's remarks. Mr. Turnage said he called the District Attorney's Office after he read about the current indictment of the defendant in the newspaper. Dee Salador worked for the Calcasieu Parish Sheriff's Office in 1962. She testified that at that time, a person's statement was recorded by a stenographer. She recorded the defendant's statement to the police regarding his wife's death.

While the original transcribed statement was lost, she recalled that the defendant claimed that he and Mary Vail were setting out trot lines at night when she fell overboard. He stated that they were alone in the boat. The defendant claimed he tried to save her. Ms. Salador recalled that the defendant did not seem overly emotional about his wife's death. Ms. Salador identified a photograph of the defendant taken about the time of Mary Vail's death. Ms.

Salador remembered that Leroy Authement and William Perry were two of the detectives that investigated the case and that they were conscientious and thorough detectives. Mary Vail's younger brother, Will Horton, testified that although she could swim in a swimming pool, Mary Vail was terrified of "dark water." Mr. Horton explained that dark water in this case was where the bottom of the river cannot be seen. He stated that the defendant had a boat and that he and the defendant often went skiing in the lake together. Mary Vail never went out in the boat with them.

The defendant's and Mary Vail's son, Bill, was only four months old when his mother died. Mr. Horton testified that he made it his duty to ensure Bill knew what a wonderful woman his mother was. Bill Vail died from cancer five to six years before the trial. Mr. Horton stated that he thought it was on a Sunday they got the news of Mary Vail's death. Later, however, he was told it was on a Monday morning that they got the news of his sister's death.

A deputy with the Calcasieu Parish Sheriff's Office in the marine division, Ron Johnson, discussed the river where it passed by the north end of Ryan Street, using an enlarged Google Earth map. He showed the location where the defendant kept his boat on Shell Beach at the time of Mary Vail's death, testifying that it was approximately four miles by the river to where Mary Vail's body was located. He stated that in 1962, there were several all-night businesses located in that area on the river. One was an ice house that was kept well-lit.

There were several warehouses along the river's edge, including a Halliburton petrochemical company which ran an all-night operation. Deputy Johnson also testified that he has pulled more than a hundred drowned persons out the water during his career as a marine officer. He stated that even if the body gets into the mud at the bottom of the river, generally as the body rises to the surface, the wave action washes off the mud. He further stated that almost all of the bodies he had recovered from the water surfaced face down in the "dead man" position.

The state presented the next three witnesses via video depositions, accompanied with copies of the transcripts. The first witness was Robert Fremont. Mr. Fremont lived in San Diego, California, in 1969. He was thirteen or fourteen years old when he met the defendant through Bruce Biedebach, whose brother was dating Mr. Fremont's mother. Mr. Fremont said that he and the defendant took a three-week-long bike trip through California. During the trip, the defendant told Mr. Fremont that he killed his wife. Mr.

Fremont stated that he was a little shocked and concerned, and he attempted to distance himself from the defendant. Mr. Fremont stated that even though he was freaked out by the defendant's statement, he did take a second, shorter trip with him to Mexico. Mr. Fremont testified that on this trip the defendant again talked about hitting his wife in the head with an oar, and there was something about a boat: A. I remember something about a boat, a lake, something with her head involved and basically something about he disagreed with something that she was doing.

And I don't remember the exact thing that it was or things, but something that obviously perturbed him and he didn't agree with, and because of that he felt like it was okay to take her life. Mr. Fremont stated he had nothing to do with the defendant after this trip. Mr. Fremont stated he did not tell anyone at the time what the defendant said about killing his wife because he did not think anyone would believe him, and he was unsure at the time whether the statement was true. Mr. Fremont testified that about nine months prior to trial, Mr.

Biedebach called him and asked if the defendant had ever told him about killing his wife. Mr. Fremont stated that after he heard that two other women associated with the defendant had mysteriously disappeared, he thought it best to come forward with the information. Jaycine Brooks worked for Traveler's Insurance in the 1960s. She testified that the defendant came into the office within a few weeks after Mary Vail's death. She stated he spoke with an insurance adjustor because there was a problem with the insurance policy he had taken out on his wife. Mary Vail had not signed for the policy. Ms.

Brooks had no further information; her office only sold the insurance policies and did not handle claims. However, she stated there was a settlement. She did remember that a deputy from the Calcasieu Parish Sheriff's Office came to the office to inquire about the policy. Finally, Bruce Biedebach testified he met the defendant at Mission Beach in California. The last time he saw the defendant was in San Francisco in the seventies. Mr. Biedebach testified that one day, the defendant said, "out of the blue" that he killed his wife. When Mr.

Biedebach asked what the defendant meant, he was told that the death was ruled an accidental drowning. Mr. Biedebach let it go because he thought that the defendant felt he killed his wife because he was unable to rescue her. Mr. Biedebach never really concerned himself with the defendant's statements, although during their acquaintance, the defendant made the same statement several times-that he killed his wife. Once Mr. Biedebach said he asked the defendant if his wife was a bitch, and the defendant said yes. Mr. Biedebach stated the defendant also mentioned something about the oar causing more harm than help.

