State v. Phillips

• Court: Court of Appeal of Louisiana
• Writing for the Court: JOHN S. COVINGTON; LANIER; LANIER
• Citation: State v. Phillips, 479 So.2d 515 (La. App. 1985)
• Decision Date: 19 November 1985
• Docket Number: No. KA,KA
• Parties: STATE of Louisiana v. Rodger Dale PHILLIPS. 85 0122.

Page 515

479 So.2d 515

STATE of Louisiana v. Rodger Dale PHILLIPS.

No. KA 85 0122.

Court of Appeal of Louisiana First Circuit.

Nov. 19, 1985.

Dissenting Opinion Nov. 25, 1985.

Rehearing Denied Dec. 26, 1985.

William R. Coenen, Jr., Dist. Atty., Oak Grove, for State of La., appellee.

C.J. D'Aquila, Port Allen, for defendant-appellant.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

JOHN S. COVINGTON, Judge.

The district attorney for the fifth judicial, West Carroll Parish, billed Rodger Dale Phillips with sixty-four counts of felony theft, in violation of La.-R.S. 14:67. At arraignment, defendant entered a plea of not guilty. Subsequently, on motion of defendant, venue was transferred to West Baton Rouge Parish. Thereafter, pursuant to a plea bargain, defendant entered a plea of guilty to thirty counts of felony theft. In exchange for his plea, the state dismissed thirty-four counts of felony theft and sixty-four counts of conspiracy to commit felony theft. After a hearing, defendant was sentenced to serve twenty-four years at hard labor. He has appealed, setting forth five assignments of error, to wit:

1. The trial court erred in denying his motion to suppress inculpatory statements.

2. The trial court erred in denying his motion to quash the indictment.

3. The trial court erred in denying his motion to withdraw his guilty plea.

4. The trial court erred in imposing an illegal sentence.

5. The trial court erred when it informed defendant he faced a maximum of ten years imprisonment for each of the thirty theft offenses, which erroneous information rendered the subsequent plea involuntary.

Assignment of error number two was not briefed on appeal and is, thereby, considered abandoned. Uniform Rules--Courts of Appeal, Rule 2-12.4.

At the time of the offenses, defendant was the treasurer of the West Carroll Parish Police Jury. In that capacity, he conspired with Eldon Joles, the president of the police jury, and others to defraud that body of several hundred thousand dollars by issuing checks for goods and services which were not actually provided. The proceeds of these checks, totalling $442,049.90, were split among the conspirators.

Defendant asserts that the scheme enacted by Joles and himself continued for over three years. During this time, defendant alleges he gave the district attorney approximately $25,000.00 in cash in response to requests for financial assistance. Defendant also claims he was approached by a fifth judicial district judge who asked for the same sort of assistance and that he gave the judge approximately $20,000.00.

After learning of a state investigation into the police jury accounts, defendant claims he received assurances from the district attorney and judge that his involvement would be "taken care of." He asserts that the district attorney told him that no charges would arise from the investigation and that the judge told him that any charges that might arise would be directed to his court and disposed of accordingly. Defendant claims that he was relying on these promises when he confessed to state investigators. After charges were formally instituted, defendant moved to suppress his confession, claiming it was involuntary because he relied on the aforementioned promises, which had not been kept. Defendant's motion was denied. Thereafter, he pled guilty, reserving his right to appeal the denial of his motion to suppress. ¹

At the time defendant entered his plea, he requested, as part of the bargain, that the results of an ongoing federal investigation be included in the presentence report. On the date of sentencing, defendant failed to provide this report to the trial judge. He asserts, however, that he agreed to forego introduction of the report in return for a favorable determination of credibility by the trial judge. As the trial court expressed its reasons for the imposition of sentence, defendant interjected that the court's remarks indicated an unfavorable credibility determination, and he wished to adhere to the original agreement to enter the results of the federal investigation into the record. The court noted to defendant that he had abrogated his responsibility in failing to obtain and submit the results and, further, that the submission would not benefit him. The court did agree to continue the sentencing hearing for thirty days in order to obtain these results. However, before the proceedings concluded, the assistant district attorney who prosecuted this case and the trial judge contacted an FBI agent who advised that there was no ongoing federal investigation. Defendant's federal complaint, in which he outlined the involvement of the West Carroll Parish district attorney and judge to federal investigators, constituted the entirety of those proceedings; and the federal investigator stated this complaint would not be acted upon until the state proceedings had been completed. The trial court then imposed the sentence.

