Opinion
2021 KA 1048
02-25-2022
STATE OF LOUISIANA v. MICHAEL THOMAS COLLINS
Gwendolyn K. Brown Counsel for Defendant/Appellant Michael Thomas Collins Michael Thomas Collins Pro Se Angola, LA Scott M. Perrilloux Counsel for Plaintiff/Appellee District Attorney State of Louisiana Brett Sommer Assistant District Attorney
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana No. 38426 The Honorable Jeffrey S. Johnson, Judge Presiding
Gwendolyn K. Brown Counsel for Defendant/Appellant Michael Thomas Collins
Michael Thomas Collins Pro Se Angola, LA
Scott M. Perrilloux Counsel for Plaintiff/Appellee District Attorney State of Louisiana Brett Sommer Assistant District Attorney
BEFORE: McDONALD, LANIER, AND WOLFE, J J.
LANIER, J.
The defendant, Michael Thomas Collins, was charged by grand jury indictment with two counts of first degree murder, a violation of La. R.S. 14:30. The defendant pled not guilty and, following a jury trial, was found guilty as charged on both counts. On each count, the defendant was sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run consecutively. The defendant now appeals, designating three counseled assignments of error and three pro se assignments of error. We affirm the convictions. We amend the sentences to provide they be served at hard labor and affirm as amended.
FACTS
Eugene Frank Gurley, Jr., known as Frank, owned National Pool Builders in Denham Springs. He was married to Patricia Gurley. On October 30, 2018, seventy-two-year-old Frank and seventy-year-old Patricia were found bludgeoned to death in the warehouse of Frank's business. Frank's cause of death was multiple blunt force impacts to the head with open skull fractures. Patricia's cause of death was multiple blunt impacts to the head with open skull fractures and laceration of the brain.
The defendant lived in a camper parked near the road at Frank's business. At about 4:00 p.m. on October 29, 2018, neighbor Kathy Norgress went to Frank's warehouse to pick up a mattress. She saw the defendant there, and although she knew the defendant, she was surprised to see him on the property. Fares Madanat, Jr., who lived next door to Frank's business, received a call from the defendant on Frank's phone on the evening of October 29, 2018. The defendant told Fares that he wanted to talk with him about a problem he was having with Frank. Fares went to see the defendant. The defendant told Fares that he was "getting kicked out." ( When the Denham Springs Police Department arrived at the scene of the murders, neither the defendant nor the Gurley's vehicles could be located.
On October 31, 2018, a warrant was obtained for the defendant's arrest. On November 3, 2018, the defendant was located in Kentucky, along with Frank's truck. He was arrested and extradited back to Louisiana. Patricia's car keys were located in the room in Kentucky where the defendant had been staying. Patricia's car was found in the Wal-Mart parking lot in Denham Springs. A pair of sweatpants found in the defendant's possession in Kentucky had bloodstains on them that matched Patricia's DNA. A sledgehammer and a ball peen hammer with hair and blood on them were found near the bodies at the warehouse. The defendant's DNA, as well as Frank and Patricia's DNA, was found on the handles of the two hammers.
The defendant did not testify at trial.
COUNSELED ASSIGNMENT OF ERROR NO. 1
In his first counseled assignment of error, the defendant argues the trial court erred in imposing sentence immediately following the denial of post-trial motions, The defendant correctly points out the trial court sentenced him immediately after denying the motions for new trial and post-verdict judgment of acquittal without obtaining a waiver of sentencing delays. See La. Code Crim. P. art. 873. While an explicit waiver of the delay is required, the error is subject to a harmless error analysis. State v. Kisack, 2016-0797 (La. 10/18/17), 236 So.3d 1201, 1205-06 (per curiam), cert, denied, _ U.S. _, 138 S.Ct. 1175, 200 L.Ed.2d 322 (2018). The defendant received mandatory sentences of life imprisonment at hard labor. See La. R.S. 14:30(C)(2). Accordingly, any error in the trial court's failure to observe the twenty-four hour delay is harmless and does not require a remand for resentencing. See State v. Seals, 95-0305 (La. 11/25/96), 684 So.2d 368, 380, cert, denied, 520 U.S. 1199, 117 S.Ct. 1558, 137 L.Ed.2d 705 (1997) ("Delay or no delay, the sentence the judge was required to impose would have been the same. Thus, no prejudice could possibly have resulted from the failure of the court to comply with the delay."); State v. Williams, 2019-0362 (La.App. 1st Cir. 2/26/20), 2020 WL 913674, *10 (unpublished), writ denied, 2020-00555 (La. 10/6/20), 302 So.3d 527
The trial court also denied the motion in arrest of judgment. .