Mr. Biedebach stated that about five years before the trial, he was contacted by Jerry Mitchell, a reporter for the Clarion Ledger in Mississippi. Mr. Mitchell questioned him about the defendant. Then he spoke with Mr. Fremont and shortly thereafter with the Calcasieu Parish District Attorney's Office. Gina Frenzel is a private investigator from Texas. She testified that she read an

article written by Jerry Mitchell regarding the defendant and the mysterious disappearance of two women and, sometime in March 2013, offered to help him with his investigation. Ms. Frenzel stated she was able to come into contact with the defendant through an investigation into a fire that had occurred on property the defendant owned a few years prior. She visited with the defendant about four times over a period of six weeks. During conversations with the defendant, Ms. Frenzel stated they spoke about Sharon Hensley in a roundabout way without naming her, and discussed, in generalities, Annette Carver.

He never mentioned to her that either woman had "disappeared." Ms. Frenzel testified she had access to the defendant's house after he was arrested. He had called her from jail and asked her to get his truck out of impoundment, to fix a hole in the roof of his house, and go into his house and throw away perishable food in the refrigerator. She obtained the defendant's truck and returned it to his residence. She went into the house and began to search for journals that she knew he kept.

Prior to entering the house, she stated she contacted an attorney and was advised that unless she took something from the premises, she was not violating the law. She said that after a long search she found the journals and took about two thousand photographs of the pages in the journals. Ms. Frenzel testified that the earliest journal she found was from 1984. Ms. Frenzel testified that an entry dated October 25, 2003, from one of the journals may have explained why there were no journals prior to 1984. At the state's request, she read the following: 10/28 of 2003 Tuesday at noon.

I've just stopped feeding the fire of books and papers from the attic that started about 8:00 a.m. Billy just called and will come this evening if his helper gets back from the doctor in time. I'm going to town and told him I'd be back by 2:00 p.m. or so. I have been finding college and high school notes of mine and bills, love letters and pictures of lovers from years past, books I have to keep, and many more that are burning at the moment. I am working my way through a journal of 89 through 3-90.

This is the period where I had left Beth Field because of her whore-swinging stuff and was spending longer and longer periods of time here trying to get daddy off of mother's back. This was a challenging, mind stretching introspective, reexamination time for me. And I was altered by it in a positive way to enable me to handle, without murder, the upcoming debacle with daddy and mother and Kay and Buchie that is just now taking another step towards completion with my moving out of this house.

Found stuff from Robin with a couple of guy's names she had marriage offers from while she was loving me and a note saying how devoted to me she was, and that she wanted to ball Brian. Ain't it just the way? Ms. Frenzel also found copies of letters. She noted one specific letter dated March 1973 from the defendant to his parents, which explained his girlfriend's absence. Ms. Frenzel read a portion of the letter to the jury, as follows: Greetings. I'm not married anymore. And although she has just been gone two days, my thinking is starting to clear from the clouds that were in her mind.

I thought I could get her clear, but I've given up the experiment with her anyway. So now I can begin training full time. I'm also postponing the boat experiment until after the '76 Olympics, then maybe Bill will be big enough to help with it. One more thing about my last wife for your own information and in case her folks inquire. She met a man who has a boat, and although he invited us both, I convinced them I have more pressing things to do at the moment. And so, I sent them off to the ocean and each other with my good wishes and blessing, and I might add, all to my great relief. Ms.

Frenzel testified that a portion of the letter that was redacted indicated it was Sharon Hensley he was calling his wife in the above letter. Ms. Frenzel also read a copy of a letter the defendant sent to his parents to send to Sharon Hensley's mother. Dear Mrs. Hensley; I'm in west Florida trying to rebuild a busted motor that blew a piston. And I called one of my sisters in Louisiana who had gotten a letter from my mother saying you had called.

I share your concern about Sharon, but then she is of age and she should have the right and freedom from you to decide for herself how she wants to live her time on earth. When and if she contacts you, please write me through my mother, saying where she is, how she is, what she's doing and if she wants to see me. I'll write down all the things I can think of that might help you find her. And since I don't remember your mailing address or phone, I'll mail this to my mother and she will forward it. .... When I saw Sharon last was about a year ago in Key West.

We met this couple from Australia who had a boat they were traveling and living on, about 35 or 40 foot, I think. I didn't hear their last names or have the occasion to ask if the boat was registered to either of them. If the boat had some name I didn't see it or hear it mentioned. Anyway, they, John and Vanessa, invited us to marry them and sail around with them. Sharon wanted to and I didn't. They seemed like nice, loving people, but I wanted to wait until we could get our own boat. She seemed to think that I was too much of a straight country boy to evolve at her speed, so she decided to leave me.

She also said she was going to try to forget me, her family, and everybody else that she-that she knew so she should-could become-....-and everybody else that she knew so she could became a new person, clean and free from memory associations. Some kind of Zen/Buddhist thinking Vanessa was experimenting with, I think. If you plan to try to find her against her will, the only possibility I can think of is sailing around looking and talking to other people who are sailing around. I left before they did so I don't know which way they went.

They talked of island hopping around South America and the West Indies, and they talked of stopping in Hawaii for a while, maybe a couple years in the Philippines then India, Egypt, and the Mediterranean islands and coast. I don't know how much of which of these, if any, they decided on or in what order. Mr. and Mrs. Hensley, Brian, Rick, Harry, I enjoyed meeting all of you and visiting there. It seem like when I'm not working I travel mostly, so get in touch with my mother if you think I can be an help to you. Although Sharon and me were not legally married we felt completely married to each other.

