State v. Volk
| Decision Date | 05 March 1979 |
| Docket Number | No. 62787,62787 |
| Citation | 369 So.2d 128 |
| Parties | STATE of Louisiana v. Troy Normand VOLK |
| Court | Louisiana Supreme Court |
Joseph T. Dalrymple, Robert L. Beck, Jr., Antoon, Dalrymple & Beck, Alexandria, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin O. Ware, Dist. Atty., Ralph W. Kennedy, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
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Defendant, Troy Normand Volk, was convicted after a bench trial of attempted aggravated rape and was sentenced to twenty-five years imprisonment. His appeal presents twelve assignments of error for our consideration. 1
The record indicates that during the month of October, 1977, the defendant absented himself without permission from Brown's School in Austin, Texas, an institution for the mentally ill to which he was sent by a Lake County, Illinois court. During the early morning hours of October 24, 1977, he accosted a maid in a room at the Travelodge Motel in Alexandria, Louisiana. Volk pointed a gun at the woman, announced, "This is a holdup", instructed her not to scream, and assured that he would not hurt her. The woman responded that she had no money and the defendant then demanded that she remove her clothing. When the woman hesitated and attempted to dissuade him, defendant renewed his demand that the woman remove her clothing, warning, "I'm going to count to ten, if you don't take off your clothes, I'm going to kill you, but I don't want to hurt you." After the woman removed her uniform Volk admonished her to hurry and approached her, grabbing her brassiere and snatching it. A scuffle over the gun ensued, during which the woman temporarily possessed the gun and attempted to shoot Volk. The gun did not fire, she lost possession of it, and Volk ultimately struck her on the head with it to prevent her from escaping from the room. Immediately thereafter, Volk left the room and effected his escape. He was apprehended shortly thereafter by a state trooper and this prosecution ensued.
We have determined in connection with our consideration of various assignments that a remand to the trial court is required for reconsideration of the ruling holding admissible a confession made by Volk for the reason that it appears the trial judge applied the wrong burden of proof and failed to apply the correct standard in determining the confession's free and voluntary character. In the event the trial judge determines anew that the confession is admissible we require that he reconsider the twenty-five year sentence and comply with the requirements of Code of Criminal Procedure article 894.1, which mandate a statement for the record of the considerations taken into account in imposing sentence and the factual basis therefor. As will be explained hereinafter, this compliance will facilitate our review of defendant's claim of an excessive sentence, should further review be sought.
The remand to the trial court for re-examination of the issue of the admissibility of Volk's confession in light of the correct burden of proof and the appropriate standards for determination of its free and voluntary nature is especially compelled by the fact that the record reveals substantial evidence supporting the defense view that Volk's confession was not freely and voluntarily given. In preparation for the admission of the rights waiver form Volk executed and the confession he made, the state presented the testimony of the juvenile officer to whom Volk confessed. After the state announced that it had no further foundation evidence to offer on the issue of admissibility, the defense presented the testimony of a psychiatrist, Dr. Marvin Schwartz. Dr. Schwartz told the court that he had previously diagnosed Volk as a chronic schizophrenic on the basis of living with him for six months at a Chicago hospital. Schwartz testified that Volk experienced periods of decompensation and such things as hallucinations, paranoid states, disassociative states and confusional states on a transient and episodic basis but that " . . . basic defects in judgment, the inability to establish causal relationships, the poor reality testing, the tangential thinking and the withdrawal into fantasy" did tend, in his opinion based on his six months' contact, to be permanent aspects of Volk, "with very little fluctuation."
