State v. Wessinger
| Decision Date | 28 May 1999 |
| Docket Number | No. 98-KA-1234.,98-KA-1234. |
| Citation | 736 So.2d 162 |
| Parties | STATE of Louisiana v. Todd WESSINGER. |
| Court | Louisiana Supreme Court |
Clive Adrian Stafford Smith, New Orleans, Counsel for Applicant.
Richard P. Ieyoub, Attorney General, Douglas P. Moureau, District Attorney, John W. Sinquefield, Dale R. Lee, Baton Rouge, Counsel for Respondent.
This case involves a direct appeal to this court from a conviction of two counts of first-degree murder and a sentence of death for each count of first-degree murder. La. Const. art. V, § 5(D). Defendant argues eighteen separate assignments of error in this appeal. Because we find that none of theses errors are meritorious, we affirm defendant's sentence and conviction.
This case arises from the murder of two employees of Calendar's Restaurant in Baton Rouge on Sunday, November 19, 1995, at approximately 9:30 a.m.
The evidence shows that defendant, a former employee at Calendar's, rode his bicycle to the restaurant that morning armed with a .380 semi-automatic pistol. Mike Armentor, a bartender at the restaurant, saw defendant just outside of the restaurant, and they exchanged greetings. Immediately after entering the restaurant through a rear door, defendant shot Armentor twice in the back. Although Armentor sustained severe abdominal injuries, he survived.2
Defendant then tried to shoot Alvin Ricks, a dishwasher, in the head, but the gun would not fire. As Ricks ran out of the restaurant, defendant attempted to shoot him in the leg, but the gun misfired. As he was running across the street to call 911, Ricks told Willie Grigsby, another employee of the restaurant who escaped the restaurant without being seen by defendant, that he had seen the perpetrator, and the perpetrator was Todd. Ricks also told the 911 operator that the perpetrator was Todd.3
Stephanie Guzzardo, the manager on duty that morning, heard the commotion and called 911. Before she could speak to the operator, defendant entered the office, armed with the gun. After a short exchange with Guzzardo, in which she begged for her life, defendant, after telling her to "shut up," shot her through the heart. Guzzardo died approximately thirty seconds after being shot. Defendant then removed approximately $7000 from the office.
Defendant next found David Breakwell, a cook at the restaurant who had been hiding in a cooler, and shot him as he begged for his life. Defendant then left the restaurant on his bicycle. EMS personnel arrived at the scene shortly thereafter, and Breakwell died en route to the hospital.
Defendant was eventually arrested and charged with two counts of first degree murder. Testimony adduced at trial established that defendant had asked one of his friends to commit the robbery with him, and that he planned to leave no witnesses to the crime. Several people also testified that they had seen the defendant with large sums of money after the crime. The murder weapon was subsequently discovered, along with a pair of gloves worn during the crime, at an abandoned house across the street from defendant's residence. One of defendant's friends testified that defendant had asked him to remove the murder weapon from the abandoned house. Defendant was convicted of two counts of first degree murder for the deaths of Breakwell and Guzzardo and sentenced to death. The jury found three aggravating circumstances: (1) that defendant was engaged in the perpetration or attempted perpetration of aggravated burglary or armed robbery; (2) that defendant knowingly created a risk of death or great bodily harm to more than one person; and (3) the offense was committed in an especially heinous, atrocious, or cruel manner.
Tainted evidence/ defendant's assignment of error number 2
In this assignment of error, defendant argues the trial court erred when it denied his motion to suppress evidence that was allegedly illegally seized from him. Although defendant did in fact file a motion to suppress, neither this motion nor defendant's appellate brief specifies precisely what evidence was illegally seized from him.
The record shows that a hearing was held on several of defendant's motions, including this motion to suppress, on March 26, 1997. Detective Keith Bates, who was the case officer on defendant's case and who was present when defendant was arrested, testified extensively at this hearing. Bates testified that defendant was Mirandized immediately after his arrest, which occurred at an apartment complex in Garland, Texas on November 28, at approximately 10:45 p.m. Defendant was again advised of his rights at 11:35 p.m., after he had been taken to the Garland Police Station. After being advised of his rights for the second time, defendant indicated that he understood theses rights, waived them, and agreed to talk to Bates. Defendant admitted to riding his bicycle in the vicinity of Calendar's at the time of the crime, but denied any involvement in the crime. Sometime after the interview began and defendant had answered some of Bates' questions, defendant voiced his desire to speak with a lawyer. Bates then immediately stopped the interview and did not attempt to question defendant further.4
Bates also testified that he searched defendant's residence pursuant to a search warrant, and he searched the apartment where defendant was arrested pursuant to the consent of the lessee of the apartment. Bates also obtained a warrant to search a vacant house, which was located across the street from defendant's home, pursuant to information he received from a person in Texas who had spoken with defendant. This search yielded the murder weapon, gloves, and a bag that was used in the crime. Additionally, a criminalist and a police officer had both collected evidence at the crime scene. Evidence was also seized in connection with the defendant's arrest. Further testimony established that none of the individuals whose statements to and conversations with the police lead to evidence were state agents.
The suppression hearing thus showed that no evidence was illegally seized from defendant. The only statement that defendant made while in custody was a denial of knowledge about the crime, and he was aware of and had not yet invoked his Miranda rights when he gave this statement. Further, no physical evidence was obtained in connection with this statement.
This assignment of error thus lacks merit.
Discriminatory jury selection/ defendant's assignment of error number 5
In this assignment of error, defendant argues the jury was impaneled in a discriminatory manner, which resulted in an entirely white jury. Defendant filed a motion to quash the general venire based on this alleged discriminatory impaneling. The record shows a hearing was held on this motion on June 17, 1997.