So I feel like a kind of kinship to your family. If she changes her mind and gets in touch please tell her I love her and want to see her. In the spirit of love, health and consciousness, Felix. Ms. Frenzel found several documents concerning Annette Carver, who married the defendant and a few years later disappeared. Ms. Frenzel identified each document which related the following information: The defendant and Annette Carver were married in August 1983. The defendant was forty-one at the time; Annette was seventeen.

Prior to their marriage, Annette and her mother, Mary Carver, purchased a house jointly in Tulsa, Oklahoma, in April 1982. In May 1984, Mary Carver quit-claimed her interest in the property to Annette. In July 1984, Annette conveyed joint ownership in the property to the defendant, and on August 28, 1984, she deeded her interest in the property to the defendant in sole ownership. Annette disappeared shortly thereafter. During Ms. Frenzel's investigation, she acquired a letter, dated January 19, 1985, that the defendant sent to Annette's mother.

Mary Carver had already reported her daughter missing at the time the defendant wrote the letter. Ms. Frenzel read the letter to the jury in its entirety: Mary, I hope you are healthy and happy and either in love or getting ready for it. I'm not any of these things at the moment, although I'm improving all of them gradually. The emotional detaching process from the intense, loving relationship with Annette that lasted three years is taking a lot of my energy and attention these days and has been making me feel uncommunicative with you because I hold you largely responsible for the relationship ending.

You gave Annette a lot of good things and a lot of bad things. The good things I irrevocably love and the bad things stymied the love between us to the point to where we both decided that she could get more (of what she learned was love from watching you) from miscellaneous, emotionally, and sexually hungry men than she was getting from me. I think [...] I think I've never been so spiritually complete as we were some of the time but the ego hunger for attention and approval that you created in her has an appetite that you thought [taught] her to believe no one can ever fill except temporarily.

You [The] spirit-controlled part of her mind knows this belief system about men and love and how to best live life [...] she inherited from you and your mother is either a lot wrong or at least is leaving the both of you alone and incomplete a lot of the time. Starting from I think about the time we came back from Costa Rica she began seeing friends and relatives (a few she had been close to including you and your mother) and doing what she called completing her relationships with them for the purpose of getting ready to drop everybody and start over.

I agreed with her when she first started this and still do, but since you and your mother apparently stuck for this lifetime in your belief systems about men and sex, that if she never-going to try to live a different belief system with me or anybody, she would have to get you and her mother out of her life. [...] In our last conversations with you both-we tried to make this unnecessary but neither of you indicated to her any intention of changing any of the stuff in your belief systems that she wants to change in hers.

We both saw the self-deception in your-I'm not exactly sure what that word is. [...] I love everybody presentation that you relate most people with. Annette thinks that you-I don't know what that word is. [...] -of yourself as a witch who lives with illusions and superior attitude to every person you relate to who accepts and believes your presentation or you wouldn't choose to relate to them. The ego part of her thinks the same way and has ambitions to be better at using people than you are.

The spirit part of her is at the same time totally determined to do whatever it takes to become free of some of the things in your value system that she thinks are wrong, even though she has duplicates of them in her own head and emotions. She disappeared herself from you because she realized that you probably would never voluntarily stop reenergizing in her and superimposing on her the same value system you live by that makes her see you and your mother and herself partially as per self image whores- ....

As zero self image whores for approval in the form of male attention as prerequisite to the periodic and temporary permission to feel good about yourselves. She wants to feel good about herself all the time, independent of having people tell here she's talented or sexy or beautiful or smart or spiritual, etcetera. With all my heart I agree with her that she deserves this, and if she achieves it and we meet in the future we might fall hopelessly in love with each other again.

We left each other with no plans to communicate in the future unless she can mentally and emotionally evict the ego whore part and became just spirit center. I assure you with all the sympathy I have for as a parent who has been totally rejected and who may realize you could have done better, that I have not the slightest idea where she may have gotten to by now. I will tell you that I love the spirit part and very much respect her right to freedom. And so, I also assure you that even if I did know I sympathize with all the rest of you. Felix. .... P.S., next page.

I have had some good conversations with Scott, and he suggested I send you a copy of the deed so you can see that it was her choice to give the property as a parting gift and partial payment. I think for being her father, lover, teacher, friend, and for assisting her in developing some anonymity and integrity that she feels she should-she could not have developed without me.

If you are feeling remorse as a rejected parent, resentful about her not giving you any more of her money that she did or whatever your motive is for the periodic character defamation campaigns you have been throwing at me, I suggest that you could better fill your mind and time with trying to center your consciousness on health and love and the nature of your spirit. Felix Brian Hensley, Sharon Hensley's brother, testified. He identified a picture of Sharon Hensley that was taken when she was perhaps 20 years old. Mr. Hensley stated he was twelve years old when he last saw his sister.

He described her as a fun-loving, free-spirited hippy. He testified that she and the defendant visited her family in North Dakota in December 1972. While during the time she was with the defendant she had maintained contact with her family, following the December 1972 visit she was never seen again. However, Mr. Hensley's mother received a letter from Sharon about a month later and a phone call from her about six weeks after the December 1972 visit. He did not know the substance of the phone call or the contents of the letter. Sharon Hensley was reported missing to the police and to the FBI in 1973. Mr.

