State v. WhiteState v. White
A jury found defendant, William Lynn White, guilty as charged of armed robbery and second degree kidnapping, violations of
Defendant now appeals, reserving four assignments of error. For the reasons hereinafter expressed, we affirm both convictions and sentences.
FACTS
In traveling toward California, defendant and Thomas Earl Hatchett, Jr., found themselves stranded in Ouachita Parish, Louisiana. Lacking funds to repair their inoperable vehicle, they took refuge for several days in an abandoned house near the interstate highway. On the morning of February 5, 1990, the two itinerants observed an elderly man, Emmett McGough, park his pickup in the driveway of the residence before walking into a nearby wooded area, apparently to hunt game. During the ensuing hours, while awaiting this individual‘s return, the pair decided to rob him and take his vehicle.
At approximately 2:00 p.m., when McGough again approached the house, the two men pointed sawed-off shotguns from inside the building and threatened to kill him. They soon stated their robbery intentions
Shortly thereafter, the victim succeeded in freeing himself from the wall. Then, even with his arms and legs still bound, he managed to roll his body out of the dwelling, down the driveway, and onto the edge of an adjacent road. Fortunately, a law enforcement officer soon spotted him. Nonetheless, before receiving medical attention, McGough insisted upon giving a full statement concerning the incident. Authorities then quickly apprehended the two offenders driving the stolen truck, and White later admitted his actions.
DISCUSSION
Motion to Suppress
We first address defendant‘s fourth assignment of error. He there complains of the denial of his motion to suppress the confession given officers after his arrest. Specifically, it is contended that the recorded statement did not result freely and voluntarily but, instead, through the influence of alcohol and drugs. Also, he obliquely asserts that coercion transpired with reference to certain requested medical attention and the changing of his colostomy bag.
Of course, before introducing a confession into evidence, the state must prove that the defendant made the statement freely and voluntarily and without the influence of fear, duress, intimidation, menaces, threats, inducements or promises.
Whether the state has adequately shown that the defendant spoke freely and voluntarily depends on the facts of each case. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); State v. Benoit, 440 So.2d 129 (La.1983); State v. English, supra. Moreover, a confession challenged on grounds of intoxication during interrogation remains admissible, unless the effect of the intoxicant negated the defendant‘s comprehension and rendered him unconscious of the consequences of what he said. State v. Robinson, 384 So.2d 332 (La.1980); State v. King, 573 So.2d 604 (La.App.2d Cir.1991).
Both investigating deputies in the present case stated that, after a full disclosure of his Miranda rights, defendant signed a standard waiver form and agreed to give a recorded statement. He then, according to these witnesses, consistently responded to their inquiries in an appropriate and rational manner. Each officer emphatically denied that any coercion or promises transpired, and additionally testified to observing nothing suggesting the influence of intoxicants. In fact, in answer to a direct question during the recording, White disclaimed any effects of alcohol or drugs, although mentioning the consumption of one beer about an hour earlier. One of the officers recalled defendant, upon briefly referring to a colostomy bag, being told that a nurse would later assist him. However, according to the officer, by no means did such care depend upon the accused giving a statement.
Conversely, defendant testified to having “taken two hits [of LSD] on the day [the offense] occurred,” and also to drinking beer. He further contended that, upon requesting to change the colostomy bag, the
In deciding the free and voluntary nature of a confession, the trial court‘s ruling is entitled to great deference and will not be disturbed unless unsupported by the evidence. State v. Benoit, supra; State v. English, supra. So too, on such an issue, the fact-trier‘s conclusions as to the credibility of testimony are accorded great weight. State v. Messiah, 538 So.2d 175 (La.1988), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990); State v. Moseley, supra; State v. King, supra.
Here, the district court chose the testimony of the two investigating officers as being more credible. Their statements, in addition to refuting coercion, clearly negate any claim of intoxication sufficient to vitiate voluntariness. Furthermore, our review indicates defendant to have been coherent and capable of understanding the consequences of his admissions. Thus, the record more than adequately supports the rejection of White‘s assertions of intoxication and vague contentions of coercion.
This assignment lacks merit.
Denial of Motion for Mistrial
In his second assignment, defendant complains of the denial of a motion for mistrial urged when, during the playing of the previously discussed recorded statement, the jury heard a reference to other crimes.
In presenting its case, the state sought to introduce into evidence the tape-recorded statement obtained by the two deputies and additionally the document, signed by defendant, waiving his Miranda rights. Both items referred to other offenses arising from the events of February 5, 1990. By agreement, the state deleted the offensive wording from a copy of the waiver. Also, after both the prosecutor and defense counsel indicated that a similar problem existed at only one point on the recording, the state agreed to advance the tape past that reference.
