State v. Moses

• Decision Date: 29 January 1979
• Docket Number: No. 62559,62559
• Citation: 367 So.2d 800
• Parties: STATE of Louisiana v. Cynthia A. MOSES.
• Court: Louisiana Supreme Court

Page 800

367 So.2d 800

STATE of Louisiana v. Cynthia A. MOSES.

No. 62559.

Supreme Court of Louisiana.

Jan. 29, 1979.

Rehearing Denied March 5, 1979. ^*

Wendell E. Tanner, Slidell, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.

SUMMERS, Chief Justice.

The Grand Jury of St. Tammany Parish jointly indicted Cynthia Moses and James Stacks for the January 21, 1977 murder of James Moses, the husband of Cynthia Moses. La.Rev.Stat. 14:30 (1976). On the State's motion James Stacks was ordered severed from the indictment and the State proceeded to trial against Cynthia Moses. La.Code Crim.Pro. arts. 704-706. The jury found her guilty of first degree murder. After a sentence hearing held pursuant to Articles 905-905.9 of the Code of Criminal Procedure, the jury recommended life imprisonment. The trial judge sentenced her accordingly. Defendant appeals her conviction and sentence, urging nine of ten assignments of error.

Evidence at the trial showed that on January 21, 1977, one Maurice Hodgson, a resident of Slidell was led to a site in the woods by the report of Cynthia Moses over a C.B. radio that a shooting had just occurred. Upon arrival at the scene Hodgson found Cynthia Moses, apparently distraught, beside the body of her husband James Moses. The victim had been shot by a high powered rifle.

An investigation ensued and as a result Cynthia Moses and James Stacks were arrested on February 2, 1977 and both were charged with first degree murder of James Moses.

It is the State's theory of the case that defendant and her paramour James Stacks planned the murder. The motive was twofold: to eliminate James Moses to permit the uninhibited continuation of the love affair of the conspirators, or to free Cynthia to marry Stacks; to permit the collection of $137,000, the proceeds of a policy insuring the life of James Moses.

To accomplish this design Cynthia lured her husband into the woods ostensibly for the purpose of lovemaking, the location having been the site of an amorous encounter before. Stacks was waiting there with a rifle to shoot the victim. However, when he lost his courage and could not pull the trigger, Cynthia went over to Stacks' hiding place, seized the weapon and fired the fatal shot.

The State's chief witness was Stacks himself who gave the police a statement detailing Cynthia's involvement in the crime in return for a plea bargain in which he agreed to plead guilty to manslaughter. On the strength of this statement, the testimony of police officers who overheard conversations between Stacks and defendant prior to their arrest, and the testimony of Stacks' former wife concerning declarations made by the defendant before the killing that she would either get a divorce from the victim or kill him, the State brought the case to trial.

Assignments 1 and 9 : Before Stacks was severed from the indictment and prior to trial, he filed a motion to suppress testimony concerning a conversation between himself and defendant which had been overheard by officers of the Sheriff's office and the city police of Slidell. He was joined in this motion by the defendant. The motion was denied; and when testimony concerning the conversation was introduced at trial, the defense objected and those rulings are assigned as error.

Although no written motion appears in the record, the transcript indicates that the prosecutor acknowledged the fact that such a motion had been filed, and both the prosecutor and defense counsel seemed to agree to the issue presented by the motion to suppress.

At the hearing on the motion to suppress the testimony indicated that, on the night of January 28, 1977, during the course of their investigation into the death of James Moses, five officers of the Sheriff's office followed Cynthia Moses and James Stacks, who were traveling in separate cars until they met at a service station, at which time Cynthia entered Stacks' car. They then drove to the Star Motel in Lacombe, Louisiana. Stacks registered, and he and Cynthia entered a room there.

Not being aware of the destination of the suspects, the officers had no opportunity to obtain a search warrant. Therefore they borrowed a key from the motel manager, who opened the door to an adjoining room which they entered. In addition, one of the officers remained in the motel office which adjoined the room occupied by Stacks and the defendant. From that vantage point the officer could overhear the conversation of Stacks and defendant through a closed door connecting the office to the room occupied by defendant and Stacks. In addition, other officers entered the adjoining room to which they had been admitted by the motel manager, where they too could overhear the conversation of defendant and Stacks.