Hensley stated he believes that his sister is dead. Dirk Bergeron, a special agent with the Office of Inspector General of the Social Security Administration testified that according to the information filed with the social security office, the last time employment was reported for Sharon Hensley was in 1971 and in 1979 for Annette Carver. There have been no claims filed for supplemental social security insurance or disability benefits by or on the behalf of either woman. Mr.

Bergeron agreed that while it would be very difficult, the two women could have obtained different social security numbers under different names. Dennis Davis is a retired detective from the Tulsa City Police Department. He was assigned to the investigation of Annette Carver's disappearance in September 1984. He worked the case until August 1985.

The detective read portions of his supplemental reports, dated December 30, 1984, and January 22, 1985, which contained what the defendant told him about Annette Carver's relationship with him, with her mother, and her disappearance: Later that date Felix Vail phoned reporting officer, Felix Vail advised that on or about September 15, 1984 while he and the victim were on vacation in St. Louis, Missouri, the victim decided to leave him. The victim was not mad at Felix, but just wanted to get out of there. .... Felix Vail advised he drove the victim to the Trailways bus station in St. Louis.

He walked the victim into the station but left before the victim bought a ticket. So Felix Vail does not know if the victim actually bought a bus ticket. Felix Vail states the victim intended to take the bus to Denver, Colorado. There the victim was to buy a bogus ID then head for Mexico. Felix Vail advises the victim's decision to leave for Mexico was no surprise to him because they had been talking about her leaving for about a month. Felix states that the marriage was not working. Felix Vail and the victim have been married about a year.

Felix and the victim lived together for about two years before they were married. Felix Vail advises he and the victim were not mad at each other when they parted ways in St. Louis, and Felix has no hard feelings towards her. Felix Vail also advises that the victim was tired of her family and their interference in her life. And that is another reason why she left. Felix Vail states the victim was going to obtain a false ID in Denver, Colorado because she did not want her family, in parenthesis, (her mother, excetra) to be able to track her down.

That is also the reason why she did not tell Felix Vail the whereabouts in Mexico she was headed. Felix advises she has lived in Mexico before and knows some people down there. The victim also supposedly can speak and write Spanish fluently. .... On 12/30/1984 reporting officer talked to Felix Vail by phone in reference to the money matter brought up by the complainant. Felix Vail advised the victim received $90,000 from her father's estate. He and the victim spent much of the money traveling around in foreign countries. Felix advised they never deposited any of the money in any bank nor did they invest it.

They kept the money at home with them. About a month before Felix Vail and the victim went on vacation, the victim deeded the aforementioned property to him because she anticipated leaving. Felix advises the complainant had been $50,000 [sic] with her when he dropped her off. .... When Felix finally arrived home from vacation he found $10,000 at the residence which the victim had left for him to pay costs of repair to the deeded over property. .... Vail also offered to leave a picture of the victim with reporting officer.

Felix Vail states the victim used part of the money to pay off the complainant's IOUs and that the complainant was upset when the money from her father's estate went to the victim instead of her. Vail believes the complainant's only concern is for the victim's money. .... According to Felix Vail the victim and he first met in Houston, Texas sometime in 1981 when he doing construction work there and she was a student in an unknown school. After the 81/82 school year the victim came to Tulsa to live with her mother, the complainant, Mary Craver.

It is unknown if Mary Craver lived at 1540 East 16th Street at that time or not. Felix Vail advises that the victim lived with her mother about a month before she called for him to come to Tulsa to pick her up in July or August of '82. .... Vail came to Tulsa and picked up the victim and they both went to Waco, Texas where they lived together until October '82. At that point they moved to Houston, Texas where they lived until January of '83. Felix Vail advised that at the first of the year he and the victim went to Mexico and other Central American countries.

They returned to the U.S. in March '83 and went to Bakersfield, California. In Bakersfield, California Felix Vail and the victim were married by Judge Jack E. Lund on August 15, 1983. From that point it was unclear as to where Felix Vail stayed with Mary Craver at that time. .... From that point it is unclear as to where Felix Vail and the victim lived. Vail advises that they did come to Tulsa, December '83, and they did stay with Mary Carver at that time. It is also unknown as to where Felix Vail and the victim lived after leaving Tulsa after their two-week stay in December of '83.

Felix Vail does not advise that he and the victim separated in April of '84, and the victim came back to Tulsa where she lived with her mother at the 1540 East 16th Street address. In June 1984 Felix Vail came to Tulsa and took up residence with the victim at the above-mentioned address. There they lived until the victim and Felix Vail supposedly parted ways in September 1984. Felix Vail advised during the summer of '84 while living in Tulsa the victim became dissatisfied with their marriage. Felix Vail states that he knew she was getting ready to leave him.

Felix Vail blamed the victim's mother, Mary Craver, for the victim leaving him. Vail advised the victim wanted to get out on her own away from him and her mother so she could find herself. Felix Vail states the victim was trying to decide whether or not to adopt a lifestyle like her mother's, (heavy in casual sex) or to remain faithful to Felix Vail. Felix Vail advised on 9/13/84, Thursday, he and the victim left the 1540 East 16th Street address between 1200 and 1500 hours to go on vacation. Vail advises when they left they had no specific destination planned. So they left traveling in a northeasterly direction.

