State v. Lavalais

• Decision Date: 25 November 1996
• Citation: 685 So.2d 1048
• Parties: 95-0320 La
• Court: Louisiana Supreme Court

Page 1048

685 So.2d 1048

95-0320 La. 11/25/96

STATE of Louisiana v. Albert Earl LAVALAIS, III.

No. 95-KA-0320.

Supreme Court of Louisiana.

Nov. 25, 1996.

Rehearing Denied Dec. 13, 1996.

Gilda Rae Small, Mansura, R. Neal Walker, Carol A. Kolinchak, New Orleans, for applicant.

Richard P. Ieyoub, Attorney General, Morgan J. Goudeau, III, Opelousas, David Michael Miller, Baton Rouge, Gary C. Tromblay, St. Houma, for defendant.

[95-0320 La. 1] MARCUS, Justice. ^*

Albert Earl Lavalais, III was indicted for the first degree murder of Sheila Lemoine Smith, in violation of La. R.S. 14:30 A(4). After trial by jury, defendant was found guilty as charged. A sentencing hearing was conducted before the same jury that determined the issue of guilt. The jury unanimously recommended that a sentence of death be imposed on defendant. The trial judge sentenced defendant to death in accordance with the recommendations of the jury.

On appeal, defendant relies on eighteen assignments of error for reversal of his conviction and sentence. ¹

FACTS

On the morning of February 12, 1985, Sheila Lemoine Smith was found murdered on the utility room floor of her home in the Whiteville area, a rural part of northern St. Landry Parish. She was shot five times in the head and once in the chest with a .38 [95-0320 La. 2] caliber revolver. The apparent motive was robbery; jewelry belonging to the victim was missing from the home. Soon after the murder, St. Landry Parish sheriff deputies interviewed defendant, who was employed by the victim's husband, George Paul "Joey" Smith, to do farm work and assist in the nursery, located some 30 yards from the residence where the murder occurred. Defendant was not arrested at this time.

Around the time of the homicide, a violent robbery had taken place near the Smith residence. Three individuals, James Washington, Rodney Gillespie and Joseph Jenkins, were arrested for this robbery and pled guilty. Based upon this information, Deputy Robert Venable and Chief Deputy Harry Lemoine (the victim's father) of Avoyelles Parish became interested in a possible connection with the Smith murder. In September, 1985, Lemoine and Venable tape recorded an interview with Washington in which he implicated himself and Gillespie in the murder of Sheila Smith. However, Washington subsequently recanted his confession, and two grand juries failed to indict Washington or Gillespie for the murder of the victim.

In March, 1992, FBI agents learned of a letter allegedly written by Joey Smith to defendant. At the time, Smith was in jail awaiting trial on federal drug charges. The letter threatened to expose defendant to "the death penalty" unless he arranged for the temporary absence of a witness who was to testify against Smith in federal court. FBI testing established that the letter was in Smith's handwriting and bore his fingerprints. As a result of the letter, defendant was called in for questioning.

In interviews with deputies on April 12 and 13, 1992, defendant began detailing his part in the murder. Although asserting a secondary role, he nevertheless admitted that he procured the murder weapon and received $10,000 of a promised $50,000 in exchange for giving Smith an alibi and for disposing of the jewelry and gun. ² Defendant then agreed to a polygraph exam, [95-0320 La. 3] which would be videotaped. On April 14, 1992, defendant accompanied the deputies to Baton Rouge, where the polygraph examination was to be conducted. During the pre-examination interview, defendant at first maintained his story. Under further questioning, however, he identified himself as "the trigger man" who was hired by Smith to kill his wife for $50,000, of which $10,000 had been paid. Furthermore, defendant directed the deputies to the spot where he had buried the victim's jewelry. The murder weapon was never recovered.

PRETRIAL ISSUES

Assignment of Error No. I

Defendant contends that the letter that Smith wrote him from prison while awaiting trial on federal drug charges was hearsay and improperly admitted at trial. ³ Defendant argues that the letter was not admissible as a co-conspirator statement under La.Code Evid. art. 801(D)(3)(b), since the conspiracy terminated before the letter was written.

The letter ⁴ apparently was written to defendant by Smith in an attempt to direct defendant to keep his brother from testifying against Smith in an unrelated federal drug trial. It [95-0320 La. 4] stated in pertinent part:

With your help I will most probably be found innocent and will be in a position to help you should you or our mutual friend ever get in trouble.

