92-2700 La.App. 4 Cir. 3/15/94, State v. Green

• Decision Date: 15 March 1994
• Citation: 634 So.2d 503
• Parties: 92-2700 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 503

634 So.2d 503

92-2700 La.App. 4 Cir. 3/15/94

STATE of Louisiana v. Melvin GREEN.

No. 92-KA-2700.

Court of Appeal of Louisiana Fourth Circuit.

March 15, 1994.

Ginger Berrigan, Gravel, Brady & Berrigan, New Orleans, for Melvin Green.

Harry F. Connick, Dist. Atty., Susan M. Erlanger, Asst. Dist. Atty., New Orleans, for State of Louisiana.

Before BYRNES and JONES, JJ., and JOHN A. DIXON, Jr., J. Pro Tem.

[92-2700 La.App. 4 Cir. 1] JOHN A. DIXON, Jr., Judge Pro Tem.

On October 10, 1991, defendant, Melvin Green, along with Darrell Claiborne and George McClow, was indicted by a grand jury for the first degree murder of Pamela Beth Block on August 19, 1991. ¹ Defendant pleaded not guilty, and, on July 21-23, 1992, he was tried by a twelve-member jury which found him guilty as charged. The jury was unable to reach a decision during the penalty phase. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. Defendant appeals his conviction.

STATEMENT OF THE FACTS

On August 29, 1991, at approximately 9:00 p.m., Pamela Beth Block and her husband walked to her car, parked in front of their home in the 4800 block of Carondelet Street. Three black males, riding bicycles, approached them. One of the three men pulled a gun from his waistband and demanded that the [92-2700 La.App. 4 Cir. 2] Blocks "give it up." Mrs. Block panicked and jumped into her car through the driver's side door. The man with the gun shot through the passenger side window, and the bullet struck Mrs. Block in the neck. The three men rode away. Mrs. Block died of the wound forty-five minutes later.

The police obtained a general description of the suspects from Mr. Block. Pursuant to the description that was broadcast, the police arrested three juveniles, with a fourth juvenile later arrested. The three juveniles were brought to a location on St. Charles Avenue to allow Mr. Block to identify them. Mr Block did not identify them as the perpetrators, but he did note that one of them had a hairstyle similar to that of the one who shot his wife. One of the juveniles gave a statement to the police in which he named another one of the juveniles as the person who shot Mrs. Block. He later recanted the statement and testified that he gave the statement out of fear.

The next day, an unidentified informant called "Crimestoppers" to tell the police that defendant, Darrell Claiborne, and someone he knew as "Duck" (later identified as George McClow) were the ones who murdered Mrs. Block. Using this information, the police obtained search and arrest warrants. At defendant's home, the police seized, among other things, four photographs in which the defendant was depicted holding a .357 magnum. Defendant was arrested on the evening of August 29 at the home of his girlfriend's mother. At that time, he was advised of his Miranda rights.

At police headquarters, defendant signed a waiver of rights form and was verbally informed of his rights. He gave a tape-recorded statement in which he admitted being at the scene of the crime but said that Claiborne had shot Mrs. Block. After the taping of this statement was completed, the police showed defendant the photographs showing him holding a gun. Defendant admitted that the gun was his, and he led the police to a vacant lot at Iberville [92-2700 La.App. 4 Cir. 3] and North Robertson where he had disposed of the gun. The gun, a .357 magnum, was found. Upon returning to the homicide office, defendant gave a second tape-recorded statement in which he admitted shooting Mrs. Block. Prior to giving this statement, defendant was again advised of his rights.

On September 5, Mr. Block was shown three separate photographic lineups which included each of the suspects. Prior to viewing the lineups, Mr. Block stated that he had seen the pictures of defendant and Claiborne in the newspaper. He said that he looked at the pictures briefly and immediately recognized them. He stated he became physically ill when he saw the pictures and did not read the article. He further stated that seeing the pictures in the newspaper did not influence his identification. Mr. Block selected defendant's photograph out of one lineup and Claiborne's photograph out of another. He was unable to select McClow's photograph out of a third lineup, but he did narrow it down to three pictures, including McClow's.

Ballistics testing of the .357 magnum matched a test bullet fired by the gun to that of a bullet recovered from Mrs. Block's body.