Felix Vail advises on 9/13/84 the day they left, he and she spent the night in a Claremore hotel. Felix Vail could not give the name of the hotel but did say it was one of the older, taller buildings in downtown Claremore. The next day 9/14/84 Vail advises they traveled into Missouri. Vail could not name the highways they traveled. Reporting officer believes they may have traveled U.S. 66 Highway. Felix Vail advises they camped out beside some river the night of 9/15/84. On Saturday 9/15/84 Vail states they continued in a northeasterly direction towards St. Louis, Missouri. That night they again camped out.

On 9/16/84 Vail advises they arrived in St. Louis, Missouri. Vail further advises that by that time the victim had decided to leave Felix Vail, to leave him and to strike out on her own. Felix Vail advises they looked in a phone book and ascertained the location of a Trailways Bus station. They then proceeded to the bus station where Felix Vail dropped the victim off between 1300 and 1400 hours. Vail did not know the location of the bus station in St. Louis. Felix Vail did no go into the station with the victim so he advises he did not know if the victim bought a ticket or not.

The victim had advised Vail that she intended to take a bus to Denver, Colorado where she intended to obtain a false ID. Felix Vail left the bus station without knowing that the victim did take a bus to Denver. After dropping the victim off at the station in St. Louis Vail advises he drove home. It is not known if Vail stopped anywhere along the way. The victim and Vail did all their traveling in a 1979 blue Fiat Spider. .... Vail advises when he dropped the victim off at the bus station in St. Louis she was wearing an orange t-shirt, gray sweat pant bottoms and slippers.

The victim was carrying a large navy blue canvas backpack, a brown cloth handbag and a sleeping bag. Vail believes she was carrying $50,000 in cash, although, he did not see the money. Vail assumes that she had that much money because after returning home he found only $10,000 left in the house. Vail believes there was approximately $60,000 in the house before they left on 9/13/84. Vail states the money was in denominations of $100 dollar bills. Felix Vail also advised that before the victim left she deeded the property at 1540 East 16th Street to him. Vail provided reporting officer with a copy of the deed.

In describing the victim, Felix Vail advises she was schizoid and sometimes suicidal. Vail states her mental condition was caused by her mother. Vail also advises the victim was bisexual and many times engaged in casual sex with men. Vail states the victim seldom used drugs or alcohol and was somewhat musically-inclined. In reference to the large amount of money the victim was in possession of Vail states she received the money when she turned 18. The victim was the beneficiary of an insurance policy owned by her father, Gary Craver. Vail advises Gary Craver died before he met the victim.

When the victim turned 18 Vail advised she received $100,000 from the policy. The victim received the money in the form of a cashier's check from a large bank in San Antonio, Texas. Vail advises he was with the victim when she accepted the check. Vail states the victim upon receiving the large check had it broken down into smaller Traveler's Checques. Vail states they never deposited the checks in any accounts. While in Tulsa Vail states the only account he and the victim had was a checking account at Pioneer Savings located at about 17th Street and Utica.

Vail did not advise in whose name the account was in. .... On that date Vail also gave reporting officer a copy of a letter he had just sent to Mary Craver. The detective testified that he spoke with several family members and friends who were at times involved in Ms. Carver's life, including her lawyers, before and after she met and married the defendant. No one had heard from her or had any knowledge of where she might have gone. He noted that after she met the defendant, her relationships with others deteriorated.

Lori Viscer, a detective with the Tulsa City Police Department became involved with the missing person case of Annette Carver in 1994. She stated that she spoke with the defendant in July 1994, and he told her that he had spoken with Annette Carver in March 1985 and later in the fall. She stated that when she spoke with the defendant again, he told her that Annette Carver had two children. Ms. Viscer noted the fact that Annette Carver had allegedly communicated with the defendant in 1985 was never reported by him to the police.

She further stated that the defendant was adamant that he had dropped Annette Carver off at the Trailways Bus station on September 16, 1984. However, the detective testified that in 1984 the defendant reported to a different detective that he and Annette Carver had gone to the Cal-Cam fair before he took her to the bus station. The Cal-Cam fair was in October of that year, a month after he claimed to have taken her to the bus station and had not seen her since.

Joe Campbell, a detective with the Tulsa Police Department, testified that in 2013, he was contacted by a couple who had recently purchased the defendant's house in Tulsa. The couple had rented the house prior to purchasing it. During the rental period, there was one room in the attic that remained locked. After they purchased the house, they entered the room after the defendant had removed the contents and discovered a blue bag tucked underneath the overhang of the roof. Because they were aware of the disappearance of the defendant's wife, Annette Carver, they turned the bag over to the detective.

Inside were several items determined to belong to Annette Carver. In the bag were clothing: skirts, shirts, underwear, and hats. Also in the bag were various feminine hygiene products and two packages of birth control pills, one package unopened. The birth control pills were prescribed to Annette Carver. Vicky Lyons, the defendant's niece, lived in Sulphur, Louisiana. She testified that she last saw Annette Carver in October 1984 when the defendant and Annette Carver visited. She stated that they went to the Cal-Cam fair. Although Ms. Lyons saw the defendant a few weeks later, she never saw Annette Carver again.

Ms. Lyons also stated that she never saw the defendant treat Annette Carver badly. The fair started on October 8, 1984. Mary Carver, mother of Annette Carver, testified that she has not heard from her daughter in thirty-two years. She believes Annette is dead. Ms. Carver met the defendant in 1981 when her daughter was fifteen years old. She stated that up until that time, she and her daughter had a good relationship. Ms. Carver said that her daughter was in a private high school and graduated when she was sixteen. Her daughter came home to Tulsa after school, and the defendant showed up about a month later.

