State v. West

• Decision Date: 08 January 1982
• Docket Number: No. 81-KA-0675,81-KA-0675
• Citation: 408 So.2d 1114
• Parties: STATE of Louisiana v. Kem C. WEST.
• Court: Louisiana Supreme Court

Page 1114

408 So.2d 1114

STATE of Louisiana v. Kem C. WEST.

No. 81-KA-0675.

Supreme Court of Louisiana.

Jan. 8, 1982.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Tilley, Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.

Elvin C. Fontenot, Jr., of Indigent Defender Office, Leesville, C. Allen Bradley, Jr., & David L. Wallace, of Evans, Bradley & Wallace, DeRidder, for defendant-appellant.

DIXON, Chief Justice. ^*

Defendant, Kem West, appeals his conviction of second degree murder. He was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Defendant's motion for a new trial was denied on January 5, 1981. Defendant's conviction is reversed, and a new trial is ordered.

On September 30, 1979 Detective Larry Smith of the Vernon Parish Sheriff's Office learned that a body had been found at the Harvy Crossing on Anacoco Creek in Vernon Parish. ¹ Upon arriving at the scene, Detective Smith discovered the body later identified as William Calcote. He had been stabbed several times, and his throat had been cut.

Calcote's father related that the victim was last seen in DeRidder with Kem West and David Hart, a close friend of the victim. David Hart was picked up for questioning on October 1, 1979. He gave one statement disclaiming any involvement, and a second statement detailing his involvement in the incident. He implicated Kem West as the perpetrator of the crime.

Hart said he, West and a third person had beaten Calcote because he had put water in the oil of Hart's car. Hart stated the defendant tied up the victim and marked an X on his face with a knife that belonged to Hart. These events occurred at West's residence.

Calcote, West, Hart and a juvenile girl drove to the Harvy Crossing on the Anacoco Creek. Hart alleged West pulled Calcote out of the car and dragged him into some bushes. Calcote asked West not to kill him, and West told him "it wouldn't hurt but a little bit." West was gone for about ten minutes. He returned with blood on his hands, and the knife was bloody and bent. Hart maintains he remained in the car with the female juvenile during the murder.

Assignments of Error Nos. 1 and 2

Defendant contends that the trial court erred in denying his motion to suppress written statements made by him on October 1 and 4, 1979.

The defendant was arrested at his residence on October 1, 1979. He was taken to the Beauregard Parish Sheriff's Office and charged with the murder of William Calcote. James McCarty, an investigator for the Beauregard District Attorney's Office, testified that he informed West of his Miranda rights, and West signed a form that indicated he understood his rights. West refused to execute the lower part of the form that pertained to a waiver of his constitutional rights. He was transferred to the criminal office at the Beauregard Parish jail. He waited for forty-five minutes while representatives of the crime lab were en route to DeRidder to search West's house.

McCarty stated he entered the office to inform the defendant of the reason for the delay, and he offered West some coke or coffee. West asked him if there was someone he could talk to about the matter. McCarty volunteered to listen. West questioned him as to the time of Calcote's death and other questions along that line. McCarty took notes as West spoke. He asked West if he would provide the information in a written statement. West refused to do so until he spoke with his attorney. Defendant's counsel was notified, and West conferred with him prior to reducing the oral statement to writing.

Defendant submits his right against self-incrimination was violated. He asserts he was "encouraged" to make an oral statement after he had refused to surrender his constitutional right to remain silent.

The determining factor as to the admissibility of the statement is whether it was given freely and voluntarily and not the result of threats, coercion or promises. State v. Jennings, 367 So.2d 357 (La.1979); State v. Williams, 366 So.2d 1365 (La.1978). The state must show the defendant was advised of his Miranda rights and there was a valid waiver of those rights. State v. Knapp, 378 So.2d 911 (La.1979). The voluntary nature of the statement must be proved beyond a reasonable doubt. State v. Volk, 369 So.2d 128 (La.1979); State v. Jennings, supra.

