State v. Cusher

• Decision Date: 22 June 1981
• Docket Number: No. 80-K-2518,80-K-2518
• Citation: 400 So.2d 601
• Parties: STATE of Louisiana v. Victor CUSHER. *
• Court: Louisiana Supreme Court

Page 601

400 So.2d 601

STATE of Louisiana v. Victor CUSHER.

No. 80-K-2518. ^*

Supreme Court of Louisiana.

June 22, 1981.

Lemmon and Marcus, JJ., concurred and assigned reasons.

Blanche, J., concurred and will assign reasons.

Dennis, J., dissented with reasons.

Calogero, J., dissented for the reasons assigned by Dennis, J.

Walker H. Drake, Jr., Chalmette, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Jack Rowley, Dist. Atty., Glenn E. Diaz, Asst. Dist. Atty., for plaintiff-respondent.

WATSON, Justice.

In this habeas corpus application, the issue is whether defendant, Victor Cusher, is entitled to have his guilty pleas set aside because the trial judge did not advise him more than six years ago of the right to confront his accusers. ¹

Victor Cusher had three indictments against him: one for armed robbery and two for aggravated rape. The armed robbery charge was dismissed and he pleaded guilty to two reduced charges of attempted aggravated rape. On November 5, 1974, Cusher received a sentence of ten years at hard labor on one charge and twenty consecutive years on the other charge.

Currently, in every Louisiana felony case, the trial judge is required to articulate the three rights prescribed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971); State ex rel LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

The question is whether, many years later, defendant should be permitted to withdraw his pleas "... and be given another choice between admitting ... guilt and putting the State to its proof." McMann v. Richardson, 397 U.S. 759 at 773, 90 S.Ct. 1441 at 1450, 25 L.Ed.2d 763 at 775 (1970).

If the pleas are set aside and a new trial required, it is probable that the state's case, no matter how strong six years ago, would be impossible of proof. Victims of rape would be unable or unwilling to go through a prosecution after the lapse of six years. Because of the length of time between the pleas and the habeas corpus application, the state is entitled to prove that the pleas by defendant were intelligently and voluntarily made, the fundamental Boykin requirement. McChesney v. Henderson, 482 F.2d 1101 (5 Cir.1973); Brown v. Jernigan, 622 F.2d 914 (5 Cir.1980); Wright v. United States, 624 F.2d 557 (5 Cir.1980); and Pollinzi v. Estelle, 628 F.2d 417 (5th Cir.1980). ²

At the habeas corpus hearing, it was stipulated that Cusher had pled guilty as part of a plea bargain with the state. It was also stipulated that he had been represented by attorneys Nils Douglas and Ronald Nabonne.

Cusher first refused to testify at the hearing, claiming his privilege against self-incrimination. The trial court ordered him to the stand. Cusher then testified he had not understood his rights when they were explained by the judge or when he signed a waiver form. He admitted he "copped out" but said he was told to do so by his attorneys (Tr. 25). He explained the meaning of the phrase:

"A. Copped out means, like say you did it.

"Q. Saying you committed the offense?

"A. Yea, that's what I said. * * * " (Tr. 27)

When the pleas were entered, Cusher was sixteen and had completed the seventh grade. Cusher was aware of the meaning of the word rape and understood that the crime could entail the death penalty. He claimed to have seen his lawyers only six times. He first testified that the only rights he knew he had were counsel and trial by jury. In Angola, he learned about self-incrimination and confrontation of witnesses. However, he then admitted that the judge had told him he "could remain silent" (Tr. 36).

The colloquy between the court and Cusher when he entered his pleas was as follows:

"THE COURT: I requested your attorney to advise you of your rights--Mr. Nabonne--and I'm sure that he has. Is that right?

"MR. CUSHER: Yes.

"THE COURT: You are charged in matter number 28-010 with a crime of aggravated rape, and in matter number 28-011, you are also charged with the crime of aggravated rape. I understand in talking with the District Attorney and your attorney, Mr. Nabonne, that the State is considering attempted aggracated (sic) rape in both of these matters.

"MR. NABONNE: That's correct.

"THE COURT: Now, both of the crimes were committed on the 19th of June, 1973. The mandatory sentence which I must impose in eitherone (sic) if (sic) life imprisonment, upon a plea of guilty, without capital punishment. Upon a plea of attempted aggravated rape the sentence should be imposed is imprisonment at hard labor for not more than 20 years. Now, in your entering a plea, no one can use force or intimidation, coercion, promise, or reward. You understand, if you make these pleas, it will have to be purely voluntary on your part? You understand that?