He invited Annette to go on a motorcycle trip with him. Ms. Carver testified that when her daughter was around thirteen, her father died in a car accident. He left two life insurance policies to Annette in the total amount of one hundred thousand dollars. The money was put into a trust for Annette until she turned eighteen, with Ms. Carver as executor. She testified that Annette and the defendant married a little before Annette turned eighteen. Ms. Carver said she had at first refused to give her permission for Annette to marry, but Annette said she would run away to Mexico with the defendant and marry him there.

Ms. Carver also stated that prior to Annette getting married, she and Annette purchased a house in Tulsa in 1982 together. Ms. Carver said that Annette liked Tulsa, and Ms. Carver thought it would be a good investment for Annette. Ms. Carver testified that in May 1984, Annette returned home. She announced that she was going to divorce the defendant and start college. However, the defendant showed up six weeks later. Ms. Carver stated that under duress, she deeded her interest in the house to her daughter.

She was not aware until a few months later that Annette deeded the house to the defendant as his sole property. Annette told her mother that the money she received from her father's insurance was in a briefcase because neither she nor the defendant believed in banks. After this, Ms. Carver had very little communication with her daughter. She stated that eventually a friend called her and told her that the couple left Tulsa, and while the defendant returned, Annette did not. Ms. Carver called the defendant. He told her that Annette wanted to go to Mexico and that he put her on a bus in Missouri.

She stated that the defendant then resisted any attempt thereafter to answer her questions or to talk to her about where Annette went. Ms. Carver went to the property she and Annette had originally owned. The defendant was living in a cottage on the property behind the main house which was rented out at the time. The defendant was not home. Ms. Carver said she broke into the house. Ms. Carver testified that while Annette did not have a driver's license, she did have a passport. However, Ms. Carver found the passport's picture of her daughter, apparently torn out of the passport.

She also found a handwritten document indicating that there was forty-one thousand dollars in a bank account in Louisiana. The document was in Annette's handwriting. The document also indicated that Annette gave the defendant ten thousand dollars to pay a debt. Finally, Ms. Carver identified a copy of the letter the defendant sent to Sharon Hensley's mother after Sharon Hensley had disappeared. Ms. Carver explained that she had gone to Mississippi to see the defendant's family in an attempt to get information about her daughter. At this time, Ms. Carver learned of Sharon Hensley's disappearance.

She then contacted Sharon Hensley's family and was given the letter the defendant had sent to Sharon Hensley's mother. Finally, Ms. Carver testified that much later, she heard an interview on the radio with Jerry Mitchell, who was investigating a civil rights murder cold case. She contacted Mr. Mitchell, and about a year later, he took up the investigation into the disappearance of the two women. The state's final witness was Michael Baden, a medical doctor, forensic pathologist, and medical examiner.

He testified that in his opinion, Mary Vail died of traumatic asphyxia in a manner which he categorized as a homicide. Dr. Baden was qualified as an expert in forensic pathology after his extensive history in forensics was discussed. Among other notable achievements, he was a medical examiner in New York City for years wherein he gained extensive experience in examining and determining the cause and manner of death of persons who were killed prior to being dumped into the water and persons who actually drowned. Dr. Baden described Mary Vail's death as being caused by strangulation, suffocation, or both. Dr.

Baden discussed the scarf that was wrapped around the victim's neck and noted that the end of the scarf was in her mouth to a depth of four inches. Referring to the testimony of the defendant's expert who dispelled the theory of strangulation because there were no ligature marks described in the original autopsy report, Dr. Baden explained that because the scarf was a wide ligature rather than like a rope or a wire, the scarf would have produced a wider compression around the neck, thus leaving no marks.

He compared the scarf's act of compression to a "carotid sleeper hold" used at times by the police to subdue a suspect's resistance "where they put the forearm around the neck to compress the arteries on the side. The crook of the arm would be pointing outward and there'd be pressure on either side of the neck and prevents blood from going to the-to the brain-so a person could pass out and they could be handcuffed." Marks were not generally left on the neck in the case of a carotid sleeper hold.

He did note that in the pictures of Mary Vail's body there did appear to be some swelling about the ligature, which indicated pressure. The doctor further stated that the cloth in Mary Vail's mouth was sufficient to cause suffocation, suggesting perhaps that she passed out and then was unable to breathe because of the blockage in the back of her throat. While Dr. Cook's autopsy report stated that the scarf was loose around Mary Vail's neck, Dr. Baden testified that after the body was out of the water, it began to dry out, as did the cloth.

Referring to what appeared to be a knot in the scarf in the photographs of Mary Vail's body, he stated; [A]s people pick up the body from the stretcher and put it on another stretcher and bring it into the morgue, there is a lot of handling of the body. It's very easy for evidence to get-to change. Such as the knot loosens and Dr. Cook doesn't see a knot.

But in my opinion that's why the scene photos are always very important to a forensic pathologist because you can see what the body looked like before it goes in the body bag and goes to the morgue which can change a lot of things while jostling around in the body bag being moved around, etcetera. Dr. Baden also explained the difference between lividity, the pooling of blood on the down side of the body, and cyanosis, which is caused by the lack of oxygen in the skin.