This counseled assignment of error is without merit.
COUNSELED ASSIGNMENTS OF ERROR NOS. 2 AND 3
In these related counseled assignments of error, the defendant argues that the trial court erred in imposing consecutive sentences, and that the sentences are excessive.
A thorough review of the record indicates the defendant did not make or file a written motion to reconsider sentence based on any specific ground following the trial court's imposition of the sentence. Under La. Code Crim. P. arts. 881.1(E) and 881.2(A)(1), the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having the assignments of error reviewed because of his failure to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La.App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).
These counseled assignments of error are without merit.
PRO SE ASSIGNMENT OF ERROR NO. 1
In his first pro se assignment of error, the defendant argues the trial court erred in failing to grant his motion to suppress the arrest warrant and the evidence obtained from the resulting arrest.
According to the defendant, the arrest warrant affidavit did not contain sufficient probable cause to arrest him. The arrest warrant affidavit provided in particular that the defendant had been residing on Frank's property and had recently been evicted; the defendant was seen in Frank's truck and used Frank's cell phone on the day of the murders; and the defendant's DNA was found on the murder weapons and on Patricia's clothing and right foot.
The defendant argues the facts in the affidavit are misleading, and therefore the evidence seized from the defendant's bedroom in Kentucky should have been suppressed. The defendant suggests there was no absolute proof that he was evicted from the property. He also suggests no one testified that they saw him with Frank's phone in his hands or driving Frank's truck. Finally, the defendant suggests the DNA match should not have been used as the "major evidence" to support probable cause.
We find initially that there was sufficient probable cause for the issuance of the arrest warrant. Probable cause for an arrest exists when the facts and circumstances known to the police and of which the police have reasonable trustworthy information are sufficient to justify a person of average caution in the belief that the person to be arrested has committed a crime. The fact that a better showing of probable cause could be made by the affiant does not detract from the showing of probable cause that is made. Minor inaccuracies in assertions in the affidavit may not affect the validity of the warrant. State v. Buras, 2010-0669 (La.App. 1st Cir. 10/29/10), 2010 WL 4272876, *8 (unpublished), writ denied, 2011-0049 (La. 11/14/11), 75 So.3d 936.
The facts contained in the defendant's arrest warrant affidavit were obtained from credible sources and clearly identified the defendant as a person involved in the Gurley murders. At the hearing on the motion to suppress, the defendant did not introduce any evidence, testimonial or otherwise, attacking the probable cause of the search warrant affidavit. The affidavit was presumed valid and the defendant had the burden to prove the grounds of a motion to quash the arrest warrant, which he failed to do. See State v. McFarland, 2006-0970 (La.App. 5 Cir. 5/29/07), 960 So.2d 1132, 1141, writ denied, 2007-1448 (La. 1/7/08), 973 So.2d 732.
Moreover, the defendant did not file a motion to quash or a motion to suppress the arrest warrant. At the supplemental motion to suppress hearing, the defendant sought to suppress his statement made to Kentucky police officers regarding the location of Frank's truck, and to suppress the evidence seized from the defendant's bedroom in Kentucky, which was based on a consent to search form signed by the defendant. The defendant did not address or make any argument at that hearing regarding the lack of probable cause in the arrest warrant affidavit.
The first motion to suppress hearing addressed only the search warrants issued in the case.
