State v. HilburnState v. Hilburn
Joseph H. Simpson, Amite, for defendant-appellant.
CRAIN, Judge.
Defendant, Willie Hilburn, was charged by grand jury indictment with the second degree murder of his wife, Annie Ruth Hilburn, in violation of
The record reveals that the victim, Annie Ruth Hilburn, was shot to death in the early morning hours of May 27, 1983, in her home in rural Kentwood, Louisiana. Her body was discovered by her son, Vernon Hilburn, who lived in a trailer adjacent to his parents’ house. Vernon had visited his parents some time after 5:30 or 6:00 p.m. on the evening of May 26. When he returned to his trailer that night, both of his parents were at home and his father‘s car and truck were parked outside. He went to bed at approximately 11:00 p.m. but was awakened during the night by the sound of three gunshots. He got up and saw the taillights of a car leaving and noticed that his father‘s car was gone. At that time, Vernon went next door, where he discovered his mother‘s body lying on the floor in the living room. He saw his father‘s rifle leaning against the wall behind the front door, about a foot away from his mother‘s body.
At approximately 3:00 a.m., Deputy Sheriff Darwin Givens2 responded to a call from the Hilburn residence. Upon arrival, he observed the victim lying on the floor with two bullet wounds in her chest. Detective Johnny Jones with the Tangipahoa Parish Sheriff‘s Office joined Deputy Givens at the scene at approximately 3:45 a.m. Evidence seized from the scene included, among other things, a .30 caliber rifle, a clip containing eleven live rounds of ammunition, two spent cartridges found in the living room, a spent cartridge found in the bedroom, and a bullet which entered the living room wall and lodged in the bathroom wall. There was no sign of a forced entry into the Hilburn residence.
After Detective Jones arrived, Deputy Givens left the scene to look for defendant. He received a radio report that the suspect was seen driving down the road in the direction of his residence. Deputy Givens caught up with defendant and followed his vehicle for about a quarter of a mile before turning on the unit‘s red lights. When defendant pulled over and stopped, Deputy Givens placed him under arrest and advised him of his Miranda rights. Defendant stepped out of the car, and Givens seized two automatic pistols which defendant cаrried in his waistband. Deputy Givens testified that defendant‘s vehicle had not been weaving when he pulled it over; and defendant had no difficulty walking, talking or standing at the time of his arrest.
At approximately 5:00 a.m., in the booking room at the jail, Deputy Givens again advised defendant of his Miranda rights. Defendant filled out and signed a rights form. At approximately 6:30 a.m., Detective Jones also advised defendant of his Miranda rights, and witnessed defendant sign another rights form. Jones testified that at that time defendant stated he wanted to speak to an attorney. Jones further testified that he smelled alcohol on defendant‘s breath but defendant was alert and coherent. On cross-examination, Jones admitted that he had testified on a prior occasion that defendant had possibly appeared to be intoxicated.
Lawrence McCleary, a State Trooper, testified that he saw defendant some time between 4:00 and 6:00 a.m. on May 27 at the Sheriff‘s Office. He stated that he did smell alcohol on defendant‘s breath but defendant was not disoriented and had no difficulty walking, talking or standing.
Carrie Mae Robinson testified at trial that she knew defendant and that she had received money from him in the past. Defendant paid her rent, light bills and phone bills. She stаted that during the night of May 27, between midnight and 12:30 a.m., defendant called her and said he was going to blow his wife‘s head off. Defendant later called her from jail, and told her that he had shot his wife with a rifle. Ms. Robinson further testified that she visited defendant at defendant‘s house one to two months later. Therein, defendant pointed out to her the bullet hole through the living room wall.
Rosia Dean Francis testified that she, too, knew defendant and had received money from him for approximately a year. She stated that she saw defendant in a bar a few weeks after his wife‘s death. She heard defendant tell another man that he killed his wife and that he would kill more people before he went to prison. However, Mr. Travis Dykes and his wife, Kay Dykes, who werе hired as investigators by defendant, took a taped statement from Ms. Francis prior to trial. In that statement, she told them that she knew nothing about defendant killing his wife. Ms. Francis testified at trial that she was scared when she gave the statement to Mr. and Mrs. Dykes and that the taped statement is a lie.
