State v. Gilliam
| Decision Date | 15 December 1999 |
| Docket Number | No. 98-KA-1320.,98-KA-1320. |
| Citation | 748 So.2d 622 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | STATE of Louisiana v. George GILLIAM. |
Harry F. Connick, District Attorney of Orleans Parish, John Jerry Glas, Assistant District Attorney, Cate L. Bartholomew, Assistant District Attorney, New Orleans, LA, Counsel for Plaintiff.
R. Neal Walker, Louisiana Crisis Assistance Center, New Orleans, LA, Counsel for Defendant.
Court composed of Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY and Judge ROBERT A. KATZ.
Appellant, George Gilliam, appeals his conviction for second degree murder, a violation of LSA-R.S.14:30.1. He assigns several errors, principally among them the introduction of two incriminating statements he made after detention by the police and/or while in prison awaiting trial. Gilliam asserts that without the erroneous admission of these statements, he would not have been convicted and now be compelled to serve a life sentence without probation, suspension or parole.
Having found the errors below to have been harmless, we affirm Gilliam's conviction and sentence.
It is important to understand the sequence of events in this case, especially as it pertains to the chronological history of the defendant's case. The defendant was 16 years old at the time of his arrest. He and his brother, Weldon Williams, a former New Orleans police officer, were charged by grand jury indictment with the crime of first degree murder while in the perpetration or attempted perpetration of second degree kidnapping, and/or with the intent to kill or inflict great bodily harm on more than one person. Both Gilliam and Williams were represented by attorneys of the Orleans Indigent Defender Program (O.I.D.P.). The court on 21 June 1994 appointed Jeffrey Smith, Esq., of the O.I.D.P. to represent Gilliam. Clyde Merritt, Esq., of the O.I.D.P. was appointed to represent Weldon Williams on 28 June 1994. On 7 July 1994 the trial court relieved O.I.D.P. of Gilliam's representation. R. Neal Walker, Esq., was appointed by letter of 11 July 1994 to represent Gilliam and Walker signed the record on 20 July 1994. Gilliam's attorney filed numerous motions, among them a motion alleging that Gilliam could not be subjected to the death penalty because of his age. On 24 June 1996 the entire case was transferred to the Honorable Charles Ward, Judge ad hoc, for hearing on motions and trial. On 5 August 1996 the prosecution announced that it would try Weldon Williams first.1 On 15 August 1996 the bill of indictment was amended to charge Gilliam with second degree murder. The first trial of Williams resulted in a mistrial. In Williams' second trial on 9 March 1997, Williams was convicted of first degree murder, without capital punishment. In a jury trial on 3, 4, 5, and 6 November 1997, a 12 person jury found Gilliam guilty as charged. Gilliam's motion for a new trial was denied, and Gilliam was sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension of sentence.
Larry Montgomery, a security guard at Dixon Welding, testified that on 23 April 1994, at 1:00 a.m., he was making the rounds of the isolated facility. He saw a white car with its headlights on, parked near one of the gates. He saw two men searching with flashlights, one of whom he thought was white. He spoke to them briefly. Then they got into the car and backed away quickly. He later heard loud noises, noticed that a door to a trailer had been pried open, and called police. He saw a young black male, who had been shot, inside the trailer.
Matthew Morgan of the Plaquemines Parish Sheriff's Office answered the call because the site was on the parish line. He spoke with Montgomery and proceeded with other deputies to the trailer where Willard Storey, from inside the trailer, said he and his friend had been shot. Morgan found the body of Mitchell Caesar in the grass of a nearby field, and notified New Orleans police.
Captain Charles Bowles of the Plaquemines Parish Sheriff's Office also answered the call. He said that Storey was on the floor of the trailer and told him that he had been shot by a policeman and the policeman's brother.
Officer Peter Curdrado arrived at the scene and collected casings.
