State v. Perry

• Decision Date: 24 November 1986
• Docket Number: No. 86,86
• Parties: STATE of Louisiana v. Michael Owen PERRY. KA 0460.
• Court: Louisiana Supreme Court

Page 543

502 So.2d 543

STATE of Louisiana v. Michael Owen PERRY.

No. 86 KA 0460.

Supreme Court of Louisiana.

Nov. 24, 1986.

Rehearing Denied March 12, 1987.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Rene Solomon, Steve Laiche, Asst. Attys. Gen., for plaintiff-appellee.

Robert Mark Romero, Welsh, Richard Arceneaux, Jennings, for defendant-appellant.

COLE, Justice ^*.

Michael Owen Perry was indicted on five counts of first degree murder, in violation of La.R.S. 14:30. After deliberation during the guilt phase of his trial, the twelve person jury unanimously concluded defendant was guilty as charged on all five counts. Following the presentation of evidence during the sentencing portion of the trial, the jury unanimously recommended defendant be sentenced to death on each count. The jury found the same two aggravating circumstances existed for each crime: the offender knowingly created a risk of death or great bodily harm to more than one person; and the offense was committed in an especially heinous, atrocious, or cruel manner. The trial judge subsequently imposed the death sentence.

Defendant on appeal relies on six assignments of error. The first three assignments of error concern statements made by defendant to various persons which the trial court ruled were admissible. Assignment of Error Number One contends the trial court erred in allowing the introduction of a statement given to Deputy Herbert L. Durkes, Jr. on September 15, 1983, while defendant was incarcerated at the Jefferson Davis Parish jail. In Assignment of Error Number Two, defendant argues the trial court should not have permitted the introduction of the testimony of his aunt, Zula Lyon, regarding statements defendant made to her. Assignment of Error Number Three involves the introduction of testimony of Deputy Ervin Trahan as it relates to a statement made by defendant while being transported by Trahan and Sheriff Dallas Cormier to the Feliciana Forensic Facility for psychiatric evaluation.

Defendant in the Fourth Assignment of Error complains of the admission into evidence of the objects seized at the two crime scenes, arguing their admission violates his Fourth Amendment right to be protected from warrantless searches and seizures. In Assignment of Error Number Five, defendant alleges the trial court erred in allowing the State to introduce numerous color photographs of the five homicide victims. The final assignment of error contends the trial judge erred in failing to grant defendant's motion for a mistrial following a state witness's reference to defendant's theft of a radio.

We have added two issues not specifically addressed by counsel in brief to ensure full review, noting they were raised during oral argument. These issues are the finding of the sanity commission hearings and defendant's withdrawal of the dual plea of "not guilty and not guilty by reason of insanity."

We therefore treat in this opinion the six assignments of error, the additional issues, and we also review the sentence. Because we find no error in the trial court proceedings and find the conviction and sentence to be valid under the law, we affirm.

FACTS

The victims in this case were all related to defendant: two were his cousins, Randy Perry and Bryan LeBlanc; two were his parents, Grace and Chester Perry; and the fifth victim was defendant's two-year-old nephew, Anthony Bonin. They were shot in separate households located only two doors away from each other. The cousins died first in the residence located at 639 Louisiana Street in Lake Arthur, Louisiana. Defendant's parents and nephew died next, inside the Perry's home at 810 Seventh Street. The circumstantial evidence from which these facts were derived was presented by the prosecution through the testimony of a number of witnesses. Other information was obtained from a statement defendant gave to Deputy Herbert Durkes while defendant was incarcerated.

On July 17, 1983 defendant apparently entered the unlocked house on Louisiana Street in the early morning. He walked first to the living room couch where Randy Perry lay asleep. From a short distance of only a few feet, he fired into the left eye of his cousin. The accused then entered the bedroom where Bryan LeBlanc slept, and again fired the gun at the victim's head.

It appears defendant then walked across the yard to his parents' home at 810 Seventh Street and broke into the house. He listened to music for a while, awaiting his parents' arrival home from an out of town trip. His parents, on their return home, stopped to pick up the two-year-old, Anthony Bonin, whom they cared for when his father worked offshore.