After the state rested its case, the defense presented the testimony of Dr. Ralph Maxwell and Dr. Richard Strobach, both of whom were appointed to examine defendant‘s mental condition in relation to his plea of insanity. Defendant was examined approximately six months after the offense. Both doctors concluded that defendant was competent to stand trial. However, each opined that defendant did not know the difference between right and wrong at the time of the offense due to his state of intoxication. The defense also presented the testimony of defendant‘s two daughters, his son-in-law, and Kay Dykes.
ASSIGNMENT OF ERROR NO. 1
In the first assignment of error, defendant contends that the state‘s reference to the sexual relationship between Carrie Mae Robinson and defendant was prejudicial because Carrie Mae Robinson is black and defendant is white. Thus, defendant was deprived of his right to a fair trial.
During the direct examination of Ms. Robinson at trial, the prosecutor asked her if she frequently had sex with defendant, to which she replied affirmatively. The defense objected that the subject matter was irrelevant. Out of the presence of the jury, the state argued that the testimony was relevant to establish the basis of how the witness knew defendant. The court ruled the testimony was inadmissible because irrelevant at that stage of the proceedings. The court, sua sponte, then admonished each juror individually to disregard the question and the answer. Defendant did not move for a mistrial.
“If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial.” State v. Michel, 422 So.2d 1115, 1121 (La.1982); State v. Maillian, 464 So.2d 1071, 1076 (La.App. 1st Cir.), writ denied, 469 So.2d 982 (La.1985). In the present case, defense counsel moved for neither an admonition nor a mistrial. The admonition that was given by the trial court was unsolicited. Defendant complains of the prosecutor‘s questioning, which sought to elicit information concerning the relationship between the witness and defendant. Defense counsel‘s objection to the same was sustained and the jury was admonished to disregard it. As such, it was incumbent on defense counsel to move for a mistrial under
Accordingly, we find this assignment of error without merit.
By assignment of error number two, defendant argues that the admission of defendant‘s response to Miranda warnings was reversible еrror. He contends that the response was offered to establish defendant‘s mental condition and in support of the prosecution‘s argument that defendant appreciated the criminality of his acts and was able to conform his conduct to the law.
Specifically, defendant in brief directs our attention to the direct examination of Deputy Givens concerning the details of the rights form which was filled out and signed by defendant. This form was introduced into evidence as State Exhibit One, without objection by defense counsel.
Defendant also complains of the direct examination of Dеtective Jones relative to a second rights form administered to and signed by defendant. This form was introduced into evidence as State Exhibit Thirty-Two, also without objection by defendant. During this questioning, Detective Jones was asked, “Now, after you advised him of his rights, did Mr. Hilburn make any requests of you?” Jones responded, “He said he wanted to speak to an attorney.” No objection was made by defense counsel, and questioning continued.
During the cross-examination of defense witness, Dr. Maxwell, the prosecutor made reference to defendant‘s ability to fill out and sign a rights form. When cross-examining another defensе witness, Dr. Strobach, the prosecutor questioned defendant‘s ability to read his rights, sign a rights form, understand his rights, and request an attorney. Defense counsel made no objection in either instance.
Finally, defendant complains of numerous references made by the prosecutor in closing argument concerning the facts that defendant filled out and signed two rights forms and requested an attorney. The defense did not object to these references during, or after, the prosecutor‘s closing argument.
Defendant claims that the prosecutor‘s use of his responses to Miranda warnings to establish his mental condition violated the United States Supreme Court‘s holding in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Therein, the Court held that the prosecutor‘s use of postarrest, post-Miranda warnings silence as evidence of sanity violated the Due Process Clause of the Fourteenth Amendment. We note, however, in Wainwright, the prosecutor‘s references in closing argument to defendant‘s exercise of his right to remain silent were made over defense counsel‘s objection. At trial of the present case, defense counsel made no objection to any of the instances of alleged impropriety.
An irregularity or error generally cannot be availed of after verdict unless it was objected to at the time of occurrence and the grounds therefor specified. See
Accordingly, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 3
By means of this assignment, defendant argues that it was reversible error to admit into evidence the contents of the reports on which defendant‘s experts relied to form an opinion as to defendant‘s sanity. Defendant claims that admission of the witnesses’ testimony concerning statements he made
The two sanity commission members, who were appointed to evaluate defendant on his sanity defense, testified at trial as witnesses for the defense. On cross-examination by the prosecution, Dr. Maxwell testified that his report was based on information provided by defendant. Dr. Strobach testified that his report was based on facts provided by defendant and defense counsel. The prosecutor questioned the doctors about the statements made to them by defendant. Defendant admits in brief that the doctors were allowed to testify as to these statements without objection by defense counsel.