The defendant's counsel questioned the sole witness, Lieutenant Michael Wilson with the Allen County Sheriffs Office, about whether the Kentucky police officers who arrested the defendant had actually seen the arrest warrant; however, the issue of whether the arrest warrant affidavit contained sufficient probable cause to arrest the defendant was never raised or adduced through the testimony of Lieutenant Wilson. Since the defendant's sole concern with the arrest warrant was whether Kentucky officials arrested the defendant with knowledge of the Louisiana-based arrest warrant, his only argument to the trial court was the following: "I would just argue that it's, I think, it's in doubt that whether they had the warrant at the time that they went and got [the defendant]. That's the only argument I would make."
The trial court denied the motion to suppress, finding that there was no evidence that the arrest warrant was not at the arrest scene and, that even if it was not, the officers acted in good faith, particularly in light of Lieutenant Wilson's testimony that he had seen the warrant, they had been informed by Louisiana authorities that there was a warrant, and they were there to arrest the defendant pursuant to it.
It is settled that a new basis for an objection may not be urged for the first time on appeal, and the rule encompasses a new basis for suppressing evidence urged for the first time on appeal as a reason for overturning a trial court's denial of a motion to suppress. La. Code Crim. P. art. 841; See State v. Butler, 2012-2359 (La. 5/17/13), 117 So.3d 87, 89 (per curiam), cert, denied, 572 U.S. 1064, 134 S.Ct. 1879, 188 L.Ed.2d 918 (2014). The constitutional validity of a seizure is ordinarily a matter for the court to determine in the context of a pre-trial motion to suppress if counsel elects to file one. See La. Code Crim. P. art. 703. This requirement insures that all disputes over police conduct unrelated to the guilt or innocence of the accused are eliminated from the jury trial and thereby avoids unwarranted delay and jury confusion. State v. Lipscomb, 2000-2836 (La. 1/25/02), 807 So.2d 218, 219-20 (per curiam).
Based on the foregoing, we find that the defendant's pro se argument that the arrest warrant affidavit did not contain sufficient probable cause is not properly before us and will not be considered.
PRO SE ASSIGNMENT OF ERROR NO. 2
In his second pro se assignment of error, the defendant argues the trial court erred in allowing into evidence gruesome and duplicative autopsy photographs.
The State sought to introduce a number of autopsy photographs at trial. The defendant objected to six photographs in particular, arguing that they were either duplicative or gruesome and, as such, more prejudicial than probative. The trial court overruled the objections and admitted the photographs into evidence. The defendant asserts in brief that the trial court erred in allowing these overly gruesome and/or duplicative photographs into evidence and, as such, he is entitled to a new trial.
At trial, the defendant objected to Exhibit SI87, a photograph of Frank's scalp pulled back, as being overly prejudicial. The defendant argued there was another photograph without the scalp pulled back that sufficed to indicate the injuries. The trial court found it was appropriate for the jury to view the photograph because the coroner utilized the photograph to form her opinion that the injuries to Frank's skull penetrated to his brain and caused hemorrhaging, which contributed to his death.
The defendant objected to Exhibit S205 and Exhibit S206 as duplicative because they showed the exact same injuries and, as such, he contended that only one should be shown. The trial court found that while similar, the photographs showed different angles of Patricia's head. More specifically, while Exhibit S205 showed a puncture wound, Exhibit S206 showed a second puncture wound that cannot clearly be seen in Exhibit S205. Again, the trial court found these photographs relevant because it indicated the manner of death.
Finally, the defendant objected to Exhibit S209, Exhibit S210, and Exhibit S211, photographs of the back of Patricia's head, on the basis that they showed the same injury. The defendant argued it would have been sufficient to show only Exhibit S210. The trial court found that Exhibit S209 and Exhibit S210, while gruesome, showed different injuries and were germane. The trial court further noted that, while Exhibit S210 showed an overview of an injury, namely a massive hematoma that resulted from a blow, Exhibit S211 was a close-up of that injury, indicating a different facet of the damage caused by the blow (namely a fractured skull).