"MR. CUSHER: (Witness nods head affirmatively).

"THE COURT: You also understand if you desire not to plead guilty that you would have the right to a trial by jury, which jury may even find you guilty as charged or not guilty, or guilty of a lesser crime?

"You have the right to an attorney to represent you, and, if you cannot afford an attorney, the court will be compelled to appoint an attorney for you free of cost. You understand that?

"Mr. CUSHER: (Witness nods head affirmatively.)

"THE COURT: You understand also, if you plead guilty you do not have the right to appeal any defects which may have occurred in your case. I'm not suggesting that there are any defects. But if there are any defects, such as an illegal arrest, an illegal and seizure, an illegal confession, an illegal line-up--the fact that the State will no able to prove the charge when you do plead guilty, you cure any defects that might exist, you understand that?

"MR. CUSHER: Yes, sir.

"THE COURT: By pleading guilty you are talling (sic) the court you have committed the crime of which you are charged and you are the person who did commit such crimes.

"You are ready for sentencing without further delay? You understand that?

"MR. CUSHER: (Witness nods head affirmatively.)" (Tr. 14-17)

One of Cusher's trial attorneys, Ronald Nabonne, signed the following statement:

"I, as an attorney for the defendant, was present during the questioning of defendant with regard to his plea. I have also instructed the defendant of his rights and the consequence of said plea of guilty. I am satisfied that the plea is a voluntary act of the defendant."

Cusher admitted at the post conviction hearing that he also signed a statement, as follows:

"I, as the defendant, have been instructed by the court of the nature of the charge against me and that the act of pleading guilty is a free and voluntary act on my part; that no one can force me to plead guilty; that by pleading guilty I admit that I committed the said crime and am ready for sentencing to the penitentiary. The judge has further instructed me of the consequences of said act of pleading guilty."

The crimes of aggravated rape with which Cusher was charged were committed on June 19, 1973. The grand jury indicted him on July 11, 1973. On September 17, 1973, Cusher was arraigned and pleaded not guilty. His court appointed counsel, Richard Tonry, withdrew and retained counsel, Nils Douglas, appeared with him. There was a pretrial hearing on February 21, 1974. Trial was set for June 4, 1974. On May 10, 1974, Cusher accompanied by co-counsel, Douglas and Nabonne, appeared in court and a motion to recuse the judges was argued and denied by the trial court. Various discovery motions were also considered at that time. On May 29, 1974, Cusher appeared in court with co-counsel Douglas and Nabonne. A third motion to quash and a motion to suppress were filed on his behalf. There was an argument on change of venue. Discovery matters were considered on June 4, 1974. Cusher again appeared in court with both counsel. The trial court denied three motions to quash and an application for change of venue. At this time, all bills of particulars and prayers for oyer were declared satisfied by defense counsel. The trial of Cusher was ordered severed from that of the three other defendants. At this time the three co-defendants were rearraigned and pleaded guilty. On October 28, 1974, Cusher was present in court with counsel Nabonne for pretrial hearing and the court set his rearraignment for November 4, 1974. It was then continued to November 5, 1974, when Cusher entered pleas of guilty to the two charges of attempted aggravated rape.

The trial court, in denying Cusher's application for a writ of habeas corpus, reviewed the multiple pretrial motions that were filed and argued prior to the entry of his guilty pleas and concluded that defendant's rights were meticulously protected throughout the proceedings. The evidence is that Cusher understood the charges against him and knew the meaning of his pleas. There is no allegation that he was coerced into pleading guilty or that he had ineffective counsel. On the contrary, the record indicates that he had zealous counsel and pleaded guilty on their advice. The plea bargain arrangement resulted in a substantially lesser sentence for Cusher than his three co-defendants received. They were all sentenced to life imprisonment. It is significant that Cusher was advised by the trial judge of the maximum penalty which could be imposed on the reduced charges. Cusher's presence at the extensive pretrial hearings should have made him aware of the right of confrontation. In view of the dedication his counsel displayed, it is inconceivable that they did not inform him of this right. The record indicates that Cusher, despite his current avowal of ignorance, must have understood "the connotation and consequences" of his guilty pleas. State v. LaFleur, 391 So.2d 445 (La., 1980).

The trial court correctly determined that Cusher's pleas were intelligently and voluntarily made. The denial of Cusher's application for a writ of habeas corpus is...