State v. Glover

• Decision Date: 23 February 1976
• Docket Number: 56894,Nos. 56812,s. 56812
• Citation: 343 So.2d 118
• Parties: STATE of Louisiana v. Richard Norman GLOVER.
• Court: Louisiana Supreme Court

Page 118

343 So.2d 118

STATE of Louisiana v. Richard Norman GLOVER.

Nos. 56812, 56894.

Supreme Court of Louisiana.

Feb. 23, 1976.

On Rehearing Jan. 24, 1977.

Rehearings Denied March 2, 1977 ^*

Robert Glass, Frederick J. Gisevius, Jr., George W. Healy, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Richard N. Glover.

William J. Guste, Jr., Atty.Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for the State.

MARCUS, Justice.

Richard Norman Glover was indicted by the Orleans Parish Grand Jury on June 29, 1972 for murder in violation of La.R.S. 14:30. ¹ Prior to trial, defendant filed a motion to suppress three inculpatory statements that he made during the period of June 13-14, 1972. The trial judge suppressed two written confessions made to the police, but refused to suppress an oral inculpatory statement defendant made to his common-law wife that the police electronically intercepted. We granted the application of both the state and defendant for certiorari. 321 So.2d 361 (La.1975).

FACTS

On December 24, 1971, Cynthia LeBouef was raped and murdered in New Orleans. Approximately six months later, in June of 1972, the St. Bernard Parish Sheriff's office received information from several confidential informants indicating that defendant had committed this crime. At that point in time, defendant's common-law wife, Linda Bently, contacted Captain Louis Reichert of the St. Bernard Parish Detective's office. She told him that she had left defendant and had fled into Plaquemines Parish in fear for her life, and that she suspected defendant of having raped and murdered Cynthia LeBouef. She agreed to have a wireless transmitter, or microphone, attached to her person so that the police could monitor defendant's statements. On June 13, 1972, at about 6:00 p.m. she met defendant at a parking lot in St. Bernard Parish. In a car nearby, eavesdropping on the conversation between Glover and his common-law wife by means of an electronic device, were Deputy Sheriff George Bethea and Officer Louis Reichert of St. Bernard Parish, and Patrolman Preston Reuter of the New Orleans Police Department. During the conversation, defendant asked Linda Bently why she would not return to him. She replied, "Well, Richard, the reason why I haven't returned to you is that I heard that you killed that little white girl, killed and raped that little white girl," whereupon Glover said, "No, I didn't kill her. Tater killed her, but I was there." This inculpatory statement having confirmed their suspicion that defendant was involved in the murder of Cynthia LeBouef, the police officers immediately took defendant into custody, orally advised him of his Miranda rights, and transported him to the St. Bernard Parish courthouse. At the sheriff's office, defendant was again advised of his Miranda rights about 7:00 p.m. After signing a waiver-of-rights form, he then executed a typewritten confession in which he admitted that he was present when the crime was committed, but insisted that another person (whom he called "Tater") had actually raped and murdered the victim. At about 9:00 p.m., defendant was taken from the courthouse to the Orleans Parish coroner's office. En route, he spontaneously pointed out to the police the scene of the crime. After he was examined by the coroner, he was turned over to the Orleans Parish authorities at Central Lockup. The next day (June 14) at about 5:00 p.m., after being fully advised of his rights, he made a second typewritten confession, in which he admitted that he himself had perpetrated the offenses.

At the conclusion of the trial of the motion to suppress held on May 30, 1975, the trial judge ruled that defendant was insane at the time he made these inculpatory statements and suppressed the two written confessions obtained while defendant was under police custody. On the other hand, he held that the oral inculpatory statement made to his common-law wife was admissible because it was not made while defendant was in police custody, stating in his reasons for judgment that the jury could determine what "weight and credibility" they wished to give to this statement.

I.