There actually existed, although then unrecalled by either attorney, two separate areas of the tape where such references occurred. When the jury thus heard the second mention of other offenses, defendant moved for mistrial. After denying that request, the trial judge instead admonished the jury to disregard that aspect of the statement.
Rather,
In the following cases, upon request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
. . . .
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark is within the scope of Article 770. In such cases, on the motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
Mistrial, a drastic remedy, is warranted only when substantial prejudice would otherwise result to the accused. State v. Smith, 418 So.2d 515 (La.1982); State v. Cushenberry, 407 So.2d 700 (La. 1981). Further, the determination of whether prejudice has resulted lies within the sound discretion of the trial court. Cf. State v. Hall, 549 So.2d 373 (La.App.2d Cir.1989), writ denied, 556 So.2d 1259 (La. 1990); State v. McLeland, 456 So.2d 633 (La.App.2d Cir.1984), writ denied, 461 So.2d 312 (La.1984).
Given the sequence of events disclosed here, the trial judge clearly did not exceed his latitude by refusing to grant a mistrial. Instead, he correctly admonished the jury concerning the reference in question.
This assignment also is meritless.
Sufficiency of the Evidence
By another assignment, defendant challenges the sufficiency of the evidence to support his convictions. Concerning the armed robbery verdict, he maintains the state did not show he acted free from duress and intimidation by Hatchett, his co-perpetrator. He further contends the second degree kidnapping adjudication cannot be sustained because (1) the victim was not “carried or removed from one geographic location to another;” (2) any imprisonment, per
The criteria for evaluating sufficiency is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all elements of the crime had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984); State v. Chism, 436 So.2d 464 (La.1983); State v. Lard, 568 So.2d 629 (La.App.2d Cir.1990). That standard, initially enunciated in Jackson, and now legislatively embodied within
Given that definition, defendant‘s attack upon his armed robbery conviction is conspicuously unimpressive. We thus find no need to belabor the point. Plainly, a rational trier of fact, upon viewing the evidence in the light most favorable to the prosecution, could find guilt beyond a reasonable doubt.
Nor is defendant‘s argument concerning second degree kidnapping,
Subsection B(3) requires neither movement of the victim, nor that the imprisonment exist for any minimum period of time. The jury, then, in reference to the charge of second degree kidnapping, could quite logically find defendant guilty beyond
Excessive Sentence
Finally, another assignment maintains defendant‘s sentences to be excessive. Of course, a two-step process is utilized by a reviewing tribunal in evaluating such a contention. On the first issue of
Defendant argues that his terms of incarceration are excessive when compared to the sentence of the co-offender. In his appellate brief, he states that another division of the district court ordered Hatchett imprisoned for twenty years at hard labor without benefit of probation, parole or suspension of sentence, all pursuant to a plea agreement.
First of all, such information is not contained in the record before us and may, consequently, neither be received nor reviewed. State v. Davis, 568 So.2d 190 (La.App.2d Cir.1990), writ denied, 572 So.2d 62 (La.1991); State v. Dean, 528 So.2d 679 (La.App.2d Cir.1988). Second, if we correctly read the transcript, Hatchett‘s case remained pending at the time of defendant‘s sentencing. Third, a trial judge is not required to treat co-defendants equally. State v. Rogers, 405 So.2d 829 (La.1981); State v. McLeland, supra. Instead, disparity of sentences between co-offenders is merely one factor among all other valid considerations. Id.
Review of the present record reflects ample consideration of the statutory guidelines in particularizing the sentences imposed. The PSI classified the 24-year-old defendant, previously convicted of two counts of third degree burglary in Alabama, as a second felony offender. A gunshot wound, sustained by him in an argument about a year before the instant crimes, severed a testicle and resulted in the earlier mentioned colostomy.
Noting that the conduct at hand subjected the elderly victim to a savage battery to the head, along with threats of death, the district judge determined that any lesser sentence would deprecate the extremely serious nature of the offenses. Mindful that convictions of armed robbery and second degree kidnapping pose the potential for a combined term of 139 years imprisonment at hard labor, we fail to view defendant‘s 20 and 33 year concurrent sentences as constitutionally excessive.
This assignment, like the other three, is without merit.
CONCLUSION
For the foregoing reasons, defendant‘s convictions and sentences are affirmed.
AFFIRMED.
Notes
A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person....