State v. Howard

• Decision Date: 12 February 1982
• Docket Number: No. 81-KA-1541,81-KA-1541
• Citation: State v. Howard, 414 So.2d 1210 (La. 1982)
• Parties: STATE of Louisiana v. Terry Wayne HOWARD.
• Court: Louisiana Supreme Court

Page 1210

414 So.2d 1210

STATE of Louisiana v.Terry Wayne HOWARD.

No. 81-KA-1541.

Supreme Court of Louisiana.

Feb. 12, 1982.

Rehearing Denied March 26, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., L. K. Knapp, Jr., Dist. Atty., Robert R. Bryant, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Scotty G. Rozas, Karen Lee Price, Lake Charles, for defendant-appellant.

FRED W. JONES, Jr., Justice Ad Hoc.^*

Terry Wayne Howard was indicted for aggravated rape (La.R.S. 14:42) and aggravated burglary (La.R.S. 14:60); found guilty by jury of attempted aggravated rape and aggravated burglary; and sentenced to 50 years imprisonment on the attempted aggravated rape conviction and 30 years imprisonment on the aggravated burglary conviction, with the sentences to run concurrently.In this appeal defendant relies upon seven assignments of error.

According to the record, on the night of August 10, 1980 a young white male broke into a dwelling occupied by two elderly women, Mrs. D and Mrs. S, by thrusting his fist through the glass portion of a door and unlocking it.The intruder entered the room where Mrs. S was sleeping, grabbed her and took her into Mrs. D's bedroom.He pushed Mrs. S onto the bed with Mrs. D and, after pulling down Mrs. S's pajamas, attempted to have sexual intercourse with this 86 year old female who was resisting to the full extent of her physical ability.The burglar struck Mrs. D when she attempted to hit him with her cane.

Following his assault upon Mrs. S, the assailant took Mrs. D's money and went back into Mrs. S's bedroom to get her cash.After threatening the women with death if they called the police, the burglar departed the premises through the front door.The women immediately notified the police of the crimes.

Defendant was subsequently apprehended, gave an inculpatory statement to the police, and was charged with the offenses in question.Mrs. S was unable to identify defendant as her assailant, explaining that she never got a good look at him.However, at the trial on the merits Mrs. D pointed defendant out as the burglar of her residence.

Assignments of Error Nos. 1 & 2

Defendant complains that the trial judge erred in ordering his arraignment on the date set for trial and in denying his motion for a continuance based upon this conjunction of arraignment and trial.

As explained by the trial judge's per curiam addressing the question, because a sanity commission was requested and appointed when defendant first appeared before a judge and because a similar indictment was pending, formal arraignment of defendant before his trial date was overlooked.This fact was noted and called to the attention of defendant, all counsel and the trial judge only after the case was called for trial and requests for excusal by members of the jury venire were being considered.

Thereupon, defendant was called for arraignment, entered a plea of not guilty and declined to waive trial by jury.Defendant's motion for a continuance of his trial, based upon the argument that a defendant should not be arraigned and tried on the same day, was denied.Jury selection then proceeded.

If defendant had never been arraigned and entered upon trial without objection to this defect, he would be deemed to have waived his right to arraignment.La.C.Cr.P. Art. 555.Consequently, the mere fact that defendant was arraigned and his trial began immediately thereafter is not per se prejudicial.Whether this constituted grounds for a continuance is another matter.There is, however, nothing in the record indicating that defendant was hampered in any way in the preparation for trial by the lack of time between arraignment and trial.Therefore, we cannot say that the trial judge abused his discretion in denying the motion for continuance.

These assignments lack merit.

Assignment of Error No. 5

Defendant contends his confession was erroneously admitted into evidence by the trial court; that, rather than being free and voluntary, the inculpatory statement resulted from deputy sheriffs' pressures and promises and defendant's emotional instability.

At the hearing on the motion to suppress defendant's confession, it was established that on August 29, 1980, defendant was arrested and brought to the Calcasieu Parish jail on a rape charge unrelated to this case.At approximately 9:30 P.M. on August 30, 1980, Deputy Laudumiey, an investigator with the sex crimes division of the Calcasieu Parish Sheriff's office, approached the incarcerated defendant to request a blood sample.She advised defendant of his constitutional rights and questioned him briefly, but defendant denied any involvement in the crime at issue.

