A federal judge granted a stay Wednesday of the scheduled May 9 execution of a Baton Rouge man for the 1995 murder of two restaurant workers.
Todd Kelvin Wessinger, 44, was convicted in 1997 for the murders of 27-year-old Stephanie Guzzardo and 46-year-old David Breakwell at the since-closed Calendar’s restaurant on Perkins Road. A state court jury sentenced Wessinger, who had worked at the restaurant as a dishwasher, to death by lethal injection.
But appellate attorneys Danalynn Recer, of The Gulf Region Advocacy Center in Houston; Soren Gisleson, of New Orleans, and Federal Public Defender Rebecca Hudsmith, of Lafayette, are seeking an evidentiary hearing in federal court to consider mitigating factors favorable to Wessinger.
In February, U.S. District Judge James J. Brady denied Wessinger a new trial, as well as a new sentencing hearing.
Brady ruled then that the state trial evidence against Wessinger was “overwhelming.”
The judge also noted that Wessinger alleges his trial attorneys were ineffective.
“In short, it is not the quality or thoroughness of the investigation Wessinger is attacking, he essentially does not like the way his story was spun for the jury,” Brady wrote in February. “This is not ineffective assistance.”
Brady added: “Defense counsel seems to have bet heavily on a strategy of painting Wessinger as a good person who suffered from alcoholism and was not his normal self when he committed the murders and that a life sentence would not endanger the lives of other inmates.”
The judge repeated: “The fact that the jury rejected this theory does not make counsel ineffective.”
Last week, Assistant District Attorneys Dale R. Lee and J. Christine Chapman urged Brady to reject new defense requests for an evidentiary hearing and stay of Wessinger’s execution.
Lee and Chapman argued that the families of Guzzardo and Breakwell “have endured years of uncertainty and appeals. They undoubtedly endure harm each day that the lawful sentence of the court is not carried out, and they are clearly entitled to finality and closure.”
On Monday, however, defense attorneys filed documents alleging Wessinger suffered childhood seizures and physical and emotional abuse, developed substance addictions and was traumatized by the deaths of his children.
Wessinger’s appellate attorneys also alleged that trial attorney J.W.P. “Billy” Hecker should not have called Dr. Phillip Louis Cenac Jr. to the trial witness stand without first going over Cenac’s report about his interviews with Wessinger.
Cenac testified Wessinger told him: “He was surprised initially by the cook, who was behind the door of a refrigerator, apparently a commercial-sized refrigerator, and he shot him. Subsequently, he shot Alvin Ricks and then the female manager of the store. Then he left.”
Cenac added: Wessinger “continued about his business and was told by … girlfriends through his pager that he was a suspect in the Calendar’s shootings. Subsequently, he went to Dallas.”
Another expert witness for the defense, Dr. Carey Rostow, a psychologist, testified at trial that Wessinger was “explosive.”
Rostow added that Wessinger “does not play by the same rules that most people do. He sees the world as a place that is there to meet his needs.”
An affidavit by Hecker was attached to the appellate team’s filing on Monday.
Hecker said in that affidavit that he did not have sufficient time to interview Cenac and Rostow before their testimony.
“It was not strategy on my part to put such important witnesses on the stand without knowing the full content of their testimony,” Hecker wrote. “And if I had known that they would call my client a liar, dangerous, and testify that he had confessed, I would not have called them as witnesses.”
Lee, the assistant district attorney, told Brady on Wednesday that the defense “still put on a very thorough penalty-phase case.”
Added Lee: “Mr. Wessinger, in this case, got a fair trial.” He urged Brady not to grant “a new trial.”
Brady said he would take both sides’ arguments under advisement.
The judge granted Recer’s request for a stay of Wessinger’s execution while he works on his decision. He did not say when that decision would be announced.
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