State v. Kirkpatrick

• Decision Date: 28 November 1983
• Docket Number: No. 83-KA-0734,83-KA-0734
• Parties: STATE of Louisiana v. Frederick KIRKPATRICK.
• Court: Louisiana Supreme Court

Page 546

443 So.2d 546

STATE of Louisiana v. Frederick KIRKPATRICK.

No. 83-KA-0734.

Supreme Court of Louisiana.

Nov. 28, 1983.

Rehearing Denied Jan. 6, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Margaret Coon, William R. Alford, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

Thomas J. Ford, New Orleans, Oliver F. Johnson, Covington, for defendant-appellant.

BLANCHE, Justice. ^*

Defendant, Frederick Kirkpatrick was indicted by the St. Tammany Parish Grand Jury on March 11, 1982, for the first degree murder of Steve Joseph Radoste ¹, a violation of R.S. 14:30. A jury of twelve unanimously found the defendant guilty of the crime charged. Following the sentencing hearing, the jury recommended unanimously that the defendant be put to death, and the trial court sentenced him accordingly. In reaching its conclusion, the jury found the existence of the following statutory aggravating circumstances: (1) the defendant had been engaged in the perpetration or attempted perpetration of an armed robbery or simple robbery at the time the victim was killed, and (2) the offense was committed in an especially heinous, atrocious, or cruel manner. La.C.Cr.P. art. 905.4, §§ (a), (g). In appealing his conviction and sentence, the defendant has assigned twelve errors. The twelfth assignment is a request for a review for errors patent which this Court has completed, being satisfied that there are no errors patent on the face of the record.

FACTS

On the night of January 27, 1982, the defendant and Charles Faulkner were in the home of Steve Joseph Radoste, who lived alone in the Pearl River area of St. Tammany Parish. During the night Mr. Radoste was killed from having been struck in the head twice with a heavy glass object, stabbed twice, and shot in the head. The house was then robbed of several movables and the decedent's truck was taken. At the time of his death the victim was nursing an injured ankle. His crutch was found in the room next to his naked, battered body.

A forensic scientist with the Louisiana State Police described the murder scene at trial. The living room was in disarray with quite a bit of blood splattered on the furniture and carpet. The victim's naked body was lying on the floor with a butcher knife stuck into his chest to the hilt. A second knife wound was visible on the victim's lower abdomen through which a piece of the victim's intestine was protruding. There was blood from both knife wounds on and around the body. In addition, there were wounds to the victim's head. Two pillows which had been placed over the right side of the victim's head were bloodied and contained a bullet hole. Blood was also found smeared on the floor and walls of the bedroom.

Dr. Charles Crumpler performed an autopsy on the victim and made a determination as to the cause of death. He described three major types of wounds found on the victim's body. There were areas of torn skin and multiple bruises to the victim's head. There were two sharply precise stab wounds on the front of the body; one in the lower left chest, and one in the upper abdomen and midline. Finally, there was a gunshot wound on the right side of the head about an inch above the ear. Dr. Crumpler stated that the gunshot wound was the immediate cause of death, but added that the stab wounds would have caused death within a few hours as a result of slow internal bleeding.

On the afternoon of January 28, 1982, the Meridian (Mississippi) Police Department discovered the burned out remains of a late model pickup truck just south of Meridian, Mississippi. Acting upon information received, they arrested the defendant for the arson of the truck. At the time of the arrest, officers observed a number of items stacked in the defendant's home, including two televisions, a wine rack, and leather jackets, later identified as belonging to the victim. The officers, however, made no seizure at this time.

After being advised of his Miranda rights, the defendant made a voluntary statement admitting that he and Charles Faulkner had driven the truck out to a remote area and that the defendant had watched as the truck was burned. He also stated that Charles Faulkner was in possession of a .22 caliber Derringer.

On January 29, 1982, the Meridian Police received a teletype from the St. Tammany Parish Sheriff's Office identifying the vehicle identification number on the burned truck as that belonging to a truck owned by Steve Radoste. St. Tammany Parish Sheriff's Deputies then went to Meridian to examine the truck. The truck was identified and a search warrant was issued to search the defendant's house. Pursuant to the search warrant, several items were seized at the defendant's home which were subsequently identified as belonging to the victim by members of the victim's family. The defendant was then arrested for the murder of Steve Joseph Radoste.

