State v. Harper

• Decision Date: 04 April 1983
• Docket Number: 82-KA-0763,Nos. 82-KA-0764,s. 82-KA-0764
• Citation: State v. Harper, 430 So.2d 627 (La. 1983)
• Parties: STATE of Louisiana v. Henry HARPER. (Two cases)
• Court: Louisiana Supreme Court

Page 627

430 So.2d 627

STATE of Louisiana v.Henry HARPER. (Two cases)

Nos. 82-KA-0764, 82-KA-0763.

Supreme Court of Louisiana.

April 4, 1983.

Dissenting Opinion May 9, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.

Robert E. Shadoin, Shadoin & Bleich, R. Wayne Smith, Walker, Holstad & Smith, Ruston, for defendant-appellant.

CALOGERO, Justice.

DefendantHenry J. Harper was charged by grand jury indictment filed May 12, 1981, with two counts of aggravated rape, two counts of attempted first degree murder, one count of armed robbery, one count of aggravated kidnapping, one count of aggravated burglary, and one count of attempted aggravated rape.The charges arose from a series of events which took place in a single incident involving the defendant's illegal entry into a trailer residence and offenses against Pam Spinks and her sisterMartha Spinks.

On May 15, 1981, Harper pled not guilty and not guilty by reason of insanity to all charges.The Sanity Commission report filed on October 2, 1981, concluded that Harper was legally sane and capable of assisting in his defense.On November 25, 1981, a hearing on a Motion to Suppress was held and the matter taken under advisement by the court.At that time, the defendant withdrew his plea of not guilty by reason of insanity and changed it to not guilty to each charge.On November 30, 1981, defendant's trial for the attempted first degree murder of Martha Spinks commenced (our Docket No. 81-KA-0764).A jury was selected from the "Special Petit Jury Venire."¹The trial continued on December 1 and 2, 1981, with the jury finding Harper guilty as charged on the afternoon of December 2.

At approximately 2:50 p.m. on December 2, 1981, and immediately after the jury returned its verdict of guilty for the attempted first degree murder of Martha Spinks, Harper's trial for the attempted first degree murder of Pam Spinks began.(Ourdocket no. 82-KA-0763).Harper's pre-trial motions for a continuance, for a change of venue, and to quash portions of the indictment including the instant charge were denied, or judgment deferred.Jury selection then began from members of the "Special Petit Jury Venire" who had not served in the prior trial of Harper and who had not been excused.Voir dire was completed on December 3, 1981.At the conclusion of the second trial on December 4, 1981, the jury found Harper guilty as charged by an 11-1 vote.

On January 29, 1982, Harper was sentenced to fifty years at hard labor for the attempted first degree murder of Martha Spinks.He was also sentenced to a consecutive fifty year term for the attempted first degree murder of Pam Spinks.Harper now appeals both of his convictions.

In the appeal of his conviction and sentence for the attempted murder of Martha Spinks(No. 82-KA-0764), the defendant argues that the trial court erred in denying his motion to suppress the several taped statements that constitute his confession, and that the trial court erred in denying his motion for a mistrial made during testimony of a state witness.Relative to his conviction and sentence for the attempted first degree murder of Pam Spinks(No. 82-KA-0763), the defendant argues as in his other appeal (No. 82-KA-0764) that the trial court erred in denying his motion to suppress his taped statements made to police officers.Additionally in this latter case, the defendant argues that the trial court erred in denying his motion to quash the indictment based on double jeopardy grounds, ² in denying his motion for a continuance and motion for a change of venue, and in denying defense challenges for cause of prospective jurors who testified that they had read or heard of the outcome and verdict of the first trial.

We find no merit in his two assignments relative to the conviction and sentence for the attempted first degree murder of Martha Spinks and affirm them accordingly (No. 82-KA-0764).However, because we find merit to his contention in No. 82-KA-0763 that his motion for a continuance or for a change of venue should have been granted in the second trial, which followed closely on the heels of his conviction in the first trial, we reverse that conviction and sentence.

The facts involved in the two cases are as follows.