LAW AND ANALYSIS

A review of the record reveals one error patent. The trial court sentenced defendant without observing the twenty-four hour delay period after denying defendant's pro se motion for new trial. C.Cr.P. art. 873. Because there is no indication in the record that defendant waived this delay, it is an error patent on the face of the record. In State v. Augustine, 555 So.2d 1331 (La.1990), the Supreme Court held that the trial court's failure to observe the twenty-four hour delay was not harmless error if the defendant challenged his sentence on appeal. In the present case, defendant does not challenge his sentence, and he does not assign as error the trial court's failure to observe the delay. Therefore, the failure to observe the delay is harmless. State v. Collins, [92-2700 La.App. 4 Cir. 4] 584 So.2d 356 (La.App. 4th Cir.1991).

In his first assignment of error, defendant complains that the trial court erred in denying his motion to suppress the confession on two bases. First, he argues that his two statements were not freely and voluntarily given because they were induced by threats. Second, defendant argues that because of his mental retardation and brain dysfunction he could not understand his constitutional rights and therefore knowingly and intelligently waive them.

Because we hold that the trial court erred in denying the motion to suppress the confession based on the second argument, we pretermit discussion of the first basis asserted as to trial court error in denying the motion to suppress the confession, as well as defendant's other assignments of error except one.

Diminished mental or intellectual capacity does not in and of itself vitiate ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. State v. Brooks, 541 So.2d 801 (La.1989); State v. Jackson, 600 So.2d 739 (La.App. 4th Cir.1992). Mental retardation is a factor to consider in deciding whether a person had the capacity to understand the rights explained. State v. Brown, 414 So.2d 689 (La.1982). Much weight should be given to the trial court's findings when the issue is whether the defendant was precluded by his diminished mental condition from understanding his rights and the consequences of waiving those rights. State v. Woods, 553 So.2d 985 (La.App. 4th Cir.1989), writ denied, 575 So.2d 385 (La.1991). Opinions of experts on the question of the waiver of constitutional rights may be helpful but are not binding on the trial court. There is no controlling psychiatric principle. State v. Lefevre, 419 So.2d 862 (La.1982).

The State has the burden of proving beyond a reasonable doubt that a confession was knowingly and intelligently waived. State v. Glover, 343 So.2d [92-2700 La.App. 4 Cir. 5] 118 (La.1977), on rehearing. The critical factor is whether the defendant was able to understand the rights being explained to him. State v. Anderson, 379 So.2d 735, 736 (La.1980).

In support of his claim that he did not knowingly and intelligently waive his rights, at the motion to re-open the suppression hearing defendant presented the testimony of Dr. Mark Zimmerman, qualified as an expert in forensic psychology. He testified that he spent about nine hours testing and interviewing defendant. Dr. Zimmerman administered the following tests on defendant: 1) Benton Visual Retention Test, a test of perceptual motor abilities; 2) screening test for, and the Luria Nebraska Neuropsychological Battery, a test for brain dysfunction; 3) Weschler Adult Intelligent Scale, an intelligence test; 4) Wide Range Achievement Test, a test of academic abilities; 5) Personality Assessment Inventory, an objective personality test; 6) Minnesota Multiphasic Personality Inventory, an objective personality test; 7) Rorschach, a projective personality test; 8) Mouse-Tree-Person Technique, a projective personality test.

Dr. Zimmerman found that defendant had an I.Q. of 65, which put him in the mildly mentally retarded range, or the educable range of retardation. Defendant's mental age is approximately ten years. Although defendant completed the ninth grade and was in the tenth grade when he dropped out of school, his functioning in reading and spelling is below the third grade level and in arithmetic is at the fifth grade level. Dr. Zimmerman also found brain dysfunction considering defendant's education level, with the parts of his brain affected being those associated with academic abilities and his ability to process information--his intellectual abilities.

Dr. Zimmerman reviewed the waiver of rights form signed by defendant and went over it with defendant, and concluded that defendant found the form [92-2700 La.App. 4 Cir. 6] difficult to read and could not adequately explain many of the words on the form such as "privilege" and "waive". Reading the form to defendant at approximately the speed he heard on the taped confession, Dr. Zimmerman found that defendant could not keep up; he could not understand the form. Dr. Zimmerman stated that he thought defendant could be made to understand his Miranda rights, but it would be very difficult for him to understand using the wording on that particular waiver form. Dr. Zimmerman testified:

I don't believe he understood the rights as they were read to him or as I read them to him or as he read them, no.

Dr. Zimmerman's impression was that instead of his rights being something that he had and could...