State v. White
| Decision Date | 03 November 1975 |
| Docket Number | No. 56519,56519 |
| Citation | 321 So.2d 491 |
| Parties | STATE of Louisiana v. Gregory WHITE. |
| Court | Louisiana Supreme Court |
John P. Nelson, Jr., Patricia Saik, Nelson, Nelson, & Lombard, Ltd., New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
Defendant, Gregory White, indicted for Second Degree Murder, was tried, found guilty, and sentenced to imprisonment for life, without benefit of probation, parole, or suspension of sentence for twenty years. Defendant appeals, relying upon seven assignments of error for reversal of his conviction and sentence.
Defendant alleges that he was denied his Sixth Amendment right to have counsel present during post-arrest questioning and that the court erred in denying his pretrial motion to suppress inculpatory statements.
Police officers testified that defendant was advised of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights on three occasions: in the house where he was arrested; in the car on the way to headquarters; and on the day following the crime in the Police Homicide Office. Defendant concedes that he was advised of his rights.
Defendant complains mainly that the officers failed to ask him if he wanted to call a lawyer. He alleges that the officers denied his request to call an attorney. The officers testified that the defendant made his request while in the Homicide Office and that telephone calls were only allowed at Central Lockup. The officers further testified that defendant was advised that he could call his lawyer as soon as he returned to Central Lockup. Defendant contends that this delay denied his right to have counsel present at crucial post-arrest questioning. LSA-C.Cr.P. art. 230; Miranda v. Arizona, supra.
The testimony is in conflict. Defendant testified that no only was he questioned after his request to call an attorney was denied, but also that he was beaten and punched by the officers. The officers denied the beating and testified that when defendant refused to waive his rights and requested counsel, interrogation ceased. All officers testified that the inculpatory statement, 'I threw the gun in the river,' was spontaneous and unsolicited and that no questions were asked regarding the gun after defendant volunteered the statement.
Defendant's refusal to sign a waiver of rights and to answer questions does not preclude him from making an admissible spontaneous statement. State v. Lewis, La., 315 So.2d 626 (1975). Further, defendant need not be advised of the right to use the telephone. See State v. Cripps, 259 La. 403, 250 So.2d 382 (1971).
The trial court held that the defendant, on two occasions after being advised of his rights, volunteered the statement: 'I threw the gun in the river.' The voluntariness of a confession is a question of fact, and the ruling of the trial court will not be disturbed on appeal unless it is clearly contrary to the evidence. State v. Sims, La., 310 So.2d 587 (1975). Admissibility of an inculpatory statement is for the court to determine, and its weight is to be determined by the jury. According to defendant's testimony, he made no statements whatsoever to the officers. This testimony raises a factual issue, involving credibility, for the jury's determination.
Assignment of Error No. 1 is without merit.
Defendant alleges that the State failed to prove that the oral statement, supra, was voluntary and that the court erred in allowing the State to offer additional evidence of its voluntary nature on rebuttal.
In its case in chief, the State offered the general testimony of the police officers to the effect that no force or coercion was used to secure a confession. When the defendant took the stand, he testified that he was struck by police officers. He pointed out the officers. On rebuttal, the officers refuted these specific charges.
In our opinion, the trial judge did not abuse his discretion in allowing the rebuttal testimony. See State v. Peters, La., 315 So.2d 678 (1975); State v. Monroe, La., 305 So.2d 902 (1974); State v. Honeycutt, 216 La. 610, 44 So.2d 313 (1950).
Assignment of Error No. 2 is without merit.
Prior to trial, defendant filed a supplemental prayer for oyer, which sought, among other things, 'to examine all gun pellets that may have been recovered or retrieved by the police in their investigation of the death of Willie Green.' The defense alleges that such an inspection was crucial, since the murder weapon was never recovered. Assignment of Error No. 3 complains of the trial judge's denial of the request.
The trial judge relied upon this Court's decision in State v. Barnard, La., 287 So.2d 770 (1973). Since that decision was handed down, the United States Court of Appeals for the Fifth Circuit set aside the conviction, holding that the denial of defendant's request for a pretrial examination of the bullet in that case was a denial of due process. See Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975).
Although decisions of the intermediate federal courts are not binding upon this Court, they are persuasive.
In Barnard v. Henderson, supra, the United States Court of Appeals stated:
The present case is distinguishable. In the present case, the bullets were not badly damaged, permitting a quick comparison under a dual microscope at the trial. Defendant made no request for examination at the trial. In the present case, moreover, the guilt of defendant was established by eyewitness testimony.
In State v. Collins, La., 308 So.2d 263 (1975), this Court set forth the general rule as follows:
Assignment of Error No. 3 is without merit.
Defendant alleges that the trial court erred in denying his motion to suppress a box of bullets seized from the closet in which the defendant was found at the time of his arrest. Defendant argues that the seizure does not fail into any exception allowing a lawful search without a warrant.
At the hearing on the motion to suppress, the State introduced evidence that the arresting officer received a call complaining of the discharge of firearms at the Toledano apartment of Debra Williams. Debra, an eyewitness, identified the defendant as the perpetrator. The officers who responded to the call learned that the defendant was personally known to Debra and that they could possibly find him at his home. The officers and Debra went to that address. On the way to the defendant's home, the officers learned that defendant was wanted for a murder. Defendant's wife answered the door. The officers explained that they were looking for defendant who was wanted for attempted murder and possibly murder. She denied defendant's presence and freely gave her consent to the search of the house. The officers found defendant hiding in a closet, arrested him, and contemporaneously with the arrest, found a box of gun pellets in the closet.
Defendant urges that the officers did not have an arrest warrant when they searched the closet and found the box of bullets. He contends that his wife's consent to search for defendant ended as soon as defendant was discovered. He also urges that as soon as he was discovered, he was arrested and placed in handcuffs; therefore, the officers were no longer in danger from possible physical reprisal and a search of the closet could not be deemed incident to arrest.
The trial court properly denied the motion to suppress. Mary White, defendant's wife, consented to the entry to search for defendant. The officers, supplied with the information given by the eyewitness, Debra Williams, to her attempted murder by defendant, coupled with the information received prior to entry that the defendant was also wanted for a murder, established probable cause to arrest. The search of the closet, in which defendant was hiding, was incidental to the lawful arrest. The seizure of the box of gun pellets from the closet occurred contemporaneously with the arrest of the suspected felon in the house. The search and seizure were, therefore, valid. State v. Cloud, Blakes and Cedan, La., 319 So.2d 793 (1975); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
Assignment of Error No. 4 is without merit.
Defendant objected to admitting into...
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