Officer Gary Marchese, NOPD, arrived on the scene and spoke to Montgomery and Bowles. From the investigation on the scene, the officers could tell that two weapons had been used: a nine millimeter handgun and a thirty-eight caliber automatic weapon. Marchese went to JoEllen Smith Hospital and then to Charity Hospital where Storey had been taken. Marchese took a taped statement from Storey. He learned that George Gilliam, whom Storey knew, was a suspect, along with a New Orleans Police officer who was Gilliam's brother. He prepared a photographic lineup, and Storey chose a picture of Gilliam's brother, Weldon Williams. Marchese prepared an arrest warrant for Williams. The white car, belonging to Weldon Williams, was found at a body shop. Search warrants were executed on the car and Williams' apartment. Marchese recovered a nine millimeter handgun from Williams at the time of his arrest. A search of Williams residence revealed elements of Williams' police uniform, nine millimeter Black Talon ammunition, and nine millimeter ammunition. Marchese said that a copper jacketed lead pellet, two Winchester thirty-eight super casings and two Winchester nine millimeter casings were recovered at the scene. Detective Carlton Lawless went to the scene during the daytime of 26 April 1994, and found three spent nine millimeter Winchester casings, one spent F-C nine millimeter casing, a spent copper-jacketed lead pellet, and a set of keys. In all, six nine millimeter casings were recovered, and two thirty eight caliber casings. Officer Peter Curdrado arrived at the scene and collected casings.
Dr. William P. Newman, pathologist, testified that the victim Mitchell Caesar had been shot six times. Four bullets were recovered from the body. There was no evidence of alcohol or drugs.
Officer John Treadaway, a firearms examiner, testified that the nine millimeter bullets were fired from one gun, and the thirty-eight caliber bullets from another. The thirty-eight caliber bullets did not match the rifling characteristics of bullets fired from the gun recovered from Williams; however, the nine millimeter bullets did match.
Captain Steven Nicholas took the stand and said that he took a statement from Gilliam on 26 April 1994. On that day, Gilliam turned himself in, accompanied by his mother, at approximately 8:39 a.m. Also present during the taking of the statement were Lieutenant Italiano, Sergeant Randolph of the Juvenile Division, and the defendant's mother, Irma Gilliam. The tape was played for the jury. Nicholas testified that the defendant's Miranda rights were protected, and that the defendant and his mother were not threatened.
Italiano testified that the defendant, Officer Randolph and Irma Gilliam had signed a Waiver of Rights of Arrestee Form. He said neither the defendant nor his mother were threatened, and that the defendant was advised before he gave the statement that he would be arrested for murder. The recorded statement was begun at 10:31 a.m. When Gilliam and his mother were asked whether there was anything the police could get either one of them before the statement began, Gilliam answered:
A. I can get a lawyer now ?
Q: I'm sorry?
A. I can get a lawyer now?
Q. You can get a lawyer if you want a lawyer. Do you want a lawyer?
A. Yea, can I get one now?
Q. Do you want a lawyer now? o.k.
A. Inaudible.
According to Captain Nicholas the interrogation was stopped at 10:34 a.m. Captain Nicholas further testified that Gilliam and his mother were left alone, presumably to discuss the next step in the interrogation. Meanwhile, Captain Nicholas called the District Attorney's office for guidance, since the accused had requested counsel. The statement reflects that Captain Nicholas noted at 10:38 a.m., four minutes after the cessation of the statement:
THE TIME IS NOW 10:38 AM, SAME DATE, APRIL 26. WE CONCLUDED THE STATEMENT AFTER A REQUEST BY THE DEFENDANT FOR AN ATTORNEY. AFTER WE CONCLUDED THE STATEMENT, THE DEFENDANT REQUESTED TO GO ON WITH THE INTERVIEW NOT REALIZING THAT WE DIDN'T HAVE ANY ATTORNEY PRESENT IN THE OFFICE (emphasis supplied).
Q. Is it your wish to give us this statement without an attorney present, George?
A. Yes
Q. You do understand that you do not have to give us this statement?
A. Yes
Q. Mrs. Gilliam, do you understand that your son does not have to give us this statement as we do not have an attorney available. We can stop the statement right now. Nothing will change. We can either go on with the statement as he is going now, as he wants to, or he can stop.
A. We want to go with the statement.
Gilliam then gave a statement incriminating his brother and himself, admitting that he had forcibly picked up Caesar and Storey to take them to a deserted field because of an alleged burglary by Storey of Gilliam's apartment. He further stated to the police that he had a gun in his waistband, drove with Williams in a white Cougar, and was present when Mitchell Caesar was executed. He also admitted that he and his brother looked with flashlights to find the second victim, Willard Storey. According to the statement, Gilliam fired into the ground, while Williams made Caesar get on his knees and shot him eleven or twelve times. The statement was concluded at 11:08 a.m.
Detective John Ronquillo said that he went with the defendant to two locations, including the home of Gail Bass, to search for a weapon, an automatic "super thirty-eight", but he found no gun.
Cicero Patterson, a former investigator for the O.I.D.P, testified that he went to the prison where the defendant was being held...
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