MOTION TO SUPPRESS

(ASSIGNMENT OF ERROR NUMBER ONE)

Defendant claims his confession should have been suppressed because it was not voluntarily made but was induced by promises of immunity by corrupt officials.

The state has the burden of proving the admissibility of a confession. La.C.Cr.P. art. 703(D). The state must show that the confession was free and voluntary and not induced by threats, promises or coercion. La.R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.1983). The state must prove the facts establishing admissibility of a confession beyond a reasonable doubt. State v. Burkhalter, 428 So.2d 449 (La.1983). When a defendant alleges police misconduct in reference to the confession, the state must specifically rebut these allegations. State v. Welch, 448 So.2d 705 (La.App. 1st Cir.1984), writ denied, 450 So.2d 952 (La.1984). The factual conclusions of a district court on the admissibility of a confession will not be overturned on appeal unless they are not supported by the evidence. State v. Nathan, 444 So.2d 231 (La.App. 1st Cir.1983), writ denied, 445 So.2d 1232 (La.1984).

Defendant testified at the hearing on the motion to suppress, setting forth the improper promises he claims were presented. The district attorney accused by defendant also testified and categorically denied that improper offers had been made. In denying the motion, the trial court indicated defendant's testimony, in which he repeatedly contradicted himself, was not credible. The trial court stated as follows:

I can't believe his testimony. Even assuming what he says about the district attorney and the judge is true regarding the money, it's my feelings of listening to the testimony, even if it is true, and I don't say it is, just assuming other than his word. No one has made him any promises. Even the state trooper just said it a minute ago when you asked him.

It's my feelings that if he did give the money he felt safe just in the fact of the insurance as he stated on the stand. He felt safe that nothing was going to happen to him. So what does he do. He spills his guts through his own feelings of safety and not from anybody else. And now he wants to suppress his statements, which I find there's no basis. Nobody lured him into a false feeling of security. I think he puts himself in that position.

The trial court was presented with conflicting testimony. The court obviously found the testimony of the state witnesses more credible, and this determination was within its discretion. State v. Nathan, supra.

We find the record amply supports the trial court's determination that the confession was voluntarily made.

Defendant also alleges that the statements were taken in contravention of his Sixth Amendment right to have counsel present during questioning.

The statements of an accused, whether exculpatory or inculpatory, when made during a custodial interrogation, should be suppressed unless the accused is first advised of, and subsequently waives, his right to remain silent and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); La. Const. Art. I Sec. 13. When an accused asserts his right to counsel, the police must scrupulously honor the invocation of the right and interrogation must cease. State v. Harper, 430 So.2d 627 (La.1983).

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. The Court further held that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversations with the police. State v. Arceneaux, 425 So.2d 740 (La.1983).

It is undisputed that defendant requested the opportunity to speak with an attorney before questioning was initiated. Defendant was permitted to summon counsel of his choice and conferred with him privately. After consultation, the attorney related that he would not be able to represent defendant because of his lack of expertise in criminal law. After this attorney left, defendant then waived his rights, including the right to have an attorney present during questioning, and answered the questions presented to him. Defendant now claims the state failed to show that he intentionally abandoned the right to counsel by initiating contact after the attorney he contacted left.

We find, however, that Edwards v. Arizona, supra, is not applicable because defendant's statement was not the product of a custodial interrogation. In California v. Beheler, 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), the Supreme Court analyzed the facts that render an...