He believed that the dark discolored areas of Mary Vail's face was cyanosis, but it was not found below the ligature, which, in his opinion, supported the conclusion of strangulation. Dr. Baden agreed with Dr. Traylor, the defendant's expert, that determining a drowning as the cause of death was more of a matter of excluding other causes of death. Dr. Baden also noted that Mary Vail had a substantial hematoma on the back side of her head which was caused by a blunt force impact which he said certainly could have knocked her unconscious.

If Mary Vail was unconscious when the scarf was wrapped tight around her neck and stuffed inside her mouth, she would have suffocated. The doctor reasoned this could explain the absence of scratch marks on the neck as could often be seen from persons attempting to extricate themselves from a thin ligature or manual strangulation. Finally, the doctor testified that a common sign of drowning was "frothing," which was not present in Mary Vail's case.

He explained that "by breathing in water and air, one gets a froth, a frothy fluid in the air passages[.]" "[It]s like when you mix fluid, you get bubbles, air and water.... If we breathe water into our lungs we're breathing water and saliva mixed with air." Furthermore, the doctor testified that, although in Doctor Cook's autopsy report it was stated the lungs were heavy, there was no evidence of significant water in the lungs and that lungs would be heavy in a body that had been in the water. He agreed they would be heavier in an individual who drowned.

James Traylor, Jr., a medical doctor specializing in forensic pathology, testified on behalf of the defendant and opined that the evidence supports a conclusion of accidental drowning. Dr. Traylor primarily took umbrage with Dr. Welke's one hundred percent certainty that the manner of Mary Vail's death was homicide. Dr. Traylor agreed generally with Dr. Welke regarding the decomposition process of a body under various conditions. However, Dr.

Traylor testified that from the time Mary Vail was reported to have fallen into the water until the time the body was recovered and shortly thereafter autopsied, in his opinion Mary Vail's body would have been past the stage of rigor mortis. He noted that the "stiffness" of the body cannot be determined by only two pictures and the testimony of one person with no medical knowledge. Furthermore, Dr. Traylor stated that the lividity noted in the autopsy report and visible in the photographs indicated Mary Vail was face down in the water.

However, the doctor agreed that most drowning victims surface face down in the floating position. Dr. Traylor testified that the best diagnosis for a drowning was a reliable eye witness. He further stated that a diagnosis of drowning was a diagnosis of exclusion of other causes of death. The doctor noted that there was nothing significant in the autopsy report with respect to a cause of death. He discussed the possibility of strangulation, suffocation, or being killed by a blow to the head.

Regarding strangulation, the doctor testified most of the strangulation victims he has examined had gouge marks on the throat from the victim attempting to free themselves from the ligature. Furthermore, he agreed a blow to the backside of Mary Vail's head could render her unconscious. However, he concluded there was no evidence indicating conclusively any of the above potential causes of death occurred. Therefore, by exclusion, Mary Vail must have drowned. In

summary, the jury heard extensive testimony from three expert witnesses regarding whether Mary Horton Vail was dead before she entered the water or died after she entered the water. The experts also offered opinion testimony as to the events surrounding her death, based on the reports and evidence available to them as well as their opinions pertaining to the cause of death. Two of the experts concluded the manner of Mary Horton Vail's death was a homicide. One testified that he concluded the death was an accidental drowning.

The jury heard the testimony of all three experts in great detail, viewed the photographs, and read the autopsy report. Faced with conflicting expert opinions, the jury was entitled to accept whichever one, in their opinion, better explained the facts of the incident. La.Code Evid. art. 702. An appellate court should "not disturb the jury's choice to accept one expert's opinion unless that opinion is patently unsound." State v. Ellis , 28,282, p. 5 (La.App. 2 Cir. 6/26/96), 677 So.2d 617, 623, writ denied , 96-1991 (La. 2/21/97), 688 So.2d 521.

After reviewing the experts' testimony in their entirety, we do not find the expert witnesses' opinions of the cause and manner of death to be patently unsound. In great part, most of the witnesses in this case presented evidence that was circumstantial in nature.

This evidence consisted of contradictory statements made by the defendant, information from officers and investigators regarding the disappearance of two other women connected to the defendant, information regarding life insurance policies, testimony regarding fear of 'dark water' and the likelihood of her voluntarily getting into a boat on the river at night, the physical findings at the scene that contradicted the defendant's statement that his wife accidentally fell into the river, and testimony regarding the relationship between the defendant and the victim at the time of her death.

The testimony of three of the state's witnesses, however, is not circumstantial in nature. Wesley Turnage, Robert Fremont, and Bruce Biedebach all testified regarding statements the defendant made to each of them at different times wherein he stated to them that he killed his wife. Wesley Turnage testified that after Mary Horton Vail's death, while riding to work with the defendant one day, the defendant stated "I didn't want the youngin' I got, and I didn't want another one, and fixed that damned bitch.

She won't never have another kid." Robert Fremont testified that, as a teenager, he met the defendant in California. He stated that on two separate occasions, the defendant told him that he killed his wife. On the second occasion, he testified that the defendant talked about hitting his wife in the head with an ore and some talk regarding a boat, a disagreement, and then the defendant feeling justified in taking her life. Bruce Biedebach, who also met the defendant in California, also testified that the defendant, on more than one occasion stated he killed his wife. Mr.