* * * * * *

This is another ugly fact if you don't help me and if I'm found guilty because of your brother, then I am going to implicate you (you will get the death penalty), and I will implicate our mutual friend if he doesn't help (he will get the death penalty also) and most of all I will implicate your brother as a helper. Your brother will at least get life in prison and maybe if I can be as good a witness as he has been against me th[en] maybe he will get the death penalty also.

The letter goes on to urge defendant to find his brother because "money and your job will do you no good if he shows up in court." The letter concludes by stating, "[p]lease help me, we can all win."

Under La.Code Evid. art. 801(D)(3)(b), a statement is not hearsay if it is made by a declarant while participating in a conspiracy to commit a crime and in furtherance of the object of the conspiracy, provided that a prima facie case of conspiracy has been established. After the state presents a prima facie case of conspiracy, the burden of proof shifts to defendant to present evidence showing his withdrawal from the conspiracy prior to the time the statements were made by his co-conspirators. The conspiracy is presumed to continue unless or until the defendant shows his withdrawal from or termination of the conspiracy. Such affirmative actions include making a clean breast through confession to the authorities as well as notification to the co-conspirators of abandonment or withdrawal. State v. Lobato, 603 So.2d 739, 746 (La.1992).

In the instant case, defendant argues the conspiracy was terminated long before Smith's letter was written. He contends that the object of the conspiracy (the murder of Smith's wife) was accomplished in 1985, some seven years before the letter was written in early 1992. Moreover, he asserts that his confession establishes he abandoned any hopes of receiving the remainder of [95-0320 La. 5] the money Smith owed him for the murder, since he stated he decided to "leave him alone" after he became involved in the drug charges.

Clearly, defendant failed to prove a withdrawal from the conspiracy, since he did not make a clean breast through confession to the authorities until after the letter was written. Moreover, we are not convinced that defendant proved he abandoned any efforts to collect the remainder of the money owed by Smith for the killing. While certain statements in defendant's confession suggest he did not intend to pursue Smith while the drug charges were pending, it is unclear whether defendant gave up any hopes of ever receiving the money. Some statements in Smith's letter suggest it would be in defendant's best interest to have Smith acquitted, both in terms of keeping the murder quiet and collecting any future money.

In any event, we find that even if the letter was admitted erroneously, any such error was harmless in light of the fact that the letter contained no evidence which was not already set forth in defendant's confession to the police. In fact, the letter makes no direct reference to the murder of Sheila Smith. Rather, it simply indicates that if Joey Smith was found guilty on the drug charges, he would implicate defendant, who would get "the death penalty," and that two others (defendant's brother and "our mutual friend") would also get the death penalty. Other than this vague reference, there is nothing in the letter to connect defendant with the murder. Finally, it is noteworthy that defendant himself relied on the letter at the penalty phase in order to support his argument that he was under Smith's domination and control. Based on these facts, we conclude that admission of the letter, even if erroneous, was harmless.

Assignment of Error No. I is without merit.

Assignment of Error No. II

Defendant contends the trial judge erred in not suppressing his confession. He argues his confession was involuntary, since it was secured by "police trickery, deception and false [95-0320 La. 6] promises."

The facts developed at the hearing on the motion to suppress indicate that Detective Rene Speyrer of the St. Landry Parish Sheriff's Office received information from Detective Dale Broussard, who intercepted Smith's letter. Broussard put Speyrer in contact with defendant. Defendant informed Speyrer that sometime after the murder, he had disposed of a gun and a milk carton containing jewelry for Smith. At that point, Speyrer asked defendant if he would submit to a polygraph test. Speyrer testified he did not arrest defendant, and viewed him as nothing more than a cooperating witness in the case against Smith. Defendant agreed to accompany Speyrer to Baton Rouge, where the polygraph test was to be performed. Officer Brad Cook conducted the polygraph examination. He informed defendant that he could not be forced to submit to the examination, stating "I want you to remember that just 'cause you're here doesn't mean you have to stay here, because you're free to leave anytime you wish." Officer Cook then attached the polygraph machine to defendant and began asking him "pre-interview" questions for background information. Cook again advised defendant he was not under arrest, could leave at any time and also could ask for an attorney and one would be appointed. During the pre-interview, defendant complained that the straps for the polygraph machine were...