The doctor related that Volk was extremely susceptible to adult male authority figures and, prompted by a strong desire to please, would do whatever he perceived would achieve that result. The psychiatrist testified that this impulse was especially evoked by psychiatrists, social workers or probation and juvenile officers, " . . . all of whom he has been dealing with for years in Lake County, in very positive supportive relationships. . . . " Asked to say whether the juvenile officer's kind treatment of Volk could have further obscured his perceptions insofar as an understanding of the ramifications of waiving his rights was concerned, and requested to comment on Volk's ability in these circumstances to rationally understand the consequences of waiver, Dr. Schwartz opined that Volk would not have understood consequences to the extent that the rights would have any meaning to him. Asked to state his opinion with regard to Volk's ability to freely and voluntarily waive his rights on the date of the confession, October 24, 1977, Dr. Schwartz, notwithstanding he had not treated the defendant for six weeks, stated that there was every reason to believe the illness was stable, rather than phasic, since the nature of Volk's illness was chronic. Therefore, it was his belief that most probably Volk's psychological state was the same as it had been at the time of their last contact.
During cross-examination by the state, Dr. Schwartz stated his belief that Volk could not understand the constitutional rights which Miranda requires the custodial interrogator to communicate, and on redirect, asked to compare in light of the existing circumstances defendant's understanding of the consequences of waiving his rights to the comprehension one would expect of a normal person his age, Schwartz characterized Volk as "(e)xtremely less able" to understand and stated: "If I had to put it in percentile I'd say less than one percent."
The following excerpts from the state's cross-examination of Dr. Schwartz summarize his views:
. . . (T)he issue is not his intellectual understanding but his mental illness. His mental illness is what prevents him the question of whether in an abstract level, if it had no meaning to him, he could conceptually understand may be one thing. What we are dealing with here is that given the circumstances where these things are relative to what happens to him, he operates in terms of his illness, rather than appreciation of conceptual material. This is what I am saying.
Q. Well, let me ask you, if I understand you correctly, if you told him you have a right to remain silent, he would understand it at that point?
A. Yes.
Q. And if you said "Now, we'd like you to make a statement." he bubbled (Sic )?
A. That's right.
Q. But he still understood before you started that he had a right to remain silent?
A. To start with, yes.
Q. Does he understand the statement that "Anything that you say can be used against you in a court of law."?
A. I think you'd have I don't know how it was explained. For example, his idea of a court of law in Indiana was a place where they were very good to him and the court paid for his treatment at Oaks School, and sent him to us. So the question becomes one that unless he understood what the implications were, whether he was to be tried as a child or an adult, what was going on, I'm not sure he could understand. It depends how things were done and how they were explained.
Q. So, he does have a fairly good comprehension of the English language?
A. Yes, sir. Conceptually, he could understand, if it were done but on the other hand, to carry from that to his right not to respond, deals not only with the conceptually understanding but with the relationship to his behavior. What I am saying is, reading to him that he has a right to remain silent, doesn't mean he understands he really has the right to remain silent if someone asks him a question.
Q. He could understand it and what you are saying is that it just doesn't make any just doesn't really make any difference to him?
A. That's right. Yes, sir.
Q. He can understand it?
A. Yes, sir.
Q. But it just wouldn't make any difference to him?
A. Yes, sir, that's what I'm saying. He doesn't operate in terms of things like that. He operates in terms of what people tell him to do.
Juxtaposed with Schwartz' testimony is that of Dr. Culpepper, who was called by the state to rebut the testimony of the defense witnesses. Culpepper, who was named to the sanity commission appointed by the court, had examined Volk ten days after the commission of the offense for a period of approximately one and one-half to two hours. His examination, which included an intelligence quotient test for thirty minutes of the examination period, led to his conclusion that defendant was not psychotic; rather, he determined that Volk was a mentally average person who had an antisocial personality. 2 Dr. Culpepper opined that Volk had the mental capacity to understand the rights set forth on the waiver form exhibited to him; the doctor responded negatively when asked if he perceived anything in the defendant's personality which would render him particularly susceptible to the influence of male authority figures. There is no significant area of agreement insofar as the assessments of the two psychiatrists are concerned.
Considering the seriousness of the dispute between the state and the defense regarding the voluntariness Vel non of defendant's waiver and confession, the application of the proper burden of proof to the correct party assumes paramount importance. This Court has repeatedly recognized the...
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