Charles Faulkner was also later apprehended. A .22 caliber Derringer was surrendered to the authorities by a cousin of Charles Faulkner, who stated that Faulkner had given the gun to him. Tests revealed that the bullet removed from the victim's head was fired from this same .22 caliber Derringer. Merrill Koenig, a long time friend who had discovered the victim's body, identified the Derringer as one he had given to the victim.

Both the defendant and Charles Faulkner waived extradition and were returned to Louisiana to stand trial pursuant to the March 11, 1982 indictment. The cases were severed for trial and each was tried separately. The defendant was found guilty and received the death penalty. Charles Faulkner was found guilty and received a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence.

Assignment of Error No. 1

The defendant contends that the trial court erred in refusing to appoint another attorney to represent him when his court-appointed attorney realized that he had rendered legal services to members of the victim's family.

In the judge's chambers prior to the start of the third day of the trial, the court appointed defense counsel, Thomas J. Ford, Jr., informed the court, under oath, that the preceding evening he had realized that he had rendered legal services for some members of the victim's family in the past.

Ford did not state that he felt that this knowledge would interfere with his representation of the defendant. In fact, on oral arguments to this Court, Ford expressed his reaction to this revelation as an immediate concern which cost him a semi-sleepless night, but which had no effect upon his further representation of the defendant. Ford stated that, although he had a professional relationship with some members of the victim's family, he had been introduced to the victim only briefly, and could not remember ever speaking to him.

After the defendant testified in chambers as to his feelings with respect to Ford's further representation of him, the trial judge denied the defendant's motion to dismiss Ford as counsel of record and appoint another attorney.

The right of every criminal defendant to have the assistance of counsel is basic to our legal system. U.S. Const. amend. VI; La. Const. art. I, § 13. This right is preserved to an indigent defendant through the requirement that an attorney be appointed to represent him. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Harper, 381 So.2d 468 (La.1980). However, an indigent defendant does not have the right to have a particular attorney appointed to represent him. State v. Harper, supra; State v. Rideau, 278 So.2d 100 (La.1973).

The issue of conflicting loyalties usually arises in the context of joint representation. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1976); State v. Kahey, 436 So.2d 475 (La.1983). It can also arise where an attorney runs into a conflict because he or she is required to cross-examine a witness who is testifying against the defendant and who was or is a client of the attorney. United States v. Morando, 628 F.2d 535 (9th Cir., 1980); United States v. Partin, 601 F.2d 1000 (9th Cir., 1979).

Multiple representation is not per se illegal and does not violate the Sixth Amendment to the U.S. Constitution (or Article 1, Section 13 of the Louisiana Constitution) unless it gives rise to a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway, supra. If a defendant establishes that an actual conflict of interest adversely affected his lawyer's performance, he has demonstrated a violation of his Sixth Amendment rights under the U.S. Constitution and his Article I, Section 13 rights under the Louisiana Constitution. Cuyler, supra; State v. Franklin, 400 So.2d 616 (La.1981).

In the present case, no member of the victim's family appeared as a witness so as to cause a conflict of interest. In addition, defense counsel's familiarity with the victim's family was so attenuated that he had to question the individual that he thought he recognized to confirm that she was related to the victim. With respect to the victim, counsel did not know him, though he did venture that he probably had met him.

Under these facts, we find there was no conflict of interest. In any event, there was a total failure on the part of the defendant to in any way establish that the defense counsel's former representation of some members of the victim's family had any effect whatsoever on counsel's performance on the behalf of the defendant.

This assignment is without merit.

Assignment of Error No. 2

The defendant contends that the trial court erred in both verdict and sentence due to the prosecutor's opening statement to the effect that the defendant was not the murderer.

Defense counsel's brief does not direct this court to the language complained of in the prosecutor's opening statement. Reviewing the record, we can only presume that...