Linda Jones, the jury coordinator for East Baton Rouge Parish, and Kathy Harris, a jury clerk, testified as to the manner in which citizens were called to serve as jurors during the week at issue. Jones testified that the venire is randomly chosen by computer. Her office next estimates the jury needs of all the courts for that day and the appropriate number of jurors is summoned. In the instant case, the prospective jurors were told to report to the central jury pool room, and Harris began walking through the room and handing out panel information sheets to people in the room at 9:00 a.m. Jones specifically testified that the panels were not chosen on a "first come, first serve" basis, as there was no way of knowing who had first arrived in the room. Rather, Harris simply walked throughout the room, front to back and side to side, giving the sheets to people who were already in the room and people who were arriving in the room; people also approached Harris to receive sheets, and some sheets were passed down aisles. The first 110 people who received sheets comprised panel one, which was the panel from which the jury was chosen in the instant case; the next panel chosen was panel two, and so on. The panel in the instant case dropped to 106 people when it was discovered that 4 of the individuals had reported to the wrong room.
The panel was then divided into subpanels; there were 6 sub-panels of 16 people each and one sub-panel of 10 people. This was accomplished through the use of service cards. A card was made for each juror, and Harris then shuffled the cards several times, divided them into two groups, shuffled each group individually, and then combined the two groups and shuffled them a few more times. Harris then laid out the first seven cards in seven stacks and continued laying the cards in stacks until all of the panels were filled. The cards were face down when she was placing them in these stacks.
Although potential jurors were still arriving when Harris began to hand out the sheets, both Jones and Harris estimated that 200 people were there at that time, and they had no way of knowing which of these jurors had arrived first. Harris also testified that she did not single out certain people to receive sheets; she simply passed them out, as her job was to ensure that everyone had a sheet.
The trial court found that the jury selection was random and denied the motion. Supervisory writs were denied by both the first circuit and this court. State v. McKnight, 97-1355 (La.6/20/97) 695 So.2d 1364; State v. Wessinger, 97-1666 (La.6/23/97); 696 So.2d 982. The fact that we have previously denied supervisory writs does not preclude us from considering this issue in this direct appeal. State v. Fontenot, 550 So.2d 179 (La.1989). However, there is no reason to disturb the trial court's ruling in this appeal.
Defendant argues that jurors were selected on a "first come, first serve" basis; that is, the first jurors to arrive would comprise the panel from which the jury would be selected. Defendant claims that this practice was discriminatory because "those jurors who were less affluent, and...
To continue reading
Request your trial
-
Higgs v. U.S.A
... ... He was ultimately sentenced to seventeen years imprisonment for the charge. Higgs has remained in the custody of either state or federal law enforcement officials since that arrest. After Higgs was interviewed and arrested, the Park Police turned their attention to Phyllis ... 631, 809 P.2d 290, 339 (1991) (a reasonable jury would correctly assume “generic” instructions continued to apply); ... State v. Wessinger, 736 So.2d 162, 193-194 (La.1999) (finding no error in failure to repeat cautionary guilt phase instruction during sentencing phase); ... People ... ...
-
State v. Kelly
... ... See, e.g., Bangs v. State, 338 Ark. 515, 525, 998 S.W.2d 738 (1999); People v. Waidla, 22 Cal. 4th 690, 996 P.2d 46, 60, 94 Cal. Rptr. 2d 396 (2000); Hill v. State, 477 So.2d 553, 556 (Fla. 1985); State v. Wessinger, 736 So.2d 162, 178 (La. 1999); State v. Simon, 161 N.J. 416, 466, 737 A.2d 1 (1999); People v. Brown, 269 App. Div. 2d 817, 704 N.Y.S.2d 416 (2000); Long v. State, 10 S.W.3d 389, 395 (Tex. Crim. App. 2000) ... 10 ... In addition to his claim of inherent prejudice, the defendant also argues that ... ...
-
State v. Taylor
... ... C.Cr. P. art. 905.2(A) to expand the persons capable of testifying at the penalty phase to include close friends of the deceased. The amendment has unquestionably superceded this court's decisions in State v. Frost, 97-1771 (La.12/1/98), 727 So.2d 417 and State v. Wessinger, 98-1234 (La.5/28/99), 736 So.2d 162, with regard to those persons entitled to provide testimony as to the impact "that the death of the victim has had" on their lives ... Here, the legislature amended La.C.Cr. P. art. 905.2(A) after the instant offense, but before defendant's ... ...
-
State v. Brown
... ... C.Cr.P. art. 841(A). The contemporaneous objection rule (as the article is commonly known), was expressly extended to capital cases in two decisions of this court: State v. Taylor , 93-2201 (La. 2/28/96), 669 So.2d 364, and State v. Wessinger , 98-1234 (La. 5/28/99), 736 So.2d 162. Taylor applied the rule to alleged errors occurring in the guilt phase of a capital trial. Taylor , 98-2201 at 4-7, 669 So.2d at 367-69. Three years later, Wessinger extended the rule to the penalty phase of a capital trial, explaining that "we will no ... ...
-
Doctoring Up the Capital Defense System: Raising the Standards for Louisiana s Death Penalty Lawyers
...U.S. 1023, 117 S. Ct. 546 (1996) (requiring a contemporaneous objection in the guilt phase of a capital trial) and State v. Wessinger, 736 So. 2d 162 (La. 1999), cert. denied, 528 U.S. 1050, 120 S. Ct. 589 (1999), reh'g denied, 528 U.S. 1145, 120 S. Ct. 1001 (2000) (expanding the contempora......