Before a confession or inculpatory statement can be introduced in evidence, it must be affirmatively shown by the state that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.R.S. 15:451. See also La. Const. art. 1, § 11 (1921), in effect at the time of the alleged offense; La.Code Crim.P. art. 703(C) (1966). The admissibility of a confession or an inculpatory statement is a question of law for the trial judge to determine; the weight to be given it is a question for the jury. State v. Sears, 298 So.2d 814 (La.1974); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); State v. Kennedy, 232 La. 755, 95 So.2d 301 (1957). Therefore, only after the trial judge has decided that the state has satisfied its burden of proving that a confession or inculpatory statement was free and voluntary may it be introduced in evidence. ²

The trial judge felt that defendant's inculpatory statement to his common-law wife, because it was precustodial, was not subject to the requirement that it be found free and voluntary under the standards set forth above before its admission in evidence. In this respect, we believe he erred. The provisions of Louisiana law establishing that only free and voluntary confessions and inculpatory statements are admissible draw no distinction between those made before and after the accused is taken into police custody. La. Const. art. 1, § 11 (1921); La.R.S. 15:451; La.Code Crim.P. art. 703(C) (1966). We have defined an "inculpatory statement" as one that refers to the out-of-court admission of incriminating facts made by the accused after the crime has been committed. It relates to past events. State v. Fink, 255 La. 385, 231 So.2d 360 (1970). Defendant's inculpatory statement to his common-law wife, made almost six months after the crime with which he is charged occurred, incontestably falls within this definition. ³ The state is not required, it is true, to show when it seeks to introduce a noncustodial inculpatory statement in evidence that the accused had been advised of his Miranda rights before it was made. State v. Roach, 322 So.2d 222 (La.1975). It still has the duty, however, of affirmatively showing that a noncustodial confession or inculpatory statement is free and voluntary. Therefore, the trial judge erred in ruling that it was unnecessary for the prosecution to lay this foundation and for him to rule thereon prior to the introduction of defendant's inculpatory statement to his common-law wife in evidence.

II.

While stating that he was uncertain whether the state or the defendant has the burden of proving insanity at the trial of a motion to suppress, the trial judge concluded that defendant had in fact proven his insanity at the time he made the inculpatory statement and confessions by a preponderance of the evidence. We disagree with this finding.

While La.R.S. 15:451 and article 703(C) of the Code of Criminal Procedure impose the burden upon the state of proving that a confession or inculpatory statement is free and voluntary, La.R.S. 15:432 provides that an evidentiary legal presumption exists that a defendant is sane and responsible for his actions. La.R.S. 15:432 further provides that a legal presumption relieves him in whose favor it exists, in this case the presumption of sanity in favor of the state, from the necessity of any proof. Reading these provisions in pari materia, we believe that, in order to rebut the presumption of sanity, the accused has the burden of proving by a preponderance of the evidence his insanity at the time he made a confession or inculpatory statement. See La.Code Crim.P. art. 652 (1966) and Official Revision Comment thereto. ⁴

At the hearing on the motion to suppress, defendant called only one witness, Dr. Kenneth A. Ritter, a psychiatrist. Dr. Ritter was the member of a sanity commission appointed to determine defendant's mental capacity to stand trial. He did not examine defendant until September 14, 1972, at which time he found defendant insane. However, this examination did not take place until three months after defendant made the inculpatory statement and confessions at issue (June 13-14).

Dr. Ritter's testimony at the motion to suppress was equivocal with regard to defendant's mental condition on June 13-14, 1972. He testified that defendant suffered from chronic schizophrenia, and that this psychosis would have been present in June. Yet, he also stated that there are varying degrees of psychosis and that all psychotics are not legally insane. Dr. Ritter admitted on cross-examination that, because schizophrenia is a progressive illness, defendant's psychosis was possibly not as severe in June as in September and could have been present in a lesser degree.

At no point in his testimony did Dr. Ritter express with certainty his professional opinion that defendant's psychosis had developed into what would be characterized as legal insanity by June, 1972. On direct examination, he was questioned regarding an earlier report to the court that he had made with Dr. Gene Usdin, another psychiatrist. In this report, he concluded that defendant was "probably" insane at the time of the commission of the offense in December, 1971. The portion of the report read at the hearing ended with the following sentence: "However, for the purpose of emphasis, we repeat our lack of certainty about this." We feel that the psychiatrist displayed a similar lack of certainty concerning defendant's mental condition in June, 1972. When asked whether he could express a more positive opinion of defendant's mental condition in June, 1972 (a closer point in time to the September psychiatric examination), he replied that he would be on "firmer grounds...