State v. Sullivan

• Decision Date: 02 March 1992
• Docket Number: No. 87-KA-0027,87-KA-0027
• Citation: 596 So.2d 177
• Parties: STATE of Louisiana v. John L. SULLIVAN. 596 So.2d 177
• Court: Louisiana Supreme Court

Page 177

596 So.2d 177

STATE of Louisiana v. John L. SULLIVAN.

No. 87-KA-0027.

596 So.2d 177

Supreme Court of Louisiana.

March 2, 1992.

Rehearings Denied April 9, 1992.

Richard Phillip Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Jack Peebles, Martin Melton, Beryl M. McSmith, Richard Olsen, Asst. Dist. Attys., for appellee.

John W. Reed, Glass & Reed, William Keppel, Christopher J. Riley, Tamara J. Byram, Karen A. Fairbairn, Dorsey & Whitney, for appellants.

John L. Sullivan, pro se.

COLE, Justice.

Defendant John Sullivan was convicted by a jury of the first degree murder, during the perpetration of an armed robbery at a New Orleans bar, of Joseph King, a bar patron. The jury subsequently recommended imposition of the death penalty, a recommendation with which the trial court agreed. Sullivan now appeals both the conviction and the sentence on a myriad of grounds. For the reasons which follow, we affirm the conviction but vacate the death sentence and remand to the trial court for a new sentencing proceeding.

I.

On the evening of April 13, 1980, defendant Sullivan was in the Polka Dot Lounge on St. Charles Avenue in New Orleans. At about 10:30 p.m., Michael Hillhouse, who had arrived in New Orleans a few days earlier, entered the bar and began drinking beer. Sullivan introduced himself to Hillhouse, and the two continued talking and drinking. Sullivan asked Hillhouse if he wanted to make some quick money, and Hillhouse affirmed that he did so desire. Sullivan retrieved a black vinyl bag from behind the bar and returned to the table. He showed Hillhouse the bag which contained a sawed-off shotgun, and Hillhouse agreed to commit an armed robbery with Sullivan.

At about 3:30 a.m., April 14, they left the bar and drove to the C-Note Lounge, also on St. Charles Avenue. They entered the lounge, went to the far end of the bar, and ordered beers. Hillhouse decided to play pool but had only a quarter, and the table required fifty cents. Joseph King, a regular patron of the bar, offered another quarter if he could play a game of pool with Hillhouse. The two played for about fifteen minutes. When the game ended, Hillhouse returned to his seat beside Sullivan, and King returned to his seat at the other end of the bar. Sullivan and Hillhouse moved to stools nearer the door.

Sullivan asked Hillhouse if he was ready. When Hillhouse said yes, Sullivan rose from his stool, backed up, raised the sixteen-gauge shotgun from beneath his coat, and shot King in the chest with a slug. The force of the blast knocked King off the stool and against the side wall, where he dropped to the floor. Sullivan reloaded the shotgun and ordered Hillhouse to the other end of the bar. Sullivan then placed the gun at the head of Mark Legorretta, another customer, and demanded his wallet. He took a gold watch off Legorretta's wrist. Sullivan next ordered Stephanie Lowery, the bartender, to empty the cash register. She took $150.20 from the register and gave it to Sullivan. Hillhouse joined Sullivan at the other end of the bar. The two men then backed out of the lounge and made good their escape in a stolen vehicle driven by Sullivan.

Sullivan gave Hillhouse $50.00 of the stolen money before emerging from the vehicle. Both men re-entered the Polka-Dot Lounge, drank beer, and shot pool until dawn. Around sunrise, they proceeded to the A & J Restaurant on Prytania Street, where Sullivan dropped off Hillhouse. Sullivan left to secure the vehicle and to change clothes. He returned a half-hour later on foot, having washed and changed clothes. After drinking beer for a while, Sullivan invited Hillhouse to meet his "wife" (girlfriend), Brenda Wold. The two walked to an apartment on nearby Euterpe Street. While there, the three talked for a while and smoked marijuana. Hillhouse observed the sixteen-gauge shotgun lying on a bed. He also saw a blue, pin-striped vest that accompanied the suit Sullivan had worn earlier at the time of the crime. He asked Sullivan if he might wear it, and Sullivan agreed.

