State v. Allen

• Decision Date: 05 September 1996
• Citation: State v. Allen, 682 So.2d 713 (La. 1996)
• Parties: 95-1754 La
• Court: Louisiana Supreme Court

Page 713

682 So.2d 713

95-1754 La. 9/5/96

STATE of Louisiana v.Willard ALLEN.

No. 95-KA-1754.

Supreme Court of Louisiana.

Sept. 5, 1996.

Rehearing Denied Oct. 4, 1996.

James Earl Calhoun, Natchitoches, for Applicant.

Richard P. Ieyoub, Attorney General, Stephen M. Henry, District Attorney, Van Hardin Kyzar, Billy Joseph Harrington, Natchitoches, for Respondent.

[95-1754 La. 1]KIMBALL, Justice^*

A Natchitoches Parish grand jury indicted Willard Allen for the first degree murder of Herman Ferguson, in violation of LSA-R.S. 14:30.After a trial by jury, the defendant was found guilty as charged and unanimously sentenced to death based upon the jury's findings of two aggravating circumstances.The trial judge sentenced the defendant to death in accordance with the recommendation of the jury.This is the direct appeal of his conviction and sentence.

On appeal, Allen relies on twelve assignments of error.We find no merit in any of the assignments and affirm both the conviction and sentence.

FACTS

The following facts were adduced in the guilt phase of the defendant's trial.On September 7, 1993, police responded to a call at the Cherokee Club (Club) in Campti, Louisiana.Upon arrival at the club, police discovered the body of Herman Ferguson, who had been shot six times with a .380 caliber weapon.His body was discovered by Kathy Jacobffy(club bartender) and Mary Messick(club co-owner).There was also evidence that indicated money had been stolen from the club's safe.

The investigating officer, Deputy Wade Ebert, learned the defendant, a frequent patron and former part-time employee of the club was at the club with the victim when it closed in the early morning hours of September 7.It was also learned during this initial investigation at the scene that the defendant was known to own a .380 caliber weapon, the same type of weapon [95-1754 La. 2] used in the murder.Based upon this information, Deputy Ebert requested the defendant be located for questioning.

Around 10 p.m. on September 7, Deputy Patrick Custis spotted defendant's white car and stopped him in a parking lot located next door to the Natchitoches Parish Sheriff's Sub-Station in Campti.Deputy Custis radioed Deputy Ebert who drove over from Natchitoches to question the defendant.Upon arriving at the scene, Deputy Ebert asked the defendant if he owned a .380 caliber weapon.The defendant responded that he did, stating that the weapon was in the trunk of his car.The defendant was advised of his Miranda rights and consented to the search of his vehicle by signing a consent form.The search yielded a .380 caliber semi-automatic handgun, some spent .380 caliber shells, live .380 cartridges, $625.00 in cash and a metal money box commonly used for carrying quarters.These items were seized and the defendant accompanied the officers next door to the substation for further questioning.The defendant told the officers he had loaned the .380 caliber handgun to Gabriel Clark on September 6.The defendant was then released.

On September 8, Deputy Ebert spoke with Gabriel Clark about the .380 caliber handgun and Clark denied borrowing the gun from the defendant.Deputies then picked up the defendant and brought him to the Natchitoches Sheriff's station for further questioning.At the station, defendant was advised of his rights and signed a waiver of Miranda rights form.The defendant then confessed to the robbery and murder and was arrested.

The defendant's confession, in its entirety, was admitted at trial.According to his confession, the defendant and Gabriel Clark had discussed robbing the Cherokee Club for about two weeks prior to the actual robbery and murder.The defendant stated that on Monday, September 6, 1993, he and Clark decided it was a good night to rob the club.Around 11 p.m. that evening, the defendant went to the club as it was closing and only Sandra Hicks(a waitress) and the victim were there.The defendant left and again discussed robbing the club with Clark.According to the defendant's confession, he and Clark drove out to the club in the defendant's car.Clark dropped the defendant off a short distance from the club and waited for him at a nearby gas station.The defendant then went to the victim's trailer, which was located next door to the club, and told the victim his car had quit.The victim gave the keys to his truck to the defendant and defendant drove the victim's truck to the gas station where Clark was waiting.[95-1754 La. 3]The defendant left his car at the gas station and used the victim's truck to drive Clark to his (Clark's)mother's house.According to the defendant, he and Clark were going to meet back at the club to rob it.However, Clark denied any direct involvement in the robbery and murder and was not present at the club when the victim was murdered.¹