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence and the grounds therefor specified. See
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 4
In this assignment of error, defendant argues that it was erroneous for the jury not to find that defendant had carried his burden of proving that he was legally insane at the time of the commission of the offense.
In Louisiana a defendant is presumed sane, and the state is not required to prove sanity.
The standard of review applicable when a defendant pleads the affirmative defense of insanity and claims that there is insufficient evidence to support a finding of guilt beyond a reasonable doubt is whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Roy, 395 So.2d at 667.
[I]t is left to the factual determination of the jury to determine whether the defendant was capable of knowing right from wrong with regard to the conduct complained of. All of the evidence, including both expert and lay testimony and conduct and action of the defendant, should be considered by the jury in determining sanity.
State v. Heath, 447 So.2d 570, 575 (La.App. 1st Cir.), writ denied, 448 So.2d 1302 (La. 1984).
At trial, the defense presented two doctors who testified on the sanity issue. Dr. Ralph Maxwell, the coroner and a member of the sanity commission, examined defendant approximately seven months after the offense. Defendant related to Dr. Maxwell that he had a past history of chronic alcoholism. He drank seriously оn weekends, to the point where he routinely suffered from blackouts. He allegedly consumed approximately two cases of beer on the night of the homicide. Dr. Maxwell testified that someone who drinks to that extent would find it difficult to remember any of the actions for which he is accused. In Dr. Maxwell‘s opinion the defendant did not know the difference between right and wrong at the time of the alleged offense.
Dr. Richard Strobach, a psychiatrist, also examined defendant some six months after the incident, as a member of the sanity commission. He diagnosed defendant as a
No evidence was introduced to show the presence of a mental disease or defect in the nature of insanity. The evidence of record that defendant was an alcohol abuser and may have been in an intoxicated condition is not pertinent to the legal insanity issue. See State v. Rives, 407 So.2d 1195 (La.1981); State v. Shields, 444 So.2d 287 (La.App. 1st Cir.1983), writ denied, 446 So.2d 312 (La.1984). Thus, viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have concluded that defendant failed to prove by a preponderance of the evidence that he was insane at the time of the offense.
This assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 5
Defendant contends that he lacked the specific intent necessary for a conviction of either second degree murder or manslaughter because of his voluntary intoxication.
To be guilty of second degree murder, a defendant must have the specific intent to kill or inflict great bоdily harm.
Specific intent is defined as the “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”
Voluntary intoxication is a defense to a prosecution for a crime only when the condition precludes the presence of a specific criminal intent or of a special knowledge required in that particular crime.
Deputy Sheriff Darwin Givens arrested defendant shortly after the homicide occurred. He testified that he observed defendant driving his car, which was not weaving. When defendant got out of the car, he had no apparent difficulty walking, talking or standing. Defendant was able to fill out the rights form at the jail.
Detective Johnny Jones also advised defendant of his rights at the jail. Although he did smell alcohol on defendant‘s breath, defendant seemed alert and coherent. Detective Jones stated that defendant possibly appeared intoxicated. Eleven full beer cans were found in defendant‘s car after his arrest.
Louisianа State Trooper Lawrence McCleary also observed defendant at the Sheriff‘s Office after his arrest. Trooper McCleary testified that he smelled alcohol on defendant‘s breath but defendant was not disoriented and had no difficulty walking, talking or standing.
Doctor Ralph Maxwell testified at trial that defendant stated that he drank two cases of beer the night of the homicide. Defendant told Dr. Maxwell that he and his wife had two arguments that night while he was drinking his beer. According to defendant, he blacked out at 1:00 a.m., fell across his bed, and the next thing he knew was that he was arrested. He did not
Dr. Richard Strobach, who also examined defendant, testified that defendant was so intoxicated at the time of the offense that he could not have had the mental ability to formulate the intent to kill. Dr. Strobach based this conclusion primarily on a statement made by defendant that the last thing he remembered was passing out at 1:00 a.m. after drinking two cases of beer.
Carrie Mae Robinson testified that defendant called her at approximately 12:30 a.m. on the night of the killing and told her he was going to blow his wife‘s head off. According to statements made by defendant to the sanity commission members, he passed out at 1:00 a.m. At approximately 3:00 a.m., the Sheriff‘s Office received a call from the Hilburn residence regarding the shooting. Thus, almost two hours elapsed during which defendant admittedly was not drinking.