After defendant returned from giving the blood sample at the hospital, Laudumiey got him out of jail (a little after midnight on August 31, 1980) and took him for questioning in the sheriff's office.This interrogation continued for 15 or 20 minutes.Defendant again denied any responsibility for the rape under investigation by that deputy.

On September 2, 1980, Deputy Delouche informed Deputy Laudumiey that he was acquainted with the defendant and, since Laudumiey was making little progress in her interrogations, offered to question defendant.When Laudumiey accepted the offer of assistance, Delouche brought defendant from jail to the sheriff's office.Prior to questioning defendant, Delouche advised him of his Miranda rights in the presence of Deputy Fryor.Defendant signed a form indicating that he understood those rights and desired to waive them.When the defendant again denied any responsibility for the rape, Delouche replied that he did not believe defendant and that defendant would feel better if he told the whole story and got the matter off his conscience.Defendant then confessed committing the rape for which he was under arrest and also the crimes in this case.After interrogating defendant for about 20 minutes, Delouche turned him over to Deputies Laudumiey and Miller.

Laudumiey and Miller also advised defendant of his Miranda rights and defendant executed the standard waiver form.Defendant confessed to these officers his commission of the crimes in question.The detailed statement was recorded, transcribed and signed by defendant.This final interrogation lasted about two hours.

In order for an inculpatory statement to be admissible in evidence against an accused at trial, the state must prove beyond a reasonable doubt that the statement was given freely and voluntarily and was not the product of either pressure or promises.State v. Campuzano, 404 So.2d 1217(La.1981).Once the trial judge determines the state has discharged its burden, his conclusions on the credibility and weight of the testimony will not be overturned as long as they are supported by the evidence.State v. Haynie, 395 So.2d 669(La.1981).

The defendant testified in this case that Deputy Delouche offered to talk to the district attorney and to help him in any way he could.On the other hand, all of the officers present when defendant confessed denied making promises to induce the confession.In ruling that the confession was free and voluntary, the trial judge obviously disbelieved it was the result of promises alluded to by defendant.Since the trial court's determination was amply supported by evidence in the record, we cannot say this was an incorrect holding.

Defendant further argues, impliedly, that the voluntariness of the confession was negated by his emotional instability--for which, along with a drug abuse problem, he had previously been institutionalized.

Although the defendant is not required to prove a particular kind of insanity, it is his responsibility to introduce evidence of his own mental abnormality.Although the state must in all other respects prove beyond a reasonable doubt that the confession was voluntary, the state is not required to negate a mental abnormality which the defendant alleges but fails to prove.State v. Glover, 343 So.2d 118(La.1977).

Defendant testified that he felt nervous, depressed and under considerable pressure during his interrogation by the deputies.The officers conceded that defendant appeared to be nervous, but stated that he also seemed quite alert and well aware of the nature of the proceedings.The record is devoid of any evidence that defendant was suffering from any mental abnormality when giving his confession that destroyed the voluntariness of that inculpatory statement.

This assignment is without merit.

Assignment of Error No. 7

This assignment involves the contention that the trial judge abused his discretion in denying a motion for continuance of the trial in order that defense counsel could have an opportunity to locate alibi witnesses whose names had just been revealed by defendant.

In his per curiam dealing with this assignment, the trial judge states that, in an in camera conference, defense counsel informed him and the prosecutor of defendant's recent disclosure of the names of the alleged alibi witnesses.The prosecutor agreed to a continuance provided defendant submitted to a polygraph examination administered by a local deputy sheriff and passed that examination.Defendant took the test and failed it.Thereupon, the trial judge denied his motion for a continuance.

As it later developed, all of the alibi witnesses except one testified at the trial.The exception was a "girl friend" whose name defendant either could not remember or who was not accurately identified in defendant's disclosure to his attorney.Further, defendant failed to establish a probability that this witness, in the event of a continuance, would be available to testify at a later trial.SeeState v. Gordy, 380 So.2d 1347(La.1980).

The trial judge did not abuse his discretion in denying this motion for a continuance.

This assignment lacks merit.

Assignment of Error No. 8

Defendant complains that the trial judge erred in denying his ...