The admission of gruesome photographs will not be overturned unless it is clear the prejudicial effect of the evidence outweighs its probative value.Admission of such evidence will not be found in error unless the photographs are so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence. Gruesomeness of photographs does not, in and of itself, prevent admissibility. State v. Huls, 95-0541 (La.App. 1st Cir. 5/29/96), 676 So.2d 160, 176, writ denied, 96-1734 (La. 1/6/97), 685 So.2d 126. Generally, photographs of a victim's body which depict the fatal wounds are relevant to prove the corpus delicti, to establish the identity of the victim, the location, severity and number of wounds, and to corroborate other evidence of the manner in which the death occurred. State v. Eaton, 524 So.2d 1194, 1201 (La. 1988), cert, denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). Moreover, the defendant cannot force the State to use drawings or other evidence instead of photographs, and cannot deprive the State of the moral force of its case by offering to stipulate to what is shown in photographs. State v. Perry, 502 So.2d 543, 559 (La. 1986), cert, denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156(1987).
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.
We find that the photographs at issue were relevant and probative in establishing that the victims had been bludgeoned to death by a sledgehammer and a ball peen hammer. They assisted the State in proving that the defendant had the specific intent to kill or to inflict great bodily harm upon his victims. They proved corpus delicti, corroborated the causes of death, the types of weapon used, and the locations and severity of the wounds. See Perry , 502 So.2d at 559. The trial court was correct in finding the probative value of the photographs outweighed any possible prejudicial effect which may have resulted from their display to the jury. See La. Code Evid. art. 403; Eaton, 524 So.2d at 1202. Accordingly, we find the trial court did not abuse its discretion in allowing the photographs into evidence.
This pro se assignment of error is without merit.
PRO SE ASSIGNMENT OF ERROR NO. 3
In his third pro se assignment of error, the defendant argues the trial court erred in failing to grant a mistrial when the prosecutor improperly shifted the burden of proof in his closing argument.
The pertinent remark by the prosecutor in his closing argument is the following: "But what I also want you to do is I want you to listen and challenge [defense counsel] to give you some reasonable explanation of who else did this."
Defense counsel objected, and the trial court sustained the objection. The jury was excused. Defense counsel moved for a mistrial under La. Code Crim. P. art. 775, arguing that the State impermissibly shifted the burden of proof to the defendant. Defense counsel explained she was not obligated to do anything, including making a closing argument. Thus, according to defense counsel, the State's challenging her to do something she had "zero obligation to do" placed a burden on her to prove something that the State did not.
The trial court sustained the objection and denied the motion for mistrial, noting that the burden always rested with the State. The trial court indicated it would direct the jury to disregard the prosecutor's comment. When the jury returned, the trial court instructed the jurors as follows:
Ladies and gentlemen, I am going to sustain the objection. I am going to instruct you to disregard any reference that [the State] may have made with regards to challenging the defense to provide some other source.
I would remind you and I will give you instructions further at the end of this, the burden of proof always rests with the State of Louisiana. Okay? There is no requirement under our system of government that the defense provide anything.
So, we are going to ask that you disregard that portion of [the State's] argument. I would also remind you, again, that this is
argument. This is not evidence, as [the State] said at the beginning of his closing argument.
Louisiana Code of Criminal Procedure article 775 provides for a mistrial if prejudicial conduct inside or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized under La. Code Crim. P. art. 770 or 771. A mistrial under La. Code Crim. P. art. 775 is discretionary and is warranted only when trial error results in substantial prejudice to the defendant depriving him of a reasonable expectation of a fair trial. State v. Faciane, 2017-224 (La.App. 5th Cir. 11/15/17), 233 So.3d 195, 208, writ denied, 2017-2069 (La. 10/8/18), 253 So.3d 797.
Louisiana Code of Criminal Procedure article 770 governs mistrials on the basis of prejudicial remarks and provides:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3)The failure of the defendant to testify in his own defense; or
(4)The refusal of the judge to direct a verdict.An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.