Biedebach was told it was ruled an accidental drowning, so he believed perhaps the defendant felt guilty because he failed to save her. We find these admissions by the defendant, taken together, are confessions and therefore are direct evidence that he committed the offense. See State v. Richardson , 16-107 (La.App. 3 Cir. 12/28/16), 210 So.3d 340. In the current case, the jury obviously concluded the three witnesses to whom the defendant stated he killed his wife were worthy of being believed. The jury seemingly believed Dr.

Welke's conclusion that Mary Vail was dead when she went into the river late that evening or Dr. Baden's theory that she may have died in the water as a result of foul play. They heard testimony that she was fearful of being in "dark water" and never went out in the defendant's boat during the daytime, yet she allegedly went fishing with the defendant after dark. The jury also had the opportunity to peruse the Calcasieu Parish Sheriff's Office investigation report compiled in 1962 describing the direction of the investigation and the concerns being addressed to determine what happened to Mary Vail.

While the report did not offer any conclusions or explanations, it did reflect the defendant's attitudes and behavior at the time of Mary Vail's death. The jury heard testimony of the mysterious and suspicious disappearance of two other significant women in his life, and the defendant's apparent attempt to dissuade their families from searching for the women by stating that they were fleeing from their overbearing mothers and did not want to be found by anyone. In each case, Mary Vail, Sharon Hensley, and Annette Carver, the defendant was the last person to see each of the women alive.

Moreover, whatever was the cause of Mary Vail's death, strangulation, suffocation, or a blow to the head, the fact that the defendant attempted to cover up the offense by trying to convince the police that she accidently fell overboard was sufficient evidence for the jury to conclude he had specific intent to kill her. "[S]pecific intent is a state of mind, and need not be proven as a fact, but may be inferred from the facts and circumstances of the transaction and the actions of the defendant." State v. Boyer , 406 So.2d 143, 150 (La.1981).

"Specific intent is an ultimate legal conclusion to be resolved by the fact finders." State v. Graham , 420 So.2d 1126, 1128 (La.1982). The evidence, in this matter both direct and circumstantial, the testimonies, documents, and the defendant's statements, viewed in a light most favorable to the prosecution, contained enough information to exclude the defendant's assertion of innocence and supports the jury's finding that the defendant killed his wife, Mary Vail.

ASSIGNMENT OF ERROR NUMBER TWO The defendant argues it was error for the trial court to allow the introduction of evidence regarding the disappearance of Sharon Hensley and Annette Carver Vail. He calls the evidence a probability wrapped in a presumption and multiplied by speculation. He argues that allowing the state to imply that the two other women are dead effectively secured the conviction. He argues the burden was impermissibly shifted to him to prove his innocence rather than the state having to prove his guilt.

He argues that the state was able to secure the trial court's approval of the state's use of other acts by determining the probability of Sharon Hensley's and Annette Carver's deaths via Louisiana Civil Code Articles 30 and 54, which establishes the presumption of death of persons gone missing under certain circumstances.

The defendant argues that it was necessary for the state to establish a presumption of death when there was absolutely no evidence of their death in order to invoke the Doctrine of Chance argument and thus allowed the trial court to circumvent the prohibition of admission of other acts pursuant to La.Code Evid. art. 404(B). This issue has been previously brought before this court on a pre-trial writ. State v. Vail , 14-436 (La.App. 3 Cir. 11/5/14), 150 So.3d 576, writ denied , 14-2553 (La. 8/28/15), 176 So.3d 401. The panel of this court that issued the above ruling found the evidence to be admissible.

The Louisiana Supreme Court in State v. Humphrey , 412 So.2d 507, 523 (1981), held: When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial.

Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. We have reviewed the pretrial writ record and find that the defendant makes no new argument that was not presented to this court pretrial. The issue was thoroughly reviewed by the writ panel.

The defendant, in brief, does not argue where in the trial record that is now before this court there is any evidence that would indicate the pretrial ruling was patently erroneous and produced an unjust result. We find no palpable error in the ruling of the writ panel. Accordingly, we find the law of the case doctrine applies. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE In his third assignment of error, the defendant argues that the trial court did not adequately instruct the jury as to the burden of proof required when another "act" could be considered by the jury pursuant to La.Code Evid. art. 404(B). Initially, we note that following closing arguments, after the trial court read the instructions to the jury and the jury retired to deliberate, the trial court asked if there were any objections to the instructions. THE COURT: Mr. Holland and Mr. Hall [prosecutors], any objections to the charges as read to the jury? MR. HALL: No, sir.

THE COURT: Mr. Casanave, any objections to the charges as read to the jury? MR. CASANAVE: Your Honor, the Court has jury instructions that we had proposed. We ask that it be filed in the record. We would have preferred those over the alternatives that were given. THE COURT: They're already in the record. The Court has met with the attorneys, considered those. I am not changing what I have read to the jury. Those objections are so noted for the record. MR. CASANAVE: Thank you, Your Honor. Having reviewed the record in its entirety, we do not find the defendant's proposed jury instructions.

The defendant, in brief, does not reference where in the record the proposed instructions can be located. While the defendant's argument in his brief pertains to instructions that were requested by the state, Mr. Casanave did not state for the record which instructions he was referring to or the basis for his objections. The state filed "Special Requested Jury Instructions" on July 15, 2016. On July 18, 2016, the state filed "Am

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