Sullivan and Hillhouse left the apartment, made purchases in a pawn shop, and proceeded to the Play Girl Lounge on Magazine Street. Police were summoned to the bar pursuant to a suspicious persons report. Sullivan had walked outside to check on the stolen vehicle when police officers arrived and realized he fit the description of one of the two suspects who had committed the robbery/homicide. They arrested him outside, entered the bar, recognized Hillhouse as fitting the description of the other perpetrator, and arrested him as well. At the time of the arrest, Sullivan was wearing a gold watch on his left wrist.

Both men were taken to a police station and were questioned separately. Hillhouse confessed to the crime, led the officers back to Magazine Street, and showed them Sullivan's car. They then drove around the area until Hillhouse located the apartment where he had met Wold. The apartment was unoccupied at the time, and officers were left on the scene to await Wold's return. Wold subsequently arrived and consented to a search of the apartment. An officer found the shotgun on the bed where Hillhouse had said it was located and also found both the suit jacket Sullivan had worn and the black vinyl flight bag in which the shotgun had originally been concealed.

At Sullivan's trial, Hillhouse, under a grant of total immunity from prosecution, testified he had willingly gone along with Sullivan's plan to make some quick money. He stated Sullivan had told him of the plan when they met in the Polka-Dot Lounge. Hillhouse asserted he had been shocked when Sullivan, for no apparent reason, shot King.

Lowery positively identified Hillhouse and Sullivan in court as the persons who had committed the armed robbery at the C-Note Lounge. She stated she did not see who had shot King, but after she heard the shot she ducked down behind the bar before looking up to see what had happened. She testified she saw Sullivan holding a shotgun to a customer's head. She identified the jacket taken from Wold's apartment as the jacket worn by Sullivan. Lowery admitted she was unable to identify Sullivan and Hillhouse at a physical line-up conducted on April 30, 1980, but was able to identify both Hillhouse and Sullivan five days later from a photograph of the line-up. She explained her inability to identify the two men initially resumed from fear and nervousness caused by the proximity of the men and the lighting in the room.

A balistics expert testified the slug removed from the body of King had been fired by the shotgun which was found in Wold's apartment. He further testified the empty shell which had been left on the floor when Sullivan reloaded had been ejected from the same gun.

At the time of the trial, neither Legorretta, the bar patron robbed of his watch and wallet, nor Wold, was available. Thus, neither testified at trial.

Sullivan did not testify at the guilt phase of the trial. Against his counsel's advice, the defense elicited testimony from two Angola inmates and one Hunt inmate, all of whom had been incarcerated at the Orleans Parish Prison during the time Sullivan and Hillhouse had been there. The testimony concerned allegations that Hillhouse had been beaten by police and forced to confess to the crime and to implicate Sullivan. On rebuttal, the state recalled Hillhouse, who testified he had not been beaten or forced to confess and the injuries he had sustained while in custody had resulted from falls occurring during epileptic seizures.

The jury found Sullivan guilty as charged of first-degree murder, in violation of La.Rev.Stat. Sec. 14:30(A)(1). ¹ The next day, the penalty phase of the trial was conducted. Against the advice of counsel, and after a hearing in chambers, Sullivan insisted on testifying. He told the jury the death penalty was warranted under the circumstances and requested the jury to recommend it. At the conclusion of the proceeding, the jury recommended the death penalty.

After several post-verdict motions and two prior remands by this Court for evidentiary hearings on motions for a new trial, Sullivan appeals his conviction and sentence, asserting numerous assignments of error.

II.

Sullivan first contends the state withheld exculpatory material he had sought when it failed to provide him with a copy of the initial police report containing a description of both perpetrators. This, he contends, deprived him of a fair trial. Sullivan asserts there is a significant difference between the description of the perpetrator who wielded the shotgun given by bartender Stephanie Lowery to the investigating officers and the appearance of Sullivan at the time of his arrest.

The initial police report contains seven pages and the material to which Sullivan refers is on page four where the reporting officer put a brief description of the perpetrator. In addition to writing the estimated height, weight, age, race, and gender, the officer checked off spaces next to general characteristics. One check indicated "straight" hair. Another indicated "shoulder" length. In the area for facial hair description, the officer checked "mustache." Sullivan contends he had "shortish curly hair and no mustache ... when he was arrested only hours after the crime was committed." Sullivan maintains these check mark general description factors are exculpatory and should have been disclosed.

The state is required to provide to the defense any information in its possession which is favorable to the accused and is material to guilt. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This, of course, includes exculpatory and impeachment information and the "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v....