At about the time the parents arrived home, several people in the vicinity heard loud noises or gunshots. In the statement defendant gave to Deputy Durkes admitting to the five murders, defendant indicated his father came through the door first, followed by the child and the mother. According to this statement, he shot his father first, then his mother, and then the child. There appeared to be some struggle with his father, whose body was found crouching behind the television in the living room. Because his first attempt did not kill either of his parents, he shot both of them a second time in the head. Not being sure the child was dead, he shot him a second time also. After dragging his mother's body away from the door so he could close it, he took his father's billfold containing $3,000 cash, and a strongbox belonging to his mother. He left the scene in his father's car.

The caretaker of the 639 Louisiana Street residence, Ernest Ashford, discovered the bodies of Randy Perry and Bryan LeBlanc shortly after 5:00 P.M. on July 19, 1983. The caretaker was the son-in-law of the owner of the house and the stepfather of Bryan LeBlanc. Ashford had a key to the house, and had entered the house out of concern for the diabetic Perry. Ashford notified police, who later entered the residence of Grace and Chester Perry and discovered the bodies of the other three victims.

Defendant became a suspect because of the bad relationship he had with his parents. Defendant lived in a trailer behind their home and was not allowed to enter their home without their permission. Zula Lyon, defendant's aunt, testified in the guilt phase of the trial that defendant's motive for the killings was to obtain insurance proceeds from his parents' policies. Another possible motive was the fact defendant's parents had taken him to a mental hospital in Galveston for examination when he was sixteen and had him committed to the Central State Hospital at Pineville two years later. According to testimony, he was infuriated at his parents for committing him and had consequently threatened to kill them. Interrogated as to why he killed the victims, Deputy Durkes gave this account of defendant's statement:

Why did you kill all those people? The boys threw me out of my grandmother's house, stole money from me all the time, and harassed me constantly. My mother and father wouldn't leave me alone. They made me live in that little trailer behind their house by all those stinking dog pens. They took all my money all the time, wouldn't let me in their house when I wanted. I just couldn't take it anymore.

I asked him why he killed the child. The kid was evil, some sort of devil, witch of some sort. I asked--I'm sorry. I said that the child was too young to do him any harm or even talk, so why kill him? He was a very smart kid, he said, too smart for his age. I had to make sure he was dead.

Defendant arrived in Washington, D.C. on July 18, 1983, the day after the murders were committed. He checked into the Annex Hotel. While there, he paid rent in advance for his room, giving the clerk five one hundred dollar bills. He also bought numerous items from a television store, which were loaded by a clerk into a car matching the description of that owned by his father. On July 31, 1983 defendant had an encounter with another guest at the Annex Hotel which led to the police being called. An officer ran a routine check on defendant and learned he was wanted in Louisiana for five counts of homicide. At the time of his arrest he had in his possession $1,100 cash and a hotel key. Following his arrest, the Washington police obtained a search warrant for his hotel room. Among the evidence recovered was one of the recently purchased television sets, with the names of the five victims written on the side. The vehicle driven by Chester and Grace Perry on their trip was recovered approximately one week later in a Washington, D.C. police impoundment lot where it had been towed for being parked in a no parking zone.

Following his transport back to Louisiana defendant was indicted on five counts of first degree murder. Defendant initially entered the dual plea of "not guilty and not guilty by reason of insanity" to each charge. A sanity hearing was held to determine his competency to stand trial, and the judge ordered he be sent to Feliciana Forensic Facility for further psychiatric evaluation. Subsequent to his return from this evaluation, another sanity hearing was held. At the close of this hearing defendant was allowed to withdraw his dual plea and enter the single plea of "not guilty," against the advice of counsel.

The issue of defendant's sanity is material to assignment of errors one and three, and is also relevant in the determination of whether or not defendant should have been permitted to withdraw the dual plea initially entered and replace it with a plea of "not guilty." Even though not included in the assignment of errors, we address the finding of the sanity commission hearings and the withdrawal of the dual plea because of their overall importance and effect on other assigned errors, and because we deem it imperative to afford a defendant assessed the death penalty a review of all issues raised in his behalf regardless of whether formally asserted.

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