State v. McDonald, 65228

• Citation: 387 So.2d 1116
• Decision Date: 19 May 1980
• Docket Number: No. 65228,65228
• Parties: STATE of Louisiana v. Wendell McDONALD.
• Court: Supreme Court of Louisiana

Page 1116

387 So.2d 1116

STATE of Louisiana v. Wendell McDONALD.

No. 65228.

Supreme Court of Louisiana.

May 19, 1980.

Dissenting Opinion May 20, 1980.

Concurring Opinion June 6, 1980.

Dissenting Opinion Nov. 4, 1980.

Loyola Law School Clinic, Arthur A. Lemann, III, New Orleans, Melinda M. Tucker, Steven J. Lane, Student Practitioners, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Thomas C. Cowan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.

BLANCHE, Justice.^*

The defendant was convicted of first degree murder in violation of R.S. 14:30. In accordance with the jury's recommendation, he was sentenced to life imprisonment.

The facts adduced at trial indicate that on the night of July 6, 1977, Robyn Seymour was kidnapped from her home by Jerome West and the defendant. She was robbed of her jewelry and about twenty dollars in cash. Thereafter, she was shot and killed.

On July 26, 1977, defendant and two companions (one a female) were arrested for traffic violations incident to which a search of the vehicle's occupants revealed a .32 caliber revolver in the purse of the female acquaintance. That same day, defendant was taken to the station house and questioned by Officer Martin Venezia, who advised defendant that he was a suspect in the Seymour case. Defendant was read and waived his Miranda warning, and thereafter made a statement denying any knowledge of the Seymour incident. Defendant remained incarcerated and at 8:30 p. m., August 2, 1977, he was taken to an interrogation room where Venezia again questioned him as a suspect. After reading the defendant his Miranda warning and obtaining a waiver, Venezia took a taped statement from defendant by means of a cassette recorder belonging to a fellow officer. At 12:26 a. m. on August 4, 1977, Venezia, after having first read defendant his Miranda rights and having obtained a waiver, taped another statement from defendant. Having no other cassette available, Venezia used the previous tape in taking the second statement, thus effectively erasing and destroying the first taping.

After retaping defendant's statement, Venezia interrogated a female acquaintance of defendant who was being held in connection with another matter, and whom defendant implicated in the Seymour slaying. After questioning the acquaintance, Venezia again interrogated defendant at about 3:30 a. m. on August 4, 1977, after first having read him his Miranda rights and having obtained a waiver. This statement was verbal, and Venezia made it clear that defendant was no longer being interrogated as a suspect but as a perpetrator of the Seymour crime. In this statement, defendant made certain inculpatory statements but did not admit guilt.

On August 8, 1977, Gerard Edwards, a friend of defendant, was incarcerated on a weapons and aggravated battery charge. Edwards approached Venezia and offered to share defendant's cell with the view of obtaining inculpatory information from defendant. It was agreed between Edwards and Venezia (apparently with the knowledge and approval of the district attorney's office) that if Edwards cooperated with the police, the charges against Edwards would be dismissed. Edwards was placed in defendant's cell that same day and, within a short time, defendant made inculpatory statements to Edwards concerning the Seymour case. It is conceded that Edwards gave defendant no Miranda warning. On August 9, 1977, one day after Edwards was put into defendant's cell, defendant was formally arrested and charged with homicide. Following the arrest, defendant made a final statement in which he maintained he was at home at the time of the homicide.

Assignment of Error Number 9

By this assignment, the defendant contends that the trial court erred in admitting statements given by the defendant to Gerard Edwards. He contends the statements are inadmissible because Edwards was, in fact, an agent of the police, and their admission violated his Fifth Amendment right against self-incrimination by failing to give him a timely Miranda warning.

The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stated that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." The ruling of Miranda applies to statements taken during a custodial interrogation which the Court defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, supra at 444, 86 S.Ct. at 1612.

The rationale of Miranda is:

"(11) . . . that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity." Miranda, supra, at 457, 86 S.Ct., at 1619.

Applying these principles to the case before us, we find that the statements given by the defendant were not the result of a custodial interrogation, and thus, he was not entitled to Miranda warnings.

Although it is apparent that at the time defendant made incriminating statements to Edwards that he was in custody, and although it is also a fact that Edwards, upon volunteering to the authorities to learn what he could from defendant became, in this sense, an agent of the state; nevertheless, absent from this factual setting are two salient facts which brought forth the necessity of the warnings prescribed in Miranda.

First, there was no interrogation of defendant by any figure of authority and second, there was no interrogation environment or atmosphere which in any way could be described as intimidating.

The case presented here is that of one friend misplacing confidential information with another who, in turn, used it to his own advantage. The misplacement of such confidence did not require the safeguards required by Miranda in custodial interrogation.

The defendant also maintains that the admission of these statements violated his right to counsel under the Sixth Amendment.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the United States Supreme Court found incriminating statements are, per se, involuntary if induced by officers or their agents from an accused after his indictment and while he is free on bail. In Massiah, an undercover agent surreptitiously listened to incriminating statements made by a defendant who had been indicted for federal narcotics violations, had retained counsel, had pleaded not guilty and had been released on bail. The Court in Massiah held that these statements were inadmissible because the defendant's Sixth Amendment right to counsel was violated.

It is clear that a person's right to counsel, under the Sixth and Fourteenth Amendments, attaches only at or after the time that adversary judicial proceedings have been initiated. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Here, the defendant, although arrested, had not yet been indicted and, under the rule of Massiah, his right to counsel had not yet attached at the time of his making the inculpatory statements.

Neither the defendant's Fifth Amendment "right to remain silent" nor his Sixth Amendment "right to counsel" were violated. The defendant simply chose the wrong confidant.

For these reasons, the assignment is without merit.

Assignments of Error Numbers 6 and 7

Error is alleged in the admission of contradictory statements made by defendant during the investigation of the crime and introduced in evidence before defendant testified. It is argued that this amounted to impeachment of the defendant, who did not testify at trial.

Officer Venezia testified that during the investigation, details of the offense were not released to the news media. Statements by defendant, on tape, were introduced to show defendant's knowledge of unreleased facts and the motive for the crime. Defendant's August 4, 1977 statement professed knowledge acquired from Jean Gibson who, on the date of arrest, was in possession of the murder weapon. Defendant stated that Gibson related her shooting the victim with the gun she had borrowed from defendant the day of the crime. On information given by Gibson, defendant named the street on which the victim was accosted; her being taken to her car and driven to the murder scene; a description of the victim's automobile; a description of the car used to follow the victim; the manner of operation of the car from which the fatal shots were fired; the subsequent movements of the murder vehicle; the items of jewelry taken; the amount of money involved; and the identification of a particular ring taken from the victim and shown him by Gibson. The state offered the statements as evidence from which the jury might reasonably infer such detailed information could not have been provided except by one present at the scene of the crime.

The state also introduced a statement made by defendant on August 9, 1977 after defendant was advised that Venezia had been given certain information by Jean Gibson and also following defendant's formal arrest. In this statement, defendant denied any knowledge of the crime and added that Jerome West had defendant's gun on the date of the offense in question.

We find no merit in defendant's argument that introduction of the statements amounted to impeachment of defendant who did not testify at trial. The statements were admissible as proof of the extent of defendant's knowledge of the crime. The August 9, 1977 statement indicates only defendant's reluctance to elaborate...