The remark by the State did not fall under La. Code Crim. P. art. 770. Accordingly, the applicable law is La. Code Crim. P. art. 771, which provides in pertinent part:
In the following cases, upon the 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:
(1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770[.]
Under the provisions of La. Code Crim. P. art. 771, the trial court has the discretion to grant a mistrial or admonish a jury. State v. Flowers, 2016-0130 (La.App. 1st Cir. 9/19/16), 204 So.3d 271, 284, writ denied, 2016-1871 (La. 9/6/17), 224 So.3d 983. A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant's rights that even a jury admonition could not provide a cure. See State v. Edwards, 97-1797 (La. 7/2/99), 750 So.2d 893, 906, cert, denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. State v. Anderson, 2000-1737 (La.App. 1st Cir. 3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La. 4/19/02), 813 So.2d 421. A trial court's ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518 (La. 1/17/01), 776 So.2d 443, 454; State v. Johnson, 2006-1235 (La.App. 1st Cir. 12/28/06), 951 So.2d 294, 300.
Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom, and to the law applicable to the case. La. Code Crim. P. art. 774. Prosecutors are allowed wide latitude in choosing closing argument tactics. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 614, cert, denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). The trial judge has broad discretion in controlling the scope of closing arguments, and we will not reverse a conviction on the basis of improper closing argument unless thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Vansant, 2014-1705 (La.App. 1st Cir. 4/24/15), 170 So.3d 1059, 1063; see also State v. Prestridge, 399 So.2d 564, 579-80 (La. 1981).
We find no reason to disturb the trial court's denial of the motion for mistrial. The trial court sustained defense counsel's objection, promptly addressed the remark made by the prosecutor, and reminded the jury that the burden of proof was always with the State. Further, following closing arguments, the trial court instructed the jury to disregard matters to which an objection had been sustained; that statements and arguments made by the attorneys were not evidence; and that closing argument was not to be considered as evidence. The trial court also provided the following jury charge: "The burden is upon the State to prove the defendant's guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence."
Much credit should be accorded to the good sense and fairmindedness of jurors who have seen the evidence and heard the argument, and have been instructed by the trial judge that arguments of counsel are not evidence. State v. Mitchell, 94-2078 (La. 5/21/96), 674 So.2d 250, 258, cert, denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996); Vansant, 170 So.3d at 1065. The prosecutor's brief remark about defense counsel offering some reasonable explanation of who else might have committed the crimes did not contribute to the verdict nor make it impossible for the defendant to obtain a fair trial. See La. Code Crim. P. art. 775; Vansant, 170 So.3d at 1064. Based on the foregoing we find no abuse of discretion in the trial court's denial of the motion for mistrial. Accordingly, this pro se assignment of error is without merit.
SENTENCING ERROR
For errors not assigned, we are limited in our review under La. Code Crim. P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After careful review, we have found an error in the defendant's sentences.
If the State does not seek a capital verdict, whoever commits the crime of first degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30(C)(2). In sentencing the defendant, the trial court failed to provide that the sentences were to be served at hard labor. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. La. Code Crim. P. art. 882(A). We find that correction of these illegally lenient sentences does not involve the exercise of sentencing discretion and, as such, there is no reason why this court should not amend the sentences. See State v. Price, 2005- 2514 (La.App. 1st Cir. 12/28/06), 952 So.2d 112 (en banc), writ denied, 2007- 0130 (La. 2/22/08), 976 So.2d 1277. Accordingly, since sentences at hard labor were the only sentences that could be imposed, we amend the sentences to provide that they be served at hard labor. State v. Ford, 2017-0471 (La.App. 1st Cir. 9/27/17), 232 So.3d 576, 589, writ denied, 2017-1901 (La. 4/22/19), 268 So.3d 295.
The minutes reflect the defendant was sentenced to life imprisonment at hard labor; however, the transcript does not. (R. p. 31). Where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch , 441 So.2d 732, 734 (La. 1983).
CONVICTIONS AFFIRMED. SENTENCES AMENDED, AND AFFIRMED AS AMENDED.