To procure some stereo equipment, allegedly, the then twenty-two year old Harper entered the empty Spinks trailer in the early evening of April 5, 1981, by breaking in a bedroom window.Soon thereafter, Pam and Martha Spinks returned, entered the trailer and began preparing dinner, or going about other domestic chores.Harper hid under the bed in the bedroom at first.Then he entered the kitchen, grabbed Pam by the hair as she passed and dragged her toward the bedroom.As he passed the bathroom he grabbed Martha as well, who was dressed only in her underwear, preparing to take a bath.Once in the bedroom, Harper tied Pam with a telephone cord.Then he took Martha into the living room where he tried to force her upon the couch and remove her underwear.A struggle followed during which Martha was stabbed, was beaten on the head with a Coke bottle, and had her head forced under water in the bath tub as Harper tried to silence her screaming.At some point in the struggle, Candy Spinks returned to the trailer with her boyfriend.At their approach, Harper released Martha and ran to the bedroom where Pam Spinks was bound.He stabbed her twice in the back, broke out a window in the bedroom, and fled.He was seen running from the rear of the trailer and into the adjacent wooded area.

A short time later on the campus of a nearby university, a vehicle was stopped which was occupied by an individual sought by the police on other charges, and a passenger who fit the description provided police by the Spinks' sisters.Harper, the passenger in the vehicle, wore clothes similar to those described by the Spinks' sisters, had fresh blood on his clothing, a bloody pocket knife in his pants pocket, and a fresh cut on his hand.Harper's fingerprints matched prints found on the exterior and interior of the Spinks' trailer.

At the time of Harper's arrest, one interview took place between the defendant and two Ruston police officers, during which Harper indicated that he wanted to talk to an attorney before giving a statement relative to the events of the evening of April 5, 1981.The interview was terminated shortly after defendant's request to talk to an attorney.

On the morning of April 7, 1981, investigating officers received word from City Jailer Fred Cowan that Harper wanted to speak to them.Harper was brought to the investigators' office and interviewed.Later that morning, he appeared in court for appointment of counsel.In the afternoon, before there had been any personal contact between defendant and his appointed counsel, defendant again requested an interview with the investigating officers.Additional statements were taken.In the morning statement, Harper admitted the burglary of the Spinks residence, but stated that when the girls returned home he hid under a bed and did not remember anything thereafter until he awoke in a wooded area, bleeding from his hand.In the later statements, Harper fully admitted the events at the Spinks residence.All were recorded on audiotape, and the statement taken on the morning of April 7, 1981, was videotaped as well.At the two trials, these recordings were edited to remove minor references to matters to which defense counsel objected.The videotape was played for the jury with the sound off, and the edited audio recording was placed on a separate machine at the same time during presentation of that particular statement.

Assignment of Error No. 1

Motion to Suppress(82-KA-0764, 82-KA-0763)

By this assignment in both cases Harper contends that the trial court erred in denying his Motion to Suppress his oral statements.Defendant claims that during his first statement on April 5, 1981, he asserted his right to counsel, after which the interrogating officers continued to question him.This statement was suppressed in part by the trial judge out of an "abundance of caution", beginning with Harper's response that he was not willing to answer questions at that time without a lawyer present.³

The other statements taken from Harper on April 7, 1981, were all attacked on the grounds that they were taken in violation of Harper's expressed desire to speak with counsel, and that they resulted from coercive tactics on the part of the police.We find that evidence taken at the hearing on the motion to suppress rebuts these allegations.

Harper alleged at the suppression hearing that between his arrest and his statements on April 7, Officers Kay and Kavanaugh came to see him in the jail several times at night, yelled at him and promised that things would go easier on him if he confessed.Early the next day the officers allegedly showed him pictures of the crime scene and interrogated him further.Harper stated that when he again requested a lawyer during the interrogation, he was struck on the head by Kay.He was also allegedly threatened with execution, or a long sentence, if he did not give a statement.

Roland Kay, inspector with the Ruston Police Department, testified that Harper was advised of his Miranda rights at the time of his arrest at 8:25 p.m. on April 5, 1981.At that time Harper indicated clearly that he was not willing to answer questions without a lawyer present.Despite this, Kay asked Harper a few more questions, received no inculpatory answers and then ended the interview.According to Kay, Harper then sent word on April 7th through his jailer that he wanted to talk.Between April 5th and April 7th, Officer Kay knew of no one's making any threats or promises to Harper.Kay had passed Harper's cell but did not interrogate him during the day and a half between statements.

James Kavanaugh...