No mechanical or electronic listening device was used by the officers. The conversation they overheard was audible without that assistance. At times the suspects raised their voices making their words more distinct and the need for listening devices unnecessary. Generally the officers stood near the wall and listened. At least two said they put their ears to the wall. One of the officers made notes of the conversation and with the assistance of the other officers later prepared a written report setting forth the substance of the conversation between Stacks and Cynthia Moses.

After 35 to 45 minutes the officers knocked on the door of the room occupied by defendant and Stacks, identified themselves, advised the occupants of their Miranda rights, and asked them to come to the sheriff's office for questioning. They were not placed under arrest, but accompanied the officers voluntarily, Stacks driving his own vehicle and Cynthia riding with one of the officers. After questioning, they were released and were arrested five days later.

At trial, Sergeant Bower testified to the substance of the motel conversation between Stacks and Cynthia. She feared Stacks had been spotted at the scene; that "only she knew he had pulled the trigger"; that they would divide the insurance proceeds in different bank accounts to confuse the police; and that the money would eventually go to the remodeling of defendant's home.

Defendant contended at the hearing that listening to the conversations amounted to a warrantless search and seizure without probable cause in violation of the Fourth and Fifth Amendments to the United States Constitution and the protection afforded by Article I, Section 5, of the Louisiana Constitution.

The argument made in support of this contention is based upon the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court held that an officer's warrantless bugging of defendant's conversation in a phone booth was a violation of defendant's expectation of privacy, therefore the conversation overheard and the fruits thereof were suppressed.

Here, however, no electronic device was used to overhear the conversation of the suspects and no intrusion or entry was made into the room occupied by them. Other courts considering this question have given persuasive effect to this distinction and have concluded that this kind of unaided eavesdropping does not violate Katz. United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974); United States v. Fisch, 474 F.2d 1071 (9th Cir. 1973); United States v. Llanes, 398 F.2d 880 (2d Cir. 1968); United States v. Perry, 339 F.Supp. 209 (D.C.S.D.Cal.1972). In Llanes, for example, narcotics agents stationed themselves outside the door to defendant's apartment. The door was not entirely closed, and conversation inside the apartment was clearly audible in the hallway. The Second Circuit refused to rationalize the case under the holding in Katz :

"(A)ppellant overlooks an important qualification placed upon the constitutional protection outlined in Katz, supra, which was an electronic eavesdrop case. In noting that the 'Fourth Amendment protects people, not places,' Justice Stewart, writing for the majority, also observed that 'What a person knowingly exposes to the public, Even in his own home or office, is not a subject of Fourth Amendment protection.' 389 U.S. at 351, 88 S.Ct. at 511 (emphasis supplied). We believe that conversation carried on in a tone of voice quite audible to a person standing outside the home are conversations knowingly exposed to the public. Compare the statement in the majority opinion in Hoffa v. United States, 385 U.S. 293, 303, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), quoting from the dissenting opinion of Mr. Justice Brennan in Lopez v. United States, 373 U.S. 427, 465, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963): ' "The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak. " ' In the same dissent Mr. Justice Brennan observed that eavesdropping and disguise 'do not so seriously intrude upon the right of privacy' as does electronic eavesdropping, and that the 'risk' referred to above changes crucially 'as soon as electronic surveillance comes into play.' 373 U.S. at 465-466, 83 S.Ct. at 1402. In contrast to conventional eavesdropping, he noted, 'there is no security from that kind of (electronic) eavesdropping, No way of mitigating the risk, and so not even a residuum of true privacy.' Id. at 466, 83 S.Ct. at 1402. (emphasis supplied). Thus appellant's reliance upon Katz is misplaced and we hold that appellant's Fourth Amendment rights were not invaded." 398 F.2d at page 884.

Katz and its progeny are basically concerned with the evils of electronic eavesdropping and the overwhelming intrusion on privacy the vast panoply of scientific listening devices create. That is not the situation in the case...