Defendant had been advised of his Miranda rights. He indicated that he understood what those rights were. Failure to sign the waiver provision in and of itself does not require suppression of defendant's statement. State v. Turnbull, 377 So.2d 72 (La.1979). Defendant initiated conversation with and volunteered statements to McCarty. He was allowed to confer with counsel when he requested. He provided the written statement after the consultation. The evidence shows defendant understood his rights and freely and voluntarily waived them when he made the statement on October 1. The trial court committed no error in admitting this statement.

Statements obtained from the defendant on October 3 and 4, 1979 present serious problems regarding West's right to counsel. Two statements are involved-a taped statement given to Vernon Parish Deputies Horton and Smith, and a written statement given shortly afterward to Beauregard Officers Bartlett and McCarty. The taped statement was suppressed by the trial judge. We find that the written statement is afflicted with the same infirmities as the earlier taped statement, and is a product of the earlier one.

West had been advised by his attorney on October 1 to make no statements to the police. Vernon Parish Deputy Horton and Detective Smith knew this fact. However, they obtained a statement from West after he learned that his mother had been arrested in connection with the murder. Deputy Horton stated West was taken from his cell on October 3 to obtain a blood sample. Horton claimed West wanted to give a statement to him and Smith without his lawyer present. He testified West first talked to his lawyer, but later said he only saw West use the phone.

Detective Smith testified West sent word that he wanted to talk to him and Horton about his mother. Smith said when he first saw West in Horton's office, West asked about his mother, and Horton told him she had been arrested. Smith contradicted Horton's testimony that West had been brought down for a blood sample. He testified West had given a blood sample on October 2, 1979; a dated vial of blood was introduced to corroborate this fact.

Smith testified that he knew West had an attorney and had been instructed to give no statements. He stated that he and Horton learned of Mrs. West's arrest minutes before the tape started, and West knew of her arrest before he and Horton met with him. They talked about West's mother's arrest prior to the tape. How West learned of his mother's arrest or Hart's statement is the subject of conflicting testimony. On Smith's cross-examination it was pointed out that West was in the Vernon Parish jail, and Hart was in the DeRidder city jail. Mrs. West was arrested by the Beauregard Sheriff's Office. There was no way for them to communicate except through the officers. Smith stated he reminded West that his attorney had advised him against making statements prior to the taped statement. West acknowledged the conversation with his attorney, but he wanted to tell them what he knew, and that his mother had nothing to do with the murder.

West testified that he was locked in the drunk tank on October 3, 1979 when Vernon Deputy Sheriff Horton came to his cell, and said he wanted a statement. Horton told West he had statements from everyone else, and they were pointing the finger at him and his mother. Horton told West he could maybe work something out for his mother if he gave a statement. This was the first time West learned of his mother's arrest.

West said Horton left the cell and returned with Smith to retrieve West. Horton told West he could help out his mother so that she wouldn't be charged with Murder I. He said a word from him would help out. The three of them went downstairs into a detective room at the Vernon Parish jail. West signed the waiver of rights form. He talked with Horton for fifteen to twenty minutes while Smith left to buy cassette tapes. (Smith denied ever leaving the room to buy tapes). Horton again told West that a statement would help his mother, but he would have to give one to the DeRidder police also. The reasons for the DeRidder statement were that West and his mother were arrested there, and the murder took place there.

West further testified Horton told him that Hart had said West killed Calcote, and Mrs. West had reason for wanting him dead. On tape West told Horton this was a lie. The tape also revealed that West told Horton he would confess to murder or anything to help his mother. West testified that he would not have given a statement if he had not been told it would help his mother. West stated he did not talk to his attorney on October 2 or 3. He had been advised not to make any statements on October 1, and he told Vernon Parish officials the same.

Horton denied ever going to West's cell and informing West about his mother or Hart's statements. Horton stated Smith advised him that West was in the office and was ready to give a statement. However, the tape tends to corroborate West's testimony:

Horton: "... is it true that you want to sit down and give us a statement without your lawyer present?

West: "Yes sir, if it's true what you told me David Hart said in his statement ..."

The tape also revealed the following:

Horton: "Well, the Beauregard Sheriff's Dept., Mr. Joe Bartlett, who is Chief Deputy of the Beauregard Sheriff's Dept. there, he called this afternoon just minutes before I came up and advised you that your mother was charged ..."

Horton admitted Deputy Bartlett called him prior to seeing the defendant and told him about West's mot...