The defendant then returned to the victim's trailer.Upon arriving at the trailer, defendant told the victim that defendant's car was fixed and that he needed a ride to pick up his car.The victim gave defendant a ride to the place defendant claimed his car was located.After the victim and defendant were unable to locate defendant's car, they returned to the victim's trailer.Once they were back at the trailer, the defendant told the victim he needed the combination to the club's safe.The victim inquired as to what was going on and the defendant pulled a gun on him.The victim then gave the defendant the combination; however, the defendant could not remember it.It was decided that the victim would open the safe himself.The defendant and the victim then walked next door to the club.According to the defendant, the victim opened the safe and then attacked the defendant.The defendant claims the gun discharged while he was trying to fend off the victim's attack.After the gun discharged, defendant removed the money from the safe and fled the club.

James Calhoun was appointed by the trial court as lead counsel for the defendant.On September 29, 1993, a grand jury indicted Willard Allen for first degree murder.Allen was arraigned on October 15, 1993, at which time he entered a not guilty plea.Several pre-trial motions were filed, including a Motion to Suppress and a Motion for Funds for a psychiatrist and private investigator.The Motion to Suppress was denied but the Motions for funds for a psychiatrist and private investigator were granted.After several continuances the case went to trial on October 11, 1994.

At trial, the coroner testified the victim had been shot six times.The first bullet, which inflicted the fatal wound, went through the chest from front to back.Defendant was also shot several times in the abdominal area, in the arm and in the back of the head.

The jury found the defendant guilty of first degree murder and determined he should be sentenced to death based upon the presence of two aggravating circumstances: (1) the [95-1754 La. 4] perpetrator was engaged in the commission of an armed robbery (La.C.Cr.P. art 905.4(A)(1)); and (2) the offense was committed in an especially heinous, atrocious, or cruel manner (La.C.Cr.P. art. 905.4(A)(7)).The prosecutor made no opening statement in the penalty phase of the trial; however, he did introduce by reference all of the trial testimony and did offer into evidence a photograph of the victim with his daughter.

The defendant was formerly sentenced to death by lethal injection on October 17, 1994.After sentencing, the defendant filed a motion for a new trial based upon evidence that the trial judge violated the rule of sequestration by making improper contact with the members of the jury.On October 26, 1994, a hearing was held on this matter and the defendant's motion was denied.On October 28, 1994, the trial court resentenced defendant to death by lethal injection.This direct appeal followed.

PRETRIAL ISSUES

Assignment of Error No. 1

The defendant contends the trial judge erred in failing to suppress his confession and all physical evidence obtained as the result of the search and seizure of the defendant and his car.²According to defendant, the initial "traffic stop" by Deputy Custis was an illegal arrest.Thus, defendant argues his consent to search his car was tainted by that illegal arrest.Defendant also maintains that his confession was a direct fruit of the illegal arrest ("traffic stop") and therefore was also tainted.

La.C.Cr.P. art. 215.1 allows a law enforcement officer to stop a person in a public place whom he reasonably suspects has committed an offense and demand his name, address, and an explanation of his actions.This article is in accordance with the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).The validity of an investigatory stop depends on whether the officer has adequate articulable knowledge of particular facts, sufficient to warrant infringement upon the individual's constitutional right to be left alone.State v. Neyrey, 383 So.2d 1222, 1223-24(La.1979).In determining if this [95-1754 La. 5] adequate articulable knowledge exists, courts must consider the totality of the circumstances and whether the detaining officers have a particularized and objective basis for suspecting that the individual has engaged in criminal activity.United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621(1981).

The facts of this case clearly show there was reasonable suspicion to make the initial investigatory stop of the defendant in the parking lot located next to the Campti Sheriff's Substation.A murder had occurred in the area and the police had information linking the defendant to the crime.The defendant was the last person seen with the victim and was known to own the same type of gun used in the murder.In a similar murder case, State v. Davis, 407 So.2d 666, 669(La.1981), this court noted there was reasonable suspicion to stop the defendant because he resided with the victims and...