In this case, the jury found defendant‘s levеl of intoxication was insufficient to preclude his specific intent. The verdict demonstrates that the jury obviously accepted the testimony of Ms. Robinson, who spoke to defendant shortly before the incident, and of the officers who observed defendant‘s actions shortly after the homicide. The jury apparently rejected defendant‘s self-serving statements made to the members of the sanity commission approximately six months after the offense. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. State v. Kennedy, 494 So.2d 550 (La.App. 1st Cir.), writ denied, 495 So.2d 290 (La.1986). Viewing the evidence in the light most favorablе to the prosecution, we find that a rational trier of fact could reasonably have found beyond a reasonable doubt that defendant specifically intended to kill or do great bodily harm to his wife.
This assignment of error lacks merit.
ASSIGNMENT OF ERROR NO. 6
By this assignment of error, defendant argues that alleged references by the state in closing argument to “unrebutted” evidence amounted to comments on the failure of defendant to take the stand. Defendant contends that, because he was the only person who could dispute the state‘s case, the prosecutor made references to his failure to testify.
Upon a motion by defendant, a mistrial shall be ordered when the state refers to a defendant‘s failure to testify in his own behalf.
Furthermore, if the merits of defendant‘s contention are examined, the argument is without merit. The Louisiana Supreme Court has frequently upheld references made in closing argument that the state‘s case stands uncontroverted. See, e.g. State v. Latin, 412 So.2d 1357 (La. 1982); State v. Sims, 346 So.2d 664 (La. 1977). In order to mandate a mistrial under
Here, much of the testimony the prosecutor referred to as unrebutted could not have been rebutted by anyone, as it dealt with personal observations. The other remarks merely referred to defense
Assignment of error number six is without merit.
ASSIGNMENT OF ERROR NO. 7
Defendant contends that the trial court erred in not granting his motion for a post verdict judgment of acquittal. He argues that the verdict is contrary to the law and evidence.
In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). That standard, which was adopted by the Legislature in enacting
La.C.Cr.P. Art. 821 pertaining to post-verdict motions fоr acquittal based on insufficiency of evidence, is that the appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.
State v. Captville, 448 So.2d 676, 678 (La. 1984).
When circumstantial evidence is used to prove the commission of the offense,
The verdict of guilty of manslaughter in this case demonstrates that the jury concluded that it was defendant who killed Annie Ruth Hilburn. After a careful review of the evidence presented, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, сould have reached the same conclusion. The trier of fact is free to accept or reject, in whole or in part, the testimony of any witness. State v. Kennedy, 494 So.2d at 552. It is not our function to assess credibility or reweigh the evidence. State v. Rosiere, 488 So.2d at 968.
We are convinced that, when the evidence is viewed in a light most favorable to the state, a rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of the responsive offense of manslaughter of his wife, Annie Ruth Hilburn. Thus, the evidence is both constitutionally and statutorily sufficient to support defendant‘s conviction. The trial court did not err in denying defendant‘s motion for a post verdict judgment of acquittal.
For the above reasons, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 8
In his final assignment of error, defendant argues his sentence is excessive. He claims that the sentence was influenced by false and prejudicial information contained in the pre-sentence investigation report.
“The Code of Criminal Procedure sets forth the items which must be considered by the trial judge before passing sentence. The trial judge need not recite the entire checklist of article 894.1, but the record must reflect that the judge adequately considered the guidelines.” State v. Davis, 448 So.2d 645, 653 (La.1984) (citations omitted). When a trial court recites some of the article 894.1 factors, such as defendant‘s lengthy criminal record or the risk that defendant would commit other crimes, a factual basis for the sentence is present; and it is not necessary for the trial court to enumerate each factor under the article. State v. Burns, 441 So.2d 1294 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1242 (La.1984).
Defendant was found guilty of manslaughter, in violation of
We find that the trial court adequately satisfied the statutory criteria set forth in
Defendant was given more than an ample opportunity to traverse those portions of the pre-sentence investigation report which he believed to be false and рrejudicial. The trial court heard the testimony of seven defense witnesses called to traverse the report. The court specifically stated that it considered the testimony offered at the hearing in imposing sentence.
We note that the pre-sentence investigation report recommended defendant be sentenced to a lengthy period of incarceration. Under the circumstances of this case, we find no abuse of the trial court‘s sentencing discretion. Hence, we do not find defendant‘s sentence to be excessive.
This assignment of error is without merit.
The defendant‘s conviction and sentence are affirmed.
AFFIRMED.